ContractsProf Blog

An AAUP Special Report: Never Waste a Good Pandemic

The American Association of University Professors (AAUP) issues a Special Report, Covid 19 and Academic Governance.  The news is not good.  We law professors had a rough ride after 2008's Great Recession, but most law schools were able to ride out the storm and most law schools are now steering towards calmer waters.  Meanwhile, smaller colleges and universities are taking on a lot a water as a result of the pandemic, and the report sadly evidences that contracts and tenure do little to protect faculty when educational institutions founder.

The title of this post is a quotation from a university administrator, allegedly in the service of "disaster capitalism."  That is, some university administrations may have used the pandemic as an excuse to eliminate programs and faculty that were not carrying their weight in terms of revenue generation.   Saying the quiet part loud, academic administrators welcomed the opportunity created by the pandemic.  They invoked "act of God" provisions to close departments and terminate tenured faculty members, and they tossed aside existing faculty handbooks, replacing them with new ones written by administrators with limited faculty input.   The result may be a permanent adjustment of university governance that will make it -- wholly unsurprisingly -- more resemble corporate governance, with power concentrated in the hands of university administrators, while faculty governance is constrained, especially with respect to financial matters.

The AAUP document is illustrative rather than exhaustive.  It reports on an investigation into eight institutions.  While the investigation was ongoing, the AAUP was inundated with reports of similar developments at other institutions, but the report remains focused on eight: Canisius College (NY), Illinois Wesleyan, Keuka College (NY), Marian University (WI), Medaille College (NY), National University (CA), University of Akron, and Wittenberg University (OH).

The report makes for sobering reading.  There seems to be something of a playbook that administrations follow.  Faculty as a whole respond rather timidly, voicing their objections but ultimately acquiescing as their colleagues agree to severance or early retirement.  They have little choice, as courts tend to back administrations, who can rely on "financial exigency" or "act of God"  provisions in faculty handbooks, and tenured faculty members have few options if they lose their jobs.  The AAUP acknowledges that educational institutions face significant financial challenges, and the report does not suggest that there is an alternative to cutting programs and terminating tenure lines.  Rather, it admonishes these institutions for failing to follow AAUP procedures and guidelines for doing so with the involvement of and input from faculty.

The AAUP tacitly acknowledges that it has a problem.  According to the report Kenneth Macur of Medaille College wrote to his faculty on April 15th, “I believe that this is an opportunity to do more than just tinker around the edges. We need to be bold and decisive . . . . A new model is the future of higher education.”  That new model does not include the tenure system as we currently know it.

The report indicates that AAUP reached out to Dr. Macur seeking an interview. 

In his May 12 response, the president declined a request for an interview by the investigating committee, submitting instead a three-page statement, which claimed that Medaille “has no affiliation or relationship with the AAUP, does not have a faculty chapter of the AAUP, and does not have any faculty listed as members on the AAUP’s website.  The AAUP does not govern, accredit, or have any authority over Medaille College.” It is symptomatic of the current state of affairs in American higher education, we believe, that a college president would declare his intention to dismantle tenure at his institution to the Wall Street Journal but refuse to participate in an investigation conducted by the AAUP.

In such circumstances, all AAUP can do is name and shame, but it is not clear if that approach will be effective.  One would hope that being the focus of an AAUP report would serve a disciplinary function on such institutions, but they seem willing to take the risk, and most likely consequence of negative publicity would be declining enrollments and more cuts to faculty and staff.

John Deere Tractors and Contracts of Adhesion Have Farmers Shouting "Hay!"

The first motor vehicle I ever drove was a tractor, and I still admire the machines, now exclusively from afar.  Perhaps that is why a story on NPR this morning caught my ear.  The story covers the experience of a farmer, Walter Schweitzer, who was trying to make hay while the sun shone, but for some reason NPR rendered this as "hustling to cut and bale his hay while the weather was still good."  Sheesh, what a missed opportunity.  But I digress. 

The point is, his tractor broke down, and Schweitzer couldn't fix it because he did not have access to software that would have enabled him to diagnose the problem.  Who did have access to the software?  John Deere, and only John Deere.  Schweitzer eventually had to take the tractor to the dealer, which kept it for a month and charged him $5000 for a faulty fuel sensor that a local mechanic could have replaced for a fraction of the price. 

The problem is that modern tractors are extraordinarily sophisticated machines that cost upward of $200,000, but when you buy such a tractor, you are only buying the machine itself.  The manufacturer retains ownership of the software.  Farmers have been lobbying for access to the software, and the manufacturers promised to make it available, but . . . so far nothing.

Enter state legislatures with a possible solution to the problem: so-called right-to-repair bills, which require the manufacturer to share software with the farmers.  So far, these bills, although introduced in 12 states, have uniformly failed because of concerns that they might cause safety risks and environmental harms.  Farmers are trying to hack into their machines to access the information they need, or they are going retro and buying old tractors that work without all the software.

Meanwhile, there's more bad news as reported in this article on Vice.  The tractors compile data on their use.  The upside is that the manufacturers can share the data with the farmers who use the tractors in order to help the farmers maximize their yields.  The downside is that the farmers have no way to know what data is being collected, with whom it is being shared, and for what purposes it is being used.

According to the article (which is from 2018 but likely is still accurate),

The John Deere EULA, which a farmer automatically agrees to by turning a key on their equipment, not only forbids repair and modification, but also protects the company against lawsuits for “crop loss, lost profits, loss of goodwill, loss of use of equipment arising from the performance or non-performance of any aspect of the software.”

The article highlights other problems, such as:

• The machines can cost $500,000 or more; the farmers can't afford them so they lease them, often from the manufacturer;
• The manufacturer may learn form Apple and plan the obsolescence of these machines, simply by not updating the software;
• Manufacturers could remotely shut down equipment if they think farmers are violating the EULA by, for example, engaging in self-repair; and
• If the farmers can hack into their machines' software systems, others might do so as well with malign intent.

 

Tuesday Top Ten - Contracts & Commercial Law Downloads for May 25, 2021

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 26 Mar 2021 - 25 May 2021

Rank	Paper	Downloads
1.	Content Moderation Remedies Eric Goldman Santa Clara University - School of Law	979
2.	Tokenized: The Law of Non-Fungible Tokens and Unique Digital Property Joshua Fairfield Washington and Lee University - School of Law	918
3.	Privacy in the Clouds, Revisited: An Analysis of the Privacy Policies of 40 Cloud Computing Services Felicity Turton, Dimitra Kamarinou, Johan David Michels and Christopher Millard Queen Mary University of London, School of Law - Centre for Commercial Law Studies, Queen Mary University of London, School of Law - Centre for Commercial Law Studies, Queen Mary University of London, School of Law - Centre for Commercial Law Studies and Queen Mary University of London, School of Law - Centre for Commercial Law Studies	322
4.	Contractual Evolution Matthew Jennejohn, Julian Nyarko and Eric L. Talley Brigham Young University - J. Reuben Clark Law School, Stanford Law School and Columbia University - School of Law	298
5.	Portraits of Bankruptcy Filers Pamela Foohey, Robert M. Lawless and Deborah Thorne Indiana University Maurer School of Law, University of Illinois College of Law and University of Idaho	231
6.	Market Power Parasites: Abusing the Power of Digital Intermediaries to Harm Competition Noga Blickstein Shchory and Michal Gal University of Haifa, Faculty of Law and University of Haifa - Faculty of Law	173
7.	Creating Cryptolaw for the Uniform Commercial Code Carla Reyes Southern Methodist University - Dedman School of Law	169
8.	Novel Issues in Canadian Labour Arbitration Related to COVID-19 Richard A. Bales Ohio Northern University - Pettit College of Law	139
9.	One, Two, Sort the Shoe; Three, Four, Win Some More: The Rhyme and Reason of Phil Ivey’s Advantage Play at the Borgata Nanci Carr California State University, Northridge - Department of Business Law	118
10.	Amazon as a Seller of Marketplace Goods Under Article 2 Tanya J. Monestier Roger Williams University School of Law	118

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 26 Mar 2021 - 25 May 2021

Rank	Paper	Downloads
1.	Content Moderation Remedies Eric Goldman Santa Clara University - School of Law	979
2.	Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey Symeon Symeonides Willamette University - College of Law	509
3.	An Elusive Finality: The Illusive Standard for the Modification of Confirmed Chapter 13 Plans Amir Shachmurove Harvard Law School	376
4.	A Troublesome Prospect: Section 1322(b)(2) and a New Generation of Mixed-Use Developments Amir Shachmurove Harvard Law School	341
5.	Novel Issues in Canadian Labour Arbitration Related to COVID-19 Richard A. Bales Ohio Northern University - Pettit College of Law	139
6.	One, Two, Sort the Shoe; Three, Four, Win Some More: The Rhyme and Reason of Phil Ivey’s Advantage Play at the Borgata Nanci Carr California State University, Northridge - Department of Business Law	118
7.	Amazon as a Seller of Marketplace Goods Under Article 2 Tanya J. Monestier Roger Williams University School of Law	118
8.	Six Levels of Contract Automation: The Evolution to Smart Legal Contracts - Further Analysis Susannah Wilkinson and Jacques Giuffre Herbert Smith Freehills and Herbert Smith Freehills	96
9.	Contractual Stakeholderism Kish Parella Washington and Lee University - School of Law	92
10.	Digital Infrastructure Integrity Protocol for Smart and Legal Contracts DIIP 2021 Ariane Garside, Susannah Wilkinson, Natasha Blycha and Mark Staples Herbert Smith Freehills, Herbert Smith Freehills, Herbert Smith Freehills and CSIRO Data61	82

Contracts Issues in Shtisel, Season 3, Part I

I am a big fan of the Israeli television series Shtisel.  I was thrilled when Netflix made Season 3 available but also a bit apprehensive, because I just didn't think the writers could maintain the intensity of their dramedy without drifting into formulaic schtick or melodrama.  Season 3 begins with a grieving widower, an orthodox woman unable to bear children, and a school principal facing removal from his position as a punishment for some pretty brutal corporal punishment caught on a smart phone.  The season was tipping towards melodrama.  But the show sustains its remarkable balancing act, revealing unexpected depths in its characters, brought out through fabulous acting, inventive plot twists that don't overtax the viewers' indulgence, and brilliant pacing and editorial interweaving of different threads. 

I just watched an episode in which the main character from Seasons 1 & 2, Akiva Shtisel (Michael Aloni) did not appear at all.   I didn't miss him, even thought I am very intrigued by his journey in Season 3, because I was so caught up with what was going on with the other characters.  The show is especially fun for me, because it provides just the life-support needed to sustain my dwindling recollection of Hebrew and Yiddish.  In addition, the show depicts strong-willed, even stubborn, characters constrained by fervent religious belief.  They constantly collide with one another while stuck between a rock and a hard place. The show's women are remarkably practical, creative, and determined, but also vulnerable and thus inevitably brittle; its men are deeply flawed and often shrewdly self-interested but also passionate and sometimes endowed with a softness and compassion that the women cannot always afford -- or don't think they can risk.

Contracts, formal and informal, and negotiation pervade the series.  I am only halfway through the season, and I don't want to provide too many spoilers, but here are some of the contractual/transactional interactions that arise:

• Has a school principal been effectively terminated from employment if he has been informed of his termination but does not agree to it?  If he responds by setting up a rival school and sets out to poach his former employer's students, has he breached any obligations absent a covenant not to compete?
• If an art collector agrees to exchange paintings she has purchased from a gallery for new paintings by the same artist of equal quality, is that a subjective condition of satisfaction or a an illusory promise, given that the collector seems to have total discretion to determine whether the substitute paintings are of equal quality?
• Can a young man get out of an arranged marriage when: the prospective bride and groom have no real connection, and the groom has fallen for another woman; and the bride's family has asked for additional consideration above the amount agreed upon at the start of the arrangement?
• If an orthodox Jew providing catering services for a secular tv producer promises to supply orthodox Jews who will perform as extras on demand, has he breached when he substitutes hipsters for the orthodox Jews?

I expect I will add a Part II to this post once I finish the season.

Handy Overview on the Student Suits against Universities from Inside Higher Education

Over at Inside Higher Education (IHE), Doug Lederman provides a review of the fate of the hundreds of suits filed against colleges and universities by students claiming that they did not get the educational experience promised to them due to the colleges' and universities' responses to the pandemic.  The news is mostly bad for plaintiffs, but some cases are proceeding to trial, and at least two schools have settled to end the suits.  

As readers of this blog should know, most states do not recognize a cause of action for "educational malpractice," nor do they entertain suits that would put courts in the position of second-guessing educational institutions about how best to deliver their curricula.  It's like a business judgment rule for higher education.  The cases that succeed have to allege that the educational institution made some specific promise on which it failed to deliver.  For the most part, courts seem to be more willing to entertain such claims as they relate to fees than tuition, a point not addressed in the IHE piece.

Barry University Campus

According to IHE, Southern New Hampshire University paid $1.25 million to settle claims brought against it, and Barry University paid $2.4 million.  IHE does the math and figures that Barry's claim comes out to about $350 per student, but that calculation does not take into account lawyers' fees, nor is it clear whether all 7000 Barry students are eligible to be part of the plaintiff class.  In any case, the point is that some institutions are willing to pay a bit to make these cases go away.  Schools are especially vulnerable if they have developed online educational programs for which they charge less and if their in-person education became essentially indistinguishable from their online program as a result of closures necessitated by the pandemic.

H/T John Wladis.

Teaching Assistants: Dorothy A. Brown, Critical Race Theory, 3rd Edition

I just received my copy of the third edition of Dorothy Brown's Critical Race Theory: Cases Material and Problems.  The book devotes about 35 pages to a discussion of critical race theory and contracts, which is the subject of this blog post.  The rest of the book provides an introduction to critical race theory and then there are individual chapters dedicated to torts, contracts, property, criminal procedure, criminal law, and civil procedure.  The book seems ideally suited to a course dedicated entirely to critical race theory.  I would be interested in hearing from contracts profs who have also made use of the book in their course.  The book is not expensive, and since it's been out since 2014, there ought to be used copies in circulation, but it is still hard to make students buy a 330-page book, if you can only assign the introductory chapters and the contracts chapter.  Ideally, one could get a group of doctrinal faculty members across the curriculum to each assign the relevant chapters for their courses, but that's would involve herding cats, so . . . .

The chapter on contracts begins with excerpts from an article, Racial Inequality in Contracting: Teaching Race as a Core Value by friend of the blog, Deborah Zalesne (pictured left).  In it, Deborah pushes back against the law school imperative to train students to "think like a lawyer" by mastering "objective," "neutral" rules of general applicability.  Approaches to doctrine that value efficiency rather than fairness bake into the law assumptions that privilege the dominant groups whom the law was designed to protect.  Introducing critical approaches to the doctrine right from the start is the best way to train lawyers who know the law but also know the ways in which it applies inequitably along lines of race and gender.

Courts suppress the interplay of race, class, and gender with contracts law because lawyers and judges are trained to treat such matters as irrelevant to legal decision-making.  As a result, the race and gender of parties to legal proceedings are erased, rendering women and racial minorities "invisible" in the case law.  In order to counter this trend, Deborah explores the relevance of race to contracts doctrine in connection with consumer racial profiling and culturally sensitive approaches to assent and interpretation.

After that introduction to a critical race theory approach to contracts, the chapter provides a some background on unconscionability doctrine, followed by Judge Skelly Wright's opinion in Williams v. Walker Thomas Furniture, about which we have posted recently here.  There follows an excerpt from Amy H. Kastely's 1994 article, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law.  Professor Kastely provides a critical perspective on Skelly Wright's opinion.  Although Skelly Wright appropriately invoked the unconscionability doctrine in the case, along the way he indulged the stereotype of the poor, uneducated, helpless Black welfare recipient.  The opinion has about it the whiff of paternalism.  Professor Kastely thinks the opinion could have improved by focusing not on the particulars of Ms. Williams' situation but on the structural racism that creates the climate in which predatory business practices thrive.  The law often asks how a "reasonable person" would respond to the facts of a case.  As it turns out, we all respond pretty much the same way to form contracts, but vendors would never get away with offering terms, like Walker-Thomas's notorious cross-collateralization clause to consumers in affluent (White) neighborhoods.

The chapter next provides additional commentary on the Walker-Thomas opinion in the form of a student note by Eben Colby, now a partner with Skadden.   Colby suggests that Skelly Wright's intervention did little to protect consumers like Ms. Williams.  Walker Thomas adjusted its contract, but it continued to pursue remedies against its customers, who continued to fall behind in their payments.  Statutory measures, such as the Truth in Lending Act, turned out to be more effective in disciplining the company than the common-law unconscionability doctrine.

The chapter concludes with Muriel Morisey Spence's fictionalized account of the facts of Walker-Thomas in an excerpt from her article, Teaching Williams v. Walker-Thomas Furniture.  Her alternative facts render Williams a more sympathetic party, to the extent that students may be inclined to judge her harshly for buying a stereo system that cost several times her monthly income.  Professor Morisey's approach strengthens the criticisms posed in the previous segments.  Skelly Wright's approach is paternalistic, and that paternalism cabins the unconscionability doctrine is ways that are not helpful.  The particularities of Ms. Williams' background explain very little.  She was a responsible mother and a wise consumer who managed her household on a tiny income for years.  What befell her could have befallen any consumer, regardless of education or income, because people often face unforeseen financial setbacks and are suddenly on the wrong side of a nasty contractual term of which they never had any reason to take notice.

The book contains great materials, and they remain timely.  That said, there are now many contracts profs who have concluded, for precisely the reasons given in the chapter, that Walker-Thomas is not the best vehicle for introducing students to the doctrine of unconscionability.  If a new edition is in the works, it is to be hoped that it could be revised to consider the many contexts outside of unconscionability where race and the law intersect.  The links below provide some examples of what those contexts might be.  

This post is part of a continuing series on introducing critical perspectives, including critical race theory, into the teaching of first-year contracts.  Other posts in the series include:

• Guest Blogger Marissa Jackson Sow on Whiteness as Contract and the Police, Part II
• Guest Blogger Marissa Jackson Sow on Whiteness as Contract and the Police, Part I
• Teaching Assistants: Marissa Jackson Sow, "Whiteness as Contract"
• Teaching Assistants: Threedy, Dancing Around Gender
• Guest Post by Alan White, Systemic Racism and Teaching Contracts
• Guest Post by Deborah Post on Williams v. Walker-Thomas
• Guest Post by Chaumtoli Huq, Part III: Counter-Hegemonic Narratives
• Guest Post by Chaumtoli Huq, Part II: Freedom to Contract and the Reasonable Man
• Guest Post by Chaumtoli Huq, Part I: The Decolonial Framework
• Guest Post by Deborah Zalesne, The (In)Visibility of Race in Contracts: Thoughts for Teachers
• What Should a Court Do in Response to Racist Contractual Threats? Wolf v. Marlton Corp.
• Guest Post by Charles Calleros: Raising Issues of Race, Ethnicity, and Culture in 1L Contracts: Language Barriers
• Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part II – Consideration
• Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part I – Mutual Assent
• Teaching Assistants, Emily Houh's Redemptive Theory of Contract Law

Keren on Takhshid’s Assumption of Risk in Consumer Contracts

Over at Jotwell, Hila Keren has reviewed Zahra Takhshid’s article, Assumption of Risk in Consumer Contracts and the Distraction of Unconscionability, 42 Cardozo L. Rev. ___ (forthcoming, 2021).  I recommend reading it and so won’t review the review, but I will note that the focus on exculpatory clauses should make this a particularly relevant and timely article. Keren also does what good reviewers should do – she situates the article within the existing body of legal scholarship more generally, finding that it “belongs with the law and economy project as it illuminates how contracts’ enforcement is far from neutral and instead facilitates rising inequality.” 

 

 

 

Tuesday Top Ten - Contracts & Commercial Law Downloads for May 18, 2021

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 19 Mar 2021 - 18 May 2021

Rank	Paper	Downloads
1.	Content Moderation Remedies Eric Goldman Santa Clara University - School of Law	953
2.	Privacy in the Clouds, Revisited: An Analysis of the Privacy Policies of 40 Cloud Computing Services Felicity Turton, Dimitra Kamarinou, Johan David Michels and Christopher Millard Queen Mary University of London, School of Law - Centre for Commercial Law Studies, Queen Mary University of London, School of Law - Centre for Commercial Law Studies, Queen Mary University of London, School of Law - Centre for Commercial Law Studies and Queen Mary University of London, School of Law - Centre for Commercial Law Studies	289
3.	Contractual Evolution Matthew Jennejohn, Julian Nyarko and Eric L. Talley Brigham Young University - J. Reuben Clark Law School, Stanford Law School and Columbia University - School of Law	264
4.	Frustration, the MAC Clause, and COVID-19 Andrew A. Schwartz University of Colorado Law School	231
5.	Portraits of Bankruptcy Filers Pamela Foohey, Robert M. Lawless and Deborah Thorne Indiana University Maurer School of Law, University of Illinois College of Law and University of Idaho	225
6.	Creating Cryptolaw for the Uniform Commercial Code Carla Reyes Southern Methodist University - Dedman School of Law	166
7.	Market Power Parasites: Abusing the Power of Digital Intermediaries to Harm Competition Noga Blickstein Shchory and Michal Gal University of Haifa, Faculty of Law and University of Haifa - Faculty of Law	165
8.	Modernizing Mortgage Law Christopher K. Odinet University of Iowa - College of Law	155
9.	Novel Issues in Canadian Labour Arbitration Related to COVID-19 Richard A. Bales Ohio Northern University - Pettit College of Law	135
10.	Against Copyright Customization Guy A. Rub Ohio State University (OSU) - Michael E. Moritz College of Law	121

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 19 Mar 2021 - 18 May 2021

Rank	Paper	Downloads
1.	Content Moderation Remedies Eric Goldman Santa Clara University - School of Law	953
2.	Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey Symeon Symeonides Willamette University - College of Law	504
3.	A Troublesome Prospect: Section 1322(b)(2) and a New Generation of Mixed-Use Developments Amir Shachmurove Harvard Law School	249
4.	Frustration, the MAC Clause, and COVID-19 Andrew A. Schwartz University of Colorado Law School	231
5.	Novel Issues in Canadian Labour Arbitration Related to COVID-19 Richard A. Bales Ohio Northern University - Pettit College of Law	135
6.	One, Two, Sort the Shoe; Three, Four, Win Some More: The Rhyme and Reason of Phil Ivey’s Advantage Play at the Borgata Nanci Carr California State University, Northridge - Department of Business Law	117
7.	Amazon as a Seller of Marketplace Goods Under Article 2 Tanya J. Monestier Roger Williams University School of Law	116
8.	Contractual Stakeholderism Kish Parella Washington and Lee University - School of Law	86
9.	Six Levels of Contract Automation: The Evolution to Smart Legal Contracts - Further Analysis Susannah Wilkinson and Jacques Giuffre Herbert Smith Freehills and Herbert Smith Freehills	77
10.	Digital Infrastructure Integrity Protocol for Smart and Legal Contracts DIIP 2021 Ariane Garside, Susannah Wilkinson, Natasha Blycha and Mark Staples Herbert Smith Freehills, Herbert Smith Freehills, Herbert Smith Freehills and CSIRO Data61	74

Another Student Sues a University Based on COVID-Related Claims

Czigany Beck sued Manhattan College, alleging breach of contract, conversion, unjust enrichment, and consumer protection claims.  In a recent opinion, the Southern District of New York dismissed all of Beck's claims except for her claim for a tuition refund based on unjust enrichment.  

The story is familiar.  Ms. Beck enrolled in college for the Spring semester, 2020.  In March, the school "moved all classes online, cancelled all on-campus events, closed most campus facilities, and required most students living on campus to vacate the residence halls."  Plaintiff brought two breach of contract claims, relating to tuition and fees respectively, alleging that the College had promised her an in-person learning experience.  The court found the representations in the College's brochures and website to be not specific enough to constitute promises. 

However, the court found that Ms. Beck's unjust enrichment claim was not duplicative of her breach of contract claim.  She alleged that the College had reduced costs and increased government funding as a result of the pandemic.   As a result, the court refused to dismiss Ms. Beck's unjust enrichment claim as it related to tuition.  Her unjust enrichment claim relating to fees was dismissed, as the court found it barred by a contractual term relating to fees that barred refunds for fee payments.  

This part of the decision is extremely odd.  The College no doubt has rules regarding tuition refunds that are incorporated into its agreements with its students every bit as much as the "no refund" policy relating to fees.  No doubt, students are on notice, for example, that they cannot get a tuition refund if they fail to withdraw before a certain date.  Following the court's logic with respect to fees, such terms would bar recovery on the plaintiff's unjust enrichment claim with respect to tuition. 

With respect to fees, the student was charged fees in connection with activities (e.g., student organizations) and institutions (the student health center) that were no longer available due to the closure of the campus.  If the College failed to provide these services for which the student paid, it either breached its contract or it was unjustly enriched or both.  It can't be neither.  One party cannot breach its contractual obligations and then say, "Sorry, no refunds."  That can't be the law.

H/T @NY_Contracts.

More New York Cases!

Thanks again to @NY_Contracts 

There are many things about 136 Field Point Circle Holding Co., LLC v. Razinski that I do not understand.  For example, why would one pay $9 million for the option to purchase a property for $19 million?  And why would one do that if one were not absolutely certain that one could put together the necessary financing so as not to lose the $9 million plus $1 million in liquidated damages?  Fortunately, that is not a contracts law issue. 

The issue that matters to us is whether the $1 million liquidated damages provision is enforceable, and it is.  The liquidated damages were not "grossly disproportionate" in relation to the failure to sell a property valued at between $20 and $30 million.  The Razinskis were proceeding pro se in the matter after the court granted their attorney's motion to withdraw.  That may explain why, although they raised what looked plausible legal theories, the court summarily rejected them as lacking factual support.

I think I do understand the facts underlying Crown Jewels Estate Jewelry, Inc. v Underwriters at Interest at Lloyd's London, and what great facts they are.  Crown Jewels thought it loaned $2 million worth of jewels to Sony International films so that Jennifer Lopez (pictured) could wear them for a shoot in Miami.  In fact, the jeweler was working with an agent for James Sabbatino, a member of the Gambino organized crime family who engineered the heist from his prison cell!  The jewels were never recovered, and Sabbatino was convicted of RICO violations and sentenced to 240 months in prison.  Prison guards uncovered the scheme when they went to his cell looking for the jewels (or perhaps Jennifer Lopez) and found Sabbatino talking on one of his cell phones!  I'm imagining a scene that ends with the words, "Uh, I'm gonna have to call you back." 

Anyway, the contracts issue was whether the jeweler's insurance would cover the loss.  It didn't because of something called the dishonest entrustment exclusion.  The rule applies when "[t]he loss of plaintiff's jewelry resulted from theft or an act of dishonest character on the part of the persons to whom the jewelry was entrusted. It is irrelevant to whom or for what purpose the jewelry was actually or intended to be entrusted." Harsh.

NY Case Law Roundup

@NY_Contracts provides an embarrassment of riches.  We summarize some of the cases below:

Ajay Suresh from New York, NY, USA, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons

In M.G. v. J.G., the Supreme Court, King's County, found that a woman violated her divorce settlement agreement by failing to maintain the couple's child's health insurance that she received through her employer or to replace it with substantially similar coverage.  The woman changed jobs and so lost her health insurance.  She found substitute insurance, but her child's healthcare providers were not in the new network.  The court faulted her for not continuing with her former insurance coverage through COBRA and for failing to elect to remain with her former insurer through her new employer.  She was ordered to pay attorney's fees and to restore her child's prior health insurance coverage within 30 days.

I find this shocking.  How can anybody guarantee continuity of healthcare coverage when insurers constantly change their roster of providers included within their networks and employers change insurers more regularly than I change my Brita water filters?

Beyond My KenCategory:Architectural sculptures, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

Top Grade Excavating N.Y. Inc. v. HDMI Holdings, LLC  provides a nice, quick example of why extrinsic evidence might be useful to resolve a contractual ambiguity.  The contract provided that plaintiff was to break up rock at a rate of $500 per cubic yard, but it did not specify how that quantify was to be measured -- was it "the volume of the rock in its compacted, unbroken, undisturbed state or the size of the containers it filled after being excavated and broken"?  The trial court allowed in parol and extrinsic evidence to clarify that issue.  Defendant did not preserve its objection to the admission of that evidence, but the Appellate Division also found that the evidence was properly admitted.

In Keller v. About, Inc., the defendant corporation sought to compel arbitration of plaintiff's federal and state statutory claims pursuant to an arbitration provision in plaintiff's employment agreement.  Plaintiff alleged that the arbitration agreement was unconscionable because it limited the statute of limitations on her claims to six months.  Defendant agreed to waive the statute of limitations as to plaintiff's federal Equal Pay Act claims as well as certain fee-shifting provisions that plaintiff alleged would have prevented her from recovering statutorily authorized damages.  The Southern District proceeded to assess whether the arbitration clause remained unconscionable in light of the shortened statute of limitations with respect to plaintiff's remaining claims.

The court found no unconscionability.  Noting that plaintiff is "an accomplished and well-educated executive," the court found no procedural unconscionability.  Plaintiff cited to no high-pressure tactics, and the entire employment agreement was only three pages long, so there could be no claim of terms buried in the fine print.  On the contrary,  language pertaining to the arbitration clause was in BOLD AND ALLCAPS, for whatever that's worth, which isn't much.  The shorted statute of limitations might have been one-sided, but the court concluded that the arbitration clause was not "so outrageous as to warrant holding it unenforceable on the ground of substantive unconscionability alone."  Two question, if the plaintiff's sophistication negated the gross inequality in bargaining power here, why did the defendant have to waive some of the more obviously unconscionable aspects of its arbitration provision?  Hasn't defendant conceded that some of the terms were unconscionable, and shouldn't that concession preclude defendant from denying that there was procedural unconscionability here?

Plaintiff attempted to argue that the shortened statute of limitations prevented effective vindication of her statutory rights, a court-created exception to the general policy favoring arbitration under the Federal Arbitration Act.  But the Supreme Court basically read the effective vindication doctrine out of existence in Italian Colors.  Did a corporation take advantage of the Supreme Court's white-hot love affair with forced arbitration and impose on you, on a take-it-or-leave-it basis, arbitration terms that strip you of statutory rights created through democratic processes and intended to protect people exactly like you in exactly this situation?  Justice Kagan nicely summarized the consequences of the Italian Colors majority in her dissent.  "Too darn bad."  The SDNY concurs in the majority opinion.

Introducing The Private Law Podcast

Felipe Jimenez

Brian Bix

Some of you may already be familiar with Felipe Jiménez's Private Law Podcast, but I wasn't.  I learned on The Twitter of the most recent episode, featuring Brian Bix.  Most people who know Brian's work likely associate him with the rarified air of jurisprudence.  In this podcast, he discusses the critique of traditional contracts law pedagogy offered by Stewart Macaulay's law-in-action approach.

Once you've discovered the podcast, you can tune into earlier episodes, featuring fabulous scholars, including friend of the blog, Aditi Bagchi.

Great conversations, even though some of them are about torts.

Tuesday Top Ten - Contracts & Commercial Law Downloads for May 11, 2021

Moving past some schedule bumps for yours truly connected with the end of the semester, the Tuesday Top Ten comes roaring back today with both the quality and quantity (of downloads) data you expect from this august blog. Let's see what's tops at SSRN with our favorite subjects this week:

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 12 Mar 2021 - 11 May 2021

Rank	Paper	Downloads
1.	The Crisis of Online Contracts (as Told in 10 Memes) Eric Goldman Santa Clara University - School of Law	1,092
2.	Content Moderation Remedies Eric Goldman Santa Clara University - School of Law	919
3.	Contractual Evolution Matthew Jennejohn, Julian Nyarko and Eric L. Talley Brigham Young University - J. Reuben Clark Law School, Stanford Law School and Columbia University - School of Law	248
4.	Frustration, the MAC Clause, and COVID-19 Andrew A. Schwartz University of Colorado Law School	228
5.	Portraits of Bankruptcy Filers Pamela Foohey, Robert M. Lawless and Deborah Thorne Indiana University Maurer School of Law, University of Illinois College of Law and University of Idaho	220
6.	Creating Cryptolaw for the Uniform Commercial Code Carla Reyes Southern Methodist University - Dedman School of Law	163
7.	Market Power Parasites: Abusing the Power of Digital Intermediaries to Harm Competition Noga Blickstein Shchory and Michal Gal University of Haifa, Faculty of Law and University of Haifa - Faculty of Law	158
8.	Modernizing Mortgage Law Christopher K. Odinet University of Iowa - College of Law	152
9.	Novel Issues in Canadian Labour Arbitration Related to COVID-19 Richard A. Bales Ohio Northern University - Pettit College of Law	128
10.	One, Two, Sort the Shoe; Three, Four, Win Some More: The Rhyme and Reason of Phil Ivey’s Advantage Play at the Borgata Nanci Carr California State University, Northridge - Department of Business Law	114

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 12 Mar 2021 - 11 May 2021

Rank	Paper	Downloads
1.	The Crisis of Online Contracts (as Told in 10 Memes) Eric Goldman Santa Clara University - School of Law	1,092
2.	Content Moderation Remedies Eric Goldman Santa Clara University - School of Law	919
3.	Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey Symeon Symeonides Willamette University - College of Law	500
4.	Frustration, the MAC Clause, and COVID-19 Andrew A. Schwartz University of Colorado Law School	228
5.	Novel Issues in Canadian Labour Arbitration Related to COVID-19 Richard A. Bales Ohio Northern University - Pettit College of Law	128
6.	One, Two, Sort the Shoe; Three, Four, Win Some More: The Rhyme and Reason of Phil Ivey’s Advantage Play at the Borgata Nanci Carr California State University, Northridge - Department of Business Law	114
7.	Amazon as a Seller of Marketplace Goods Under Article 2 Tanya J. Monestier Roger Williams University School of Law	114
8.	Current Contractual Issues: Frustration in the Age of COVID-19 Marcus Roberts University of Auckland - Faculty of Law	97
9.	Contractual Stakeholderism Kish Parella Washington and Lee University - School of Law	82
10.	COVID-19 & Commercial Leases: Rethinking Frustration and Contractual Discharge in the Canadian Common Law Meg Heesaker McGill University, Faculty of Law	81

New Scholarship from Acclaimed Novelist Nancy Kim: License v. Sales

Nancy Kim, whose new novel (left) is now a top seller in multiple categories (see below) and is available on Kindle, has also published some new scholarship, Revisiting the License v. Sale Conundrum, in the Loyola L.A. Law Review.  

Contract terms can determine whether a transaction is a sale or a license.  As a result, consumers, who likely will not be reading their contracts carefully, may think that they have purchased a good when then are in fact, mere licensees.  The article focuses on two factors: "whether the terms affect the 'sold' portion or the 'licensed' portion" and when the transaction is agreed upon.  If parties are going to restrict the rights of the purchaser/licensee, any restrictions must be communicated before the transaction occurs (109).

The article is a useful corollary to Nancy's body of work on the requirements of contractual consent.  Citing "efficiency," courts have found ways to impose contractual terms on consumers who have not given meaningful consent to those terms, usually because they never had a meaningful opportunity to do so.  In the case of licenses, courts have substituted their normative view that certain transactions should be treated as licenses for a factual analysis of whether or not the transactions in question actually are licenses (110).  Reversing Hans Kelsen's famous dictum, Nancy stresses that one cannot reason from an ought to an is.

A review of Ninth Circuit case law reveals that contractual language identifying a transaction as a license "is helpful but not determinative."  Everything depends on timing and the nature of the restrictive provisions (123).  Nancy explains how rolling contracts developed as a means of protecting a seller's self-replicating innovations.  The need for such protections is nicely illustrated in the Supreme Court case, Bowman v. Monsanto, in which Monsanto sought to prevent a grower from replanting genetically modified seeds 124-26).  Judge Easterbrook's notorious opinion in ProCD v. Zeidenberg then paved the way for opportunism by seller, who could use rolling contracts to impose terms on unwary consumers (126-27).  

Nancy helpfully summarizes the consequences of the seemingly impenetrable case law as follows: 

First, an authorized sale—and only an authorized sale—triggers the copyright first sale doctrine and patent exhaustion. Second, a contractual breach differs from infringement. Infringement occurs when the licensee exceeds the scope of the license but not where the licensee breaches another provision. Finally, a contract may give rise to both a claim for breach and a claim for infringement; however, the claims cannot be for violating the same provision (140).

Nancy then provides a method for determining whether a transaction is a sale or a license.  Parties may shape the transaction using contracts, but their power to do so differs depending on whether the transaction involves a patent or a copyright (141).  The analysis is too complicated for me to attempt to summarize here.  Fortunately, Nancy provides a nifty flow chart that maps out the analysis (153-54). 

In her conclusion, Nancy again notes the sellers' legitimate interest in protecting themselves against opportunistic buyers/licensees who may exploit intellectual property baked into  goods.  Licensing transactions are one way for sellers to do so.  However, Nancy raises concerns that businesses might "exploit the licensing model to impose contractual terms and defeat the reasonable expectations" of those who use their products (155).  Here, as in much of her work, Nancy stresses the need for transparency, including a requirement that consumers specifically assent to terms that clarify restrictions on the uses to which they can put the products that they get through a transaction that they might otherwise think of as a sale but may be a license.

As Nancy makes clear in her introduction, the difference between licenses and sales are a big deal.  Consumers' interests in the goods for which they have licenses are significantly different from and inferior to the rights they have in goods that they purchase.  The differences will have an impact on everything from alienability to privacy, and those differences will only become more important as we slide imperceptibly into a world we share not only with ordinary consumer goods and but also with the Internet of things, the pod-people of consumer goods.

Guest Post from David Noll and Zachary Clopton on Executive Action and Arbitration

The Executive’s Role in Addressing Forced Arbitration
David L. Noll & Zachary D. Clopton

Zachary Clopton

One of the most important recent developments in U.S. “contracting” is the explosion of forced arbitration provisions. Now a standard feature of adhesive consumer and employment contracts, these provisions replace features of the public court system that the drafters disfavor with ones that the drafters prefer. A forced arbitration provision might bar class actions or class arbitrations in favor of individual dispute resolution, limit the scope of discovery in favor of “expedited” proceedings, and replace guarantees of public access to proceedings and evidence with a mandate for confidentiality.

The “arbitration epidemic“ raises a host of normative concerns. Most worrying to us are arbitration’s effects on regulatory regimes enforced through private civil litigation. Across federal and state regulation, litigants and their attorneys serve as “private attorneys general” who enforce regulatory policy while pursuing remedies for the violation of individual rights. As the #MeToo movement highlighted, arbitration provisions are often part of a web of contractual terms that disable or disfigure private regulatory enforcement. This is at odds with lawmakers’ efforts to encourage private enforcement and the decentralized, market-based structure of U.S. regulatory enforcement.

David Noll

The arbitration epidemic was made possible by a series of badly reasoned Supreme Court decisions that reinterpreted the Federal Arbitration Act (FAA) to maximize contract drafters’ power over dispute resolution procedure. In a reflection of this history, arbitration scholarship has traditionally been court-focused.

The federal executive, however, plays an important if underappreciated role in the legal and policy response to arbitration.  In a recent essay for the University of Illinois Law Review’s symposium on the Biden administration’s first 100 days, we explore how the executive branch can begin to address harmful uses of forced arbitration.

As our piece shows, the court-centric image of U.S. arbitration law overlooks a number of levers through which executive action can tame forced arbitration. The executive branch administers scores of programs that are impacted by arbitration—among them the major federal antitrust, anti-discrimination, consumer protection, and securities laws. The federal government is the single largest consumer in the world and among the largest employers in the U.S. The President plays a key role in shaping Congress’s agenda. Executive agencies and departments engage in administrative, civil, and criminal enforcement, both competing and collaborating with private attorneys. And the executive is a key player in negotiating the complex relationships among the federal government and the states.

As we explain in our essay, these levers allow the executive to take meaningful steps to address forced arbitration. Executive-branch actors can define the requirements for participating in federal programs to include limits on arbitration. They can collect information about the relationship between arbitration and private regulatory enforcement. They can shape public enforcement priorities in light of arbitration’s effects. They can work with Congress or participate in litigation as amici curiae to reform arbitration law. And they can support state efforts to regulate or respond to forced arbitration.

To be sure, the executive alone cannot address all the effects of forced arbitration. The legal status of forced arbitration “agreements,” the extent of contract drafters’ power over dispute resolution procedure, and the FAA’s relationship to state law raise questions of statutory interpretation that the federal courts have the power to decide. With a conservative majority on the Supreme Court seemingly locked in place for a generation, the Court is likely to continue supporting “haves” over “have nots” in its interpretation of the FAA.

But if executive action is not a panacea, neither is it insignificant. For three and a half decades, the Supreme Court has gradually claimed more and more authority over U.S. arbitration law, building what Justice Sandra Day O’Connor accurately described as “an edifice of its own creation.” In our system of separated powers and parties, it is fanciful to think that the Court will spontaneously correct the errors in its arbitration jurisprudence on its own. Reform must come from the outside. And the White House is a good place to start.

Introducing our Guest Bloggers: David Noll and Zachary Clopton

Later today, we will post a guest contribution from David Noll and Zachary Clopton.  

Zachary D. Clopton joined Northwestern Pritzker School of Law as a Professor of Law in 2019. His research and teaching interests include civil procedure, complex litigation, international litigation, and national security law.

Professor Clopton clerked for the Honorable Diane P. Wood of the United States Court of Appeals for the Seventh Circuit. He served as an Assistant United States Attorney in Chicago and he worked in the national security group at Wilmer Hale in Washington, D.C. Prior to joining Northwestern, Clopton was as an Associate Professor of Law at Cornell Law School. He also was a Public Law Fellow at the University of Chicago Law School.  Professor Clopton earned a BA from Yale University, an MPhil in International Relations from Cambridge University, where he was a Gates Foundation Scholar, and a JD from Harvard Law School.

His  recent scholarship has appeared or is forthcoming in the Stanford Law Review, NYU Law Review, University of Chicago Law Review, Michigan Law Review, California Law Review, and Cornell Law Review, among others. His public writing has appeared in Slate, Politico, The Hill, and others.

Before joining Rutgers, David Noll was an Associate in Law at Columbia Law School. He clerked for Judges Pierre N. Leval and Raymond J. Lohier, Jr. on the U.S. Court of Appeals for the Second Circuit, and Judge Richard J. Holwell on the U.S. District Court for the Southern District of New York. In 2019, Professor Noll received the law school's Greg Lastowka award for scholarly excellence. 

Professor Noll's recent scholarship has appeared or is forthcoming in the Michigan Law Review, Minnesota Law Review, New York University Law Review, and California Law Review, and his popular writing has appeared in venues such as Slate, Politico, and the New York Law Journal. He also co-authors a leading casebook on the federal administrative process, Legislation and the Regulatory State. 

We are grateful to Professors Clopton and Noll for letting us share their work with our readers, and we look forward to your comments on their post, which will appear later today.

 

Weekend Frivolity (sort of): Valparaiso University Law Review's Final Issue

Over at the Mother Ship, the Blog Emperor has posted a link to the final issue of my former Law School's Law Review.  

The volume includes a number of tributes to the law school from its departing, or recently-retired faculty, as well as some of the greatest hits -- contributions to the Law Review that turned out to be especially citable or were memorable for other reasons, such as the stature of their authors.  Contributors include Justice Sandra Day O'Connor, Justice Ruth Baader Ginsburg, Indiana Supreme Court Justice Robert Rucker, Roscoe Pound, and Erwin Chemerinsky.

The final volume is a great tribute to the institution and to the final group of students who got it over the threshold and into the light of the world.

John Eastman and University of Colorado Part Ways Less Amicably

Back in January, we posted about reports that John Eastman had resigned his faculty position at Chapman University and both parties agreed not to pursue legal remedies.  Now, as reported in Colorado Politics, it appears that Professor Eastman's departure from the University of Colorado Boulder (the University), where Eastman was a visiting professor, is a bit rockier (get it?).  

Professor Eastman had been hired as a visiting scholar at the Bruce D. Benson Center for the Study of Western Civilization.  He was slated to teach two courses per semester in 2020-21.  After he  gave a speech at a pro-Trump rally in Washington, D.C., that immediately preceded the assault on the Capitol Building on January 6, 2021, the University canceled his classes for the Spring semester, citing low enrollments.  

On April 29th, the University explained its actions with respect to Professor Eastman as follows:

The campus's decisions regarding Professor Eastman were made in accordance with its university policies concerning freedom of expression and academic freedom. Consistent with First Amendment principles and the university’s policies, Professor Eastman is able to speak on any subject he wishes and pursue his scholarship. The university has taken no action that would deter a reasonable person from engaging in free speech, and Professor Eastman continues to express his views in writing, John Eastman’s Statement on His Retirement from Chapman University's Fowler School of Law - The American Mind, on television, Now-Retired Law Professor John Eastman Says His Words at Trump’s ‘Save America’ Rally Did Not Incite U.S. Capitol Siege (msn.com), and at in-person events, What Really Happened? An Insider’s Perspective on Representing the President and Claims of Election Fraud.  The university, however, is not constitutionally obligated to have him serve in a representational capacity when he exercises his right to free speech.  Professor Eastman was not suspended.  The College of Arts & Sciences canceled his spring courses for low enrollment in accordance with its policies. Provost Moore appropriately relieved him from performing outreach functions on behalf of the Benson Center, because his continued performance of those duties would likely cause disruption and harm to the center.

The University continued to pay Eastman his $185,000 salary.  He contends that the reasons given for the cancellation of his classes were pretextual, as other classes offered through the Benson Center also have very low enrollments. 

Professor Eastman seeks $1.85 million in damages, representing his losses due to reputational harms done to him by the University.  He claims that the University's actions will prevent him from earning a salary through teaching for the next ten years.  It is hard to square that allegation with this statement that Professor Eastman published in The American Mind on January 14, 2021:

I am currently on leave from Chapman while serving as the Visiting Professor of Conservative Thought and Policy at the Benson Center for the Study of Western Civilization at the University of Colorado Boulder, so my mid-year retirement will not have any impact on my Chapman students. Once that visitorship is concluded, I plan to devote my full-time efforts to the Claremont Institute and its Center for Constitutional Jurisprudence, which I direct.

SDNY Dismisses COVID-Based Breach of Contract Claim v. NYU

We have reported previously (e.g., here, here, and here) on claims by students alleging breach of contract and other claims based on colleges' and universities' representations that students would have a certain educational experience, including in-person teaching and extra-curricular activities.  Here is another.  In Romankow v. New York University, a father and his daughter brought claims against New York University (NYU) alleging that NYU had breached its contract, was unjustly enriched and committed conversion when it urged students to return to the United States and moved to online education after March 16, 2020 in response to the COVID pandemic  They purported to do so on behalf of a class of similarly-situated students.  The Romankows alleged that NYU refused to give any tuition refunds or a pro-rated refund of fees.

The District Court for the Southern District of New York found that the fact that the father paid his daughter's tuition and fees did not give him standing to sue.  He was not injured by any of NYU's decisions, as he was not the student affected by those decisions.

As to the daughter's claims, the court first noted courts' reluctance to adjudicated implied contractual claims between students and universities.  In this case, NYU protected itself thought a disclaimer published in its course bulletin.  The disclaimer provides:

[C]ourse offerings, schedules, activities ... of the school and its departments and programs set forth in this bulletin are subject to change without notice at any time at the sole discretion of the administration . . .  [and s]uch changes may be of any nature, including, but not limited to, the elimination of the school, programs, classes, or activities; the relocation of or modification of the content of any of the foregoing; and the cancellation of scheduled classes or other academic activities.

As in other, similar cases, the court seemed more sympathetic to claims that a class could be entitled to a refund of fees.  On that matter, the complaint lacked detail, but the court granted plaintiffs leave to amend their complaint "if such amendment would not be futile." 

H/T @NY_Contracts

Rudy Giuliani Offers Contracts Defense to Allegations Against Him

I learned today that Rudy Giuliani (pictured) is claiming that he could not have been a foreign agent because his contracts with foreign entities specifically provided that he was not a foreign agent.  Here's the story from Politico:

“I never, ever represented a foreign national,” Giuliani, a former federal prosecutor and New York City mayor, told Fox News host Tucker Carlson. “In fact, I have in my contracts, a refusal to do it because from the time I got out of being mayor, I did not want to lobby.”

He said his contracts contain a clause that indicates he will not participate in lobbying or foreign representation, something that he said would be “too compromising.”

Well there you have it.  After all, everybody knows that if, for example, your contract for money laundering provides that you are not engaged in money laundering, it's case closed.