December 2005 Archives

Infinite Recurrence


There was a story bandied about a few months ago about a Harvard professor named Harvey Mansfield who gave a lecture arguing for a New Feminism.  Mansfield's principal activity these days seems to be writing books on masculinity, and the gist of the New Feminism he calls for is a return to the modesty and prudence of the days before the Old Feminism.  The New Feminism seems to look an awful lot like Non-Feminism, but that's not the point I'm trying to drive at.  Others have dealt with this more effectively than I.

The broad argument is that women are harming themselves by being promiscuous.  Mansfield takes as a first premise that the one thing women are after in romantic relationships is marriage.  Men seek only sex.  Women don't care too much for sex except as a means to the end of marriage.  Men would never get married if they could avoid it, because the only reason they seek the company of women is for sex.  In the traditional scheme, women were modest and seldom had sex outside of marriage.  Men were generally thwarted in their search for sex without marriage, because most women were unwilling to give it.  A woman used sex as a bargaining tool; she would offer a man what he truly wanted and could not obtain, sex, if only the man would give her the One Object Without Which No Woman's Life Has Meaning, a wedding ring (I'm sorry, I'm allowing editorial commentary to slip in.  I shall avoid this in the future).  So in a society where women generally don't consent to sex outside of marriage, women can leverage their control of the Sex Market to force men to grudgingly consent to matrimony.

But sadly, Mansfield argues, the balance of power has tilted with the rise of Feminism.  Now women have sex outside of marriage all the time.  Men can get sex without marriage, so therefore there's no reason for a man ever to marry.  Why buy the cow, to use the parlance of our times, when you can get the milk for free? 

I'm not posting this to argue against Mansfield.  Anything I could say has already been said, better, by the people I linked to above.  To choose just my favorite of the many reasons why he is wrong, he has created an explanation for a phenomenon that does not exist.  From what I understand, the average age of first marriage has slowly increased in recent years, but the rate of marriage has stayed roughly the same.  That is, despite female promiscuity and the lack of any reason for men to get married anymore, men and women defy all logic and continue to get married at roughly the same rate they did back in the days of feminine modesty.  Mansfield has thus created an explanation for a theoretical problem that, bafflingly, has failed to materialize in real life.  But that doesn't mean women shouldn't adopt Mansfield's New Feminism, just to be on the safe side in case people start acting in the way that he theorizes they ought to be acting.

No, my purpose here is to point out that Mansfield's argument is not a new argument.  It can be found throughout history and throughout our literature.  In fact, it can be found in the very first official novel written in the English language, Samuel Richardson's Pamela

(I should point out that there is some debate as to whether Pamela is truly the first English-language novel.  Gulliver's Travels was published before it, and some have argued that it should be accounted first among novels.  The objection raised is that Gulliver's Travels is nearly a novel, but not quite.  Gulliver's Travels is structured as four independent stories.  Each has its own plot and does not rely on the others in any way; they can be read and understood in any order.  The only common thread is the main character, Gulliver.  Gulliver's Travels, therefore, does not meet the criterion that a novel present a unified, sustained narrative of some length.  It is more a collection of novellettes.  Pamela, on the other hand, has its own problems.  It is an epistelary novel.  That is, it is a novel in the form of a series of letters, with only one brief omniscient narrative segment of about a page-and-a-half midway through the book.  It doesn't necessarily meet the standard template of a novel, either.  But my understanding is that Gulliver's Travels's failure of sustained narrative is more fatal to its claim to novelhood than Pamela's unusual means of storytelling.  I, personally, am in the Gulliver's Travels camp, but only because it seems a shame that the English language should have to claim a work as milk-curdlingly awful as Pamela as its first novel.)

Pamela tells the story of a young middle-class girl who works as a maid.  Her principal occupation during her free time is writing excruciatingly boring letters to her parents, which Richardson has thoughtfully compiled and forced us to read.  One day she is kidnapped by a wealthy young landowner with romantic designs upon her.  She is forced to live as his captive at his isolated estate.  Through devices I no longer recall and don't care to look up, she rebuffs all of his sexual advances.  Eventually he gives up and marries her, and she lives happily ever after as the wife of her kidnapper and attempted-rapist.  But she's married, and that's all any woman wants, right?

The moral of the story is clear: if a woman remains chaste, eventually a wealthy but morally off-kilter lord will marry her and make all her dreams come true.  Women use chastity to get marriage, which is both the only thing that will make them happy and everything they need to be happy. 

This message is driven home further by Richardson's second novel, Clarissa.  Many authors, talented though they may be, only have one novel in them, and just keep re-writing that novel as long as it will sell.  English's first novellist was one such author.  Clarissa is exactly like Pamela but for 3 key distinctions: 1.  Clarissa is about five times longer than Pamela.  2. Clarissa came from a wealthy family, while Pamela was middle class. 3. Pamela succedes in warding off her kidnappers advances.  Clarissa, despite her best efforts, fails, and is raped about half-way through the book.  This makes all the difference.  Pamela, by keeping her virginity, is wondrously well wed and lives happily ever after.  Clarissa is tossed aside after her kidnapper gets The Only Thing Men Want from her.  The rest of the novel is a series of further debasements, and Clarissa dies a destitute, lonely whore. 

Mansfield and his ilk are making the same argument that Richardson made in the form of bad novels 250 years ago:  For women, chastity leads to marriage and happiness.  Sexual impropriety will mean that no man will want you.  You won't marry, so your life will be meaningless.  You'll never find happiness and you'll die alone and miserable. 

I wonder if Mansfield would consider using Pamela as his model of the modern New Feminist.  It wouldn't make much of a sales pitch, but it would honestly admit that that New Feminism is neither new nor feminist.

Movie Review: The Family Stone

This movie is a trainwreck.  I'm somewhat surprised this got released at the height of the holiday season; it seems like the sort of film that would get held by the studio until Spring, when studies dump films that they have no confidence in.

Make no mistake: The studio has no confidence in this movie.  You may have seen the trailer for The Family Stone, or perhaps an ad.  You probably got the impression that it's a mildly zany comedy about a woman trying to win the affection of her boyfriend's family.  Perhaps you thought it would be a slightly higher-brow version of Meet the Parents.  If you thought that, you have fallen for the studio's cunning ruse.  You have been snookered.

The Family Stone appears to have been a comedy, at some point.  Perhaps it was intended as such.  It's difficult to tell, because the humor is very dry.  The script could have been printed on melba toast.  The story board likely looks like a book of New Yorker cartoons.  It's the sort of humor where you recognize the jokes, you understand the jokes, you realize on an intellectual level, that, yes, this is funny in a clinical sense.  It has the essential elements of absurdity to create a joke.  But the material isn't innately funny and it lacks the cleverly written script neccessary to make dry humor work.  This is David Mamet humor with a Joe Eszterhas script.

There's also a weird failure of communication in the script.  The plot has Everett (Dermot Mulroney) bringing his long-time girlfriend Meredith (Sarah Jessica Parker) to meet his family for the first time at Christmas.  Have you ever heard somebody's name, maybe a few details of her life, and immediately hated her?  Just been filled with an absolute hate, the sort that would cause you to endeavor to make her life hell if you ever met her in person?  No?  Then there will be a fundamental disconect between you and this movie.  Everett's entire family hates Meredith for no reason, at least none that's explained in the movie.  They joke about how much they hate her before she's arrived.  At this point, they've never even met her, except for the spiteful daughter Amy who saw her once on the street.  Presumably everything they know of her has come from Everett, who apparently needs to do a better job of selling his girlfriends to his family. 

Surely, then, there's something really wrong with Meredith?  An obnoxious personality, a character flaw that is so transparent that anyone could understand the Stone's preemptive hatred.  Not really.  She's bland and inoffensive.  The explanation proferred is that the Stones are a laid-back family, while Meredith is too up-tight.  They hate her because she wants them to like her.  So their natural reaction, when faced with a nervous suitor who wants to impress them, is to treat this suitor like crap.  The Stones are just cruel for no reason.  You get the feeling that they're the type of family that would gather together to tear the wings off of flies or melt ants under a magnifying glass. 

We face this problem throughout the movie: Characters do things and have opinions for no rational or explained reason.  For instance: the young man who sloughs off his girlfriend for her sister after talking to that sister for a couple of hours.  He falls so madly in love that it leads to a climactic interception at the bus stop as he desperately tries to persuade her not to leave.  This scene is interesting because the movie actually expends more screen time on the climactic "please don't go!" scene than it does on the entire rest of their relationship.  Seriously.  The entirety of their prior joint screen time is one two-minute scene where they have an inane conversation ("You like to go weird places and look at things?  I like to go weird places and look at things, too!").  This is used to justify a ten minute trying-to-convince-her-not-to-leave-because-he-loves-her-so-desperately scene.  It feels as though we, the audience, have been left out of the explanations that would cause this movie to make any kind of sense.

As for the Stones themselves, they appear to be a Royal Tenenbaum-style family of interesting people, except the writer forgot to make them actually interesting.  We have the free-spirited (yet surprisingly nasty) mother Sybil (Dianne Keaton), the pregnant daughter Susannah (Elizabeth Reaser), the gay, deaf son Thad (Tyrone Giordano), the pot-smoking, documentary-editing laid-back son Ben (Luke Wilson), Amy, the daughter who was apparently born with an inability to feel any emotion except hatred (Rachel McAdams), and father Kelly (Craig T. Nelson) and son Everett (Dermot Mulroney), distinguished by the fact that neither of them has any personality whatsoever.  The characters all have some high-concept somewhere that would mark them as Interesting, but the script doesn't follow through on that by making them actually interesting.

Also, the mom has cancer.  This is getting to be a disturbingly common device in families-trying-to-learn-to-love-each-other films: if the mother is too nasty and unlikeable, give her cancer, thereby forcing the audience to feel some sympathy for her and excuse her putrescent character (See, e.g., Stepmom, Pieces of April). 

This movie feels like it didn't start with an idea, or a script, but with connections.  Somebody realized they knew the right people to get Luke Wilson, Dianne Keaton, Rachel McAdams, Sarah Jessica Parker, Claire Danes, etc. to appear in their movie, and from there decided to write a script around the cast.  It's funny; you can clearly see that some characters get lots of lines and screen time because they're played by famous actors/actresses, and other characters practically don't exist because they're not (like the pregnant daughter mentioned above, who shows up a lot but says almost nothing and has no distinguishing character traits beside her pregnancy). 

Finally, there are about 5 minutes of wacky hi-jinks toward the end of the film.  These 5 minutes represent 90% of the trailer.  My guess is that the studio watched the final prints, realized they had a turkey, and decided on a misdirection-based ad campaign.  Pitch it as a goofy family comedy, play up how many big stars are in it, and hopefully enough people will be suckered into watching it to make back what it cost to produce.  Well, my sisters and I were among the suckers, but you don't have to be.  I would strongly advise against watching this movie.

Little Red Book Redux

Ah-ha.  The Little Red Book visit was <a href="">a hoax after all</a>.  I had my suspicions, which I voiced in my previous post on the subject, but nonetheless I did spread the story despite misgivings about its veracity.  I am not a very good journalist. 

They're reporting now that the lie was uncovered when the student, who was the source of the story that was eventually relayed to journalists via his professors, began embellishing the story with more visits and extra details.  Still, it wasn't a very believable story to start (despite, of course, my decision to spread it).  I think I had Marx assigned in about 4 different classes throughout my college career.  I'll bet a majority of college students have to read some sort of Marxist/Communist literature at some point.  And I'll bet most of them don't want to own a copy, and so borrow it from a library.  If you put watches on everyone who borrowed a piece of communist literature, you'd be watching most of the nation's college students, including a lot of College Republicans.  Even limiting it, as the student tried to argue that they did, to students who do significant travel abroad wouldn't help much.  I know a hell of a lot of students who did semesters abroad.  Probably not a majority, but still enough that it would be a pain for the DHS to harrass everyone who went abroad and also read Mao.

So, sorry again for spreading this nonsense.  It strikes me as a story that started with the student coming up with an excuse to try and get an extension on a paper.  "I couldn't write it because the government stole my book!"  Note the embellishment that the DHS kept the copy of the book he ordered.  From there, the professors talked, decided it was serious, built it up and told reporters.  Note the student's initial reluctance to talk to journalists.  The student will probably be disciplined but, really, this nonsense is more the fault of the credulous media (and, ahem, bloggers) who spread the dubious tale.  The kid should be disciplined for lying to the professor, but this is one of those situations where I imagine he's already been punished enough by all the attention he's gotten and shame he'll be getting. 



I had a nightmare last night.  It was the summer and I was working as a summer intern for a district attorney's office in a small town somewhere.  I was involved, for some reason, in the investigation stage of a big drug arrest.  The Berkeley College Republicans had come to town, for some reason, and had all been arrested in a road checkpoint for possessing cocaine, or heroine, or some white powdery illicity substance.  But they had found a group of undocumented immigrant workers and had accused them of hatching a massive conspiracy to set them up.  So everyone involved was down at the local police office, and the detectives and DAs were going through and interviewing people to try and figure out whom they should arrest and charge. 

Also, because there were so many people, we weren't actually in the police station; they were holding everyone in the local high school gym.  So, for whatever reason, it was decided that we should pass the time with a basketball game, divided into the street-smart team versus the book-smart team.  This meant myself and the College Republicans I would (probably) be helping to prosecute against the immigrants and the police officers.  This is where the nightmare comes in.

You see, I suck at sports.  All sports, every sport.  There is no sport, no matter how trivial the skills involved in it, that I can not find a way to suck horribly at.  Basketball is particularly hated, because it seems to involve way too much testosterone, with all the sweatiness and close contact and such.  Also, the ball is big and hard.  I suck so much at sport that people get mad at me.  They tend to assume that nobody could possibly suck as much as I do.  I tend to argue against sportly activities pretty vehemently beforehand, then insist that I don't want to participate when people are picking teams and such.  Thus, people tend to assume, when I suck, that I'm doing some whiney pissant passive-aggressive "if you're gonna make me play, I'm just gonna not try and make everyone miserable" thing.  But no, really, it's true.  When a baseball flies toward me in the outfield, it instantly and irrevocably activates my reptilian "Flight!" instinct, causing me to run away from it or, alternatively, cringe and try to protect my head.  I don't even know how to begin with tennis.  I can't serve, meaning I can't successfully swing and hit the ball on the service, let alone get it properly over the net, so if I'm serving a game it just consists of me standing in the back of a court and periodically hoisting a ball in the air and swinging wildly until I've officially lost.  If my opponent serves, I don't have any ability to read the ball so I just stand there and watch it whiz past me.  I may feebly extend my racket in the general direction, but usually by the time my brain sends a "Go there!" command the ball has already gone out the back of the court.

Basketball is the worst, though.  Some people can't dunk.  Some can't shoot, or pass.  Others have a basic skill set, but are just overmatched by the other players and get dominated on the court.

I can't dribble.  I try and I lose control of the ball after once bounce.  I can't even hope to do any of the other tasks basketball requires.  Plus, basketball seem to involve way more testosterone than other sports.  There's a lot more sweating and yelling and trash talking and physical contact and such, and I'm somewhat deficient in the testosterone department.

So most of my dream was just a parade of basketball-related embarrasments.  For some reason I was made Center, ostensibly because I was so big (this is patently false; I'm 5'10'', which is, I believe, about average, if not a tad short).  The pain seemed to go on forever; "You can't POSSIBLY suck that much!" and "Nobody on Earth sucks as much as you!" and such.  I tried to make baskets and the ball actually arced backwards after leaving my hands.  And this was all just in the practice session with my own team before the game.   Eventually the team mom intervened and took me out.  We had a team mom, for some reason.  She said I was a great center; after all, I was just so tall!

Celebratory Poem

In honor of the completion of my first semester of law school, I present a poem:

I met a traveller from an antique land
who said: Two vast and trunkless legs of stone
stand in the desert. Near them, on the sand,
half sunk, a shattered visage lies, whose frown,
and wrinkled lip, and sneer of cold command,
tell that its sculptor well those passions read,
which yet survive, stamped on these lifeless things,
the hand that mocked them, and the heart that fed,
And on the pedestal these words appear:
"My name is Ozymandias, king of kings.
Look on my work, ye mighty, and despair."
Nothing beside remains. Round the decay
of that colossal wreck, boundless and bare
the lone and level sands stretch far away.

-Percy Shelley, "Ozymandias."

In other news...

4 1/2 hours until I'm done(ish) with my first semester of law school!

The Roads Must Roll


Transit Strike! Transit Strike!

The whole city's public transportation system is shut down! It's chaos! It's the jungle! Car's are backed up bumper to bumper ON MY LITTLE SIDE STREET! To give you an idea, most people think Manhattan is all-traffic, all the time. Not so. Sure, it gets crazy in Midtown and Downtown, but here on the more residential Upper West Side and Morningside Heights it's pretty quiet most of the time. Not now! People aren't even obeying traffic lights anymore; it's like highway gridlock with everyone moving forward when they can, nudging in when someone lets them, etc.

For some reason, big momentous things happen every time I have an in-class final, so far. First big snowfall the day of my Civil Procedure final, transit strike for the Contracts final. What do Spring finals hold? Tsunami?

As for the workers, I don't know. It's a hassle that there's the strike, but I tend to support workers in these things. My understanding is that the dispute's over the retirement age to get a pension; the Union wants it to stay at 55, the MTA wants to raise it to 60. It sounds like they're agreed on every other point, but they've been bargaining till 2-3 AM every night for the last week over this last point. I can see why it's important to the workers. The city says it can't afford to keep paying pensions at the current rate. I'd really have to look into things more to have an informed opinion, though. I'm not really blaming either side for now.

But whee! I have to get to Newark airport for a 9 o'clock flight tomorrow! I've got a shuttle coming to pick me up at 6 AM; hopefully 3 hours is enough time to get there.


So, Contracts final tomorrow. In just 14 1/2 hours I'll be done with my first semester of law school...


The answer, sadly, is no. I just got an e-mail from my Legal Writing TA. Everyone in our section is being required to re-write their memo. Further, the re-writes will be due January 4, towards the end of winter break. So now our semester doesn't really officially end until 5 days before next semester. Further, since we've gotten our commented-upon memos just before the last final, there's no way to re-write them while still at school. So we'll all be doing re-writes over the break. Happy Holidays!

A further point: Our TA chose to send these out the night before (what some consider to be) our hardest final. Nothing like reading an excoriating appraisal of your legal writing and reasoning ability just before bedtime the night before a nasty final.

And finally: They just posted our schedules for next semester. I'll have two Friday classes and three 8 AM classes per week. And as an added bonus, I know few people in my section and like fewer. It's not yet winter break and I already can't wait until Summer...

Little Red Book

This story's a little frightening, if it's true. A student requested a copy of Chairman Mao's Little Red Book through interlibrary loan. As a result, he was visited at his parent's home by federal agents with the Department of Homeland Security. The book is apparently on a DHS watch list, and the student's request, combined with the significant time he has spent abroad, caused them to take action.

What's worse, it appears that DHS intercepted the book he requested, waved it at him when they showed up at his house to threaten him, but then didn't give it to him when he left. So he wasn't just harrassed, he was also denied his book.

I'm not sure how this sort of thing would work with UC Berkeley's library. Our system only maintains a list of books you currently have checked out; once you return it, the book is forever deleted from the record. Probably the FBI or whomever could find the relevant harddrive and attempt to find something, but with all the records being created and destroyed on a daily basis, it's unlikely they could piece together much of a history on a given patron. The best they could do is find out what a student has now, and what they've checked out and never returned (for some reason, the system keeps track of fines paid forever, as well as the books they were paid on). Further, employees are instructed not to give access to any data to a federal agent unless they have a specific warrant. At the same time, what of Interlibrary Loan requests, or requests to NRLF, our off-site storage facility? These are often submitted by e-mail. Can Homeland Security intercept and review these requests?

Of course, having said all that, I'm somewhat suspicious of this story. It looks like the only source are the two professors who, based on comments at the end, seem to be getting a bit histrionic about things (contemplating cancelling a class on terrorism because it may subject all their students to surveillance, a general concern that they've been spied upon, etc.). The student himself hasn't come forward. So the only evidence for this story appears to be the testimony of two professors with possible political agendas. I'm not saying the story isn't true, but I'd treat it skeptically until some other evidence confirms it.

A Sign I've Been Living in New York Too Long

I checked the temperature on Weather Underground before heading out today. When I saw that it was 39 degrees out (36 with windchill), my immediate thought was "Oo! Warm! I only need one layer today!"

Pick-up Line

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If you were my Contracts outline, I would be doing you right now, on my desk, all night long!

(Credit for this goes to Morgan Chen).

I need to do an outline for contracts, but I'm compelled to post. So: Why not do my outline for contracts in a blog post? For those with an aversion to legal topics, this post will probably be pretty damn boring. But it might possibly contain some nugget of information you'd be interested in. I'd recommend the section on what makes a contract enforceable. It's an interesting little doctrine that could affect your life, but which few non-lawyers seem to know the details of. (Note to people who pick on grammar: I have made a conscious decision to capitalize important terms, like Consideration, regardless of whether they are proper nouns. This is to help these terms to stand out. I don't care if it's wrong; it's helpful.)

Will a contract be enforced?

In order for a contract to be enforceable, it must have three things: Offer, Acceptance, and Consideration. Offer and Acceptance are dealt with later, in the context of discussions of Bargaining. Consideration is the most important factor for this discussion. Lack of Consideration is the area where it is most likely that a judge will declare that no enforceable promise exists even though all the parties involve think, or at one point thought, there was a contract. Nonetheless, even if there isn't Consideration, a promise may nonetheless be enforced under Promissory Estoppel or the Material Benefit Rule.


Consideration is difficult to define, precisely. The modern doctrine is that Consideration requires that a promise be bargained for. This is imprecise, however, because when determining whether there is consideration the courts do not ask "Did these parties sit down and haggle over this deal before it was made?" If they did, most contracts for sale would be unenforceable; when was the last time you bargained over the price of a Big Mac? What the courts actually ask is "Was this promise made in exchange for a reasonable return promise?" The difficulty in the consideration doctrine comes from the fact that courts tend to apply very close scrutiny to those return promises. It's tough to define what consideration is, precisely, because a lot of times on the margins it's difficult to determine whether the return promise is really a valid exchange or whether it's just a show designed to make a unilateral gift look like an enforceable contract. Thus, consideration is hard because a lot of times whether a return promise was valid Consideration or just a show is rooted in the peculiar circumstances of that particular contract.

The question is significant because courts do not enforce promises to give gifts. There's a pretty valid public policy reason for this. Laws affect how people behave. The laws of contract are byzantine. They subject the parties to heavy liability if they try to back out. Therefore, parties tend to be very cautious about entering contracts. We consider this to be a good thing; if we had no contract law, if people could just back out of contracts whenever they wanted, we'd have a lot of deadweight contracts, inefficient behavior, etc. and this would outweigh whatever gains we got from having more total promises. Because the cost of reneged upon contracts is pretty high, our policy goal is to minimize the number of such promises.

Promises to give gifts are a different matter. The most common gifts are between family members, and we can usually rely upon extra-legal means of enforcing these promises (the strains of commitment, as it were). We also tend to think that the cost of reneged upon promises to give gifts is a lot lower. When one side backs out of a contract, the other side is left having performed their part of the deal for no gain. When someone who promises to give a gift backs out, the other party is miffed, but hasn't really lost anything (Exception: See Promissory Estoppel, below). Finally, there's the concern that there would be a lot fewer gifts given if the law interceded to enforce such promises. When law involves itself in an area of our lives, we are much more cautious about what we say and do. If every promise to give a gift brought with it the spectre of a court case to enforce that promise, we'd make a lot fewer promises to give gifts. Thus, it is believed, the loss caused by fewer gifts that would result from enforcing such promises is greater than the costs of more reneged upon gift promises.

So the law doesn't enforce promises to give gifts. How, then, do you distinguish a promise to give a gift from an enforceable contract? This has become a tricky question because many know of the consideration doctrine and dress up promises to give gifts in the language of contracts, in an attempt to fool the courts. Some general rules:

Williston's Tramp

Performing an action that is necessary to receive the promise is not consideration. For instance: If I tell a homeless person that I will give them $20 if they walk with me to the ATM, their walking with me to the ATM does not constitute a return promise. I'm not asking the person to walk with me for the pleasure of their company; I'm asking them to walk with me so that they can receive the money. If I decide, upon getting there, that I don't want to give them the money after all, they haven't performed any return promise that the courts will consider to be enough to enforce my promise.

Matters of Form: Seals, Peppercorns, and Other Valuable Consideration

Broadly speaking, writing out a contract to give a gift and declaring that one party will give the gift, and the other party will, in return, give Consideration does not make the contract enforceable. Contracts like "I'll give you a house, you give me a peppercorn," or "I'll give you $1000 a month for the rest of your life, you give me $1 and other valuable consideration," are promises to give gifts with some pseudo-Consideration embellishments, and are unenforceable. "Other valuable Consideration" shows up a lot in contracts, often as an attempt to pull the wool over the judge's eyes.

There's also the doctrine of Seals, which the professor went on about a lot in class. There once was a time when Americans could attach a seal to a contract and BAM! it was enforceable, no matter what. You can still do this in England. The sealing process once involved an elaborate ritual, with signet rings and melted wax and such. Gradually, as Americans moved to the frontier and could less well afford such niceties, the ceremony for making a seal grew less formal, until eventually it reached a form where a party could put the letters L.S. (an abbreviation for a Latin phrase meaning something like "I Attach My Seal Here.") at the end of a pre-printed contract and that constituted a seal. The problem with this is that the elaborate ceremony is the point of the seal; it took a long time, during which the sealing party could think about it and decide to back out. The parties had to really think about what they were getting into before they could eternally bind themselves to a contract. Once you could put L.S. in the text of a contract and make all parties officially eternally bound, you had defeated the entire point of the seal. Therefore, the courts have now said "You know what, America? You abused your seal privileges, so now they're revoked." L.S. means nothing. Attaching your seal means nothing. The seal doctrine is null and void in America.

Seemingly Inadequate Consideration

The interesting thing about Consideration is that the courts are trying to get into the heads of the parties. Were these parties thinking of their exchange as a gift, or as a deal? What they're NOT looking at is the material value of the consideration. Hence the famous legal phrase that even a peppercorn can be valuable consideration. If you're honestly looking for a single peppercorn, and desperate for it, and offer your house in exchange, the courts will accept it. The question is whether you're really interested in the return promise, not whether the court thinks you're rational for giving what you give in exchange for that return promise. Thus you have cases like Batsakis v. Demotsis, where one party lent the other party $25 during the Greek resistance to the Nazis during World War II, and in exchange the other party promised to repay them $2000 + 8% interest per annum after the war ended. The court held the promise to be enforceable, because $25 might have been desperately needed during the war, and therefore, though the monetary values were disproportionate, it seemed like the borrowing party really wanted that $25.

Promissory Estoppel

Having said all that about not enforcing promises to give gifts, sometimes courts do. To return briefly to the justification for not enforcing promises to give gifts, it is generally assumed that the downside of reneging is fairly small. The promisee hasn't done anything for the promise, so she is presumed not to have lost anything. But what if she has lost something? This is where Reliance comes in. Reliance is an action or actions taken that assume that a promise will be performed. These actions will be of benefit if the promise is performed and of detriment if it is not. So a promisee may be put at a loss because of an unperformed promise to give a gift because she relied upon that promise. So one can go to a court and argue that a promise should be enforced because you relied upon it. Chances are, the courts won't buy it, but sometimes they do. There's good reason for courts to treat Reliance-based theories of enforceability skeptically. If they did, they would create an incentive to over-rely. Every promise made would be instantly followed by parties rushing to rely so as to make the promise enforceable, even if it's not rational for them to do so.

So how do courts handle Promissory Estoppel (the doctrine under which they enforce a contract on the basis of reasonable reliance)? It's pretty fuzzy, but in general the reliance has to be reasonable, it has to be foreseen by the promisor, and there has to be some sort of material change of condition (quitting a job because you expect to get money, etc.). But none of these factors is decisive. Indeed, a lot of promises enforced on Promissory Estoppel grounds really have a basis in Consideration. That is, a lot of the times there's an implied consideration, an inducement that can't be proved from the facts, but which is evidenced by the promisee's Reliance. Many times courts are primarily looking to Reliance as proof that there was Consideration, rather than using Reliance to substitute for Consideration.

Promissory Estoppel mostly comes up, these days, in incomplete bargains between businesses. One party relies upon the performance of the contract before the contract has officially been finished, either by acting on the expected contract or forbearing from seeking alternate contracts. This reliance must be reasonable, foreseeable, and substantial. Enforcement mostly comes when it is clear that one party, during the bargaining, clearly induced the other party to take an action in reliance upon the contract being fulfilled, e.g. a supermarket franchise inducing a small-business man to sell the family store and move to Topeka to show that he's committed to the job before making a franchise contract with him to run a store in Topeka.

The Material Benefit Rule

Here we're getting into very iffy territory. As a general rule, past consideration is no consideration. If I say to you, "Because you helped me through tough times, I'm going to give you $1000," the courts still consider that a promise to give a gift, not an enforceable contract. Even though there was a return value given, it isn't properly a return promise because it already occurred. It's not a bargain, it's not a deal to exchange promises. It's a gift that happens to have its origins in some previous action. This makes sense; arguably most promises to give gifts are based in reasons. If we allowed any past performance to be a valid consideration, we'd allow almost all gifts to be enforceable contracts through the back door.

Sometimes courts do enforce contracts based on past consideration, but it's very rare. There has to be a moral obligation to perform the contract. "Because you're a great grandson, I'm going to give you $1000" isn't enough. "Because you saved my life and, in the process, crippled yourself, I'm going to maintain you for the rest of your life" would be a moral obligation. But a moral obligation is not enough! It's necessary, but not sufficient. Essentially a huge number of vague factors come in, and most of the time courts won't enforce these contracts. But in rare circumstances they will. If the promisor carefully reflects on the promise AND received the benefit himself AND never repudiated the promise AND followed through on the promise for a long time AND the past consideration conferred a detriment on the promisee THEN the courts MIGHT think it's enough to enforce the contract. But don't count on it.

The Bargaining Process

As mentioned, an enforceable contract requires an offer and acceptance. This is another area where disputes can arise: Was there a proper offer? Was the offer properly accepted? To understand the trouble over offers, you need to understand that there are two kinds of contracts: Unilateral and Bilateral. A Bilateral Contract is what we often think of when we think of contracts: two parties learn that each can give the other something they want, so they sit down, hash out terms, and reach an agreement. Unilateral Contracts, however, are much more common. When McDonalds offers a Big Mac for $3, they're making an offer for a unilateral contract: Anyone who comes in and gives them $3 can get a Big Mac. They don't particularly care who does it, and they're not interested in haggling over terms. Moreover, there's not really a bargain or a deal; they have an open offer where they will perform some action (giving you a Big Mac) if you perform some action (giving them $3).

When it comes to Bilateral Contracs, however, it's somewhat rare to have a party issue an ultimatum offer and have the other side return with an immediate acceptance. Generally what you have instead is an opening invitation to negotiate. One party states their initial terms, the other party makes a counter-offer, and so on back and forth until we have a "meeting of the minds" and both parties agree to all the terms.

Disputes over offer and acceptance tend to revolve around when a proper offer was made and whether it was properly accepted. The major test for whether an offer is proper is completeness. If, for the particularly promises being exchanged, the offer is sufficiently complete as to encompass all material terms, it's an offer. If it includes only some of the terms, it's an invitation to negotiate. If you ask me for a quote on a pipe order, and I tell you the price, you can't simply say "Deal!" and enforce a contract on the simple terms "I give you some pipe and you pay me the quoted price." There are still questions about when the contract will be performed, quantities, warranty, etc. At the same time, if a department store puts an ad in the newspaper offering to sell a fur coat at a reduced price to the first customer who comes in on a given day, and quotes the price, describes the merchandise, and gives the terms of acceptance, they can't turn around and tell the customer who shows up that it was only an invitation to negotiate and therefore not a legally binding offer to be accepted. In that case, the terms given are sufficiently specific to constitute an offer.

Acceptance generally requires a specific communication by the accepting party to the offering party. Generally, though, offers contain within them the method of their acceptance; this can include signature, signature and delivery, verbal acceptance, commencing performance of the promise, etc. Generally, though, for a Bilateral Contract acceptance must be commicated to the offering party, while commencing performance is enough for a Unilateral Contract.

Contracts can generally be revoked through an official communication of an intention to revoke. Some offers are trickier to revoke, though, like Unilateral Contracts (nowadays, you have to revoke before the other party has commenced performance) or construction bids (which are, in some cases).

Offer and Counter-Offer

Once the Common Law governed this area. A Counter-Offer was taken to be a complete rejection of an offer and a return offer of new terms. This lead to such rules as the Mirror Image Rule (To be enforceable, both sides must agree to contracts that are mirror images of one another. That is, there was no contract until everyone explicitly agreed on everything) and the Last Shot Rule (Whoever sent the last counter-offer, the Last Shot, got their terms when the contract was enforced. That is, when a contract is considered to have gone into effect because both parties behave as though it is in effect, the enforced terms will be whatever the last counter-offer was).

The UCC changed this with Section 2-207. 2-207 is a complex little ball with three parts leading to three different outcomes. Under 2-207(1), a counter-offer is treated as an acceptance of the contracts on all the terms agreed to, coupled with a proposal for modifications to the contract on the altered terms unless the counter-offer is explicitly conditioned on acceptance of the alternate terms. Under 2-207(2), these terms become part of the contract IF the parties to the contract are merchants UNLESS the original offer was conditioned on complete acceptance of the umodified terms of the offer OR the terms materially alter the original offer OR the offering party notifies or has notified the counter-offering party of their objections to the altered or additional terms. Finally, if the parties decide not to work out their agreement explicitly and instead just proceed as though they have a contract, and if they end up with a dispute before a court, 2-207(3) dictates that only the undisputed terms of the contract will be considered part of the contract. Any gaps remaining will be filled by default provisions provided by the UCC.

So what does all this mean? It means in general that counter-offers are considered partial acceptances, leaving alterations open to further hashing out. The exception is if the parties are both merchants, in which case the alterations automatically become part of the contract unless they materially alter the deal. In either of these two cases, a party can prevent automatic acceptance by making it explicit that they won't accept alteration of their offer or counter-offer. Finally, if they let a dispute hang and just perform the contract, the court will decide things by throwing out the disputed terms and just using UCC defaults where needed.

This leads to so-called Battle of the Forms situations. Companies develop standard forms of sale and purchase and such that they throw at other companies when making agreements. These forms almost always say things like "Only the terms of this offer apply and no modifications or additions shall be accepted!" Further, since every company develops these forms, you will often see agreements between companies where each throws its forms at the other. The battling forms are unlikely to contain the same terms, and both are likely to contain clauses indicating a refusal to accept modifications. Further, nobody ever reads these forms, so it is unlikely anyone even knows there's a problem until a dispute arises and each party insists that his form wins out over the other's. Judges generally handle this by saying that the offer and counter-offer have both enacted the explicit rejection of modification clauses of 2-207(2) and (1), respectively, and therefore 2-207(3) applies. The disputed terms will be thrown out and the UCC applied.

There's some dispute over how Battle of the Forms cases apply in disputes over those additional terms you click through when you install software. Is buying the software an offer, and the additional terms a counter-offer? If so, the company's terms would probably be thrown out under 2-207(3). The other view is that the company is making the only offer, the terms in the license, and the user is accepting them. In this case, there is no Battle of the Forms problem and the company's terms govern. The latter interpretation seems to be more prevalent, though right now consumer advocates are fighting for a change to the UCC to get the former result, while Software Company lawyers are fighting to keep things as they are.

Relational Contracts: Long-Term Output Requirements, Exclusive Dealings, Conflicts of Interest, and Contractual Modifications.

Long-Term supply contracts allow companies to avoid risk and ensure stability of supply/demand. Generally the companies arrive at some determined price or price formula and arrange other standing terms (how buyers will request the product, when supplier will deliver them, what sort of quality, etc) and then the contract creates a relationship that exists until either the contract expires or the companies break it (generally leading to breach of contract damages).

Output Requirements

These contracts usually allow the buyer to demand a variable amount of product be supplied. Unless limits on quantity are set in the contract, UCC 2-306 has been interpreted, through its "Good Faith" requirement, to provide protection against either excessive demand (Eastern v. Gulf) or non-existent demand (Empire Gas v. American Bakeries) by the buyer . This is somewhat scant protection, however; it relies upon a judge's assessment of the buyer's motives in demanding too much or too little. If the judge deems the motives pure, or at least acceptable, the supplier may be forced to continue supplying more than they can profitably handle (or less than they had anticipated).

Exclusive Contracts

Exclusive Dealings contracts require that one party will supply the other party with a good, and that other party will be the sole dealer of that good. They bind the supplying party; they can't contract with another party to sell the good, and they can't sell the good themselves. The problem arises, though, that the retailing party could just screw their supplier. They could sell nothing and, through the contract, have taken a competitor off the market. To combat this, the UCC provides a default "Best Efforts" clause in such relational contracts (2-306(2)). This, however, is a vague standard that you'd have to go to a judge to get a specific ruling on. Generally, Best Efforts requires that the party take every reasonable effort to market and sell the product without going to extraordinary lengths. This is tough to rely on, though, and what consitutes Best Efforts for a given industry, product, and corporate situation will be difficult and expensive to prove in court. Parties to contracts therefore often set up alternative means and incentives to induce efficient behavior by the retailer and reduce agency costs.

Termination Clauses

One such means of controlling the other party is the Termination Clause. These generally allow a company to terminate the contract. This presents some problems, though. It reduces some of the incentive to contract in the first place, because there is the concern that ones supply or demand can be pulled out from under them at any moment. It therefore reduces some of the guaranteed business aspect of relational contracts that makes them attractive. To help combat this, there is an implied-in-law Good Faith and Fair Dealings clause in all contracts. Nonetheless, generally if a termination clause contains a provision that the contract may be terminated for no cause, the Good Faith and Fair Dealings clause does not override this and require a good cause for termination. Extraordinary situations may require otherwise, such as highly unequal bargaining power between the parties, but otherwise they courts tend to let No Cause provisions stand. They have, however, interpreted in the Good Faith and Fair Dealings clause a prohibition on termination for Bad Cause. This would tend to put the burden of proof on the terminated against party; the terminator has every incentive to just provide no reason for termination, and the terminated upon must then prove that their reasons were bad.

Non-Compete Covenants

Non-Compete Covenants are also used to control retailers and employees behavior. They provide that while the retailer or employee is the exclusive dealer or worker for the supplier, that retailer or employee will not work for or otherwise compete with the supplier. Further, these covenants tend to restrict their ability to compete after ending the contract; they can't pack up and sell all their information to a competitor. The law imposes heavy restrictions on these Non-Compete Covenants, however. They have to relate to contracts for employment or sale, there must be consideration for the covenant (That is, some portion of the contract must be explicitly in payment for the covenant. You can't, for instance, take an existing worker and demand that he sign onto a new non-compete covenant, you have to give him something additional in return), the covenant must be reasonably limited in time and territory, and it must be necessary to protect the employer. The burden is thus place on the party imposing the Non-Compete Covenant to prove that it is valid, necessary, and properly limited. This is supported by general rights of freedom of movement and contract. Forcing employees never to work in the industry again, anywhere, ever, take on a punitive character and practically treat the employee as chattel.

Modifications of Contracts

Under the Common Law, modifications to a contract not only had to be agreed to by both parties, they had to have consideration. That is, they were treated almost as seperate mini-contracts. If one party increased payment, for instance, with no alteration in the obligations of the other party, this would constitute a modification without consideration and would be thrown out. This was to prevent parties from getting into an advantageous position and then re-negotiating a contract while putting the other party under duress.

Under the UCC, this changed slightly. Modifications are allowed, provided all parties consent, and provided the modifications are made in good faith. This replaces a more strict rule (modifications require consideration) with a loose standard to be decided by a judge (contracts can be modified provided there are no shenanigans going on). This new standard provides much more freedom in contracting, but in turn creates more back-end cost if it goes to litigation.

Regulating the Bargaining Process: Duress, Fraud, Disclosure and Concealment, and Statute of Frauds Limitations on Oral Contracts

The law regulates the bargaining process because sometimes outside circumstances lead to the creation of "bad" contracts. Contracts where the parties are forced to sign on against their will (Duress), where parties are deceived into an agreement against their interests (Fraud and Concealment), or contracts where there simply isn't enough of a paper trail generated to make a reasonable decision at trial (Statute of Frauds).


As with the other items in this section, Duress is not a cut-and-dried matter. It is not enough merely that one side exerts pressure on the other to get them to contract, or that one side is experiencing outside pressure forcing them into a contract. That's considered a normal part of the hard bargaining process. The pressure exerted must be Wrongful, it must have definitely induced the agreement, and that inducement must have been reasonable. What is Wrongful is up to dispute; clearly this includes illegal or tortious actions, but it can also include immoral actions or actions that are situationally wrong. For instance, this could include actions which have no real purpose to the taker except to threaten the promisor. Second, the party claiming Duress must prove that the inducement taken actually caused them to alter their behavior. If they were planning on agreeing anyway, and the other party casually threatened them, that isn't enough to meet the standards for Duress. Finally, the party claiming Duress must have been left no other reasonable option but to agree to the inducing party's terms. If the party could just go to a competitor and hash out a deal with them, or take some other action to remedy the situation, Duress does not apply. Standards are much higher for Duress alledged to have occurred before hand than it is for Duress after the contract is made, because parties are bound to one another. There's no duty to negotiate in good faith, but there is a duty to re-negotiate in good faith.

Interestingly, Duress has also been applied to cases of situational monopolists, where one party takes advantage of another party's distress. For example, a party is stranded in the desert and a tow truck rescues them, charging a disproportionately exhorbitant fee for the rescue. In this case the party claiming Duress has, by outside circumstances, been placed in a position where he had no choice but to contract, and as such courts will consider the contract void insofar as it imposes unreasonable terms. There is some dispute over the wisdom of this; while it certainly seems immoral to take advantage of people in this situation, the removal of potential economic benefits to these otherwise unprofitable salvage-and-rescue operations may cause them to be performed less frequently, or not at all. Refusing to allow rescuers here to take excess profits from this job may mean there are no more rescuers to save future stranded individuals.


Fraud is trickier than most people realize. To start with, Fraud has a higher standard of proof; it requires Clear and Convincing evidence, not just a Preponderance of evidence. Further, the rule is NOT "If you lie, you lose." The party alleging Fraud must prove 1. that there was a misrepresentation of fact, 2. that the statements made by the other party were knowingly and clearly false, 3. that they justifiably relied upon the fraudulent statements, and 4. that those statements actually caused the party to agree to the contract. Remember: Both of the cases for Fraud in the book seem to have been decided wrongly. Look to the dissents in Spiess v. Brandt and Danann Realty Corp. v. Harris. In the former, there should have been no fraud because the representations made were not necessarily false, and because the boys would probably have agreed to the deal on the same terms regardless of the alledged misrepresentations. In the later case, the company attempted to distribute the risk of fraud to the Plaintif by inserting a clause in the contract indicating that "the purchaser agrees that he relied upon none of our statements in deciding to purchase this building." The court bought this argument when they really shouldn't have; you can't create a contract shifting the risk from your malfeasance onto the party you wrong. On the other hand, you could make an argument that this was a sophisticated party who agreed to this term, and therefore was affirming that there was no causation, and therefore part 4 of the test was not satisfied. I don't buy it, but you could make the argument.

We don't automatically slam parties that misrepresent or exaggerate because we believe there is value in "cheap talk" and frank assessments. If every statement were being held up to judicial scrutiny, parties wouldn't want to make any statement that couldn't be independently proven, and contracting would be a much harder process.

Disclosure and Concealment

This is mostly covered by Restatement 161(b). You don't always have to disclose everything you know about everything. However, you could be hit on Concealment grounds if you fail to disclose a fact that 1. you know to be true, 2. if that disclosure would correct a mistake which is 3. a basic assumption the Plaintiff has made, and if 4. that nondisclosure was done in bad faith.

We don't require full disclosure, only disclosure of matters materially relevant to the contract, or matters which one party is unaware of and would alter their tendency to make the deal. We do this for several reasons. We believe that people have strong individual property rights in their information. Only in extraordinary circumstances, then, should we force them to disclose it. Further, we feel that not forcing disclosure forces people to take economically efficient actions to maximize their information and make the right decisions. If it's entirely reasonable that the party alledging concealment could have found the information on their own, or if, indeed, they ought to have known it from the start, it's not the Defendants's job to make them aware of every possible fact beforehand.

Statute of Frauds

Not what it sounds like! Statute of Frauds requirements are limitations on what oral contracts are legally enforceable (the idea being to cut down on the fraud caused by important contracts produced without a paper trail). 4 types of contracts must have a written memorial: 1. Property transfers. 2. Contracts answering the debt of another. 3. Contracts that can't be performed within 1 year. 4. Contracts of Sale. All are important and complex contracts, and all will run into evidentiary difficulties, so we want to maximize the paper trail. Covered by UCC 2-201.

In practice, what counts as a written memorial has been stretched a lot; See Monetti v. Anchor Hocking, where Posner combines a pre-contract memo with a post-contract memo on letterhead (which he counts as a signature) to create a synthesized written memorial, satisfying 2-201.

Contract Interpretation

This whole business is quite complex. The trouble is that it's not enough that we have a contract, we have to get into theories on how the terms of contracts should be interpreted. We can broadly classify the problem into two categories: What terms are included and what are not, and how to interpret the terms we include.

Inclusion and Exclusion of Terms

We start with the Parole Evidence Rule. This says that oral evidence about the terms of a contract cannot be included in figuring out what the terms of a contract are. Further, a contract can be in three states: Unintegrated, Partially Integrated, or Fully Integrated. If there's no final written contract, it's unintegrated and the Parole Evidence Rule doesn't apply. A partially integrated contract contains some of the final terms of the agreement, but not necessarily all of them. The terms that are integrated are fully integrated; you can't introduce new terms that contradict them, ever. If, however, the contract is partially integrated, it is theoretically possible to introduce oral evidence indicating that additional terms should be added, provided they are not contradictory. Finally, a contract may be fully integrated, in which case the terms of the contract are full and complete. No new terms may be introduced at all.

How do you determine if a contract is fully integrated, partially integrated, or unintegrated? First, at Common Law the Four Corners test determines partial integration. Once a contract can be shown to set forth the basic material terms needed for a contract, it is, at the least, partially integrated. If it excludes material terms it is clearly unintegrated, because there must be additional terms floating out there that cause the contract to make sense, so the Parole Evidence Rule doesn't apply. So the Four Corners rule determines partial integration. Many courts, however, reject the strict Four Corners rule, which only allows them to look at the document itself, and allow other outside evidence to determine if the contract is complete as to material terms. Next: Is a contract fully integrated or partially integrated. This is really tough to figure out, and must be divined from reading and interpreting the written document. Some contracts contain Merger Clauses, which indicate that this agreement is the full agreement and no other terms are floating out there. If accepted, this makes the contract fully integrated. However, courts tend to inspect these clauses very closely because they tend to make their way into contracts as boilerplate, and under the circumstances it's important to make sure that all parties fully understood and consciously agreed to the Merger Clause. Without a Merger Clause, things are more tricky, and it's really up to the judge.

Next, the question of including new terms based on prior agreements or oral agreements in a partially integrated contract. Here it matters significantly whether the contract is for a sale of goods under the UCC or whether it's covered by Common Law, and if the latter whether the jurisdiction the question is being decided in uses a hard parole evidence rule or a soft one. Under the Common Law, the rule is that additional terms must be agreed to by both parties, they must be consistent with the rest of the contract, and they must be the sort of terms that would be Naturally Omitted from a written contract. Under the UCC, the same standards of agreement and consistency apply, but it serves to only exclude those terms which would Certainly have been Included had they actually been agreed to.

Interpreting the Terms of the Contract

First, it should be pointed out that you first need to engage in the task of interpreting the existing terms before you can determine if a contract is integrated, at which point you can procede to the above step of determining what outside terms to include or exclude.

There are a number of interpretive techniques under the Common Law. The First Restatement suggests a pure plain meaning rule and, in the alternative, a rule interpreting the law according to how one party would believe the other would interpret the contract. The first standard applies to integrated contracts, the second to unintegrated ones. This can raise some trouble because it's difficult to determine if a contract is integrated without first adopting an interpretive standard.

The Second Restatement allows in context evidence in determining the meaning of terms. Terms are to be interpreted in light of the circumstances of the contract. The UCC is even more liberal: 2-202 sets forth interpretive standards that allow in outside evidence to explain the terms even of fully integrated contracts. Evidence as to Usage of Trade (industry-wide practices), Course of Dealings (prior dealings between the parties) and Course of Performance (how this contract was executed) are all permissible. The UCC is not unlimited in its acceptance of outside material, though. Contradictory evidence is impermissible, and additional terms can't be added to fully integrated agreements.

The UCC runs into problems where the Usage of Trade et al are considered to be part of the contract, but they can't contradict the contract's explicit terms. How can this be, if Usage of Trade et al tell us what the terms mean to begin with? They must have some universal meaning, but this is rejected by the UCC.

Mistake and Excuse

Mistake is the doctrine that if one or both of the parties are unaware or otherwise mis-interpret an existing state of affairs, the contract as written doesn't necessarily apply. Excuse is the doctrine that allows similar outs when an outside event occurs when renders performance impossible or pointless. In both cases, there is no out for the parties; rather the courts seek to alter the contract to accomodate the new state of affairs as the parties now understand them. They generally look to see what the majority of contracting parties in the same situation would set as their terms to deal with the facts as they are now understood, or to aportion the risk that these parties did not foresee. Excuse and Mistake are thus more doctrines of contract interpretation than they are regulations of the bargaining process, as discussed above.

Mutual Mistake is discussed in Section 152 of the Restatement. Unilateral Mistake is in Section 153, and rules of aportioning risk are in Section 154. Generally, if the mistake is mutual and materially affects the contract, the harmed party can void the contract, though judges are cautioned to try and find a way of reforming the contract to continue the relationship under the altered conditions. If the mistake is unilateral, the harmed party can still reform, but only if enforcement would be unconscionable (a high bar) or the other party knew of the mistake and didn't correct it. Finally, neither unilateral nor mutual mitake can be remedied if the party seeking the remedy had the risk apportioned to them under Section 154, by explicit contractual allocation, by awareness at the time of contracting that he was ignorant and failed to correct it, or by judicial allocation of risk.

Courts then have a tricky job in re-forming the contract. They have to put themselves in the shoes of the contracting party and try to construct the sort of agreement that the parties probably would have reached had they anticipated the problem that arose and hashed things out beforehand. Needless to say, a judge is not the two parties, if he's already ruled for one party he's likely to take their interests more into account than the others, and the judicially reformed contract is unlikely to be as satisfactory as a truly hashed out contract. Still, it is arguably better than the old contract. At least for one party.


There are three basic kinds of cash remedies: Expectancy Damages, Reliance Damages, and Restitution Damages. Expectancy Damages require the breaching party to pay the breached upon party enough money to put them in the same situation they would have been in had the contract been performed. This does NOT include damages for poor mitigation on the part of the breached upon. If someone breaks the windshield of your car, and you don't put a garbage bag up, you can't sue them from the water damage that occurs when it rains that night. When you get breached upon, you're expected to take reasonable steps to mitigate losses. Also, mitigation is defined as ex post; you don't mitigate before a breach, you mitigate after it's occurred. This tends to put the breached upon at a disadvantage. Reliance damages compensate you just for the amount of money you put into reliance on the contract being fulfilled. Restitution Damages are just what you put into performing your part of the contract; Restitution and Reliance damages put you in the situation that you would have been in had the contract never happened in the first place. Expectancy Damages put you in the situation you would have been in had the contract been performed fully.

Courts prefer Expectancy Damages, even though they tend to encourage inefficient reliance (You know you'll get a full return whether the other party breaches or not, so why not rely to the hilt?). Expectancy encourages efficient decisions on the part of the breaching party, and reduces the trouble of finding out what the damages should be. Seller has the option to go ahead and establish a market value by going ahead and performing the action, then showing the result to the court. They then pay those damages.

There's the further question of whether damages for failure to perform up to specifications should be diminished value or cost of completion, that is, whether, if I don't perform exactly as specified, I should pay the difference in market value between what it should have been and what it is, or if I should pay the cost of hiring someone else to put it right (Plus the cost of finding that person, etc.). Generally courts prefer Diminished Value, because the assumption is that it's larger than Cost of Completion. When it's not, though, it seems to make sense to keep Diminished Value standard, since it would impose heavy burdens on the breaching party to little gain on the breached upon. There's also the concern of demanding Cost of Completion, in those circumstances, so as to pocket the extra money.

Finally, there's Specific Performance. Here, the court issues an injunction requiring the breaching party to perform the contract. Courts are reluctant to do this, because sometimes breaching and paying really is the most efficient outcome. They don't want to interfere with the economics of the situation. Specific Performance is generally only allowed in extremely thin markets, where the breacher is the only or one of the only sources for the required good or service, and that good or service is really required by the breached upon. The general assumption is that the buyer has the advantage in mitigating. But in cases of very thin markets, the Seller has the ability to shave the damages by showing the breached upon didn't mitigate enough.

Finally, some last points: Damages must be certain. No sentimental or aesthetic value. New business present a problem because profits are too speculative. Loss of Good Will and Reputation are also not considered. Damages must be foreseeable. You can't mail your acceptance of an offer to sell a valuable painting with a 34 cent stamp, then sue the Postal Service for the value of the painting when it gets lost on the mail. Why? Because the Postal Service had no idea how valuable it was. If they did, they'd have charged more in the form of insurance. Finally, there's the mitigation principle. Breached upon parties are expected to reasonably mitigate their damages after the breach. You can't claim damages that you could have prevented with reasonable mitigation.

My Blog is Back and There's Gonna Be Trouble

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You may have noticed that my blog (along with all other blogs on Typepad) regressed to their state from a week ago earlier today. Typepad did some routine maintenance last night which lead to massive crashes and hard drive failures and such. But now everything seems to be back to normal. Huzzah!

And, since this really doesn't deserve a post of its own: While wandering around today I saw a trio of middle-aged Asian men pitching pennies on the corner in front of a convenience store. I thought that was neat.



And speaking of diseases that probably shouldn't be cured, I'm afflicted once again with my seasonal Book Lust. I can't go through a day without wanting to go to a bookstore and browse and buy, regardless of my financial straits. Yesterday I came home with Susan Faludi's Backlash and a new translation of Kafka's The Trial. Is there any cure for my book-buying frenzies? And, if you don't know a cure, can you recommend any particularly good books to buy next time I succumb and wind up at a store? It can be fiction or non-fiction, any genre or field of study.

I picked up a copy of The Lion, the Witch, and the Wardrobe the other day. I was surprised, to start, at how short it was; you could read it in a dedicated afternoon. I think I expected something much different going in. I had heard so much about the friendship between Lewis and Tolkien that I sort of assumed that the Narnia books would be quite similar to Tolkien's works. They are not.

Lewis's work is squarely aimed at children. This is not a bad thing, and the spareness of the prose is something of a relief compared to Tolkien's dense descriptions. At the same time, I felt as though I wasn't nearly as drawn into the fantasy as I have been with most other fantasy novels. Perhaps I would come to love the land of Narnia and the Pevensie children more if I read the later novels, but it feels as though the only character in this book that we get any sort of insight into is Edmund. It would be nice to get to know the characters a bit better. Instead, Lewis rushes from plot point to plot point as quickly as possible so he can cover all the allegorical bases.

As for the allegory... Well... It's very odd. Everyone I've talked to who read these books as a kid has said that they didn't feel ministered to, and quite enjoyed the books on their own merit. And certainly large parts of it seem to be enjoyable on their own. But then you get to the parts about Aslan. While reading it, I felt as though if I didn't know Aslan was Jesus, I would just think he was a big Mary Sue. Think about it; everyone's talking about how great he is, there's an aura about him that causes everyone to love him, he magically solves everyone's problems, and despite the danger he puts himself in he can't really be killed. Thanks to Lewis's economy with descriptions and characterization, we don't really know why everyone loves him or why he's so wise, we're just told he is and everyone acts as though it's true.

Further, large parts of the book don't seem to make sense if you don't know that it's an allegory and what it's supposed to really mean. The parlay between Aslan and the White Witch seems particularly incomprehensible. All the talk of Deep Magic and the White Witch owning all who commit treason and Aslan not even considering circumventing the laws of the Emperor-beyond-the-sea seems like it would be quite obtuse when read without outside context. But if you go in knowing that Aslan is Jesus, the White Witch is Satan, and the Emperor-beyond-the-sea is the Father part of the Trinity, it all makes sense. So I'm curious, to those who read it without knowing of the allegory, whether it all hung together well on its own. And, I should add, I leave open the possibility that this all makes sense and gets explained within the context of the books in later Narnia novels.

Despite all this grousing, though, I quite enjoyed the book. It's refreshing to have a plot that moves so quickly; I've grown accustomed to much longer books that contain less plot than this one, bogged down with ponderous prose and endless descriptions. At some point I'll probably buy the omnibus edition of all the Narnia books and read through that. For now, though, I quite enjoyed The Lion, the Witch, and the Wardrobe. It gives a pretty significant return for a relatively small investment of time.

I also owe Lewis an apology. In comments below I'm afraid I mischaracterized an argument he made in one of his political writings. This was not a conscious misconstrual; it had been some years since I'd read it and I recalled his argument being rather different than it was. You can find the piece I was talking about here.

It's interesting; I read that piece before I had done much serious study of the theory and practice of criminal punishment. After a lot of subsequent coursework on the subject, I find myself far less inclined to disagree with him than I was when I first read the piece.

Lewis's main argument, which I tend to agree with, is that the problem with purely humanitarian visions of punishment is that they are, paradoxically, inhumane to those upon whom they are inflicted. The humanitarian vision, as Lewis characterizes it, is that people commit crimes because of a mental illness. They are products of society, or their upbringing, or whatever. The goal of our system of justice, then, should not be punishing criminals for moral transgressions; rather we should attempt to reform them, to cure them of their criminal tendencies and turn them into good citizens, fit to become productive members of society.

The trouble as Lewis sees it is that this not only drops the bottom out of a sentence (a hardened criminal could theoretically be cured and released within a week for even the most heinous of crimes) but extends the ceiling of a sentence to infiniti (a petty criminal might never be considered cured, and therefore could spend his life in prison for shoplifting from a convenience store). When we have a justice system premised on a moral theory, there is a need for a rough correspondence between crime and punishment. A small transgression deserves an equally small punishment. A grave crime requires a serious punishment. But when you remove the moral dimension and treat crime as a disease to be cured, there's no longer a need for correspondence between crime and punishment. You can always justify keeping the criminal within the correctional system so long as he is still diseased and still needs to be cured.

These are the points on which I largely agree with Lewis. He, however, held very radically skeptical views on the value of expertise (only the natural sciences should be permitted, and even then treated with caution. Social Science in all forms is an abomination, because it is not man's place to know the intricacies of Man, God's greatest creation. All forms of meddling with the natural order of things will inevitably lead to evils). Because of this, he felt that the humanitarian view of punishment had no place whatsoever in criminal justice. I tend to disagree; I think there's a place for reformation and rehabilitation of criminals, but it should be a secondary factor and always subject to certain constraints based in morality and human rights. Non-coercively attempting to get a criminal to reform his way of thinking to be more amenable to society is fine. Forced therapy to get a criminal to, for instance, change unsavory political views is not fine.

It's this last point where Lewis goes off the rails. He worries that soon Christianity will be deemed a mental illness, and Christians will be rounded up and forcibly reformed of their disease. This isn't entirely unfeasible, but he's arguing in bad faith. That's the sort of thing you would see in places like Soviet Russia and Maoist China, but there are very fundamental differences between that sort of hard-core utopian Leftism and the more moderate liberal democratic leftism of the sort Lewis was arguing against. It's an unfair argument in the same way that it is unfair to dismiss an argument from a Christian perspective by invoking the fear of inquisitions. Within the political context that the argument is being made, the worst-case scenario being spun is neither feasible nor intended by the opponent that the argument is made against.

So I'd recommend Lewis's Narnia books, and caution that, while there is merit to the political writings, they should be approached with a healthy skepticism.

Card Game Thing-Where-I-Talk-About-It: Gloom

This is a "Thing-Where-I-Talk-About-It" and not a review because I have not, technically, played this game yet, so I can't really review it. Still, that won't stop me talking about it.

I bought a card game from a game shop the other day called Gloom. It's released by Atlas Games, makers of various card games as well as the Ars Magica RPG series. The premise of the game is quite interesting. The idea is that you live in a culture that holds that life on earth is nothing but suffering and death. But: their vision of the afterlife is that the more you suffer in life, the richer your rewards in death. Hence, the game. You take control of one of four families. Your goal is to inflict the most misery possible on them before killing them off. Once everyone's dead, the family with the lowest total self-worth score wins.

The game play seems fairly simple. Everyone starts with five characters. You draw a hand of five cards to start, then the player who has had the worst day begins. Each turn consists of three phases. You start with the first play phase, in which you may play any one card from your hand or discard a card. This is followed by the second play phase, when you may play another card subject to the rule that you can't play an Untimely Death card. Finally comes the draw phase, in which you draw enough cards to put yourself back up to five. Play then passes to the left.

There are only four types of cards. The first type are Character cards, which everyone has five of and are layed out at the start of play. You play your Modifier and Untimely Death cards on the characters. Modifier Cards represent things that happen to your character which alter their self-worth. These are things like "Mocked by Midgets" or "Galled by Gangrene." They can be either negative or positive, and you may play them on either your characters or your opponents'. The interesting thing is that most of these cards have associated penalties and advantages, like skipping your draw phase or getting an extra turn. The trick is that the penalties are on the cards with negative modifiers, the ones you want, while advantages are on positive modifier cards. So you're constantly shooting yourself in the foot to get ahead. There are also Event cards, which let you do random special things, like "A Tragic Misunderstanding," which allows you to swap the modifier cards on two living characters. Finally, there are Untimely Deaths. These kill off characters, locking in the points they currently have. Like Modifiers, they can be played on your characters or your opponents'. They can also give bonuses to your character's point value.

An interesting optional rule, which would slow down play considerably but would likely make it more fun if you're playing with the right group, is Storytelling. In this mode, every time a card gets played you have to tell the story of how it happened to explain it. For instance, how it came to pass that Lord Slogar, on your last turn, was Wondrously Well Wed, but this turn is Driven to Drink and Chastised by the Church.

The cards have an interesting Victorian gothic style to them. Most of the modifiers have alliterative names, bringing to mind the titles of Lemoney Snickett books. The deaths, meanwhile, all have matched rhyming pairs. This wouldn't come out in a game, but if you sort through your cards and take out the death cards you can pair them up. For example, there's a death called "Drank Too Much Rye" and another called "Choked By a Tie." It's very reminiscent of Edward Gorey's Gashlycrumb Tinies. Moreover, what artwork there is is very reminiscent of Gorey's style.

I say "what artwork there is" because there isn't very much of it. That's because one of the unique conceits of the game is that all the cards are transparent. You put the character card on the bottom and stack the modifier cards on top of it. Later cards can cancel out the effect of earlier cards by covering up parts of them. It's quite an interesting idea, but it means that there's only artwork on the character cards. All the rest just have a title, the modifiers on the side, instructions at the bottom, and perhaps some flavor text. It'll be interesting to see how it plays, but it is a bit disappointing to get so little artwork with a card game.

It'll also be interesting to see how the play experience alters playing with cards printed on transparencies rather than card stock. It seems as though the actual material is somewhat sturdier than card-stock, so the base will hold up longer as you play it. At the same time, the printed part is just sort of stuck to the transparency, rather than inked into a card. I've just taken it out of the box and already some cards are starting to have the printed part scratched off a bit. I'm worried that excessive play will wipe cards off entirely. They also seem a bit more slippery than standard cards.

In any case, I'm quite excited by it, and hopefully I'll find someone to play with soon. The board game club isn't meeting until next semester, so I may have to wait until then. I'll update with my thoughts on the actual game once I've played it.



Via Penny Arcade, I see that Vivendi Universal has allowed a fan group to make a new King's Quest game, King's Quest IX. My reaction is one of restrained jubilation. Generally speaking, the corporate attitude with respect to video game rights has been to protect them like misers. This includes, but is not limited to, refusing to allow fans to remake old games that the company owns the rights to, refusing to allow fan sequels to series that the company considers dead, and refusing to allow free distribution of games that the company has no intention of ever releasing again.

Now, I'm not a civil disobedience all-intellectual-property-is-theft damn-the-man pirate-software-for-the-sake-of-the-revolution type. If a company doesn't want to make its software free to the public, if it doesn't want to allow fan development of its intellectual property, which it either worked hard to produce itself or paid good money to legally acquire, that's its right, and I will respect its wishes. But that doesn't mean I won't criticize the decision. These are often games that companies have decided will never see the light of day again, or that they don't even know they own and have completely forgotten about, even if fans haven't. Now I don't mind them jealously guarding the rights to their games if they have vague plans to release the games in a compilation in the future, or if they think they may build on the brand again at some later point, but a lot of times companies sit on a golden horde of intellectual property that they care nothing about and plan to do nothing with, but that fans would love to get their hands on.

So this is quite the positive thing. Vivendi Universal, which now owns the King's Quest franchise, will allow a fan group to continue producing a King's Quest game. Hopefully, this will open the door to VU granting permission to fans to work with other of their software products. It might even convince other companies to (judiciously) release some of their own IP to fan groups. There are dozens of computer game series, and thousands of individual games, that are fruitful grounds for a fan sequel. Or a fan re-make. Or even, ala The Ur-Quan Masters, fan updates that allow old DOS games to run in a modern environment without the tweaking and twiddling generally necessary to get such games to run on a DOS emulator (That's a 100% legal free version of Star Control II that will run with all features in a modern Windows environment, by the way. For those that don't know, Star Control II was a sort of hybrid of Starflight/Elite/Privateer and Computer Space, and was probably one of the best computer games ever made). So this is pretty exciting.

At the same time, it would be foolish to get hopes up too far. Note the careful wording of the linked letter: "has been given approval to continue development." Last I heard, that's not a legal contract. That's "We have talked to our lawyers and decided to sit back and not sue you. Yet." That's not a promise to abstain from future lawsuits. And you can bet that if this game is at all popular things are going to get pretty ugly pretty fast, because the fan group will be distributing a video game based on an intellectual property they have no rights to. At best, after a cease-and-desist letter and expensive negotiations, VU and the group will reach a settlement that permits the group to distribute the game in exchange for a royalty. At worst, distribution will be shut off and the fans will have to pay incredibly massive out-of-pocket expensive for trademark infringement.1 The company still has all the power here. This letter is in no way a legal shield for the fan groups.

Still, though, I'm cautiously optimistic. I'm hopeful, given that VU is playing ball so far, that they'll adopt a flexible and reasonable approach if the game is successful. Perhaps, if the game succeeds, they'll reach an amicable agreement with the fan group to allow them to distribute the game for a small fee. This could, in theory, open the gates to VU and other companies deputizing fan groups as development contractors, who will work with the various companies' old and unused IP to create products that appeal to a small niche market on the cheap. Nonetheless, this is the best-of-all-possible worlds scenario, and I think it's far more likely that there's going to be a lot of acrimony between VU and the King's Quest IX group in the future.

1Trademark infringement damages are some of the biggest damages you can get. To start, the burden of proof is different; for most damages the plaintiff has to affirmatively prove what their damages were, and the defendant can refute them. For trademark infringement damages, the plaintiff just has to state what their damages were, without proof, and the burden is on the defendant to prove the plaintiff wrong. To do that defendant would generally need unfettered access to plaintiff's sales data, along with the ability to understand plaintiff's filing and organization system to actually find what's needed and figure out what it means. Generally speaking trademark infringement damages are a lot closer to what the plaintiff claims than to what defendant claims. Further, trademark infringement damages are defined as 1. Any loss to the company's direct profits from confusion (people think they're buying the legitimate product when in fact they're getting the knock-off) PLUS 2. any loss to the company's good name and public good will caused by consumers associating the low quality knock-off with the real product, and assuming this means the real product is of low quality PLUS 3. any and all gross profits acquired from the sale of infringing goods PLUS 4. the judge, at her discretion, may automatically triple the damages PLUS 5. within her discretion, the judge may also tack on punitive damages without limit. This country REALLY doesn't want you infringing on trademarks.


Tonight, in celebration of finishing my Torts final, I sat down on the couch and watched a marathon of Rick Sloane movies. Specifically, I watched the first three Vice Academy movies back to back.

Rick Sloane's a fairly obscure cultural artifact. I first learned of him through USA's Up All Night program. The USA network used to run a pair of movies starting at 11 o'clock on Friday and Saturday nights. Friday nights they were hosted by Rhonda Shear (Possibly a porn star?) and Saturday nights be Gilbert Gottfried. In any case, they tended to be B-movie schlock, but, luckily for me, a young lad in middle school allowed to stay up late on weekends, they often showed carefully-edited quasi-softcore porn movies. You know the sort of movie I'm talking about; teenager sex comedies from the 80s where you sit through 80 minutes of terrible jokes to get at 10 minutes of underwear, and maybe a naked breast if you're lucky (with the breasts carefully edited out of the USA versions). Well, the Vice Academy movies were the monarchs of the Up All Night quasi-softcore empire. The movies were the most enjoyably bad, and the sexuality was practically nonexistent.

It's also possible that you know Rick Sloane from Mystery Science Theater, Episode 907: Hobgoblins. Hobgoblins was the movie that Sloane made before the Vice Academy movies. Sloane actually personally suggested that the Mystery Science Theater folk do Hobgoblins, single-handedly inspiring Mystery Science Theater's "No more movies given to us by their directors" rule.

But, to the point. Sloane made 6 Vice Academy movies. These movies are soft core porn parodies of the Police Academy movies. That's right, porn parodies of comedies that weren't funny to begin with. The cast shifts around, but they always star Ginger Lynn Allen (Of Wing Commander III fame. Also: Porn!). There's actually a noticeable improvement in the quality when you watch them back to back. The first one is intensely amateur. The second one has better production values, but a plot with too many undeveloped ideas (as Rick Sloane put it in an interview "We didn't even end up needing a script to shoot Vice Academy 2." Wow. Just, wow). The third one actually looks vaguely professional. Surprisingly, Sloane got a three picture deal from Paramount for these movies. The second one's the only one that's officially a Paramount Picture, with Paramount logo and everything, but still. Major studio backing.

Sloane has a certain style to his films, and that style is "Cheap and Terrible." He comments in one interview that he liked to do films with a "kids have to run around and solve some problem in one night," plot. You know, like round up the escaped hobgoblins before dawn, or arrest ten people to meet the Vice Academy graduation quota (!) before graduation at 7 AM. So why the recurring plot? Some deep metaphor about the fleeting nature of life? A meditation on the power of night? "Because it's really hard to shoot during the day without a shooting permit, because people get in your shot. But if you set your whole movie at night, and just shoot on empty parking lots, everything's fine." Ah.

Sloane likes to inject humor into his movies. Unfortunately, Rick Sloane isn't funny. No, it's more than that. Rick Sloane doesn't understand what funny is. He's like a four year old kid who's heard jokes, heard people laughing at jokes, maybe heard some simple "Why did the chicken cross the road?" kinda jokes. The kid's used to people laughing at him when he jokes, either because he's cute or because they're humoring him. So he starts making his own hybrid jokes based on jokes he's heard before. But the kid doesn't get what makes jokes funny, so the jokes he makes aren't funny, and he's no longer cute enough to get away with non-funny jokes. Rick Sloane is a guy who makes jokes but doesn't understand what makes jokes funny, and nobody has had the heart to tell him he isn't funny. So we get 50 knees to the crotch in a row. Or we get zany sound effects (a Rick Sloane trademark) for no damn reason. Or we get characters saying lines in unison that apparently are supposed to be funny, but patently aren't (For example: In the first Vice Academy movie a gang of ten hookers steals the cops' van. They drive off and, for no explained reason, the van rolls over onto its side. The hookers then say, in unison, "Awwwww! Somebody call a tow truck!" Then there's a zany "Boing-oing-oing-oing-oing!" sound, and we cut to another scene).

Also, and this isn't necessarily Sloane's fault, the movies are definitely products of their time. That is, the women in them are dressed in the height of bar fashion for their day. Sadly, particularly for the first movie, their day was in 1988. So we get a lot of spandex, puffy skirts, and big crimped hair. The second movie's a bit better, and they almost look normal by the third one, which was shot in 1991. By then we at least have Blossom-style fashion and reasonable haircuts.

It's also of note that these movies are completely non-arousing. They drain sensuality from your life. What's disturbing is that I remember that when I first saw these movies in middle school I thought they were the height of sexy. What's more disturbing: I recall now having some weird penchant back then for women in uniform. I only remembered this when I started watching these movies and vaguely remembered once having thought that sort of thing was super-hot. Needless to say, it's gone now. So I guess fetishes can die of neglect.

Finally, I'll leave you with a couple more telling insights from the interviews on the DVDs. First, from Elizabeth Kaitan, who played Candy in Vice Academies 3-6: "I learned a lot from working on Vice Academy 3. Like Rick Sloane taught me how to do a shot in one take. I learned fast that if I, like, goofed a line or started giggling he'd just keep going and it'd end up in the movie." And from Rick Sloane, holding up a pizza box that said "Vice Academy" on it. "I always liked this promotional item. Here's why. See, lots of other independent soft core directors, they throw a lot of sex and nudity in their films. But if you watch my movies closely, you'll see there's a little, but not nearly as much as the other guys put in, even though my movies sell, like, 4-5 times better than theirs. So I like to think that I'm like the pizza delivery guy of movie directors: I make you wait for 90 minutes, and then I never deliver in the end."


I'm finally finished writing my Torts take-home and editing it down to fit in the word limit. I'm done for today; tomorrow I'll go through and edit it more thoroughly for content and clarity (then edit it down again to fit into the word limit). But I'd say it's now 90% finished, and I can relax until the Contracts final in a week. Expect posts soon.

My God, it's Full of Washed-Up Stars!

This isn't one of the big posts I'd been planning, but rather a tangential result of some background research for one of those posts. Nonetheless, in the spirit of avoiding the Torts final:

In the mid-90s it became feasible to take video and compress it into a form that could be watched on home computers. This, it was believed, would be the next big thing in video games. The compression was poor and it required games to come on 6 CDs, but damnit, now you could watch full motion video cutscenes, and isn't that a good thing? In the end, it was decided that the answer was no. There isn't a lot of overlap between the folks who produce video games and the folks who produce film, so making film for a video game requires hiring an entirely seperate crew to stage and shoot the cut scenes. Moreover, the budgets for video games tend to be small compared to those for films, so you can't really put together high-quality cut scenes. Further, the filming aspect tends to shift the focus of production toward the cut scenes and away from producing an actual game that someone would want to play on the merits. After a few flashy successes, consumers rapidly got bored and a lot of companies wasted a lot of money making expensive, barely-interactive video games that nobody wanted.

But the big success in all this was Wing Commander III. Wing Commander had previously been a popular computer game series, so it had a built-in fan base. Further, Origin, the company that produced the game, hyped the video aspect enormously, which got them some coverage by main-stream outlets like Entertainment Tonight.

But the big draw for the game was the star power. I didn't realize until I looked at its IMDB entry, but this game had more washed-up stars than most budget indie movies could dream of. It starred Mark Hamill (of Star Wars fame), and featured Malcolm McDowell (Of Clockwork Orange fame), John Rhys-Davies (Formerly of Indiana Jones fame, now of Lord of the Rings fame), Thomas Wilson (of Biff Tannen from Back to the Future fame), Jason Bernard (of A Bunch of TV Shows and Mini-Series from the 80s-to-Mid-90s Fame. Seriously, I actually did know him from V before I played the game), Ginger Lynn Allen (of Porn fame), and the voice of Tim Curry (Of... Wait, why IS Tim Curry famous? I mean, Rocky Horror, sure, but do most people know him from that?). It's kind of astounding how many formerly-famous people they got for the project. And altogether more astounding how many came back for Wing Commander IV, which cost 5 times more to make but sold about half as many copies.

As for the game: Eh. It was decent. I remember it was a pain in the butt to get working on my 486, but I enjoyed it. Not very challenging, but more effort went into making it a playable game than went into any subsequent Full Motion Video computer games.


Projects for the next week:
1. Do Torts take-home final tonight so I have time for the other stuff.
3. Read The Lion, the Witch, and the Wardrobe.
4. Write about half a dozen blog posts that are currently bouncing around in my head before the built up pressure of them causes my BRAIN TO EXPLODE!
5. Orange Pie!
6. Watch that one movie I got from GreenCine. Eeesh. It's a Russian Science Fiction movie, courtesy of a randomized version of GreenCine's Sci-Fi primer. It's called "The Stalker," and is by Andrei Tartovsky, of Solaris fame. It was apparently done partially as a reply to Kubrick's 2001. I imagine there was an element of Cold War one-upsmanship here. "You call that ponderous and boring? HA! Nobody out-ponders or out-bores a Russian filmmaker!"

I should also maybe study for Contracts or something. And start shooting out resumes in the hopes of finding a job for the Summer. I have recurrent nightmares and feelings of inadequacy regarding job searches, because despite dozens of resumes and cover letters sent out in my life, the only job I've ever gotten from them was with an employer that, though I dearly loved my time with them, essentially hires anyone with a pulse (Stax pride!). If anyone out there knows an attorney who could use a gopher with years of detail-oriented organizing experience to file shit, send their name my way. I'm not picky; the shit could be literal or metaphorical.

Also: I've gotten the prompt for my take-home Torts final, and it's really interesting and complex. This should actually be a fun exam to write. But: While I'd love to turn it into a blog post, I'll have to wait until after Thursday for it. To get the prompt I had to sign all sorts of honor code statements saying that I would not discuss anything regarding the contents of the exam with anyone other than classmates. Interestingly, the professor allows us to discuss the take home exam with other students, but not with people outside the class. I assume this is to prevent you talking to your uncle the federal judge or your cousin the personal injury lawyer, so posting about it on a blog is unlikely to violate the spirit of the rule. Nonetheless, I'd still prefer to avoid any such entanglements.

An inauspicious product launch


I was wandering around Midtown yesterday and noticed a bunch of ads on phone booths and bus stops for Play Underwear. Being the sort who has an interest in underwear, I decided to check out the website that the ads directed me to when I got home. It's here. Once you get past the the flash intro, and the video (both of which I skipped. By the way, you might want to mute your speakers before following that link; I keep mine mute by default, and based on the music-orientation of the underwear (!) there's a strong chance there's something loud and technoey playing during the various garbage they throw at you). So I got to the site's main page. There are two news items on the front page: New Website Launched! (I know you're testing out the news post function, but for the love of Pete is anything more banal than the "New website launched!" post that is inevitably the first post on a marketing website? It hardly bears mentioning, but given that we are on the website which has launched, there's a strong chance that we could intuit that the website had, in fact, launched) and "Pl>y phone booths go up in NYC!" So an ad website that tells us of its existence, then re-directs us to the real world ads that directed us to the web site in the first place. Huh.

Exploring the site, you'll discover 1. a promotion where if you spend $45 on their underwear you'll get $3 of free songs on iTunes, and 2. that they haven't gotten around to posting anything about their actual product yet, nor does their database contain any stores where you can purchase their underwear. But for a lone link to, which seems to be the only place on the planet you can buy Play Underwear, you would not be able to tell, from the website, that the product existed yet.

It strikes me that Play Underwear has an overzealous marketing department (setting up cross-promotions with Apple, arranging an ad blitz in Manhattan, putting up a marketing website (currently devoid of content)) and an underachieving production and retailing department. Given that they don't actually have a product ready for market yet, it seems they're jumping the gun by launching their big ad campaign for it. And not a teaser ad campaign; a full-on "BUY IT NOW! (Product not available for sale)" campaign. It feels like the marketers got everything ready, then decided that they shouldn't let a little thing like not having a product to sell get in the way of a great campaign.

As for the product itself, it's a pair of brightly-colored boxer-briefs with an iPod pocket. I would guess the marketers were pretty heavily involved in the design of the product as well, because I have a very difficult time imagining why someone would want a pocket for an iPod on a pair of underpants. Unless that someone was a marketer who had just signed a cross-promotion deal with Apple and needed to figure out some way to create synergy betwixt iPod and underwear.

So, yeah. My guess, at this point, is that there's no place for Play Underwear in my extensive underwear collection.

UPDATE: Dianna complained, you now you get this guy, courtesy of International Jock:


He's rocking out, because he has an iPod in his underpants. Which sounds like just about the worst pick-up line imaginable. I still completely don't get the concept here. If you're wearing these underpants under clothes, and you're storing your iPod in them, you'll have your headphone cord emerging from your pants, and that's just creepy. On the other hand, if you're lounging around in your boxer shorts and using them to hold your iPod while you rock out, as this ad suggests, wouldn't it be easier to just play your music through your speakers? I mean, presumably your computer has all the music your iPod has, and wouldn't you rather hear your music through quality speakers rather than headphones?

I guess I can spin a scenario where they'd be useful. You've just had a sexual encounter at your partner's domicile. You're away from your speakers and music, but would nonetheless like to rock out. Fortunately, you brought your iPod and fortuitously chose to wear your iBoxers the night before. You can now walk around your partner's pad while rocking out with both hands free. Indeed, this may be one of the few situations in which one could rock out with one's cock out without fear of legal reprisals, though of course one would still have to take one's partner's reaction into consideration.



I never read the Narnia books as a kid. I did, however, read the Lord of the Rings books as a kid. I thoroughly enjoyed the Lord of the Rings movies that came out the last few years, to the point where seeing a Lord of the Rings movie after winter finals has left an indelible mark on my memories of college. On the one hand, this here Narnia movie that's coming out looks good. But at the same time... Does it REALLY look good, or am I just experiencing (surprisingly fast-acting) nostalgia for the Lord of the Rings movies?

A further question: Assuming I do go see the Narnia movie (as I undoubtedly will, in the end): How're the books? Worth reading? Worth reading before I see the movie?

Not Thinking


I've got ideas for posts which have been building up since I started studying. But now I'm too tired and elated to post them. Later this weekend, though. For now, I random stupid legal fact for non-New Yorkers:

There's a Federal judicial system. They've got branch offices in every state. These lowest-level courts are called District Courts. They're the trial courts of the Federal System; they hear pleadings, meet with parties, decide motions, supervise the actual trial, render verdicts as necessary, etc. They're the hands-on judges.

If you don't like a decision that comes out of a District Court judge, you can appeal it to the Circuit Court. There are 11 Circuits, plus the DC Circuit (which is one of the more important circuits, even though it covers the least area by far. It shouldn't be too hard to figure out why; it happens to be the court that covers federal law for the seat of the Federal Government, so a lot of administrative actions and government business goes through the DC Circuit). The circuit courts are intermediate appellate courts. They only hear very explicit challenges to the way a trial was run, or some point of substantive law, or whatever. Appellate courts don't hear trials; if they decide a new trial is needed they remand the case back to the district court with orders to try the case again and instructions on how to run it right this time. This makes some sense. Making decisions upon fine points of law is a fundamentally different activity than the labor-intensive work of managing trials and such. Why not divide the labor like that?

If you don't like an appellate decision, you can appeal to the Supreme Court. The Supreme Court is very busy. They don't have time to hear all the cases that are appealed to them, whereas the Circuit Courts do have to hear all appeals. The Supreme Court generally carefully picks its cases so that it only hears cases that will have a big impact, or that will resolve a niggling question. One of the interesting aspects of our system is that Circuit Court rulings are only binding in the territory of their circuit. So if the 9th Circuit decides that the US Constitution bans the Pledge of Allegiance, that interpretation is valid within the confines of the 9th Circuit, but nowhere else. It doesn't need the Supreme Court's certification to be binding; its rulings are the law of the land within its geographic jurisdiction, but only within its geographic jurisdiction. One of the surest ways to get the Supreme Court to hear a case, though, is with a circuit split. If the 5th Circuit rules one way on an issue and the 9th Circuit rules the complete opposite way, it's a good bet that the Supreme Court will take an appeal on that issue to resolve the dispute. Once a matter gets decided by the Supreme Court, it's binding on the whole country.

This is all prefatory. The US Constitution sets up the Federal system (vaguely; it defines the contours, but the meat is actually provided by acts of Congress). The states are free to set up whatever the hell judicial system they like (or no judicial system, in theory), subject to the constraint that they have to abide by the 14th Amendment's requirement that they give their citizens due process of law. Each state has its own unique variations, but most have adopted a system vaguely analagous to the Federal system, with lots of low-level trial courts, a few intermediate appellate courts, and one Supreme Court that is the final word on matters of state law.

We're closing in on the point. States can call these courts whatever they want, but as a general rule the nomenclature is something like "District Court" or "Trial Court" or, in California, "Superior Court" for the lowest level courts. The intermediate courts tend to be called "Courts of Appeals" or "Appellate Courts." In almost every case the highest court is the Supreme Court.

The one goofy exception, which you may have caught on to from Law and Order, is New York. For reasons that are beyond explanation, New York calls their trial courts "New York State Supreme Courts." Their intermediate courts are called "New York State Supreme Courts, Appellate Division," and the highest court for the state is the New York Court of Appeals.

That's all I've got.



I am sitting in 103 Jerome Greene Hall. It is 9:03 AM. My final officially begins at 10:00. Pre-test instructions and stuff occur at 9:30. I'm trying to keep myself calm and ready for the test. But none of that matters. This test doesn't matter. Civ Pro doesn't matter. Law School doesn't matter.

Because it's motherfucking snowing outside.

You who are in California have no idea. I walked out and the entire landscape was covered in an (entirely unanticipated) 3-4 inch layer of snow. And the snow is still coming down in a flurry.

I have officially decided that the first thing I'm going to do once I get out of this exam, after taking my stuff home, is to go out and buy that winter coat I've been meaning to get.

Intolerable Cruelty


I can't tell if this is the result of explicit evil or just poor planning. The law school is offering free back massages to all students to help with exam stress. Along with those massages they are offering free coffee, cookies, tea, etc.

They are offering them from Noon to 1 PM on Friday.

All 1L students are taking Civil Procedure. All Civil Procedure courses are having their finals between 10 AM and 2 PM on Friday (with one exception, a take-home final which, from what I can tell, was given out today at 2 PM and is due by 2 PM tomorrow). It should be pointed out that today is the first day of finals, and that the 10-2 Civ Pro exams are the only finals being given until 10 AM on Wednesday, so it isn't as though there are no times when everyone would be available.

Bravo, Student Services. Bravo.



Someone got to this page searching for "What kind of houses did the southern clonies live in?" I think they meant Colonists. My guess is that this was some kid doing research on the internet for an elementary school report, based on the subject matter and awkward relationship with spelling. And where did he wind up? My post on how certain banjo fingerings sound like masturbation techniques. Looks like someone got more education than they bothered for this evening. Ah, well. The kid's gotta learn about the alternating thumb roll some day...

Since it's an opportunity to mention it, some other odd searches I've run into lately: Someone was looking for "Bob Class Wonderfruit." No idea on that one. One hit for "Molten Boron Feminism." Huh. I get a lot of people looking for Al "Soup Nazi" Yeganeh and his Soup Kitchen franchises, as well as Papaya King. Occasional "Avocadro's Number" searchers, which isn't too surprising.

But the most common search term to hit my page? "Masturbatrix." By far.

Question relating to Education Ethics


When engaged in the task of studying for an exam, if one ceases studies directly related to the material being examined and embarks instead upon answering a question requiring lengthy research, and that question is not, directly or indirectly, related to the material being examined, but is related to the general subject matter of the exam, may one, within the bounds of student mental ethics, account the time spent answering said question as study time, or must one account it as time spent goofing off?

For example: When studying for an exam on Federal Civil Procedure, may one, prompted by a chapter on civil discovery under the Federal Rules, stop what one is doing and research rules regarding California Criminal subpoenas, in order to answer a question you've been wondering about for months regarding a predicament your friend was in, and consider the time spent answering that question studying?

A further question: How should one account time spent making posts to blogs asking questions about the educational ethics of tertiary research?


Sorry for the slowdown in posts lately. As I may have mentioned, finals loom. My biggest final is also my first, this Friday, so I'm pretty focused on that. The weekend should be fairly light. I have a take-home final on Monday that should require almost no studying before-hand (It's a 72 hour take-home with a strict word limit). Then I have one last final, Contracts, a week after. I think I have a pretty good handle on Contracts, so that week should be less study-intensive than this week, the pre-Civ Pro week.

Also, the American Bar Association, in their infinite wisdom, has decided that, in order to give first year law students some time to get their bearings in law school and find their feet, that there should be a mandatory moritorium on contact, in either direction, between students and employers regarding summer employment. In many ways this makes sense; I've appreciated not having to think about jobs, job searching, resumes, etc. these last few months. What doesn't make sense is the temporal extent of the moratorium: The official day when students and employers may begin contacting one another about jobs is December 1, conveniently just as finals are beginning. Naturally, this means most fellowships, scholarships, etc. have their deadlines for application in the first week of December, and most employers expect students to send in their resumes and cover letters as soon after December 1 as possible. I would argue that having the moratorium end right at the start of Finals Season pretty much entirely defeats the point of the moratorium.

So anyhow, I've been studying and applying to things. I'll still try and post a bit, but things'll be light until at least Friday night.



For thems what wants it: Download Queue.exe

Queue Randomizer.

Randomizes Queues in Netflix OR GreenCine.

Simply download Queue.exe. When you want to randomize your Queue, double-click queue.exe. A small green box with a white H will appear in your SysTray. (Note that this macro has the advantage of requiring no software installation). Open Opera Internet Browser (Yes, it ONLY works in Opera. Not IE, not Firefox, Opera. Deal with it). Navigate to your internet movie rental site of choice. Go to your queue. Select the first number text box, and make sure the text selector is to the left of the number. Hit Alt-G. A user-friendly pop-up will appear asking you how many movies are in your queue. Tell it, then click OK. As if by magic, the macro will replace all the numbers in all the textboxes in your queue with random numbers. Hit Update Queue and you're done. Random queue. Yay!

Now, if you'll excuse me, I've been thinking about this problem for ten hours, and working on it for 4-5 hours. It's 7 AM, and I'd like to get some sleep this, you'll pardon the poor choice of words, evening.

One other quick thing: I actually had a lot of fun putting this program together, bitchiness above aside. If there's one sure way to get my rapt attention for hours on end, it's posing a problem to be solved by manipulation of a computer program. I'm not sure what it is, but I get utterly focused and tenacious when trying to get a computer to do my bidding. Because we can't let the machines win, damnit!

UPDATE: A blinding revelation struck my brain last night, and I now present Queue 2.

Queue 2 is a Netflix/Greencine queue randomizer, like Queue, but it works in Internet Explorer and Firefox, unlike Queue. Interestingly, Queue 2 does not work in Opera, while Queue works only in Opera. Run Queue 2 exactly according to the instructions for Queue above. Queue 2 is not nearly so elegant as Queue, but it gets the job done in a ham-handed way. The upshot of my changes, in addition to Queue 2 working in IE and Firefox, is that the program will keep looping past the end of your queue. Don't worry; this is a finite loop. It will stop eventually, (and probably fairly soon, at that) just don't touch anything. This is annoying, but neccessary. There may be some gibberish inserted into your various address and search bars, but provided you don't hit enter nothing will be screwed up. Just be willing to put up with a bit of junk after it's done randomizing your queue, and be sure to scroll down and click the Update Queue button.

More word nobbling

I was thinking about this subject last night, and what should I find this morning but a good example of exactly the problem I wished to complain about? This comes from an interview with Zbigniew Brzezinski, former National Security Advisor to Jimmy Carter:

I think our course with the Iraqi forces verges on the absurd: It is all about us training them. The question arises: Training them to do what? If it is a matter of knowing how to use a Kalishnikov in order to kill other people, I think most military-aged Iraqis don’t need our training. If it is a question of training Iraqis so they behave and act like American soldiers, that’s well and good. Except that is not what is needed in the circumstances we will be bequeathing them. What is needed is motivation based on loyalty to the powers that be. That will mean loyalty to various Shiite militias with a clerical connotation and loyalty to the two major Kurdish formations. Plus, perhaps eventually, loyalty to some Sunni militias based on a tribal allegiance. The motivation is not going to be created by American sergeants who are -- quote, unquote -- "training" them how to behave like American soldiers.

My problem is with the scare quotes. Scare quoting, for those who don't know, is the practice of putting a word or phrase in quotation marks to indicate something akin to sarcasm or skepticism. You can see it in the last line of the quoted paragraph.

Now, you'll note that this example contains both scare quotes and the verbal scare-quote signal, "quote, unquote." I feel this is an error on the part of the transcriber; in addition to cleaning up any ums and ahs, as well as various ineloquencies in phrasing, the author ought to have also removed the "quote, unquote" and just put quotes around training, since the signal "quote, unquote" is essentially just a remark on how the ensuing word should be perceived if it were in writing. As it stands, it makes the speaker look silly.

Nonetheless: I have a strong aversion to scare quotes precipitated in part by their abuse. While grading papers for a class at Berkeley I discovered that students have an alarming tendency to use scare quotes in formal papers, even the ones who stringently avoid other varieties of informal language. This is a rule that, I feel, ought to be hammered into students starting from their first courses on composition: Scare quotes are an informal stylistic technique that should always be avoided in formal writing.

I actually had a professor for a seminar who was asked, as we prepared to write our final papers, about the use of scare quotes in writing. He bristled a bit and told us that scare quotes are never acceptable. He went on to point out, correctly, I think, that scare quotes are essentially unnecessary. Most of the time you can remove the quotes and make no other change, and the sentence conveys exactly the same meaning in context. Take the passage above. The entire paragraph is about how Brzezinski thinks the training is fundamentally doomed to failure. Scare quoting the word "training" at the end does nothing to enhance his overall meaning or convey any additional nuance. The professor's advice was that if you can't convey the point of a given paragraph without using scare quotes the solution is to re-write the paragraph to convey your ideas better rather than to rely on the implications of scare quoting a word to make your point for you.

Further, even looking at just the sentence by itself, out of context, you can convey the exact meaning of the scare quotes by adding a few words. Take out the scare quotes and add "Alleged" or "So-called" before the word you want to scare quote. You now convey all the meaning you intended without the use of vulgar informalisms.

That professor's rant had such a profound impact upon me that I now refuse to use scare quotes in any context. Not in formal writing, not in informal writing, and certainly not when speaking to people. Verbal and hand-signal scare quotes annoy me to no end, for different reasons. The scare quote was invented to convey in writing a verbal emphasis that conveyed an additional meaning. If you can't convey the fact that you're being sarcastic or skeptical with your tone of voice, you don't deserve to be using sarcasm at all.

And now, a bonus rant on language: You will note my use of sarcasm in the preceding paragraphs. This represents surrender on my part. Sarcasm, as used above, is mis-used. Sarcasm comes from the Greek, where the root word means, "to tear flesh." Sarcasm, according to the OED, Merriam-Webster On-Line, and, is a cruel and cutting remark. Sarcasm is defined by its meanness and wit. It is not necessarily a word or phrase indicating that the speaker actually means the opposite of what they are saying. That's verbal irony (as distinguished from dramatic or tragic irony). One can be sarcastic without being ironic and ironic without being sarcastic.

Some examples:

Person A: "I spit in that guy's coffee because he didn't give me a tip."
Ironic Reply: Person B: "That'll be a pleasant surprise." (Note that this remark isn't really cruel. It's not attacking anyone, but merely makes an ironic statement of fact).
Sarcastic Reply: "I see that forgiveness is not among your virtues." (Cutting, and every word intended to mean its dictionary definition).
Sarcastic and Ironic Reply: "How magnanimous of you." (Cutting, hostile, and "magnanimous" is clearly intended to mean the opposite of its dictionary definition).

Note that, as the various definitions make clear, verbal irony and sarcasm are often closely linked, but they need not be. Often, however, when people say "I was being sarcastic," what they really mean is "I was being verbally ironic." But, as I have discovered, "I was being verbally ironic," is both more difficult to say than "I was being sarcastic," and elicits quizzical reactions that require lengthy explanations such as this one. I have therefore succumbed to popular usage and use the word "sarcastic" when I mean "verbally ironic."



I had two appointments at Columbia Counselling and Psychological Services today, in the morning with my therapist and in the afternoon with my psychiatrist (Whee! A one-two punch of mental health and wellness!)

While I was waiting a tallish man emerged from the corridor containing the therapists offices with the biggest grin I've ever seen. Now that's therapy! I always feel good after a session, but I never feel out-right giddy. Maybe today's session cured him and he's 100% self-actualized.

Then, as he was waiting for the elevator, he tried talking to a girl walking through the waiting room. She gave him barely a nod of acknowledgement, then sat down and ignored him. The smile faded and he twitched a bit. The elevator arrived and he got on, with his head hanging just a little bit. Guess he'll be back next week...

My therapist and psychiatrist were quite late for their respective session, so I spent, all told, about 45 minutes sitting in the waiting room. I didn't like the magazines, so I watched the people there. I noticed there were a lot of attractive women waiting for therapy. The thought occurred: how good an idea is it to date someone you meet in the waiting room at a therapist's office? On the one hand, you know right off the bean that you're dating someone who has problems. On the other hand, you're dating someone who realizes they have problems, acknowledges them, and is trying to fix them. Huh. Plus, obviously, you're in the therapists office too, with your own cornucopia of psychoses. Beggars can't be choosey. This is purely speculative, of course. It takes extraordinary circumstances for me to talk to strangers in a non-socializing setting, and I sat in silence the whole time.

I got home and, being in a therapy-type mood, took a personality disorders test. It turns out, according to The Internet, that I'm avoidant, but have heavy secondary elements of paranoia, dependance, and schizotypalism. Plus I'm at least moderate in every one of the other 6 personality disorders they test. I'm like the personality disorder sampler platter! Only it's the kind with an extra tray of carrot sticks, where carrot sticks represent avoidant tendencies. The carrot sticks of avoision. Who needs professional mental health experts when you have Some Guy on the Internet with Too Much Time on His Hands?

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