ContractsProf Blog

Nancy Kim in the LA Times on CA's Age Appropriate Design Code Act

Our very own Nancy Kim (left) published an op-ed in the L.A. Times last week on California's Age Appropriate Design Code Act (the Act).  The purpose of the Act is to deter social media companies from creating features designed to addict children to their web products.  The Act has yet to be come law.  However, Nancy argues, it has already had some impact.

First, the Act raises awareness of the extent of which social media companies knowingly contribute to the problem of addition to social media sites.  Second the Act pushes back against the tech giants' assertions that regulation of the industry stifles free speech rights and hampers technological development.  The tech giants, as is well known, are not consistently on the side of free speech nor are technological innovation and regulation incompatible.  Third, the Act highlights interests like privacy, autonomy, and safety that must be balanced against the social media platforms desire to remain free from regulation or oversight.  

Nancy supports the proposed legislation, arguing that it will be good not only for children but for all users of the Internet.  You can read the details of the enforcement mechanism in her op-ed.

Forgiving Contractual Obligations (Like Student Loan Debt)

Last week, I innocently asked my contracts students whether they had heard about the Biden administration's play to forgive up to $20,000 in student loan debt.  My goal was modest.  Law students can get trapped in a bubble and not pay attention to breaking news.  If some of my students were eligible for loan forgiveness, I wanted to make sure that they knew about it and that they took steps to take advantage of this opportunity to escape some indebtedness. 

I was not prepared for the response I got from my afternoon session.  In short, I got roasted by my students who presented myriad arguments against loan forgiveness.  While I know that loan forgiveness is controversial, I expected that my students -- the intended beneficiaries of the program -- would welcome it.   

The University of Pennsylvania Wharton School's Budget Model website suggests that the cost of loan forgiveness, under static assumptions, will exceed $600 billion.  As Juliana Kaplan and Ayelet Sheffey report for The Business Insider, that is still less than the annual military budget, which comes in at around $800 billion, but you know you are dealing with a big number when you have to compare it to our military budget.  By way of comparison, estimates of the cost of the 2017 Tax Cut and Jobs Act (TCJA) range from $450 billion to $1 trillion.  Of course, the TCJA was supposed to stimulate the economy to make up for those costs.   President Biden's plan is not supposed to stimulate the economy; the economy is stimulated enough already.  The Fed is driving up interest rates in an attempt to slow it down.  From my students' perspective, this is either going to increase their tax burden over time, or it is a misallocation of tax dollars.

Of course, I don't know what the majority of my students think of loan forgiveness, but several students objected and impressively held their ground.  My students expressed concern, as did some Republican lawmakers, that debt forgiveness would fuel inflation.  That seems unlikely to me, for reasons given in this NPR analysis.  The 40 million people who will have their debt reduced under the plan are still going to be burdened by debt and are unlikely to respond with a shopping spree.  Even the 20 million people who are going to have their remaining debt forgiven entirely will not have any new money deposited in their bank accounts.  They just won't have to write out a check every month anymore.  The end of that obligation is unlikely to stimulate the economy in ways that will fuel inflation. 

Other objections to the Biden plan seem to me to carry more weight: the benefits should have been targeted more carefully at the lower-income borrowers for whom the burden of debt is most onerous; and the plan does nothing to address the high cost of higher education generally.  It may even create incentives that cut against lowering those costs.  I'm not persuaded that one-time loan forgiveness will have much effect on the overall mix that causes higher education to be so expensive.  In my lifetime, public education was genuinely affordable.  It no longer is, and only real education policy analysts know why.  I am not one.  That said, if the policy is a good one, it seems to me to be no argument against it that it does not address problems it was not designed to address.  I have heard commentators suggest that a better solution would be to allow the forgiveness of student debt in bankruptcy.  Unless I am sadly mistaken about the separation of powers, I do not think it is within the powers of the President to reform the Bankruptcy Code.  The targeting of the benefit at people who might have annual incomes as high as $250,000 raises concerns about political compromises, which brings me to my next point.

UVA Law Prof Richard Re (right) raises a related, interesting point.  He speculates that the Biden administration may be engaged in some cynical gamesmanship.  More Americans support student debt forgiveness than oppose it, although many of those who support it think that the Biden administration's plan is not ambitious enough . Still, Professor Re argues, the Biden administration may have timed the announcement of debt forgiveness just perfectly.  The announcement will give the Democrats a boost that they need in the midterm elections, but it won't have the negative budgetary effects that even Democrats don't want to deal with, because, Professor Re predicts, the Biden administration might be counting on the Supreme Court to strike down the entire thing as beyond the President's power.

It's an intriguing theory.  I alternate between the following quick takes (none of which are original):

• This is too clever and risky a strategy for the Biden administration to undertake;
• If this was the Biden administration's strategy, it is a dumb strategy, because having a major policy initiative struck down as ultra vires and unconstitutional does tremendous harms to claims that Democratic Presidents, unlike Republican Presidents of recent memory, believe in the rule of law;
• Nobody would have standing to bring such a claim, or if the debt servicers do have standing, they won't bring the claim because they do not want to bite the government hand that feeds them; and 
• Some servicer will be just ideologically-driven enough to bring the claim.

In short, thanks to my students for awakening from my dogmatic slumbers.  I was just thinking that the Biden policy would be good news for my students.  I hadn't thought about the issue from as my angles as they had.

Tuesday Top Ten - Contracts & Commercial Law Downloads for August 30, 2022

Let's roll the tape and see what's been happening with SSRN downloads in our objectively favorite subject areas this past week!

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 01 Jul 2022 - 30 Aug 2022

Rank	Paper	Downloads
1.	How Privilege Undermines Cybersecurity Daniel Schwarcz, Josephine Wolff and Daniel W Woods University of Minnesota Law School, The Fletcher School of Law and Diplomacy, Tufts University and University of Edinburgh	504
2.	A Century of Business in the Supreme Court, 1920-2020 Lee Epstein and Mitu Gulati University of Southern California and University of Virginia School of Law	396
3.	Private Law Legalism Felipe Jiménez USC Gould School of Law	136
4.	Based On a True Story: Life Story Rights, Modularity and Ownership of the Self Jorge L. Contreras and Dave Fagundes University of Utah - S.J. Quinney College of Law and University of Houston Law Center	101
5.	Contractual Landmines Robert E. Scott, Stephen J. Choi and Mitu Gulati Columbia University - Law School, New York University School of Law and University of Virginia School of Law	90
6.	Teaching Slavery in Commercial Law Carliss Chatman Washington and Lee University School of Law	63
7.	Nominal Damages as Vindication Sadie Blanchard Notre Dame Law School	63
8.	The Restatements as Law Frederick Schauer University of Virginia School of Law	60
9.	A Pyrrhic Victory for Unjust Enrichment in Singapore? Rachel Leow and Timothy Liau National University of Singapore (NUS) - Faculty of Law and National University of Singapore (NUS) - Faculty of Law	56
10.	Private Law and The Embedded Person Hanoch Dagan and Avihay Dorfman Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law	54

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 01 Jul 2022 - 30 Aug 2022

Rank	Paper	Downloads
1.	Based On a True Story: Life Story Rights, Modularity and Ownership of the Self Jorge L. Contreras and Dave Fagundes University of Utah - S.J. Quinney College of Law and University of Houston Law Center	101
2.	Contractual Landmines Robert E. Scott, Stephen J. Choi and Mitu Gulati Columbia University - Law School, New York University School of Law and University of Virginia School of Law	90
3.	Teaching Slavery in Commercial Law Carliss Chatman Washington and Lee University School of Law	63
4.	Nominal Damages as Vindication Sadie Blanchard Notre Dame Law School	63
5.	The Restatements as Law Frederick Schauer University of Virginia School of Law	60
6.	A Pyrrhic Victory for Unjust Enrichment in Singapore? Rachel Leow and Timothy Liau National University of Singapore (NUS) - Faculty of Law and National University of Singapore (NUS) - Faculty of Law	56
7.	Private Law and The Embedded Person Hanoch Dagan and Avihay Dorfman Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law	54
8.	Unjust Enrichment in Australia 2020-2021 Kit Barker, Samuel Walpole and Penelope Bristow University of Queensland - TC Beirne School of Law, TC Beirne School of Law and The University of Queensland - T.C. Beirne School of Law	50
9.	Market Humiliation Hila Keren Southwestern Law School	48
10.	Should New Zealand Shirk its Obligations? A Critical Perspective on Private Law Scholarship Bevan Marten and Geoff McLay Victoria University of Wellington, Te Herenga Waka - Faculty of Law and Victoria University of Wellington, Te Herenga Waka - Faculty of Law	33

Dog Bites Man: Trump Entity Is (Allegedly) Breaching Its Contractual Obligations

According to media reports, including this one from Drew Harwell in The Washington Post, FPOTUS Donald Trump's Twitter clone, Truth Social, is in financial difficulties.  An SEC S-1 filing from Digital World Acquisition Corp., the company that is supposed to take the Trump Media and Technology Group (TMTG) public, contains all sorts of statements casting doubt on the viability of the enterprise.  Mind you, SEC filings are supposed to protect against claims by investors that they were mislead as to the company's prospects for success.  Pessimism is common.  When I was in private practice helping to deal with the fallout of the post 2000 .com bust, every SEC filing I read about a technology company made the following points:

• We are bleeding money;
• We have never made money;
• We don't know when we ever will make money; and
• We have invested heavily in companies just like us that are bleeding money, have never made money, and don't know whether they will ever make money.

My job was to explain why my clients nonetheless advised their clients to invest in such companies.

Perhaps more alarming is the report that TMTG has stopped paying its bills.  According to WaPo, TMTG stopped paying its web-hosting service, RightForge, in March and is now in arrears to the tune of over $1 million.  As WaPo also notes, the man behind TMTG has a long history of not paying his bills.  Not to mention the fraudulent businesses.  Not to mention the fraudulent charitable organizations.  More alarming still, an SEC investigation into the planned transaction involving TMTG and Digital World has placed the entire deal on hold. 

The FPOTUS has been in the news of late.  Another dog bites man story.  Despite the FPOTUS having posted (that is "truthed") on his site "WE GAVE THEM MUCH," he has also claimed that: (1) the FBI planted incriminating and classified documents; (2) he had declassified the documents; (3) he was entitled to keep the documents, and (4) the documents are subject to executive and/or attorney-client privilege.  All of these shenanigans have somehow not improved traffic on Truth Social, which now is down from a peak of 1.5 million to about 300,000 views per day.  

Our goal on this blog is to overtake Truth Social for page views.  Now that would be a man bites dog story.

Dramatic Uptick in Unionization

This article from Robert Combs on Bloomberg Law shows striking growth in unionization.  The growth outpaces last year's growth, even if one does not count all unionizing efforts at  Starbucks shops, a topic about which we have already posted here and here.  Unionization at Starbucks seems to account for something like 1/3 of all votes in favor of unionization thus far in 2022.  However, because those are small shops, Starbucks workers account for only about 5300 of the nearly 45,000 new union workers.  Unionization efforts at Amazon have generated over 8300 new union workers.  Unionization at MIT accounts for nearly 4000 new union workers.

In short, I think the story here is that Starbucks is a big story, but it's just one story, and there are some other big ones that help us understand the dramatic uptick in unionization after about 15 years of lower rates of new union creation.  As Robert Combs concludes,

Based on these findings, it would be short-sighted for management lawyers to presume that labor’s recent resurgence is limited to any one company—even one as high-profile as Starbucks.

Unionization at Starbucks also might be less significant because its effects might be short term.  It's hard to know how sticky unionization will be at Starbucks outlets, but I'm guessing that there is a lot of turnover.  I don't expect many Starbucks employees consider it a long-term career option.  If they do, they will become managers, and the reporting I've seen is that the managers tend to oppose the unions very actively.  By contrast, employees at MIT, Kaiser Permanente, and Stanford Health Care seem more likely to be at their current jobs long-term.

In general, the uptick in unionization seems like a predictable response to a saturated job market, especially in a time of relatively high inflation, exacerbated by dramatic inflation in the housing market.  Even if your employer offers you pay increases, inflation eats away at such gains, and you still can't find decent housing in an urban setting on $15/hour.  So called "cost of living increases" are not coming close to keeping up with inflation. For once, workers have leverage because the national "great resignation" has employers scrambling for warm bodies. Training costs are high, especially when one is trying to maintain a brand that involves knowing how to quickly make an iced brown-sugar-oat-milk espresso.

Lauren Bobert thinks this will not be a problem, because universities are churning out graduates who major in lesbian dance theory and that for such people, work at Starbucks may be the best option.  Ouch.  As the father of a daughter majoring in theater, that cuts me pretty close.  But this chart of current majors tells a different story.

As does this one:

Promissory Estoppel Looms Large

Students fall in love with promissory estoppel during their first year, just as they do with unilateral contracts.  I try to nip it in the bud.  Promissory estoppel is rarely going to work in a commercial context, I tell them.  You are going to put it in your complaint as a cause of action if it is at all colorable, but if you are going to win your case, you are far more likely to do so based on breach of contract.  

And then, along comes a headline-making case where promissory estoppel makes perfect sense.  In this case promissory estoppel might provide an affirmative defense to a breach-of-patent claim.

As  Rebecca Robbins and Jenny Gross report in The New York Times, Moderna is suing Pfizer and BioNTech, alleging that Pfizer's and BioNTech's COVID-19 vaccines were created using technology that Moderna had developed years before the pandemic began.  As the Times reporting makes clear, this lawsuit does not seem to endanger the supply of vaccines; it's just about which corporation gets to reap the profits from them.  

Defendants might make a promissory estoppel claim.  As we learned from friend of the blog Guy Rub (left), on October 8th, 2020, Moderna issued a statement on intellectual property matters during the COVID-19 pandemic.  The third paragraph of that statement reads as follows:

Beyond Moderna’s vaccine, there are other COVID-19 vaccines in development that may use Moderna-patented technologies. We feel a special obligation under the current circumstances to use our resources to bring this pandemic to an end as quickly as possible. Accordingly, while the pandemic continues, Moderna will not enforce our COVID-19 related patents against those making vaccines intended to combat the pandemic. Further, to eliminate any perceived IP barriers to vaccine development during the pandemic period, upon request we are also willing to license our intellectual property for COVID-19 vaccines to others for the post pandemic period. 

In its complaint, Moderna cites to its own press statement and notes the following in early 2022, "the collective fight against COVID-19 had entered a new endemic phase and vaccine supply was no longer a barrier to access in many parts of the world, including the United States."  For this reason, Moderna announced  in early March "that it expected companies such as Pfizer and BioNTech to respect Moderna’s intellectual property and would consider a commercially-reasonable license should they request one."  Pfizer and BioNTech never requested a license.

Is Moderna's statement seems consistent with its current litigation posture?  Is that inconsistency enough to estop Moderna from protecting its intellectual property?  The answer might turn on a fact question -- are we still in a "pandemic period." 

Judging by the number of people I see wearing masks, I might be inclined to say no.  But we still have over 90,000 new infections reported daily, and with home testing at all, the actual number is likely to be much higher.  COVID deaths no longer make the news, but that does not mean that they are not happening -- nearly 500/day.  Meanwhile, healthy Americans are still getting sick -- really sick -- from this virus, and the long term effects linger mysteriously.  In short, COVID sucks.

A new round of vaccines is coming, so regardless of which pharmaceutical company benefits, please get your booster.  According to The New York Times, the unvaccinated are currently three times more likely to get sick and six times more likely to die than the fully vaccinated.  Imagine how silly you would feel if you or a loved one became seriously ill because you concluded that the pandemic was over and you didn't need to be vaccinated.

As to the litigation, tay tuned. 

If you subscribe, you can look at the complaint here.  

Weekend Frivolity: At Least Enough to Get Us to Noon

A Quick One: Contracts and the First Amendment in Rosati v. LIRR

I have been mining a rare vein of doctrine that combines the precious minerals of contracts law and the First Amendment.  The most recent installment, which links to previous posts, is here.  I have to prepare to teach this morning, and the ruling discussed below is preliminary, so I will just quickly note the District Court's ruling in Rosati v. Long Island Railroad here.

According to the opinion, Rosati has a bunch of social media accounts in which he promotes conservative causes, including perhaps white power.  He was also a conductor for the Long Island Railroad (LIRR).  At some point after January 6th, 2021, LIRR became aware of his activities, including his presence at the Capitol on January 6th.  He stands accused of no unlawful conduct in connection with January 6th.  Nonetheless, he was suspended without pay on January 21st.  On May 21st, he was terminated based on his social media posts.  

Rosati sued, alleging violations of 42 U.S. § 1983 and alleging municipal liability under Monell v. Dep't of Social Services.  In order to succeed on such a claim, Rosati has to identify the policy or custom pursuant to which he was terminated.  The conclusory allegations in his complaint failed to do so, so the case was dismissed with leave to request an attempt to cure the complaint's deficiencies. This one is worth following.  

And now, another Quick One:

 

Does the "W" in Walmart Stand for "Woke"?

As Emma Goldberg reports in The New York Times, our nation's #1 employer is offering abortion coverage, including travel expenses in its healthcare package for employees.  The travel coverage is necessary because Walmart's home state, Arkansas, has adopted a strict abortion law that does not include exceptions for rape of incest.  

According to a memo from Walmarts "chief people officer" [?], the policy covers abortions related to “health risk to the mother, rape or incest, ectopic pregnancy, miscarriage or lack of fetal viability."  Travel funds are available if the nearest abortion provider is not within 100 miles of the employee's home.  

When the Supreme Court overturned Roe and Casey in the Dobbs opinion, the Justices said that they were simply returning the issue to the states.  Perhaps they should have said that they are returning the issue to the states and the major corporations within those states.  Lately, such corporate measures are met with legislative countermeasures.  Does the Arkansas legislature want to take on Walmart the way Florida took on Disney?  Stay tuned.

Tuesday Top Ten - Contracts & Commercial Law Downloads for August 23, 2022

Happy Tuesday to all, but especially to those keeping up on the latest twists and turns in contract and commercial law scholarship! Let's see what's been happening over on SSRN:

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 24 Jun 2022 - 23 Aug 2022

Rank	Paper	Downloads
1.	How Privilege Undermines Cybersecurity Daniel Schwarcz, Josephine Wolff and Daniel W Woods University of Minnesota Law School, The Fletcher School of Law and Diplomacy, Tufts University and University of Edinburgh	488
2.	A Century of Business in the Supreme Court, 1920-2020 Lee Epstein and Mitu Gulati University of Southern California and University of Virginia School of Law	310
3.	Private Law Legalism Felipe Jiménez USC Gould School of Law	134
4.	Based On a True Story: Life Story Rights, Modularity and Ownership of the Self Jorge L. Contreras and Dave Fagundes University of Utah - S.J. Quinney College of Law and University of Houston Law Center	97
5.	Never Let Me Go: Private Law and the Conservative Impulse Prince Saprai University College London - Faculty of Laws	95
6.	Contractual Landmines Robert E. Scott, Stephen J. Choi and Mitu Gulati Columbia University - Law School, New York University School of Law and University of Virginia School of Law	84
7.	The Misrepresentation Act 1967: Its Historical Origins and Socio-Political Context Alan Brener University College London - Faculty of Laws	65
8.	Nominal Damages as Vindication Sadie Blanchard Notre Dame Law School	60
9.	A Pyrrhic Victory for Unjust Enrichment in Singapore? Rachel Leow and Timothy Liau National University of Singapore (NUS) - Faculty of Law and National University of Singapore (NUS) - Faculty of Law	52
10.	Possession, Relativity of Title and Ownership in English Law by Luke Rostill (Book Review) Stéphane Sérafin University of Ottawa	51

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 24 Jun 2022 - 23 Aug 2022

Rank	Paper	Downloads
1.	Based On a True Story: Life Story Rights, Modularity and Ownership of the Self Jorge L. Contreras and Dave Fagundes University of Utah - S.J. Quinney College of Law and University of Houston Law Center	97
2.	Contractual Landmines Robert E. Scott, Stephen J. Choi and Mitu Gulati Columbia University - Law School, New York University School of Law and University of Virginia School of Law	84
3.	Sexual Agreements Albertina Antognini and Susan Frelich Appleton University of Arizona James E. Rogers College of Law and Washington University in St. Louis - School of Law	77
4.	The Misrepresentation Act 1967: Its Historical Origins and Socio-Political Context Alan Brener University College London - Faculty of Laws	65
5.	Nominal Damages as Vindication Sadie Blanchard Notre Dame Law School	60
6.	A Pyrrhic Victory for Unjust Enrichment in Singapore? Rachel Leow and Timothy Liau National University of Singapore (NUS) - Faculty of Law and National University of Singapore (NUS) - Faculty of Law	52
7.	Unjust Enrichment in Australia 2020-2021 Kit Barker, Samuel Walpole and Penelope Bristow University of Queensland - TC Beirne School of Law, TC Beirne School of Law and The University of Queensland - T.C. Beirne School of Law	47
8.	Market Humiliation Hila Keren Southwestern Law School	45
9.	Private Law and The Embedded Person Hanoch Dagan and Avihay Dorfman Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law	32
10.	Should New Zealand Shirk its Obligations? A Critical Perspective on Private Law Scholarship Bevan Marten and Geoff McLay Victoria University of Wellington, Te Herenga Waka - Faculty of Law and Victoria University of Wellington, Te Herenga Waka - Faculty of Law	32

 

Contracts Profs as Influencers

 

Photo by camknows from Seattle, WA, USA Cropped by WikiKiwi  

Today in my morning class, I called on a student to provide her answer to one of the problems from Blum's Examples and Explanations.  As she fumbled to find the right place in the book and recall her response, she offered, "But I did write a Limerick."

Take note students.  Writing a Limerick will not get you out of responding to my withering Socratic questioning.  But she did find her answer and then she got to recite her Limerick.  Both her answer and her Limerick served my pedagogical goals, although she had to edit out a word from the Limerick, as it was not fit for my family-friendly class.  Hard to think about contracts without getting indulging in some salty language.  I like the passion.

Now I know what PewDiePie feels like.  I'm an influencer.

Contracts and the War in Ukraine

This is the sixth in an occasional series of posts about contracts issues that have arisen in connection with the war in Ukraine.  We have covered: a canceled contract with a Russian pianist; insurance claims arising out of Russian cyberattacks; the de-platformization of RT America; Turkey's interpretation of the Montreux Convention; and the exclusion of Russian  racers and sponsors from Formula 1 race teams.   Today, we cover Russia's leading band of mercenaries, the Wagner Group, with the help of Yaroslav Trofimov's reporting in the Wall Street Journal.

According to Trofimov's reporting, the Wagner Group is a private military company owned by Putin associate and Russian oligarch, Yevgeny Prigozhin, who is wanted by the FBI for alleged interference in the 2016 U.S. elections.  For his part, Mr. Prigozhin, who has been photographed at Wagner bases in the Donbas region and who was recently awarded the Hero of Russia, Russia's highest honor, says he knows nothing of the group.  

The Wagner Group has become essential to Russia's military campaign in Ukraine, especially since the elite units of Russia's army failed in their mission to take Kyiv and suffered heavy losses early in the war.  The Wagner Group's soldiers, according to the WSJ, have a motivation that ordinary soldiers lack -- high pay.  The base pay is reported to be nearly $6000/month, with bonuses for successful missions and bounties for killing Ukrainian soldiers. 

Wagner is reported to be recruiting aggressively in Russian cities, and such recruitment is necessary, because Wagner units take losses of 10-15% on at least some of their missions.  For example, the Russian assault on the Donbas region stalled when Wagner Group forces were routed in an attempt to cross a river in May.  They re-grouped and, after the Wagner Group took out Ukrainian fortification near Poposna, Russian forces were able to take the cities of Severodonetsk and Lysychansk.  Mr. Prigozhin himself is said to be recruiting in Russian prisons, leveraging his own experience that includes ten years in Soviet prisons.  Outsiders note that those being recruited lack military training, and that 200 such recruits have already died in Ukraine.  

Although the Wagner Group owns and operates its own tanks, artillery, air defenses, multiple-launch rocket systems, and aircraft, some argue that it is not really a private army but an integrated component of the Russian military.  Such statements may be motivated by a desire to entitle Wagner Group detainees to POW status under the Geneva Conventions, but given the restrictive definition of the term "mercenary" in Additional Protocol I, Wagner Group members would not likely qualify as mercenaries and thus likely would be treated as combatants upon capture.  

H/t Paula Dalley

Hiring (Lots of Hiring!) at Emory Law

 Emory Law Faculty Hiring Announcement

Emory Law seeks to fill seven faculty positions to begin in the 2023-24 academic year.  Entry-level candidates are strongly encouraged to participate in the AALS Faculty Appointments Register. Lateral candidates should complete the online application which requires creating an account, uploading a resume or CV, and providing basic demographic information. In addition, applicants should submit a cover letter, a current CV, a published or unpublished academic article, a brief research agenda, and an indication of teaching interests (if not listed on the CV) to the chair of the Faculty Appointments Committee: Joanna Shepherd, at [email protected]. Applications will be considered on a rolling basis. The positions are as follows: 

1. Assistant or Associate Professor- Tax Law 

Emory University School of Law seeks to fill one to two positions in tax law beginning in the 2023-2024 academic year. The positions are open to entry-level and lateral candidates at the rank of assistant or associate professor. Candidates must have a J.D., Ph.D., or equivalent degree, and a distinguished academic record. Candidates should have a strong track record and/or show outstanding promise in research in tax law or related fields, and the ability to teach at least one tax course. Where a candidate has met the law school’s standards for scholarly excellence and demonstrated the ability to teach tax-related courses, a candidate’s interest in teaching in the 1L curriculum will be an additional positive factor.  

2. Assistant or Associate Professor- Employment/Labor Law 

Emory University School of Law seeks to fill a position in employment or labor law beginning in the 2023-2024 academic year. The position is at the rank of assistant or associate professor and is open to entry-level and lateral candidates. Candidates must have a J.D., Ph.D., or equivalent degree, and a distinguished academic record. Candidates should have a strong track record and/or show outstanding promise in research in employment law, labor law, or related fields. Candidates should also have the ability to teach one or more employment or labor law courses. Where a candidate has met the law school’s standards for scholarly excellence and demonstrated the ability to teach employment-related courses, a candidate’s interest in teaching in the 1L curriculum will be an additional positive factor.

3. Associate or Full Professor- Corporate Law 

Emory University School of Law seeks to fill a position in corporate law beginning in the 2023-2024 academic year. The position is open to lateral candidates at the rank of associate or full professor. Candidates must have a J.D., Ph.D., or equivalent degree, and a distinguished academic record. Candidates should have a strong track record and/or show outstanding promise in research in corporate law or related fields. Candidates should also have the ability to teach at least one corporate or business law course.  Where a candidate has met the law school’s standards for scholarly excellence and demonstrated the ability to teach corporate-related courses, a candidate’s interest in teaching in the 1L curriculum will be an additional positive factor.

4. Assistant, Associate, or Full Professor- Bankruptcy Law 

Emory University School of Law seeks to fill a position in bankruptcy law beginning in the 2023-2024 academic year. The position is open to entry-level and lateral candidates of all levels of experience. Candidates must have a J.D., Ph.D., or equivalent degree, and a distinguished academic record. Candidates should have a strong track record and/or show outstanding promise in research in bankruptcy, commercial law, or related fields. Candidates should also have the ability to teach at least the foundational bankruptcy course. Where a candidate has met the law school’s standards for scholarly excellence and demonstrated the ability to teach bankruptcy, a candidate’s interest in teaching in the 1L curriculum will be an additional positive factor.

5. Assistant, Associate, or Full Professor- Constitutional Law/Law & Religion 

Emory University School of Law seeks to fill a position in constitutional law with a priority given to candidates who have interest and/or expertise in law & religion (including but not limited to religious freedom), beginning in the 2023-2024 academic year. The position is open to entry-level and lateral candidates of all levels of experience. Candidates must have a J.D., Ph.D., and/or equivalent degree, and a distinguished academic record. Candidates should have a strong track record and/or show outstanding promise in research in constitutional law, law & religion, and related fields, and the ability to teach one or more constitutional law and law and religion courses. The successful candidate will have the opportunity to participate in the law school’s globally-recognized Center for the Study of Law and Religion.

6. Assistant, Associate, or Full Professor- Artificial Intelligence 

Emory University School of Law seeks applications from legal scholars of all levels of experience whose work engages issues related to artificial intelligence (AI), machine learning (ML), and data science. Candidates should have exceptional records in research, teaching, and service and have attained a J.D., Ph.D., or equivalent degree. Where a candidate has met the law school’s standards for scholarly and teaching excellence, interest in teaching in the 1L curriculum will be an additional positive factor.  

Over the next several years, across its departments, Emory University will hire 50 to 60 faculty members with a focus on, but not limited to, four topical areas: AI and Health; AI and Social Justice/Law; AI and Business/Economics and Entrepreneurship/Law; and AI and the Humanities and Arts. Emory Law has already recruited two leading scholars working in AI-related fields. Additional information about the university’s initiative can be found here.  The law school has also announced the Innovation and Legal Tech Initiative, which will explore the implications of AI, machine learning, and data science for the practice of law.

7. H. Gyr Professor of Private International Law

Emory University School of Law seeks applications from distinguished scholars for the K.H. Gyr Professor of Private International Law. The Gyr professorship recognizes outstanding achievement in scholarship and teaching in disciplines related to private international law, including international conflict of laws, international economic law, trade, international commercial arbitration and litigation, financial regulation, international business transactions, and other fields relating to private international law. Candidates should have exceptional records in research, teaching, and service and have attained a J.D., Ph.D., or equivalent degree. Candidates should currently hold a tenured academic appointment and should be eligible for appointment as a full professor at Emory. Where a candidate has met the law school’s standards for scholarly excellence and demonstrated the ability to teach courses related to private international law, a candidate’s interest in teaching in the 1L curriculum will be an additional positive factor. 

Anat Rosenberg Publishes A History of Mass Advertising!

Anat Rosenberg, whose work on puffery has been featured on the blog previously (in a post considered by many to be first in its class), has now published her book with Oxford University Press.  You can check it out here.

Here's a description from Oxford's site:

The Rise of Mass Advertising is a first cultural legal history of advertising in Britain, tracing the rise of mass advertising c.1840-1914 and its legal shaping. The emergence of this new system disrupted the perceived foundations of modernity. The idea that culture was organized by identifiable fields of knowledge, experience, and authority came under strain as advertisers claimed to share values with the era's most prominent fields, including news, art, science, and religiously inflected morality. While cultural boundaries grew blurry, the assumption that the world was becoming progressively disenchanted was undermined, as enchanted experiences multiplied with the transformation of everyday environments by advertising. Magical thinking, a dwelling in mysteries, searches for transfiguration, affective connection between humans and things, and powerful fantasy disrupted assumptions that the capitalist economy was a victory of reason.

The Rise of Mass Advertising examines how contemporaries came to terms with the disruptive impact by mobilizing legal processes, powers, and concepts. Law was implicated in performing boundary work that preserved the modern sense of field distinctions. Advertising's cultural meanings and its organization were shaped dialectically vis-à-vis other fields in a process that mainstreamed and legitimized it with legal means, but also construed it as an inferior simulation of the values of a progressive modernity, exhibiting epistemological shortfalls and aesthetic compromises that marked it apart from adjacent fields. The dual treatment meanwhile disavowed the central role of enchantment, in what amounted to a normative enterprise of disenchantment. One of the ironies of this enterprise was that it ultimately drove professional advertisers to embrace enchantment as their peculiar expertise.

The analysis draws on an extensive archive that bridges disciplinary divides. It offers a novel methodological approach to the study of advertising, which brings together the history of capitalism, the history of knowledge, and the history of modern disenchantment, and yields a new account of advertising's significance for modernity.

Congratulations, Anat!

The New York Times on Worker Productivity Scores

Over at The New York Times, you can test your worker productivity score in a piece written by Jodi Kantor and Arya Sundaram and produced by Aliza Aufrichtig and Rumsey Taylor.  It is pretty disturbing.  

The page tracks you as you read an article about being tracked at work.  It's fun, because it's not the real deal, but apparently, many workers are now being tracked all the time, and for some, pay, promotion, and even keeping one's job depends on how well one does working while being tracked.  Holy panopticon, Batman!

How it started: 

Yesterday, I blogged about unionization efforts at Starbucks, and that topic seems relevant here.  Workers hate being tracked, not only because none of us operate at peak efficiency but also because some of the things we do are productive in ways that cannot be tracked.  According to The Times, Amazon pulled back on some of its worker productivity measures in response to unionization.  Workers who are unionized can fight back against the crapification of work.  They don't focus exclusively on pay and benefits.

Efficiency is now a value in many work spaces where efficiency should not be a primary value.  The article spends a lot of time on pastors working in hospice settings being tracked for their efficiency.  That's sick, and not in a good way. 

Lots of workers complain that they are being penalized for "idling" when they are in fact thinking, working out problems with pen and paper, consulting with colleagues, or pausing to reflect on things.  Workers are having to explain dips in their productivity by telling their managers that sometimes they have to use the toilet.  

How it's going:

I am so grateful to be an academic!  So much of what I do is not productive in any way that can be measured.  I clear my head by walking around my building, talking to colleagues or students.  I work through my ideas by talking to them.  I socialize with my co-workers because I like to get to know the people I work with.  I blog.  I surf the Internet looking for images to put in my PowerPoint presentations.  In the interest of full disclosure, once I'm surfing, I get curious about things and read stuff on the Internet.  Some of it may be relevant to teaching or scholarship; some of it isn't.  I often don't know until I've finished reading something whether it will be relevant to my work.  What would tracking technology know of that? 

While I was reading the Times article and hyper-conscious of being tracked, a student poked his head in to say hello.  It was a student who had me for contracts last year but who will not be taking classes with me this year.  The efficient thing to do would be to tell him I was in the midst of reading an article and I couldn't spare the time to chat.  I didn't do the efficient thing and I hope I never have to.

Tuesday Top Ten - Contracts & Commercial Law Downloads for August 16, 2022

Welcome to all those who know that "K" is for contract! It's our weekly time to check out this week's download action on SSRN in our favorite fields:

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 17 Jun 2022 - 16 Aug 2022

Rank	Paper	Downloads
1.	How Privilege Undermines Cybersecurity Daniel Schwarcz, Josephine Wolff and Daniel W Woods University of Minnesota Law School, The Fletcher School of Law and Diplomacy, Tufts University and University of Edinburgh	461
2.	A Century of Business in the Supreme Court, 1920-2020 Lee Epstein and Mitu Gulati University of Southern California and University of Virginia School of Law	275
3.	Private Law Legalism Felipe Jiménez USC Gould School of Law	132
4.	Never Let Me Go: Private Law and the Conservative Impulse Prince Saprai University College London - Faculty of Laws	94
5.	Based On a True Story: Life Story Rights, Modularity and Ownership of the Self Jorge L. Contreras and Dave Fagundes University of Utah - S.J. Quinney College of Law and University of Houston Law Center	91
6.	Contractual Landmines Robert E. Scott, Stephen J. Choi and Mitu Gulati Columbia University - Law School, New York University School of Law and University of Virginia School of Law	64
7.	The Misrepresentation Act 1967: Its Historical Origins and Socio-Political Context Alan Brener University College London - Faculty of Laws	60
8.	Nominal Damages as Vindication Sadie Blanchard Notre Dame Law School	56
9.	Possession, Relativity of Title and Ownership in English Law by Luke Rostill (Book Review) Stéphane Sérafin University of Ottawa	44
10.	Investigating the Case for An EU Chief (Information) Security Officer through a Close Reading of Digital Regulation and Policy Victoria Baines Bournemouth University - School of Computing	44

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 17 Jun 2022 - 16 Aug 2022

Rank	Paper	Downloads
1.	Based On a True Story: Life Story Rights, Modularity and Ownership of the Self Jorge L. Contreras and Dave Fagundes University of Utah - S.J. Quinney College of Law and University of Houston Law Center	91
2.	Sexual Agreements Albertina Antognini and Susan Frelich Appleton University of Arizona James E. Rogers College of Law and Washington University in St. Louis - School of Law	64
3.	Contractual Landmines Robert E. Scott, Stephen J. Choi and Mitu Gulati Columbia University - Law School, New York University School of Law and University of Virginia School of Law	64
4.	The Misrepresentation Act 1967: Its Historical Origins and Socio-Political Context Alan Brener University College London - Faculty of Laws	60
5.	Nominal Damages as Vindication Sadie Blanchard Notre Dame Law School	56
6.	The Role of Democracy in Private Law Arie Rosen University of Auckland Faculty of Law	54
7.	A Pyrrhic Victory for Unjust Enrichment in Singapore? Rachel Leow and Timothy Liau National University of Singapore (NUS) - Faculty of Law and National University of Singapore (NUS) - Faculty of Law	44
8.	Market Humiliation Hila Keren Southwestern Law School	41
9.	Unjust Enrichment in Australia 2020-2021 Kit Barker, Samuel Walpole and Penelope Bristow University of Queensland - TC Beirne School of Law, TC Beirne School of Law and The University of Queensland - T.C. Beirne School of Law	40
10.	Should New Zealand Shirk its Obligations? A Critical Perspective on Private Law Scholarship Bevan Marten and Geoff McLay Victoria University of Wellington, Te Herenga Waka - Faculty of Law and Victoria University of Wellington, Te Herenga Waka - Faculty of Law	30

Unique Unionization Efforts at Starbucks

We have posted before about the changing fortunes of labor unions in this country, focusing on successful organizing campaigns at Starbucks. As reported in The New Yorker by E. Tammy Kim here, Starbucks' workers have come up with something even bolder than charging $3 for a cup of coffee!  

Rather than outsourcing recruiting to union professionals, the baristas are recruiting their own to join Starbucks Workers United, and their efforts have been quite successful, according to Ms. Kim's reporting.  Even at the 15,000 square-foot Reserve Roastery in Seattle, some baristas have joined the union, citing "concerns over chronic understaffing, race discrimination in promotions, mistreatment by managers, and low pay."  Fifteen dollars an hour doesn't go very far towards rent in an urban setting.  

It can be a tough sell.  Management discourages employees from unionizing, and there are instances of claimed retaliation against workers for union activities.  Fortunately, the union baristas know how to work under cover.  They pretend to be ordinary Starbucks customers, even going so far as to order "iced brown-sugar-oat-milk espressos."  Then they give the frazzled barista a flyer as he toggles between the walk-up window and the drive-through window.  The organizers sometimes come up against management in stores, but they give their pitch to managers as well, who say that they are not interested.  Reifications of false consciousness all.  Then employees suddenly realize that it is time to take out the trash, and they sneak out to grab a flyer from the organizers.

Another interesting theme in Ms. Kim's article is the role of LGBTQ+ employees in union organizing.  I don't usually get my coffee from Starbucks, but when I travel, I am grateful for the company's market saturation.  I know that I can get drinkable caffeinated beverages on the road, pretty much no matter where I travel.  I noticed last year on a trip to the Ozarks that I was seeing a much higher percentage of out LGBTQ+ people serving me beverages than I saw in other venues in Arkansas.  Back in the day, the rainbow masks were a definite tell.  It turns out, once you have the activism bug, it translates across subject matters.  One Seattle protest adopted the the slogan "Be Gay! Do Strikes!"  

[Sidebar: I expect better slogans from LGBTQ+ folks.  A friend from grad school was an early participant in ACTUP!  When police came to clear them out of a building, the police wore gloves so that they wouldn't catch anything from these terrifying gay men.   The media showed up, and the ACTUP men started chanting "Your gloves don't match your shoes!  You'll see it on the news!"  Zing.]

The workers and Starbucks are now locked in a war of attrition.  Howard Schultz (right, at a 2014 book signing), Starbucks' CEO (for the third time) is adamantly anti-union, as Ms. Kim describes, but the company has a reputation as a progressive force and so it will only issue mealy-mouthed statements about its willingness to negotiate.  Negotiations have yet to begin, notwithstanding a request from 32 unionized locations.  The company is actively seeking to shut down unionized locations.  It has been especially aggressive in Seattle, the company's corporate home.   By the way, if you are in my home city of Oklahoma City and are looking for a cold brew or an iced chai latte, the unionized locations are at 36th & May and 23rd & Robinson.  It sounds like they could use the support.

Meanwhile, Starbucks workers and Amazon workers are changing the make-up of the union movement, as young people join in numbers the union movement has not seen in decades.  Starbucks and Amazon are among the country's top ten employers.  Union movements at those two companies can have a huge impact.  The National Labor Relations Board can only do so much to help.  Starbucks' anti-union strategy has precedents in the conduct of companies like Walmart, Boeing, and Chipotle, all of which shut down venues or departments or moved production to escape unionization.  The NLRB has its own problems: having been gutted during the Trump administration, its workload has now doubled.  The ability of a federal agency to stand up for American workers is yet another matter that will turn on the 2024 elections.  

In the meantime, unionization efforts are giving participants much more than work experience.  They are gaining self-confidence, empowerment, and a sense of community, belonging, and purpose.  Expect great things from these young people, who will contribute to our economy and to our political life much more than they would have done if their Starbucks experience were just about earning $15/hour.  That is, so long as their efforts are not crushed.

Kyler Murray Contract Kerfuffle

When we moved to Oklahoma, we decided not to get cable television.  As a result, the only sporting event I have watched live is the Tour de France (for whatever reason, I was able to subscribe to Peacock for free).  No regrets.  I might feel differently if any of teams Chicago team were any good, but if that day comes, I will re-visit.  Don't worry.  I'm not going to be self-righteous about this.  I have found other ways to use my time unprofitably.

Image by All-Pro Reels, CC BY-SA 2.0 
via Wikimedia Commons

Anyhoo, as I result, perhaps, I do not know who Kyler Murray is and I cannot comment on whether it made sense for the Arizona Cardinals to agree to pay him $230.5 million over the next five NFL seasons.  Nick Shook from Around the NFL offers this assessment of Mr. Murray's third NFL season:

At his best, Murray is a uniquely talented quarterback capable of dissecting a defense however he and coach Kliff Kingsbury desire. He's an electrifying player who is good enough to lead his team to great success; Arizona's 10-2 start last season was no fluke.

But the late-season production from both Murray and the rest of the Cardinals hasn't lived up to expectation. After spending a good portion of the 2021 campaign looking like the best team in the NFL, Arizona again entered a tailspin, losing four of its final five games -- including an inexplicable blowout defeat at the hands of the lowly Detroit Lions.

Apparently, there was some concern within the organization about Mr. Murray's level of commitment to the team, and so his contract included a requirement that he watch four hours of game tape per week.  Here's the provision in question.This clause elicited a lot of outrage.  The schoolmarmish tone of the provision sparked accusations that the clause was racially motivated, as evidenced here and here, as though Mr. Murray, a gifted Black quarterback, lacked discipline or commitment or some other qualities that would be assumed if he were white.  There was a predictable response in conservative  media (e.g., Breitbart and the Washington Times), in which the authors found absolutely no evidence of racism -- in Mr. Murray's contract, in the NFL, or in U.S. history generally.  But Mark Wilson is a Black sportswriter, and he agrees that the clause was more about green than it was about black and white.  He points out, as have others, that Mr. Murray himself suggested that he was not a big fan of game tape, as he stated to the New York Times last year: 

I think I was blessed with the cognitive skills to just go out there and just see it before it happens . . .  I’m not one of those guys that’s going to sit there and kill myself watching film. I don’t sit there for 24 hours and break down this team and that team and watch every game because, in my head, I see so much.

From Mr. Wilson's perspective, the Cardinals are investing $230 million in this athlete.  They are taking steps to make sure that he delivers on his promise.   

The Cardinals removed the clause from Mr. Murray's contract soon after it became public.  As Warren Moon pointed out, the damage is done.  As if Mr. Murray did not already have enough pressure on him, now he will also face questions about his pre-game preparations every time he throws an interception.

Now can we talk about the absurdity of paying young adults $46 million/year to play children's games when people who provide essential services -- day care workers teachers, nurses, home-health aids and other caregivers, therapists and counselors, etc. -- don't even get paid $50,000?

H/t John Wladis and my emeritus colleague, Michael Gibson.

Three Day Unjust Enrichment Event Down Under!

Sagi Peary of the University of Western Australia and Warren Swain (right)
of the University of Auckland have organized a three day symposium on Unjust Enrichment.

The Symposium will take place from September 14-16th.  The event features representation from 14 countries, and the papers will be published with the Oxford University Press. You can register for it here:  Each day's sessions are set at a time that is appropriate for a different portion of the world, with a Wednesday session set for 10 AM Perth time, a Thursday session, set for 10 AM in London, and a Friday session, set for 10 AM in New York.  The Symposium is part of a broader project described below:

THE RETHINKING UNJUST ENRICHMENT PROJECT

The Rethinking Unjust Enrichment project aims to collect a contrary range of views which question the dominant position of unjust enrichment. These essays are a collective expression of doubt. The contributions will cast doubt on the various parameters of the unjust enrichment movement from an analytical standpoint representing the following four interrelated perspectives: (1) historical; (2) sociological; (3) doctrinal; and (4) conceptual. In many ways, these parameters follow the trajectory of the intellectual development of unjust enrichment. The four-limb structure of Rethinking Unjust Enrichment enables us to understand the current problems of unjust enrichment on the deepest levels of its history, sociological forces, doctrinal fallacies and normative deficiencies. This treatment of the subject will provide the basis for a comprehensive reform across jurisdictions. 

The significance of Rethinking Unjust Enrichment can hardly be overstated. Private law provides the legal backbone for governing interpersonal interactions. It is relevant to almost every social setting. Private individuals, commercial actors and business organisations sell and purchase goods, are involved in financial transactions, commit negligent actions, own and manage property for others and so on. If one says that the law of unjust enrichment represents an independent private law category that co-exists with the traditional private law categories of contract, property and tort, this explains the  significance of this project. Introducing a new category, or even a new organising principle, into private law means that many interpersonal interactions could be affected by unjust enrichment and potentially trigger a legal response. This suggest that private law could not be properly understood and coherently function without grasping the nature and operative mechanics of the unjust enrichment principle.  

Rethinking Unjust Enrichment is timely and important for both sceptics and supporters of the unjust enrichment movement. It is valuable for the supporters as collects together for the first time a comprehensive account of some of the main criticism of the doctrine by the leading sceptics. Whilst the unjust enrichment movement celebrates the introduction of the principle into the UK’s (and other countries’) jurisprudence, Rethinking Unjust Enrichment will require supporters to reconsider their argument or at least to refine it. In contrast to the massive bourgeoning literature favouring unjust enrichment, the project does not take the principle for granted and challenges it in the most comprehensive, structural and multi-layered way. 

As for the sceptics, Rethinking Unjust Enrichment is important because for the first time it consolidates their voices. The project goes far beyond the UK and encompasses sceptical voices from the US, Australia, Canada, China, Singapore, Germany, Ireland, New Zealand, Hong Kong and South America. Furthermore, also for the first time, the perspective is inherently cross-disciplinary: it embraces historical, sociological, doctrinal and conceptual angles. It is believed that these multi-layered, cross-disciplinary (and yet closely interrelated) insights provide the most adequate way to critically grasp the nature of the unjust enrichment movement and to carefully contemplate the way forward. This point applies to all systems: those that adopted the organising principle, those that did not, and those that are yet to decisively commit.

Seventh Circuit Revives COVID-Cancellation Suit Against Loyola Chicago

It has been a while since we had one of these cases to report on.  Lately, it seems, the cases that are still around have some legs, or else we have reported on settlements.  The story is not new.  Loyola shut down its campus in March 2020 in response to the global COVID (left, in its 2020 variant) pandemic.  Students sued, seeking a refund of a portion of their tuition and fees.  Last month, reversing the District Court in Gociman v. Loyola University of Chicago, a 2-1 panel of the Seventh Circuit found that plaintiffs had stated a claim under Illinois law for breach of contract, and it allowed them to amend their alternative claim for unjust enrichment.

These cases turn on specific facts.  Here, the most relevant facts seem to be that Loyola charged about twice as much in tuition and fees per credit for in-person education as it did for online education.  After it closed its campus, Loyola refunded some, but not all, fees, and issued a partial refund for room and board.  The Seventh Circuit noted that many courts in the Circuit had dismissed similar cases, but it also cited cases from other Circuits and one from the Seventh Circuit in which the claims had been allowed to proceed.

Moving to the substance, the Court rejected Loyola's argument that plaintiffs were essentially alleging educational malpractice, which is not cognizable under Illinois law.  Taken as a whole, the Court found that plaintiffs had alleged an implied-in-fact contract.  In exchange for tuition, plaintiffs alleged that Loyola, through its course catalogue, promised to provide in-person instruction in certain courses.  The fact that the catalogue contained disclaimers was insufficient to  justify dismissal.  A trier of fact would have to determine whether the general disclaimer covered the pandemic.  In addition, the course catalogue may have given rise to a reasonable inference of a promise to provide in-person education. 

The Court also found that plaintiffs had sufficiently alleged breach of contract with respect to student development fees and technology fees.  The plaintiffs' unjust enrichment claim was dismissed due to a pleading error.  However, now that the breach of contract claim has been reinstated, plaintiffs may address that error in an amended pleading.

Judge St. Eve dissented from the reinstatement of plaintiffs' breach of contract claims.  Her analysis hinged on a distinction in Illinois law between two types of implied contracts in the educational context.  "Specific promise" implied contracts require that the student "identify the specific source of the purported implied contract and the precise promise the institution made."  "Fundamental promise" implied contracts are "vanishingly rare," having been recognized only the context of matriculation and graduation.  Judge St. Eve faults the majority for conflating the two categories, and she finds that plaintiffs have not adequately alleged either.  Although Loyola's catalogue is filled with references to specific classroom or laboratory spaces, such language reflects only the school's "prediction or hope."   Such language is unenforceable under Illinois law.  

Judge St. Eve provides a compelling argument under Illinois law.  The majority dismisses her distinction between specific and fundamental promises in a footnote, suggesting that the distinction was not intended to be a doctrinal instrument for sorting cases.  This would be an interesting subject for a student note, and I have no idea whether the majority or dissenting opinions get Illinois law right.   I can only note that, Judge St. Eve treats both categories of promises as implied promises, but her description of "specific promise" implied contracts strongly suggests that such promises must be express.  Judge St. Eve might well be right about what Illinois law says, but if it says that implied promises that universities make to students must be express in order to be enforceable, the law of Illinois on this subject is an . . .