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- Age / Gender:
- 31, Male
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- HH in Good old Ger
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- 7/16/10
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Level 25 Musician
Normal Whistle
Ranked as Police Lieutenant
Contact Info / Websites
Latest Audio Submissions
|Hip Hop - Modern Song
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|Hip Hop - Olskool Song
Recent Game Medals
Thanks! 5 Points Check out the Credits Page! Medal Stats.
Piggyback Joyride 10 Points Clear levels 5-10! Medal Stats.
Link Between Worlds 5 Points Clear the first 5 levels! Medal Stats.
Golden Astronaut 50 Points Find the hidden Golden Astronaut token. Medal Stats.
Upgrade II 5 Points Buy 10 upgrades Medal Stats.
Score II 5 Points Score 5,000 points Medal Stats.
Score III 10 Points Score 7,500 points Medal Stats.
Score IV 10 Points Score 10,000 points Medal Stats.
Power II 5 Points Use adrenaline 3 times in a game Medal Stats.
Extreme 5 Points Reach the last level. Medal Stats.
Total Medals Earned: 3,604 (From 583 different games.)
Favorite Movies
Fire Tiger v Acid Panther Rated 4.4921 Stars Fire Tiger and Acid Panther go head to head to see who eats the boar. Action Starbarians - Episode 2 Rated 4.4793 Stars A new Starbarian adventure begins.... Comedy - Original Pixel Shrooms Rated 4.4355 Stars The full Shroom song from 8-Bit Pwny Club 2 Music Video Walk in the Woods Rated 4.4253 Stars A rabbit goes for a walk in the woods Comedy - Original
Favorite Games
HYDRA Rated 3.8007 Stars Fight against the HYDRA and show the world your best score! Action - Fighting - VS DungeonUp Rated 3.7697 Stars A hybrid of roguelike and puzzler. Can you fight the way out of deep dungeon? Adventure - RPG BLACK IV Rated 3.8147 Stars Classic BulletTime shooter from 2006 is coming back with tones of new features! Action - Shooter - Run 'n Gun Deeper Sleep Rated 4.3770 Stars The nightmare returns... and this time it goes even deeper! Adventure - Point 'n Click
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Latest Shared Creations
halla Added to pumpkins for Carve n' Share Oct 24, 2014. Load Level
Dog Attack Added to skins for Skincraft Mar 6, 2014. Load Level
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pico Added to drawings for The Drawing Grounds Sep 5, 2012. Load Level
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Irish upbeat despite All Blacks defeat
Brian O'Driscoll sees the positives in Ireland's 22-19 defeat by New Zealand.
(01:04) | June 16, 2012
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Wilkinson announces retirement
Rugby Union Video: World Cup winner Jonny Wilkinson has announced his plans to retire from Rugby at the end of the season.
(01:49) | May 19, 2014
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Gatland wary of Lions effect
Rugby Union Video: Wales coach Warren Gatland is wary of the home nations poor record in the 6 nations following Lions tours.
(00:31) | Jan 15, 2014
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France build tunnel to Wales to steal players?
Rugby Union Video: The 'Don't Drop The Egg' boys look ahead to rugby in 2014.
(04:16) | Dec 5, 2013
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Besiktas retake top spot in Turkish Super Lig
Football Video: Besiktas return to the top of the Turkish Süper Lig after a 3-1 win against Akhisar Belediyespor.
(01:06) | Dec 22, 2014
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Blatter: 'Fifa must restore credibility'
International Football: Fifa president Sepp Blatter says football's world governing body needs to restore its credibility following the acrimonious fall-out from the decision to award the next two World Cups to Russia and Qatar.
(01:43) | Dec 22, 2014
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Simeone praises second half display
La Liga: Diego Simeone has praised his side's second half performance over Athletic Bilbao in their La Liga clash on Sunday.
(01:16) | Dec 22, 2014
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Larry Holmes: Forget Ali, I was the greatest!
Boxing Video: Former heavyweight champion Larry Holmes looks back on his illustrious career in ther ring
(04:16) | Dec 22, 2014
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Buncey's Boxing Podcast: Maloney, Khan, Gallagher
Boxing Video: Kellie Maloney reveals how happy she is following a turbulent 18 months away from the sport.
(55:04) | Dec 22, 2014
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Premier League: Team of the Weekend-1
ESPN FC on TV: The ESPN FC crew give their Premier League week 17 team of the weekend, which includes three Manchester City players and Queens Park Rangers hat-trick hero, Charlie Austin.
(00:20) | Dec 22, 2014
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Stuart Lancaster's England side are thoroughly decent in many respects but a lack of verve will leave them short at next year's home World Cup, writes Simon Barnes
Quote Unquote
"I'm not a poker player. Mourad played and won"
England's Welsh key
Was Mark Keyworth the first Swansea player capped by England?
O Brother
Were the Grays the first brothers to score tries in the same Test for Scotland?

subset: commoncrawl


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I don't currently have a lot of natural fabrics - mostly microfiber. But I'm not opposed to trying anything.
What are the benefits of natural fibers - other than being better for sensitive skin? More absorbent?
Welcome Roland! Born at home on 3/29/12.
Baby 2 due 3/20/15!!! Team Green!
Diamond boobies!!! planning to tandem :D
The absolute best nighttime fitted is a Bububebe (B4) Sleepytime. Truly a OS, soft, quality materials, and a fantastic design. I have nothing but great things to say about these diapers - they have exceeded any expectation.
For daytime - I love my Bagshot Row Bamboo (bsrb). I love the stretchy fit, the prints are awesome, and they are a trim, absorbent daytime option. Fine for naps, too, with a cover.
#2 due 6.30.15
I like Sandy's (motherease brand) but they are pretty bulky.
♥2011♥ ♥2014♥
Fitteds: I use and like Tiny Tush cotton, Little Fancy Pants, and Orange Diaper company. The Little Fancy Pants is my favorite for overnight though.
Rainbow baby boy: J born 9/30/10
& my placenta previa baby boy: M born 10/26/12
I have to say, I like my Sbish OBF fitteds, the supposed "magic diaper". They are made in China. Okay - not the end of the world. But, the label says "Designed is the U.S. and Made in China". It really irks me. I also think the Sbish get stiff when wet and are not nearly as trustworthy as B4s. Sbish has lost that WAHM touch and is becoming the next Thirsties or Sawddlebees - just more expensive and prettier to look at. (in my very honest and somewhat disappointed opinion).
Go for the B4s!
#2 due 6.30.15
You'll probably get a different response from everyone ...
My favorite is Bamboozle. Absorbant and trim. DD makes it through the night 12 hours with a Bamboozle, a hemp insert and a wool cover. None of the WAHM fitteds I've tried have been as absorbant and all have been much bulkier.
Boy 07/07, Girl 12/10, Boy 03/05/13 VBA2C!!!!


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Ibizan Hound
This great custom product in charcoal from our department Men and Zip Hoodie category can be printed just for you in the size and style you like. The design Ibizan hound was created by lobitosUS and uploaded to Spreadshirt for you to have printed on a Zip Hoodie. Next to a host of other great customized designs, you can find this Ibizan hound design in Spreadshirt's Dogs category. If you are interested in topics like Dog or Ibicenco, then you'll love Ibizan hound designs by lobitosUS. Spreadshirt also offers a huge selection of custom t-shirts, hoodies and accessories for the category Dogs as well as top Ibizan Hound clothing. lobitosUS's designs have already impressed many of our customers, so we are sure that we've got right stuff for you! Spreadshirt is your destination for great designs of all kinds – whether it's Dog, Ibicenco or Ibizan Hound. We are sure that you will find something nice in our shop, there are many amazing custom Dogs t-shirts, hoodies, or accessories for you to find! Tags: Design ID: 11721661
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Classic hooded jacket for men and women by American Apparel. Men will enjoy it's typical form fitting AA style, while it will feel more comfortable and casual for women (order a size smaller for tighter fit). The item sports kangaroo pouches on its front, a double-folded hood and a solid metal zipper. The super soft fleece is curly on the inside. Made of 50% cotton and 50% polyester with a fabric weight of 8.2 oz
still to fill


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Whole Serrano Hams
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quick linksCURRENT ISSUE PREVIOUS ISSUES NEWS INDUSTRY NEWS COLUMNISTS BROWSE EDITORIAL TOPICS WEBINARS
resourcesABOUT MT AUTHOR GUIDELINES CLASSIFIEDS EDITORIAL CALENDAR MEDIA GUIDE MASSAGE MART SCHOOLS & EDUCATION FEEDBACK
The Bottom Line ... From a Surgeon Who Knows
Regardless of individual relationships between providers, there continues to be a type of Hatfield-McCoy feud between the philosophies of medicine and chiropractic, particularly when it comes to musculoskeletal ailments.
Drug War Rages in Wisconsin
Based on its actions over the past 15 years (review the sidebar in the app version of this article), controversy and the Wisconsin Chiropractic Association seem to go hand in hand.
Meat in the Middle
Have you ever wondered what's the truth about meat? Is it really as bad as many people think?
It Pays to be a Foodie
If there is an inner foodie in you, just waiting to burst out—this article is for you! Do you want to know how I know? I'm that girl. My middle name might as well be "Foodie." I love food! And if my patients are any indication, many of them do as well.
Correcting Dysfunctional Movement Patterns – Is Local Treatment Enough?
It is widely believed that mechanical, non-traumatic back pain is largely related to dysfunctional or compensatory movement patterns the body has adopted over time.
Understanding Epigenetics
Chronic heightened emotional states create a perfect breeding ground for illness. Through my practice I noted the increasingly obvious relationship between one's mental focus on negative thinking, emotions, resistance to experiencing feelings and disease.
Peer Points: Promoting TCM Knowledge
When Elaine Wolf Komarow, LAc, received her first acupuncture treatment in 1989, she said it changed her life. "I felt more aware, calmer, and happier. I was so fascinated by the changes that I began to learn everything I could about the underlying philosophy of Chinese medicine," said Komarow.
The McGill Approach to the Lower Back (Part 1)
Stuart McGill, PhD, brings a unique combination of tools to the table. He is a scientist who also functions as a clinician. He describes himself as a medical consultant who is referred challenging patients. He is both evidence based and practical.
Treating Chronic Depression with Acupressure
In Traditional Chinese Medicine there already exists a comprehensive theory linking the body and mind.
Finders Keepers: The Secret to Relationship-Based Marketing
Becoming a successful practitioner has less to do with what you learned in school, and more to do with your ability to find new patients and keep them!
Following the Thinking of the Classics
I have heard about the "best time of day" to carry out certain examinations or therapies. For example, I remember making a note years ago that early morning is the best time to take someone's pulses.
Treating Menopausal Women in Your Practice
I love what I do for a living. It's a great way to trade health for bread. And no topic of health, with the right bedside manner, is taboo.
Capturing the Essence of Tai Chi
Over the last 12 years, I have been working on one of the few documentaries about Tai Chi. It's called The Professor: Tai Chi's Journey West and it's about Cheng Man-Ching who moved to New York in the 1960s.
"Turn, Turn, Turn"
Many people are credited with saying, "If you remember the '60s, you really weren't there." Given the fact I didn't become a teenager until 1970, I actually do remember the '60s (or at least part of it). And as a child of the '60s, I was, of course, influenced by the music.
Alcohol Consumption Strongly Linked to Risk of Colorectal Cancer
Alcohol intake is one of the primary risk factors for many human cancers, and is strongly associated with cancers of the oral cavity, pharynx, larynx, esophagus, liver, breast, and notably, the colon and rectum.
The Acupuncture Now Foundation: What Our Profession Needs
Although acupuncture is growing in popularity it continues to be underutilized due to misunderstandings about its true potential. Only a fraction of those who could be helped by acupuncture know enough to seek it out.
News in Brief
Foundation for Chiropractic Progress Enrolls Second Group Member; Focus on Chiropractic Education at WFC-ACC Conference in Miami; Are You Ready for Another "Have-a-Heart" Campaign?
Giving Chiropractic Some Much-Needed PR
Public relations has not always been the chiropractic profession's strong suit, a shortcoming that has subjected the profession to countless attacks on its legitimacy and seemingly perpetual confusion among the public and the health care world as to the skills and services doctors of chiropractic provide.
Introduce Your Patients to Collagen Induction Therapy
Cutaneous (skin) aging generally occurs from either intrinsic or extrinsic processes. Intrinsic aging results from natural skin tissue damage and degeneration.
Implications of Section 2706: The Non-Discrimination Provision Survey
In late April 2014, NCCAOM diplomates received an email survey with the subject line: "End discrimination against acupuncturists" polling CAM practitioners for a Request for Information from the Department of Health and Human Services, released in mid-March.
Micro-Needle Dermal Roller Use in the Treatment Room
Recently micro-needle dermal rollers have been getting a lot of media attention. As a practitioner who specializes in acupuncture facial rejuvenation, I know that skin needling with a dermal roller (also known as collagen induction therapy), promotes the natural reproduction of collagen and elastin, making the skin feel smoother and tighter.
Acupuncture Detox as Part of Drug Rehabilitation
In the U.S., more than 2,000 alcohol and drug rehabilitation programs have added ear acupuncture to their practice. The development of the protocol was determined by Lincoln Hospital as it delivered 100 acupuncture treatments daily.
The Power of Mu Xiang to Treat Irritable Bowel Disease
Bloating and gas pain is something that everyone has had to deal with at one point or another; however, that's usually reserved for holiday dinners and other large gatherings.
Five Element Acupuncture Can Enhance Your Practice
For eight years I have been teaching and supervising TCM students at an acupuncture college in Colorado, in Five Element acupuncture.
Chinese Medicine: The Natural Way to Children's Wellness
As a child, I did not like going to the doctor. For the most part, when I had to go I wasn't feeling good to begin with, and I was heading into a sterile environment to be awkwardly probed by a man in a white coat for a very short, impersonal period of time.
February, 2010, Vol. 10, Issue 02
Cancer, Treatment and Detoxification
By Tracy Walton, LMT, MS
Some time ago, a client going through intense chemotherapy treatment asked me if deep massage would help her cleanse the drugs from her system. She had read about a number of liver cleansing protocols that suggested very deep massage to facilitate the process of elimination.Her question touched on a number of issues in the oncology massage world and there were several layers to my response to her. I share my answers here, because the issues are relevant for our many clients in chemotherapy.
The Effects of Massage
In the massage profession, we have learned, read, taught and repeated the belief that massage helps move toxins out of the tissues and out of the body. However, we have not always been clear on which toxins, from which tissues, or through which routes of elimination. Almost any substance in the blood, even a nutrient, can be considered toxic if there is too much of it in the blood or tissues, so our use of the term is ambiguous. I once had a physician on my table that was a huge fan of massage therapy, but told me that the profession's liberal use of the word toxin always made him uncomfortable. Invariably, when he asked a massage therapist what the term meant, he received vague, unsatisfactory answers.
Our use of the word toxin seems to imply a waste product or poison that shouldn't be there. In the realm of chemotherapy, the reagents and products of breakdown are known to be toxic, so at least we are on more definitive ground there. But to my knowledge, there is no solid base of research to support the notion that massage moves toxins out of the tissues. By solid, I mean more than a single study. Instead, to be given serious consideration, we need multiple studies, from multiple investigators, in peer-reviewed publications, reporting similar results on this point.
That said, my client was talking about chemotherapy and wanting to eliminate chemotherapy drugs from her body. These medications and their metabolites do have toxic qualities which is why they are used to destroy tumors.
She was suffering greatly from the effects of these toxins she wanted them gone, period. I told her there wasn't much known about the effects of massage in the toxin department, so I couldn't say whether deep effleurage and petrissage would, in fact, speed it out of her system. I also told her I had other concerns about the detoxification approach, which I have described here.
The Intent of Massage
When we work with clients in chemotherapy, our intent is to ease symptoms and support our clients in integrating and managing the effects of treatment. For this reason, we do not impose additional challenges to the body by working it too hard (MacDonald, 2007). So I told my client that even if we knew for sure that deep massage strokes would chase the drugs out of her system more quickly, we wouldn't necessarily choose that approach.
Instead, it makes more sense to let the body set its own pace of detoxification. The organs of detoxification -- the liver, kidneys and skin -- are busy enough without the potential additional demand of a deep, draining, circulatory massage. I told my client that, even without research or clear understanding about massage and detoxification, this is our rationale for working gently.
Additional support for this gentle approach comes from our clinical observations: When clients in chemotherapy receive deep work, they feel worse, not better, afterward. Whatever the reason for that, deep massage is too much for them. These clinical observations inform our practice much more than any attempt to explain them.
A Good Referral
My client continued to press me about what I thought she should do after chemotherapy. She asked about a number of detoxification protocols involving ingesting large amounts of salt water and other substances. They had to do with cleansing the colon and liver. I listened, but stayed neutral. I told her I couldn't advise her either way, it was out of my scope of practice. I told her she had great questions, but that I thought such practices would be safest if done under the supervision of a naturopathic physician or another physician experienced in natural medicine after chemotherapy. And I urged her to raise her questions with her doctor and chemotherapy nurse.
These referrals gave her somewhere to go with her questions and her urge to detoxify. At the same time, I managed to stay within my scope of practice. This can be challenging when our clients ask us for our opinions and advice and these questions come up a lot when we have a whole hour available to our clients. It is important to navigate them in an unbiased way, with supportive listening and good referrals. In the end, this can be a great service to our clients.
Gloving for Chemotherapy
Whenever we talk about chemotherapy and massage, the question invariably comes up about chemotherapy eliminated through the skin: will the massage therapist, in continuous contact with the client's skin, unwittingly absorb some of these toxic substances? For our own safety, should we wear gloves when providing massage to clients in chemotherapy? Should we avoid contact with them altogether? Therapists are understandably concerned about the possibility of picking up chemotherapy by-products through their hands but, like any rumor, these fears have been overblown and somewhere along the line we came to believe it was dangerous to touch all patients in chemotherapy.
Space limits a full discussion of this issue here, but there is an excellent place to go for deeper understanding. The Society for Oncology Massage (www.s4om.org) provides detailed discussion for massage therapists, clients, caregivers and other health care providers. There is a Resource Link for massage therapists where the chemotherapy, toxicity and touch issues are well-addressed. Careful analysis of the risks is provided, bringing massage into alignment with nursing practices during chemotherapy. Conditions under which a therapist might wear gloves are identified, and the current understanding of the issues is made plain.
There clearly is room for more dialogue and research in the profession of massage about the precise effects of our work. There is growing energy devoted to these questions and more resources to turn to. We have the second Highlighting Massage in CIM Research conference to look forward to this May in Seattle (find out more at www.massagetherapyfoundation.org/researchconference2010.html) This conference follows closely on the heels of the second Oncology Massage Healing Summit in Minneapolis (find out more at www.nwhealth.edu/conted/seminars/oncology.html).
I attended both of these conferences the first time around, and they were some of my favorite experiences. In settings like these, the science and practice of massage are addressed by thoughtful people who bring their whole hearts and minds to their massage inquiry. Toxin or no toxin, movement or no movement; by holding massage therapy up to the light, we will come to more fully understand the work of our hands.
Click here for more information about Tracy Walton, LMT, MS.
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Tina Brown's Unorthodox eBook-First Strategy
Last night GalleyCat correspondent Blake Gernstetter covered the launch party for John Avlon's political book, "Wingnuts: How the Lunatic Fringe is Hijacking America."
The party was held at the Manhattan home of Tina Brown (pictured, via), the author, magazine editor, and founder of The Daily Beast. In a short interview, Brown outlined how the online publication was taking its first step into the publishing industry with Beast Books.
She outlined why the company bucked publishing tradition by releasing the eBook edition first: "We feel that that's really what seeds the interest. What we feel strongly is that the digital is really the place that we are, but to have the paperback as well is a terrific way for the writer to fire on all cylinders," Brown explained. Last year, she made headlines for criticizing the $9.99 price point for books.
She concluded: "It's a great sort of sexy little paperback, 40,000 words, it came out of Beast content [which was sort of] the idea of the imprint to take pieces that have appeared as blogs and as passionate sort of opinion pieces and actually develop them into a longer form, provocative 40,000 word book."
Read the complete interview after the jump.


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KISS Lands the Cover of 'Rolling Stone' For the First Time Ever
Better late than never!
Vandals Dressed as KISS Wreck Havoc at New Jersey Auto Body Shop
They caused about $40,000 worth of damage.
KISS and Def Leppard Announce Co-Headlining U.S. Summer Tour
The press conference was a mutual admiration society, and also paid tribute to our troops.
Frequently Asked Questions: KISS
Your primer on "the hottest band in the world."
KISS Won't Perform At Their Rock And Roll Hall of Fame Induction
Simmons and Stanley released their statement on the matter over the weekend.
Not Fade Away: KISS's Debut Album Turns 40
We spoke to the Demon himself about the album that started it all.
Dressed To Kill: KISS Star In New Varvatos Campaign
Sure, KISS have been a band for over forty-years, but in a new video, they look better than ever… or at least, better than they've looked since they shot the cover of their third album, 1975's Dressed To Kill.
From Springsteen To U2, 7 Things To Look Forward To In 2014
Among other things, Springsteen and U2 are releasing new albums, and we're hoping Bob Seger might as well.
Peter Gabriel, KISS and More React to Rock and Roll Hall of Fame Inductions
Early this morning (December 17), the Rock and Roll Hall of Fame announced their 2014 inductees, which included Nirvana, KISS, Peter Gabriel, Cat Stevens and Hall and Oates. Needless to say, those who made it in were excited to receive the honor and more than happy to share that excitement with their fans.
Paul Stanley Basks In KISS Rock Hall Induction: 'They've Come To See Things Our Way'
Paul Stanley called into our friends at Los Angeles' K-EARTH this morning, originally to discuss L.A. KISS, the Arena Football League team that he and bandmate Gene Simmons co-own, but naturally the conversation was dominated by the news of the Rock Hall induction.


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Hugh Muir: Who cares if Professor Stephen Hawking lives or dies. Actually, we all do
I never understood people's fixation with cricket. Now I've joined themJonathan Freedland: Sport gives the catharsis, pain-free drama, clarity and resolution that the world outside cannot. And nobody gets hurt
Comment & debate p25
Obsessed with house prices, we ignore the cost of lives spent in shoddy homesLynsey Hanley: Lack of proper regulation in housebuilding is as deranged as in banking. People's needs are coming second to a quick buck
Comment & debate p26
Osborne's crass political cross-dressing
Peter Mandelson: George Osborne has a bit to learn on strategic positioning. Few will buy his claim that the Tories are progressive
If we're back to business as usual it's curtains for LabourLarry Elliott: The crisis was the perfect opportunity to correct postwar economic policy and face down the City's swinging dicks culture


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Video: Tags: young adults
A tag is a word or phrase that helps you find video clips with similar content. View all tags »
Tavis Smiley | Youth Leadership Panel 1: Tuesday, 12/22/09 | PBS
Tavis speaks with students: Kimberly Anyadike, Galen Dodd, and Rocio Ortega. 10:53
Tavis Smiley | Youth Leadership Panel 2: Tuesday, 12/22/09 | PBS
Tavis talks with students: Eduardo Campos, Kate Sim and Cortlan Wickliff. 12:48
PBS NewsHour | Thursday, December 10, 2009 | PBS
Full Program: Wartime President Accepts Peace Prize in Oslo; Old Workers Face New Problems 52:48
Your Life, Your Money | Preview | PBS
Empowers young adults to get their financial life on track and give purpose to every penny. 02:51
New Farmers Chart Their Own Course (#3424)
A life in agriculture is often a thankless job filled with hard work and long hours. But many young people are drawn to the idea of charting their own course. 06:38
New Farmers Take On the Challenge (#3423)
A new generation of farmers works to take over established operations. 07:30
WASHINGTON WEEK | Aug. 22, 2008 Webcast Extra | PBS
Webcast Extra: Denver Edition taking questions from our live audience at the Newman Center for the Performing Arts at the University of Denver. 27:57
TO THE CONTRARY | August 8, 2008 | PBS
New data from the U.S. Census Bureau show young people are behind America's transition to a majority minority nation. 04:47
FRONTLINE | "Young & Restless in China" Clip 3 | PBS (#2614)
Rapper Wang Xiaolei, aka MC Sir, uses his music to express a dark view of China's new boom times. 02:16
Barack Obama On Attracting Young Voters (#3510)
Barack Obama talks about the role of younger voters in his campaign. 01:40
TO THE CONTRARY | May 9, 2008 | PBS
Entertainment news spends more time covering politics. Will this get more young women to vote? 05:17
Web Exclusive - Iowa 2010 - Stopping the Brain Drain (#156)
Further discussions about Iowa's future with Indianola mayor Jerry Kelley and Dr. William Withers, Wartburg College professor. 09:10
Iowa 2010 - Stopping the Young Professionals Brain Drain (Feature) (#156)
The Iowa Journal profiles two young professional groups in Iowa. 04:07
2010 - Is Iowa Meeting the Challenges? (Full Program) (#156)
Full Program: The Iowa Journal looks at the future of Iowa. There are less than two years on the clock before we hit 2010. We'll check on progress of the Iowa 2010 plan commissioned in 2000. We'll also head to... 27:46


text:
Monday, September 15, 2014
Video Surveillance and the Right to Privacy: The Case of Janay Palmer
Last week, I was sitting in a waiting room while awaiting an oil change. CNN was on (too loudly and inescapably for my tastes, but I know my tastes are idiosyncratic). In urgent tones, the anchors repeatedly warned us that they had disturbing and graphic video that we might not want to watch. And then they played it. And then they played it again. They played it at actual speed; they played it in slow motion. They dissected it and discussed it, with experts and authorities, between commercial breaks and digressions into other "news," for the entire time I waited for the mechanics to finish with my car. It took over an hour, but that's another story . . .
The video showed a now-former NFL player hit a woman in an elevator, knocking her unconscious. The woman was his fiancee, Janay Palmer, and she is now his wife. What are we to conclude based on the grainy images that we watch because we can't bring ourselves to look away? My first conclusion is that Janay Palmer would not want us to be watching. My more tentative conclusion would be that every time we watch that video, we add to her humiliation and degradation.
At what point did Ms. Palmer give her consent to be videotaped, and at what point did she give consent to have this videotape used in this manner? Let's assume that the surveillance video had a useful purpose -- policing the premises to create a record in case a crime was committed. Let's also assume that we all are aware that when we are in public spaces, we know that video cameras might be present. If this video tape were shared with the police and used to prosecute a criminal, I think there would be strong arguments that Ms. Palmer gave implicit consent for the use of the surveillance video for such purposes. But how did the tape get to TMZ and then on to CNN? Did somebody profit from trafficking in the market for mass voyeurism?
It may be that we think that her consent is not required. We all know that we can be digitally recorded whenever we appear in public. That's just life in the big city in the 21st century. But perhaps we think that because we suffer from heuristic biases and believe that we and people we care about will never end up being the one being shown degraded and humiliated over and over again on national television and the Internet. Perhaps if we were less blinkered by such biases we would not ask whether Ms. Palmer has a right not to be associated with those grainy elevator-camera images. We would ask whether we have any right to view them.
September 15, 2014 in Commentary, Current Affairs, In the News, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, September 8, 2014
Thorough Discussion of the Contractual Issues in the Salaita Case from Robin Kar
We've posted about Robin Kar's recent legal scholarship here and here. Readers can have a look at Kar's method in action in this post on the Illinois Law Faculty Blog.
In our first post about the Salaita case, we lamented how few posts really wrestled with the contractual (or promissory estoppel) issues in the case. Professor Kar's post is the most detailed investigation of the contractual issues to appear to date. We also queried whether Salaita's potential constitutional claims against the University of Illinois might turn on the question of whether or not he had a contract with that institution, which is also the institution at which Professor Kar (pictured, at right) teaches. Kar notes:
Critics of the Chancellor's decision argue that, even if there was no contract, Salaita's rights to academic freedom vis-à-vis the University of Illinois should apply with equal force at the hiring as at the firing stage.
Professor Kar seems to disagree. He does not rule out entirely the possibility of constitutional and academic freedom claims in the absence of a contract, but he does note that "the existence of a contract should change the nature of the underlying arguments on both sides of this case."
Peofessor Kar's analysis is both passionate, in dealing with an issue that is creating genuine anguish at his institution, and dispassionate, in treating the Salaita case as a forum for the elaboration of his theory of contract law as empowerment. Based on the publicly-available facts, Professor Kar thinks Salaita's contractual claims are quite strong. As he puts it, "If the publicly known facts are all there is to know about this case, then I believe there very likely was a contract in this case, and that it may well have been breached." This is so because (in short), Salaita's offer letter incorporated by reference the American Association of University Professors' (AAUP) principles of academic freedom, and the AAUP interprets those principles to require (at least) warnings hearings before someone in Salaita's position can have his offer letter revoked. At this point, Professor Kar argues, his view of contract as empowerment becomes relevant to the analysis:
The power of the marketplace—in both academic and non-academic contexts—depends on parties' capacities to make commitments that have certain objective elements to them. In this particular case, this means that the condition of Board of Trustee approval gave the Board some authority to refuse Salaita's appointment—but not necessarily the authority it subjectively believes it has. If the Board's unwillingness to approve this appointment reflects an undisclosed and idiosyncratic understanding of its authority, which diverges too sharply from the shared understandings of the national academic community, then there is likely a contract here. And it may well have been breached.
Professor Kar then proceeds to a discussion of the way out for the University of Illinois, which probably would involve a retreat. If the facts are as Professor Kar believes them to be, the Chancellor should "admit that the Salaita decision was in error and state that this matter is—properly speaking—outside of her hands."
I do not disagree with Professor Kar's analysis but I would like to push him on one point that I think is vital in this case and in his theory of empowerment generally. As a normative theory, I find Professor Kar's theory attractive, but I wonder about its applicability to situations of grossly unequal bargaining power, and I believe the Salaita case is such a situation. Professor Kar takes up this issue in earnest at the end of the second part of his work on contract as empowerment On page 73, Professor Kar acknowledges that parties "rarely enter into contracts from perfectly equal bargaining positions" and he notes that, "[i]t would therefore be significantly disempowering if parties were only bound by contracts negotiated in these circumstances."
But parties are routinely bound in circumstances when they have no real bargaining power. In such circumstances, even if Professor Kar is right that contracts law ought to be about empowerment, much of contract law (and this point has been made at great length by Peggy Radin, Nancy Kim, Oren Bar-Gill and others), is currently extremely disempowering for ordinary consumers and even for small businesses when (as in Italian Colors) they have to contract with corporate behemoths.
Professor Kar's assessment of Salaita's contractual claims turns on communal understandings of the contractual obligations that arise in such circumstances:
The University of Illinois is part of a much larger academic community, which extends well beyond the confines of Illinois. Its contractual interactions with other members of this community will thus be subjected to some tests for consistency with national understandings of how these interactions typically work. This includes national understandings about the appropriate relationship between government-appointed entities, like the Board of Trustees, and faculty decisions about hiring at academic institutions that aim to pursue knowledge impartially and in the absence of political influence.
As the conversation that has been taking place on the blogosphere thus far suggests, there may be no national consensus on the subject. Some contracts scholars will agree with Professor Kar; others, like Dave Hoffman, think that Salaita's contractual and promissory estoppel claims are weak, and they are weak precisely because Salaita lacked the bargaining power to protect himself. And if Salaita's case were to go before an adjudicatory body, it will not be decided based on whether contracts ought to be empowering but on whether the already empowered University of Illinois can escape any contractual obligation that might empower Professor Salaita.
September 8, 2014 in Commentary, Contract Profs, Current Affairs, In the News, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)
Monday, August 25, 2014
Some additional thoughts about the Salaita case
As Jeremy Telman previously noted, the unhiring of Steven Salaita has caused quite a stir in academic circles. There was even an article in the Chronicle of Higher Education briefly discussing the contractual issues, which included the arguments made by Prof. Michael Dorf and Prof. David Hoffman. I think they both have good arguments but I tend to think this is a real contract and not an issue of promissory estoppel. The reason I believe this has to do with what constitutes a "reasonable interpretation" under these circumstances. I think both parties intended a contract and a "reasonable person" standing in the shoes of Salaita would have believed there was an offer. The offer was clearly accepted. What about the issue regarding final Board approval? Does that make his belief there was an offer - which he accepted - unreasonable? I don't think so given the norms surrounding this which essentially act as gap fillers and the way the parties acted both before and after the offer was accepted. I think the best interpretation - really, the only reasonable one given the hiring practices in academia - is that the Board approval was a rubber stamp but one that could be withheld if the hired party did something unexpected, like commit a crime. In other words, I think there was an offer that was accepted and that the discretionary authority of the board to approve his appointment was subject to the duty of good faith and fair dealing - i.e. the Board would only withhold approval for good cause. I don't think this was a conditional offer - the language would have to be much more explicit than it seemed to be and to interpret it that way would constitute a forfeiture (which courts don't like) - and yes, I considered whether it could be a condition to the effectiveness of a contract. That question caused me some angst but I still don't think it was given the hiring norms in general, and the way the parties acted.
There was, however, an implied term in the contract that Salaita would not do anything or that no information would come out that would change the nature of the bargain for the university. For example, if it turned out that he didn't really have a PhD or that he plagiarized some of his work, that would be grounds for the Board to refuse to approve his appointment. In that case, the Board could refuse to approve his hiring without breaching its good faith obligation.
The real dispute here is whether Salaita's tweets constituted a breach of that implied term (i.e. did it undermine the bargain that the university thought it was getting?) I think that's really what the disagreement in the academic community is about and why the real contractual issue has to do with interpretation - and the meaning of academic freedom.
August 25, 2014 in Commentary, Current Affairs, Labor Contracts, Miscellaneous | Permalink | Comments (4) | TrackBack (0)
Wednesday, August 13, 2014
Researcher Behind Facebook's Emotions Experiment to Help Design Ethical Guidelines
Today's New York Times features an article aptly titled (in the print version) "Under the Microscope." The article describes researchers' attempts to grapple with the ethical issues relating to projects such as Facebook's experiment on its users, about which we have written previously here and here. According to the article, researchers both at universities and at in-house corporate research departments are collaborating on processes to formulate ethical guidelines that will inform future research that makes use of users' information.
The article states that Facebook has apologized for its emotion experiment, in which it manipulated users' feeds to see if those users' own posts reflected the emotional tone of the posts they were seeing. It's not really clear that Facebook apologized for experimenting on its users. As quoted on NPR, here is what Facebook's Sheryl Sandberg said on behalf of the company:
This was part of ongoing research companies do to test different products, and that was what it was; it was poorly communicated . . . . And for that communication we apologize. We never meant to upset you.
As the Washington Post noted, Sandberg did not apologize for the experiement itself. Seen in its full context, Sandberg's statement is more akin to OKCupid's in-your-face admission that it experiements on its users, about which Nancy Kim posted here.
But the Times article focuses on Cornell University's Jeffrey Hancock, who collaborated with Facebook on the experiment. He seems to have no regrets. For Hancock, researchers' ability to data mine is to his field what the microscope was to chemists. Or, one might think, what the crowbar was to people doing research in the field of breaking and entering. Hancock is now working with people at Microsoft Research and others to lead discussions to help develop ethical guidelines applicable to such research.
The Times quotes Edith Ramirez, Chair of the Federal Trade Commission on the subject. She says:
Consumers should be in the driver's seat when it comes to their data. . . . They don't want to be left in the dark and they don't want to be surprised at how it's used.
By contrast, here is the Times's synopsis of Professor Hancock's views on how the ethical guidelines ought to be developed:
Companies will not willingly participate in anything that limits their ability to innovate quickly, he said, so any process has to be "effective, lightweight, quick and accountable."
If the companies are subject to regulation before they can experiment on their users, it does not really matter whether or not they willngly participate. And the applicable standards have already been established under Institutional Review Board (IRB) rules. Significantly, as reported here in the Washington Post, although Professor Hancock works at Cornell, his participation in the Facebook study was not subject to Cornell's IRB review. In our previous posts, we have expressed our doubt that the Facebook study could survive IRB review (or that it yielded the information that it was supposedly testing for).
The Times article does not indicate that any of the people involved in devising rules for their own regulation have any expertise in the field of ethics. Why is letting them come up with their own set of rules in which they will "willingly participate" any better than expecting the wielders of crowbars to design rules for their safe deployment?
August 13, 2014 in Commentary, In the News, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Wednesday, August 6, 2014
Online Contracts Here and Now
Here is my interview with Jeremy Hobson of NPR's Here and Now on the subject of online contracts.
August 6, 2014 in Commentary, Current Affairs, In the News, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Friday, August 1, 2014
Did Leonard Offer Too Much Money to Pepsi for the Harrier?
Readers of this blog should already be familiar with the famous Harrier jet case in which plaintiff John Leonard attempted to treat a Pepsi commercial as an offer for the sale of a Harrier jet in exchange for 7 million Pepsi points or the equivalent in cash, which came to about $700,000. In Leonard v. Pepsico. (edited version available here), Judge Kimba Wood ruled in Pepsico's favor, finding that the commercial that Leonard mistook for an offer was actually a joke.
We have learned via the Contracts Prof listserv that a Harrier Jet was recently sold at auction for £ 105,800 -- that is under $200,000. In this case, the auctioneer specified that the jet was being sold "for display purposes only and is not currently airworthy." It doesn't even come with any weapons systems. Bummer. Still, although the Pepsi commercial suggests an operational Harrier (there is no indication of weapons capabilities), Leonard's offer of $700,000 actually turns out to be way too high for a non-functional jet. So, if instead of showing a kid landing a jet outside of his school, the commercial had shown the same kid impressing his friends with the grounded jet in his backyard, Judge Wood would have had a harder time construing the ad as a joke.
Since the notice of the jet for auction claims that this is the first time a Harrier has been sold at auction, Pepsico would have had a hard time getting its hands on a jet. Tthat would not have bothered Mr. Leonard, who more likely was interested in the difference in value between a functioning Harrier and the $700,000 he offered. However, if the court were able to discover the actual value of a non-operational jet, it would have awarded Mr. Leonard no damages for the breach.
Hat tip to Eric Goldman and Gary Neustadter.
August 1, 2014 in Commentary, Famous Cases, In the News | Permalink | Comments (0) | TrackBack (0)
Thursday, July 31, 2014
Will Blockchains End the Need for Specific Performance? [File this in: The Future]
An article by Andrew Hinkes at Inside Counsel begins:
Imagine a world where specific performance of contracts is no longer a cause of action because the contracts themselves automatically execute the agreement of the parties. Or where escrow agents are replaced by rule- and software-driven technology. Imagine instantaneous recording of property records, easements and deeds. Imagine a world where an auto owner who is late on his payment will be locked out of his car. While these scenarios may seem to come from a futuristic fantasy world, innovations offered by the Bitcoin 2.0 generation of technology may create a world where these seeming marvels are an every-day occurrence, and technology renders some contract causes of action obsolete.
How could that be? Hinkes explains:
Bitcoin and other virtual currencies are powered by blockchain technology, which maintains and verifies all transactions in that virtual currency through a massive, publically available ledger. The transparency created by the blockchain eliminates the need for trusted third parties, like credit card processors or banks, to take part in these transactions. Because anyone can see the transactions, virtual currency cannot be transferred to more than one party, or "double spent," which is a key feature that preserves the integrity of the blockchain system. This same blockchain technology can be purposed to facilitate, verify and enforce the terms of agreements automatically without the need for human interaction using what are termed "smart contracts."
The blockchain, of course, cannot physically enforce a contract, or actually compel a person or entity to do anything. Instead, the blockchain can be used to enforce certain pre-determined rules that can move an asset from person to person by agreement. Ownership of goods could be associated with a specialized coin, which can be transferred between parties along with payment in a virtual currency system, or in a specialized implementation of blockchain technology.
Hinkes provides an example of how the technology can ensure performance:
Examining a simple real estate transaction can demonstrate how smart contracts could drastically alter the way business is conducted. Presently, Party A and Party B would enter into a contract that requires Party A to pay $200,000.00 to Party B in exchange for Party B agreeing to convey title to Party B's condominium unit to Party A upon receipt of payment. If Party A pays the money, but Party B later refuses to convey title, Party A is required to hire an attorney to seek specific performance of that contract, or to obtain damages. The determination of the outcome will be made by a third party- a judge, jury, or arbitrator.
Using a smart contract, however, avoids the potential for one party to perform while the other refuses or fails to perform. Using a smart contract, Party A and Party B can agree to the same transaction, but structure it differently. In this scenario, Party A will agree to pay $200,000.00 worth of virtual currency to Party B, and Party B will agree to transmit the title to the condominium in a specialized type of coin on the blockchain. When Party A transfers the virtual currency to Party B, this action serves as the triggering event for Party B, which then automatically sends the specialized coin which signifies the title to the condominium at issue to Party A. The transfer is then complete, and Party A's ownership of the condominium is verifiable through a publically available record on the blockchain.
July 31, 2014 in Commentary, E-commerce, In the News | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 29, 2014
Not OKCupid!
First it was Facebook, now it's OKCupid toying with its users who have no idea that they actually consented to being toyed with when they signed up with the service. Like Facebook, they employ a one-two punch -- they use a contract to legitimize their actions and then social shaming to normalize their conduct as a business practice. The rhetoric of contract and consent staves off irate users and deflects blame away from the company and onto the user (you agreed to let them use you in research, you fool! It's your fault - if you had read the privacy policy, you would have known). Here, OkCupid brazenly admits to their dubious tactics with a "we've-got-nothing-to-hide" attitude and then goes a step further by acting like there's something wrong with you if you have a problem with it. In a post on the company's blog proudly proclaiming: "We Experiment on Human Beings!", OkCupid's president writes that "if you use the Internet, you're the subject of hundreds of experiments at any given time, on every site. That's how websites work."
Translation: That's just how it is. Get over it. It's your fault for being so naive - OKStupid?
Not OkCupid.
July 29, 2014 in Commentary | Permalink | Comments (2) | TrackBack (0)
Monday, July 28, 2014
Not Everything Is Arbitrable Says 2-1 Majority of the Fifth Circuit
In 2002, Shirley Douglas opened a checking account with Union Planters Bank. In connection with that account, which she closed in 2003, Ms. Douglas signed a signature card that provided for binding arbitration and delegated the issue of arbitrability to the arbiter.
That bank merged into Regions Bank (Regions) in 2005.
In 2007, Ms. Douglas was injured in a car accident. She alleges that her attorney embezzled her $500,000 settlement, and she sued Regions and another bank at which the attorney maintained accounts. Regions moved to compel arbitration based on Ms. Douglas's agreement with Union Planters Bank. The District Court found that there was no ground for arbitration.
On appeal, in Douglas v. Regions Bank, two judges affirmed, while noting that the District Court had applied the wrong law. While the District Court apparently believed that Regions had never become a party to the arbitration provision at issue, the Circuit Court found that it had, but that the arbitration provision is irrelevant because Ms. Douglas's claims do not relate to her account with Union Planters Bank. As the Court noted:
The mere existence of a delegation provision in the checking account's arbitration agreement, however, cannot possibly bind Douglas to arbitrate gateway questions of arbitrability in all future disputes with the other party, no matter their origin.
In rejecting Regions' argument that the delegation clause in Ms. Douglas arbitration agreement with Union Planters Bank meant that the question of arbitrability had to be sent to an arbiter, the Fifth Circuit adopted the Federal Circuit's position, which is that the issue of arbitrability does not have to be sent to the arbiter when the assertion of arbitrability "wholly groundless."
That seems like a reasonable rule, and dissenting Judge Dennis seemed to agree, except that Judge Dennis thought it impermissible for the Fifth Circuit to adopt the Federal Circuit's reasonable position when the Supreme Court adopted a less reasonable position in Rent-A-Center W. v. Jackson. Indeed, in AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643 (1986), the Supreme Court made clear that when an issue is reserved for the arbiter, courts may not pronounce on the merits of the issue. Thus a court must send the issue of arbitrability to an arbiter even when all are agreed that the arbitration agreement is inapplicable.
As Mr. Bumble might have put it, f the law supposes that the parties' interests are served by sending a claim to arbitration when there is no colorable claim that the parties have agreed to have the claim arbitrated, the law is a ass -- a idiot.
July 28, 2014 in Commentary, Recent Cases | Permalink | Comments (0) | TrackBack (0)
Friday, July 18, 2014
Overzealous or Legitimate Debt Collection Practices
By Myanna Dellinger
A woman owes $20 to Kohl's on a credit card. The debt collector allegedly started to "harass" the woman over the debt, calling her cell phone up to 22 times per week as early as 6 a.m. and occasionally after midnight. What would a reasonable customer do? Probably pay the debt, which the woman admits was only a "measly $20." What did this woman do? Not to pay the small debt, telling the caller that they had "the wrong number," and follow the great American tradition of filing suit, alleging violations of the 1991 Telephone Consumer Protection Act which, among other things, makes it illegal to call cell phones using auto dialers or prerecorded voices without the recipient's consent.
Consumer protection rules also prohibit collection agencies from calling before 8 a.m. and after 9 p.m., calling multiple times during one day, leaving voicemail messages at a work number, or continuing to call a work phone number if told not to.
Last year, Bank of America agreed to pay $32 million to settle claims relating to allegations of illegally using robo-debt collectors. Discover also settled a claim alleging that they violated the rules by calling people's cell phones without their consent. Just recently, a man's recorded 20-minute call to Comcast pleading with their representative to cancel his cable and internet service went viral online.
The legal moral of these stories is that companies are not and should, of course, not be allowed to harass anyone to collect on debt owed to them or refuse to cancel services no longer wanted. However, what about companies such as Kohl's who are presumably owed very large amounts of money although in the form of many small debts? Is it reasonable that customers such as the above can do what she admits doing, simply saying "screw it" to the company and in fact reverse the roles of debtor and creditor by hoping for a settlement via a lawsuit on a questionable background? Surely not.
I once owned a small company and can attest to the difficulty of collecting on debts even with extensive accurate documentation. The only way my debt collecting service or myself were able to collect many outstanding amounts was precisely to make repeat requests and reminders (although, of course, in a professional manner). As a matter of principle, customers should not be able to get away with simply choosing not to pay for services or products they have ordered, even if the outstanding amounts are small. If companies have followed the law, perhaps time has come for them to refuse settling to once again re-establish the roles of debtor and creditor. This, one could hope, would lead irresponsible consumers to live up to their financial obligations, as must the rest of society.
July 18, 2014 in Commentary, Current Affairs, E-commerce, Famous Cases, In the News, True Contracts | Permalink | TrackBack (0)
Tuesday, July 15, 2014
Warning: Burning Gasoline May Kill You
By Myanna Dellinger
The city of Berkeley, California, may become the first in the nation to require that gas stations affix warning stickers to gas pump handles warning consumers of the many recognized dangers of climate change. The stickers would read:
Global Warming Alert! Burning Gasoline Emits CO2
The City of Berkeley Cares About Global Warming
The state of California has determined that global warming caused by CO2 emissions poses a serious threat to the economic well-being, public health, natural resources, and the environment of California. To be part of the solution, go to www.sustainableberkeley.com
Consumers not only in California, but worldwide are familiar with similar warnings about the dangers of tobacco. The idea with the gas pump stickers is to "gently raise awareness" of the greenhouse gas impacts and the fact that consumers have alternatives. In their book "Nudge," Richard Thaler and Cass Sunstein addressed the potential effectiveness of fairly subtly encouraging individual persons to act in societally or personally improved ways instead of using more negative enforcement methods such as telling people what not to do. Gas pump stickers would be an example of such a "nudge."
But is that enough? World scientists have agreed that we must limit temperature increases to approximately 2° C to avoid dangerous climate change. The problem is that we are already headed towards a no less than 5° C increase. To stop this tend, we must reduce greenhouse gas emissions by 80% or more (targets vary somewhat) by 2050. Stickers with nudges are great, but in all likelihood, the world will need a whole lot more than that to reach the goal of curbing potentially catastrophic weather-related calamities.
Of course, the oil and gas industry opposes the Berkeley idea. The Western States Petroleum Association claimsthat the labels would "compel speech in violation of the 1st Amendment" and that "far less restrictive means exist to disseminate this information to the public without imposing onerous restrictions on businesses." Why this type of sticker would, in contrast to, for example, labels on cigarette packaging, be so "onerous" and "restrictive" is not clear. Given the extent of available knowledge of climate change and its potential catastrophic effects on people and our natural environment, the industry is very much behind the curve in hoping for "less restrictive means." More restrictive means than labels on dangerous products are arguably needed. Even more behind the curve is the Association's claim that the information on the stickers is merely "opinion" that should not be "accorded the status of 'fact'". The Berkeley city attorney has vetted the potential ordinance and found the proposed language to be not only sufficiently narrow, but also to have been adopted by California citizens as the official policy of the state.
It seems that instead of facing reality, the oil and gas industry would rather keep consumers in the dark and force them to adopt or continue self-destructive habits. That didn't work in the case of cigarettes and likely will not in this case either. We are a free country and can, within limits, buy and sell what we want to. But there are and should be restrictions. In this case, the "restriction" is actually not one at all; it is simply a matter of publishing facts. Surely, in America in 2014, no one can seriously dispute the desirability of doing that.
The Berkeley City Council is expected to address the issue in September.
July 15, 2014 in Commentary, Current Affairs, In the News, Legislation, Science | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 9, 2014
Aereo Loses in Supreme Court and so do Consumers – for Now
By Myanna Dellinger
Recently, I blogged here on Aereo's attempt to provide inexpensive TV programming to consumers by capturing and rebroadcasting cable TV operators' products without paying the large fees charged by those operators. The technology is complex, but at bottom, Aereo argued that they were not breaking copyright laws because they merely enabled consumers to capture TV that was available over airwaves and via cloud technology anyway.
In the recent narrow 6-3 Supreme Court ruling, the Courts said that Aereo was "substantially similar" to a cable TV company since it sold a service that enabled subscribers to watch copyrighted TV programs shortly after they were broadcast by the cable companies. The Court found that "Aereo performs petitioners' works publicly," which violates the Copyright Act. The fact that Aereo uses slightly different technology than the cable companies does not make a "critical difference," said the Court. Since the ruling, Aereo has suspended its operations and posted a message on its website that calls the Court's outcome "a massive setback to consumers."
Whether or not the Supreme Court is legally right in this case is debatable, but it at least seems to be behind the technological curve. Of course the cable TV companies resisted Aereo's services just as IBM did not predict the need for very many personal computers, Kodak failed to adjust quickly enough to the digital camera craze, music companies initially resisted digital files and online streaming of songs. But if companies want to survive in these technologically advanced times, it clearly does not make sense to resist technological changes. They should embrace not only technology, but also, in a free market, competition so long as, of course, no laws are violated. We also do not use typewriters anymore simply to protect the status quo of the companies that made them.
It is remarkable how much cable companies attempt to resist the fact that many, if not most, of us simply do not have time to watch hundreds of TV stations and thus should not have to buy huge, expensive package solutions. Not one of the traditional cable TV companies seem to consider the business advantage of offering more individualized solutions, which is technologically possible today. Instead, they are willing to waste money and time on resisting change all the way to the Supreme Court, not realizing that the change is coming whether or not they want it.
Surely an innovative company will soon be able to work its way around traditional cable companies' strong position on this market while at the same time observing the Supreme Court's markedly narrow holding. Some have already started doing so. Aereo itself promises that it is only "paus[ing] our operations temporarily as we consult with the court and map out our next steps."
July 9, 2014 in Commentary, Current Affairs, E-commerce, Famous Cases, Film, In the News, Music, Recent Cases, Television, Web/Tech | Permalink | Comments (0) | TrackBack (0)
CNN's Crossfire Almost Takes a Position on Sex Contracts on College Campuses
Friend of the blog, Kenneth Ching, shared this with us.
So I hadn't really thought about Crossfire since Jon Stewart shut them down. It was the pinnacle of Stewart's career thus far.
But I guess it's just hard to keep a terrible idea down when you have 24 hours of time to kill every day.
I don't know what CNN's little segment on sex contracts is supposed to accomplish. I guess it is intended to introduce its audience to one of its contributors, S. E. Cupp No doubt, Ms. Cupp has lots of interesting ideas and is telegenic and all that, but this segment reads like a Ms. America question gone wrong. "Ms. Louisiana, do you think colleges and universities ought to require written assent from both (or all) parties to any sexual act in which a student participates?"
Ms. Cupp starts, because her brand is "smart conservative," by lashing out at a culture that "disarms" students on college campuses. Her claim is that women can't protect themselves with pepper spray because of weapons bans on campuses. Of course, most of those bans do not include defensive weapons and anyway, if a woman used her pepper spary defensively in defiance of such a ban, she would 1) escape an assault and 2) perhaps face reprimand. It's not clear that the disarmament has occurred, nor does Ms. Cupp address the very real possibility that women are safer when men can't carry weapons on campus, but I digress.
Then she seems to complain about resources going to crisis centers and hotlines rather than to rape prevention but she is careful to say that crisis centers and hotlines are a good thing (way to give a balanced perspective, Ms. Louisiana!). Then comes the segue to the University of California's consideration of sex contracts. This is not news. Antioch College did it for years. Even we blogged about the subject two years ago.
What's Cupp's take? The idea is silly, but good for California for at least trying! Alright audience. Ms. Louisiana! Isn't she a great sport?
Cupp actually makes me feel nostalgic for the days when Camille Paglia would not just strike provocative intellectual poses but would actually take provocative intellectual positions on the right. I didn't agree with Paglia, but she expressed her original and outlandish ideas with verve and panache. She challenged her readers to consider their positions and think things anew. If anyone actually watches the new Crossfire, let me know if you see any signs of an ability to do so over there.
July 9, 2014 in Commentary, Television, True Contracts | Permalink | Comments (0) | TrackBack (0)
Monday, July 7, 2014
23andMe's Wrap Contracts
H/T to Eric Goldman for sharing with the list a new case from Judge Lucy Koh of the federal district court of Northern California. Tompkins v. 23andMe provides a detailed analysis of 23andMe's wrap contracts. The case involves the same Terms of Service presented as a hyperlink at the bottom of the website's pages, and then later, post-purchase and at the time of account creation, as a hyperlink that requires a "click" in order to proceed (which I refer to as a "multi-wrap" as it's neither browsewrap nor clickwrap but a little of both). The court says the former presentation lacks notice, but the latter constitutes adequate formation. Eric Goldman provides a detailed analysis of the case here.
Not surprisingly, the Terms contained a unilateral modification clause which was briefly discussed in the context of substantive unconscionability. It was not, however, raised as a defense to formation, i.e. to argue that the promises made by 23andme were illusory.
July 7, 2014 in Commentary, E-commerce, Famous Cases, Miscellaneous, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Eighth Circuit Upholds Constitutionality of Civility Clause in Termination of Professor
Christopher Keating was a tenure-track professor of physics at the University of South Dakota. He did not get along with the only other full-time physics professor at the university. Keating filed a grievance against her with their department head. She responded with an accusation of sexual harrassment against Keating. After two heated exchanges with Keating, the department head rejected Keating's claims. Some time later, having been reprimanded for not seeking approval from either his colleague or the department chair for something that required such approval, Keating explained in an e-mail that he would not seek approval from his colleague because "she is a lieing [sic], back-stabbing sneak."
After that academic year ended, Keating was informed that his employment contract would not be renewed, because his e-mail violated Appendix G to the university's employment policy, which reads:
Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner. They must treat their colleagues, staff, students and visitors with respect, and they must comport themselves at all times, even when expressing disagreement or when engaging in pedagogical exercises, in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance.
Keating challenged his termination, alleging that the "civility clause" was unconstitutionally vague in violation of the U.S. Constitution's Due Process Clause. The District Court granted Keating the declaratory relief he sought. In Keating v. University of South Dakota, the Eighth Circuit reversed.
In the public employment context, the Eighth Circuit noted, the standard for vagueness is not as stringent as in the criminal context. "Standards are not void for vagueness as long as ordinary persons using ordinary common sense would be notified that certain conduct will put them at risk of discharge." The Eighth Circuit found that the civility clause was neither facially void for vagueness nor impermissibly vague as applied to Keating. The Court read the offending e-mail in the broader context of Keating's refusal to work with his colleagues or to even communicate with his immediate superiors. So seen, the Court had little difficulty finding that Keating had failed to comport himself in ways that "preserve and strengthen willingness to cooperate."
Professor Arthur Leonard, of New York Law School (pictured), posted a link to this case and queried whether the civility clause could pass contractual (as opposed to constitutional) tests for vagueness. One wonders what sort of evidence either party would have to put forward to persuade the court as to the meaning of "civil" in this context. Those of us in the academy can likely come up with plenty of examples of interactions with colleagues in which one or more university employees can be said to have acted in ways that were not civil. Still, it is rare to see someone put in writing his principled opposition to cooperation and communication with his one disciplinary colleague and his department chair. Could Keating show contractual vagueness by pointing to rampant and unpunished incivility on the part of other university employees, or does the university have discretion to terminate any given professor who, in its determination, crossed the line of incivility?
In short, if universities are free to point to a civility clause whenever they want to terminate a professor, tenure means nothing. Keating was not yet tenured, but as to the constitutional and contractual issues, I don't think tenure would change the outcome of the case. On the other hand, a civility clause might be a useful tool that university administrators can use in extreme cases when a faculty member -- even a tenured faculty member -- is so unprofessional as to degrade the working environment for his or her colleagues. In this case, the fact that Keating called his colleague a lying, back-stabbing sneak" may be less significant than his statement that he would not trust his department chair or communicate with the university's only other full-time physics professor.
July 7, 2014 in Commentary, Contract Profs, Recent Cases | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 2, 2014
Move over Uber; Make Room for BlaBlaCar
Today's New York Times features a story about a new ride-sharing service called BlaBlaCar. The idea is simple -- it's just an internet ride board. Riders share with drivers the cost of travel between two cities. Drivers are forbidden from profiting from the ride share; BlaBlaCar takes a 12% cut. Cost savings over common carriers are significant, ranging according to the NY Times from 33% to 67%
The gimmick is the BlaBla part. Riders can indicate how much they want to talk en route. If you mark Bla, you want to ride in silence (or perhaps you want everyone to know that they can talk all they want but you will be hooked in to your iPod). If you mark BlaBlaBla, other riders (and the driver) are on notice that you will not shut up for six straight hours.
I don't think this would work for me. It's a question of etiquette and signaling. This might be useful if one could be more specific: e.g., BlaBla#WorldCup or BlaBlaBla#Kardashians or BlaBlaBla#MyElderlyMother'sHealthProblemsandMyRecentBreak-up would be useful to know in advance. If I were being honest, I would proclaim BlaBlaBla#HansKelsen, but that would guarantee me a train ticket. I might strategize and put Bla, because it seems more likely than not that I would not find all that much in common with my fellow passengers. But what if they turn out to be interesting? Can I BlaBlaBla, if I promised only Bla? Then, the next time I use BlaBlaCar, I might regret my misanthropy and commit to BlaBlaBla. Would I be a jerk if, after half an hour of conversations about pop stars or the best gear for rock climbing, I pulled out my iPod?
Of course, the odds are that most users of BlaBlaCar are young and interesting (to me), but I am old and boring (to them). So I should put BlaBlaBla because I am interested in hearing what 20- or 30-somethings are doing these days as they commute between European cities, but I would advise them to Bla me, because they likely do not want to hear about Hans Kelsen. This is based on my recent visit with my niece and three nephews whose BlaBlaBla fascinated me (when I could follow it) but who found my Bla, well, blah, or even bleh, but certainly nothing above meh.
But the question of legal liabilities does nag. BlaBlaCar seems rather blithe about the issues. The driver's insurance covers the possibility of injuries to passengers, and women who are wary of sharing cars with strange men can opt to ride only with other women. As for the rest, riders can rely on reviews of drivers and steer away from those who seem sketchy. This is all certainly an improvement over the level of risks assumed by, say, hitchhikers.
BlaBlaCar's terms of service put passengers on notice that the site cannot guarantee that they will be insured:
However BlaBlaCar gives no warranty or assurance in this regard and it is the Driver's responsibility to verify that their insurance provides adequate cover.
As for other concerns, BlaBlaCar attempts to cover them under its Good Conduct Charter.
July 2, 2014 in Commentary, Travel, True Contracts, Weblogs | Permalink | Comments (0) | TrackBack (0)
Thursday, June 26, 2014
D-lightful Student Gets Litigious
Thanks to Miriam Cherry (left) for sharing this one:
I love this fact pattern: as reported in the National Law Journal, a student who received a D in contracts is suing the law school he attended, as well as his contracts professor, claiming that the professor deviated from the syllabus by counting quizzes towards the final grade. He claims $100,000 in harm because the D in contracts resulted in his suspension from the law school. He could not transfer to a different law school because he was ineligible for a certificate of good standing.
The case is a cautionary tale. It appears that the syllabus indicated that the quizzes would be optional. The professor then announced in class that the quizzes would actually count. The plaintiff claims to have been uanaware of the change or at least adversely affected by it. I say it is a cautionary tale because I sometimes make changes to my syllabus, usually in response to student feedback. I make sure to e-mail all students to make certain that everyone is aware of the changes and I obsessively remind students of the changes because I worry about precisely what happened here. It may well be that the defendant contracts prof did the same, although the National Law Journal article states that the change was evidenced by the handwritten notes of another student.
There is an interesting exchange on the merits of the case in the comments to the ABA Journal article on this subject. Apparently, there is some case law stating that a syllabus is a contract. For the most part, I think such a rule would benefit instructors. No student could complain about my attendance or no-technology policies because I could tell them (doing my best Comcast imitation) that by continuing to attend my course, they had agreed to my terms. But many of the commentators think that written contracts can never be orally modified. I don't think a syllabus is a contract because I don't think there are parties to a syllabus and I don't think there is intent to enter into legal relations. Things might be different if the syllabus identified itself as a contract and informed students of the manner of acceptance of its terms.
Friend of the blog, Peter Linzer (right), chimes in (comment #13) and succinctly dismisses this notion that a contract not within the Statute of Frauds cannot be orally modified. In any case, he thinks the claim is best understood as sounding in promissory estoppel, and plaintiff's claim fails because, in short, he cannot claim to have reasonably relied on a promise just because he missed class or did not pay attention when that promise was retracted.
June 26, 2014 in Commentary, Contract Profs, In the News, Recent Cases, Teaching | Permalink | Comments (1) | TrackBack (0)
Wednesday, June 25, 2014
Posner Sides with Donald Trump Upholding Dismissal of Suit by 87-Year-Old Woman
In 2006, Jacqueline Goldberg signed an agreement* to purchase two hotel condominium units in Trump Tower Chicago, a 92-story building in downtown Chicago that comprises residential condo units, hotel condo units and all of the amenities one expects to find in a hotel (pictured at left). Some of these amenities are called "common elements" in which each individual purchaser of the condo units has rights. But the agreement into which Ms. Goldberg entered included a "change clause" that permitted the Trump Organizations to modify those rights with either the notice to or approval by the purchasers. Ms. Goldberg attempted to negotiate for a return of her deposit if she disapproved of the changes, but the Trump Organizations refused. Three such changes took place before Ms. Goldberg signed the agreement.
But then came the fourth change, to which Ms. Goldberg strenuously objected. She refused to close on the deal and demanded a return of her $516,000 deposit. The Trump Organizations placed her deposit in escrow, and she sued, alleging breach of contract and other causes of action. Some of her claims were dismissed, some were tried before a jury, and some were tried before a judge. Both the jury and the judge found for the Defendants. Ms. Goldberg appealed to the Seventh Circuit, resulting in Judge Posner's opinion upholding the District Court in Goldberg v. 401 North Wabash Venture LLC.
Ms. Goldberg's common law allegations basically came down to a claim that the Trump Organizations had engaged in a bait and switch -- she had bought the condos as an investment and had been led to believe that they would have a certain value. After the changes, that value was diminished. Judge Posner rejected this characterization of the agreement, since Ms. Goldberg, "a wealthy and financially sophisticated Chicago businesswoman," was aware of the change clause and had even attempted to have it removed. On the facts, there was no deception. She took a risk when she entered into the agreement with the change clause included.
Of more interest to us, Judge Posner concluded that Ms. Goldberg's breach of contract claim collapsed once her "bait-and-switch" theory was eliminated. While there is a duty of good faith, Judge Posner reminded Ms. Goldberg that it applies only in the performance of a contract, not in its formation. There follows an interesting discussion of law and equity. Ms. Goldberg challenged the trial judge's decision to decide on her breach of contract claim rather than submit the question to the jury. Judge Posner noted that rescission is an equitable, not a legal, remedy, and under both Illinois and Federal law, there is no right to a jury trial on an equitable claim.
One could imagine that Ms. Goldberg might have argued that the Trump Organizations breached the duty of good faith and fair dealing in the performance of the contract. After all, the bait might have occurred in the formation of the contract, but the switch occurred during performance. Ms. Goldberg would then have to show that while some changes were to be expected under the change clause, the actual changes that the Trump Organizations engaged in were not in the contemplation of the parties at the time they entered into the contract and undermined the original agreement (or something like that). It's not clear that Ms. Goldberg could have made such a showing. It seems that the Trump Organizations had good reasons for the changes that were made. In any case, if she were making that sort of argument, I think Ms. Goldberg would not have sought rescission of the agreement but enforcement of the original agreement without the changes.
Finally, one might see this as another example of corporations getting to impose unreasonable terms on a consumer. Here, Judge Posner has very little sympathy for the plaintiff, despite her advanced age, because of her sophistication. But the facts make clear that even she, who bought two condos as an investment, had no bargaining power as to the terms at issue. Posner undoubtedly applied the law correctly, but just think, if a person with Ms. Goldberg's means has no bargaining power as to one-sided and potentially unreasonable terms, what chance do the rest of us have?
For a different take on the same case, check out my law school's student law blog, the VALPOLAWBLOG, where you can find this post by student Faith Alvarez.
*Following Judge Posner's example, we simplify things by making it one agreement and ignore the complexities of the various Trump entities by referring to those entities collectively as the Trump Organizations.
June 25, 2014 in Commentary, Recent Cases, Weblogs | Permalink | Comments (0) | TrackBack (0)
Thursday, June 19, 2014
Congrats to UC Irvine on a Great Consumer Class Action Outcome
This week, I received notice that I am a member of the plaintiff class in Schlesinger, et. al. v. Ticketmaster. After ten years of litigation, the parties' proposed settlement is pending before the Superior Court in Los Angeles. If you purchased tickets through Ticketmaster between 1999 and 2013, you most likely are also a part of the class. The case alleges (in short) that Ticketmaster overcharged customers for fees. Ticketmaster claims that its processing fees were necessary for it to recover its costs, while plaintiffs allege that those fees were actually a means of generating profits for Ticketmaster. Shocking, no?
The terms of the settlement are actually pretty sweet. Class members will get a discount code that they can use on the Ticketmaster website entitling them to $2.25 off future Ticketmaster transactions. Class members get to use the code up to 17 times in the next four years. The value of the discount codes is about $386 million, and if the money is not used up, class members will be eligible for free ticket to Live Nation events. Ticketmaster's website will also now include disclosures about how it profits from its fees.
But then there's THIS:
Ticketmaster will pay $3 million to the University of California, Irvine School of Law to be used for the benefit of consumers like yourself. In addition to the benefits set forth above, Ticketmaster will also make a $3 million cy pres cash payment to the University of California, Irvine School of Law's Consumer Law Clinic. The money will establish the Consumer Law Clinic as a permanent clinic, and it will be used to: (i) provide direct legal representations for clients with consumer law claims, (ii) advocate for consumers through policy work, and (iii) provide free educational tools (including online tutorials) to help consumers understand their rights, responsibilities, and remedies for online purchases.
The settlement strikes me as masterly. It gets a beneift to people who, if the allegations are true, were actually harmed by the alleged conduct, but it does so in a way that will generate more business for Ticketmaster going forward, and Ticketmaster may value that new business stream at around $386 million in any case. Ticketmaster has had to make changes to its website to eliminate the risk of deception going forward. And the world gets a consumer protection clinic funded the sort of business against whom consumers need to be protected.
Congratulations to the attorneys who came up with this settlement and to the UC Irvine Conumser Protection Clinic on its new endowment.
June 19, 2014 in Commentary, In the News, Law Schools, True Contracts | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 17, 2014
Hardball Tactics by 7-Eleven or Franchisee Fraud?
Over the past few years, more than a dozen 7-Eleven franchisees have sued the company claiming that it operated in bad faith by untruthfully accusing the franchisees of fraud and by strong-arming them to "voluntarily" surrender their franchise contracts based on such false accusations. The franchisees claim that the tactic, which is known in the franchise community as "churning," is aimed at retaking stores in up-and-coming areas where the franchise can now be sold at a higher contractual value or from franchisees who are too outspoken against the company.
Franchisees split their gross profits evenly with 7-Eleven. The chain claims that it has hours of in-store covert footage showing franchisees voiding legitimate sales and not registering others to keep gross sales lower than the true numbers in order to pay smaller profits to 7-Eleven. Similarly, the chain uses undercover shoppers to spot-check the recording of transactions. This level of surveillance is uncommon among similar companies, says franchise attorney Barry Kurtz. A former corporate investigations supervisor for 7-Eleven calls the practice "predatory."
Japanese-owned 7-Eleven asserts that a few of their franchisees are stealing and falsifying the sales records, thus depriving the company of its full share of the store profits. It maintains in court records that its investigations are thorough and lawful. It also complains that groups of franchisees often group together to create a "domino of lawsuits, pressuring the company to settle."
It seems that a company installing hidden cameras to monitor not customers for safety reasons, but one's own franchisees raises questions of whether or not these people had a reasonable expectation of privacy in their work-related efforts under these circumstances. If not, the issue certainly raises an ethical issue: once one has paid not insignificant franchise fees and continue to share profits with the franchisor at no less than 50-50%, should one really also expect to be monitored in hidden ways by one's business partner, as the case is here? That has an inappropriate Big-Brother-is-Watching-You feel to it.
In the 1982 hit Dire Straits song Industrial Disease, Mark Knopfler sings that "Two men say they're, Jesus one of them must be wrong." When it comes to this case, the accusations of "bogus" reasons asserted by the franchisees and returned fire in the form of theft accusations by 7-Eleven, somebody must not follow the contractual duty of good faith and fair dealings.
This case seems thus to be one that could appropriately be settled… oh, wait, the company apparently perceives that to be inappropriate pressure. Perhaps a fact finder will, then, have to resolve this case of mutual mud-slinging. In the meantime, 7-Eleven prides its "good, hardworking, independent franchisees" of being the "backbone of the 7-Eleven brand." That is, until the company itself deems that not to be the case anymore, at which point in time it imposes a $100,000 "penalty" on those of its franchisees who do not volunteer to sign away their stores. The company does not reveal how it imagines that its hardworking, but probably not highly profitable, franchisees will be able to hand over $100,000 to a company to avoid further trouble.
June 17, 2014 in Commentary, Food and Drink, In the News, Labor Contracts, True Contracts | Permalink | Comments (1) | TrackBack (0)


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Sterling Silver Grapes Atop of a Base
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This elegantly crafted piece features a grape cluster atop of a traditional base. This sterling silver artwork shows great detail on each part from the base to the grapevine. Read more
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A beautiful and smooth sterling silver base supports the detailed and exquisitely detailed grape cluster above. The great detail includes the carefully etched lines of each individual leaf on the grapevine. The simple beauty and elegance of the set makes sure that this item will be a great fit atop any dining room table or in any kitchen.
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