Monday, November 2, 2015
A lot of folks in legal education were pissed off at The New York Times last week. Some fine responses include Michael Simkovic's and Frank Pasquale's. I would just like to draw attention to the last two paragraphs of the Times editorial, which strain to draw some connection between loans that go to law students and the decrease of funds available to pay for legal representation for the poor. Rising student debt and decreased funding for legal services are two sides of the same coin, and it is really peculiar to blame law schools for politicians' failures to adequately fund education or legal services . . . but today we are here to praise The New York Times.
I'm not sure why this is news but yesterday's Sunday Times prominently featured an article that tells it like it is about arbitration clauses and class action waivers. The title and sub-title tell it all: Arbitration Everywhere, Stacking Deck of Justice: Vast Trend Locks Americans Out of Court -- Rulings Greatly Favor Business. This is the first in a series of stories called Beware the Fine Print. Part II is called In Arbitration, "A Privatization of the Justice System.
Ah, the Old Grey Lady returns to form.
Wednesday, October 21, 2015
Amazon is suing approximately 1,000 individuals who are allegedly in breach of contract with the Seattle online retailer for violating its terms of service. Amazon is also alleging breach of Washington consumer protection laws.
In April, Amazon sued middlemen websites offering to produce positive reviews, but this time, Amazon is targeting the actual freelance writers of the reviews, who often merely offer to post various product sellers’ own “reviews” for as little as $5. (You now ask yourself “$5? Really? That’s nothing!” That’s right… to most people, but remember that some people don’t make that much money, so every little bit helps, and numerous of the freelancers are thought to be located outside the United States.) The product sellers and freelancers are alleged to have found each other on www.fiverr.com, a marketplace for odd jobs and “gigs” of various types.
There are powerful incentives to plant fraudulent reviews online. About 45 percent of consumers consider product reviews when weighing an online purchase. Two-thirds of shoppers trust consumer opinions online. For small businesses, it can be more economical to pay for positive reviews than to buy advertising. For example, a half-star increase in a restaurant's online rating can increase the likelihood of securing, say, a 7 p.m. booking by 15 to 20 percent. “A restaurateur might be tempted to pay $250 for 50 positive reviews online in the hopes of raising that rating.”
As law professors, we are not beyond online reviews and thus potential abuses ourselves. See, for example, www.ratemyprofessor.com. There, anyone can claim that they have taken your course and rank you on your “Helpfulness,” “Clarity,” and “Easiness,” give you an overall grade as well as an indication of whether you are hot or not (clearly a crucial aspect of being a law professor…) To stay anonymous, people simply have to create a random anonymous sounding email address. Not even a user screen name appears to be required. Hopefully, that website does not have nearly as much credibility as, for example, Yelp or TripAdvisor, but the potential for abuse of online reviews is clear both within as well as beyond our own circles.
As shown, though, some companies are taking action. TripAdvisor claims that it has a team of 300 people using fraud detection techniques to weed out fake reviews. But fraudulent reviews aren't thought to be going away anytime soon. One source estimates that as many as 10-15% of online reviews are fake (to me, that seems a low estimate, but I may just be a bit too cynical when it comes to online reviews).
So, next time you are reading reviews of a restaurant online, I suppose the learning is that you should take the reviews with a grain of salt.
Tuesday, October 20, 2015
As reported in The New York Times here, Irwin Schiff, a famous opponent of federal taxation, passed away in prison at the age of 87. He had been sentenced in 2005 for tax evasion. He claimed that he was being truthful when he reported that he had "no income in the constitutional sense."
His life is of interest to contracts profs because of Newman v. Schiff. In 1983, Schiff offered $100,000 to anyone who could cite a section from the Internal Revenue Code (Code) that required an individual to file a federal tax return. Schiff issued this challenge on a CBS new show called "Nightwatch." Mr. Newman heard the challenge on a rebroadcast of the show and responded the next day when he had a chance to look through the Code and identify the relevant sections. Schiff refused to pay, informing Newman that his response was both procedurally and substantively flaws. Newman sued.
The District Court agreed with Schiff that Newman response was procedurally flawed. It construed the offer to be open only until the end of the Nightwatch broadcast. Mr. Newman was late. But he was not wrong. The District Court characterized Schiff's position on taxes as "blatant nonsense." As the Times obituary notes, his son writes on economic topics. The son found his father's positions compelling but impractical. Schiff remained committed to his beliefs right up to the end.
Hat tip to Gonzaga Law's Scott Burnham.
Monday, October 12, 2015
Some shoppers on Sears.com thought it was their lucky day when they saw expensive play sets and fancy toys available for the low price of $11.95. Consumerist has the story here. If you saw a storybook cottage that typically costs hundreds of dollars listed for sale at the low, low price of $11.95, what would you think? That's right. Unless it was advertised as a huge blowout sale, you would probably guess it was a mistake. Apparently, Sears lists items sold by third parties and gets a cut - and this time, a third party had made a pricing error on its items. Of course, some Sears sellers were upset - even though Sears refunded their money and gave them a $5 gift card. So, for all those upset sellers, let's run through the mistake scenario to see whether the law would be on your side:
Was this a mistake of a basic assumption? - Yes, it was a pricing error and pricing errors are generally considered basic assumption mistakes.
Was the mistake made by one or both parties (was it a mutual or unilateral mistake?) - Here, Sears mistakenly believed that the prices listed on its website were accurate (not all $11.95) while the customers saw what the prices were - $11.95 - so it was a unilateral mistake made by Sears.
Did it have a material effect? Yes, there's a big difference between $11.95 and hundreds of dollars so Sears would make less money on the transaction.
Did the non-mistaken party (the Sears customers) know or should they have known of the mistake? - Yes, because they should know that expensive playsets are typically not sold for such a low price unless it is part of a promotion or clearance sale.
Did the mistaken party bear the risk of the mistake? You might think Sears would, since it is their website. But based upon existing case law (i.e. Donovan v. RRL Corp), since there's no lack of good faith here and Sears presumably acted reasonably in managing its website - it does not constitute "neglect of a legal duty" and Sears likely doesn't bear the risk of the mistake.
So - there you have it. Sorry kids - guess you'll just have to go outside and build your own play castles with branches and old bed sheets...
Tuesday, October 6, 2015
In California (where else?), a state court judge has, for now, refused to dismiss a fraud claim against Mark Zuckerberg of Facebook fame. A breach of contract claim is also still under consideration.
What is the latter all about? As we wrote here earlier, one of Zuckerberg's former neighbors alleges that he promised to sell property adjoining Zuckerberg's at a discount in return for Zuckerberg's promise to provide the neighbor with "personal referrals and business promotion activities." The property changed hands, but Zuckerberg allegedly failed to make good on his promises.
Is he contractually bound to do so? I don't see why not. The promise is not illusory, and although it is not directly monetary in nature, it does seem to constitute true consideration (Zuckerberg would give up time and effort to get the discount and run the risk of inconveniencing his connections).
Of course, promises such as these are probably very hard to enforce via court action. What would a court realistically do? Force Zuckerberg to help the former neighbor hobnob now that the parties undoubtedly dislike each other intensely? Require him to host a certain number of cocktail parties and invite the ex-neigbor? Such relief is unrealistic, just as it would likely be next to impossible to monetize the alleged loss here.
The temptation to contract in part in return for return benefits from the rich and famous is continually present now as it has been for decades, if not centuries. But numerous cases show how such deals are next to impossible to enforce, contracts law principles or not. A higher sales price would undoubtedly have been smarter here.
Making the case even weirder, the neighbor's attorney has petitioned the court to withdraw from the case for ethical reasons.
Saturday, October 3, 2015
They’re still doing it: companies not wanting negative online reviews of their products or services attempt to contractually prohibit unsatisfied customers from posting such feedback. Not only that, but some companies also seek to take legal and other retaliatory action against their customers if they defy such attempted clauses.
For example, the FTC recently instigated suit against weight-loss company Roca Labs for threatening legal action against customers writing negative comments about the company’s allegedly ineffective weight loss powder. (H/t to my colleagues on the AALS Contracts listserv for mentioning this story). When one of Roca Lab’s customers posted a comment on the Better Business Bureau website, the company cited to their contract with the client that stated, “You will not disparage RL and/or any of its employees, products or services... If you breach this agreement... we retain all legal rights and remedies against the breaching customer..." The company also asked the customer for information about her contacts on Twitter and Facebook (she luckily declined…).
There is no federal law prohibiting companies from trying to suppress negative reviews, but the FTC alleged unfair practices, among other things because the clause in question was buried in fine print. The issue may also be a First Amendment problem, according to an attorney for www.pissedconsumer.com, a third-party website that, as the name indicates, allows negative reviews of companies. http://www.cbsnews.com/news/ftc-lawsuit-roca-labs-weight-loss-powder-gag-clause-customers-sued/
I could not agree more that the voice of customers who have been disappointed for good reason should be heard. It is, frankly, ridiculous what some companies can get away with in this country in this day and age, in my opinion. (In the EU, for example, much more consumer-friendly regulations exist. In the USA, the legislative balancing of consumers v. companies often, in my opinion, is more of a slant favoring businesses, but that’s a thought for another day). But here’s the thing: what about the true risk of disgruntled customers posting reviews that don’t quite reflect what really happened, that exaggerate the situation, or that simply make things seem worse than what they really were? Even with emoticons, things can seem very harsh once written down even if they were not necessarily meant to be.
Take, for example, popular hosting website Airbnb. My husband and I own a historically registered house that requires a lot of upkeep and fixing after 90 years of neglect, so we signed up as hosts to try it out and, of course, to make a little extra money. We love it! We meet the most interesting people that truly enjoy our house. But as one’s success on that and other websites is, in reality, often tied closely to having a large amount of very good reviews, we also live with the constant worry that one day, somebody could post a negative review about something that most people would probably consider seemingly minor (our house is almost 100 years old, and there are necessarily small kinks with a house like that). See also Nancy Kim’s recent blog on our apparently increasing need to judge each other negatively. At least Airbnb allows its users to post comments to reviews, but not all websites follow such practice.
My point is simply this: it is, of course, to go overboard to require one’s paying customers to not post negative reviews via contractual clauses or other methods. But how do we balance the need for true and honest, productive reviews with the risk of disgruntled and perhaps even dishonest customers? Comment below!
Monday, September 21, 2015
The Chicago Tribune reports here on a contracts mess at the College of DuPage. The College's board voted 4-3 to void the contract of its president, Dr. Robert Breuder and to declare him an at-will employee. The board claimed that the avoidance of the contract was appropriate, given that the prior board had inappropriately locked the College in to a long-term contract. The current board also alleges that the prior board violated Illinois law in various ways relating to the hiring of Dr. Breuder The move enables the board to cancel the $763,000 severance payment that Dr. Breuder had agreed to accept as a condition of his early retirement in 2016. One dissenting board member characterized the decision as a breach of contract, and the County State's Attorney already had opined that the contract could not be nullified. Meanwhile, Dr. Breuder continues to draw his $495,000 salary on paid leave from his position while the College searches for a new president.
In continuing FIFA news, Reuters reports that FIFA entered into a profit-sharing agreement with the Caribbean Football Union (CFU) in 2005. FIFA was to receive 50 percent of all revenue generated from the sale of broadcast sponsorship and TV commercials in part of the Caribbean for the 2010 and 2014 World Cup competitions. To date, FIFA claims it has received no payments. FIFA seems to be mad now and has sent a letter to the CFU terminating the contract. One wonders what because of all those advertising revenues . . . .
Finally, in Trump news, all's well that ends well. As you may recall, and as Variety reports here, things got a bit divisive in the partnership that owns the Miss Universe, Miss USA, and Miss Teen USA pageants when co-owner Donald Trump (pictured) made nasty comments about immigrants. When Univision and NBC refused to carry broadcasts of one of the pageants, Trump sued for breach of contract. That suit has now been settled. Trump bought out his partners and then sold the pageant to WME/IMG, whatever that is. It's a shame. Beauty pageants are so tawdry and demeaning to women, Mr. Trump was the ideal person to perpetuate them. WME/IMG, you've got big shoes to fill.
Friday, September 11, 2015
Very excited to be able to report on a UCC case from Indiana, JMB Manufacturing, Inc. v. Child Craft, LLC decided by the 7th Circuit. The opinion is long, but Judge Hamilton's introduction captures its spirit.
This case presents a merchant’s creative effort to avoid the limited remedies that contract law provides for a seller’s delivery of non-conforming goods. After the seller delivered about $90,000 worth of nonconforming wood products, the buyer sought recovery from both the seller and its president personally for tort damages on a tort theory, that they negligently misrepresented the quality of the delivered goods.
The district court ruled in favor of the buyer and awarded damages of more than $2.7 million on the theory that the non-conforming goods caused the complete destruction of the buyer’s business. This damages theory echoed the proverb of Poor Richard’s Almanack (“A little neglect may breed mischief; for want of a nail, the shoe was lost; for want of a shoe the horse was lost; for want of a horse the rider was lost; for want a rider the battle was lost.”), and Shakespeare’s story of Richard III [pictured], where the loss of a horse led in turn to the loss of a battle, the death of a king, and the loss of a kingdom. Cf. Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854) (damages for breach of contract limited to consequences reasonably contemplated by both parties when they made contract).
We reverse the award of damages against the seller and the seller’s president, but for reasons that do not depend on the flawed “want of a nail” theory. Under Indiana law, a buyer who has received non-conforming goods cannot sue a seller for negligent misrepresentation to avoid the economic loss doctrine, which limits the buyer to contract remedies for purely economic losses. See Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010). Second, there is no basis for transforming the buyer’s breach of contract claim into a tort claim for negligent misrepresentation to hold the seller’s president personally liable. See Greg Allen Construction Co., Inc. v. Estelle, 798 N.E.2d 171 (Ind. 2003). In all other respects, we affirm the judgment of the district court.
The opinion includes a lengthy discussion of Indiana's economic loss doctrine.
The Complete Colorado provides this report about a court's grant of a preliminary injunction empowering a teachers' union to continue in its role as sole entity empowered to negotiate a new contract with the local school board. The ruling keeps the union's existing contract in force until its breach of contract claim can be heard, but the grant of the P.I. suggests the likelihood that the union will succeed on the merits of its claim. But the ultimate remedy remains unclear.
And in news that will make you say, "What the . . .???" we learn from this article from the Washington Times that Ashley Madison claims that its new users are flocking to its website after news of its massive security breach, about which Myanna Dellinger has written here, here and here. Other than quoting a spokesperson for the company who blathered about happy return customers, he Times does not speculate on the relationship between the scandal and the increase in users. Knock yourself out.
Sunday, September 6, 2015
The recent massive hack into married-but-dating website Ashley Madison’s files may not only have breached the customer’s reasonable contractual expectations, but is now also said to lead to serious counter-intelligence concerns.
Both China and Russia are collecting personal and sensitive information about people who may be involved in American national security operations. What better leverage to have against operatives than information about their most secret, erotic desires. The temptation to resist such information being shared with even more people may persuade some operatives to render otherwise secret information about United States national security issues. Recall that quite a few affair seekers used their official government addresses to arrange their attempted or successful trysts. In combination with another recent OPM hack, countries that are seen as adversaries have apparently also been able to obtain information about who has sought security clearances and can use this information for counter-intelligence purposes.
That seems to provide a good public policy argument for why courts should find against Ashley Madison if it came to a contractual lawsuit regarding the breach of “100% secrecy” and “full deletes” promised, but not delivered, by Ashley Madison.
Friday, September 4, 2015
Yesterday, we blogged here about important considerations regarding whether an employee will be seen as an employee or a contractor.
In O'Connor v. Uber Technologies, U.S. District Judge Edward Chen just ruled that Uber's drivers may pursue their arguments that they were employees in the form of a class-action suit. One of the reasons was that Uber admitted that they treated a large amount of its drivers "the same."
Of course, millions of dollars may be at stake in this context. Profit margins are much higher for companies such as Uber, Lyft, Airbnb and other so-called "on demand" or "sharing economy" companies. That is because the companies do not have to pay contractors for health insurance benefits, work-related expenses, certain taxes, and the like. But seen from the driver/employee's point of view, getting such benefits if they are truly employees is equally important in a country such as the United States where great disparities exist between the wealthy (such as the owners of these start-up companies) and the not-so-wealthy, everyday workers.
Plaintiffs are represented by renowned employee-side attorney Shannon "Sledgehammer" Liss-Riordan who represented and won a major suit by skycaps against American Airlines some years ago, so sparks undoubtedly will fly in the substantive hearings on this issue.
Tuesday, September 1, 2015
Uber. It just seems to always be in the news for one more lawsuit, doesn’t it. In late August, the district attorneys for San Francisco and Los Angeles filed a civil complaint against the company alleging that it is making misrepresentations about its safety procedures. The complaint, i.a., reads that Uber’s “false and misleading statements are so woven into the fabric of Uber’s safety narrative that they render Uber’s entire safety message misleading.”
On its website, Uber promises that “from the moment you request a ride to the moment you arrive, the Uber experience has been designed from the ground up with your safety in mind” and that “Ridesharing and livery drivers in the U.S. are screened through a process that includes county, federal, and multi-state criminal background checks. Uber also reviews drivers’ motor vehicle records throughout their time driving with Uber.”
However, Uber does not use fingerprint identication technology, which means that the company cannot search state and federal databases, only commercial ones.
The result? People with highly questionable backgrounds end up being on Uber’s payroll. For example, one “Uber driver was convicted of second-degree murder in 1982. He spent 26 years in prison, was released in 2008 and applied to Uber. A background report turned up no records relating to his murder conviction. He gave rides to over 1,100 Uber customers.” Yikes. Another “Another driver was convicted on felony charges for lewd acts with children. He gave over 5,600 rides to Uber customers.”
Add this to the ongoing lawsuit about whether Uber’s drivers should be legally classified as “employees” or “contractors,” and Uber is in a mound of legal trouble.
Certainly, a misrepresentation seems to have been made if the company deliberately touts its safety and its “industry-leading background check process” yet only uses a commercial database that does not even necessarily ensure that its drivers are who they say they are.
Still, Uber remains one of the most valuable start-ups in the world. It and similar “sharing economy” companies such as Airbnb have gained a good foothold on a market with a clear demand for new types of services. So far, so good. But initial success should not and does not equate with a “free-for all” situation just because these new companies are highly successful, at least initially. It seems that they are learning that lesson. Lyft, for example, already settled with prosecutors in regards to its safety. Perhaps Uber will follow suit.
Monday, August 31, 2015
The article is here.
It speaks for itself.
There are a million reasons why these contracts, which offer pennies on the dollar on the present value of the settlement, should not be enforced. Feel free to offer your legal theories in the comments!
Friday, August 28, 2015
In breaking Bieber news, HuffPo reports that Justin Bieber (pictured, left) claimed breach of contract in canceling a scheduled appearance in Montreal. The venue where Bieber was scheduled to perform seems to belieber the young artist, as it posted on its Facebook page a notice that neither it nor Mr. Bieber were liable for the cancellation. Bieber himself tweeted the cancellation, specifically referring to the promoter's breach (and to lying, but we prefer the legal jargon).
In Presidential candidate news, the Wisconsin Gazette reported that Wisconsin taxpayers might have to pay $50 million in damages because Governor Scott Walker (pictured, right) breached a contract that his predecessor had entered into to modernize the states rail service. According to the Gazette, Spanish train-maker Talgo sued the state for $66 million. The case settled, with the state agreement to pay nearly $10 million on top of the $42 million it had already paid for trains that it never received.
The Washington Post reports that a Maryland firm, CNSI, that lost a $200 million contract when its Senior Vice President blew the whistle on irregularities in the award of the contract. CNSI won a contract to process medicaid claims for the state of Louisiana while one of its former executives was Louisiana's Secretary of the Department of Health and Hospitals. The contract was cancelled in 2013 and the Secretary of the Department of Health and Hospitals has been indicted for perjury. CNSI claims that the whistle blower was a disgruntled employee who breached his contract and tortiously interfered. An investigation into possible wrongdoing by CNSI in connection with the contract is ongoing.
Monday, August 24, 2015
Hugely successful auto-maker Tesla is making very good money not only on its electric cars, but also on its contracts selling zero emission credits to rivaling automakers. New environmental standards in eleven states require that by 2025, 15% of a car company’s sold fleet must be so-called “zero emission” vehicles. If a company cannot meet existing standards, they can purchase zero emissions credits from other companies that can. Tesla is one of those.
This year, Tesla has sold approximately $68 million worth of credits to competing automakers, which represents 12% of its overall revenue. Overall, Tesla is doing very well: its net profit for the first quarter of this year was more than $11 million and its shares have been reported to be up more than 165% so far this year.
This raises the question that I also raised here on this blog in another post earlier this summer: is the emissions trading scheme a good idea, or does it simply allow for glorified “contracts to pollute”? As with many other things in the law, both could be seen to be the case. See this report that casts doubt on whether carbon credits help or hurt the agenda. Some call them "hot air,"perhaps for good reason. But at least Tesla is, hopefully, challenging other automakers to innovate to pollute less.
Another question, though, is the use of the euphemism “zero emissions.” Electric vehicles are arguably better seen from an environmental point of view than traditional cars, but they are not “zero” emissions. They could, instead, be called “emissions elsewhere” vehicles. That, of course, does not sound nearly as good. However, the electricity used for electric cars is produced somewhere. The true question is: by what means? If the electricity stems from dirty coal-fired power plants, the solution is not as good as it sounds, although concentrating the pollution in one large plant may be better than having many individual cars produce power on the road. That is a question for another forum. Suffice it to say that choice is good, and if car buyers could also in all locales could always decide exactly how to source their electricity (from, for instance, solar power), the matter would be different. That is not (yet) the case. So for now, “zero emission” vehicles are actually not so.
Friday, August 21, 2015
Earlier this summer, I blogged on cheating website Ashley Madison promising to provide "100% discreet service" and a group of hackers threatening to reveal the website's customers if the website was not removed. Well, it was not, and this past week, the group made good on its promise or threat, depending on how one views the issue, to make the stolen database easily available to the general public.
In spite of Ashley Madison's promise to be "100% discreet" (whatever that means), the fine print used in its contracts also states, "We cannot ensure the security or privacy of information you provide through the Internet." No contractual promises seen to have been breached if that had been the only promise made. But as Steve Hedley wrote in his comment (see below), some of those inconvenienced by the hack include a number who paid a fee of $19 specifically for a "full delete". Does US contract law really allow Ashley Madison to take their money and then rely on fine print to justify a complete failure? That is a very good point and indeed does not seem to be the case. It could, of course, be that those who paid for a full delete got it and were _not_ among the ones in the publicized batch, but judging solely from media reports on this account, complaints have been made that the promised "full deletes" were not undertaken, so it seems that at least some that paid _additional_ money to become deleted from the website did not get what they paid for. That's a breach. Thanks, Steve Hedley, for that comment.
But the matter is more serious and sad than that: the website was/is apparently also used for finding homosexual partners, which is illegal and carries the death penalty in countries such as Iran, Saudi Arabia, and the United Arab Emirates, where two users were listed.
Not surprisingly, this story again shows the importance of internet data security. One would think that after the recent HomeDepot, Target and other database breach episodes, people would have learned, but apparently, this is not the case.
Friday, August 14, 2015
Contractual Issues and the Resignation/Termination of University of Illinois' Chancellor Phyllis Wise
According to this Chicago Tribune report, the University of Illinois' Chancellor, Phyllis Wise (pictured), and its Board of Trustees are fighting over whether she can resign or whether it is too late for her to resign because she has been terminated. The exchange reminds me of a scene from the old Dick Van Dyke Show. Laura (Mary Tyler Moore) has been helping out her husband, Rob (Dick van Dyke), by working as a typist, but Laura keeps making jokes that the other writers think are funny, which gets under Rob's skin. She storms out saying:
The only reason I came here was to help you, and if I have annoyed you, I sincerely apologize, and to keep from causing you any further annoyance, I want you to know that I'm fired!
To which Rob responds, "You can't fire! I quit ya!"
That fight was a product of marital discord, but the current dispute is about contracts and money. Wise apparently tendered her resignation first, which would have triggered a $400,000 payment. The Board rejected that resignation and has chose instead to initiate dismissal proceedings. Wise has responded by tendering a second resignation. Wise characterizes the $400,000 payment as a pro-rated portion of a retention bonus to which she was entitled under her 2011 contract. But U of I's President was also offering to keep Wise on in an administrative capacity, which seems like a nice way to justify the payment. Wise claims entitlement to the payment even though she is now refusing the administrative post.
Wise stands accused of having used personal e-mail accounts to conduct official business, allegedly in order to escape rules requiring disclosure of official correspondence. Sound familiar?
Tuesday, August 11, 2015
One of our readers asked for a follow-up on our post on the suit by Charleston Law School professors seeking to enjoin the Law School from eliminating their tenured positions. We have good news to report, at least provisionally:
Charleston's Post & Courier reports that a judge last week blocked the termination of two tenured law professors until their suit against the law school is either settled or adjudicated.
Monday, August 10, 2015
We shared with our readers Professor Robin Kar's views on the case a while back.
You can find Professor Kar's latest here.
Friday, August 7, 2015
In a case we have been following for a year (here, here, and here, for example), Stephen Salaita is suing the University of Illinois for withdrawing its offer to hire him to teach in its American Indian Studies Program after discovering some intemperate anti-Zionist tweets Mr. Salaita had posted. This week, a Federal District Court ruled on the University's motion to dismiss the claim. While the Court dismissed some of Salaita's claims, his breach of contract and first amendment claims were allowed to proceed. The case is Salaita v. Kennedy, and the opinion is here.
The claim that we care about is, of course, the breach of contract claim. Mr. Salaita signed an employment letter and so claimed that he had a contract with the University. The University claimed that there was no contract because the offer of employment was subject to approval of the University's Board, which never occurred. The Court carefully parsed the language of the offer letter and found that the offer was not conditional on board approval. Rather, board approval was a condition of performance of the contract; it was not a condition of the offer.
Although the Court conceded that the language of the offer letter might be ambiguous, the University's conduct resolved such ambiguities in favor of a finding of a contract. The University paid Mr. Salaita's moving expenses, gave him office space and an e-mail address, and referred to him as "our employee."
If the Court accepted the University’s argument, the entire American academic hiring process as it now operates would cease to exist, because no professor would resign a tenure position, move states, and start teaching at a new college based on an “offer” that was absolutely meaningless until after the semester already started. In sum, the most reasonable interpretation of the “subject to” term in the University’s offer letter is that the condition was on the University’s performance, not contract formation.
The Court then quickly rejected the University's argument that the Dean had no authority to make the offer to Mr. Salaita.
Tuesday, August 4, 2015
A new Los Angeles Times investigation has revealed that nine out of ten students drop out of unaccredited law schools in California. Of the few students that graduate, only one in five ultimately become a lawyer. In other words, a mere 2% of the people that initially enroll in an unaccredited law school end up being attorneys. Shameful at best. One example of one person who did not make it as an attorney is former Los Angeles mayor Antonio Villaraigosa who went to “People’s College of Law” and took the bar four times, but never passed.
Unaccredited law schools are said to flourish in California. The state is one of only three in the nation that allow students from unaccredited law schools to take the bar test (the others are Alaska and Tennessee). Unaccredited schools in California are held to very few academic standards by regulatory bodies and, by their very nature, none by accrediting agencies.
Most of the unaccredited law schools are owned by small corporations or even private individuals. One, for example, is owned by a“Larry H. Layton, who opened his school in a … strip mall above a now-shuttered Mexican restaurant. He thought the Larry H. Layton School of Law, which charges about $15,000 a year, would grow quickly. But according to the state bar records, he has had six students since 2010.”
Experts again say that action must be taken. For example, Robert Fellmeth, the Price Professor of Public Interest Law at the University of San Diego School of Law, has stated that unaccredited schools “aren't even diploma mills, they are failure factories. They're selling false hope to people who are willing to put everything out there for a chance to be a lawyer."
As before, the problem goes beyond unaccredited law schools. Several ABA accredited law schools also demonstrate both poor employment and bar passage statistics, although the problem seems to be the most severe when it comes to unaccredited schools.
This story is not new to your or many others. However, it serves as a reminder of the continued importance of both insiders and outsiders taking a renewed look at regulations for (and broader expectations of) law schools in California and beyond. As always, purchasers of anything including educational “services” (which, as the above other and many other studies show, can all too easily turn out to be disservices) should be on the lookout for what they buy. A great deal of naivety by new students seems to be contributing to the problem. However, that does not justify the tactics and perhaps even the existence of some of these educational providers. Having said that, I also – again – cannot help ask myself what in the world some of these students are thinking in believing that they can beat such harsh odds. Hope springs eternal, it seems, when it comes to wanting to become a California attorney.