'Sue': Using a Disputed Dinosaur to Teach Contract Defenses
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Saint Louis University School of Law Scholarship Commons All Faculty Scholarship 2004 A Tyrannosaurus-Rex Aptly Named 'Sue': Using a Disputed Dinosaur to Teach Contract Defenses Miriam A. Cherry Follow this and additional works at: https://scholarship.law.slu.edu/faculty Part of the Contracts Commons, and the Legal Education Commons A Tyrannosaurus-Rex Aptly Named “Sue”: Using a Disputed Dinosaur to Teach Contract Defenses Miriam A. Cherry I. INTRODUCTION II. TEACHING CONTRACT DEFENSES: REWARDS AND CHALLENGES III. TEACHING MODULE: APPLICATION OF CONTRACT DEFENSES A. UNILATERAL MISTAKE B. UNCONSCIONABILITY C. FRAUD, MISREPRESENTATION, AND CONDITIONS D. ECONOMIC DURESS E. UNDUE INFLUENCE F. ABILITY TO SELL IV. IMPLICATIONS: LAW TEACHING BEYOND THE SOCRATIC METHOD 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.1 Named “Sue” after her discoverer,2 the fossil immediately became 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 * 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, Joseph W. Singer, 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. 1 See 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 A10, available at 1997 WL 14705613; 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, available at 2000 WL 31047919 (describing Sue’s discovery and the rareness of finding a 90% complete Tyrannosaurus Rex). 2 Sue Hendrickson, a sometime fossil collector and treasurer hunter, spotted the fossils embedded in a cliff. Hendrickson has authored a children’s book about her career and the discovery of the dinosaur. SUE HENDRICKSON & KIMBERLY WEINBERGER, HUNT FOR THE PAST: MY LIFE AS AN EXPLORER (2001). 3 CURSE OF T. REX (Nova original 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 A10. 4 McShane, supra note 1, at A10. 2 to inspect the property for potential fossils.5 And 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 reservation), 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 the Black Hills. The structure of the trust required government permission in order to sell land. 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.9 The Eighth Circuit concluded that the federal government held the fossil in trust for Williams.10 In addition to the pages of the federal reporter and in the press, Sue’s story has also been 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 Hills] 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). 6 The government also mounted a criminal prosecution of the fossil hunters for unrelated instances of the theft of fossils from federal land. See 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. For the Black Hills’ viewpoint on the criminal charges, 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). While useful, the article is also extremely partisan, as Duffy was Larson’s attorney in the criminal trial. 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 Black Hills Inst. of Geological Research v. S.D. Sch. of Mines & Tech., 12 F.3d 737, 739 (8th Cir. 1993). 9 Id. at 743-44. 10 Id. 3 told in two books,11 one of which, Rex Appeal, was written by fossil hunter and Black Hills founder Peter Larson.12 An understanding of contract law and contract defenses is essential to understanding and analyzing the question of Sue’s ownership.13 Sue’s case involves the high-stakes world of fossil hunting and collecting, a subject 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, unconscionability, 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.14 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 learning 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.15 Rather, the exercise supplements the typical coverage of contract defenses in the major casebooks. 11 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 (2000). 12 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 (2002). 13 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. A recent casenote suggests that Sue’s case could be used to teach property law. 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). 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. 14 See Part IV infra. 15 See Douglas L. Leslie, Approaches to Teaching Contracts: How Not to Teach Contracts, and any Other Course: Powerpoint, Laptops, and the Casefile Method, 44 ST. LOUIS. U.L.J. 1289 (2000) (advocating adoption of the author’s casefiles in lieu of traditional casebook). 4 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,16 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 rules versus legal standards; and how to discern the various sources of contract law. Despite the oddity and strange amusement value in the cases of dissolute smoking and drinking nephews,17 sick children at sea who run up medical bills,18 and loyal employees who dive off platforms to save their bosses,19 the first part of the course must necessarily focus on teaching basic legal skills.