Wednesday, November 18, 2015
Last week in class we discussed the famous case Peevyhouse v. Garland Coal & Mining Co., 382 P.2d 109 (1962). The case involved a contract wherein the Peevyhouses allowed Garland to strip-mine on their farm property. In lieu of the standard $3,000 up-front payment for surface damages, the Peevyhouses negotiated a clause requiring Garland to perform certain "restorative and remedial work" on the property after completing their mining operations. Garland mined the property and extracted their profits, then breached the restoration provision. The Peevyhouses sued for breach of contract. The evidence at trial apparently provided the cost to perform the work would be $29,000 -- but that the diminution in property value resulting from the breach was only $300. The jury split the difference, sort of, by awarding the Peevyhouses $5,000, an amount the Oklahoma Supreme Court declared to be "more than the total value of the farm even after the remedial work is done."
The Oklahoma Supreme Court modified the judgment for the Peevyhouses, awarding $300 -- the value lost. To say the least, the decision remains a controversial one. In 2008, at PrawfsBlawg, Eric E. Johnson (North Dakota) conducted a survey to name "The Most Screwed Victims in Case-Law History." Willie and Lucille Peevyhouse won that competition in a landslide. Twenty years ago, Judith Maute published a comprehensive article on the case, Peevyhouse v. Garland Coal & Mining Co. Revisited: The Ballad of Willie and Lucille in the Northwestern Univ. Law Review. Maute's article is fascinating for many reasons, not the least of which is the section on the Oklahoma Supreme Court bribery scandal that followed the case. Whether that scandal contributed to the Peevyhouse result remains, it seems, an open question.
Peevyhouse exemplifies the "economic waste doctrine" -- a contract law doctrine memorialized in the Restatement. The doctrine finds its origins in Jacob & Youngs, Inc. v. Kent, 129 N.E. 889 (9121). There, a homeowner sued the home builder for using Cohoes plumbing pipe when the contract required Reading brand pipe. Reversing the trial court's decision to exclude diminution of value evidence, the Court held that cost to complete is the proper damages measure unless, "the cost of completion is grossly and unfairly out of proportion to the good to be attained.” The defendant in Jacobs & Young appear to have the better of the argument -- in Peevyhouse, not so much (hence perhaps the result in Johnson's poll, above). Scholars have written to distinguish the two cases and better define the economic waste doctrine's contours. A good starting point is Carol Chomksy, "Of Spoil Pits and Swimming Pools: Reconsidering the Measure of Damages for Construction Contracts," 75 Minn. L. Rev. 1445 (1991) (download link).
More recently, the Oregon Supreme Court discussed its economic waste doctrine at some length in Montara Owners Assoc. v. La Noue Development, Inc., 353 P.3d 563 (Or. 2015) in a case ultimately decided on harmless error grounds. For its own part, the Oklahoma Supreme Court affirmed the Peevyhouse holding on certified question in Schneberger v. Apache Corp., 890 P.2d 847 (1994).
 Restatement (Second) Contracts, sec. 348, cmt. c (1981).
Tuesday, November 17, 2015
On Friday, November 2o, the Ohio State Law Journal is hosting "The History and Future of Election Law." According to their website:
There will be four panels: (1) The History and Future of Redistricting and Gerrymanders, (2) The History and Future of Campaign Finance, (3) The History and Future of Voting Rules and (4) The History and Future of Election Law Generally.
New York University Law Review, Volume 90, No. 4, includes articles and essays from the symposium, "Testing the Constitution," including:
- Forward: Testing the Constitution (Lee Epstein, Barry Friedman & Geoffrey R. Stone)
- Testing Shaw v. Reno: Do Majority-Minority Districts Cause Expressive Harms? (Stephen Ansolabehere & Nathaniel Persily)
- Rhetoric and Reality: Testing the Harm of Campaign Spending (Rebecca L. Brown & Andrew D. Martin)
- Measuring That Chilling Effect (Brandice Canes-Wrone & Michael C. Dorf)
- The Decision to Depart (or Not) From Constitutional Precedent: An Empirical Study of the Roberts Court (Lee Epstein, William M. Landes & Adam Liptak)
- Testing the Marketplace of Idea (Daniel E. Ho & Frederick Schauer)
- Litigating State Interests: Attorneys General as Amici (Margaret H. Lemos & Kevin M. Quinn)
- Student Notes and Comments
The University of Illinois Law Review, Volume 2015, No. 5, features a symposium, "Choice-of-Law Methodology: Fifty Years After Brainerd Currie," and other articles:
- Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements (A. Michael Froomkin)
- Re-Assembling Labor (Marion Crain, John Inazu)
- The Choice-of-Law Revolution Fifty Years After Currie: An End and a Beginning (Symeon C. Symeonides)
- Multistate Justice: Better Law, Comity and Fairness in the Conflict of Laws (Joseph William Singer)
- Remembering Brainerd Currie (Herma Hill Kay)
- Hard Cases, Single Factor Theories, and a Second Look at the Restatement 2D of Conflicts (Lea Brilmayer)
- A Radically Transformed Restatement for Conflicts (Louise Weinberg)
- Eurpoean Conflicts Law After the American "Revolution" - Comparative Notes (Peter Hay)
- Student Notes.
The University of Pennsylvania Law Review, Volume 164, No. 1, includes:
- A National Study of Access to Counsel in Immigration Court (Ingrid V. Eagly and Steven Shafer)
- Toward a Pigouvian State (Jonathan S. Masur and Eric A. Posner)
- Anti-Trust in Zero-Price Markets: Foundations (John M. Newman)
- Time to Drop the Infield Fly Rule and End a Common Law Anomaly (Andrew J. Guilford and Joel Mallord)
- Student Comments
Sunday, November 15, 2015
The Washington Post published an interesting article on November 11, 2015 stating that the Obama Administration is supporting an amendment to Title VII which would ban discrimination against homosexuals and transgender employees. Here.
Interesting, the Obama administration is not supporting enactment of a separate statute which has been introduced into Congress known as ENDA. I wonder why? I have not studied the differences, if any, between these two Bills.
As the article points out, for years, LGBT community has been trying to extend the reach of the Supreme Court's Price Waterhouse decision on sexual sex-sterotyping to outlaw this type of employment discrimination.
Whether as an amendment to Title VII or a free standing statute, enactment of such legislation is the next logical step after the Supreme Court decision on gay marriage. The only question in my mind is whether Congress will go beyond "same sex" discrimination and ban transgender discrimination as well. It is about time that they do.
Mitchell H. Rubinstein
Thursday, November 12, 2015
Harvard Law Review, Volume 129, No. 1, features The Supreme Court 2014 Term, including:
- Does the Constitution Mean What it Says (David A. Strauss)
- Imperfect Statutes, Imperfect Courts: Understanding Congress's Plan in the Era of Unorthodox Lawmaking (Abbe R. Gluck)
- Zivotofsky II as Precedent in the Executive Branch (Jack Goldsmith)
- A New Birth of Freedom?: Obergefell v. Hodges (Kenky Yoshino)
- Leading Cases
The Harvard Law Review Forum includes responses from Richard H. Fallon, Richard T. Lazurus, Hon. Richard A. Posner and Lawrence Tribe.
Northwestern University Law Review, Volume 109, N0. 4, includes:
- Purposivism in the Executive Branch: How Agencies Interpret Statutes (Kevin M. Stack)
- Remote Adjudication in Immigration (Ingrid M. Eagley)
- Student Notes and Comments
Saturday, October 31, 2015
South Texas Law Review, Volume 56, No. 3 (Spring 2015) includes:
- The Limits of Consent: Voluntary Dismissals, Appeals of Class Certification Denials, and Some Article III Problems (William P. Barnette)
- Just Visiting: Health Care Liability Claims and Nonpatient Injuries in a Health Care Setting (Brandon Beck)
- Licensed to Steal: Texas Private Property Towing Regulation and Consumer Remedies (Brian E. Walters, David M. Walters, Jennifer Shamas)
- Everything is Presumed in Texas: Analyzing teh Application of the Presumption Against Preemption (Benjamin Walther)
Yale Law Journal, Volume 125, No. 1 (October 2015) includes:
- Against Immutability (Jessica A. Clarke)
- The President and Immigration Law Redux (Adam B. Cox & Cristina M. Rodríguez)
- Which Way to Nudge: Uncovering Preferences in the Behavioral Age (Jacob Goldin)
- Student Notes, Comments
Friday, October 30, 2015
Texas A&M Law Review will be live tweeting its Fall 2015 Symposium, "Farm to Table: Agricultural Law in the Era of Sustainability," today on Twitter. Look for @TAMU_Law_Review and the hashtag in the title to follow or send questions.
Thursday, October 29, 2015
A Tennessee court granted Mother and Father's divorce in 2000. Because Mother's was found to have a drug problem and was not visiting or contacting the children, the court denied Mother access to the children until she successfully demonstrated she was drug-free.
Nine months later, Father filed a petition to terminate Mother's parental rights. Father listed in that petition the formal marital home as Mother's address even though Father knew the court had divested Mother of any right or interest in the house in the divorce judgment and Father, who resided in the home, knew Mother did not. Unable (predictably) to accomplish personal service, Father served Mother by publication, however, Father did not follow Tennessee's statutory requirements for such service. Mother did not answer or appear and the trial court granted Father's motion for default judgment terminating Mother's parental rights.
In 2010, almost nine years later, Mother filed a motion to set aside the default judgment. She asked the court to find the default judgment void for lack of personal jurisdiction. The trial court determined that Father knew Mother did not reside at the marital residence when summons issued and made no attempt to locate Mother before resorting to service by publication. The trial court set aside the default judgment and the intermediate appellate court affirmed the judgment. The Supreme Court of Tennessee granted Father's permission to appeal.
Friday, October 23, 2015
Fordham Law Review, October 2015 (Vol. 84, No. 1) includes six articles by Fordham faculty on the United States Supreme Court's June 2015 Obergfell v. Hodges decision and other articles:
- Perspectives on Marriage Equality and the Supreme Court (The Editors)
- The Power of Dignity (Elizabeth B. Cooper)
- Obergefell's Conservatism: Reifying Familial Fronts (Clare Huntington)
- Roberts, Kennedy and teh Subtle Differences that Matter in Obergefell (Joseph Landau)
- Hail Marriage and Farewell (Ethan J. Leib)
- Race, Dignity, and the Right to Marry (R. A. Lenhart
- Up from Marriage: Freedom, Solitude, and Individual Autonomy in the Shadow of Marriage Equality (Catherine Powell)
- Procedural Triage (Matthew J. B. Lawrence)
- The Sum of its Parts: The Lawyer-Client Relationship in Initial Public Offernings (Jeremy R. McLane)
- Student Notes
The New York Journal of Law & Business (Vol. 11, No. 4) includes:
- Proceedings of the 2014 Fall Conference: The Future of Class Action Litigation: A View from the Consumer Class
- Introductory Note (Peter L. Zimroth)
- Welcoming Remarks (Zimroth, Dean Trevor W. Morrison)
- Panel 1: The Current State of Consumer Class Action
- Panel 2: Reforming the Consumer Class Action
- Panel 3: Alternatives to the Consumer Class Action
- Panel 4: Roundtable Discussion: Consumer Class Actions and the Future of the Class Action
- Panel 5: Keynote Address: The Hon. Alex Kozinski, Chief Judge, U. S. Court of Appeals for the Ninth Circuit.
- Article: An Empirical Look at Consumer Class Actions (Brian T. Fitzpatrick & Robert C. Gilbert
- Student Comments
Virginia Law Review, October 2015 (Vol. 101, No. 6) includes:
- Patent Trolls and Preemption (Paul R. Gugliuzza)
- Corporate Inversions and the Unbundling of Regulatory Competition (Eric L. Talley)
- Taming Title Loans (Ryan Baasch)
Wednesday, October 21, 2015
The general rule in American jurisdictions does not permit a victorious party to recover attorney's fees or litigation costs from the losing party. There are exceptions to this rule -- courts typically enforce fee-shifting provision in contract and most if not all states have statutes that allow prevailing parties to recover fees in some situations. Some such statues provide for "one-way" fee shifting whereby only a prevailing claimant may recover fees. Others are "two-way" fee shifting statutes allowing either plaintiff or defendant to recover.
Courts have created rules on fee-shifting deisgned to achieve fairness and fidelity to the American rule, however, these rules can and have led to "a second major litigation," or to "years of protracted appellate review." Perdue v. Kenny A., 559 U.S. 542, 572 (2010) (Breyer, J., dissenting). One such rule requires attorneys to segregate attorney's fees and expenses between recoverable and unrecoverable claims. For example, if a party sues in contract and tort in a jurisdiction that enforces a fee-shifting provision in the contract but does not provide for fee-shifting in tort, a prevailing plaintiff must segregate the nonrecoverable attorney's fees incurred solely to prosecute the tort claim from the recoverable fees incurred for the contract claim and fees incurred as to both claims. See e.g., Tony Gullo Motors, Inc. v. Garcia, 212 S.W.3d 299 (Tex. 2006). Likewise, when the prevailing party wins only in part, the party must segregate fees between the successful and unsuccessful claims to the extent fee-shifting applies as to the successful claims. See Fox v. Vice, 563 U.S. 826 (2011).
What happens when each side in a lawsuit prevails in part with each party prevailing on a claim entitling it to attorney's fees pursuant to a fee-shifting provision? A California court answered this question in Sharif v. Mehusa, Inc., No. B255578, 2015 W.L. 5969679 (October 14, 2015, Cal. Ct. App.). In this case, the plaintiff prevailed on her state Equal Pay Act claim and the defendant prevailed on its plaintiff's overtime and wage claim. Each party filed a motion for attorney's fees under the applicable statute. The trial court awarded both sides its attorney's fees as to the claim upon which each prevailed, with the plaintiff obtaining a small fees award after offset.
The California appellate court affirmed. The court held that "when there are two fee shifting statutes in separate causes of action, there can be a prevailing party for one cause of action and a different prevailing party for the other cause of action." Ms. Sharif argued that because she prevailed on the Equal Pay Act claim and received a money judgment on that claim, she was the "prevailing party," and was subject only to reduction in the fee claim for the unsuccessful overtime and wage claim. The court agreed Sharif was a prevailing party in part, but added that Mehusa, Inc. was a prevailing party also as to a claim including a two-way fee shifting provision. The court stated it made no sense for the defendant to be able to recover on the overtime and wage claim if the two claims here were brought in separate actions but not if the two claims were consolidated into one action.
We cover attorney fees recovery in our Damages class. It is important for new attorneys to develop good habits about tracking time in cases, even when representation is for a flat or contingent fee. I cannot imagine anything more mind-numbing (or more filled with ethical risks) than having to recreate an attorney's fees statement on short notice at a lengthy and complicated case's end. Here is a recent essay with useful tips about substantiating attorney's fees in litigation.
Thursday, October 15, 2015
Jason Mazzone at Balkinization reports a call for papers for a two-day symposium to be held in april 2016, titled, "Constitutional History: Comparative Perspective." The symposium is sponsored by the University of Illinois Law Review and others. Click here for Mazzone's full post.
Wednesday, October 14, 2015
Tuesday, October 13, 2015
This past April, I reported on this blog that a Texas district judge had been publicly admonished by the State Commission on Judicial Conduct for posting on her Facebook page information about a case she was trying. The district judge appealed that reprimand and on September 30, a three-judge Special Court of Appeals found that the Commission, "failed to meet its burden of proving the [Judge] violated the Canons of Judicial Conduct or Article V, Section 1-a(6)(A) of the Texas Constitution." The Special Court dismissed the Commission's public admonition and found the Judge not guilty of all charges.
- Judge Admonished for Facebook Post
- Judge's Comments Raise Ethics Questions
- Tennessee: Judge's Facebook Use Does Not Lead To Recusal
- Facebook Friendship Leads to Disqualification
- Judge is Disqualified After Sending Litigant a Facebook Friend Request
- Texas: Facebook "Friendship" Alone Does Not Require Recusal
- Extraneous Remarks Leads to Remand for Re-Sentencing
- Estlinbaum, Social Networking and Judicial Ethics
- Florida: Facebook Friendship Leads to Judicial Disqualification
- Social Networking Judges and Attorneys
- Judges and Facebook
California Law Review, Volume 103, No. 5, (October 2015) includes:
- Waiving Disqualification: When Do Securities Violators Receive a Reprieve? (Urska Velikonja);
- Stare Decisis in the Second-Best World (Randy J. Kozel);
- Regulating Sex Work: Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor (Adrienne D. Davis); and
- Marital Supremacy and the Constitution of the Nonmarital Family (Serena Mayeri); and
- Two Student Comments.
Georgetown Law Journal, Volume 103, No. 6, includes:
- Cognative Cleansing: Experimental Psychology and the Exclusionary Rule (Avani Mehta Sood);
- Admin (Elizabeth F. Emens);
- Patent Conflicts (Tejas N. Narechania); and
- Three Student Comments.
Michigan State Law Review, Volume 2015, No. 2, includes articles from a symposia on net neutrality, including:
- Is There Anything New to Say About Network Neutrality? (Adam Candeub);
- Aereo: From Working Around Copyright to Thinking About Cable Box (Annemarie Brady);
- Aereo and the Problem of Machine Volition (Bruce E. Boyden);
- Defining the Limits of the Application of the Statutory Experimental Use Exception Within the Agricultural Biotechnology Industry (Jennifer Carter-Johnson);
- Agricultural Biotechnology: Drawing on International Law to Promote Progress (J. Janewa Osei-Tutu);
- Regulatory Competitive Shelters as Incentives for Innovation in Agrobiotech (Yaniv Heled)
- Living with Monsanto (Daryl Lim);
- Net Neutrality: Something Old; Something New (Justin (Gus) Hurwitz);
- The Risks and Rewards of Network Neutrality Under Sec. 706 (John Blevins);
- What's New in the Network Neutrality Debate (Rob Frieden);
- Patent Pledges: Between Public Domain and Market Exclusivity (Jorge L. Contreras);
- The Right to Innovate (Andrew W. Torrence & Eric von Hipple);
- Incongruities of Real and Intellectual Property: Economic Concepts in Patent Policy and Practice (Thomas D. Jeitschko); and
- Leaps, Metes, and Bounds: Innovation Law and its Logistics (James Ming Chen).
South Texas Law Review, Volume 56, No. 2, includes:
- Challenging Class Certification at the Pleading Stage: What Rule Should Govern and What Standard Should Apply? (Timothy A. Daniels);
- To Quote or Not To Quote: Making the Case for Teaching Law Students the Art of Effective Quotation in Legal Memoranda (Maureen Johnson); and
- Law Firm Copying and Fair Use: An Examination of Different Purpose and Fair Use Markets (D. R. Jones).
- Three Student Comments
Monday, October 12, 2015
There are three law review symposia being held this week -- two in Detroit and one in Manhattan (NY). They are:
On Thursday, October 15, the Cardoza Law Review is hosting "Ten Years the Chief: Examining a Decade of John Roberts on the Supreme Court" at the law school campus. The symposia includes four panels covering John Roberts and Constitutional Interpretation, John Roberts and the Judicial Process, The Administrative Role of the Chief Justice, and John Roberts and Statutory Interpretation. For more information, including how to RSVP, click here.
The Wayne Law Review will host its Fall Symposium, "Corporate Counsel as Gatekeepers" at the law school campus in midtown Detroit. The symposium includes an in-house counsel panel, an academic panel and a practitioner panel. Tony West, former associate U.S. attorney general and general counsel for PepsiCo, is scheduled to provide the keynote address. For more information, click here.
Also, the Detroit Mercy Law Review is hosting its Fall Symposium, "The Public Trust Doctrine: An Ancient Tool for Protecting the Great Lakes from New Hazards" at the law school's campus in downtown Detroit. The law review's website shows six participants on the program.
Tuesday, October 6, 2015
A school in upstate New York has been sued by the Department of Justice for refusing to allow a disabled student to bring his service dog to school without a handler provided by the child's family. An article about this suit can be found here. A copy of the complaint is here.
Law review commentary on the use of service dogs in school would be welcome.
Mitchell H. Rubinstein
An interesting Oct. 5, 2015 Findlaw article, here raises the question how old to too old to practice law.
As the article notes, many law firms have a mandatory retirement age of 65. Such mandatory retirement policies would expressly violate the ADEA unless the ADEA does not apply. As the article alludes to, the legal question is whether such partners are employees. If they are, the ADEA applies. If they are not, the ADEA does not apply. Though there has been litigation on this issue, it is not finally resolved.
As the article notes, mandatory retirement of lawyers appears ridiculous when Supreme Court Justices routinely serve into their 80's.
Mitchell H. Rubinstein
Wednesday, September 30, 2015
The Texas A&M Law Review is hosting a symposium, "Farm to Table: Agriculture Law in the Era of Sustainability" on October 30 at the school's Amon G. Carter Lecture Hall. The keynote speakers are Dr. Mark Hussy, Dean of Agriculture & Life Sciences at Texas A&M and Professor James Chen, Michigan State College of Law. For more information, look here.
Monday, September 28, 2015
In what may appear to be completely contradictory, union membership is surging in Indiana after that state passed a Right to Work Law, here. As the cited article states:
Indiana had 299,000 union members last year, up from 249,000 union members in 2013, according to the Bureau of Labor Statistics. Union membership, which dipped as low as 9.1 percent of the workforce in 2012, was back to 10.7 percent of the workforce in 2014.
And the number of Indiana workers who are represented by unions in their workplace, but not necessarily dues-paying members, rose to 335,000 last year, which is 12 percent of the total workforce.
The rhetoric is that unions – which represented a quarter of all American workers as recently as 1980 – are dying, a relic of a bygone age. But Northwest Indiana and much of the state remain bastions of the labor movement.
Mitchell H. Rubinstein