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A Tyrannosaurus-Rex Aptly Named Sue: Using a Disputed Dinosaur to Teach Contract Defenses

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A Tyrannosaurus-Rex Aptly Named Sue: Using a Disputed Dinosaur to Teach Contract Defenses North Dakota Law Review Volume 81 Number 2 Number 2 Article 3 January 2005 A Tyrannosaurus-Rex Aptly Named Sue: Using a Disputed Dinosaur to Teach Contract Defenses Miriam A. Cherry Follow this and additional works at: https://commons.und.edu/ndlr Part of the Law Commons Recommended Citation Cherry, Miriam A. (2005) "A Tyrannosaurus-Rex Aptly Named Sue: Using a Disputed Dinosaur to Teach Contract Defenses," North Dakota Law Review: Vol. 81 : No. 2 , Article 3. Available at: https://commons.und.edu/ndlr/vol81/iss2/3 This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact [email protected]. A TYRANNOSAURUS-REX APTLY NAMED "SUE": USING A DISPUTED DINOSAUR TO TEACH CONTRACT DEFENSES MIRIAM A. CHERRY I. INTRODUCTION In August 1990, commercial fossil hunters from the Black Hills Geologic Institute ("Black Hills") discovered the remains of an almost- complete Tyrannosaurus Rex skeleton located in the Badlands of South Dakota.l Named "Sue" after her discoverer, 2 the fossil immediately be- came the subject of controversy. Although many of the facts were disputed, the collectors gave the purported owner of the land, a Native American rancher named Maurice Williams, a check for $5,000, which he cashed, and the collectors excavated Sue. 3 The fair market value of a T-Rex skeleton with that degree of completeness was over eight million dollars. 4 Once the discovery began to garner publicity, Williams began a fierce court battle to rescind the contract with Black Hills, claiming that the $5,000 was merely a payment to inspect the property for potential fossils. 5 *Assistant Professor of Law, Cumberland School of Law, Samford University; B.A., 1996, Dartmouth College; J.D., 1999, Harvard Law School. Thanks to Alexander J. Bolla, Brannon P. Denning, Jill E. Evans, Deborah Post, Joseph W. Singer, Frank Synder, Angela Onwauchi-Willig, and William G. Ross, for their comments, suggestions, and encouragement. Acknowledgement (and blame) for excellent research assistance (and bad puns) to Jaimi A. Reisz and Joseph L. Hubbard. Finally, thanks to the editors of the North Dakota Law Review for cite checking and good humor. 1. Larry McShane, Museum Pays $8.4 Million for T-Rex: 65-Million-Year-Old Fossil to Go on Display in Chicago in 2000, WASH. POST, Oct. 5, 1997, at AI0. See also Phillip Zonkel, Sue- per Sized Awesome T. Rex Fossil Gets Presented in its Full Glory at Natural History Museum, L.A. DAILY NEWS, Nov. 29, 2000 at L6 (describing Sue's discovery and the rareness of finding a ninety-percent complete Tyrannosaurus Rex). 2. See SUE HENDRICKSON AS TOLD TO KIMBERLY WEINBERGER, HUNT FOR THE PAST: MY LIFE AS AN EXPLORER 23-29 (2001) (detailing how Sue Hendrickson, a sometime fossil collector and treasurer hunter, spotted the fossils embedded in a cliff). Hendrickson has authored a chil- dren's book about her career and the discovery of the dinosaur. Id. 3. Curse of T. Rex (Nova television broadcast Feb. 25, 1997). In October of 1997, Sotheby's auctioned Sue off. In the face of intense bidding, the Chicago Field Museum purchased Sue for $8,362,500. See McShane, supra note 1, at AI0 (stating that the Chicago Field Museum "paid a staggering $8.4 million" for the fossil). 4. McShane, supra note 1, at A10. 5. Black Hills Inst. of Geological Research v. Dept. of Justice, 812 F. Supp. 1015, 1017 (D.S.D. 1993) ("On August 27, 1990, [Black Hillsj issued a check to Maurice Williams for $5,000, alleging that it was 'for title to the fossil and the right to excavate the fossil from his land."'), aff'd in part, rev 'd in part sub nom. Black Hills Inst. of Geological Research v. S.D. Sch. of Mines & Tech., 12 F.3d 737 (8th Cir. 1993). NORTH DAKOTA LAW REVIEW [VOL. 81:295 He was not the only one with a bone to pick. At one point, the parties claiming ownership of Sue included Black Hills, Williams, the Cheyenne River Sioux tribe (Williams' land was within the boundaries of their reser- vation), and the federal government (the government had held the land in trust for Williams so it was not subject to tax forfeiture). 6 Ultimately, the district court,7 and then the Eighth Circuit Court of Appeals,8 ruled against Black Hills. The structure of the trust required gov- ernment permission to sell land.9 Holding that Sue's bones were part of the "land," the Eighth Circuit determined that Sue could only be sold if government permission had been granted, and, as Black Hills had never requested permission, it had no claim to the fossil.10 The Eighth Circuit concluded that the federal government held the fossil in trust for Williams. 1l In addition to the pages of the federal reporter and in the press, Sue's story has also been told in two books,12 one of which, Rex Appeal, was written by fossil hunter and Black Hills founder Peter Larson.13 An understanding of contract law and contract defenses is essential to understanding and analyzing the question of Sue's ownership.14 Sue's case involves the high-stakes world of fossil hunting and collecting, a subject 6. The government also mounted a criminal prosecution of the fossil hunters for unrelated instances of the theft of fossils from federal land. United States v. Larson, 110 F.3d 620 (8th Cir. 1997). Although the possibility of criminal sanctions for taking fossils from federal or tribal lands is also an interesting subject, the criminal law dimensions are beyond the scope of this article. See Patrick K. Duffy & Lois A. Lofgren, Jurassic Farce: A Critical Analysis of the Government's Seizure of "Sue [TM]," A Sixty-Five-Million-Year-Old Tyrannosaurus Rex Fossil, 39 S.D. L. REV. 478 (1994) (presenting Black Hills' viewpoint on the criminal charges). While useful, the article is also extremely partisan, as Duffy was Larson's attorney in the criminal trial. See Black Hills, 812 F. Supp. at 1016 (listing Duffy as the attorney of record for the plaintiff). The Black Hills Institute later discovered another T-Rex skeleton that they named "Duffy" in gratitude for their lawyer's services. 7. Black Hills, 812 F. Supp. at 1022. 8. S.D. Sch. of Mines & Tech., 12 F.3d at 739. 9. Id.at 741. 10. Id. at 743-44. 11. Id. at 744. 12. The first book, written by Steve Fiffer, a former journalist and attorney, is a well-written account that provides a multi-faceted and balanced view of the case, including the point of view of many of the participants. STEVE FIFFER, TYRANNOSAURUS SUE: THE EXTRAORDINARY SAGA OF THE LARGEST, MOST FOUGHT OVER T. REX EVER FOUND (W.H. Freeman and Co. 2000). 13. The second book, written by fossil-hunter Peter Larson and his ex-wife, former journalist Kristin Donnan, is, unsurprisingly, a partisan re-telling of the case from Larson's perspective. PETER L. LARSON & KRISTIN DONNAN, REX APPEAL: THE AMAZING STORY OF SUE, THE DINOSAUR THAT CHANGED SCIENCE, THE LAW, AND MY LIFE (Invisible Cities Press 2002). 14. See Dana G. Jim, Great Property Case: Johnson v. M'Intosh and the South Dakota Fossil Cases, 46 ST. LOUIS U. L.J. 791 (2002) (suggesting that Sue's case could be used to teach property law). Property law and Native American law are vital to analyzing Sue's ownership, and it was on these grounds that the actual case was decided. Therefore, in this Article I concentrate solely on the contracts questions that Sue's case raises and how law professors can use Sue's case to teach contracts defenses. 2005] TEACHING CONTRACT DEFENSES WITH A T. REx matter that students find appealing. Besides piquing student interest, Sue's case also allows for a far-ranging discussion of many contract defenses. When discussing the contract between Maurice Williams and the Black Hills Institute, students begin formulating arguments based on the doctrines of unilateral mistake, unequal bargaining power, capacity, unconscion- ability, and the failure of a condition. I provide this description of the teaching module I use for contract defenses as one possible alternative to the Socratic method. As described in the final portion of this Article, the Socratic method has come under attack in recent years.15 In response to such criticisms, the lesson that I describe provides a constructive alternative to the Socratic method, based on the theory of problem-based learning and the appropriate incorporation of technology in the classroom. However, unlike other problem-based learn- ing approaches, this particular lesson can be adopted without having to change the entire structure of an already-existing course, and does not mean the utter extinction of a traditional casebook.16 Rather, the exercise supple- ments the typical coverage of contract defenses in the major casebooks. II. TEACHING CONTRACT DEFENSES: REWARDS AND CHALLENGES Teaching contract defenses is one of the more difficult parts of the basic contracts course. During the first portion of the course, 17 I spend a great deal of time on basic concepts-the rules of offer and acceptance, consideration, and promissory estoppel-as well as helping students become familiar with basic legal skills, such as how to discern the holding of a case from dicta; how to master the standard arguments about bright line 15. See infra Part IV (citing numerous scholars and authors who are critical of the Socratic method).
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