ContractsProf Blog

Quick Notes: A New Promises Promises Episode and a Jotwell

After a long hiatus,  David Hoffman (left) and Tess Wilkinson-Ryan (right) are back with a new episode of their podcast Promises Promises.  Welcome back!  This time, they discuss S.P. Dunham v. Kudra, and they have as their Zoom audience Mitu Gulati's UVA students.  The case illustrates the duress doctrine.  

Professors Hoffman and Wilkinson-Ryan puzzle entertainingly (as always) over how well this case fits into the law of duress and voice their general skepticism about the line-drawing involved in identifying an improper threat, a necessary element of duress.  I don't see it as a hard case, but I agree that the court does not do much to generate confidence in the clarity of the duress doctrine. 

S.P. Dunham (Dunham) was a department store that partnered with another business (Hurwitz) that stored and cleaned fur coats.  Hurwitz, which was in financial difficulties, partnered with Kudra and owed Kudra money when it went under.  With winter coming, Dunham's customers, who apparently did not know anything about Hurwitz, wanted their coats.  Kudra demanded that Dunham cover what Hurwitz owed on the Dunham's customer's coats (about $600) before he would return them.  Fair enough, I suppose, but Kudra then demanded an additional $3200 that Hurwitz owed on other coats that had nothing to do with Dunham.   Dunham paid and then sued to recover the $3200, claiming economic duress.

I don't have any difficulty seeing Kudra's conduct as involving an improper threat that compelled Dunham to do something that it had no reason to do, but Professors Hoffman and Wilkinson-Ryan do make the fine point that Dunham doesn't really seem to be the proper plaintiff here.  Kudra is holding Dunham's customers' property hostage, and the customers, or perhaps Hurwitz's bankruptcy estate, acting on their behalf, should be bringing the challenge to Kudra's extortionate conduct.  Still, I think Sid DeLong's Coasean theory of duress makes sense of the case in a far more direct way and at least points the way towards addressing the line-drawing problem that vexed the Promises, Promises crew.  Kudra threatens to do harm to Dunham's good will value. Knowing that the value that Dunham places on that good will likely exceeds $3200, Kudra extorted payment, leaving him unjustly enriched.  Disgorgement of those ill-gotten gains is the proper remedy.

Also worth noting is Eyal Zamir's short review on Jotwell of Joanna Demaree-Cotton and Roseanna Sommers, Autonomy and the Folk Concept of Valid Consent, 224 Cognition 105065 (2022).  We have featured Roseanna Sommers' work on the blog before, and there seems to be some overlap between  Commonsense Consent, discussed previously and the article that Professor Zamir has reviewed.  But Professor Zamir brings to the topic his own expertise in empirical studies and in behavioral analysis of law, and so his review is an especially valuable contribution.

Tuesday Top Ten - Contracts & Commercial Law Downloads for December 6, 2022

The Tuesday Top Ten returns after a brief hiatus last week! Let's see how the SSRN charts have moved since then.

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 07 Oct 2022 - 06 Dec 2022

Rank	Paper	Downloads
1.	The Obsolescence of Blue Laws in the 21st Century Ira P. Robbins American University - Washington College of Law	302
2.	Zauderer and Compelled Editorial Transparency Eric Goldman Santa Clara University - School of Law	166
3.	The Privity of Contract: Third Party Rights Under Maldivian Contract Law Husnu Al Suood Maldives Law Institute	161
4.	Fake and Real People in Bankruptcy Melissa B. Jacoby University of North Carolina School of Law	150
5.	Foreseeability Conventions Morgan Savige and John Fabian Witt Yale Law School and Yale University - Law School	143
6.	A New Theory of Impossibility, Impracticability, and Frustration Yehonatan Givati and Yotam Kaplan Hebrew University of Jerusalem - Faculty of Law and Bar-Ilan University - Faculty of Law	103
7.	Against Corporate Social Responsibility Jonathan C. Lipson Temple University - James E. Beasley School of Law	99
8.	An Outsider’s View of the Brussels Ia, Rome I, and Rome II Regulations Symeon Symeonides Willamette University - College of Law	90
9.	Against Bankruptcy Exceptionalism Jonathan Seymour Duke University School of Law	84
10.	AI, Fintech, and the Evolving Regulation of Consumer Financial Privacy Nikita Aggarwal UCLA School of Law	83

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 07 Oct 2022 - 06 Dec 2022

Rank	Paper	Downloads
1.	Deconstructing Smart Contracts Eliza Mik and Eliza Mik The Chinese University of Hong Kong (CUHK) - Faculty of LawTILT	239
2.	The Privity of Contract: Third Party Rights Under Maldivian Contract Law Husnu Al Suood Maldives Law Institute	161
3.	A New Theory of Impossibility, Impracticability, and Frustration Yehonatan Givati and Yotam Kaplan Hebrew University of Jerusalem - Faculty of Law and Bar-Ilan University - Faculty of Law	103
4.	Against Corporate Social Responsibility Jonathan C. Lipson Temple University - James E. Beasley School of Law	99
5.	An Outsider’s View of the Brussels Ia, Rome I, and Rome II Regulations Symeon Symeonides Willamette University - College of Law	90
6.	The Other Hand Formula Maytal Gilboa and Yotam Kaplan Bar-Ilan University - Faculty of Law and Bar-Ilan University - Faculty of Law	82
7.	A Silver Lining to Russia's Sanctions-Busting Clause? Michael Bradley, Irving De Lira Salvatierra, Mark C. Weidemaier and Mitu Gulati Duke University - Fuqua School of Business, Duke University, University of North Carolina School of Law and University of Virginia School of Law	71
8.	Adapting Private Law for Climate Change Adaptation Jim Rossi and J. B. Ruhl Vanderbilt University - Law School and Vanderbilt University - Law School	57
9.	Not Like Other Contracts: Supremacy and Exceptionalism in Arbitration Jurisprudence Erin Islo Princeton University	51
10.	Automated Contract Review: Challenges and Outcomes of a Data Annotation Framework Mattias Rättzén Independent	50

Lawyer to Chief Twit, "You Will Lose, and You Know It"

Akiva Cohen is an attorney representing former Twitter employees who allege that they have not received termination payments that Elon Musk promised to make when he acquired Twitter.  The title of this blog post is the heart of his recent letter to Mr. Musk.  Just to recap, Mr. Musk first agreed to purchase Twitter for $44 billion.  He then claimed that Twitter was in breach of the agreement because there were more bot accounts on Twitter than Twitter had disclosed.  Twitter then sued Mr. Musk for specific enforcement of his promise to purchase the company or in the alternative for damages.  The agreement itself provided for a specific performance remedy and included a $1 billion cancellation fee.  

In July, John Patrick Hunt (right) explained on this blog that specific enforcement of acquisitions was not uncommon in Delaware.  Mr. Musk, perhaps reconsidering his options in light of Professor Hunt's arguments, changed course and acquired Twitter for $44 billion.  He promptly fired Twitter's top executives and half of its employees.  More left after Mr. Musk issued an ultimatum, telling employees to take three months' severance if they were not willing to work long hours at high intensity to build Twitter 2.0.  

To nobody's surprise, Twitter's former employees are now complaining that they have not received payments promised as part of the terms of Mr. Musk's acquisition of Twitter.  Mr. Cohen, addressed Mr. Musk and his attorney in a letter posted on Twitter.  The letter gives Mr. Musk until December 7th to confirm that he will make all severance payments the employees seek.  If he does not do so, Mr. Cohen threatens an "arbitration campaign."  Mr. Cohen points out that Mr. Musk will lose those arbitrations on the merits and also that he will be on the hook for arbitration costs and that, even should Mr. Musk win, that victory would by Pyrrhic, given that the arbitration costs would exceed whatever Mr. Musk thinks he can save by not paying severance.  Echoes of mass arbitration themes to which Nancy Kim alerted us here and about which readers can learn more from J. Maria Glover's piece in the Stanford Law Review.

Mr. Cohen then detailed what was owed to his clients -- no less than two months' salary plus the value of their Twitter shares ($54.2o each), pro-rated bonus payments, healthcare coverage, and unpaid portions of Twitter's contributions to retirement plans.  The letter then anticipates Mr. Musk's legal argument -- that the employees are not third-party beneficiaries entitled to recovery under Mr. Musk's agreement to acquire Twitter -- and argues that the argument will not succeed under Delaware law.  And even if it did succeed, Mr. Cohen's clients would still win under promissory estoppel.  There are intimations of further claims for punitive damages and for discriminatory treatment in terminations. 

There is a bit of a carrot in the letter.  If Mr. Musk pays up, Mr. Cohen will go away without a fee, and all the money will go to Twitter's employees.  And then there's the stick, as some states allow recovery not just from the company, but from Mr. Musk himself.

Tomorrow is the deadline.  Stay tuned.

 

Contracts v. the First Amendment: Pro Se Version

The Supreme Court has invited the weaponization of religion in innumerable contexts.  How far can one go in claiming one's religious beliefs as a source for an exemption to contractual obligations?  One answer comes from the District Court for the Western District of Wisconsin in Joseph v. Becerra. 

Plaintiff Mark Joseph is a combat veteran and former employee of the U.S. Postal Service.  He claimed that state and federal agencies' indoor masking requirements during the COVID pandemic burdened his religious beliefs and sought to establish a state "scientist" and "collectivist" religion.  Mr. Joseph alleged that, as a result of his refusal to wear a mask, he was: was suspended from his job; denied access to medical facilities; denied public benefits; and excluded from public activities ranging from public hearings to jury duty.  Mr. Joseph, acting pro se, brought numerous claims, sounding in the First, Fifth, and Thirteenth(!) Amendments, Bivens, the Religious Freedom Restoration Act (RFRA), and Wisconsin Law.  He alleged that the government is covertly imposing its own "scientist" and "collectivist" religion while disparaging his individualist beliefs, which he claims are religious in origin.

The court carefully considers and rejects each of Mr. Joseph's claims, some on rather technical grounds.  For example, he cannot state a Bivens claim, among other reasons, because he has sued the defendants in their official rather than their personal capacities.  The heart of the opinion is the court's rejection of Mr. Joseph's claim that his objections to the government's policies sound in religion.  

Although couched in religious terms, therefore, plaintiff’s Establishment Clause claims boil down to defendants allegedly making policy decisions based on evolving scientific data to which not all experts necessarily agree, not establishing a religion. Admittedly, the governing case law does not precisely define the contours of what constitutes “religion,” but “courts are well-equipped to weed out spurious Establishment Clause ‘religions’ on grounds of common sense.” Sevier v. Lowenthal, 302 F. Supp. 3d 312, 320-21 (D.D.C. 2018). Thus, plaintiff’s proposed amended complaints provide no basis to infer that masking requirements advance any religious belief as opposed to science-based health policy, even if an implied cause of action were cognizable under Bivens.

The court could have stopped there.  Mr. Joseph has not really identified himself as a practitioner of any particular religion; rather, he just has beliefs.  Instead, the court proceeded along lines that I'm not sure are consistent with SCOTUS's views of the scope of Free Exercise Clause protections as articulated in the past few terms.

For example, the court notes that the challenged making policies are neutral and do not target religion.  That used to matter, but Fulton indicates that neutrality is not enough if there are exceptions.  Mr. Joseph points out that mask mandates allow exceptions for "secular activities" such as eating.  The court rejects this argument, noting that it is simply impossible to eat while masked.  I'm not sure SCOTUS cares about impossibility.*  It didn't care that the agency challenged in Fulton had never exercised its discretion to waive its policy prohibiting discrimination based on sexual orientation.  

The court also noted that the government needs only a rational basis to impose neutral policies such as mask mandates, but here, the court says, citing over one million deaths in the United States from COVID, the government has not only a rational basis for regulation but a compelling interest in doing so.  But SCOTUS did not find California's interest in preventing the spread of COVID through congregation in houses of worship compelling.  The court also cited that same compelling interest in rejecting Mr. Joseph's RFRA claim.  

Alas, while Mr. Joseph alleged that his rights were violated when his employment with the U.S. Postal Service was suspended because of his refusal to wear a mask, he apparently did not make any specific claims against the Postal Service relating to his employment.  If he had, we could have had the showdown between the contractual rights of the employer to place conditions on continued employment and Free Exercise rights.  Working out that clash of rights and interests will have to await another case.  

Meanwhile, in related non-contractual developments, Jewish, Muslim, and pagan plaintiffs have won a preliminary injunction of Indiana's sweeping post-Dobbs abortion restrictions on the ground that their religious beliefs prioritize the health and welfare of pregnant people over that of the fetus.  That law is already enjoined, at least until a hearing pending before Indiana's Supreme Court in January.  The Free Exercise challenge to the law will have to get in line.  These abortion cases, which have sprouted up in multiple jurisdictions, suggest that liberals have caught on to the wonders one can effect through the Free Exercise Clause.  Will SCOTUS back off on promoting the weaponization of the First Amendment, or will we continue down the path of being one nation, divisible, under God?

*ADDENDUM: Listening to the Strict Scrutiny podcast yesterday, I heard clips during the latest United States v. Texas oral arguments indicating that Chief Justice Roberts indeed sees impossibility as irrelevant to legal decision-making.  The context was Chief Justice Roberts' insistence that the United States could not simply tell the Court that enforcement of immigration laws would be impossible if the Court ruled that "shall" means "shall" and the government cannot exercise discretion in connection with decisions regarding which immigrants should be the focus of the government's attention.

Remembrance of Steve Smith

From Lionel Smith, and posted with his permission:

It is with a heavy heart that I announce the passing of our colleague and, for very many members, our dear friend, Steve Smith, on 29 November 2022, aged 64.

Steve’s career was a record of excellence. Following a BA in political science from Queen’s University and an LLB from the University of Toronto, he clerked in 1989-90 for Brian Dickson, Chief Justice of the Supreme Court of Canada. He went on to conduct doctoral research at Balliol College, under the supervision of Joseph Raz, and was then appointed a law fellow at St. Anne’s College. He joined McGill’s Faculty of Law as an associate professor in 1998, and was appointed James McGill Professor in 2009.

His book Contract Theory (2004) includes an analytical discussion and typology of different accounts of private law, which is widely cited by anyone working in the area of private law. Among a huge range of papers ranging across all areas of private law and private law theory, his paper ‘Duties, Liabilities and Damages’ (2012) 125 Harvard LR 1727 is regarded as seminal in debates about the nature of the law’s responses to wrongdoing in private law, and helped to lay the foundations of Steve’s magnum opus Rights, Wrongs and Injustices: The Structure of Remedial Law (2019). This book was the culmination of over a decade of sustained, original scholarship on fundamental private law theory, touching on all aspects of private law but especially on the articulation of the law of remedies as a distinct field of law with its own characteristic governing principles. The book, and the scholarship that led to it, have been influential all over the world. Steve also published Atiyah’s Introduction to the Law of Contract, 6th ed (2005), making him a member of the very small group of authors with more than one title in the Clarendon Law Series. 

His scholarly contributions were recognized by a Killam Research Fellowship, which he held during 2009-11, and by his election as a fellow of the Royal Society of Canada (2020). He held visiting appointments at both Cambridge and Oxford, as well as at the Universities of Queensland and Toronto. In 2017 he was awarded the Law Foundation of New Zealand Distinguished Visiting Fellowship, in which the Fellow visits all of the law faculties in that country.

Those who knew Steve know how much more to him there was than his outstanding academic achievements. He was devoted to his family. He was wise, thoughtful, generous, funny, and fun. He was an extraordinary athlete; Mr. Justice John Sopinka used to organize a squash tournament with the law clerks at the Supreme Court of Canada, and Steve was the only one who could beat the judge. He was also an outdoorsman who liked nothing better than to disappear into the wilderness for a few days in a canoe; the real wilderness, beyond any shop, road, or even cellphone signal. He was very gifted with his hands as well as with his mind, and over the years he singlehandedly renovated the family’s large old house in Montreal West, including wiring, plumbing, and carpentry, from the basement to the third floor.

Over the last several years of illness he was of good cheer and continued to engage in scholarly debates. When some of his friends proposed a collection of essays in his honour, Steve wanted nothing more than that each contribution would engage with some argument that he had made in print, and he enthusiastically made a list of these arguments for the benefit of the contributors. He was not interested in hommages. 

Steve leaves his spouse, Sue Law, and their children, Jamie, Michael and Jennifer Law-Smith. They will be in the thoughts of Steve’s many friends and colleagues all over the world as they mourn the passing of an extraordinary person.

The Parol Evidence Rule and Ohio's Unconstitutional Electoral Maps

The Ohio Supreme Court struck down the Ohio GOPs gerrymandered electoral maps five times.  The GOP ran out the clock and then ultimately went to a federal court to get an order permitting the elections to go forward with one of their unconstitutional maps.  The story is told, among other places, in a recent episode of The American Life, called Mapmaker, Mapmaker, Make Me a Map. 

In sum, over the past decade, Ohio voters have leaned Republican.  In elections for statewide office, Republican candidates have averaged 54% of the vote, while Democrats get 46%.  True to form, J.D. Vance won election to the Senate with just over 53% of the vote.  Mike DeWine won re-election by a wider margin, likely the result of an incumbency boost.  The state constitution calls for electoral districts designed to reflect those election results, but in last month's elections, as a result of gerrymandering, Republicans won ten out of fifteen congressional seats, a percentage even higher than the percentage of votes won by Mike DeWine. 

And now to our parol evidence point.  In defending the GOP maps, Ohio GOP leader, Matt Huffman put forward the novel theory that when the Ohio constitution says that electoral maps are supposed to reflect "results," it meant the outcome of elections, not the percentage of votes for each side.  Republicans have won about 80% of statewide contests over the past decade and so, Huffman argued, votes that gave Republicans an advantage in less than 80% of the districts were consistent with the constitutional mandate.

The problem with that argument is that nobody else involved in the discussions of the recent amendment to the Ohio constitution thought that "results" meant "outcomes" rather than percentages of voters favoring one party or the other.  The entire point of the amendment was to achieve "proportional representation," so that Ohio's elected officials would reflect the political diversity among the electorate.  

Ira Glass, the host of This American Life interviewed the people who drafted the constitutional amendment, and all concurred:

Ira Glass

Richard Gunther said the same thing. Remember, he was one of the five negotiators who hammered out the terms of the amendment. He says, whenever they talked about election results, it was always about the number of votes, never about the number of races won.

Richard Gunther

No, that was never mentioned. And in fact, I've been a professional political scientist for five decades, and I've never seen election data used in that bizarre fashion.

Ira Glass

Matt Huffman totally sticks by his guns in this one. He told me the word in the constitution is "results." This notion that it means counting votes and not offices won--

Matt Huffman

Well, why does the results mean that? Well, because I want it to? Because it's better for me? Well, those aren't really reasons. Well, you know--

Ira Glass

But they're saying-- they're saying, just, that's what everybody talked about back then. Nobody talked about counting the number of offices.

Matt Huffman

Yeah, then it should be in the constitution. This is like the agreement, right? We enter into a settlement agreement to settle our lawsuit, and later on, you say, well, on the side, you said you were paying court costs. I never said that.

Ira Glass

Mm-hmm.

Matt Huffman

Or on the side, I was supposed to get an extra $10,000. Remember, you mentioned it to me just before we signed the document? No. And so that's why we have the constitution and the votes--

Ira Glass

And you're saying the language-- the language-- the language doesn't specify. So it could be either one.

Matt Huffman

Right.

I bring this all up as a nifty illustration of how the parol evidence rule works.  Mr. Huffman implies that, because there is an ambiguity in the document, we can't have recourse to its legislative history to resolve that ambiguity; the language of the text should govern.  But in fact, parol is admitted to clarify ambiguous language.  His analogies to paying court costs or an additional $10,000 are inapt.  Those would be additional terms that likely would be excluded because they would vary the terms of the agreement and are the sort of thing one would expect to be part of the written agreement, assuming integration.  But if there is parol to support the idea that "results" means counting votes and not offices, that evidence is admissible and should aid in interpretation.

Ohio's Supreme Court rejected Mr. Huffman's interpretation of "results" in Adams v. DeWine.  But that may change as a result of the last election.  The three dissenting Justices pointed out that the majority invalidated the proposed GOP maps under the principle of "proportional representation," but the Ohio constitution makes no mention of proportional representation.  The Brennan Center reports that the newly-elected  Ohio Supreme Court Justices may swing the majority of that court from 4-3 against to 4-3 in favor of allowing electoral gerrymandering to proceed.

Heirs of Funny Girl Producer Get to Keep Royalties

Bob Merrill wrote and copywriting the lyrics to Funny Girl in November 1963.  Later that same year, he entered into a royalty agreement with the company behind the Broadway production of the musical.  In December, Merrill entered into a second agreement with Eliot Hyman, an executive at the production company, that reduced Merrill's entitlement to future royalties in exchange for an up-front payment of $82,500.  That second agreement reduced Merrill's royalties when the producers agreed to let another entity, Tams-Witmark Music Library, license the show to other companies.  As a result of the second deal, while Merrill's co-authors got just over 12% of the royalties on the licensing arrangement, Merrill got just over 4%, with the remaining 8% going to Hyman. 

With the original parties to the deal long dead, the US District Court for Connecticut presided over a showdown of the heirs in Merrill v. Hyman.  Merrill's widow thinks that because copyrights have expired, she is now entitled to terminate the agreement with Hyman.  She sued, seeking a declaration that the contract was lawfully terminated.  The Hymans counterclaimed, seeking declaratory judgment and alleging breach of contract and tortious interference in their relationship with Tams-Witmark.  Tams-Witmark is holding royalties in escrow until the dust settles.  

Ms. Merrill was relying on 17 U.S.C. § 304(c) of the Federal Copyright Act, which gives an author the power to revoke any “transfer or license” of the copyright after 56 years.  Unfortunately, Mr. Merrill never transferred or licensed his copyright in Funny Girl to Mr. Hyman; he only agreed that should he decide to transfer or license use of his material in return for royalties, some of those royalties go to Mr. Hyman.  The Copyright Act has nothing to say about such arrangements.

Fanny Brice, the original funny girl

Ms. Merrill did not seem to resist this conclusion.  Instead, she argued that when her husband promised Mr. Hyman a share of his “royalties, percentage compensation, rights and other compensation,'” he understood "rights" to mean copyright rights.  The District Court found that interpretation to be incompatible with three separate provisions of the parties' agreement.  In addition, it would be very odd to have a copyright agreement that made no mention of the Copyright Act.  Other arguments relating to Mr. Hyman's agreement with Tams-Witmark indicated, at best, that Mr. Hyman might have believed that he owned the copyright, but if he did so believe, he was mistaken.  

The court awarded summary judgment to the Hymans on their declaratory judgment and breach of contract claims and permanently enjoined the Merrills from interfering with the Hymans' recovery of royalties.  Upon the Hymans' concession at oral argument that recovery of funds held in escrow would make them whole, the court dismissed as moot the tortious interference claim.

The Signature of the Artist in the Age of Its Mechanical Reproducibility

Mr. Dylan, in 1966

Mark Savage reports on BBC.com that Bob Dylan has apologized.  You need not read any further.  That is news in and of itself.  I'm wracking my brain.  Has Bob Dylan ever apologized before?  For anything?  Isn't that more of a John Denver vibe?

What has finally made the American Bard issue an apology?  Breach of contract, of course.  Mr. Dylan's publisher, Simon & Schuster sold for $600 each 900 "hand-signed" copies of Mr. Dylan's new book, The Philosophy of Modern Song.  Some Dylan aficionados, it turns out, were also signature aficionados, and they discovered that the "hand-signed" books were signed using an autopen.  The publisher went through the five stages of settlement: anger, denial, reference to "letters of authenticity," consultations with PR, the offer of refunds. 

For his part, Mr. Dylan regretted an "error of judgment," but he also offered explanations.  He has vertigo, so it takes a team of five to accompany him during signing sessions.  I recently saw Bob Dylan in concert, and I can confirm that he is unsteady on his feet.  During the pandemic, such sessions became a health risk and so, "with contractual deadlines looming" (that's an actual Dylan quote!!) when some unnamed person recommended the use of the autopen, accompanied by assurances that people do it all the time, Mr. Dylan agreed to auto-sign copies of his book.  The BBC report suggests that other artists have indeed used the same device.  Sinead O'Connor was unapologetic, but signed copies of her book sold for £30, so no big deal.

What is the difference in value between a book hand-signed by Bob Dylan and a book auto-signed by Bob Dylan?  Apparently, quite a bit, and the reason for that turns, contrary to what Walter Benjamin (left) would have you believe, on the ability of works of art to retain their auras, even when they have been stripped of their unique existence in an (often sacred) time and space.  Remy Tumin reports in The New York Times on what motivated one fan, who already owned the book in both in hardcover (unsigned), audio, and Kindle versions, to buy the signed version. “If he touches this book — he wrote it, signed it — it feels like the soul of Bob Dylan is with me.”  That, my friends, articulates the power of the aura of an authentic work of art, or at least, a thing touched by the artist.  

There is a great deal to unpack in all of this, and I wish Benjamin were around to reflect on it.  Works of art once had a specific cultural role.  They elevated and celebrated; they connected us to the divine.  In the modern, disenchanted world, when they became reproducible, the cult value of the work of art is supplemented and eventually replaced with its exhibition value.  The role of the work of art changes as the sources of its value changes.  Benjamin celebrated the transformation of the social function of art.  Art, freed from cultic aura, is democratized.  Pictures, movies, electronic files, etc. can be endlessly reproduced and enjoyed by the masses.  The museum, the gallery, the cafe, the salon, the cinema become the new settings in which the work of art does its work.

At this point, one wants Adorno to step in and to warn about the susceptibility of art to commodification.  People still long for the cultic aura -- the verisimilitude of proximity to artistic creation.  We cannot look over Bob Dylan's shoulder as he writes "Mother of Muses" (below), my favorite song on Rough and Rowdy Ways.  He will not premiere his new songs for us.  The best we can do is buy memorabilia, and we value that memorabilia to the extent that we think it connects us to art or the artist, but the connection is attenuated, shrouded in mists or mysticism.  And then we degrade the artwork's aura (or that of its creator) by reducing its value to the cash nexus.  Appalling!  As thought paying for something would reduce our alienation from our species-being rather than embodying it!  It's in the 1844 manuscripts people!!!

Console yourself that with each breath, you likely inhale some of the same molecules that Mr. Dylan inhaled just before he sang "Blowin' in the Wind" for the first time.  By paying for his signature, you might as well be breathing in molecules Mr. Dylan exhaled during the recording of "Idiot Wind."  Better than either option, you can get a whiff of Dylan's aura at the Dylan Archives in Tulsa.  I plan a pilgrimage soon, even though I reside firmly on the post-Weberian side of disenchantment.

That said, I was thinking about art and aura when I saw Bob Dylan live.  The stage was crowded.  I heard him before I could pick him out, in the (I assume intentionally) one dark patch of an otherwise carefully illuminated mis-en-scene.  The voice was unmistakable.  Bob Dylan was there, singing an unrecognizable version of a recognizable song.  And so it would continue for ninety minutes or so.  Eventually I found him, hunched over a keyboard, looking down at his lyrics, harmonica at the ready, and I was enchanted.

 

Labor and Human Rights Law Protects the Right to Be Abstemious

Going by the headline to Rachel Pannett's reporting in The Washington Post, you might conclude that a French court recognized a right to refuse to be "fun at work."  Was the court trying to establish that the French can be every bit as dour as the Scots?.  Hardly.  The plaintiff, referred to in court documents as Mr. T., alleged that he was fired for refusing to participate in seminars and weekend social events that, in his view, involved excessive alcohol and "promiscuity."  

Reading the headline, for which Ms. Pannett is certainly not responsible, one might get the impression that Mr. T is a killjoy.  Given the timing of the ruling, one imagines that the "fun activity" was something like this . . . 

Image by Miguel Discart
CC BY-SA 2.0 via Wikimedia Commons

. . . and that Mr. T could not manage to be more joyful that he is in the picture at right.

But the story here is not really about refusing to be fun at work.  It is about refusing to bullied into the sort of alcohol-fueled conviviality that often provides the context for sexual harassment and other forms of workplace harassment. 

According to WaPo, plaintiff alleged that the firm's idea of "fun" involved “'humiliating and intrusive practices'” including mock sexual acts, crude nicknames and obliging him to share his bed with another employee during work functions."  

The Court of Cassation ruled that, in refusing to participate in such activities, Mr. T. was engaged freedom of expression, a fundamental freedom  protected under labor and human rights law.  He could not be fired for exercising that right.  The WaPo story then goes on to catalogue other recent cases involving forced merriment at white-collar firms that have resulted in hazing rituals and conduct on which the #MeToo movement has shone light.

Elon Musk Performs Magic on Twitter: Makes Advertisers Disappear!

According to a report from Media Matters for America, Twitter has lost half of its top 100 advertisers in the last month.  The 50 advertiser that have flown the bird coop account for $2 billion in revenue since 2020 and $750 million in revenue in 2022.  Another seven advertisers, accounting for $255 million in 2020 and $118 million in 2022, have reduced their ad buys to a trickle.  What once was a cash cow for Mr. Musk's fledgling business, is now mere chicken feed (pardon my mixed metaphor, but I'm trying to keep the bird theme going).  Most of the departed advertisers are "quiet quitters," but seven have either issued statements that they were leaving the site or were publicly reported to have done so and those reports were confirmed.  

How do we explain this?  Here's how Media Matters explains it:

Elon Musk (who acquired the platform in late October) has continued his rash of brand unsafe actions — including amplifying conspiracy theories, unilaterally reinstating banned accounts such as that of former President Donald Trump, courting and engaging with far-right accounts, and instituting a haphazard verification scheme that allowed extremists and scammers to purchase a blue check. This last move, in particular, opened the platform up to a variety of fraud and brand imitations.

Halisia Hubbard, reporting on NPR adds that Eli Lilly stopped its ads on Twitter after a fake account purporting to be the pharmaceutical company tweeted on an account that featured a purchased "blue check" verification, "We are excited to announce insulin is free now."  Eli Lilly asked that the post be removed, but Twitter is short on staff, and the post remained up for hours and garnered hundreds of retweets and thousands of likes.  Eli Lilly's stock price took a hit as a result. 

Some, citing its status as something like a public forum (an argument I don't buy) are calling for governmental regulation of Twitter.  But private legislation can also do the trick.  If enough advertisers exercise their free expression rights by withholding their money (money = speech, another argument I don't buy), perhaps that will discipline Musk and help save Twitter.

This blog does not account for very much of Twitter's revenue.  Still, we prefer not to have our attention monetized to enhance Mr. Musk's unseemly wealth.  You can find us over on Mastodon for now.  It's actually a fun site, once you figure out how to connect to people over there.  You can find us at this address. 

The Buffalo Billion Case in SCOTUS: Ciminelli v. United States

Once again, Will Baude and Dan Epps' Divided Argument podcast has alerted me to a SCOTUS case with contract implications of which I was previously unaware.  Those of you who are not interested in a listener's phone message featuring a song set to the tune of "Old McDonald" that alleges that Will Baude engages in "unpersuasive scholar trolling" or in the latest news about Justice A-leako (thanks for that one Strict Scrutiny Podcast) can skip to minute 36.  

The SCOTUS case is styled Ciminelli v. United States.  My recitation of the facts is indebted to the Second Circuit opinion in the case, which is styled United States v. Percoco.  The case should be of interest to those of us who cover the bid cases in first-year contracts courses.  The students can really understand those cases only if they understand a little bit about how bids on public construction projects operate.  In order to make it impossible for parties to bid shop, bid chop, or otherwise rig bids on public contracts, subcontractors (subs) are required to submit sealed bids to general contractors (GCs).  The GCs open the bids and often on the same day use the unsealed bids to put together their own bids, which are also sealed.  Bid cases arise when the subs try to retract erroneous bids that the GCs have relied on in putting together their bids.  Following Justice Traynor in Drennan v. Star Paving, unless the bid is obviously the product of a mistake, the Restatement approach treats the subs' bids as irrevocable based on the GC's reliance.  

Did I say that sealed bids make cheating impossible?  Apparently not.  I blogged recently about Victor Goldberg's work, showing that parties can contract around the common law option created by Drennan.  But Ciminelli involves a must more creative (and probably fraudulent) scheme.  Simplifying the facts, the defendants in Ciminelli/Percoco allegedly colluded to rig the bid materials so that preferred contractors would win bids.  The main author of the scheme set up intermediaries that were not a part of the scam.  He then contacted preferred contractors and gathered information about their businesses.  The requests for proposals, (RFPs) one for Syracuse and one for Buffalo (known as the "Buffalo Billion") were then tailored so that only the preferred contractors would qualify.  The scheme worked.  In both Syracuse and Buffalo, the innocent intermediary entity awarded lucrative contracts to the preferred contractors.  

The issue before the Court is whether defendant can be liable for fraud when the state has not proven that it was harmed by the defendant's conduct.  That is, defendants claim that they were indeed the most qualified bidder, and there is no allegation that the state overpaid for the work done or that the work was not competently completed.  The Second Circuit found criminal liability based on defendants' fraudulent interference with the state's "right to control."  Right to control violations occur whenever a scheme denies the victim the right to control its assets by depriving it of information necessary to make discretionary economic decisions.

In his Petition for Certiorari, Ciminelli attempts a frontal assault of on the right to control theory:

Whether the Second Circuit’s “right to control” theory of fraud—which treats the deprivation of complete and accurate information bearing on a person’s economic decision as a species of property fraud— states a valid basis for liability under the federal wire fraud statute, 18 U.S.C. § 1343.

In the appeal to the Second Circuit, defendants argued that the issuer of the RFP was not harmed "because the rigged RFPs merely awarded [defendant-controlled entities] preferred developer status, and did not affect the terms of the separate, subsequently negotiated development contracts."  Defendants also claimed that the government had not identified other parties offering "lower prices, better quality, or better value would have applied and been selected for either the Syracuse or the Buffalo contracts."

As to the first argument, the Second Circuit found that being named preferred developers made it much more likely that they would be awarded contracts, and so the fraud was relevant to an "essential element of the bargain."  That element of the fraud claim is thus satisfied.

As to the second argument, the "right to control" theory requires no showing of economic harm.  The deprivation of the right to control itself entails a violation of a property right.  As the Second Circuit held in Lebedev, "Since a defining feature of most property is the right to control the asset in question, . . . property interests protected by the wire fraud statute include the interest of a victim in controlling his or her own assets." In Finazzo, the Second Circuit clarified that the right-to-control theory requires proof only that "misrepresentations or non-disclosures can or do result in tangible economic harm" (emphasis mine).  

According to Will Baude and Dan Epps, nobody is defending the Second Circuit's "right to control" theory of fraud.  The case is likely to be remanded to see if the government can find an alternative basis for a fraud conviction.

I haven't looked into the law or the briefs on the case, but my instinct is to think that's a shame.  Based on the facts below, fraud has clearly occurred.  Determining whether anybody was harmed would require speculation about what might have happened had the RFPs not been rigged.  The state may have been harmed because there might have been lower bidders.  There is no way to prove that.  Other bidders might have been harmed because, but for the rigged RFPs, they might have bid and won.  But none of them bid, so it is unclear how any of them would have legal standing to allege that they were the victims of defendant's fraudulent misconduct. 

In an era less hamstrung by the Court's commitment to blinkered legal formalism, the government could make the case that, absent a "right to control" theory, there will be no remedy for the kind of fraudulent conduct alleged in this case. Perhaps the Court's expansive view of property rights will motivate it to embrace "right to control" theory sua sponte.   This case clearly involves a fraudulent scheme.  It was successful, and the perpetrators profited substantially.  The public likely paid too high a price for the services provided, but the extent of the harm is not provable with reasonable certainty.  Defendants' competitors were harmed, but they cannot prove it because the carefully crafted RFPs deterred them from bidding.  Who cares? Prophylactic rules may be over-inclusive in order to deter bad behavior.  The Court could uphold a broad rule intended to capture intentional cheating in the competition for public contracts.

 

GM to Pay $3.5 Million to Settle Claims Arising Under Servicemembers Civil Relief Act

Jordyn Grzelewski reports in The Detroit News that GM Financial has agreed to pay U.S military personnel $3.5 million to address breaches of lease agreements in violation of the Servicemembers Civil Relief Act (SCRA).  The SCRA prohibits auto financing and leasing companies from repossessing the vehicles of service members without a court order if the service members have made even one payment before entering the military.  It also allows service members to terminate their leases under certain conditions.

The Department of Justice began an investigation in 2018 and discovered that GM Financial had violated the SCRA in over 1000 cases, including 71 in which it unlawfully repossessed service members' vehicles.    

Tuesday Top Ten - Contracts & Commercial Law Downloads for November 22, 2022

Happy Thanksgiving week here in the U.S.! And we of a certain academic bent can be thankful for interesting new scholarship. Why not download a few titles for discussion around the family dinner table? (Your mileage may vary on that last suggestion...)

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 23 Sep 2022 - 22 Nov 2022

Rank	Paper	Downloads
1.	Enforcing Comparable Treatment in Sovereign Debt Workouts Lee C. Buchheit and Mitu Gulati Center for Contract and Economic Organization and University of Virginia School of Law	300
2.	The Obsolescence of Blue Laws in the 21st Century Ira P. Robbins American University - Washington College of Law	265
3.	Understanding Private Law Felipe Jiménez USC Gould School of Law	202
4.	Unbundling Business Bankruptcy Law Melissa B. Jacoby University of North Carolina School of Law	163
5.	The Privity of Contract: Third Party Rights Under Maldivian Contract Law Husnu Al Suood Maldives Law Institute	158
6.	Zauderer and Compelled Editorial Transparency Eric Goldman Santa Clara University - School of Law	153
7.	Fake and Real People in Bankruptcy Melissa B. Jacoby University of North Carolina School of Law	144
8.	Foreseeability Conventions Morgan Savige and John Fabian Witt Yale Law School and Yale University - Law School	140
9.	Contract Law and Financial Regulation in China: An Illegality Perspective Chao Xi The Chinese University of Hong Kong	123
10.	Party Autonomy and the Challenge of Choice of Law Perry Dane Rutgers, The State University of New Jersey - Rutgers Law School	110

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 23 Sep 2022 - 22 Nov 2022

Rank	Paper	Downloads
1.	Deconstructing Smart Contracts Eliza Mik and Eliza Mik The Chinese University of Hong Kong (CUHK) - Faculty of LawTILT	231
2.	Understanding Private Law Felipe Jiménez USC Gould School of Law	202
3.	Unbundling Business Bankruptcy Law Melissa B. Jacoby University of North Carolina School of Law	163
4.	The Privity of Contract: Third Party Rights Under Maldivian Contract Law Husnu Al Suood Maldives Law Institute	158
5.	Contract Law and Financial Regulation in China: An Illegality Perspective Chao Xi The Chinese University of Hong Kong	123
6.	Party Autonomy and the Challenge of Choice of Law Perry Dane Rutgers, The State University of New Jersey - Rutgers Law School	110
7.	The Corporate Contract and Shareholder Arbitration Mohsen Manesh and Joseph Grundfest University of Oregon School of Law and Stanford University Law School	102
8.	A New Theory of Impossibility, Impracticability, and Frustration Yehonatan Givati and Yotam Kaplan Hebrew University of Jerusalem - Faculty of Law and Bar-Ilan University - Faculty of Law	91
9.	Against Corporate Social Responsibility Jonathan C. Lipson Temple University - James E. Beasley School of Law	82
10.	The Other Hand Formula Maytal Gilboa and Yotam Kaplan Bar-Ilan University - Faculty of Law and Bar-Ilan University - Faculty of Law	74

More News from the World Cup of Contracts

The New York Times provides two separate stories that those inclined towards conspiratorial thinking might think are linked.  First, Adam Crafton reports in the Times curated collection of longish-form sports journalism, The Athletic, that Lionel Messi signed a "lucrative deal" to promote Saudi Arabia as the host of the 2030 edition of the World Cup.  

In the same paper, Rory Smith reports on Saudi Arabia's shocking upset of Argentina, lead by their star -- you guessed it -- Lionel Messi in the team's first match in the 2022 World Cup.  As Rory Smith puts it,

Messi, a being seemingly hewn from pure, uncut poise, seemed afflicted, rushing his passes, missing his beats, fading from the game as the clock ticked rather than bending it to his will. 

All is not lost, Argentina.  The team just has to prevail over Mexico and Poland, and it can still emerge from its group.  But people will be left to wonder: is contractual obligation the one thing that can overcome Messi's competitive drive?

2022 Amendments to the UCC

The Uniform Law Commission (ULC) has unveiled its new amendments to the UCC on it website.  I am happy to report that the revisions to Articles 1, 2, and 2A seem to be quite modest.  Here are some that might matter to teaching:

• Conspicuousness is now to be determined by a totality of the circumstances, a highly sensible revision, especially since we now know that ALLCAPS are not helpful;
• The term "money" is now defined to exclude "an electronic record that is a medium of exchange recorded and transferable in a system that existed and operated for the medium of exchange before the medium of exchange was authorized or adopted by the government," which seems to cover cryptocurrencies but could also encompass broader technologies not yet in existence;

Shockingly, the ULC has not seen fit to change the Statute of Frauds threshold from the $500 amount that made sense when the UCC was drafted to something that makes sense today.  It is less shocking that the ULC did not see fit to eliminate the Statute of Frauds entirely, but its failure to do so remains disappointing.  

The most significant revision, it seems to me, from the perspective of teaching contracts and sales, is the following innovation in the realm of the predominant purpose test for hybrid transactions:

 

(2) In a hybrid transaction:

                        (a) If the sale-of-goods aspects do not predominate, only the provisions of this Article which relate primarily to the sale-of-goods aspects of the transaction apply, and the provisions that relate primarily to the transaction as a whole do not apply.

                        (b) If the sale-of-goods aspects predominate, this Article applies to the transaction but does not preclude application in appropriate circumstances of other law to aspects of the transaction which do not relate to the sale of goods.

            (3) This Article does not:

                        (a) apply to a transaction that, even though in the form of an unconditional contract to sell or present sale, operates only to create a security interest; or

                        (b) impair or repeal a statute regulating sales to consumers, farmers, or other specified classes of buyers. 

The revisions to Article 9 are more extensive.  Sucks to be people who teach Secured Transactions, but I've always thought that to be true.  The dramatic innovation of the revisions is a new Article 12 on Controllable Electronic Records.

Re-Post: Eric Goldman Reviews Netflix's "Pepsi, Where's My Jet?"

Review of the “Pepsi, Where’s My Jet?” Netflix Documentary
Eric Goldman
Technology and Marketing Law Blog

In the mid-1990s, at the height of the Cola Wars, Pepsi ran an ad to introduce its “Pepsi Stuff” loyalty program, including a featured prize of a Harrier Jet for 7M points–a ridiculously high number that was supposed to signal that it was a joke. Watch the ad. However, Pepsi also sold points for 10 cents each, putting a $700k price tag on a jet that was allegedly worth tens of millions of dollars (assuming it could be acquired at all–the US government frowns on individual citizens owning military equipment).

John Leonard, backed by a rich friend Todd Hoffman (who looks like George Carlin), tendered $700k and ordered 1 Harrier Jet. Pepsico declined; they sent him coupons for a couple of cases of Pepsi instead. Leonard retained a lawyer and made legal threats. Pepsi preemptively sued Leonard in its home court of SDNY. Judge Wood’s opinion concluded that the ad objectively did not communicate an offer due to its humor, so no contract ever formed and Leonard didn’t get his Harrier jet. Wood’s opinion is relatively dry, but it’s become a staple of the contracts law canon because of its fun facts and its precise analysis.

Because this case is so iconic, I was excited to see the new Netflix documentary, “Pepsi, Where’s My Jet?” The documentary interviews key figures in the case, many of whom are still alive, and it’s fabulous to hear them tell their stories in their own words.

Despite that, the documentary was disappointing overall. If you’re a contracts or advertising law nerd like I am, you’re going to watch it no matter what I say. But I had hoped the documentary might become a must-see pedagogical supplement for anyone reading the case, and I don’t think it gets there.

The documentary is framed around the cross-generational bromance between GenXer Leonard and his financial sponsor, Boomer Hoffman. Obviously that relationship is at the story’s heart because there was no case without Hoffman’s largesse. However, the filmmakers repeatedly steered the narrative into the bromance, such as seemingly irrelevant segments showing Leonard and Hoffman recently summitting Mt. Vinson in Antarctica (an impressive, but very expensive, accomplishment).

The documentary was split into four episodes, totaling over 2.5 hours. It would have been much better packed into a single 90 minute episode, but instead it felt like the filmmakers padded the narrative with tangents and dead-ends to reach the target length.

Also, the documentary includes many historical reenactments, many of which were unnecessary and not compelling. I am not a fan of recreations in documentaries.

The actual legal ruling gets surprisingly little airtime in the back half of the fourth episode, and the filmmakers did a poor job of contextualizing it. For example, long-standing contracts law doctrine says that advertisements ordinarily are an invitation to make an offer and not an offer themselves, which the documentary doesn’t mention. The documentary repeatedly mentions that many consumers, especially teens, would have taken the ad seriously, but the documentary only offers Team Pepsi’s rebuttals and a few words from the opinion to counter this view. The filmmakers surely could have interviewed some independent experts in contracts law or the advertising industry to supplement the parties’ self-interested statements, and many of them would have sided emphatically with Team Pepsi. By omitting the independent voice, the filmmakers betrayed their normative agenda.

Similarly, the filmmakers styled the case as a David v. Goliath battle. Indeed, it was, but the filmmakers didn’t aggressively question Leonard’s motives. (Instead, the documentary spent a minute or two indulging in overly speculative conspiratorial theories about Pepsi malfeasance that should have been cut). Sure, Pepsi is the big bad company, and surely Pepsi could have easily made safer legal choices in how it presented the jet. At the same time, it’s impossible not to feel like Leonard was an opportunist who used the law, and then media pressure, to improperly seek something he knew he wasn’t really entitled to. For every story of big companies squashing little consumers, there’s another story of little consumers gaming the legal system to extract undeserved cash from big companies and subtracting social value. Leonard’s story really could be told either way. A different filmmaker might have included some counternarrative material that Leonard’s legal efforts were a wasteful and venal abuse of the legal system, along the lines of Harris v. Time. The documentary suffers by not offering that self-reflective/critical perspective.

Some other details I learned:

• At one point, Pepsi considered sending Leonard a model of a Harrier jet. That reminded me of the Toyota/Toy Yoda case.
• Leonard turned down a $1M settlement offer because he really, really wanted the jet. Ah, youthful exuberance. I was shouting at the screen for him to take the cash.
• The ad designers had initially storyboarded a 700M point price tag for the Harrier jet, but during ad review, someone said that number was too hard to read, so two zeros got dropped to make it less cluttered. Oops.
• Pepsi simultaneously ran the same ad in Canada and put a “just kidding” disclaimer on the 7M point price.
• Now-disgraced lawyer Michael Avenatti was involved in the case, principally as a PR advisor/opposition researcher because he was still in law school at the time. Avenatti advised Leonard to launch an attack ad campaign against Pepsi that sounded similar to the scheme he deployed against Nike that sent him to jail. That part of the video was painful to watch.

Other things the documentary should have addressed but did not:

• How much money Leonard/Hoffman spent on the case and why they repeatedly doubled-down despite the adverse developments.
• Why they didn’t appeal the district court decision.
• What, if any, life lessons Leonard took away from his experiences. Knowing what he knows now, would he have made the same choices? He did say he perhaps regretted not taking the settlement offer, but I would have liked to hear more about his meta-reflections after 25 years of life experience.
• In 2014, a (non-functional) Harrier jet sold at auction for $200k. This datapoint makes Pepsi’s 7M point pricetag seem actually quite reasonable, not like a joke at all. Then again, if Leonard really wanted a Harrier jet, his $700k offer was above-market, and he could have fulfilled his dream at a lower cost. I’m disappointed the documentary filmmakers didn’t raise this development because it puts the case in a whole new light.

Though it was completely irrelevant to the story, the filmmakers had many of their interview subjects take the Pepsi Challenge. I won’t spoil the fun by revealing which soda won this completely nonscientific test, but I will note that both Coke and Pepsi have lost the war as consumer tastes have evolved and consumers now drink less sugary sodas overall.

The Beer Breach: Qatar and the World Cup

In a sobering development, Qatar has announced that it will not allow for beer sales at the World Cup.  As Simone Foxman and Adveith Nair report on Bloomberg here, this decision might entail a breach of not one but two contracts!  First, in banning beer from football stadiums, Qatar seems to be violating its agreement with FIFA, the entity responsible for organizing the World Cup.  In addition, Anheuser-Busch InBev NV is the official beer of the World Cup and paid millions to be exclusively available at World Cup venues.  Now beer sales will be relegated to "fan zones" outside stadiums. 

According to Tariq Panja reporting in The New York Times, FIFA President Gianni Infantino responded to criticisms of the decision to hold the World Cup in Qatar, criticisms that have  focused not so much on beer but on the working conditions of foreign laborers who built the stadiums and on Qatar's human rights record.  Comparing his experience as a redheaded child of immigrants to Switzerland to the plight of homosexuals in the Middle East, he decried the hypocrisy of human rights organizations and invited his audience to crucify him.  Nobody in the audience seemed inclined to do so, and FIFA is such a deeply corrupt organization, I don't think anybody thinks much will come from repeating the obvious.

According to Wikipedia, the following organizations have criticized Qatar for human rights abuses in connection with treatment of workers involved in constructions projects for the World Cup: Human Rights Watch, the International Trade Union Confederation, Amnesty International, the International Labor Organization, the UK Daily Mirror, the UK Guardian, Equidem, and FIFA.  Yup.  Hypocrites.

Will the result of the beer ban in major league baseball be replicated?  In 1961, the Milwaukee Braves attempted to ban carry-ins at their baseball stadium  As reported here, in the Milwaukee Journal Sentinel, the ban did not go well.  Fans noticed, for the first time, that baseball is an incredibly boring sport.  There was a 26% drop in attendance.  Angry, sober fans burned down the stadium, killed and roasted the mascot, and renamed the team the Brewers.  Some of the details provided here might go beyond the accounts in the lamestream media, but we just report; you decide.

Moved to Mastodon

Dear Readers,

I have paused the Blog's Twitter account to see try to resist and wait out the Elon Musk experiment. I've moved the Blog's social media presence to Mastodon in case any of you are there and want to follow: @KProfsBlog@vivaldi.net

This is why we can't have nice things. Billionaires buy them and ruin them by inviting insurrection-inciting former Presidents back on the platform. Happens every time.

Weekend Frivolity Revisited: Are You a Swiftie . . .or Just a Bot?

As Ben Sisario and Madison Malone Kircher report in The New York Times here, Ticketmaster has had to cancel its plans for public sales of tickets to the upcoming Taylor Swift tour.  Confusion reigns.  Are there tickets left?  When will they go on sale?  Can I get three seat together that are not partially obstructed for under $1000?  Will my students have to spend hours waiting in virtual queues rather than mastering the Statute of Frauds and the parol evidence rule in time for exams?

According to the Times, Ticketmaster's Verified Fan program was supposed to make Taylor Swift tickets available only to 1.5 million committed fans.  The site was overrun by 14 million "people," including bots, which suggests that the vast majority of accounts trying to get access to Taylor Swift tickets were actually bots.  I've always suspected as much.  

So, for the benefit of my students who are diehard Swifties, I once again offer the following simple test so that you can determine whether you are a bot:

 

Yale and Harvard Leave USNews Rankings: A View from the Other Legal Academy

As reported by Anemona Hartocollis in The New York Times here, Yale Law School and Harvard Law School have announced that they are no longer going to cooperate in the US News and World Report law school rankings process.  Dean Heather Gerken (right) of Yale explains Yale's reasons here.  Dean John Manning (Left) of Harvard explains Harvard's reasons here.  Their reasons are good, solid, and in my view commendable.  If you have not already done so, you should read their brief explanations of their reasons.  I have a few quick thoughts.

First, it is not clear that this decision will have any impact on the rankings.  Yale is #1 and has been #1 since the 1990s.  Harvard is currently #4, and that must suck, but Harvard is likely to retain its status as a top-ten law school even if US News should continue to resist the reforms to its algorithms that the Deans are demanding.  The bulk of the information that US News uses to compile its rankings is publicly available.  That's why low-ranked law schools that are unhappy with their rankings cannot simply pull out.  US News will still rank them, just a little more sloppily and without giving the low-ranked law schools a chance to plead their case. 

Moreover, according to US News, 40% of the its ranking score is based on reputational surveys.  According to Sarah Lawsky, somewhere between 1/3 of 2/5 of entry-level hires at law schools got their J.D.'s from either Yale or Harvard.  Surveys of law professors account for 25% of the US News ranking.  Advantage: Yale and Harvard.  No doubt, Yale and Harvard grads are overrepresented among the other legal professionals surveyed.  If US News stands its ground and continues to include Harvard and Yale in its surveys, its graduates are still likely to rank their alma maters very highly.  And they are not alone.  I've never been to either Yale or Harvard law school. Still, knowing many academics who earned their law degrees at Yale and Harvard, and knowing the writings of current and past faculty at those institutions, I would also rank them at the top.  I can't say the same for the University of Mississippi Law School (a school chosen more or less at random).  I'm sure it's a fine law school, with fine faculty members and fine graduates, but off the top of my head, I can't name any.  And I'm confident the good people at that law school would say the same about my law school.  

Over on the Twitter, someone from The Legal Academy opined that, without USNews, law schools are unregulated, and "predatory" law schools would just take every applicant without any consequence, even if the admitted students are incapable of becoming lawyers.  Once again, when really smart people say things about my work environment that are so obviously wrong, I conclude that they must be working in a completely different environment.  Down here in the Other Legal Academy, we give little or no thought to USNews rankings.  We are unranked and will remain so.  Every once in a while an unranked school might jump up to number 130 or so, but the reasons for the change are mysterious, and often the boost is fleeting.  Absent a deus ex machina, such as an eight-figure donor or a state university that wants to adopt a private, non-profit law school, not much changes near the bottom.

It may well be that folks in The Legal Academy can scoff at ABA regulators, but here in The Other Legal Academy, deans sweat, administrative assistants work overtime, and even faculty members toil over planning documents, inspections, and follow-ups, because ABA sanctions are an existential threat.  My former law school was shut down in the aftermath of ABA discipline.  The USNews rankings remained unchanged, and that institution had long since given up on trying to move that needle.  I have been at my new institution for over two years, and I don't recall any conversations with colleagues, staff, administrators, or students about US News.  Compliance with ABA regulations comes up all the time.  If I even mention the ABA to my Associate Dean, she flies into a rage.  In fact, last month, her face turned green and she took to carrying a broomstick (as illustrated at right, where she is pictured with our dapper Dean), and I can only assume it had something to do with the ABA.

So, no, the very institutions that people in the Legal Academy think ought to be regulated by USNews are largely indifferent to it.  It ignores us, and we reciprocate.  We are instead regulated by . . . our regulators, the ABA.  US News matters to The Legal Academy.  And it may well be that the law schools at the top of the heap have the market power to regulate their regulator.  US News does not have a lot going for it other than its rankings.  If Yale and Harvard can get their chief competitors to stop cooperating with US News, they may be able to force some changes in US News's approach.  And that would be all to the good.  Either way, Yale will remain #1, and Harvard will stay in the top five, if not the top three.