ContractsProf Blog

What's the Sound of a Contract Falling in an Alaskan Forest?

The Washington Post has a good story to close out the year.  It's the story of a simple contract  for the harvesting of one tree and the national regulatory and global policy implications that follow.  The tree is a 500-year-old, 180-foot tall Sitka spruce.  The tree, if felled, would sell for $17,500.  However, the process of felling the tree would release eight metric tons of carbon into the atmosphere.  Enter the regulatory and policy question: is the tree worth more dead or alive?  In answering that question, what consideration ought to be given to the role of the trees as part of the culture of the Haida and Tlingit peoples who inhabited the region long before it became U.S. territory?

There have been political differences over the treatment of the forests for decades, with Alaska's Republican leaders and the timber industry on one side and environmentalists, Alaska Natives, and the Clinton and Obama administrations on the other.  About half of Alaska's old-growth forests have been harvested since the 1950s.  During that time, the amount of carbon dioxide in the atmosphere has risen from 315 parts per million to 412.5 parts per million.  When the Sitka spruce first sprouted in the Alaskan soil in the sixteenth century, the amount of carbon dioxide in the atmosphere stood at 282 parts per million.

The Trump administration, supported by Alaska's Senators, promoted a return to old-growth timber harvesting that would have doomed the 500-year-old Sitka spruce that is at the center of the WaPo story.  The Biden administration has since intervened, and the Sitka spruce has been granted a stay of execution.  Biden's Agriculture Secretary, Tom Vilsack, announced that there will be no more old growth harvesting in the Tongass National Forest except by Alaska Natives and small local operators.  

And so a contract fell in the woods.  Did it make a sound?

The New York Times Has Discovered Oklahoma!

First, there was this front-page story about Enid, Oklahoma, which experienced the phenomenon of a red-shirt-wearing crowd that came to dominate the city's politics, starting with their joint opposition to mask mandates.  Today, the New York Times was shocked, SHOCKED to learn that people are growing, buying, selling, and consuming marijuana in Oklahoma.  

As it turns out, my fair state is basically one very large dispensary these days.  This fact is obvious from the moment you arrive in the state.  Dispensaries are on every corner, and law students are well-advised to learn marijuana law, because there are a lot of businesses sprouting that need help navigating the layers of local, state, and federal laws that touch on the pot business.  Some of the ripple effects of the development of the marijuana industry are on display in Episode 3 of the outstanding Oklahoma series Reservation Dogs.

Medical marijuana has only been legal in Oklahoma for three years, but already the market is super saturated.  As the New York Times reports, that over-saturation may not be a problem for growers, if they are willing to sell their weed in other states for a far higher profit margin.  Staid Oklahoma does not seem like fertile territory for this industry, but the state is already addicted to the tax revenues from the pot trade, and so a legalization of recreational use is far more likely than any rollback of the medical marijuana industry.  Moreover, the state's conservatism is shot-through with libertarianism these days, and libertarians don't have a problem with pot-smoking.  When you combine light regulation with low barriers to entry and a weak state economy that can use a new crash crop, it turns out it only takes three years before 10% of the population has prescriptions for medical marijuana.  

Tuesday Top Ten - Contracts & Commercial Law Downloads for December 28, 2021

Welcome to our last, but certainly not least, Tuesday Top Ten, as we resolve close out on a high note for our objectively favorite areas of scholarly inquiry.

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 29 Oct 2021 - 28 Dec 2021

Rank	Paper	Downloads
1.	Shocking Business Bankruptcy Law Melissa B. Jacoby University of North Carolina School of Law	445
2.	The Internal Point of View in Private Law Jeffrey A. Pojanowski and Paul B. Miller Notre Dame Law School and Notre Dame Law School	154
3.	Philosophy of Contract Law Daniel Markovits and Emad H. Atiq Yale Law School and Cornell University - Law School	147
4.	The Mystery of the Missing Choice-of-Law Clause John F. Coyle University of North Carolina School of Law	132
5.	Autonomy and Contracts Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	100
6.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	100
7.	The Promise and Perils of Regulating Ipso Facto Clauses Janis P. Sarra, Jennifer Payne and Stephan Madaus University of British Columbia (UBC), Faculty of Law, University of Oxford - Faculty of Law and Martin-Luther-University Halle-Wittenberg	93
8.	Strict Products Liability 2.0: The Triumph of Judicial Reasoning over Mainstream Tort Theory Mark Geistfeld New York University School of Law	92
9.	Legal Considerations Around Smart Contracts: Contracts Between Computer Programs Simon Gleeson Clifford Chance	79
10.	The Law of Haunted Houses: A Comment on Stigmatized Properties following Wang v Shao Reagan Seidler Law Society of Upper Canada - Smart & Biggar	7

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 29 Oct 2021 - 28 Dec 2021

Rank	Paper	Downloads
1.	Autonomy and Contracts Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	100
2.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	100
3.	The Promise and Perils of Regulating Ipso Facto Clauses Janis P. Sarra, Jennifer Payne and Stephan Madaus University of British Columbia (UBC), Faculty of Law, University of Oxford - Faculty of Law and Martin-Luther-University Halle-Wittenberg	93
4.	The Law of Haunted Houses: A Comment on Stigmatized Properties following Wang v Shao Reagan Seidler Law Society of Upper Canada - Smart & Biggar	77
5.	The Next Best Thing To a Promise Dori Kimel University of Oxford - Faculty of Law	68
6.	'New Private Law Theory' as a Mosaic: What Can Hold (Most of) It Together? Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	41
7.	Is Insisting on Specific Performance under Smart Contracts Desirable? Inflexibilities of Smart Contracts and Potential Solutions Eyup Kun KU Leuven - Centre for IT & IP Law (CiTiP)	40
8.	Unpacking Content Moderation: The Rise of Social Media Platforms as Online Civil Courts Catalina Goanta and Pietro Ortolani Maastricht European Private Law Institute and Radboud University	35
9.	Between Chaos and Cosmos: Tony Weir in the Cambridge Law Journal Nicholas McBride University of Cambridge - Faculty of Law	30

 

Unilateral Contracts in the News: Found Dog Edition

My students think I hate unilateral contracts.  It's not true.  I hate the statute of frauds and the parol evidence rule.  I'm fine with unilateral contracts.  They are interesting. They are also uncommon.  That is to say, they make up a tiny percentage of the universe of contracts.  That's why they show up in the news.  

As reported in the New York Times, Daniel Sturridge, an English football (soccer) star, made a video after his dog, Lucci, a Pomeranian, disappeared from his Los Angeles home.  In the video, Mr. Sturridge offered a reward, "20 Gs, 30 Gs, whatever" to anybody who helped him to recover the dog.  Soon thereafter, Foster Washington, found the dog.  

Mr. Sturridge claims that he already paid Mr. Washington a reward.  On Tuesday, a judge found otherwise.  Mr. Sturridge now plays in Australia.  When he was signed as a striker with Liverpool in 2013, the contract was valued at $20 million.  Lucci is valued at $5300.  Mr. Washington has three children and makes $14/hour working as a security guard.  His utterance may have been too vague to be considered a clear offer.  Is it a promise to pay 20 G? 30? Whatever?  Is it an invitation to bargain?  Don't care.  You are rich.  A poor man helped you out, thinking you would honor your pledge to provide a reward.

Pay the man.

Wood v. Boynton Rides Again!

2021 began with a Chinese bowl bought at a garage sale for $35 and sold at auction for $700,000.  It ends with the possible discovery of a lost drawing by Albrecht Dürer (left, at age 14) picked up at an estate sale for $30.  As reported in The New York Times, if the drawing turns out to be the real thing, it might be worth tens of millions of dollars.  

There's a contract involved here in addition to the estate sale, but the details are not public.  The purchaser was friends with a rare book dealer.  He was acquainted with Clifford Schorer, an entrepreneur and art dealer.  Mr. Schorer, when told of the existence of a Dürer drawing, was skeptical, as such drawings were exceedingly rare and none were believed to be unaccounted for.

Intrigued, Mr. Schorer visited the purchaser and was persuaded of the drawing's authenticity.  A panel of experts at the British Museum recently concurred.  Mr. Schorer paid $100,000 for a share of the sale price.  While the details of his agreement with the purchaser are private, according to the Times, the purchaser gets to keep the $100,000, even if the drawing turns out to be a forgery.  The current state of our knowledge suggests that even if it is not a Dürer, it is a very valuable art work.

The work is printed on paper that bears the telltale watermark of Dürer's patron Jacob Hugger.  Other details have persuaded most experts that the work is that of Dürer.  At least one dissenter thinks it is the work of one of Dürer's apprentices, Hans Baldung, which, if true, would reduce the work's value by perhaps 75%.  Nobody points with pride to a framed drawing and says, "That's a Baldung" unless they are prepared to add, "He was Dürer's apprentice, and some mistake his work for that of Dürer." It has been almost 100 years since a new Dürer has turned up.  This work, it turns out, was not unknown.  It has been tracked through multiple transactions before it arrived at a Massachusetts estate sale.  The family that owned it had become convinced that it was inauthentic.  Apparently, the family eventually lost all memory that the work might have any value at all, and they are now not responding to press inquiries.  What is there to say?

I must say, vulgarian that I am, my response to this story echoes my response to other valuations that exceed my grasp.  It's a nice drawing.  If you value nice drawings, you might want to buy it and put it in your home.  But if you value nice drawings, the value of this drawing should not hinge (much) on who made it.  This particular drawing might have extra importance because it tells us something (but not much that we don't already know) about  the development of a great artist.  That fact does little to enhance the aesthetic experience one has when regarding it.  Because it has this extra value it should be preserved and made available for study by the small clerisy of experts who care deeply about such things.  It should be on display in some public institution and not sold to some person who likes having pretty things that will appreciate in value over time.  

This post is colored by the fact that I watched "Don't Look Up" over the weekend.  My current thinking is that we need to work on accepting the impermanence of things and allocate our resources accordingly.

Weekend Frivolity: It's A Wonderful Life Is a Reverse Chanukah Miracle

Thanks to Berkeley Law Prof Orin Kerr's Twitter feed, I came across this BBC story about how It's a Wonderful Life slipped through a copyright loophole and so became a holiday classic.  It is, hands down, my favorite Christmas movie.  I watched it over and over for years, and now I know why. The BBC story explains that the movie's success is a Chanukah miracle in reverse.  It's limited availability for distribution and broadcast was supposed to last 56 years.  But due to an oversight, its copyright lapsed after 28 years, and it entered the public domain in 1974.  

After that, the movie was fair game.  Anyone could show it, and they did.  The movie did not even break even when it was initially released (c'mon 1946, what's the matter with you people?).  Widely available after 1974, for the first time, It's a Wonderful Life became a real hit.  By the way, The Princess Bride followed a similar trajectory, although it made some profits when originally released.  No man is a hero to his valet.  Perhaps the same is true of at least some great movies, whose appeal escapes the notice of their intended audiences.

Sometimes dismissed as "Capra-corn," a dig at the seemingly sentimental fare produced by director Frank Capra, It's a Wonderful Life can be loved for its darkness.  There is a scene when George Bailey, having been turned away by his unrecognizably grim, dour, hostile mother, races to the picket fence in front of his family home, transformed into a boarding house for the damned.  The camera catches George's face as he regards his suddenly unfamiliar surroundings.  He is panicked, lost, terrified, uncomprehending, and alone.  In short, It's a Wonderful Life unblinkingly captures the very opposite of the Christmas spirit.  The film depicts the bleak reality into which our happy lives can so easily devolve.  As a result, the film's sentimental ending is well-earned.  Both George and the viewers have gone through hell on earth.  Even Clarence was tossed out into the unforgiving snow. 

Don't worry, Potter, your time is still to come.

And yet, here's the scene that gets me every time.  Pure Capra corn comes at 3:35 of this clip.  Can't get enough!

Attaboy, Clarence.  And to all a good night.

George Harrison's Residuals and Apple

Now that I have finished grading exams, I can return to loftier thoughts.  I have watched the first episode of "Get Back," Peter Jackson's edition of the recordings that preceded the Beatles' last live concert.  Here's a teaser with a typically overlong introduction from the director: 

I'm enjoying it.  We paused our viewing not because we lost interest but because we want to watch with family who will be with us over this holidays.  Still, I write to raise a contractual question to which the Internet has been unable to provide an answer.

I don't think it's really possible to provide spoilers to a documentary about a fifty-year-old recording session, but of course George's abrupt (and fortunately fleeting) departure from the band is one of the more dramatic moments in the documentary.  After George leaves, the Beatles' road manager says something about paying George his residuals, but then someone (I'm not sure who, maybe John) says, “He shouldn’t be bothered with that. You know, that’s why we’ve got Apple, so we attend to it ourselves.” 

It's rather shocking how quickly the focus moves from making music and creating immortal songs on the fly to contractual concerns.  But also, what are they talking about?  George's residuals from what?  From everything the band had done up until the moment he pissed off?  From the planned live concert performance of a proposed fourteen new songs?  And did these musical geniuses also have the legal acumen to create a corporation that would seamlessly address all contingencies, including George walking out in the middle of a session?  Beatles lives and Beatles lore has been picked over with fetishistic obsessions.  Has anybody unpacked their corporate structure?

Looking for New Colleagues at the OCU School of Law

My law school is hiring!  I am not on the search committee, but I know people who are, and I'm even on speaking terms with some of them!  I have highlighted key words for people in the commercial law/business law field.  Feel free to contract me directly if you are interested in applying.  This is a great place to work, and I will be happy to tell you why.

JOB POSTING FOR DOCTRINAL FACULTY POSITION

OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW invites applications for one or more tenured or tenure-track faculty positions to begin with the 2022-23 academic year. We welcome applications from candidates with interests in any area of law, but we are particularly interested in candidates with a teaching interest in business organizations, energy law, environmental law, healthcare law, homeland security and national security, or secured transactions. We welcome candidates whose approaches in research will add to the scope and depth of our faculty scholarship.

Candidates should have an excellent academic background, demonstrated potential to be a productive scholar, a strong commitment to the practice of inclusion, and a strong commitment to becoming an engaged classroom teacher. Candidates must have a J.D. degree from an ABA- accredited law school and be licensed to practice law in one of the states or the District of Columbia.

Oklahoma City University School of Law is located in downtown Oklahoma City and is deeply engaged with the legal, business, and governmental communities. Oklahoma City has been named “American’s Most Livable Community” and is consistently ranked among the most affordable and prosperous cities, among the top cities for entrepreneurs and small businesses, and among the best-run large cities.

Oklahoma City University is an equal opportunity employer and affirms the values and goals of diversity. We strongly encourage applications from members of demographic groups underrepresented in the teaching and practice of law. For the university’s complete nondiscrimination policy, please see: https://www.okcu.edu/admin/hr/policies/general/nondiscrimination-policy-equity-resolution- process/nondiscrimination-policy/.

To apply, please submit a CV and job-talk paper to https://jobs.silkroad.com/OKCU/FacultyCareers?page=2. A cover letter that describes the candidate’s commitment to the practice of inclusion and includes examples would be helpful. If a candidate is selected for an interview, teaching evaluations will be requested, if available.

Tuesday Top Ten - Contracts & Commercial Law Downloads for December 21, 2021

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 22 Oct 2021 - 21 Dec 2021

Rank	Paper	Downloads
1.	Shocking Business Bankruptcy Law Melissa B. Jacoby University of North Carolina School of Law	437
2.	The Rise of Plain Language Laws Michael Blasie Pennsylvania State University, Dickinson Law	268
3.	Private Law Theory: The State of the Art Steve Hedley University College Cork	176
4.	The Internal Point of View in Private Law Jeffrey A. Pojanowski and Paul B. Miller Notre Dame Law School and Notre Dame Law School	149
5.	Philosophy of Contract Law Daniel Markovits and Emad H. Atiq Yale Law School and Cornell University - Law School	123
6.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	99
7.	Autonomy and Contracts Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	98
8.	The Mystery of the Missing Choice-of-Law Clause John F. Coyle University of North Carolina School of Law	95
9.	Strict Products Liability 2.0: The Triumph of Judicial Reasoning over Mainstream Tort Theory Mark Geistfeld New York University School of Law	92
10.	The Promise and Perils of Regulating Ipso Facto Clauses Janis P. Sarra, Jennifer Payne and Stephan Madaus University of British Columbia (UBC), Faculty of Law, University of Oxford - Faculty of Law and Martin-Luther-University Halle-Wittenberg	88

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 22 Oct 2021 - 21 Dec 2021

Rank	Paper	Downloads
1.	The Rise of Plain Language Laws Michael Blasie Pennsylvania State University, Dickinson Law	268
2.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	99
3.	Autonomy and Contracts Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	98
4.	The Promise and Perils of Regulating Ipso Facto Clauses Janis P. Sarra, Jennifer Payne and Stephan Madaus University of British Columbia (UBC), Faculty of Law, University of Oxford - Faculty of Law and Martin-Luther-University Halle-Wittenberg	88
5.	The Law of Haunted Houses: A Comment on Stigmatized Properties following Wang v Shao Reagan Seidler Law Society of Upper Canada - Smart & Biggar	75
6.	The Next Best Thing To a Promise Dori Kimel University of Oxford - Faculty of Law	65
7.	Is Insisting on Specific Performance under Smart Contracts Desirable? Inflexibilities of Smart Contracts and Potential Solutions Eyup Kun KU Leuven - Centre for IT & IP Law (CiTiP)	40
8.	'New Private Law Theory' as a Mosaic: What Can Hold (Most of) It Together? Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	39
9.	L’Utilité Du Droit Comparé (The Utility of Comparative Law) Vivian Grosswald Curran University of Pittsburgh - School of Law	31
10.	Unpacking Content Moderation: The Rise of Social Media Platforms as Online Civil Courts Catalina Goanta and Pietro Ortolani Maastricht European Private Law Institute and Radboud University	31

Non-Law Prof's Experiment Proves that Students Do Not Read Syllabi

According to this story on CNN, University of Tennessee-Chattanooga Professor Kenyon Wilson hid a hint in his syllabus that could have led students to a $50 note hidden in a locker.  Mind you, the hint was so cryptic, even an attentive student might have dismissed it as a botched cut at paste job:  According to CNN, the hint read: "Thus (free to the first who claims; locker one hundred forty-seven; combination fifteen, twenty-five, thirty-five), students may be ineligible to make up classes and ..."  I suspect that one could safely place something more explicit in the syllabus and achieve more clarity about what students do and do not read. 

One reason students don't read syllabi is that accrediting bodies and university administrations require that we lard our syllabi with general verbiage that I cut and paste with each new semester but that even I do not read.   Like most situations in which people do not read long documents, the decision not to read is wholly rational.  My 2005 contracts syllabus was a svelt five pages.  My 2021 version is a zaftig twelve.  What is gained in those extra seven pages?  Less than zero.  Because students know that they don't need to read most of my syllabus, they don't read the parts that matter with much care, and so I have to remind them of: my attendance policy, my office hours, what happens if they turn in assignments late, and the structure of the final exam.  

Professor Wilson could do a more granulated study.  Use clear language: "I have left a $50 bill in locker hundred forty-seven; combination fifteen, twenty-five, thirty-five.  The first student to read this and open the locker can keep the $50."  Make that language Student Learning Objective #4, and then you will know how much students care about SLOs.   Put it in the middle of the boilerplate about university policies or the boilerplate about law school policies or in the boilerplate about AALS/ABA requirements, and you will know how much students care about that.  And then we will have useful information about what information can and what cannot  be communicated effectively through a syllabus. 

Some information in the syllabus is unimportant to most students but can become suddenly very important to a student who needs, for example, to contact the university disabilities office, or to file an academic complaint.   But a one-line link is all that is needed for those students and it can be found just as easily on a law school or university web page that contains all of the information we now communicate ineffectively on our syllabi.

When You've Finished Grading Question 2 . . .

But need a break before proceeding to Question 3 . . . 

Enjoy.

From a Bobby Pin to a House in 28 Trades

This story from WaPo is supposed to make me feel good.  It doesn't. 

It tells the story of Demi Skipper, a 30-year old TikTok enthusiast who works at Cash App, a mobile payment service.  She was quarantined during the pandemic and watched aTed Talk about a guy who had traded up from a paperclip to a house in 14 trades.  She set out to replicate his accomplishment and managed to buy a house for $80,000 in 28 trades.  

Now, she claims that her plan is to renovate the house (the expenses will be covered by a sponsor) and trade it for a bobby pin.  Her goal: to be the first person to trade up from a bobby pin to a house TWICE.

It's a nice story. It should make me happy.  I always start my contracts course by telling students that contracts are mutually beneficial transactions.  As a result, they make the world a better place.  If you want to make the world a better place, I implore, maybe you can work for a human rights organization, but you can also be a transactional lawyer.  Bring people together and let the hedonistic calculus do the rest.

Why doesn't the story make me happy?  Admittedly, this says much more about me than it does about the story:

• It feeds into my crypto/NFT/SPAC/no-name deli in New Jersey-fueled anxiety that our global valuation system is a house of cards that could collapse at any time;
• That anxiety taps into a deeper anxiety that we have entered a Felix Krull fantasy world in which the schein/sein distinction has been so thoroughly blurred that people no longer can tell or no longer care whether we can distinguish truth from lies, science from hokum, data from anecdote;*
• I don't like the commercialization of celebrity for celebrity's sake;
• I don't like the aspiration of doing something for the sake of doing it and then monetizing it so that an unhealthy obsession becomes a lifestyle, an occupation, and an inspirational story designed to provoke both misguided emulation and self-lacerating envy;
• The stunt tells a hokey American message (even though a Canadian did it first) about how one can, through pluck, charm, and perseverance, accomplish the seemingly impossible, and that message creates false hope and a culture of aspiration that feeds into the false meritocracy that underlies so much of our economic disparity;
• Ms. Skipper's penultimate trade was for a solar-powered mini-trailer, which was pretty sweet, but which she advertised for trade by calling it a great location for off-the-grid bitcoin mining -- which is both misleading and a terrible, irresponsible idea, and as I result, I don't like her.

Sorry about the rant. I'm grading.  It makes me grumpy.

* Those who know me well know that I am an un-reconstructed post-structuralist, with Derridean, Foucaultian, and Bourdieuvian modes of thought coursing through my veins.  Do I contradict myself?  Not really, but that's a long story, so for now I'll just say I am large; I contain multitudes.

Tuesday Top Ten - Contracts & Commercial Law Downloads for December 14, 2021

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 15 Oct 2021 - 14 Dec 2021

Rank	Paper	Downloads
1.	Shocking Business Bankruptcy Law Melissa B. Jacoby University of North Carolina School of Law	427
2.	The Rise of Plain Language Laws Michael Blasie Pennsylvania State University, Dickinson Law	258
3.	Private Law Theory: The State of the Art Steve Hedley University College Cork	170
4.	Advertising Injustices: Marketing Race and Credit in America Jim Hawkins and Tiffany Penner University of Houston Law Center and University of Houston, Law Center	110
5.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	87
6.	Autonomy and Contracts Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	86
7.	An Overview of Record Deals and Record Labels in the Nigerian Music Industry Bamidele Jamaldeen Independent	74
8.	Legal Considerations Around Smart Contracts: Contracts Between Computer Programs Simon Gleeson Clifford Chance	73
9.	The Law of Haunted Houses: A Comment on Stigmatized Properties following Wang v Shao Reagan Seidler Law Society of Upper Canada - Smart & Biggar	69
10.	Strict Products Liability 2.0: The Triumph of Judicial Reasoning over Mainstream Tort Theory Mark Geistfeld New York University School of Law	68

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 15 Oct 2021 - 14 Dec 2021

Rank	Paper	Downloads
1.	The Rise of Plain Language Laws Michael Blasie Pennsylvania State University, Dickinson Law	258
2.	Unjust Enrichment: Principle or Cause of Action? Lionel Smith and Samuel Beswick McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law and Peter A. Allard School of Law, University of British Columbia	87
3.	Autonomy and Contracts Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	86
4.	The Law of Haunted Houses: A Comment on Stigmatized Properties following Wang v Shao Reagan Seidler Law Society of Upper Canada - Smart & Biggar	69
5.	The Next Best Thing To a Promise Dori Kimel University of Oxford - Faculty of Law	56
6.	Is Insisting on Specific Performance under Smart Contracts Desirable? Inflexibilities of Smart Contracts and Potential Solutions Eyup Kun KU Leuven - Centre for IT & IP Law (CiTiP)	37
7.	Between Chaos and Cosmos: Tony Weir in the Cambridge Law Journal Nicholas McBride University of Cambridge - Faculty of Law	26
8.	Unpacking Content Moderation: The Rise of Social Media Platforms as Online Civil Courts Catalina Goanta and Pietro Ortolani Maastricht European Private Law Institute and Radboud University	23
9.	'New Private Law Theory' as a Mosaic: What Can Hold (Most of) It Together? Hanoch Dagan Tel Aviv University - Buchmann Faculty of Law	21

 

Caturday

Phineas really did not like this caption.

Weekend Frivolity: Bitcoin, A Cautionary Tale

The New Yorker has a story about James Howells, an early bitcoin miner from Wales, who accidentally sent a hard drive containing his bitcoin folder to the local dump.  He had mined about 8000 bitcoins, and their current value is approximately $500 million.  His attempts to get his village to allow him to excavate the dump in search of missing hard drive have been unavailing, despite his backing by investors who know how to excavate and his offer to share 25% of the proceeds with the village.  

Somehow, I thought this story would amuse me more than it did.  It's actually quite sad. Mr. Howells' life is destroyed.  His wife and children are gone, and it seems his children no longer come to visit.  He hasn't worked in some time.  As. D.T. Max notes in The New Yorker, Mr. Howells has become like the protagonist of Edgar Allen Poe's "The Gold Bug," “infected with misanthropy, and subject to perverse moods of alternate enthusiasm and melancholy.”  It's hard to determine whether this condition is a product of the loss of his bitcoin or of the characteristics that led him to be interested in bitcoin in the first place.

I'm also having a hard time reconciling Mr. Howells' fate with this story from the podcast Reply All.  In the episode, a journalist has lost a trivial amount of bitcoin, but the hosts are able to enlist a bitcoin hunter to track down her holdings.  I'm not sure why Mr. Howells can't enlist a similar person to recover his bitcoin.  I guess the bitcoin hunter in the Reply All story had some crucial bit of information that is lacking here.  It may be that Mr. Howells never engaged in any transactions; he just mined.  But if he did engage in transactions, it seems like a hunter could recover his account.

If you don't want to listen to the Reply All story, which is fascinating, I will share with you my favorite part.  The journalist in question purchased 18 bitcoins so that she could buy drugs.  She didn't remember how much she had left.  It turned out that she had 0.0021 bitcoin left, which even today is not worth much.  Her comment (and I'm paraphrasing): my mom is always telling me to stop doing drugs, and I tell her, Mom, I'm fine, my life is very on-track.  Now, for the first time, I'm thinking my mom is right!

Anat Rosenberg and the History of Puffery

Anat Rosenberg (left) has published Legal Ridicule in the Age of Advertisement: Puffery, Quackery, and the Mass Market in the American Journal of Legal History.  Her article makes two unique contributions.  First, she demonstrates that the puffery doctrine embodies a legal mode of ridicule directed at the sales pitch.  Second, she explores the interrelations between the history of law and the history of advertising, at the juncture of which the doctrine of puffery lies.  The article cuts across doctrinal areas, as puffery is relevant to several, and it provides a history of the development of the concept, as well as of its legal significance, beginning in the early nineteenth century.  

One unique contribution of the piece is Professor Rosenberg's concept of "legal ridicule."  The doctrine of puffery aids advertisers by shielding them from liability, but this legal protection comes at the cost of not taking advertising seriously and of delegitimizing a form of commercial speech.  The doctrine offered legal protection, enabling the advertising industry to take wing, but the industry was protected precisely because it was not to be taken seriously. 

I. History of the Term

While the verb "to puff" has its origins in the 16th century, its debut as a term of legal significance came in 1776 when Lord Mansfield treated as a form of fraud the use of "puffers" in auctions to bid up sale prices.  While Mansfield treated puffing as effective and therefore actionable, after the 1820s, the law regarding puffery as ineffectual and therefore legally benign.  "My client was just puffing" became a legal defense in criminal law, contracts law, and intellectual property law.  This shift corresponded to broader cultural changes, away from auctions and towards mass marketing; away from face-to-face communications and towards anonymous print ads.  At the same time, puffery no longer involved concealment.  Puffers in auctions were engaged in fraud because they concealed their relationship to the seller.  Consumers are assumed to know that advertising puffery serves the seller, and so readers are effectively on notice that statements of quality are likely to be exaggerated.

The contours of the doctrine were unclear.  Courts attempted, without much success, to protect puffery when it involved mere opinions, as opposed to statements of fact.  Professor Rosenberg argues that the literature of puffery, which connects it with the doctrine of caveat emptor, tells only part of the story and overlooks the importance of legal ridicule.

II. Quackery and Puffery

The medical profession was distinguishing itself from butchery around the same time as the realm of advertising was developing.  Medicine had a complicated relationship to quackery.  Both quackery and medicine were interested in providing cures.  Medicine hoped to do so; quackery promised to do so, and so a wise physician hedged and dabbled in both. 

Enter Carlill v. Carbolic Smoke Ball Company, which we have previously covered here and here.  As is often the case with such old chestnuts, Carlill fits uneasily into the doctrine.  It does not illustrate puffery; the company's statement that it had put £1000 on deposit indicated serious intent to be bound.  The court could thus bind the company without bothering to consider its claims regarding the efficacy of its product.  As in other puffery cases, the court was indifferent to the truth of falsity of the advertising claims, but it took very seriously the company's unilateral offer.  

The delightful Scottish case, Bile Bean Manufacturing Co., Limited v. Davidson, is similar.  Bile Beans claimed that its product cured all sorts of ailments, especially biliousness.  They brought suit against Davidson, who was passing off his own concoctions as Bile Beans.  The courts sided with Davidson, not because Bile Beans did not cure any of the ailments the company claimed they could cure, but because the company's advertising scheme was based on fraudulent claims that the beans made use of a fictional Australian herb allegedly discovered by an equally fictional "eminent" Australian scientist.  As in Carlill, the inefficacy of the product never entered into the analysis.  Advertising puffery is fine; but a false origins story, that is a legally cognizable wrong. The court may well have believed that there's nothing like Bile Beans for biliousness, just as there's nothing like hay for sneezing and nothing like Ivermectin for COVID-19.  Yeah, yeah, but there's nothing like hay or Ivermectin.  The point is, regardless of its efficacy Bile Beans continued to sell into the 1980s.

But the two-sidedness of the puffing sword was on display in the case of Arthur Lewis Pointing, who advertised "invisible elevators," cork shoe inserts that he claimed would increase height by up to four inches.  They did no such thing, and they hurt.  His attorney persuaded the court that Pointing was engaged in mere puffery, no more harmful than various quack remedies that may have tasted awful but otherwise left consumers no worse off than they were before.  Pointing himself bristled that the criminal case against him was dismissed before he could defend the merits of his product.  

III.  Legal Ridicule

In White v. Mellin, Mellin had developed a health food for infants.  White marketed that product under his own label, but with the following notice, referencing his brand:

Notice: the public are recommended to try Dr. Vance’s prepared food for infants and invalids, it being far more nutritious and healthful than any other preparation yet offered.

Mellin sued, alleging slander of goods or injurious falsehood.  The court found for White for two reasons.  First, the notice was mere puffery, and even if the puffery somehow induced purchases, Mellin could show no material harm to himself or to his products.  Second, the court refused to get down into the weeds and adjudicate puffing claims regarding whose competing product was superior.  Because of the dynamic game of one-upmanship inherent in comparative advertising, such ads were categorically  unconvincing.  The outcome cemented the legal doctrine that relegated advertising to the realm of ridicule.

The outcome benefitted White, but it was not well received in the advertising community.  They did not consider their claims ridiculous, and they resented a court that accorded the same respect to facially misleading advertisement, such as White's, as it did to the claims of "scientific" formulas, such as Mellin's.  The law constructed an ideal consumer who would shake his head and chuckle ruefully when reading ads, dismissing their authors as companionable scamps.  

The Upshot

In her conclusion, Professor Rosenberg references a rich literature on advertising, ranging from the Frankfurt School's critique of the culture industry to Colin Campbell's work juxtaposing Weber's spirit of capitalism to the romantic ethic of modern consumerism, which combines quasi-religious irrationalism and ventures into fantasy and the imaginary.  The advertising world is threatening to the world of law, which still wants to take as its point of departure a world of rational actors.  The logic of puffery as a legal doctrine that credits consumers with the ability to see through the fantasy world that advertising offers, created a legal realm in which the advertising industry could escape legal accountability. The law determined to take the needs of industry seriously without taking their advertisements literally. 

Sid DeLong on Win-Win Situations in Space, on Earth, and at Law Schools

WIN-WIN
Sidney DeLong

When I was very much younger, in the pre-computer age, I read a science fiction story[1] that had been inspired by game theory, which was a hot topic at the time. as it focused on the strategies for atomic warfare. In the story, Earthlings were engaged in a space war with aliens. Our spaceships had deep-space dogfights with their spaceships. At critical points in every fight, our ships’ tactics were determined by spinning a sort of multisided dreidel and taking the action indicated by the number that came up as the result of the spin. The captain also spun a different dreidel when deciding on a counter-move to each of the alien’s actions. There was a probability-based idea behind this approach based on game theory. Our hope was the game theory ideal: a strategy that would win, on average, against any counter-strategy.

The system worked perfectly, or rather optimally. The Earthlings won most of the battles because, on average, they always inflicted more casualties on the aliens than they suffered in the encounters. The Earthlings were sure that it was only a matter of time before the aliens realized that continued fighting was hopeless and sued for peace. Indeed, it was odd that they had not already done so, since they seemed to be quite as intelligent as the Earthlings were and certainly knew that they were losing.

Then one day the Earthlings captured an alien ship intact instead of blowing it up. In many respects, the layout of the alien ship was surprisingly similar to that of an Earth ship. When they examined the strategy room, the Earthlings discovered that the aliens were also using a probability dreidel to dictate tactics. But the alien dreidel had different numbers that dictated different tactics.

When the Earthlings did the math, they found that the aliens’ dreidel was causing the aliens to lose almost every battle. For example, in response to the Earthlings’ tactics, the alien dreidel always dictated maneuvers that cost them more casualties than their Earthling enemies. The Earthlings congratulated themselves on their superior mastery of game theory and probability. This was why they were winning. But the discovery created a puzzle. The aliens did not seem stupid. How had they made such a fundamental error?

Upon looking still deeper, one of the analysts discovered the answer. Although each move dictated by the alien dreidel led to the loss of more alien lives than Earthling lives, it also resulted in the destruction of a greater number of Earth ships than the number that was lost by the aliens. It turned out that the aliens believed that they were winning every engagement based on spaceship casualties and the Earthlings believed that they were winning every engagement based on human/alien casualties.

By its own lights, each side was winning the war. And it would go on forever.

At the time I thought that this story was profound, and I still do. But I now realize that its charm would be lost on an economist. Differences in personal valuation such as those between the Earthlings and aliens are the engines that drive our economy. Differences in personal valuation are essential to all exchange transactions in which each side receives something that it values more than it values what it gives up.

Of course, in a war the objective is not so much the enhancement of one’s own utility as it is the destruction of the enemy’s utility. I cannot remember whether the story pre-dated the Vietnam War, but if it did, it was eerily prescient. America’s military believed that it was winning based on what it cared about (body counts) right up until the time when it discovered that it was losing based on what the North Vietnamese cared about (endurance). Our later wars have exhibited similar asymmetries.

The story may also have some relevance to the current economic competition between capitalist and non-capitalist countries. If the former are in it solely for short-term shareholder returns and the latter are in it for long-term growth and stability, conditions may lead each side to believe that it is winning. For a while. If precedent holds true, when one side finally triumphs, we may expect the loser to continue to argue that it was really the winner.

And on a more mundane note, we can see the parable’s relevance to any institution, such as a law school, in which institutional goals are disputed. Whether an institution is succeeding or failing is entirely a matter of preference, of what goals are imputed to the institution by the person making the judgment. Many institutions see themselves as succeeding even though their performance would be rated a failure by other institutions with different values and aspirations.

Indeed, it is quite possible that each of two law schools may see itself as succeeding and the other as failing, one because it is counting diversity and equity and the other because it is counting prestige and research. Just like the Earthlings and aliens.

[i] This is true. I’m not passing this off as my own. I would cite to the story but I was unable to find it on the internet. If the reader knows where I got it, I will happily amend this post and cite the original source.

Juliet Moringiello and Chris Odinet, on the Law of Tokens

For weeks, months even, I have been in a lather because an article about property law has been the most downloaded article on the SSRN top tens on commercial and contracts law.  Property law was probably my least favorite course of the first-year curriculum.  Also, non-fungible tokens (NFTs) make me feel like someone has poured champagne on my cranium, like Tony Soprano when he thinks about ducks. 

But Professors Moringiello (below left) and Odinet (below right) drew me in, first baiting the line by insisting on the significance of their article for contracts law as well as property law.  Intrigued, I downloaded.  And then they begin with a discussion of an NFT of Nyan Cat (see video below).  I'm hooked.

The authors begin with a helpful summary of what an NFT is:

The idea behind the tokenization of an asset (whether tangible or intangible) is that the owner of the asset creates a digital item (essentially, an entry in a blockchain ledger) that is to be identified with the asset itself. The creation of this digital entry is called minting . . . . After its minting, the token is sold, often through an auction facilitated by the same online platform that performed the minting. . .  The purchaser of the token then ostensibly also owns the underlying asset, or at least that’s the whole idea behind tokenization—that the owner of the token acquires authentic title to the reference asset.

Proponents of NFTs, the authors tell us, claim for this new technology a spectrum of attributes: they convey "ownership," constitute "intellectual property," and are the "future of digital property."  Tokenization will smash the state monopoly over currency and the protection of property rights.  At the same time, it will democratize finance.  All that is solid melts into cyberspace!

The authors pretty effectively deflate the hype surrounding NFTs.  They then offer some ideas for the regulation of NFTs in light of their actual effect on legal rights.  They proceed in three steps.

Step I:  Nothing to See Here

The authors point to myriad examples of tokenization -- that is, there are a variety of legal mechanisms that create things that establish legal rights in another thing.  Negotiable instruments do it, securities do it, even educated deeds do it.  Let's do it, let's fall in love with tokenization!  Sorry, got carried away.  These tokens were originally tangible items, but now in many areas, such as securities, tokens became digital and intangible long before cryptocurrency and NFTs.

With this foundation, the authors then proceed to discuss a typical token minting operation and a dataset of terms of service on minting platforms.  They do this to demonstrate the disconnect between Internet representations of what NFTs are and what the law of tokens actually provides.  They immediately notice ambiguities in the minting operations.  The minting websites do not explain what the transaction accomplishes, and a blog post on one website, which purports to explain the uses of NFTs in the real world, seems to be mostly inaccurate and misleading.  It suggests that, by buying an NFT, one gains some sort of property rights in the underlying asset -- that is, some physical object in the world or a digital version thereof.  It certainly is not the case when I buy an NFT of a digital image of the Mona Lisa I thereby acquire an interest in the Mona Lisa itself.  And the sites' terms of service all provide that the owner of an NFT has no property interest, including intellectual property rights, other than the right of display, in the underlying asset.

The authors conclude this section on a bleak note:

If the great innovation of NFTs is that they somehow clarify rights in underlying intangible assets, the terms of service illustrate that this innovative goal has not been achieved. It is noteworthy, however, that despite the statements made to the general public about the connection between NFTs and underlying assets, the various terms of service either say nothing on the matter, directly disclaim any such tethering, or at least confuse the reader as to whether a connection exists.

This raises a question that inspired Nancy Kim and me to write about the power of the Internet Giants years ago.  Why do people distrust the government but trust private sites set up based on the profit motive?  These sites have no interest in protecting your property rights in your NFTs.  They can shut down at any point, and when they do, poof!  They can also kick you off their sites and seize your digital assets.  Again, poof!

II. You Had One Job!

Having shown that tokenization is nothing new, the authors then argue that NFTs don't even perform very well as tokens.  They do not tether -- that is, they do not embody property rights in the reference object.  Other tokens do tether; that's their main function.  To the extent that NFTs do not, perhaps they aren't really tokens at all.  NFs perhaps?

But perhaps NFTs scratch a separate itch.  Original works of art are unique and thus have unique value.  Copies are imperfect.  Enter the Internet.  Digital art and digital copies of that art are indistinguishable.  Digital art thus has a problem the authors call (and I assume they are not responsible for this term) "non-rivalrousness."  Enter NFTs. Maybe if you have an NFT evidencing your possession of the original digital art, you have a way around the non-rivalrous nature of digital art.  Except you don't.  The creator of the digital art still owns the intellectual property in the art.  Nor do they address the problem of non-scarcity.  Digital art remains infinitely replicable.  The authors predict that the NFT craze will dissipate once these characteristics (or non-characteristics) of NFTs become clear.  In the meantime, artists, hurry up and create NFTs before everyone realizes that they are worthless.

The authors discuss NFTs from the perspective of two prominent theories underlying property law.  The exclusionary rights theory posits that the most important aspect of property law is that it gives the holder of such rights some power to exclude others from enjoyment of the property.  NFTs fail under this theory because they convey something more like a non-exclusive license, and even that they do only contingently, because the website can at any point exclude the NFT purchaser from access to their account and thus from their "property."  Nor would third parties know what they were getting in an NFT transaction, and so NFTs actually raise the information costs in such transactions, the very opposite of what clear property law rules are supposed to achieve.  

The alternative theoretical model for property rights, the progressive property theory views  property law as embracing norms of social obligation and responsibility aimed at promoting human flourishing.  NFTs do not achieve that goal for two reasons.  First, they rely on cryptocurrencies, the mining of which is harmful to the environment.  Second, the cryptocurrency crowd currently is, and is likely to remain, an exclusive club, as the platforms are structured to favor people who can make large purchases.  

III. What Is To Be Done?

Finally, the authors offer guidance to courts and policy makers.  Looking at two typical NFT transactions, the authors argue that NFT holders would always lose in conflicts over legal interests in the reference object of the NFT.  A property interest in a thing always beats a property interest in an NFT of that thing.  It follows that, in a secured transaction governed by the UCC's Article 9, a secured party would be unlikely to be satisfied by a perfected security interest in an NFT.  It would thereby gain no security interest in the underlying asset, and the security interest in the NFT itself would be difficult to enforce.  The authors go into the weeds of Article 9 to explain why that is so.  In the interests of space, I will not follow there.  

Finally, the authors advocate for the regulations of NFTs.  The purveyors of these investment vehicles are engaged in misrepresentations of their legal efficacy and thus of their value.  The Federal Trade Commission and state attorneys general are well-positioned to monitor and discourage deceptive trade practices, with sanctions if necessary.  Action by public officials is necessary because mandatory arbitration provisions and class-action waivers, standard in the NFT platforms terms of service, render individual suits incapable of effecting the desired disciplinary function.

 I learned a ton reading this article, especially as I think about property law and UCC Article 9 as little as I can get away with.  That said, I have to admit that the article more than held my interest. It's fascinating and approachable, even for the property law- and technology-phobic.  I can see why the article is top of the charts, and as advertised, their work also considers the law of contracts, especially in connection with the NFT platforms' terms of service.

Netflix Tries to Hire Fox Employees For (a lot) More Money But California Court Says No.

California is generally known as a state that takes a dim view of restrictive employment contracts so I was surprised to learn that a three-judge panel of the California Second District Court of Appeals recently upheld a trial court order enjoining Netflix from soliciting Fox employees.

There were two particularly striking facts about the case.  First, the employees that Netflix approached  had fixed term written employment agreements.  The term of these agreements was initially two years, but gave Fox a “unilateral option” to extend the contracts for additional two-year terms.  They also allowed Fox to pursue equitable relief, including an injunction, to prevent breach.

The second notable fact was that the Fox employees were paid substantially below market salaries -- approximately in the 25^th percentile for their positions.  That’s an “F” grade for salary, Fox! No wonder they wanted to leave.

It sounded as though Fox used some rather un-employee friendly practices, including the inclusion of a “no-shop” clause that prohibited employees from seeking new employment more than 90 days before their Fox employment agreement expired.  Fox also told its employees that they could “work for Fox (and no one else) through the term of their agreements” and sent employees and prospective employers cease and desist letters.  Fox, by contrast, had a contract payout policy where it could terminate employees prior to the end of their fixed term employment agreements.  The company also exercised their bargaining power  and “frequently offered employees new fixed-term agreements while they had significant time remaining on their existing contracts” and “made raises and promotions contingent on signing a fixed-term agreement.”  According to Netflix, “at least 127 Fox employees had entered into sequential fixed-term contracts that, together, provided an employment term that was longer than seven years.” 

Fox sued Netflix alleging unfair competition and tortious interference with contracts and sought compensatory and punitive damages and a permanent injunction.  Netflix responded that Fox’s fixed term agreements were void as against public policy and that they were unconscionable.

The court sided with Fox, finding that “the undisputed evidence” showed that it intentionally interfered with the agreements of the Fox employees and that the

“undisputed evidence also showed that both employees’ salaries from Fox were below market, at least for most of the years of the employees’ employment with Fox, and that Netflix specifically targeted both of them, offering to double their salary and to defend and indemnify them against any claims brought by Fox.”

In other words, Netflix tried to hire Fox's underpaid employees by offering fair compensation but the court wouldn't let them. 

To all this, I say - Are you kidding me, California Second District Court of Appeals?  

Hopefully, Netflix will appeal.  Better still, maybe the state legislature will pass a law prohibiting some of Fox’s nasty employment practices, such as the no-shop for 90 days provision.

Law 360 has a summary here and the court’s opinion here.

More On Compensation Inequity: College Football Edition

Yesterday, I ranted about executive compensation.  Today, I will rant about compensation paid to college football head coaches.  If you think that college football coaches deserve to be, in most states, the highest paid public employees, feel free to tune out.

Recently, a friend recommended that I listen to a story at the start of this Advisory Opinions podcast.  I don't want to ruin the story, I've put it below the fold.   If you want to listen, it just takes up the first two or three minutes of the podcast, which I do not otherwise recommend.

I bring up the story in this context because I recently was conversing with a neighbor who had various criticisms of Dr. Fauci.  Among Dr. Fauci's misdeeds, according to my neighbor, is that he is the highest-paid employee of the federal government.  It's true.  According to Forbes, Dr. Fauci's annual compensation is now over $400,000, and in the decade between 2010 and 2019, he earned $3.6 million.  Okay, so let's use football coaches' salaries to put that in perspective.  

First, according to the New York Times, Louisiana State University (LSU), a public institution, is paying its new coach $9 million/year.  That is well over twice what Dr. Fauci made over ten years.  At the same time, it is paying its former coach $17 million to step aside, so that former coach will be paid nearly five times what Dr. Fauci made over ten years, and he will make it for doing precisely nothing. 

Second, and this is crucial, Dr. Fauci is the highest paid federal employee because people who understand his role (that is, not Senator Rand Paul), know that he is an incredibly dedicated, effective public servant who has provided unparalleled leadership since the AIDS crisis.  If Dr. Fauci were to leave public service and work in the for-profit bio-tech sector, he could easily command salaries akin to what we pay corporate executives in those fields -- that is, many multiples of what he makes as a public servant.  Before one criticizes Dr. Fauci for making $400,000 a year, consider that the opportunity cost for him to do so by working as public employee is likely $1-2 million/year.

LSU's new coach, on the other hand, is guaranteed a bonus of $500,000 if LSU manages to win half its games, which would be a pretty unimpressive accomplishment for a team that has won three national championships since 2003.  That's right, on top of his salary, which is already twenty-two times higher than Dr. Fauci's, LSU's coach will get a bonus in excess of Dr. Fauci's salary if the team underperforms during his first year as badly as it did this year.

For my money, an Anthony Fauci is worth more than the best football coach in the country.  For my money, investing in great scientists who can guide our country through catastrophic health crises makes more sense than investing in men who can win college football games.  I would also venture to guess that the secondary effects of investing in science, in terms of gains in useful knowledge that can be applied to future medical challenges, greatly outweigh the benefits of having a successful college football team in the state.   As this story from the Guardian makes clear, most college sports programs operate at a loss.  Mad about the high tuition and fees you are paying for your child's education at a public university?  Maybe you should talk to your legislators about the high costs of college sports programs.  And those costs could be cut very easily if every state paid its coaching staff a decent but not excessive wage.  Salaries in line with what full professors in competitive fields like, law, business, medicine, or engineering, seem about right to me.  University presidents are also absurdly overcompensated, given that they take on no downside risk, but that can be a subject for some other post.

And since anybody who disagrees with me probably stopped reading a long time ago, let me add that the United States is the only country in the world that operates this way, and it is wholly irrational.  Universities are primarily about education and research.  Young people who are primarily interested in athletics can pursue that dream through developmental leagues, like the rest of the world has.  Teams in those leagues could be located in or near college towns, and universities that want to create a connection between the teams and their institutions can offer scholarships to the athletes who play on those teams.  Those students may have to attend part-time, as athletics is their day job.  Still, universities could provide support so that those students can succeed either as athletes, or as students, or as both, if they have the requisite aptitudes in both areas.  Given that very few students athletes become professional athletes, and professional athletic careers are very short on average, very little is lost if students choose to try their luck in the lottery of professional sports and then pursue college eduction at the age of 25 or 29.

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