Academic

So Conan showed up for work and delivered another show last night. We shouldn?t be surprised: he needs to keep working so NBC can?t argue he breached his contract. This creates a game of chicken between the network and the comedian.

At first glance, NBC has an advantage. Conan can only control whether he tapes his show, not when NBC airs it. If Conan continues to work, NBC can just air it at 12:05, forcing Conan to either walk away or go to court and seek a declaratory judgment, possibly using doctrines like anticipatory repudiation.

As I noted in an earlier post, Conan has quite a bit of non-contractual leverage. Blogosphere opinion is mobilizing in his favor. The wackier this gets, the higher the ratings for him when he starts a new show. At the same time, NBC also has to worry about its ratings and selling its ad time while its late night line-up is in limbo. The Winter Olympics provides NBC with breathing room, but this process dragging out means NBC won?t be able to run those annoying ads that distract me from watching a little luge -- ?Hey- when the Olympics are over, watch [Jay][Conan].?

For Contracts classes, this standoff is a gold mine. Teachers like Larry Cunningham are already mining it. It is a great opportunity to focus on communications and behavior in real time rather than doing an autopsy of a 50 year old case. Teachers can focus on the importance of other documents ? like Conan?s letter to the people of earth ? beyond the actual contract. And here?s an idea: assign your students to watch Conan?s show and watch how careful he is with his jokes. He never implies he will walk away from the job. We can differ on whether the guy is funny, but he sure is smart.