December 24, 2008

2008 Top Five List

It seems every media outlet and blogger is trotting out a top ten list for 2008. The “Top Ten News Stories of 2008.” The "Top Ten Celebrity Meltdowns of 2008.” Even the "Top Ten Douchebags of 2008."

The Alaska Law Blog has to get in on this action. But there is no way I have the time to put together a list with ten things on it. So I’ve pared it back to just five entries. Hey, you get what you pay for. In this case, you only paid for a half-assed top ten list and that is exactly what you’re getting.

So, here are the top five law-related items of riveting interest for 2008:

No. 5: A contributor to the Alaska Law Blog provides weekly updates on Alaska Supreme Court decisions. Except that it turns out the weekly updates actually come out maybe once or twice a year. (You didn’t think I was going to make a top five list and leave us off of it, did you?)

No. 4: Administrative Law Judge Roy Pearson sues his local dry cleaner for $67 million because they lost a pair of his pants. Alas, Judge Pearson did not prevail on his claim that the sign “Satisfaction Guaranteed” meant the dry cleaner had to pay him whatever he asked for the lost pants. The court said “Satisfaction Guaranteed” established a reasonable man standard, not a subjective standard. (Where have we read that before?)

This news item could be more appropriately titled: “The Judge Is An Ass, Or Does This Lawsuit Make My Butt Look Big?” There was a lot of testimony at trial about Judge Pearson’s pants having three elastic waistband inserts sewn into them.

learnedhand.jpgNo. 3: Know your Learned Foote from your Learned Hand. This WSJ Blog story from earlier this month just warmed the cockles of my wizened heart. Some years back a guy named Fred Foote went to Harvard Law School. In Torts class one day they discussed a decision by New York Judge Learned Hand. Fred was so impressed that right then and there he decided to name his first born son “Learned” after the judge. Many years later, despite having plenty of time to sober up, Fred followed through on this vow. Fred’s son, Learned Foote, is now an undergraduate student at Columbia University, but young Learned is being coy about whether he’ll go on to law school.

No. 2: The U.S. Supreme Court does not appoint the next President. In some countries, the elections are rigged and the results are pre-ordained. Soviet satellites, banana republics, and African dictatorships all have had the benefit of free and open elections, as long as the vote of the people did not really count. We should be grateful that the U.S. is not one of those countries, . . . or at least it has not been one since the last change of power in Washington.

We can only hope that the Court has learned from past mistakes. This year the Court actually had the chance to take a case seeking to overturn Barack Obama's election. The lawsuit alleged Obama wasn't a natural-born citizen because his father was a Kenyan, which only made him half-American. In contrast, the paintiff who brought the case was a full natural-born American, yet still seemingly a half-wit. The Court declined to accept the case.

No. 1: Mrs. Palin went to Washington. Whether you think Governor Sarah Palin is the second coming of Ronald Reagan or Dan Quayle, you gotta admit she’s good for lawyers. We had a late summer blitzkrieg of lawsuits and administrative proceedings over Troopergate. These more or less boiled to do how much Sarah was pulling the strings to control her husband Todd. Two respected members of the Anchorage bar reached exactly opposite conclusions on the matter. All of this was fine. Except then they screwed up by not hiring a third lawyer to break the deadlock, which it seems to me is what you want to have happen when full employment for lawyers is the goal.

As it was, they left the whole thing as a tie. This gave the affair the flavor of a stylized Kabuki theater production. All fancy dress, prancing around, and a screeching soundtrack, with the actual plot a secondary consideration.

December 11, 2008

More Limitation Of Liability And Tribal Sovereign Immunity

This post is a follow-up to a couple of prior postings. I realize this makes it look like I lack creativity since I’m not saying anything new. But I can’t help it. The fascist running dog who is the Virtual Managing Editor of the has insisted that I do more linking back to prior blog postings. He says this is necessary for “search engine optimization.” I don’t even know what that means. Goofy legal stuff -- like maiden rents or the fertile octogenarian -- I understand. Website technospeak, I don’t get.

In any event, updating of a couple of earlier blog postings is my attempt at keeping the e-tyrant at bay.

On the first of October, I wrote about limitation of liability clauses in this post. I ran into a problem with one of these horrid clauses a week or two ago and had to forcibly cut its heart out. In the process, though, I found a 2008 Colorado case that I think illustrates the points I was making in the earlier post.

In the Colorado case, a retail merchandise distributor, Core-Mark, had a large warehouse where it stored inventory. Core-Mark entered into a contract with a security company, Sonitrol, to install and monitor an alarm system in the warehouse. The alarm system utilized sound detectors. If sound over a certain level was detected, the system recorded it and alerted a central monitoring facility. The operators at the central monitoring facility were then supposed to listen in live to determine if anything underhanded was afoot and call the authorities if necessary.

521402_burn_baby_burn.jpgOne night three miscreants broke into Core-Mark’s warehouse. They spent hours inside, making a heckuva racket, looting the place. The alarm company’s sound detectors picked it all up and repeatedly alerted the central monitoring facility. The operators there (who must have been busy updating their blogs) just kept turning the alarm off. When the burglars finally left they set the warehouse on fire. The alarm company never called the police or the fire department. The warehouse and everything in it burned to the ground. The total loss amounted to about $20 million.

Core-Mark sued the alarm company since – Gee! – Sonitrol was hired to protect the warehouse and did not actually do it. Sonitrol pulled the “can’t touch this” dance, pointing to the limitation of liability clause in its contract. The clause said Sonitrol’s “liability shall be limited to a sum equal to the total of one-half year’s monitoring payments, or five hundred dollars ($500) whichever is less.” So Sonitrol argued that it was A-OK to pay Core-Mark a grand total of $500 for its loss.

The trial court judge -- who was apparently a platinum level member of the Adam Smith fan club -- accepted the alarm company’s position. Core-Mark appealed and the Colorado Court of Appeals reversed. The appellate court paid lip service to freedom of contract but dug around in the dusty corners of the law library to find a restriction that applied. Judge Ney’s opinion said it was against public policy (in Colorado, anyway) to have a contract provision that exonerated a party from its own “willful and wanton” conduct. So the appellate court sent the case back – some six years after the fire occurred and about five years after the lawsuit started -- for a jury trial on whether Sonitrol’s actions were “willful and wanton.”

(By the way, isn’t “Ney” just a great name for a judge, especially if Monty Python were the outfit doing the judicial appointments? “We are the judges who say NEY.” )

The Core-Mark case demonstrates my original point. You can put these things in contracts but you better not count on them as always covering your southern quadrant. The case also points up the reason I detest these clauses. I mean, who wants to hire a burglar alarm company who says we can’t really be responsible for calling the cops when the burglars break in? You’re better off doing business with someone who will actually stand behind their promises. Or just putting the fake "Protected By" stickers on the windows and doors.

One other follow-up note I need to squeeze in. After writing about tribal sovereign immunity in this post a couple weeks back, I found that some people were thinking I was referring to ANCSA corporations. (OK, OK, I only know of this one guy who actually got confused.) ANCSA corporations are formed under state law and do not get the benefit of sovereign immunity. I was talking about federally recognized Indian tribes and the entities that the tribes set up as authorized under federal Indian law. ANCSA corporations and tribes are different organizations, although the shareholders/members of the two overlap.

Hey, it’s an easy mistake to make. As one of my esteemed colleagues is fond of saying: “The law is tricky she-it.”

December 5, 2008

Shameless Self-Promotion

To tell the truth, I don’t want to do this. I’m being forced into it against my will. The duress I’m under is not quite as bad as the classic National Lampoon cover where they threatened to kill the dog if you didn’t buy the magazine (I bought one). But it’s along the same lines.

Lampoon.jpgYou see, I’ve gotten this directive from the Virtual Managing Editor of the Alaska Law Blog that I need to post an entry of shameless self-promotion. Honestly, this cuts against the grain for me, what with my humble, Opie-Andy-Aunt Bee Midwestern upbringing and all that. But a directive from the Big Desk is not to be ignored.

(This puts me in mind of the time when I was a cub reporter on the Indianapolis Star, way, way back in the Plasticine Era. I was brand new, learning the ropes on the City Desk. One day the police were in a stand off with some stressed-out citizen with a gun. The City Editor had me run out to the scene and pick up exposed film from one of the photographers there. I had just got back to the City Desk from this errand when it came up on 6 p.m., the normal quitting time. The City Editor, who was an urbane, educated man and generally very calm fellow, looked at me with a slight grin on his face and said, “Well, you had better get back out there.” All the assistant city editors, who never seemed to like me much, looked up from what they were doing with what I took to be some sort of anticipation.

I thought it was a joke, a ritual hazing of the new kid. So I said: “Ha, Ha! Right! I’ll see you all tomorrow.” I picked up my jacket to leave. The City Editor fired back a look at me that let me know he was not kidding around. This was breaking news and -- By God! – you, mere pipsqueak youth, shall do my bidding no matter what hour of the day or night it might be! It was a classic City Editor sort of thing, the kind of look you’d expect from J. Jonah Jameson of the Daily Bugle. I mean, his gaze was so searing that I just about spontaneously combusted. “OK, then,” I stammered. “I’ll just get back out there.”

So, I learned to heed any directives from the Big Desk, and this has stuck with me ever since the Piezoelectric Epoch.)

Anyway, what I need to say is that the Alaska Law Blog has received its first notice in the mainstream media. Well, perhaps mainstream media is too strong a term, since what I’m actually talking about is the Anchorage Press. But it’s still Old World media, printed on actual newsprint and available in news boxes around town.

And, of course, the “notice” the blog received did not really have anything to do with the law. Rather, the Press piece was on the ghost bike in Anchorage that I wrote about a couple of weeks back. Nevertheless, there is a mention of the Alaska Law Blog in the article so we’re going to claim this as a full 10 seconds of the 15 minutes of fame to which we are entitled. (Along these same lines, we are hopeful of garnering a mention of the blog next month in the PennySaver.)

You can read the Anchorage Press piece here. My favorite part of the article is where the reporter notes that “Jerome Juday . . usually writes in relatively plain English” about law-related topics. I’m practically blushing about this “plain English” compliment since I don’t think there’s higher praise than this for a humble business lawyer. You know, that is, relatively speaking.

(I also have to confess that when the reporter called me up about the story, I was leery. I thought he wanted to try to sell me a subscription to the paper. It took some minutes before I remembered that the Anchorage Press is free.)

Oh, and one more item of shameless self-promotion that I am compelled to slip in here. Your humble servant has once again been named in the Best Lawyers in America in the category of Corporate Law. The letter I got says:

For over a quarter of a century, Best Lawyers has been regarded – by both the profession and the public – as the definitive guide to legal excellence in the United States. Selection to Best Lawyers is based on an exhaustive and rigorous peer-review survey comprising more than 2.5 million confidential evaluations by the top attorneys in the country. Because no fee or purchase is required, being listed in Best Lawyers is considered a singular honor.

Gaaw-aaw-ly, Sheriff Taylor, that’s heady stuff! I’m not sure how all this fits with just being a Regular Joe who writes blog posts using phrases like “federal gummint” or “Nanny-Nanny-Boo-Boo.” But there you have it.