Thursday, June 21, 2018
Forgive my taking an editor's privilege here to share an exciting announcement from my home institution. We are thrilled to have Bobby Ahdieh joining our faculty as dean!
Ahdieh is currently the K.H. Gyr Professor of Private International Law and Director of the Center on Federalism and Intersystemic Governance at Emory University School of Law in Atlanta, Georgia.
University officials say the School of Law has made unprecedented strides since joining the Texas A&M community in 2013, currently ranking among the top 80 law schools in the nation according to U.S. News & World Report. Officials say the School of Law’s forward progress is due to a number of efforts which include increasing its entering class profile; hiring a cohort of nationally recognized scholars who have added to the research strengths of the existing faculty; and enhancing its academic programs, allowing it to offer a rich educational experience to its students.
“We couldn’t be more proud of what our law school faculty, staff, and students have achieved during the School of Law’s first few years as part of Texas A&M,” said Texas A&M University President Michael K. Young. “With the university’s support and Bobby Ahdieh’s vision, scholarly reputation and administrative experience, we are well-positioned to accelerate the law school’s progress even more in the years to come.”
As dean, Ahdieh will oversee all academic and operational affairs of the law school, and will report to Texas A&M Provost and Executive Vice President Carol Fierke, who in announcing his appointment, emphasized Ahdieh’s achievements as a leader in the field of legal education, his significant administrative experience as vice dean and associate dean of faculty at Emory University, and the strength of his scholarly credentials. In particular, she highlighted his record of success in a variety of critical areas, including admissions, alumni relations, career development, faculty appointments and development, interdisciplinary initiatives, and the development of non-JD degree programs during his tenure at Emory.
Ahdieh holds a Bachelor of Arts from Princeton University’s Woodrow Wilson School of Public and International Affairs and a Juris Doctor from Yale Law School. He served as law clerk to Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit before his selection for the Attorney General’s Honors Program of the Civil Division of the U.S. Department of Justice.
His scholarly interests revolve around questions of regulatory and institutional design, especially in the business and financial arena. In addition to a monograph on legal transition in the former Soviet Union, published while he was still in law school, Ahdieh’s work has appeared in leading journals including the NYU Law Review, the Michigan Law Review, the Minnesota Law Review, the Boston University Law Review, and the Southern California Law Review.
In accepting the position, Ahdieh reflected on the significant potential of the law school, saying, “I believe no law school in the country has traveled further, in so short a time. Nor does any have more upside potential, going forward.”
Among the key priorities for the School of Law in the coming years, say university officials, will be continuing to build a world-class faculty and ensuring that faculty have the resources necessary to produce research of consequence and significance; extending the audience for a Texas A&M legal education beyond students seeking a three-year J.D., including through new and expanded non-J.D. programs; and enhancing the scope of the law school’s external engagement through active outreach to the community, graduates, and colleagues in legal academia – an effort that will require the active participation of faculty and staff.
Continued investment in faculty excellence and in the recruitment of great students, systematic efforts to increase awareness of the school’s achievements, a focused fundraising campaign, and employer outreach targeted to improving the quantity and quality of placement opportunities available to students around Texas, the United States, and around the world are particular initiatives Ahdieh says he plans to undertake upon taking up the deanship on July 15.
Young and Fierke acknowledged the work of the Search Advisory Committee and thanked Professor Thomas W. Mitchell for his invaluable service as interim dean over the last year.
About Texas A&M University
Texas A&M, established in 1876 as the first public university in Texas, is one of the nation’s largest universities with more than 66,000 students and more than 440,000 living alumni residing in over 150 countries around the world. A tier-one university, Texas A&M holds the rare triple land-, sea- and space-grant designation. Research conducted at Texas A&M represented annual expenditures of more than $905.4 million in fiscal year 2017. Texas A&M’s research creates new knowledge that provides basic, fundamental and applied contributions resulting, in many cases, in economic benefits to the state, nation and world. The school’s Lead by Example campaign is a comprehensive effort to raise $4 billion by the year 2020, making it the largest higher education campaign in Texas history and the second largest conducted nationally by a public university. Aggies are known for their deep commitment to the success of each other and a strong desire to serve.
Media Contact: Kelly Brown, firstname.lastname@example.org.
Friday, June 15, 2018
New scientific studies have proven what we might all have been jokingly saying, but which apparently is true: the world population is increasing, but IQ levels are decreasing. The reason? Nurture, not nature.
The studies claim that after 1975, IQ levels started to drop because of, it is thought, "environmental factors." These could include pollution, changes in the education system and media environment, nutrition, reading less, and being online more. Yikes.
"It's not that dumb people are having more kids than smart people, to put it crudely. It's something to do with the environment, because we're seeing the same differences within families," said one of the co-authors and lead researchers on the project.
For us, this is not good news for obvious reasons. But are we, in fact, a contributing cause? I know that some of my students, for example, do not enjoy and sometimes simply will not read long homework assignments, don't read privately, and indeed spend large amounts of time online. I'm sure your students are not very unlike mine in that respect. Other studies that I don't have handy here also demonstrate that our students have difficulty reading longer texts simply because they are not used to reading anything much longer than blog posts, twitter feeds, and maybe the occasional article here and there, but certainly not books.
Read the entire findings. References to "changes in the education system" and "decreasing access to education" are disturbing.
Monday, June 11, 2018
If you teach Lady Duff-Gordon, as I teach Lady Duff-Gordon, you know that it's a fun case that lets you talk about a frankly pretty incredible life. But it's also an older case, so here's a more recent case out of New York using the implied covenant of good faith and fair dealing to potentially save an allegedly illusory promise, Ely v. Phase One Networks, Inc., 2667/2017 (behind paywall).
The plaintiff is a composer. The defendant is a company that produces music albums. The parties entered into recording and co-publishing agreements. The plaintiff sought a declaratory judgment that the contracts are unenforceable because they are illusory and unconscionable and moved for summary judgment. The court found that factual disputes existed as to both the unconscionability and illusory allegations. The analysis on unconscionability was very brief, but the court did provide a slightly deeper analysis on the illusory promise front. Although the recording contract provided that the recordings were "subject to the defendant's approval in its sole judgment," the court noted that the covenant of good faith and fair dealing "implicit in all contracts" meant that "the defendant could not unreasonably withhold approval."
Wednesday, May 30, 2018
Although this post does not have anything to do with contracts law, it is hopefully interesting to many of you law professors anyway.
Scientific research shows that in years with warmer temperatures, students score worse on tests. The link is "significant." Researchers calculated that for every 0.55° C increase in average temperature over the year, there was a 1% fall in learning.
Colder days did not seem to damage achievement - but the negative impact began to be measurable as temperatures rose above 21° degrees C. The reduction in learning accelerated once temperatures rose above 32° C and even more so above 38° C.
A simple solution could be to use more airconditioning on test days. The more complex, but necessary, solution is to curb climate change. The world is still not doing enough in that respect despite the 2015 Paris Agreement. In particular, it is problematic that the USA has announced its withdrawal from the climate change agreement.
Could increasing temperatures also be part of the reason for our students' worse and worse bar performances? Apparently so.
Thursday, May 24, 2018
The life of a blogger can sometimes feel like toiling sometimes in relative obscurity. And then there's the moment when you get cited as evidence in a case!
A recent decision out of the District of Columbia in Mawakana v. Board of Trustees of the University of the District of Columbia, 14-cv-02069-ABJ, referenced ContractsProf Blog. The case was a tenure dispute between the plaintiff professor and the defendant university. The plaintiff alleged he was denied tenure because of racial discrimination. The defendant moved for summary judgment, which was granted.
Part of the plaintiff's evidence was a number of favorable comments on his scholarship, including "honorable mention from ContractsProf Blog." The court cites to the plaintiff's opposition, which is sealed, so I can't see exactly what was stated about the entry. I found the school's write-up of it, but the link the school provides to the blog entry doesn't work for me (maybe my computer is just being fickle and you'll have better luck).
Despite the favorable comments, including the ContractsProf Blog entry, the court noted that there were also less favorable comments about the plaintiff's scholarship (the court actually noted in a footnote that one of the reviewers did not give the ContractsProf Blog honorable mention "any weight"). The court also found that the favorable comments did not mean that the plaintiff's denial of tenure must have been based on racial discrimination. The court eventually concluded, after much analysis (a great deal of it redacted), that the plaintiff wished for the court "to weigh in on the merits of the University's academic judgments in a manner that is contrary to the legal principles governing these disputes."
The court also found the plaintiff's contract claims to be time-barred, but, even if not time-barred, not supported by evidence.
(This is not, btw, the first time we blogged about this case.)
h/t to Prof. Eric Goldman at Santa Clara for sending this case to our attention!
Wednesday, May 23, 2018
The dream of becoming a practicing attorney still attracts many students to law school. As we know, many will make it in the legal industry, but many will never get a chance as they will either be attrited from their law schools or, yet worse, never be able to pass the bar. Still, many law schools continue contracting with students they know have a poor chance of ever making it. From a contracts point of view, this is arguably at least bad faith in contracting if not worse. See well-known bar passage analyst David Frakt's blog on the issue here.
Monday, April 2, 2018
Allow me to share some good “personal” news for once: I just received word that all levels of the USD administration has voted for granting me tenure! The Board of Regents will cast its final vote on this in early May.
As some of you will know, it has not been an easy process. I encountered several tiring and stressful procedural hurdles with the USD administration, but the law school was at all times supporting me intensely just as I only got excellent scholarship reviews, so it all ended well! I could also not have done this without the excellent, tireless, and creative legal assistance not to mention very highly encouraging support of David Frakt, Esq.
Monday, December 11, 2017
Were you aware of this? A first-of-its-kind study exploring the relationship between specific law school courses and components of the bar exam has identified Contracts as making the greatest contribution to performance on the Multistate Bar Examination among first-time takers. Most of the other MBE-subject courses showed no significant contribution to overall MBE performance. Austin, Christopher, and Dickerson, Will I Pass the Bar Exam?: Predicting Student Success Using LSAT Scores and Law School Performance, 45 Hofstra Law Review 753, 772 (2017), available here: http://www.hofstralawreview.org/wp-content/uploads/2017/06/BB.2.Austin-et-al.NEW_.pdf
Hat tip to Otto Stockmeyer for this story!
Thursday, November 30, 2017
I always struggle to think of examples of illegal contracts other than contracts to kill people, which makes for a dramatic class discussion but I fear might cause the students to write off illegal contracts as a subject better suited for Breaking Bad or something. So I was delighted to come across this recent case out of Michigan, M-D Investments Land Management, LLC v. 5 Lakes Adjusting, LLC, No. 336394 (behind paywall), dealing with an illegal contract.
While the contract is found illegal in this case, the facts are not glamorous. The plaintiff hired the defendant to adjust its fire insurance claim and signed a contract for the services. Later, the plaintiff filed this action seeking a declaration that the contract between the parties was illegal as against public policy, and therefore voidable at the plaintiff's option. The issue was that the contract had not been approved by the Department of Insurance and Financial Services ("DIFS") as required by Michigan statute.
The trial court found the contract in violation of the statute and thus voidable, and this appellate court agreed. The statute required the adjuster to seek approval from DIFS of its contract, and the defendant's failure to do so, no matter the reason, made the contract at least voidable at the plaintiff's option (which the plaintiff had chosen to exercise), if not void altogether.
The defendant argued that it has since obtained DIFS approval of its contract. However, it was undisputed that it did not have this approval for the entire time the contract with the plaintiff was in effect. Thus, the contract could not be saved by after-the-fact approval.
Monday, October 30, 2017
In the wake of the Weinstein revelations, everyone is talking about it: NDAs seem to be part of the problem. They were used consistently to silence people from speaking out. The NDA seemed to be how you could get away with it, as Weinstein's last-ditch offer to Rose McGowan to keep the lid on the story seems to illustrate. You can read criticisms of NDAs at Vox, Variety (and again), CNN (and again), the New York Daily News, Above the Law, and Forbes. And that was just my first page of Google results. I've been blogging about the danger of them for a while. It's not just the rich and powerful using them; college campuses are also using them in the sexual assault context. And they're not just being used to cover up sexual abuse; Amber Heard's NDA restricted her from apparently ever even mentioning domestic abuse at all. It's easy to see why NDAs are popular among the powerful (the President also loves them). They allow complete and total control of the narrative. An NDA can make it a legal breach for you to tell the truth; an NDA can indeed make it legally enforceable for you to lie, basically. And, in this way, the fuzzy line between truth and fiction becomes fuzzier and fuzzier. And people get victimized and feel alone and the culture of contractual silence makes them lonelier, depriving them of support systems.
NDAs also exist for lots of valid and important reasons. But they are also being widely and abusively used and we as a society need to confront that. The question isn't why less powerful people sign these NDAs. Until we can fix power imbalances (and we're a long way from that), it's always going to happen. But we should really question the public policy justifications for NDAs in certain circumstances. These past couple of weeks have spotlighted lots of troubling systemic issues in our society. This is one of them.
Wednesday, October 4, 2017
Greetings, ContractsProf Blog readers--today I invoke my rarely-used editor's prerogative to publicize an important announcement from my home institution. Feel free to share the following Dean Search Announcement from Texas A&M University School of Law in Fort Worth, Texas, a place that I can say from firsthand experience is a wonderful place to teach, write, and serve.
Texas A&M University is a tier-one research institution and American Association of Universities member. As the sixth largest university in the United States, Texas A&M University is a public land-grant, sea-grant, and space-grant university dedicated to global impact through scholarship, teaching, and service. The members of its 440,000 strong worldwide Aggie network are dedicated to the University and committed to its core values of excellence, integrity, leadership, loyalty, respect, and selfless service.
Located in Fort Worth, the Texas A&M University School of Law is one of 16 colleges and schools that foster innovative and cross-disciplinary collaboration across more than 140 university institutes and centers and two branch campuses, located in Galveston, Texas and Doha, Qatar. Since joining the A&M family in 2013, the law school has sustained a remarkable upward trajectory by increasing its entering class credentials and financial aid budgets; shrinking the class size; hiring new faculty members, including nationally recognized scholars; and enhancing the student experience. Consistent with its mission, Texas A&M University School of Law integrates cutting edge and multidisciplinary scholarship with first-rate teaching to provide students with the professional skills and knowledge necessary for tomorrow’s lawyers. Texas A&M University School of Law faculty members and students play a vital role by providing their legal expertise to collaborations with other Texas A&M professionals to develop new understandings through research and creativity.
The next Dean of Texas A&M University School of Law should provide dynamic, innovative, and entrepreneurial leadership and vision to shape the school’s continued transformation into a model for future legal education. Candidates should have a Juris Doctorate and a scholarly record appropriate for appointment at the rank of tenured professor. Other candidates who hold distinguished records of professional and intellectual leadership or outstanding service to the community will also be considered. The successful candidate should be:
- committed to the school’s scholarly mission;
- a strong law school advocate who seeks cross-unit collaborations with other university schools and colleges;
- a successful fundraiser who can obtain support for various programs and projects, including the Law School Building Project recently approved by The Texas A&M University System Board of Regents, as well as endowed faculty chairs, professorships, and student scholarships;
- an effective administrator with team-building skills and a collaborative management style appropriate to a complex organization; and
- dedicated to community engagement and public service and experienced at external relations, including outreach to law firms, corporations, and foundations as well as government agencies, non-profit organizations and policy-makers.
The Texas A&M University School of Law is located in the heart of downtown Fort Worth, a city known for a unique confluence of Texas history and renowned arts. Fort Worth enjoys a diverse business community, including energy, defense, international trade, and logistics as well as financial services. Just outside of downtown, Fort Worth has many neighborhoods with recognized schools a short distance from the law school. Fort Worth is known nationally as the home to the Bass Performance Hall, the Kimbell Art Museum, and the Amon Carter Museum of American Art, among others. The Trinity River flows through the city. It features over 40 miles of trails, providing access to the Fort Worth Botanic Garden, the Japanese Garden, the Fort Worth Zoo, and the historic Stockyards. The Fort Worth/Dallas metropolitan area has a total population of more than seven million. It offers a vibrant legal community that supports extensive federal and state court systems, including the Patent and Trademark Office, the Federal Reserve Bank, the National Labor Relations Board, the Environmental Protection Agency, and the Securities and Exchange Commission. Fort Worth/Dallas has one of the world’s largest airports. As one of the most desirable places to live and work in the United States, the metroplex has attracted many multinational corporations.
Applications should include a curriculum vitae, a cover letter including a statement of interest, and a list of three references. Only nominations and applications received by November 17, 2017 are assured consideration. Nominations and applications received after November 17, 2017 may or may not be considered.
Applications and nominations should be submitted electronically in confidence to email@example.com. Applicant information will be kept confidential to the maximum extent allowable by law. Additional information and timeline can be found at http://lawsearch.tamu.edu.
Texas A&M University provides equal opportunity to all employees, students, applicants for employment or admission, and the public, regardless of race, color, sex, religion, national origin, age, disability, genetic information, veteran status, sexual orientation, or gender identity.
Friday, September 8, 2017
In my head it's still the beginning of the school year, even though at my school we just finished our third week of classes already. This means that, because we only have a one-semester Contracts course, I'm just finishing up contract formation and moving on, and this case is kind of a nice little reminder review about the principles surrounding offers.
The case out of New Jersey, Kristine Deer, Inc. v. Booth, No. C-29-16 (behind paywall), involved a luxury active wear company, K-DEER, for which the defendant, Booth, worked. Booth had several conversations over the course of her employment with K-DEER's sole shareholder, Kristine Deer, about Booth receiving possible equity interest in the company. However, every one of those conversations was fairly vague. Deer seemed to always finish the conversations with some kind of demurral: that she had to "think about" it more, or that she wasn't "ready to have the conversation." Eventually, Booth resigned with an e-mail that read "If you are not willing to pursue an active dialog about ownership I am not interested in working at K-DEER."
The parties are now involved in litigation, which included, among other things, Booth's counterclaim for breach of contract. She alleged that "Deer led [her] to believe she was a partner and had a right to equity in K-DEER," because she "did not explicitly deny her requests for equity" and called her a "partner" at times. However, the court quoted at length from Booth's deposition, where she admitted that Deer did not offer her any equity and that, in fact, her unwillingness to do so was why she resigned. Under these circumstances, it was impossible to find an offer from Deer to Booth. There was no expression of commitment on Deer's part. In fact, all of Deer's statements seemed to evince the opposite. So the court found no contract existed between the parties.
As I am teaching my students to do now, the court then moved on, examining Booth's claim for quantum meruit. However, Booth never alleged that she wasn't adequately compensated, just that she would have left K-DEER earlier had she realized Deer wasn't going to give her equity. That did not justify quantum meruit. The court found that Booth had been compensated for all the work she had performed, so there was no unjust enrichment on K-DEER's part.
Friday, August 18, 2017
Having disappeared for a couple of weeks into frantic preparation for the new semester, I thought I would re-emerge by sharing a hypo that I do with my students on the first day of class, based on Conan O'Brien's contract dispute with NBC from a few years ago. The hypo goes something like this:
Brian O’Conan is a comedic host who has helmed a show on CBN, Later at Night, for sixteen years. Later at Night airs at 12:30, and Brian has always wanted to “move up” in the world of late night hosts to host a show at the earlier time of 11:30. Five years ago, in order to keep Brian at the network, CBN promised to give Brian hosting duties for its legendary 11:30 show, Somewhat Late at Night, as soon as Len Jayo’s current contract was up. Somewhat Late at Night is a flagship show that has aired in its time slot on CBN for 43 years; prior to that, it started at 11:15 for 14 years. For its entire 57-year existence, Somewhat Late at Night has begun directly after the late local news.
Brian and CBN enter into a contract with the following terms:
- Brian is guaranteed that he will be the host of Somewhat Late at Night.
- Both Brian and CBN promise to act in good faith in executing the contract.
- Both parties will mitigate any damages caused by a breach of contract, but CBN agrees that it will pay Brian $40 million if it breaches the contract.
- Brian is prohibited from being a late-night host on any other network in the event of a breach of the contract.
As promised by the contract, Brian becomes host of Somewhat Late at Night. After a strong start, Brian’s ratings trail off. Six months into Brian’s stint as host, CBN makes a public announcement that Somewhat Late at Night will be moved to start at midnight. It will use the 11:30 time slot for a new late-night show with old Somewhat Late at Night host Len Jayo.
Brian, learning all of this for the first time from the public announcement, tells CBN it has breached the contract, demands payment of $40 million, and also opens discussions with a competing network, Wolf, to host a new late night show at 11:30.
I like this hypo because, even though it was several years ago now, most students recognize the real-life situation this problem was based on and so feel somewhat engaged with it. In addition, even though I have taught them literally nothing about contract law at this point, I think they gain a lot of confidence from being able to examine the problem and come up with ideas for how the analysis should begin. I usually split them up and assign them a side to represent and have them make arguments on their client's behalf, and then allow them time for rebuttal. Along with discussing the contract's terms around the show itself, the students get into discussions about good faith, mitigation of damages, and just basic fairness. When we're done with the discussion, I then ask them how they felt about the side they had been assigned to, and if any of them had wished they'd had the other side. I think it is a good basic introduction to the task of being lawyers that I find relaxes them a little on the first day: If they can already talk about this problem on the first day, imagine how much better they'll be once they know some law!
If you're starting school years like I am, good luck!
Friday, July 28, 2017
Our friend and esteemed colleague, Professor Charles Calleros, has kindly sent the following as a guest contribution to the ContractsProf Blog. Enjoy!
Recently Val Ricks has collected a number of essays from colleagues on best and worst cases for the development or application of contract law. In addition to participating in that project, Charles Calleros invites faculty to upload and post links to essays about their favorite cases as teaching tools (regardless whether the cases advance the law in an important way). He starts the ball rolling with this Introduction to his essay on "Why Pyeatte v. Pyeatte Might be the Best Teaching Tool in the Contracts Casebook":
Pyeatte v. Pyeatte, a 1983 decision of the Arizona Court of Appeals, did not break new ground in the field of contracts. Nonetheless, I assert that it is one of the best pedagogic tools in the Contracts casebook, for several reasons:
- * The facts are sure to grab the attention of first-semester law students: A law grad reneges on a promise to support his ex-wife through graduate school after she supported him through law school during their marriage;
* This 1980’s opinion is written in modern plain English, allowing students to focus on substance, while also learning a few necessary legal terms of art.
* After their immersion in a cold and rather unforgiving bath of consideration and mutual assent, students can finally warm up to a tool for addressing injustice: quasi-contract;
* The opinion’s presentation of background information on quasi-contract provides an opportunity to discuss the difference between an express contract, an implied-in-fact contract, and an implied-in-law contract;
* Although the wife’s act of supporting her husband through law school seems to beg for reciprocation or restitution, students must confront judicial reticence to render an accounting for benefits conferred between partners in a marriage, exposing students to overlap between contract law and domestic relations law;
* The appellate ruling of indefiniteness of the husband’s promise – presented in a later chapter in my casebook, but looming vaguely in the background of the discussion of quasi-contract – invites critique and perhaps even speculation that the appellate panel felt comfortable denying enforcement of the promise precisely because it knew it could grant restitution under quasi-contract; and
* The court’s admonition that expectation interest forms a ceiling for the calculation of restitution reveals a fascinating conundrum that brings us back to the court’s ruling on indefiniteness. . . .
You can find the whole essay here.
Monday, July 10, 2017
Over at the hallowed mothership of the Law Professor Blogs Network, TaxProf Blog, Jeff Lipshaw (Suffolk) has written a thought-provoking post entitled "Robot Lawyers, 'Skills Training' and Legal Education." Here are two of the key closing paragraphs:
As a long, long, long time practitioner and generalist, I continue to be amused (or something like that) by the buckets of legal education (the rooms of the Mystery House). For example, it took returning to academia to find out that "commercial law" (i.e. the UCC) is a different area than "corporate law." Within business law, there are corporate camps and "uncorporate" camps, with the latter seemingly most interested in demonstrating why the area in which they happen to write and teach is normatively superior to the other (my friend and co-author, the late Larry Ribstein, being a prime example of the latter).
In the long, long term, I think the crunchable middle will be both doctrine, as traditionally taught, and what today pass for "skills." Both, to a large extent, have the potential of being robotic. The long game is in doing and teaching what robots really can't do, or in managing the robots. I'll put aside both trial and appellate litigation and focus on everything else lawyers do. In the interim, I'd do away with a lot of classes that are merely more yammering away at segments of doctrine by way of litigated cases, reverse the classroom, and make classes ones in which you merely bring doctrine to the party along with all the other theories. (In my own area, I'd do away with the traditional business law courses, and combine with the business school to teach "Law & Finance of Business Entities" with J.D. and M.B.A. students intermingled.)
The whole post is well worth a read and is available in its natural habitat here.
When I teach my students rules of construction and we talk about contra proforentem, I feel like the standard examples I use with them are insurance contracts, where it's easy to identify who the drafter is. A recent case out of Indiana, Song v. Iatarola, Court of Appeals Case No. 64A03-1609-PL-2094 (thank to D.C. Toedt for the new non-paywall link!), involved an actual discussion of who was the "drafter" in a situation where both parties had input in the contract. The Iatarolas seemed to try to argue that Song should be considered the drafter and have the contract construed against him because he was the one who typed it into Microsoft Word. The court pointed out, though, that the rule of construction is about independent drafting, not a situation where both parties contributed to the contractual terms. Who physically types the contract up means nothing if both parties have helped to decide on the terms being typed up. I have never thought to discuss that with my students, but I think I might bring it up, just to be clear on what the rule is talking about.
Monday, March 27, 2017
I've blogged a lot about NDAs on this blog, including in the context of allegations of domestic violence. So when I saw this recent essay on Inside Higher Ed discussing NDAs in the context of sexual assault investigations on university campuses, I thought it would be interesting to link to. Confidentiality provisions show up everywhere, and I think the essay is a thoughtful and important rumination on the effect they can have in some situations.
Friday, January 13, 2017
Frequently when I teach Contracts I find myself telling the students to just put in the contract exactly what they want it to say, because so often I feel like cases revolve around parties saying, "I know what it said, but I thought that meant something else entirely." Although, often, of course, these might be ex post facto proclamations when a situation turns out to not be exactly what the party thought it was going to be.
A recent case out of Maryland, Norman v. Morgan State University, No. 1926 September Term 2015 (behind paywall), is another illustration of a party claiming that a contract means what a court finds it does not mean. In that case, Norman had sued Morgan State after he was denied tenure there. The parties entered into a settlement agreement under which Norman was permitted to apply for "any non-tenure track position at [Morgan State] for which he was qualified." The current lawsuit is the result of Norman's allegation that Morgan State prevented him from applying for an external research grant that that would have funded a future position at the school for him.
The court, however, found that the contract clearly stated that Norman could apply for "any non-tenure track position." It said nothing about external grants and external grants are not non-tenure track positions. Therefore the settlement agreement did not require Morgan State to permit Norman to seek the external grant. Norman tried to argue that he would not have agreed to the settlement agreement had he known it allowed Morgan State to block applications for external grants, but the court dismissed that argument based on the plain and unambiguous language of the contract.
Wednesday, November 30, 2016
I am always saying to my students that if they care about something, they should put it in their contract, and they should be specific about what it is they want. I think sometimes people might think there's something to gain strategically by being vague, but introducing ambiguity into a contract can work out very poorly (and also takes control out of the hands of the parties). A recent case out of Florida, Boardwalk at Daytona Development, LLC v. Paspalakis, Case No. 5D15-1944, is a case where the court, faced with an ambiguous description of the land at issue in a contract, just threw up its hands in frustration.
The dispute between these two parties has been long and contentious. According to this article, it's dragged on for over a decade. It was originally rooted in an eminent domain proceeding in which Boardwalk at Daytona ("BDD")'s predecessor obtained property belonging to Paspalakis and the other appellees. The appellees contested BDD's acquisition of their land and eventually that lawsuit was settled. The settlement agreement provided the appellees with an option to purchase and operate 7500 square feet of retail space on the Daytona Boardwalk. The agreement contained no legal description or street address for the property at issue. The agreement said that the land would: (1) be adjacent to another particular business; (2) have a minimum of 50 boardwalk frontage feet; and (3) have sufficient land to build a 7500-square-foot, one-story building. Unfortunately for the appellees, there were at least three parcels of land that met this description, and they ranged drastically in size from around 7700 square feet to over 17,000 square feet.
The problem with the description of the land in the settlement agreement was exposed when the appellees tried to operate their option. BDD offered a piece of property that met all three criteria set forth in the settlement agreement. However, the property required unusual structural design features that troubled the appellees and also came with a negative easement for light, air, and unobstructed view that benefitted the BDD property next door. The appellees therefore objected to this plot of land and asked for another one.
BDD sought a declaratory judgment that the plot of land it proposed was sufficient under the settlement agreement and that it did not have to provide another plot of land. The appellees, in response, sought specific performance that BDD provide a plot of land fitting the description in the settlement agreement, without the restrictions of the land BDD had offered. In the face of the counterclaim, BDD shifted stance and argued that the settlement agreement was too ambiguous to be enforced.
The trial court sided with the appellees and ordered BDD to convey the largest possible plot of land to the appellees. BDD appealed, and this court agreed with BDD. The court noted that a description of the land in question is usually considered an essential part of any land purchase agreement, and that without any such description there are serious doubts whether the parties reached a meeting of the minds. The description of the land in the settlement agreement here was ambiguous. The trial court correctly examined parol evidence to try to resolve the ambiguity, but it didn't help. The contract terms at issue here simply could have been fulfilled by any of three very different parcels of land. To this court, there was no contractual way to choose between them and no parol evidence that shed light on which parcel of land the parties had in mind. Indeed, the court was skeptical the parties ever really agreed on which parcel of land would be conveyed, and so the parties never reached a meeting of the minds that could be enforced. Therefore, the court reversed the order of specific performance and entered judgment for BDD instead.
A bitter pill here for the appellees, who doubtless thought that they were getting something of value in the settlement agreement they struck and end up with nothing to show for it. But it does seem like there was considerable confusion about which land was affected by the situation here. I guess it's a lesson to all of us: try to be as specific as possible. I tell my students drafting contracts is frequently like playing a game of what-if with yourself. What if BDD offers this parcel of land instead of that parcel of land? If the answer to that question is that you would prefer one parcel of land over the other, best to be specific in the contract.
Thursday, November 24, 2016
As our friends on the Faculty Lounge just announced, Dean Schwartz was just forced to step down as Dean of the University of Arkansas, Little Rock, School of Law. Why? After the recent presidential election, he sent an email to students offering counseling to those upset by the results. Similar initiatives were undertaken around the nation in places so politically and geographically different as the University of South Dakota and Occidental College in Los Angeles.
Apparently, what really cost Dean Schwartz his position was his personal opinion given in the email, namely that the services would be offered to students who “feel upset” following the “most upsetting, most painful, most disturbing election season of my lifetime.”
A colleague of Schwartz's, Robert Steinbuch, who previously tussled with Schwartz over diversity in admissions, explained [cite to FL]: “If you tell people every time they lose they’re entitled to counseling, you elevate the perceived level of wrong beyond what it is. Most assuredly, Democrats are disappointed a Republican won. I recall when the Democratic Party won the Presidency twice each of the previous two elections. I knew plenty of people who were disappointed at that time, but I didn’t know anybody that needed grief counseling. I think when we tell people that they need some form of grief counseling we are normalizing hysteria and suggesting there’s something immoral or wrong about our democratic process.”
How incredibly misunderstood and off point. First, there really is something wrong about our democratic process when repeatedly, the person winning most of the popular votes in an election does not become the president. Similarly, our two-party only, “winner takes it all” system is arguably not a sufficiently faceted system that can be considered to be a true representative, deliberative democracy. But I get that, the system should then be changed before the next election. That won’t happen, just like time after time, mass shooting episodes don’t cause a change to our gun laws or the mass murder situation in general. Such is our country, and so be it, apparently.
What is incredible to me in relation to the above is not Schwartz’ alleged normalization of “hysteria” (read: justified outrage), it is attempts to make this particular election appear normal. It simply was not. Everyone seems to agree on that, Democrats and Republicans alike. In fact, note that many Republicans were outraged as well – and for good reason. Should it be acceptable that we now have a President who, for example, is proud that he “grabs women by the pussy” and “just start[s] kissing them” whether or not they want it? Someone who claims that he is “smart” for not paying taxes for, apparently, many years to a country that he wants to lead, even though he could easily afford doing so? A person who, in spite of sound science proving otherwise until at least yesterday claimed that climate change is a “hoax made up by the Chinese”?
I would hope not. But as we see, apparently that is what we just have to put up with and not even opine about, even in legal academia, in the form of a sentence as innocuous as one that refers to simple, but honest, feelings shared by millions of other people as well.
Throughout history, censorship has never proved particularly effective. As a nation, if we seek to revert to such strategies, we are truly in trouble. Schwartz’ comments may well have upset Republican law students, but maybe that in and of itself would have had some value, especially in an academic setting where thoughts are valued for being just that; thoughts that just might help improve our nation.
On an up note: Happy Thanksgiving, and thanks to Michael Schwartz for being a such a courageous, thoughtful dean and legal scholar!
Greetings from Berlin.
November 24, 2016.