ContractsProf Blog

The New Season of Ozark Has Dropped: Contracts Issues Abound!

In these days of pandemic-induced isolation, when one cannot go safely to the cinema or theater, it is nice to be able to follow characters who live as though there never were a pandemic and whose lives are somehow nevertheless a million times worse than ours.  Perhaps this is the hidden allure of Netflix's Ozark.  Perhaps it is the fine performances and the moral dilemmas that the characters have to navigate.

Or maybe it's just all the contractual issues that arise (if you can set aside the fact that all of the agreements would be unenforceable under the doctrine of illegality.

SPOILER ALERT: PLOTS (AND PLOTS) REVEALED AFTER THE BREAK!

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Library of Congress, Baby!

Whenever I am trying to persuade my fellow academics that blogging, while not scholarship, is a great way to get one's scholarship-related ideas before a large public, I mention that we get about 400 visits per weekday during the semester and two or three times that many page views.  Unimpressed colleagues typically respond, "You know those are mostly bots, right?"

Well, one of those "bots" was the Library of Congress!  This week we received notification from that prestigious institution that it has selected the ContractsProf Blog  "for inclusion in the historic collection of Internet materials related to the Legal Blawgs Web Archive."  Why? Because the e-mail continued, "We consider your website to be an important part of this collection and the historical record."

Hah!  Bots indeed.  And all I had to do to make our content part of the permanent historical record was to fill out a form and provide my name, home address, date of birth, social security number, drivers' license number, passport number, credit card number, credit score, and my mother's maiden name.  

The follow-up e-mail was a bit disconcerting.  Does anybody know how I would get my hands on 100 Bitcoin?

Tuesday Top Ten - Contracts & Commercial Law Downloads for January 25, 2022

Welcome back to our weekly excursion into the wisdom of crowds: What exactly IS the hottest in new contract and commercial law scholarship according to SSRN? So glad you asked!

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 26 Nov 2021 - 25 Jan 2022

Rank	Paper	Downloads
1.	Philosophy of Contract Law Daniel Markovits and Emad H. Atiq Yale Law School and Cornell University - Law School	234
2.	The Internal Point of View in Private Law Jeffrey A. Pojanowski and Paul B. Miller Notre Dame Law School and Notre Dame Law School	198
3.	The Mystery of the Missing Choice-of-Law Clause John F. Coyle University of North Carolina School of Law	172
4.	The Many Layers and Dimensions of Contract Design Marcelo Corrales Compagnucci, Helena Haapio and Mark Fenwick Centre for Advanced Studies in Biomedical Innovation Law (CeBIL), Faculty of Law, University of Copenhagen, University of Vaasa, School of Accounting and Finance, Business Law and Kyushu University - Graduate School of Law	165
5.	Why Corporate Law Is Private Law Asaf Raz University of Pennsylvania Law School	165
6.	Credit Scoring Duality Pamela Foohey and Sara Sternberg Greene Yeshiva University - Benjamin N. Cardozo School of Law and Duke University School of Law	128
7.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	111
8.	Strict Products Liability 2.0: The Triumph of Judicial Reasoning over Mainstream Tort Theory Mark Geistfeld New York University School of Law	105
9.	The Present and Near Future of Self-Driving Contracts Anthony J. Casey and Anthony Niblett University of Chicago Law School and University of Toronto - Faculty of Law	97
10.	The Law of Haunted Houses: A Comment on Stigmatized Properties following Wang v Shao Reagan Seidler Law Society of Upper Canada - Smart & Biggar	85

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 26 Nov 2021 - 25 Jan 2022

Rank	Paper	Downloads
1.	The Mystery of the Missing Choice-of-Law Clause John F. Coyle University of North Carolina School of Law	172
2.	The Many Layers and Dimensions of Contract Design Marcelo Corrales Compagnucci, Helena Haapio and Mark Fenwick Centre for Advanced Studies in Biomedical Innovation Law (CeBIL), Faculty of Law, University of Copenhagen, University of Vaasa, School of Accounting and Finance, Business Law and Kyushu University - Graduate School of Law	165
3.	Why Corporate Law Is Private Law Asaf Raz University of Pennsylvania Law School	165
4.	Credit Scoring Duality Pamela Foohey and Sara Sternberg Greene Yeshiva University - Benjamin N. Cardozo School of Law and Duke University School of Law	128
5.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	111
6.	The Present and Near Future of Self-Driving Contracts Anthony J. Casey and Anthony Niblett University of Chicago Law School and University of Toronto - Faculty of Law	97
7.	The Law of Haunted Houses: A Comment on Stigmatized Properties following Wang v Shao Reagan Seidler Law Society of Upper Canada - Smart & Biggar	85
8.	Private Law Rights as Democratic Participation: Kelsen on Private Law and (Economic) Democracy Helge Dedek McGill University - Faculty of Law	85
9.	The Next Best Thing To a Promise Dori Kimel University of Oxford - Faculty of Law	76
10.	Jubilee Under Textualism John P. Hunt University of California, Davis - School of Law	69

 

A Modern Dickinson v. Dodds in Texas

Pictured is the railway station where the dramatic events of Dickinson v. Dodds took place in 1876.  Dickinson established two rules.  First, promises to keep an offer open must be supported by consideration in order to be binding.  Second, a revocation is effective even if communicated through third parties.  Dickinson learned that Dodds had already sold the property that Dodds had offered him.  He rushed to try to accept the offer before it lapsed but Dodds refused to sell, saying the property was already sold.  The court ruled for Dodds.  As a seller put it in another more modern case, “You snooze, you lose.”

Angel v. Tauch, 2022 Tex. LEXIS 31 (Jan. 14, 2022), revisits the same situation with respect to a settlement agreement.  The Supreme Court of Texas held that the implied revocation doctrine is not limited to transactions in real property.  The settlement offer at issue in the case “was impliedly revoked when the offeror assigned the underlying judgment to a third party for collection and the assignee gave the offeree a copy of the assignment agreement before he accepted the settlement offer.”

As is often the case in the 21^st century, the facts of Angel are a bit more complicated than those in Dickinson.  Tauch was indebted to South State Bank (the Bank) for $6 million.  He offered to settle the debt for $1 million.  On April 11, 2016, the Bank countered, offering to accept $2 million.  The Bank told Tauch to decide quickly or it would pursue alternative means of collection.  While Tauch was considering this offer, the Bank was working with another creditor, Angel, to collect from Tauch by other means.  On April 13, 2016, the Bank assigned its judgment against to Angel in exchange for $3 million, with Angel keeping whatever additional funds he recovered.  That same day, Angel notified Tauch of the agreement, which would not become effective until the following day.  Tauch rushed to accept the Bank’s $2 million offer on the afternoon of April 13th, but the bank refused, saying that it was too late.

There are really two routes to an implied revocation.  A revocation can be implied through conduct, but it can also be communicated through a third party.  In either case, the test under both Texas law and the Restatement (2d) §§ 42-43 is whether a reasonable person in the position of the offeree would conclude that the offer had been withdrawn.  The Supreme Court of Texas found that Tauch was effectively on notice of the Bank’s intent to withdraw its settlement offer when he learned of the Bank’s agreement with Angel.

H/T to Timothy Murray

TLDR Legislation

As readers of this blog (and everyone else in the world) knows, nobody reads Terms of Service.  Yet despite this, they stubbornly persist, and, like a certain virus, they continue to spread.  So, when I heard that a bipartisan group of lawmakers introduced legislation last Thursday known cutely as the TLDR bill (as in “too long, didn’t read” but officially standing for the  less cute “Terms of Service Labeling, Design and Readibility Act), I was both cheered and pessimistic.  Reading the bill only confirmed my initial reaction.

The bill would require that websites display a “short form” summary statement to make their terms easier to understand, include a “graphic data flow diagram” and display the “full terms of service” in an “interactive data format.”  The summary statement should be located at the top of the terms of service page and disclose the total word count and approximate time to read the statement.  It should also include a summary of the “legal liabilities” of the user and “rights transferred from the user to the covered entity, such as mandatory arbitration, class action waiver, any licensing by the covered entity of the content of the user, and any waiver of moral rights.”  They are also required to disclose what sensitive personal data they collect, and to disclose whether they have suffered recent data breaches.  Websites are already required to disclose data breaches and disclose information in many states (such as California), but they don’t always do so in a way that is easy to read and understand. 

The proposal arrives in the aftermath of the whistleblower, Frances Haugen’s, disclosures about the harms generated by Meta (formerly known as Facebook) and its various properties and the realization that the problems created by social media aren’t going to disappear on their own anytime soon – all of which have put lawmakers in a regulatory mood. 

The bill has good intentions and is, like the J & J vaccine, better than nothing.  But it’s not the 2-shot MRNA Pfizer or Moderna vaccine with booster that is needed to really make a difference given the reality of consumer contracting behavior. 

At-Will Health Care Workers Prevented from Seeking New Employment

The pandemic has generated some very surprising opinions.  Some of them relate to constitutional claims sounding in the Free Exercise Clause or this gem on the Second Amendment.  Some address questions relating to the extent of Congress's power to allocate authority to administrative agencies.  Over the weekend, we learned of one that is simply a question of freedom of contract, or so it seems.  As I have been unable to find a link to the complaint, I will have to rely on reporting.

As Madeline Hime of the Appleton Post Crescent reports here, seven at-will ThedaCare employees had quit their jobs and were set to start new positions at Ascension Northeast Wisconsin on Monday.  On Friday, attorneys for both entities were in court on ThedaCare's motion for an order enjoining its workers from jumping ship until ThedaCare was able to find replacements for them.  The court granted the motion until a fuller hearing can be held on Monday morning.  One hopes that the parties can work out a settlement before then.  Until then, these seven healthcare workers will not be working for either party.

ThedaCare alleges that Ascension "poached" its employees; Ascension claims that the employees simply applied for open positions and that ThedaCare had the opportunity to make its employees a counteroffer and declined to do so.  Let's hope that the court comes to its senses on Monday morning and allows these health workers to go back to work right away.  ThedaCare argues that the loss of these employees will endanger public health.  That claim is disputed, but even if it is true, the workers gave notice and cannot be forced back to work.  It is hard to see why ThedaCare should have any say in what it's at-will employees do once they leave their positions.

Teaching Assistants: Victor Goldberg on Lost-Volume Sellers

This is the fourth in a series of posts on Victor Goldberg's work.  Today's post is about Chapter 4 of his book, Rethinking Contract Law and Contract Design (RCL).

A post on Chapter 3 (timing for assessing damages) is here.

A post on Chapter 2 (the flexibility/reliance trade-off) is here.

The introductory post is here.

 In lost-volume cases, such as Neri v. Retail Marine, a seller can recover lost profits even though it was able to re-sell the good after breach.  Assuming an effectively infinite inventory, but for the breach, the seller would have sold twice, and so the re-sale does not mitigate its damages. I teach lost-volume sellers in my Sales course.  I feel bad about forcing lost-volume sales on students, because a lot of students have a hard time understanding when the doctrine might apply.  However, the doctrine seems like a good way to get students thinking about mitigation of damages and the contours of a party’s ability to recover for lost profits.  Lost volume cases might not arise very frequently, perhaps a product of amounts in controversy that do not justify the costs of litigation, but that does not mean the bar will not test the material.

Professor Goldberg is not enamored of the doctrine, especially because courts are wont to apply it in cases where it clearly does not apply (looking at you, then Circuit Judge Alito in Tigg v. Dow Corning) (RCL, 35-36).  As he does in Chapter 2, Professor Goldberg suggests that option pricing provides a far better solution to the lost-volume problem than the lost-volume doctrine.  Sellers know that some buyers will back out.  They rely on buyers; buyers should be willing to bargain for some flexibility.  So make buyers pay a non-refundable deposit, or the parties can agree to liquidated damages (which courts would be well-advised to enforce) as a way to protect seller’s reliance interest.  And buyers should be willing to pay a higher deposit when goods are not plentiful rather than when they are, so the UCC § 2-708(2) gets the option price backward (RCL, 36-38).

Lawyers representing Michael Jordan in In re WorldCom contended that he was entitled to lost- volume profits when a bankrupt WorldCom rejected his endorsement contract only six years into a ten-year commitment.  The bankruptcy court rejected Jordan’s claim that he was a lost-volume seller, but Professor Goldberg explains that the argument is not as preposterous at it seems.  Although MJ was only obligated to work 16 hours/year for WorldCom, and thus could have taken on other endorsement deals, he was not a lost-volume seller because he had not established that he had any interest in taking on additional deals.  He had no such interest, among other reasons, because WorldCom would argue that any such deals were mitigation.  But because MJ’s deal with WorldCom was exclusive only of endorsement deals with other telecom companies, any other endorsement deals would not have been mitigation, and the only thing that would be mitigation was taking an endorsement deal with another telecom company.  But doing so would have been a bad business decisions for MJ.  They would have made him look mercenary, like he will pimp any product (RCL, 40-43).  MJ is not the “Can you hear me now?” guy. 

Professor Goldberg faults the bankruptcy court for treating any endorsement contract that MJ would have taken as mitigation for WorldCom’s breach.  The court mistakes the interests we protect through the mitigation doctrine.  What matters in mitigation cases, Professor Goldberg argues, is not whether the alternative work taken on is comparable.  What matters is that new work is taken on that could not have been taken on but for the breach.  What the law characterizes as mitigation is really just an offset.  In MJ’s case, there could be no lost-volume problem, because MJ was not interested in a second sale.  If there was a second sale, only an endorsement deal with another telecom company would have offset his harm from WorldCom’s breach.  Professor Goldberg is sympathetic to MJ’s claim that he was entitled to full recovery because it would have been a bad business decision for him to take on a comparable endorsement deal (RCL, 44-46). 

I must admit, he loses me there.  MJ’s attorneys noted that MJ did not want to take on any more endorsement deals, as they detracted from his main goal, owning an NBA franchise.  For MJ, WorldCom’s beach was fortuitous.  He no longer had to do work that he no longer wanted to do.  I can see a legal argument for why MJ was entitled to compensation because of the breach, but I don’t see the economic argument.  MJ had protected himself contractually against a breach caused by WorldCom’s insolvency and had no duty to mitigate.  However, the Bankruptcy Code negates such contractual clauses, because they give unsecured creditors priority over secured creditors.  To the extent that the priority rules in the Bankruptcy Code made sense, I don’t see the economic argument for setting those rules aside for someone who has no interest in doing the work for which he was promised payment.

Quentin Tarantino gets sued, demonstrating that NFTs are about contracts after all

I’m excited to teach copyright this semester and while I miss teaching contracts, there is a lot of synergy between the two subjects.  So, I was interested to read that the director Quentin Tarantino is being sued by Miramax in an action claiming copyright infringement and breach of contract.  The lawsuit involves Tarantino’s efforts to auction pages of the script from Pulp Fiction as non-fungible tokens or NFTs. 

(Readers of this blog are of course familiar with NFTs, thanks to Juliet Moringiello and Christopher Odinet’s article and Jeremy Telman’s blog post on it here).

The issue is whether Tarantino owns the rights to the NFTs.  That will depend on the contract between Tarantino and Miramax and whether the language the parties used was broad enough to capture this type of technology – technology that wasn’t contemplated at the time the parties entered into their agreement.

 

The Private Law Podcast Features Liam Murphy

I started law school in the Fall of 1996, visions of social justice, constitutional, international, and comparative law dancing in my head.  I knew I would have to take torts and criminal law in the first semester.  That would be diverting, I thought.  There was also something called civil procedure.  I had no idea what that was, and based on my grades in that course, that had not changed by the the end of my first year.  Contracts was a course about transactional law, I supposed.  It was for people who became lawyers so that they could make money.  I had no interest in that.

Dutifully, I showed up for class, and in walked Liam Murphy (right).  Liam was not what I had in mind when I imagined my contracts professor.  He was not a transactional lawyer.  He was a philosopher.  I don't know if he ever practiced law or even got a law license.  He was a pure academic, and he thought about contracts law the way I wanted to think about contracts law, at a time when I thought I would never want to think about contracts law.  He started in with the very basic premise that, at least in the United States, contracts law is about promises, and so we started talking right from the beginning about why we enforce some promises and not others. 

Suddenly, contracts law was not at all about commerce or transactional work.  It was about a very basic human interaction.  It was about obligations, moral and legal, and about why we think some promises entail moral obligations and why the law treats some of those moral obligations but not others as legal obligations.  Yes, we read cases and we learned doctrine, and yes, those cases mostly involved commercial transactions.  We also read a lot of economics and law literature about contracts.  But we never lost track of the basic questions with which we started.  For which promises should the law provide a remedy in case of breach, and what are our intuitions, moral, conventional, or pragmatic, about what those remedies should be?   

Oh, how I came to love my contracts class!  How happily I would return to that classroom and do it over again! 

Well, thanks to Felipe Jimenez's Private Law Podcast, I was able to bite into a madeleine and feel as though transported back through time and space into Vanderbilt Hall circa 1996-97.  The conversation begins with Liam's thoughts about tax law, moves to property, and then settles in on the nature of promise and contract.  

Highly recommended!

Tuesday Top Ten - Contracts & Commercial Law Downloads for January 12, 2022

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 19 Nov 2021 - 18 Jan 2022

Rank	Paper	Downloads
1.	Philosophy of Contract Law Daniel Markovits and Emad H. Atiq Yale Law School and Cornell University - Law School	225
2.	The Internal Point of View in Private Law Jeffrey A. Pojanowski and Paul B. Miller Notre Dame Law School and Notre Dame Law School	187
3.	The Mystery of the Missing Choice-of-Law Clause John F. Coyle University of North Carolina School of Law	166
4.	The Many Layers and Dimensions of Contract Design Marcelo Corrales Compagnucci, Helena Haapio and Mark Fenwick Centre for Advanced Studies in Biomedical Innovation Law (CeBIL), Faculty of Law, University of Copenhagen, University of Vaasa, School of Accounting and Finance, Business Law and Kyushu University - Graduate School of Law	163
5.	Why Corporate Law Is Private Law Asaf Raz University of Pennsylvania Law School	157
6.	Credit Scoring Duality Pamela Foohey and Sara Sternberg Greene Yeshiva University - Benjamin N. Cardozo School of Law and Duke University School of Law	122
7.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	109
8.	Strict Products Liability 2.0: The Triumph of Judicial Reasoning over Mainstream Tort Theory Mark Geistfeld New York University School of Law	104
9.	The Present and Near Future of Self-Driving Contracts Anthony J. Casey and Anthony Niblett University of Chicago Law School and University of Toronto - Faculty of Law	92
10.	The Law of Haunted Houses: A Comment on Stigmatized Properties following Wang v Shao Reagan Seidler Law Society of Upper Canada - Smart & Biggar	84

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 19 Nov 2021 - 18 Jan 2022

Rank	Paper	Downloads
1.	The Mystery of the Missing Choice-of-Law Clause John F. Coyle University of North Carolina School of Law	166
2.	The Many Layers and Dimensions of Contract Design Marcelo Corrales Compagnucci, Helena Haapio and Mark Fenwick Centre for Advanced Studies in Biomedical Innovation Law (CeBIL), Faculty of Law, University of Copenhagen, University of Vaasa, School of Accounting and Finance, Business Law and Kyushu University - Graduate School of Law	163
3.	Why Corporate Law Is Private Law Asaf Raz University of Pennsylvania Law School	157
4.	Credit Scoring Duality Pamela Foohey and Sara Sternberg Greene Yeshiva University - Benjamin N. Cardozo School of Law and Duke University School of Law	122
5.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	109
6.	The Present and Near Future of Self-Driving Contracts Anthony J. Casey and Anthony Niblett University of Chicago Law School and University of Toronto - Faculty of Law	92
7.	The Law of Haunted Houses: A Comment on Stigmatized Properties following Wang v Shao Reagan Seidler Law Society of Upper Canada - Smart & Biggar	84
8.	Private Law Rights as Democratic Participation: Kelsen on Private Law and (Economic) Democracy Helge Dedek McGill University - Faculty of Law	83
9.	The Next Best Thing To a Promise Dori Kimel University of Oxford - Faculty of Law	73
10.	Jubilee Under Textualism John P. Hunt University of California, Davis - School of Law	66

 

Prince Andrew and the Awesome Power of Contracts Law

Image by Titanic Belfast, CC BY 2.0 , via Wikimedia Commons

Here's the problem about writing about the British Royal Family.  If you are someone who cares about the Royals, you know approximately 1.7 million times more about them than I do.  If you don't care about the Royals, nothing in the post will be of the slightest interest to you.  And yet, there is a big story out there; contracts law is at the center of it.  I am somewhat compulsive.  Sigh.  Here we go.

Earlier this month, Sid DeLong posted about the argument that Virginia Roberts Giuffre's suit against Prince Andrew alleging sex trafficking should be dismissed based on a Settlement Agreement and Release that she entered. into with Jeffrey Epstein in 2009. Last week, Judge Lewis Kaplan denied Prince Andrew's motion to dismiss in a 46-page opinion.  In that opinion, Judge Kaplan carefully considers whether Prince Andrew was among the defendants whom the parties intended to release or whether he is a third-party beneficiary of the Agreement.  At this point in the litigation, Judge Kaplan concluded, it is too early to rule definitively on either argument.  Judge Kaplan also rejects the so-called "Dershowitz argument."  That is, because Ms. Giuffre dismissed her claims against Mr. Dershowitz when the Agreement was raised as a potential defense, the same result should obtain here.  Judge Kaplan avoided speculating on why the Release might be helpful to Mr. Dershowitz but insisted in any case to consider independently the Release's applicability to every potential defendant. 

There is more to the opinion, but the rest of it does not really touch on contracts law or the law of third-party beneficiaries, so we will leave it to others to expound.  What interests us for now is the Crown's response to this opinion. 

As Dan Bilefsky of The New York Times reports here, that response was "quick and punishing." Upon learning of Judge Kaplan's decision, Buckingham Palace issued a statement.  It reads, in full:

With The Queen's approval and agreement, The Duke of York’s military affiliations and Royal patronages have been returned to The Queen.

The Duke of York will continue not to undertake any public duties and is defending this case as a private citizen. 

He may no longer use the honorific "His Royal Highness," and he had to surrender his military titles.  The BBC, perhaps a more reliable source on this subject, clarifies, "Like Harry and Meghan, Prince Andrew retains his title HRH but will not use it in any official capacity."  I'll assume you all know to which "Harry and Meghan" the BBC refers, and I will leave it at that.

Teaching Assistants: Victor Goldberg on the Time for Assessing Damages

This is the Third in a series of posts on Victor Goldberg's work.  Today's post is about Chapter 3 of his book, Rethinking Contract Law and Contract Design (RCL).

A post on Chapter 2 is here.

The introductory post is here.

The standard measure of damages in a case of breach or anticipatory repudiation is the difference between the market price and the contract price.  However, courts have taken different approaches when determining the market price – is it the market price at the time of breach, at the time when performance was due, or when the decision is rendered (RCL 22)?  Professor Goldberg’s analysis focuses on four cases. 

In Cosden Oil & Chemical Co v. Karl O. Helm Aktiengesellschaft, an anticipatory repudiation case, the court got things right in Professor Goldberg’s view.  It effectively recognized that the cover price is not best understood as the value of the goods to be exchanged on date X, where X is a reasonable time after notice of repudiation, but the value of the goods on date X to be delivered on date Y.  This is especially true in a case such as this one, where the non-breaching party was a trader rather than an end-user of the goods (RCL, 23-24).

The same issue arose in the case of The Golden Victory, about which Professor Goldberg wrote at greater length here.  There, the Law Lords were confused by a clause that permitted a charterer to terminate a shipping contract in the event of war.  The U.S. invaded Iraq between the time of repudiation and the time of the decision, and so the Law Lords recognized that the breaching party could have canceled the contract from the onset of the U.S. invasion of Iraq and calculated damages accordingly.  But given that war is always a possibility, the proper measure of harm is the value of the contract, taking the risk of war into account, at the time of notice of breach (RCL, 25-28).

Professor Goldberg next discusses a case involving Pepsico and a jet.  No, not that one. Klein v. Pepsico.  In Klein, the trial court awarded specific performance as the remedy for Pepsico’s failure to deliver a G-II airplane to Klein.  Very few such planes were available, and Klein had covered by purchasing a G-III.  The Court of Appeals appropriately reversed.  As Klein intended to resell the plane, the proper measure of Klein’s damages was the difference between market price and contract price at the time of breach.  Klein sought specific performance because the value of the plane had increased in the intervening period, but the Court of Appeals refused to award an extraordinary remedy when money damages were sufficient (RCL 28-30).

In Israel, specific performance is not an extraordinary remedy, but Adras Building Material v. Harlow & Jones GMBH, was Klein in reverse.  The court granted damages (disgorgement) because the value of specific performance had declined in the interval between breach and judgment.  Israeli law provided for a calculation of damages from the time of the contract’s “termination.”  From an American perspective, the case is rendered ridiculous by the court’s finding that the contract, despite breach, had never terminated, although Harlow failed to deliver 2000 tons of the 7000 tons of steel it was contractually obligated to provide.  The contract dated from 1973; the breach from 1974.  The Israeli Supreme Court rendered its final decision in 1988.  From Professor Goldberg’s perspective, the various opinions in the case omit the crucial date when performance was due.  If that fact were provided, then it would be a simple matter of calculating the market price of steel due for delivery at the time of the breach.  The court, in granting a restitution remedy, effectively made that calculation.  It held that Harlow had been unjustly enriched by the amount by which the price at which it sold the steel exceeded the contract price.  Restitution damages in this case were the same as expectation damages (RCL, 30-32). 

The reasoning in Adras seems to give the non-breaching party a valuable option.  Under Israeli law, if the price of steel rose, it could have sought specific performance at any time prior to contract “termination.”  Because the price of steel dropped, it sought expectation damages styled as a disgorgement remedy.  However, Professor Goldberg notes, if the contract is not terminated, shouldn’t both sides have the same option.  Why couldn’t Harlow simply deliver steel at any point before the final decision in 1988 and claim full contractual performance (RCL 33-34)?

It is clear, in Professor Goldberg’s view, that in anticipatory repudiation cases, a court should not take post-breach occurrences into account in calculating damages.  In the other cases (the ones not involving anticipatory repudiation), it is striking how untethered discussions of damages were from legal or economic justification.  In Klein, the trial court ordered specific performance when the good at issue was not unique and money damages were sufficient.  In Adras, the court did not seem to understand the nature of the remedy it provided.

On First Semester Grades

Image By Clarence Denman Papers - UTA Libraries Digital Gallery, CC BY 4.0

These are stressful times for first-year law students.  They are getting grades that purport to sum up their performance in their first semester and that some may regard as a predictor of success in the legal profession or even of cognitive fitness for the bar.  There is no denying that first-semester grades are important.  They will open doors for some students, and for others the grades will nudge some doors towards closing, but for almost all students, most doors remain ajar if not wide open.  Our jobs as teachers and our institutions' function as schools is to strive for success for all of our students. 

The students who do well on exams will have an easier time launching their careers, but good grades in law school only take you so far.  Everyone faces challenges, and for most careers, law schools grades don't map very well onto career prospects.  Students should continue to get what they can out of the law school curriculum, but they may need to look for ways to distinguish themselves in ways other than with a high GPA.  Fortunately, law schools offer myriad ways to do so.

Allow me to use myself as an example.  I was a history professor before I went to law school.  I never wanted to practice law.  I wanted to return to teaching, and I thought a J.D. on top of a Ph.D. was a good way to do it.  I had always gotten very high grades, but my first-semester grades were not great -- maybe top third of my class or thereabouts.  I met with my advisor.  He said three things that have stuck with me. 

First he said, "Well, you will never have a tenure-track job at a top-50 law school."  Then, perhaps seeing the look on my face, he added, "These grades aren't bad for someone with a Ph.D."  He then proceeded to, "You will get a teaching job, but it might take a while, and you won't be driving a taxi until then."  At the time, the first comment was devastating.  The absolute last thing I wanted to hear.  It was not long before I came to appreciate that everything he said was exactly right, and I rather quickly regained my equilibrium.  I was grateful for  his honesty and comforted by my confidence in his predictive abilities.  Things turned out pretty much exactly as my advisor predicted.  I will focus on his first and third statements, but I also want to note that my experience is that students who have prior experience, not necessarily Ph.D.'s, but any experience that involves a way of thinking and writing, are at a disadvantage when placed in competition with the receptive tabula rasa of the 22-year-old mind.  Older students, take heart.  Employers know that you have skills that may not translate into high grades in the first year of law school.

I can also say that, in my case, my grades and class standing improved markedly after the first year.  However, to be honest, final exam essays were never my strong suit.  At NYU, I was able to improve my GPA by taking a bunch of seminars.  I knew how to write seminar papers.  At institutions like the unranked law schools at which I have always taught, where students need to take bar-tested subjects throughout all three years of law school, their GPAs should improve steadily, but their class ranks might be more sticky.

I would land a teaching job, and that was the career path I wanted to be on.  It took longer than I hoped (five years), but those five years were extraordinarily helpful in preparing me for teaching.  I gained experience clerking for a judge and working as a litigator that inform my teaching.  I can't imagine teaching without those experiences, even though, at the time, I thought of them as just paying the bills and padding my c.v. until I could rejoin the academy.

There have been adjustments, but I love my professional life.  I cannot imagine the life I would have lived if I had been better at law school in the beginning.  I don't know how I would have withstood the pressures of teaching at an elite law school.  Thoughts of that life unlived do not keep me awake at night.

And so this is my message to students who are disappointed with their grades.  First, the obvious.  You are not your grades.  Your grades are a component of what will determine your career, so you need to take them seriously, but there are plenty of qualities that will be far more important for your career than your grades.  Drive, dedication, the ability to work with others are all important, but the most important thing is to find the things about law that you love doing.  Those will probably end up being the things that you do best.  There will be plenty of opportunities to distinguish yourself in law school, and grades are just one of them.  Also, make friends in law school and go to alumni events.  Connect with people who share your interests, and don't be shy about following up.  You may have to kiss a lot of frogs, but you will find your prince.  

Second, you do not know now what you will find most rewarding about a career in the law.  When my advisor told me I would never have a tenure-track job at a top-50 law school, I was devastated, because I thought my most important contributions in this life would come through scholarship, and I thought I needed to be at a top school so that I would have the environment most conducive to scholarship.  I have now come to conclude that the most important thing I do as a law professor is teach, and I think that is true of most academics, regardless of where they are. 

In the past decade, I have seen senior colleagues bow to economic necessity and take buy-outs.  Many of them came back to teach as adjuncts because they missed the classroom and the connection with students.  I also experienced having my law law school close.  Some of my colleagues have not yet found steady teaching jobs, and I think they all desperately miss it, even if they are making the most of their times back in practice or in retirement.  What they miss is not the rush of being the center of attention.  It is truly a privilege to be able to help people develop into professionals, and it is a joy to watch the incredible progress students make between orientation in 1L year and graduation.  The pandemic also brings home to me how important it is to me to be in the classroom, especially during times like these, when omicron is keeping us all at home.

A law degree opens many doors.  None of us can know enough about what lies behind those doors for it to make any sense to fixate on any door in particular.  As directors tell stage actors: know your character, find your light, and say your lines.  There are things going on all around you that you cannot control, so just focus on doing your job as well as you can.  For now, that means do your reading, show up for class, think about the rulings and start to develop your own take on the law.  Eventually, that will prepare you to use your legal reasoning skills to support yourself, to contribute to your community, and to benefit others.

Weekend Frivolity: Flash Fiction

Wordle, The Bildungsroman

It was 2 AM when K awoke out of unruly dreams and found himself thinking about Wordle. He lay in bed, his mind uselessly racing about the tasks of the day like a dung beetle careening aimlessly against the walls of a small cell. K grabbed his phone.

"This is what I've been reduced to," he thought. I'll play Wordle. That will relax me so that I can get back to asleep. K entered a variation of his usual opening gambit. One green; two yellow. "A nice start!" K congratulated himself. "I shall make quick work of this!"

A word occurred to him. It was simply a matter of sliding the two yellow letters over one space to the left, and the one, obviously correct choice magically slid its way into his consciousness. K felt giddy as he typed in the letters. His heart raced. "This is not good," he chided himself. "I will be very excited to solve it on the second guess. I've never been able to do that before.  I’ll never get back to sleep if I can do that."  He exhaled slowly to slacken his pulse and hit enter.

One green; two yellow. K's brow furrowed. He was mildly relieved, but he was also annoyed at the puzzle and at himself. "Hubris!" he berated himself, actually hissing the word under his breath so as not to awaken other family members. This was typical of him. He tended to exaggerate his own capabilities. His parents had remarked upon it from his youth, and in adulthood, so had his co-workers and supervisors. "You get ahead of yourself, K," his supervisor had said only the past week. "Remember, slow and steady wins the race." K silently cursed his supervisor, a narrow fellow with limited prospects.  But in this instance, K also knew that his supervisor's rebuke was mild compared to what K deserved.

K stared at the puzzle. No words came to mind. He looked at the available letters. Unpromising recruits all. He returned to the letters he had to work with.  Was there some mistake?  Why had the puzzle rejected his earlier guess?  There was no way to make a word if the letters could not be in their current positions or in the positions he had ventured in his first attempt. 

“Wait a tick,” K thought.  When he had googled “Wordle” to get to the puzzle, hadn’t he seen a link called “Why your Wordle streak will end today”?  Was this some devilish puzzle with no vowels?  Or using the same vowel thrice?  Isn’t the creator of Wordle a Brit?  Was the answer today some obscure Britishism like bollocks or chuffed or knackered?  Too long.  Cuppa?  K felt the anger towards all people with posh accents rising in his chest.  All thoughts of a return to sleep had been vanquished. 

K wanted to give up on the puzzle and go back to sleep.  But what happened if he stopped?  What if his phone died in the night?  Would Wordle close?  Would his streak end?  Is there a time limit on the game?  If you can’t guess the answer in four hours, do you lose?  He adjusted his position and looked at the letters again.  Despicable malingerers.  K had used all the good letters.  The remaining letters were all poseurs.  They could accomplish nothing without the lovely letters that the puzzle had rejected.  No.  That was unfair.  These letters had their uses.  K himself had used them repeatedly.  But there was no way to fit them into the spaces left in the puzzle while still using the green letter and the two yellow letters.  None at all.

Perhaps the problem was not the letters.  Was this it at last?  K was by no means old, but was this how senility begins?  Words that used to offer themselves willingly now hide in strange corners, just out of reach.  Just yesterday, K had been able to solve the puzzle in three guesses.  Where was that spark now?  K began to substitute loathing for yesterday’s K for his prior loathing of the Brits.  He bore down; looked at the letters again. 

Nope.  Nothing.  He was retreading the path.  Going over combinations he had tried before and rejected.  Two paths diverged in a yellow wood, and K took the same one over and over again until he starved to death.  He started typing in combinations that he knew were not words in the hope that the puzzle might take them and, at the very least, help him eliminate some of these feckless letters. Certainly there were no words that would come to his aid.  Finally, in desperation, K created a word with his one green letter and four new letters, abandoning any hope of finding the right place for his two yellow letters. 

“You’re pathetic,” he told himself, all the while expecting the puzzle to reward him with two new green letters that would magically reveal the mystery that had somehow eluded his baffled understanding.  Nothing.  Grey upon grey.

K felt trapped.  He could not complete the puzzle; he could not sleep.  He drearily regarded the remaining available letters.  Miscreants all!  He would banish them all from the kingdom of his vocabulary.  Better still, he would live the rest of his life as a mute rather than allow any of the sounds associated with these letters to escape his lips.  He would go through his library and black out all of those letters from his books.  He would, he would . . . .  Wait a minute. 

Suddenly, K saw a possible solution to the puzzle.  He typed it in.  It looked fantastical dancing on his phone’s screen in the darkness.  Could this work?  He checked the rows above this savior of the world.  It all checked out.  He hit enter with the grimness of a man triggering the descent of the blade on the guillotine into which he had just introduced his neck. 

Green, green, green, green, green.

With grim satisfaction, K returned his phone to his nightstand.  In the morning, he would tell his supervisor where to stick it.   4/6.  Probably nobody else on earth had solved this puzzle, but K had!  In only four guesses!  He had suffered long enough among mediocrities incapable of appreciating his insight, his wit, his bold creativity.  Yes, yes.  In the morning, he would be recognized for . . . all . . . his . . . worth, for . . . all . . . his . . . pizazzzzzzzzzzzzzzzzzzzz. . .  [snore].

Wordle 208 4/6

⬜🟨🟨⬜🟩
🟨🟨⬜⬜🟩
⬜⬜⬜⬜🟩
🟩🟩🟩🟩🟩

Teaching Assistants: Victor Goldberg on the Flexibility/Reliance Tradeoff

This is the second in a series of posts on Victor Goldberg's work.  Today's post is about Chapter 2 of his book, Rethinking Contract Law and Contract Design (RCL).

The introductory post is here.

In teaching contracts, we often keep things simple, focusing on familiarizing students with doctrinal rules that they will likely need to know to pass the bar exam.  In the world of contracts as illustrated in contracts casebooks, both parties enter the contract assuming that both will perform, and then, for some reason, one party breaches.  Contracts doctrine instructs us that the non-breaching party ought to be made whole and be awarded damages equal to the non-breaching party’s expected benefit from full performance.

But in contracts between sophisticated parties that may take a while to perform, the possibility of incomplete performance can be a structural component of the deal.  Contracts involve a trade-off between the parties desire for flexibility and their reliance on the continuation of the contract.  Parties can negotiate an early exit, but there may be no express provision in the contract that addresses the dynamic between flexibility and reliance.  Professor Goldberg addresses this dynamic in four different contractual contexts, and the result is rarely that the non-breaching party is entitled to the benefit of the bargain (RCL 9-10).

Venture capital deals are created to allow the venture capitalist (VC) to opt out of further funding if the venture is unpromising but to protect its investment through an option to pursue a second round of investment on more favorable terms than other potential investors.  The entrepreneur’s reliance interest is protected because the VC would suffer reputational harm if it abused its power to terminate the relationship to extract more favorable investment terms after the first round of investment (RCL 10-11)

Illusory contracts can be viewed as sitting at one extreme of the flexibility/reliance dynamic.  For example, as Professor Goldberg illustrates with a discussion of Bushwick-Decatur Motors, Inc. v. Ford Motor Co., Ford preferred to enter into franchise agreements with its dealerships that were terminable at will.  Notwithstanding oral representations to the contrary, the district court found that Ford clearly reserved the right to terminate the relationship at any time, regardless of reliance.  Other car manufacturers did not go quite so far, but allowing for termination on fifteen-days notice was effectively pretty much the same as an unenforceable agreement.  Eventually, legislators moved in to protect the dealers (RCL 11-12).  Professor Goldberg finds similarly illusory contracts between General Motors and one of its main parts suppliers and between Kellogg’s and its main packaging supplier.  Neither party has any motivation to breach because both are reliant on the other, but both presumably want the flexibility to shop around should the opportunity arise (RCL 12-13).

The reliance/flexibility dynamic can lead to express terms in the context of breakup fees in connection with corporate acquisitions.  A lot can go wrong and a lot can change between the negotiation of a corporate acquisition and its closing.  As a result, the buyer will want to negotiate the option to walk away.  It needs flexibility.  However, the seller relies on the deal going through, and so the parties have to negotiate what, if anything, the buyer would have to pay to walk away.  One option is a three-tiered system, as in Hexion Specialty Chemicals, Inc. v. Hunstman Corp.: in the event of a material adverse change in the value of the seller, the buyer could walk away for free; in the event the buyer was unable to finance the acquisition, $325 million; and in case of bad acts by the buyer, no cap on damages.  After the Delaware Chancery found bad acts by the buyer, the buyer settled by paying $1 billion (RCL, 13-14)

Finally, Professor Goldberg discusses pay or play movie deals and professional athletes’ or coaches’ severance packages.  In both cases, a star actor, director, player, or coach can command protection in the form of a termination/severance payment.  An actor might be guaranteed $20 million, subject to an offset if she finds alternative work, or a comparable part in another production (RCL, 15)  A star coach or player might command liquidated damages without a duty to mitigate, although earnings in a new position might be used to offset damages (RCL 16).

In light of these examples, Professor Goldberg suggests that contracts entail an option to breach and the cost of exercising that option is whatever remedy is available, either through the parties’ private arrangement or through the law of contracts damages (RCL 16-17).  Sophisticated parties are well positioned to negotiate the price of exit, and they may fashion whatever remedy reflects their competing interests in flexibility and reliance.  And yet, legal scholars and courts resist following Holmes by treating breach as an option.  In part, this is an instance of the stickiness of doctrine that I referenced in the introductory post.  In part it is a product of a rhetoric attaching moral opprobrium to breach. If a breach is a wrong, corrective justice requires that the non-breaching party be made whole.  (RCL 18-19).  Finally, Professor Goldberg illustrates, through his option framework, the error of the common assumption that contracts damages under-compensate because they do not account for lost profits.  Parties left to their own devices can set the price of breach as they choose (RCL 20-21).

I note that Professor Goldberg’s work finds support in some recent empirical work that Mitu Gulati (right) undertook with his students and which we featured on the blog here and here, and Professor Goldberg work is cited in their “Lipstick on a Pig” article.

A Semester Reading Victor Goldberg Introduction

Often, when we have discussions on the ContractsProf Listserv, Victor Goldberg (left) has views.  That is not unusual in our guild.  What is unusual and surprising is how often Professor Goldberg has written about the precise issue or the case up for discussion.  Usually, I have not read the Goldberg article in question.  That is a Bildungslücke that I intend to address this semester.  As I do, I will share short summaries of chapters from his two recent books, Rethinking Contract Law and Contract Design (RCL) and Rethinking the Law of Contract Damages. (RLCD)  

The books have a theme.  Professor Goldberg is an economist.  He came to contracts with the assumption that contracts law was efficient.  Decades of teaching doctrine convinced him that contracts doctrine is often inefficient, and that in the context of complex transactions, lawyers earn their keep, in part, by helping their clients overcome doctrinal hurdles to optimal outcomes.  But attorneys cannot always negotiate around doctrinal inefficiencies.  The inefficiencies are "sticky" in various ways, at times because  some rules are mandatory, at times because of the transactional costs involved in getting around them, at times because it can be hard to convince judges that the parties have agreed to non-standard terms or that breaching a contractual obligation does not entail a moral failing (RCL, 1). Another problem that Professor Goldberg thematizes in his discussion of doctrine and caselaw is the propensity of judges to misstate facts in their legal opinions (RCL, 2).

My aim this semester is to post once or twice a week on chapters from these books.  As I am teaching defenses and damages this semester, I am also hoping that Professor Goldberg's insights will provide me with new ways to approach this material.  One the greatest challenges I face with my students is getting them to move beyond an understanding of the doctrine to an understanding of the effect of doctrine on the underlying transactions.  I am hoping that Professor Goldberg's scholarship will help me to help my students start thinking about when existing doctrines facilitate the transactions their clients are contemplating and when they need to find lawyerly ways to engage in private legislation and contract around default rules that do not suit their clients' needs.

Tuesday Top Ten - Contracts & Commercial Law Downloads for January 11, 2022

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 12 Nov 2021 - 11 Jan 2022

Rank	Paper	Downloads
1.	Philosophy of Contract Law Daniel Markovits and Emad H. Atiq Yale Law School and Cornell University - Law School	213
2.	The Internal Point of View in Private Law Jeffrey A. Pojanowski and Paul B. Miller Notre Dame Law School and Notre Dame Law School	173
3.	The Many Layers and Dimensions of Contract Design Marcelo Corrales Compagnucci, Helena Haapio and Mark Fenwick Centre for Advanced Studies in Biomedical Innovation Law (CeBIL), Faculty of Law, University of Copenhagen, University of Vaasa, School of Accounting and Finance, Business Law and Kyushu University - Graduate School of Law	160
4.	The Mystery of the Missing Choice-of-Law Clause John F. Coyle University of North Carolina School of Law	160
5.	Why Corporate Law Is Private Law Asaf Raz University of Pennsylvania Law School	131
6.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	105
7.	Strict Products Liability 2.0: The Triumph of Judicial Reasoning over Mainstream Tort Theory Mark Geistfeld New York University School of Law	102
8.	The Present and Near Future of Self-Driving Contracts Anthony J. Casey and Anthony Niblett University of Chicago Law School and University of Toronto - Faculty of Law	82
9.	The Law of Haunted Houses: A Comment on Stigmatized Properties following Wang v Shao Reagan Seidler Law Society of Upper Canada - Smart & Biggar	80
10.	Credit Scoring Duality Pamela Foohey and Sara Sternberg Greene Yeshiva University - Benjamin N. Cardozo School of Law and Duke University School of Law	80

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 12 Nov 2021 - 11 Jan 2022

Rank	Paper	Downloads
1.	The Many Layers and Dimensions of Contract Design Marcelo Corrales Compagnucci, Helena Haapio and Mark Fenwick Centre for Advanced Studies in Biomedical Innovation Law (CeBIL), Faculty of Law, University of Copenhagen, University of Vaasa, School of Accounting and Finance, Business Law and Kyushu University - Graduate School of Law	160
2.	The Mystery of the Missing Choice-of-Law Clause John F. Coyle University of North Carolina School of Law	160
3.	Why Corporate Law Is Private Law Asaf Raz University of Pennsylvania Law School	131
4.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	105
5.	The Present and Near Future of Self-Driving Contracts Anthony J. Casey and Anthony Niblett University of Chicago Law School and University of Toronto - Faculty of Law	82
6.	The Law of Haunted Houses: A Comment on Stigmatized Properties following Wang v Shao Reagan Seidler Law Society of Upper Canada - Smart & Biggar	80
7.	Credit Scoring Duality Pamela Foohey and Sara Sternberg Greene Yeshiva University - Benjamin N. Cardozo School of Law and Duke University School of Law	80
8.	The Next Best Thing To a Promise Dori Kimel University of Oxford - Faculty of Law	71
9.	Private Law Rights as Democratic Participation: Kelsen on Private Law and (Economic) Democracy Helge Dedek McGill University - Faculty of Law	67
10.	'New Private Law Theory' as a Mosaic: What Can Hold (Most of) It Together? Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	60

Maya Angelou's Image on a New Quarter!

Some people may love Maya Angelous for her autobiographical writings and poetry.  We also love her for providing an updated version of Wood v. Lady Duff-Gordon.

I'm wondering whether the design is a reference to I Know Why the Cage Bird Sings.  If so, the bird no longer seems caged, and that seems fair enough.  In any case, it is a great thing to see her achievements recognized.  May other poets (and litigants) be similarly honored!

Sid DeLong on Contracts and College Athletics

Name, Image, and Likeness Mercenaries? NIL Desperandum in College Athletics
Sidney DeLong

College athletics is a multi-billion-dollar business enriching the nation’s colleges and universities by generating many revenue streams, both directly (in television rights, ticket sales, and sports apparel fees) and indirectly (in tuition-generating student enrollments and alumni donations). The athletes whose efforts create this value are compensated only with academic scholarships giving them a free education that few can take full advantage of. But the NCAA strictly prohibits payment of any other form of compensation to these student athletes, insisting that they are “amateurs.”

Schools are also limited in their ability to compete for these low-paid, high value athletes. A school that steps over the line by secretly paying cash to recruit an athlete is severely sanctioned and the athlete can be stripped of his awards. Several students have suffered from the effects of illegal payments. Albert Means’s high school coach received $200,000 from a booster to steer him to Alabama; when the bribe was revealed he lost his scholarship and Alabama was sanctioned. Both the booster who paid the money and the coach who received it were prosecuted for federal crimes. Reggie Bush was stripped of his Heisman for accepting under the table payments while at U.S.C.., which forfeited a national championship

By contrast, college coaches face no such limits. The football coach is frequently the highest paid public employee in the state, often enjoying additional endorsement income from third parties. Ironically, the ability to recruit a top class high-school player is the primary skill of a winning college coach.

The situation has long been recognized as inequitable. As Justice Kavanaugh described it a recent opinion:

“The bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year. Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.“ NCAA v Alston,141 S.Ct. 2141 (2021) (Kavanaugh, concurring).

O'Bannon v NCAA in 1995 was the thin end of the wedge: O'Bannon v. National Collegiate Athletic Association, 802 F. 3d 1049, (9th Cir., 2015). Basketball star Ed Obannon established that the refusal to permit players to share the revenues from the use of their images was a violation of antitrust law.

The decision to which Kavanaugh was concurring held that the NCAA violated the Sherman Act by limiting the educational benefits that member schools could provide student athletes. It recognized college sports as a product market and characterized the NCAA as engaging in “horizontal price fixing in a market where the defendants exercise monopoly control.” Id. 2154. The goal of amateurism did not justify this form of behavior. Although SCOTUS did not rule on student compensation from third parties, Alston’ dicta clearly indicated that schools may not limit athletes from earning compensation from third parties for the use of their name, image, and likeness (NIL).

Soon after Alston, the NCAA implemented new rules to regulate student athletes to accept compensation from third parties for NIL.  The regulations also permit athletes to be represented by agents in negotiating contracts.  Beginning with California in 2019, several states also enacted statutes validating NIL contracts.  However, the new regulations kept in place the NCAA’s long-standing prohibition against “pay-for-play,” the payment of financial compensation to students in return for enrolling in a school or for playing.

Have NIL, Will Travel. In recent years, the NCAA has also relaxed its rules prohibiting the poaching of enrolled students by competing schools. Regulations now permit students to enter a “transfer portal,” transfer to a different school, and play for their new school the next year. The transfer rules have revolutionized the ethos of college sport. Thousands of players entered the portal this year, creating havoc for coaches and teams preparing for next year’s season. Coaches lament the loss of loyalty and commitment even as they hustle to sign replacements now playing at other schools.

Outside the regulatory framework of the NCAA, NIL contracts are regulated by a patchwork of state laws. For example, Alabama’s law requires bars schools from prohibiting NIL contracts and from prohibiting students from using agents. But the statute permits schools to bar students from signing with a sponsor (e.g. Nike) that competes with a sponsor with which the school already has an exclusive contract (e.g. Adidas).

These changes in the law mean that today both the Means and Bush payments could easily be restructured as legal and above-board transactions. The Alabama booster could entice Means to go to Alabama, not by bribing his coach but by offering him (through his agent) a lucrative NIL contract, e.g., doing ads for a car dealership. Bush could similarly earn hundreds of thousands by monetizing his Twitter following. Non-athlete “influencers” are already earning six figure salaries in the social media economy and star athletes have huge social media followings that advertisers would love to tap. Older readers can think of it as working your way through school, like throwing a paper route before class.

Knowledgeable sports commentators describe the new free market in college players as the Wild West, where everyone (coaches, players, athletic directors, and parents) must play a game with no meaningful regulation or standards. Every college athlete is a free agent who can market his skills to the highest bidder every year. And bidders there are. Wealthy alumni in several states have assembled massive amounts of cash with which to fund NIL contracts designed to lure the best players to their schools.

Which raises several questions relevant to the law of contract (as what doesn’t?)

How will the NCAA enforce its continuing prohibition against contracts that provide “pay-for-play”? What is to stop alumni from paying millions of dollars to lure talented players to a particular school by offering them lucrative NIL contracts, not to “play” (“heaven forbid”) but to do advertisement, social media posts, and charitable work? See the link above. If such a contract violates NCAA rules, is it nevertheless fully enforceable or is it void as against public policy or as part of a scheme to defraud the NCAA?

Will students or purchasers of NIL rights be required to make their compensation deals public? Are student privacy rights at stake?

Will purchasers of player endorsements insist that students sign non-compete agreements that bar them from endorsing competing sports products? Will these be enforceable? If they are, will they interfere with athletes’ ability to change schools and endorsers?

Is an offer to an athlete who is a party to a NIL contract seeking to lure him away to another school a tortious interference with the student’s existing contract with another NIL licensee?

How will this new compensation scheme fit within the regulations promulgated under Title IX? Schools are prohibited from engaging in racial or gender discrimination in providing benefits to student athletes. But third party licensees of NIL are not state actors and are unregulated by federal law.

Will this market be free of racism? Will a legal change advertised as a way of ameliorating discrimination and exploitation of Black athletes become a covert means of enriching white athletes who may have more perceived market value to the licensees of NIL?

Should the NCAA promulgate mandatory or prohibited terms for NIL agreements or just let the market take its course? If they did, would its mandate be enforceable or would it violate the anti-trust laws?

And on a more mundane note, how will university professors deal with students who are earning more than they are? What if academic ineligibility costs the student thousands of dollars of NIL revenue?

What will student athletes learn about the sacredness of contract obligation if they enter into the sordid world of university sports? High status college coaches routinely repudiate their contracts at the drop of a hint from a more prestigious school. Some of them have recruited high value high school players by promising wonderful things and have then jumped to another team before the recruit shows up at campus. Students who suffer this may learn their lessons too well.

“Coach, if you don’t promise to start me next year, I’m transferring to Oregon.”

And finally, big money seems inevitably to bring big corruption and advantage-taking of the naïve by the savvy. A later post will list some of the obvious pros and cons of the new system.

Is It Time for a General Strike?

Last week, the Supreme Court heard argument in two cases relating to the federal government's attempts to address the COVID-19 pandemic through vaccine mandates/testing and masking requirements in the workplace.

In NFIB v. Department of Labor, Petitioners bring a challenge to an Occupational Safety and Health Association's "Emergency Temporary Standard" (ETS).  The ETS applies to workplaces with over 100 employees and requires that affected workers either get vaccinated or wear face masks and submit to weekly COVID testing.   The ETS provides for both medical and religious exemptions from any vaccine requirement.  While the Fifth Circuit granted petitioners an administrative stay of the ETS, all challenges to the ETS were consolidated and heard by the Sixth Circuit.  One footnote from the Sixth Circuit opinion gives you a sense of the range of sensibilities animating these two sister Circuits: 

In comparing this case with Alabama Association, the Fifth Circuit wrote, “But health agencies do not make housing policy, and occupational safety administrators do not make health policy.” BST Holdings, 17 F.4th at 619. The Fifth Circuit fails to acknowledge that OSHA stands for the Occupational Safety and Health Administration. See 29 U.S.C. § 651(b) (“The Congress declares it to be its purpose and policy . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . .”) (emphasis added).

In a 2-1 panel opinion, the Sixth Circuit refused to enjoin the ETS.

In the second case, Biden v. Missouri, the issue is whether the Supreme Court should uphold an  injunction issued by a Missouri District Court blocking a federal rule that requires all health care workers at facilities that participate in Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption.  

The cases come to the Court in a highly unusual posture.  In the last few terms, the Court has been deciding cases in an expedited manner, without full briefing or oral argument, on what has come to be known as the "shadow docket."  Perhaps in light of concerns raised in the legal community about the shadow docket, the Court has adjusted, placing the case on its regular docket, but with an expedited briefing schedule.  Based on oral argument, it seems that the Court is poised to strike down the ETS, at the very least.

It bears noting that the Supreme Court itself subjects all people who enter its halls (and it allows very few people in) to a mandatory COVID testing regime.  Both the Ohio and the Louisiana Attorney Generals, who are challenging the OSHA regulation, had to attend oral argument remotely, having tested positive for COVID.  Justice Sotomayor, who has diabetes, attended remotely, perhaps because she knew that Justice Gorsuch would not wear a mask, despite court rules requiring that everyone in attendance other than the Justices wear N95 masks.  

Such rules are wise.  The median age on the Court right now is 66.  We want the Justices to stay healthy, and it is perfectly reasonable that the Court should adopt rules to protect the Justices' health and safety.  It will be most peculiar if the Justices deny the federal government the power to adopt rules that safeguard those of us who cannot control the safety of our own work environments.  

The issue may be largely symbolic.  Most people are vaccinated.  They can still  contract and spread the omicron variant, although its effects are likely to be less severe in the vaccinated.  But the threat of serious illness or death, and the attendant anxiety accompanying that threat, is not symbolic for millions of workers whom the Court refuses to allow the government to protect.  If the Court rules as court-watchers predict it will, it will be making a larger legal and political point.  It may not uproot the administrative state root and branch, but it can engage in some selective pruning.  

Perhaps, if the Court strikes down the ETS, workers across the nation should adopt Justice Sotomayor's posture and simply opt out.  There has been a lot talk on the left about legislative action to temper the power of the Supreme Court.  That's a dangerous game if  plainly animated by partisan purposes.  I have voiced my criticisms of Mark Tushnet’s version of “constitutional hardball.” But a genuine popular uprising in response to an overreaching Supreme Court decision can send a message strong enough to prompt bipartisan legislative action.  For once, the left would have the intransigent Republicans over a barrel.  The Court seems to want to own the libs so that it can strike a blow in a culture war.  But even relatively unorganized labor can hit the Court and its ideological fellow-travelers where it hurts -- in the economy.  A week or two without workers should be enough to get even the Republican base to call upon their legislators to vote yes on a piece of legislation or face consequences as the ballot box.  A Court decision striking down a reasonable and necessary health and safety regulation can provide a rare opportunity for the people themselves to bypass failed mechanisms of checks and balances and hold the Court accountable for decisions that are inconsistent with our constitutional design and recklessly endanger American lives.

But who knows?  Perhaps none of this will be necessary.  The ETS was a response to the delta variant.  Omicron poses different challenges, and the ETS may no longer be the right response.  Or, the next variant may have be as deadly as delta and as communicable as omicron.  The ETS is an emergency, temporary standard.  The government needs to have the ability to act expeditiously and flexibly to national health challenges.  If the Court does not get out of the way, we can call the loss of the Court's legitimacy another COVID casualty, but it's really a self-inflicted wound.