THE JO-TEL … illegal blog downfield

As some of you know, before the sleek jo-tel.com, we used a platform called editme, which didn’t 100% suck, but definitely failed to effectively filter spam email in the comments section, which actually was cool because it was a communal comments section at the end of the page, but, again, toward the end it served as a lightning rod for spam email, mainly because the “filter” term was a real word, so it was easily circumvented by standard spamming software. How about them clauses in that sentence, eh?

I’m bringing this one back from the editme crypt because, you know, everyone’s in law school now (even Sandon, aka Sandy D), so people can relate.
__________________________________

10. Krell v. Henry (1904)

Contracts is my least favorite law school subject. I am immediately both skeptical and repulsed by those who profess an affinity for this driest of topics. However, contracts does boast a wide array of colorful cases.

In Krell, the plaintiff made a written contract to rent his apartment to the defendant for two days to view the coronation procession of King Edward VII. After the agreement was made the coronation was canceled because the King fell ill. Defendant then refused to pay the balance of the rent. The court ruled that he was justified in not paying reasoning that the taking place of the processions along the route in front of the apartment was regarded by both parties as the foundation of the contract. This is why you can get a refund for your Laker championship tickets on a rare year when the Lakers do not make the championship. This is not a problem in Oregon because the Blazers have not made it to the NBA finals since 1990.

9. Wood v. Lucy (1917)

The prominent style-monger, Lady Duff Gordon entered into a seemingly ill-advised contract with the local retailer-plaintiff that gave the plaintiff the exclusive rights to sell Lady Duff Gordon’s cutting-edge fashions in the up-and-coming Rodeo Drive commercial district. When Rodeo started to blow up, Lady Duff tried to get out the contract. She correctly noted that most bilateral contracts require “consideration” or bargained for legal detriment on both sides of the agreement. Here, she argued, the plaintiff-retailer was not actually obligated to do anything in exchange for receiving the benefit of being Lady Duff’s exclusive dealer on Rodeo. The court, however, held that the plaintiff did have an obligation under the contract - it was, of course, the duty of good faith and fair dealing that we, the court, are reading into this contract and contracts more generally for the first time in legal history. Duh!

After this case was resolved, Lady Duff found herself at the center of another, less obscure historical event. She was a passenger on the Lusitania, the American pleasure vessel that was sunk by a German u-boat - an event often credited with pulling the United States reluctantly into WWI. Notoriously, Lady Duff - wealthy despite the outcome of the aforementioned case - bribed her way onto one of the ship’s only escape vessels and made it safely back to Britain. What a bitch.

[read the rest below, totally safe for work]

8. Ghen v. Rich (1881)

In 1880, Ghen harpooned and mortally wounded a whale off the coast of Massachusetts with a distinctive “bomb-lance.” Rich stumbled upon the whale, which “was found stranded on the beach in Brewster within the ebb and flow of tide 17 miles from the spot where it was killed.” Rich then proceeded to try out the oil and sell it. In case you were wondering, the average yield of oil is about 20 barrels to a whale.

The court let local custom decide the outcome of the case. According the general practice in the area, the harpooner got rights to the whale’s blubber minus a reasonable salvage fee to be given to the person who discovered the whale on shore and notified the harpooner. So, in the end, Rich got some money for performing the arduous task of … discovering a whale on a public beach?

7. Sherwood v. Walker (1887)

Two farmers entered in a contract for a female cow. While never made explicit, both farmers operated under the impression that the cow was fertile, as, apparently, a barren cow is useless. Should this mistake invalidate the contract? The answer is, emphatically, yes. Because the mistake was bilateral and involved a material fact that went to the heart of the agreement, the mistake was considered a defense to the enforcement of the contract. If you ever enter into an agreement to purchase a cow, you might want to keep this case in mind.

6. Wickard v. Filburn (1942)

One of the duties of Roosevelt’s Agricultural Adjustment Agency (AAA) was to set production quotas for farmers. Wickard was one such farmer. In the waning years of the Depression, he feared that he would not be able to feed his family and decided to exceed the production quotas and give the excess to his family. The government sued him.

The Supreme Court was forced to determine whether the Commerce Clause gave Congress power to regulate Wickard’s farming activity. Pursuant to the Commerce Clause, Congress may regulate “interstate commerce”. But Wickard was not selling his excess grain! Nor did his actions involved interstate activities. Or so he argued.

The Supreme Court held that economic actions can be aggregated in order to determine whether a wholly intrastate activity can have interstate implications such that Congress can regulate the activity under the Commerce Clause. The ruling was a blatant validation of the New Deal and of pump-priming economics more generally. The Roosevelt Court is the McGarnagle of Supreme Courts. It was obvious that they were not playing by the rules. “You’re a loose cannon, Roosevelt Court, I don’t now why I keep you on the force.” “Because they gets RESULTS!!!”

5. Summers v. Tice (1948)

Courts and law professors cite the shit out of this little California case. There’s just something special about it. Two guys on a quail hunting trip fire dangerously in the direction of their third friend while trying to shoot at a bird. They both miss the bird but one hits the third guy in the eye. Both guns had the same bullets. Thus, because it was impossible to tell who actually shot the bullet that hit the plaintiff, the court determined that both shooters could be held liable in the case against the plaintiff. This is called alternative causation. Yes!

Update by PETE: Keep this in mind at your next gang bang!

4. Marbury v. Madison (1803)

Until Bush v. Gore, Marbury was the most politically charged case ever decided by the Supreme Court. The dispute arose in the midst of a bitter shift in political power. Federalist John Adams, after just one term, had been defeated by “Republican” Thomas Jefferson. During his acrimonious last days in office, John Adams made several “midnight appointments” of federal judges. Among these last-minute appointments was the Federalist Marbury.

While Adams delivered the appointments, his secretary of state neglected to endorse and deliver them before he was forced out of office by the incoming secretary, future President James Madison. Madison, hoping to prevent the appointments of Federalist judges, refused to endorse the appointments.

Enter John Marshall, the George Washington of Supreme Court justices. This guy was a man among boys on the early Supreme Court. At the time, Supreme Court justices personally travelled to the various federal circuits to hear each dispute. This rigorous schedule discouraged many qualified jurists from accepting appointments to the Supreme Court. John Jay, the first Chief Justice of the Supreme Court, lasted only three years before stepping down to pursue his more remembered career as a diplomat (think the XYZ affair). Among a group of tired and often unqualified Supreme Court jurists, Marshall ran the show. He also had a huge penis and got more touch than North Carolina.

The first issue was whether the appointment papers themselves - delivered but not endorsed - were legally valid. Madison basically argues, “no, they’re not.” Marshall counters with, “yes they are.” And then pats his hands together: “Next!” Madison: “Chicken necks?!”

In between the lines of this conversation, the case makes a necessary and uber-fundamental holding: namely, that the Supreme Court has the power to interpret federal laws (a.k.a judicial review). Here, the federal law stated that judicial appointments needed to be endorsed by the proper executive official. Marshall essentially disregarded this requirement because of the clear indicia of intent to appoint in this instance. In the process, he threw out the child-like yet oft-quoted observation that “it is decidedly the power of the judiciary to say what the law is.” Then he taddled on Thomas Jefferson, who was put in time out.

3. Pennoyer v. Neff (1877)

I still don’t understand this case.

2. Pierson v. Post (1805)

Post, with the aid of his dogs and hounds, pursued and mortally wounded a fox. The hunt began on a public beach but ended on the private property of Pierson. In fact, the fox was ultimately captured by Pierson. Post sued Pierson for the rights to the fox’s lucrative pelt.

The court decided that Post was the rightful owner. According to Justice Tompkins, “Actual bodily seizure is not indispensable to acquire right to, or possession of, wild beasts; but … on the contrary, the mortal wounding of such beasts by one not abandoning his pursuit may, with the utmost propriety, be deemed possession of him.”

In dissent Justice Livingston sought a solution more conducive to the eradication of “a beast so pernicious and incorrigible”. To him, the court’s ruling should have encouraged all sportsman, at all points in the hunt, to destroy the noxious animal. Thus, according to Livingston, the last person to capture to fox should be its rightful owner.

For those who think this to be a purely historical subject matter, should note that the famous Barry Bonds baseball case actually turned on the judge’s acceptance of the Pierson or the Ghen theory of possession. Judge McCarthy’s Solomonic verdict in that case was a result of his choice of the Ghen rule, discussed above.

1. Erie v. Tompkins (1938)

The best case ever. On a starry Pennsylvania evening, Tompkins returned from work by his usual route along the railroad tracks. However, unlike most of his trips on the path next to the railroad tracks, this time a protruding object from a passing train struck him on the arm. The arm was later amputated. Tompkins sued Erie Railroad.

[Breath in aaaaand exhale:] Tompkins was a Pennsylvania resident and Erie was a New York corporation but Pennsylvania common law required that plaintiffs suing railroads or other utilities show gross negligence on the part of the railroad while federal common law only required negligence so Tompkin’s lawyer sought to engage in what is called forum shopping and get into a federal court based on diversity jurisdiction so that the federal court would apply its own substantive common law and ignore the common law of the state where the accident occured so that Thompkins would only have to prove negligence, which could probably be done with the help of res ipsa loquitor but Cardozo and a few other justices on the Supreme Court had been vehemently opposed to forum shopping even since Black and Yellow Taxicab in which the plaintiff was able to create a lawsuit that did not exist under state law by incorporating in another state, getting into federal court based on diversity, and suing under federal common law, which allowed a lawsuit where the state did not allow a lawsuit, so Cardozo and the rest had been looking for a strong case to make a ruling that would end the “evils” of forum shopping and poor Tompkins’ claim became the perfect vessel for their ruling and when the case made it to the Supreme Court, the Court held that when state substantive law conflicted with federal substantive (not procedural) common law, then the state law would control, forcing Thompkins to prove gross negligence, which he could not do and, thus, after a two year struggle received no compensation for his injuries. The end.

-Shark (originally posted 8/22/05)