ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, November 20, 2009

NY Court Dismisses Law Student’s Attempt to Challenge Legal Writing Grade, Finding No Implied Contract

Over at Adjunct Prof Blog, Mitchell H. Rubinstein reports on Keefe v. New York Law School, ___Misc. 3d___(N.Y. Co. Nov. 17, 2009), which dismissed a student’s claim that New York Law School breached an implied contract by giving him a “C” in Legal Writing.  Here’s Rubinstein’s summary:

A transfer student to New York Law School from Hofstra Law School was unhappy with being placed in Legal Writing II. As I understand it, his argument was that New York Law School breached an implied contract because it did not provide him with "the right program for every student" as indicated on the law school's web site. Out of the blue he argued that legal writing should be graded pass/fail because that is the way it is done at Yale Law School. The court did not have any trouble dismissing the case and finding that no implied contract existed. As the court stated:

Generally, New York State courts have permitted a student to bring a breach of implied contract action against an institution of higher education. See Radin v. Albert Einstein College of Med. Of Yeshiva Univ., 2005 U.S. Dist. LEXIS 9772 at *30 (S.D.N.Y May 20, 2005). However, a student must identify specific language in the school's bulletins, circulars, catalogues and handbooks which establishes the particular "contractual" right or obligation alleged by the student in order to make out an implied contract claim. See Sweeney v. Columbia Univ., 270, AD2d 335, 336 (2d Dep't 2000); Vought v. Teacher's Coll., Columbia Univ., 127 AD2d 654, 655 (2d Dep't 1987). General statements of policy are not sufficient to create a contractual obligation. Only specific promises that are material to the student's relationship with the school can establish the existence of an implied contract. See Lloyd v. Alpha Phi Alpha Fraternity, 1999 U.S. Dist. LEXIS 906, at *27-*28 (N.D.NY Jan, 26, 1999). "To state a valid claim for a breach of contract, a plaintiff must state when and how the defendant breached those specific promises. Radin, 2005 U.S. Dist LEXIS 9772, at *32. 

In the case at bar, Plaintiff fails to cite any specific provision or communication from NYLS that would establish an implied contract. One cannot breach a contractual promise that was never made. Radin, 2005 U.S. Dist. LEXIS 9772, at *37. Plaintiff fails to point to any document or communication that gives rise to a promise which NYLS has breached. See Chira v. Columbia Univ., 289 F. Supp.2d 47, 485, 486 (S.D.N.Y 2003); Ward v. New York Univ., 2000 U.S. Dist. LEXIS 14067, at *10-*12 (S.D.NY Sept 25, 2000). Therefore the motion to dismiss the complaint is granted in its entirety. 

Moreover, New York courts have repeatedly refused to interfere in the academic procedures of educational institutions and cannot and will not intervene in disputes involving an educational institution's grading system. 

As the New York Court of Appeals has stated quite clearly in Susan M. v. New York Law School, 76 NY2d 241, 246-247 (1990). 

As a general rule, judicial review of grading disputes would inappropriately involve the courts in the very core of academic and educational decision making. Moreover, to so involve the courts in assessing the propriety of particular grades would promote litigation by countless unsuccessful students and thus undermine the credibility of the academic determinations of educational institutions. We conclude, therefore, that, in the absence of demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation, a student's challenge to a particular grade or other academic determination relating to a genuine substantive evaluation of the student's academic capabilities is beyond the scope of judicial review. 

Plaintiff is requesting this Court to intrude upon an area to which New York Courts have [*3]strongly refused to intervene. Here, Plaintiff has shown no evidence of "bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation." id. NYLS clearly communicated through the student handbook that NYLS utilizes a letter grading system under which all of its students are evaluated. This Court declines to interfere with this quintessential function of an educational institution. 

I would file this one in “nice try.”

[Meredith R. Miller]

November 20, 2009 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Jon & Kate -- But Wait!! It's a Different Kate!

Jon It is very hard to keep up with all the law suits swirling around the celebrated parents, Jon, at left, & Kate.  And it's probably not worth trying to do so, but an image of a handwritten contract is simply too good to pass up.  So, here it is, courtesy of the good people at  In the document, Jon Gosselin appears to pledge to hire Kate Major as his "personal assistant."  She would be compensated with "a percentage of accounts for payment based upon involvement."  Ms. Major, aka Kate 2.0, is suing Jon Gosselin for breach.  Octodad Jon's attorney proclaims that the other Kate's lawsuit is nonsense.  You can read about it here.  

According to the New York Daily News, the written agreement also included a pledge by Kate 2.0, that she and Jon would not comment publicly about their relationship. Both seem to have breached that part of the deal, but their accounts differ as to the nature of their relationship.  Kate 2.0 also provides additional details of oral promises that Jon made to her.  None of the websites visited by the author had any information about whether the parol evidence rule might apply, nor do they address the existence of a no-oral-modifications clause in the handwritten agreement.

[Jeremy Telman]

November 20, 2009 in Celebrity Contracts, In the News, True Contracts | Permalink | TrackBack (0)

Wednesday, November 18, 2009

Weekly Top Ten

TOP 10 Papers for Journal of Contracts & Commercial Law
September 19, 2009 to November 18, 2009

Rank Downloads Paper Title
1 485 Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System
Christopher Lewis Peterson,
University of Utah - S.J. Quinney College of Law,
2 187 No Big Deal: The GM and Chysler Cases in Context
Stephen J. Lubben,
Seton Hall University - School of Law,
3 181 Gods at War: Shotgun Takeovers, Government by Deal and the Private Equity Implosion
Steven M. Davidoff,
University of Connecticut School of Law,
4 180 The Effect of the Consumer Financial Protection Agency Act of 2009 on Consumer Credit
David S. Evans, David S. Evans, Joshua D. Wright,
University of Chicago Law School, University College London, George Mason University - School of Law, Faculty,
5 162 The Future of Securitisation: How to Align Incentives?
Ingo Fender, Janet Mitchell,
Bank for International Settlements (BIS), National Bank of Belgium - Department of Financial Stability,
6 147 The 2005 Rules of the Australian Centre for International Commercial Arbitration - Revisited
Simon Greenberg, Luke R. Nottage, Romesh Weeramantry,
International Chamber of Commerce (ICC), University of Sydney - Faculty of Law, City University of Hong Kong (CityUHK),
7 111 Breach Is For Suckers
Tess Wilkinson-Ryan, David A. Hoffman,
University of Pennsylvania Law School, Temple University - James E. Beasley School of Law, 
8 104 The Legal Status of the Joint Venture
Robert Flannigan,
University of Saskatchewan, 
9 100 Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine
Chris Jenks,
Government of the United States of America - Judge Advocate General's Corps,
10 97 Interpretation and Implied Terms in Contract Law
George M. Cohen,
University of Virginia School of Law,
[Jeremy Telman]

November 18, 2009 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, November 17, 2009

A Dickensian Contract

Dickens_by_Watkins_detail I was amused to come across this 19th-century account of how "refined" people concluded contracts in the 19th century.  It comes from Little Dorrit, by Charles Dickens (left).   The exchange is between William Dorrit, recently released from the debtors prison and now (suddenly and rather mysteriously) a wealthy man, and a Mrs. General, whom he is contemplating as an agent for the cultivation of his daughters' manners -- or mannerisms.

'Might I be excused,' said Mr Dorrit, 'if I inquired--ha--what remune--'

'Why, indeed,' returned Mrs General, stopping the word, 'it is a subject on which I prefer to avoid entering. I have never entered on it with my friends here; and I cannot overcome the delicacy, Mr Dorrit, with which I have always regarded it. I am not, as I hope you are aware, a governess--'

'O dear no!' said Mr Dorrit. 'Pray, madam, do not imagine for a moment that I think so.' He really blushed to be suspected of it.

Mrs General gravely inclined her head. 'I cannot, therefore, put a price upon services which it is a pleasure to me to render if I can render them spontaneously, but which I could not render in mere return for any consideration. Neither do I know how, or where, to find a case parallel to my own. It is peculiar.'

No doubt. But how then (Mr Dorrit not unnaturally hinted) could the subject be approached.

'I cannot object,' said Mrs General--'though even that is disagreeable to me--to Mr Dorrit's inquiring, in confidence of my friends here, what amount they have been accustomed, at quarterly intervals, to pay to my credit at my bankers'.'

Mr Dorrit bowed his acknowledgements.

'Permit me to add,' said Mrs General, 'that beyond this, I can never resume the topic. Also that I can accept no second or inferior position. If the honour were proposed to me of becoming known to Mr Dorrit's family--I think two daughters were mentioned?--'

'Two daughters.'

'I could only accept it on terms of perfect equality, as a companion, protector, Mentor, and friend.'Littledorrit_serial_cover

Mr Dorrit, in spite of his sense of his importance, felt as if it would be quite a kindness in her to accept it on any conditions.  He almost said as much.

'I think,' repeated Mrs General, 'two daughters were mentioned?'

'Two daughters,' said Mr Dorrit again.

'It would therefore,' said Mrs General, 'be necessary to add a third more to the payment (whatever its amount may prove to be), which my friends here have been accustomed to make to my bankers'.'

Mr Dorrit lost no time in referring the delicate question to the county-widower, and finding that he had been accustomed to pay three hundred pounds a-year to the credit of Mrs General, arrived, without any severe strain on his arithmetic, at the conclusion that he himself must pay four. Mrs General being an article of that lustrous surface which suggests that it is worth any money, he made a formal proposal to be allowed to have the honour and pleasure ofregarding her as a member of his family. Mrs General conceded that high privilege, and here she was.

[Jeremy Telman]

November 17, 2009 in Labor Contracts, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, November 16, 2009

Contract or Extortion?

Albert_II,_Prince_of_Monaco Last month, we speculated a bit on the relationship between blackmail and contract.  Last week, Am Law Litigation Daily reported on a case in point.  Plaintiff Robert Eringer is suing Prince Albert II of Monaco (pictured) for $60,000 that plaintiff alleges is owed under a contract for investigative work that plaintiff performed in Monaco between 2005 and 2007.  

Plaintiff's complaint can be found here.  The complaint alleges that plaintiff was employed as an intelligence officer to help the Prince root out corruption, organized crime and money laundering in Monaco.  The further details of the complaint -- and there are many -- are very interesting, setting out the individuals and entities, including the Freemasons and "Italian organized crime groups" that plaintiff claims to have investigated, with the help of various state intelligence agencies, including the CIA.  The complaint also details plaintiff's alleged negotiations on the Prince's behalf with the Prince's various illegitimate children.  It's quite a colorful document.

But the Prince's attorney characterizes the lawsuit as a "crude shakedown" and as "blatant extortion." Gosh.  If I were going to extort money from the Prince of Monaco, I don't think $60,000 is the figure I would pick.  But the allegation of extortion certainly adds flair to the drama.  Defendant's motion to dismiss, largely on the grounds that the Prince is a head of state and the foreign sovereign immunity doctrine precludes the suit, can be found here.  The motion also requests that the court strike from the complaint all "immaterial, impertinent and scandalous matter."  Great stuff.

[Jeremy Telman] 

November 16, 2009 in Commentary, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)