Thicker Than Blood

About five years ago, my brothers, Aaron and Jake, and I bought a box of modeling clay, taped a sheet to the wall in my basement, set up some Home Depot halogen lighting, and went to work producing our first ever claymation movie. I shot the whole thing with my Canon PowerShot S40, taking over 1,000 stills and then editing them all together in typical stop-motion style.

It is based on a couple of childhood incidents with my brothers and I in our family truck with my dad and his sometimes short fuse. We gave it to him as a Christmas present. We aren't creative geniuses by any stretch, but here is what we came up with.

I got my finger on the pulse of...

...technology. Those of my faithful readers who will recall the article I posted on phantom tail bone vibrations will find this article familiar:

From the Seattle Times

Many mobile-phone addicts and BlackBerry junkies report feeling vibrations when there are none, or feeling as if they're wearing a cellphone when they're not.

...

Research in the area is scant, but theories abound about the phenomenon, which has been termed "ringxiety" or "fauxcellarm."

You might also be utterly impressed at how ahead of the times I am in predicting tech crazes. When the day comes that all anyone talks about is their phantom cellphone vibrations, just keep in mind that you heard it from me first...

Thanks to Jon Anderton for the heads up on this article.

A funny thing happened... in contracts class. (or, "8 ways to ruin a good joke")

As a matter of general rule, Contracts class is never the source of anything funny to blog about. ("well, sir, your alleged contract has a meeting of the minds and proper acceptance but... NO CONSIDERATION!" Hah, hah, hee, hee, etc...) However, we did stumble upon one gem in this morning's class that may make you snicker or guffaw, or maybe just produce a huff or scoff. (In either case I will count my blog as successful.)

So, here's the case:

Leonard v. Pepsico, Inc., 88 F. Supp. 2d 116 (S.D. N.Y. 1999)

Essentially, Pepsi launches an ad campaign providing "pepsi points" as an incentive to buy more of their product. By purchasing their drinks you earn points that may be redeemed for merchandise from a catalog. They televised an advertisement to that effect, illustrating, among other things, the variety of prizes that can be claimed by pepsi points. You can view the ad here. (Please do, or the rest of the blog will make no sense.)

Pepsi Points Commercial

So, you probably saw this coming (particularly if you first read the Wikipedia article above), but someone (aka "Leonard") actually set about to earn 7,000,000 points to claim the AV-8 Harrier II jump jet shown at the end of the ad. (There is a discrepancy between the case and the ad as to how many points were actually required, the case indicating 7,000,000 and the ad 700,000,000. Maybe there were two ads. Let's assume 7,000,000 is accurate.) Well, he realized he couldn't acquire all those points by purchasing products and decided to instead follow the advertised option of "buying" any points you are short for a particular prize by sending in a check for the extra points at a rate of $0.10 per point. Per the rules of the contest, Leonard sent in his 15 pepsi points along with a check for $700,008.50 ($10 for shipping and handling plus the $699,991.50 to buy 6,999,915 points) to Pepsi to claim his jet. They obviously didn't give him his jet, he sued, he lost, end of story.

Now, this case is probably funny in and of itself, just on its merits. But I found a number of juicy, funny tidbits in the actual details of the case.

(1) Here is a quote from the judicial decision (written by the deciding judge, for those of you not a lawyer or in law school):

Inspired by this commercial, plaintiff set out to obtain a Harrier Jet. Plaintiff explains that he is "typical of the 'Pepsi Generation' . . . he is young, has an adventurous spirit, and the notion of obtaining a Harrier Jet appealed to him enormously."

Now, I think it was unnecessary to include this fact in the decision. Clearly both parties would be willing to stipulate that the "notion of obtaining" a fighter jet is appealing to just about anyone.

(2) Speaking of unnecessary information, in the text of the decision depicting the content of the advertisement we read:

Finally, the Harrier Jet swings into view and lands by the side of the school building, next to a bicycle rack. Several students run for cover, and the velocity of the wind strips one hapless faculty member down to his underwear. While the faculty member is being deprived of his dignity, the voiceover announces: "Now the more Pepsi you drink, the more great stuff you're gonna get."

Does the judge really need to go into this much detail? I almost think this judge has some deep-seeded issues that were left unresolved from his former days as a high school teacher. I mean, we get it that it is inappropriate for teenage kids these days to flaunt their jet fighter planes at the expense of humiliated teachers, but get over it and move on.

(2) Another excerpt:

Although plaintiff initially set out to collect 7,000,000 Pepsi Points by consuming Pepsi products, it soon became clear to him that he "would not be able to buy (let alone drink) enough Pepsi to collect the necessary Pepsi Points fast enough." (Affidavit of John D.R. Leonard, Mar. 30, 1999 ("Leonard Aff."), P 5.)

OK... HOW SOON??? I don't recall the exact number of points you got from each standard bottle of Pepsi, but any number of points short of 100 (I actually do know you only get 1 point per drink, by the way) would make this effort fruitless within a reasonable period of time, methinks.

(3) Continuing on...

Reevaluating his strategy, plaintiff "focused for the first time on the packaging materials in the Pepsi Stuff promotion," and realized that buying Pepsi Points would be a more promising option. Through acquaintances, plaintiff ultimately raised about $ 700,000.

Why can't I have these kinds of "acquaintances"? "Hey, bro, what's up?" "Not much, how's that fighter jet goal going?" "Not great, actually. I figured out that I would have to consume more Pepsi than is actually produced by the company in a calendar year to earn enough points. But I am now taking donations!" "Oh, hey, well, good luck with that. And put me down for... hmmm... how about a hundred grand?" "Cool, thanks." "No prob. See you around."

(4)And further...

At the bottom of the Order Form, plaintiff wrote in "1 Harrier Jet" in the "Item" column and "7,000,000" in the "Total Points" column. In a letter accompanying his submission, plaintiff stated that the check was to purchase additional Pepsi Points "expressly for obtaining a new Harrier jet as advertised in your Pepsi Stuff commercial."

(No comment required...)

(5) Here is the letter Pepsi sent to the guy rejecting his claim:

The item that you have requested is not part of the Pepsi Stuff collection. It is not included in the catalogue or on the order form, and only catalogue merchandise can be redeemed under this program. The Harrier jet in the Pepsi commercial is fanciful and is simply included to create a humorous and entertaining ad. We apologize for any misunderstanding or confusion that you may have experienced and are enclosing some free product coupons for your use.

"Hey, sorry we can't actually give you the $22 million fighter jet. We don't have any lying around. But here are some coupons!"

(6) Leonard argued that the judge in the case could not properly give summary judgment on the case stating...

that the question whether the commercial constituted a serious offer must be decided by a jury composed of, inter alia, members of the "Pepsi Generation," who are, as plaintiff puts it, "young, open to adventure, willing to do the unconventional." Plaintiff essentially argues that a federal judge would view his claim differently than fellow members of the "Pepsi Generation."

Oh, my...

(7) Leonard insisted that...

the commercial appears to be a serious offer [and] require[d] the Court to explain why the commercial is funny.

As if that isn't itself a death blow to comedy everywhere...

(8) ...the Judge actually set about explaining how the ad was funny!!! (I apologize for the lengthy block quote, but omitting any more than I already have would be a crime to unintentional comedy.)

Explaining why a joke is funny is a daunting task... [quote from E.B. White omitted--as if a citation to authority is required to assert that dissecting the funniness of a joke is difficult...]

First, the commercial suggests, as commercials often do, that use of the advertised product will transform what, for most youth, can be a fairly routine and ordinary experience... [and] ...thus makes the exaggerated claims similar to those of many television advertisements: that by consuming the featured clothing, car, beer, or potato chips, one will become attractive, stylish, desirable, and admired by all. A reasonable viewer would understand such advertisements as mere puffery, not as statements of fact, and refrain from interpreting the promises of the commercial as being literally true.

Second, the callow youth featured in the commercial is a highly improbable pilot, one who could barely be trusted with the keys to his parents' car, much less the prize aircraft of the United States Marine Corps. Rather than checking the fuel gauges on his aircraft, the teenager spends his precious preflight minutes preening. The youth's concern for his coiffure appears to extend to his flying without a helmet. [among other things...] Finally, the teenager's comment that flying a Harrier Jet to school "sure beats the bus" evinces an improbably insouciant attitude toward the relative difficulty and danger of piloting a fighter plane in a residential area, as opposed to taking public transportation...

Third, the notion of traveling to school in a Harrier Jet is an exaggerated adolescent fantasy. In this commercial, the fantasy is underscored by how the teenager's schoolmates gape in admiration, ignoring their physics lesson. The force of the wind generated by the Harrier Jet blows off one teacher's clothes, literally defrocking an authority figure. [get over it already, Judge!] As if to emphasize the fantastic quality of having a Harrier Jet arrive at school, the Jet lands next to a plebeian bike rack. This fantasy is, of course, extremely unrealistic. No school would provide landing space for a student's fighter jet, or condone the disruption the jet's use would cause. [among other obvious violations, disrupting class would apparently be the most obvious]

Fourth, the primary mission of a Harrier Jet, according to the United States Marine Corps, is to "attack and destroy surface targets under day and night visual conditions." United States Marine Corps, Factfile: AV-8B Harrier II (last modified Dec. 5, 1995). Manufactured by McDonnell Douglas, the Harrier Jet played a significant role in the air offensive of Operation Desert Storm in 1991. The jet is designed to carry a considerable armament load, including Sidewinder and Maverick missiles. As one news report has noted, "Fully loaded, the Harrier can float like a butterfly and sting like a bee -- albeit a roaring 14-ton butterfly and a bee with 9,200 pounds of bombs and missiles." In light of the Harrier Jet's well-documented function in attacking and destroying surface and air targets, armed reconnaissance and air interdiction, and offensive and defensive anti-aircraft warfare, depiction of such a jet as a way to get to school in the morning is clearly not serious even if, as plaintiff contends, the jet is capable of being acquired "in a form that eliminates [its] potential for military use." [It is literally frightening to me that a judge would spend this much time researching the funniness of the ad...]

Fifth, the number of Pepsi Points the commercial mentions as required to "purchase" the jet is 7,000,000. To amass that number of points, one would have to drink 7,000,000 Pepsis (or roughly 190 Pepsis a day for the next hundred years -- an unlikely possibility) [I wonder how "soon" the judge came to this realization...], or one would have to purchase approximately $ 700,000 worth of Pepsi Points. The cost of a Harrier Jet is roughly $ 23 million dollars, a fact of which plaintiff was aware when he set out to gather the amount he believed necessary to accept the alleged offer. Even if an objective, reasonable person were not aware of this fact, he would conclude that purchasing a fighter plane for $ 700,000 is a deal too good to be true. [Indeed.]

Well, Judge, it was funny before you just explained it all. Now it is just lame. Thanks for ruining an otherwise hilarious advertisement. Don't let this guy anywhere near Super Bowl ads.

Birthday presents!

Those of you who know me know that I pretty much buy my own birthday presents. So does Hailey, generally. I know, it is really lame and eliminates all the surprise and mystique surrounding the gift, but I figure it is my money anyway, and I would just as soon not have to return a gift I bought myself. A couple of times I have tried buying Hailey a gift and she ended up returning it almost every time. We are both either (1) picky people or (2) completely out of touch with each other's tastes...

Here is what I got for my birthday this year:



I have always wanted a Suunto, and they finally designed one that looks sweet (but still let's you know the time, temperature, relationship to magnetic north, relative atmospheric pressure, and altitude.) I can't tell you how often I find myself lost in the Law School struggling to find North and wondering whether a storm system is on its way. I was actually just looking for a cool-looking watch that had a good stop watch for keeping track of billable time, while also satisfying my long desire to own a Suunto. Oh, and by the way, this is NOT a watch. It is a "wristtop computer". That makes it SO much cooler.

I also bought myself this, although I am technically supposed to be returning it:



This is probably the sweetest insulated technical jacket ever made. I got it for $175 off retail, so I couldn't walk away from such a great deal. Problem is, full retail is unconscionable, so it still isn't very cheap at all. I must say that I can't find another jacket that is (1) very well insulated for temperatures down to about 0 degrees C, (2) is reasonably waterproof, not just water-resistant (this one happens to include a GoreTex XCR shell, so that works), (3) has a hood (I rarely use a hood, but somehow feel in peril if I don't at least have the option of using it in some extreme circumstances) and (4) can be worn with or without layering (rules out "combo" or "3-in-1" jackets that have built-in layering and bulk up if you try to pull it over additional layers and soft-shells that are "tweeners" and can't fit well either under or above much of anything). It also needs to look good, of course. This jacket is thin, very warm, waterproof, and has plenty of layering room underneath. Anyway, I may be taking this one back, but it was fun while it lasted.

Maybe we should have a vote. Who thinks I should keep my coat?

It's just a hole... (most boring blog to date)

I am studying contract law in my first year of law school. We discussed one case that spurred quite a bit of discussion. Tell me what you think.

Basically, the story goes like this (I may simplify the details for ease of blogging...)

There is a farmer who owns some land that is worth about $5,000. He signs an agreement with a mining company who wants to strip mine his land for coal. In addition to a royalty paid to the farmer on all coal mined from the land, the contract also includes an express provision that the mining company will fix his land when they are done, filling in holes, leveling raised ground, etc. Generally, the mining company does not include that provision in their contracts--they just pay the land owner a $3,000 fixed payment for remediation of the land. However, this particular farmer insists on the mining company fixing his land. After a somewhat unsuccessful mining run, the company decides to call it quits. Bad weather had made the dirt all soggy and there isn't as much coal in the land as they had hoped. They pay the farmer all of his due royalty payments and begin filling in the holes they had created. The dirt is too muddy, though, and the company decides they won't be able to fix the farmer's land according to the terms of their agreement. The farmer sues the company and the court tries the case.

There is no question that the contract has been breached by the company. The only question is the method for calculating damages. The farmer claims that the land will cost roughly $30,000 to fix. The company claims it would be unfair to make them pay more than the difference between what the land was worth originally and what it is worth now that it is all torn up. (It was originally worth $5,000 and now is worth about $4,700.) After all, the farmer could go buy a brand new piece of land with the sales price from his current land and the difference paid in damages. Why should $29,700 be wasted in fixing a piece of land that is only worth $5,000? At the same time, the contract was clear that the land should be returned to its previous state.

So, what is the best answer? Should the farmer get $30,000 or $300? (Just to write off one argument that kept coming up, let's assume this piece of land wasn't the farmer's "dream home". After all, he did sell its use to strip miners.)

What if the story were not about land, but involved a car? Let's say the company agreed to fix the timing belt on an owner's car. The car is an old beat up Honda that is only worth $5,000. Part of the agreement requires the company to put all the tires back on the vehicle after they are done with the timing belt. The company fixes the timing belt, but due to some real messed up work damages the tire mounts to the point that the tires cannot be re-attached. The company returns the owner's money and car, and says they can't finish the job. The owner sues for $30,000, the amount of money it would cost someone to go through the laborious process to fix the tire mounts and get the tires back on (use your imagination). The company argues that they should only have to pay the difference between what the car used to be worth and what it is now worth. After all, the owner can sell the damaged car, and with the difference go buy an identical one, complete with tires and everything.

Anyway, we argued about this for some time. I won't tell you where I stand. Let me know what you think.