ContractsProf Blog

A World in Which People Don't Know Contracts Law

A student shared with me this story from one of our local news stations about a make-up artist.  Natalie Clydesdale from KFOR reports that two brides-to-be hired a make-up artist for their weddings.  They arranged for the artist's services months in advance and paid in advance.  The contract, a slightly-amended version of which is provided at right, provided for a penalty should the bride cancel within 48 hours of the event:

[S]hould the client change their mind before wedding date or a cancellation should happen, they will notify the artist as soon as possible, no later than 48 hours before date to receive a refund (minus deposit or $50 admin fee) and/or change the date.” 

Given the transaction as described, this language is a bit confusing.  As the clients are said to have paid in advance, it is not clear what deposit they might recover, but the best reading, I think, would be that they are entitled to recovery of full payment minus $50.  

The contracts at issue in the story were apparently silent about what should happen were the make-up artist to cancel.  The language in the contract above right is also somewhat confusing.  

If the makeup artist is sick or unable to attend for any reason, they shall make a reasonable attempt to hire a replacement artist. (I have assistants that will replace me should that happen).

So I suppose the client will be held to have agreed in advance to the delegation of duties in a contract for personal services.  Not ideal in a contract of adhesion, but the contract is not long or complex, and there is a duty to read, so fair enough, I suppose.  But what if the artist's reasonable attempts to hire a replacement artist fail?  

That question did not arise in the cases reported on, because there seem to have been no attempts, reasonable or otherwise, to find a replacement.  Rather, the artist canceled with very little notice.  On one occasion, the artist double-booked and then offered to do make-up at 1 PM instead of 10 AM as provided for in the contract.  The artist said that it is heartbreaking when they have to cancel on a client.  Apparently not as heartbreaking as providing a refund.  I assume it is much more heartbreaking for the client.  Imagine learning two days before your wedding that, in addition everything else you have to do, you now also have to scramble for a new make-up artist.  And then you have to live with the knowledge that you hired somebody so inconsiderate that they would ask you to reschedule your wedding because they had double-booked.

On the other occasion, the artist claimed to be unable to do the work because they had become infected with COVID.  The bride in question, who had just over two-days' notice, claims that the artist posted pictures on social media indicating that they had in fact double-booked again and provided make-up services for another event the day they were supposedly incapacitated with COVID.  The artist has withheld part of the contract price because they had a provided a trial for the clients.

Where a contract provides for no special remedy for breach, the standard remedy should be available.  The artist was unjustly enriched when they accepted payment for services that they did not provide.  It follows that the money must be returned in full, as the contract makes no mention of treating the cost of a trial as a deposit.  On the contrary, where the contract provides that a client cannot recover a deposit if they cancel, the absence of language relating to the deposit if the artist cancels suggests that the default remedy, restitution, should apply.  So if you did not contract in advance for a fee for the trial, you do not get paid for that lost leader.

One of the brides was able to mitigate her damages by finding a substitute make-up artist.  If that last-minute substitute was more expensive than the original artist, in addition to restitution, she is also entitled to expectation damages, amounting to the difference between what she paid for the replacement and the original contract price.  

On Facebook, the artist acknowledges "mistakes" and complains about "completely false and untrue accusations of scamming."  Well, perhaps such accusations exist somewhere on the web, but the KFOR report is just about breach of contract.  People get upset about breaches of contracts for personal services.  If you don't pay appropriate damages, you should not be surprised if your clients complain about you publicly.  In these cases, amounts in controversy are quite small and thus probably not worth the hassle of a law suit.  But social norms supplement legal norms.  The brides thus appropriately chose naming and shaming as their remedy.

The artist could have avoided all of this with a more even-handed remedies provision or by simply doing the obviously just thing of providing a full refund to the people on whom they canceled without reasonable notice.

Reflections on Twitter, the Bird that Has Been Flipped*

Years ago, I encountered a colleague who was on Twitter, and I asked him why he was on Twitter.  He said it was a great way to keep up with the news.  I said something snide and haughty like, "We're scholars, not journalists.  Nothing turns on whether we get our news at 2 PM or when it comes out in the papers the next morning."  

Years later, I was writing about originalism in constitutional interpretation, and I learned that some of the scholars I liked the most in that field were on Twitter.  When I asked them why, they told me that interesting conversations were happening there.  I was very surprised to learn that these law professors at top institutions were having conversations in 280-character increments.  I lurked a bit.  Still, I didn't join.

But when we re-launched the Blog in 2020, I thought it might help us gain readers if we had a linked Twitter account, and so I joined.  Now I check Twitter frequently during the day.  I do indeed use it precisely as my colleague from years ago recommended -- as a news aggregator -- and also as my colleagues in the field of constitutional history and law recommended -- as a place to have scholarly exchanges with colleagues.  

Twitter has a bad reputation.  It is a time sink hole; that part is true.  But I also find wonderful things there.  Frequently, I share some video or image with my wife, and she says, "How did you find this?"  Twitter is the answer.  I have not experienced the bad side of Twitter.  People with whom I interact on Twitter engage in civil discussion and share slices of life.  I don't think there has been a time in my academic career when I have felt more connected to what people in my field(s) are talking about.  It is a great way to bridge the gap between conversations in the Legal Academy and the Other Legal Academy.  Sometimes, people disagree with me in unpleasant ways.  I respond civilly and make sure that they know that while they are insulting me, I am engaging with them respectfully.  Sometimes that changes the conversation.  If it doesn't, the conversation ends.  I don't feed trolls, and as a result, my encounters on Twitter do not involve escalating insults and invective.  It's a pretty simple formula, and it works.  

That all might change now that Elon Musk has acquired Twitter.  I do not like him, and I do not think he will improve my experience of the site/app, but he likely will make it more profitable.  I don't play poker, but for a brief period I played in a neighborhood game.  The rule was that we topped out at $20.  One day, I was playing with a person who prided himself on his poker prowess.  I was a novice.  We went a few rounds of bidding, and then he threw down a 20.  I had a good hand and I suspected that he was bluffing.  The rest of the table oohed and aahed and someone gasped admiringly, "nice play."  I folded.  I didn't think it was a "nice play."  I thought it was a violation of the spirit of the game, and I am comfortable with my penis size, or my income, or whatever it was about.  

Musk is that guy.   He must have been good at something at some point because he's very rich.  But now it's not about skill, because not much is left to chance.  He will win because he can force others to fold. 

I continued going to my neighborhood card game for a while because there was one guy in the group whom I liked, and it was a nice opportunity to see him.  I was also close with his wife, and it annoyed me that no women were invited to the game.  Eventually, he and I got together in other contexts with our wives.  We had daughters who were close in age.  I stopped playing poker.

For now, I will maintain the Blog's Twitter feed.  I think it has helped the Blog (although who knows?), and I enjoy interactions with legal academics and occasionally with students on the site/app.  If Musk ruins it for me, I will leave and find new ways to socialize with my friends from Twitter.

*Thanks to LawProfBlawg for the title of today's post.

A Unilateral Contract for Ten Years of Free Meals at Balthazar?

By Ibsan73 - James Corden at the TV Baftas 2014, CC BY 2.0

Thanks to two students, I know that James Corden (left) exists and has recently earned a reputation for being abusive to servers.  The latter characteristic (well, both, I suppose, as he could not be obnoxious if he did not exist) got him banned from Balthazar, a popular Soho brasserie that opened in 1997.   My students shared with me this thread from Buzzfeed, a site I think I've known about for decades but have never before visited.  Its format is bewildering and a bit hard to take seriously as journalism.  

If we take Buzzfeed at its words, it appears that Mr. Corden was banned from Balthazar for abusive behavior.  He then apologized to the owner Keith McNally, but McNally apparently kept the ban in place, writing that "if James Corden lets [sic] me host his Late Late Show for 9 months, I’ll immediately rescind his ban from Balthazar. No, of course not."  But Mr. Corden also told the New York Times, "I haven’t done anything wrong, on any level."  Mr. Corden seems a bit baffled by the entire episode.  He has built up a reputation for years as an affable and cordial host.  He is not known to be petulant or high-maintenance.

Mr. McNally could have left things at that, but instead he served up the following mix of puerile insult and a potential offer to enter into a unilateral contract

I wish James Corden would live up to his Almighty initials and come clean. If the supremely talented actor wants to retrieve the respect he had from all his fans (all 4 of them) before this incident, then he should at least admit he did wrong. If he goes one step further and apologizes to the 2 servers he insulted, I’ll let him eat for free at Balthazar for the next 10 years.

Two OCU 1ls, Justine Sandoval, who really did all the work, and Melody Parra, who mostly just provided comic counterpoint to Justine's material, disagreed as to whether an offer had been made.  Based on what was originally presented, it seemed to me that Mr. McNally had made an offer that Mr. Corden could accept by providing the requisite public apology.  After all, Mr. McNally owns the restaurant, and he certainly has the ability to feed Mr. Corden for ten years if he so wishes.  Moreover, Mr. McNally might be playing up this little drama for all its worth in terms of free publicity for his restaurant, so perhaps ten years of enhanced notoriety is something Mr. McNally desires for his restaurant.  If Mr. Corden is indeed as mercurial as Buzzfeed would have us believe, tourists might flock to the restaurant in the hope of seeing the next episode in this food fight.  

On the other hand, this is not the first offer Mr. McNally has made in this exchange, and he quickly clarified that his first offer was a joke.  Does that make us more inclined to view this second offer as a joke, or should we read the absence of a disclaimer in the second offer as signaling sincere intent to enter into legal relations?

Now, the New York Times has weighed in, stressing that Mr. Corden has a reputation to maintain if he wants to enjoy continued success as a "relatable" host.  Mr. Corden has issued an apology.  Despite noting that his order was messed up three times, including in a way that would have triggered his wife's allergies, Mr. Corden uttered the magic words, "I made a sarcastic, rude comment . . . It was an unnecessary comment. . . . It was ungracious."  The Times story does not address the possible unilateral offer.  Mr. Corden likely will give Balthazar a wide berth.

I advise readers to exercise caution when ordering an egg-yolk omelette at Balthazar.

Mid-Week Frivolity: Dude, Where's My Harrier? The Documentary

I'm trying to abstain from blogging, but Netflix is making it too easy.  

One of my students thinks it should have been called Pepsi Done Me Dirty

I stand by my Limerick:

Intent to be bound is a barrier
To Leonard receiving a Harrier
Now he only drinks Coke
And he gets every joke,
But I would not say he's much merrier.

 

Weekend Frivolity: Content Returning Soonish

Recovering from grading, interviewing and participating in student org panels.  Hope to return to blogging one day soon . . . 

Tuesday Top Ten - Contracts & Commercial Law Downloads for October 18, 2022

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 19 Aug 2022 - 18 Oct 2022

Rank	Paper	Downloads
1.	The Private Law of Stablecoins Kara J. Bruce, Christopher K. Odinet and Andrea Tosato University of Oklahoma College of Law, University of Iowa - College of Law and University of Nottingham, School of Law	1,856
2.	National Security Creep in Corporate Transactions Kristen Eichensehr and Cathy Hwang University of Virginia School of Law and University of Virginia School of Law	222
3.	The Restatements as Law Frederick Schauer University of Virginia School of Law	220
4.	Lost Synergies and M&A Damages: Considering Cineplex v. Cineworld Jonathan Chan and Martin Petrin UCL and University of Western Ontario	213
5.	Enforcing Comparable Treatment in Sovereign Debt Workouts Lee C. Buchheit and Mitu Gulati Center for Contract and Economic Organization and University of Virginia School of Law	208
6.	The Market for Corporate Criminals Andrew Jennings Brooklyn Law School	135
7.	Unbundling Business Bankruptcy Law Melissa B. Jacoby University of North Carolina School of Law	131
8.	Understanding Private Law Felipe Jiménez USC Gould School of Law	122
9.	Teaching Slavery in Commercial Law Carliss Chatman Washington and Lee University School of Law	113
10.	Fake and Real People in Bankruptcy Melissa B. Jacoby University of North Carolina School of Law	102

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 19 Aug 2022 - 18 Oct 2022

Rank	Paper	Downloads
1.	The Private Law of Stablecoins Kara J. Bruce, Christopher K. Odinet and Andrea Tosato University of Oklahoma College of Law, University of Iowa - College of Law and University of Nottingham, School of Law	1,856
2.	The Restatements as Law Frederick Schauer University of Virginia School of Law	220
3.	Lost Synergies and M&A Damages: Considering Cineplex v. Cineworld Jonathan Chan and Martin Petrin UCL and University of Western Ontario	213
4.	Unbundling Business Bankruptcy Law Melissa B. Jacoby University of North Carolina School of Law	131
5.	Understanding Private Law Felipe Jiménez USC Gould School of Law	122
6.	Teaching Slavery in Commercial Law Carliss Chatman Washington and Lee University School of Law	113
7.	The Canon of Evolving Law John F. Coyle University of North Carolina School of Law	90
8.	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	79
9.	The NIL Glass Ceiling Tanyon Boston Northern Kentucky University	58
10.	A New Theory of Impossibility, Impracticability, and Frustration Yehonatan Givati and Yotam Kaplan Hebrew University of Jerusalem - Faculty of Law and Bar-Ilan University - Faculty of Law	49

Weekend Frivolity: The Four Seasons Performed as an Ode to Joy

 

The Family Feud with Hila Keren Continues . . .

The Author, recovering

Thanks to Hila Keren for her response to my thoughts on 303 Creative.  As indicated at left, in addition to giving me a shiner, she seems to have knocked my beard off.  Hila has thought much more deeply than I have about the harms suffered by people who are excluded from markets, and I hope that she will consider writing (if she has not done so already) an amicus brief that might help the Court think about these issues as it presses forward with 303 Creative. 

I start with a clarification and then I have four challenges for Hila.

The clarification: I did not mean to adjudicate the merits of the case in my earlier post.  That’s not how the rights mediation approach, as I understand it, operates, as the adjudication of each case requires a careful consideration of all of the relevant rights and interests, and 303 Creative does not provide the basis for such adjudication.  I think the petition was improvidently granted.  That said, I think Hila has done an outstanding job specifying the seriousness of the harms people suffer when excluded from what she has called, quite aptly, market citizenship. 

Challenge #1: Part of the problem of rights absolutism is that under current doctrine the harms that Hila identifies are not legally cognizable, as far as I can tell.  Contracts rights lose out, and it’s not much of a fight, when opposed to First Amendment rights, whether those rights sound in freedom of expression or Free Exercise. 

Challenge #2: While Hila has ably described the harms suffered by LBGTQ+ people excluded from market citizenship, she has not (at least not here) weighed the countervailing interest in not being compelled to speak.  In order to clarify how significant that interest could be in a situation like this one, permit me to borrow a hypo that Eric Segall posed to Brian Leiter in an episode of his Supreme Myths podcast. 

Imagine if instead of web design, 303 Creative was a business entity created by a singer who specializes in singing religious songs for weddings.  A same-sex couple may have heard the singer at a wedding.  They found the singing moving and beautiful, and they wanted it for their wedding, because they share (or think they share) the singer’s Christian beliefs.  But the singer believes that same-sex marriage is sinful and a desecration of a sacrament.  The singer’s interest in not being compelled to sing for a same-sex wedding seems quite substantial to me, and I think it would be very challenging for a court to weigh the psychological torments of exclusion from market citizenship against those of forced performance in this instance.  One advantage, at least to me, of the rights mediation approach, is that it is very hard to know in advance how the case is going to come out. Even if it comes out one way on one set of facts, it could come out differently in the next case, and the next, and the next.  So the law progresses by slow accretion of precedent rather than through the Blitzkrieg of impact litigation.

Challenge #3: I can’t be saying what Justice Alito is saying.  I just can’t.  There are real differences between the sorts of harms that arise in face-to-face transactions and those that arise on the Internet.  Hila’s humiliation studies are based on “acts of intentional and public rejection.”  Well, there it is.  Being told face-to-face or even over the phone by a baker that he won’t make a cake for your wedding is utterly different from finding out that a website won’t host your wedding site.  It is not public, it is not personal, and it may not be intentional, in that it is not directed at any particular person.  I could be wrong about this, but I don’t think Hila’s scientific evidence addresses virtual interactions.  I think about what my LGBTQ+ family members would do if they were seeking out web-hosting services.  They would find one owned and operated by like-thinking people, and they would feel validated and supported by that.  If their search turned up sites like 303 Creative, they would be no more put out than they already are by the knowledge that not everyone is on-board with treating all people with equal dignity and respect.

Challenge #4 (here the gloves come off): I think that Hila mistakes the lex ferenda for the lex lata when it comes to the common law of freedom of contract.  As I understand it, common law freedom of contract protects the rights of the web designer to form contracts only with people who share her religious values.  In my view, the solution here does not lie in the common law doctrine of freedom of contract but in statutory solutions which actually restrict freedom of contract in that they permit the state to compel people, as Colorado seeks to do here, and as 42 U.S.C. §1981 does, into contracts with people they might otherwise choose to avoid.  I’m happy to insist on the ability of people to contract with others, but when I do so, I am engaged in law reform activities rather than upholding the freedom of contract.

Hila has responded to. all of these points in advance in her recent publications:

• Separating Church and Market – a full article about the the Alliance Defending Freedom’s new strategy to sue without dispute with real human beings. This article also covers the corporate entity argument and includes the need to make sure that everyone has freedom to make contracts, in part based on the 13^th amendment;
• Slate shorter piece focusing particularly on 303 Creative going to SCOTUS; and
• Market Humiliation – zooming out and explaining how the humiliation problem is not only with LGBTQ and religious people but also with racist practices making shopping while black into a nightmare, disabled people not served by Uber, large people abused at work, and more. This piece explains how collectives (entire groups, not only those humiliated) are harmed. It is forthcoming with Loyola (and made it onto an SSRN Top Ten list featured on the blog quite recently).

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

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 12 Aug 2022 - 11 Oct 2022

Rank	Paper	Downloads
1.	The Private Law of Stablecoins Kara J. Bruce, Christopher K. Odinet and Andrea Tosato University of Oklahoma College of Law, University of Iowa - College of Law and University of Nottingham, School of Law	1,760
2.	Teaching Indian Law in the 21st Century Matthew L. M. Fletcher University of Michigan Law School	259
3.	The Restatements as Law Frederick Schauer University of Virginia School of Law	216
4.	Enforcing Comparable Treatment in Sovereign Debt Workouts Lee C. Buchheit and Mitu Gulati Center for Contract and Economic Organization and University of Virginia School of Law	185
5.	Lost Synergies and M&A Damages: Considering Cineplex v. Cineworld Jonathan Chan and Martin Petrin UCL and University of Western Ontario	178
6.	National Security Creep in Corporate Transactions Kristen Eichensehr and Cathy Hwang University of Virginia School of Law and University of Virginia School of Law	174
7.	The Market for Corporate Criminals Andrew Jennings Brooklyn Law School	129
8.	Teaching Slavery in Commercial Law Carliss Chatman Washington and Lee University School of Law	111
9.	Understanding Private Law Felipe Jiménez USC Gould School of Law	111
10.	Unbundling Business Bankruptcy Law Melissa B. Jacoby University of North Carolina School of Law	108

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 12 Aug 2022 - 11 Oct 2022

Rank	Paper	Downloads
1.	The Private Law of Stablecoins Kara J. Bruce, Christopher K. Odinet and Andrea Tosato University of Oklahoma College of Law, University of Iowa - College of Law and University of Nottingham, School of Law	1,760
2.	The Restatements as Law Frederick Schauer University of Virginia School of Law	216
3.	Lost Synergies and M&A Damages: Considering Cineplex v. Cineworld Jonathan Chan and Martin Petrin UCL and University of Western Ontario	178
4.	Teaching Slavery in Commercial Law Carliss Chatman Washington and Lee University School of Law	111
5.	Understanding Private Law Felipe Jiménez USC Gould School of Law	111
6.	Unbundling Business Bankruptcy Law Melissa B. Jacoby University of North Carolina School of Law	108
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	77
8.	The Canon of Evolving Law John F. Coyle University of North Carolina School of Law	76
9.	Sticky Omitted Choice-of-Law Clauses: The Case of Heir Hunters David Horton University of California, Davis - School of Law	42
10.	Time's Up: Against Shortening of Statutes of Limitation by Employment Contract Meredith R. Miller Touro University - Jacob D. Fuchsberg Law Center	40

 

 

Guest Post from Hila Keren Responding to Yesterday's Post on 303 Creative

Freedom of Contract and Market Citizenship at SCOTUS
Hila Keren

I am very grateful for Jeremy Telman's recent contribution to this blog, which explains how 303 Creative v Elenis—soon to be heard by SCOTUS—is related to the world of contracts and contract law. I have studied the case and its context and written about it to general and legal audiences. All in all, my work offers much support to the fine points Jeremy makes. However, I write here today because there is one point about which I am afraid I have to disagree with Jeremy, and it is a significant one.

I believe it is a mistake—and a contractual mistake—to distinguish between refusals to sell cakes and refusals to design websites. The difference that Jeremy highlights is based on the question of whether interested clients have easy access to other providers. If one cannot get a cake from the best cake shop in a small town, "that's genuine hardship," the argument goes. But, the case is different, and the harm is smaller—the reasoning continues—when there are enough web designers on the globe willing to serve LGBTQ people, "even if dozens or even hundreds" reject them. 

Of course, this logic is not new. Since we are talking about the commercial sphere, it is tempting to think about the issue in economic terms and to think that as long as the free market can supply the demand for goods and services, there is little to no problem. Conservatives have been making this argument for decades. Indeed, in a speech to the Federalist Society, Justice Alito (left) went as far as to say that the same-sex couple rejected by the Colorado bakery that brought us the decision in Masterpiece Cakeshop got lucky. According to Alito, the religious baker did not harm anyone because "[t]he couple that came to his shop was given a free cake by another bakery . . . .".

But, the critical point missed by this economic rationality is that those refusal-to-deal cases are never about the denied products or services. Instead, they are about freedom of contract: the freedom of all of us to participate in the marketplace as equals without experiencing humiliation. When a business open to the public (even if operating online) declares that certain clients are undesirable and will not be served, the business is intentionally targeting these clients' identities, publicly claiming that they deserve fewer market choices than other members of society. This is, therefore, an act of humiliation. It expresses hostility towards some people and marks them as inferior to most people, those who can freely contract with all the businesses they can afford to pay to. To those so humiliated, access to similar goods or services elsewhere does not offer any comfort at all. Such is the case because the problem was never a matter of supply and demand.

Instead, as the dissent in a similar case in Arizona noted, "if businesses can selectively treat some customers as second-class citizens," then "humiliation and stigma" follow. Such humiliation and stigma are inflicted by the offensive signs that businesses like 303 Creative seek to put out, declaring "no same-sex couples." How hard is it to see the similarity of such signs to those used by businesses in the dark past against other groups? It is this humiliation that we now need to focus on and refuse to take lightly.

If you need scientific support for this last point, please allow me to share that outside of the legal arena, humiliation studies empirically show that acts of intentional and public rejection induce a particularly intense and painful emotion that is also long-lasting. Plus, this emotion does not stop at specific individuals; it further spreads through a process known as "collective humiliation" to other members and allies of the targeted group. Moreover, many studies also teach us that humiliation is not merely a long-lasting emotional scar. It also leads to mental health complications, depression, and even suicide. So, before anyone considers "that dignitary harms could bow to Free Exercise rights," we must pause. Are we really ready to allow businesses to inflict such colossal harm on others?

In this debate, and to contract law people like the readers of this blog, the fact that businesses like 303 Creative are routinely profiting from using contracts and relying on their enforcement in courts should lead the analysis. Why should they be allowed to impede the contractual choices of those they see as objectionable while they are free to use the contractual system and benefit from it? I have argued elsewhere and want to repeat here that the right to dignified participation in the marketplace is an important aspect of our citizenship. I have called it "market citizenship." What it means is that 303 Creative, and any other business benefitting from contracts, cannot use the rights that come with market citizenship without accepting the duties it entails. Contract law, and not only nondiscrimination laws, should be operated to guarantee dignified contracting. It has no business telling LGBTQ people that as long as they can get what they need elsewhere, contract law will stay silent.

If we do not protect market citizenship for all and insist that everyone hold the exact scope of contractual rights, we will open the door to more business refusals presented as "speech." Before we know it, too many people will have to search the market for quite a long time to find someone who doesn't hate them for who they are. It is not enough to say that "gay couples don't have to and shouldn't want to patronize businesses that hate them." Similarly, insisting on a market fully open for all is far from being "a fight over a right that nobody would want to exercise." Instead, defending market citizenship should be a cause supported by contract law lovers. If we will not insist on people's ability to contract with others (as long as they can keep their promises), who will?

Contracts and the First Amendment in SCOTUS: 303 Creative

I'm still planning to keep a low profile on the blog for October, but I wanted to get this post up while I'm thinking about it.  For those of you who are planning to attend Loyola Chicago's annual Constitutional Law Colloquium, this is a sneak peek.  But also, if you are attending that conference, what are you doing on a contracts blog?

Anyhoo, this is yet another in a series of posts on the interplay between the First Amendment and contracts law in the Supreme Court.  We've touched on this topic recently in discussing NetChoice v. Paxton here and here, in discussing the Rosati v. LIRR case here, and in discussing a challenge to Arkansas Act 710 here.  A post from earlier this year about SCOTUS's shadow docket opinion in the Navy Seals case, which links to the others can be found here.  Holy crap.  That's a lot of posts.  I think I'm pretty close to a law review article.  

I have written one such article, which is the first in a planned series of articles in which I attempt to channel  Jamal Greene's How Rights Went Wrong and argue that First Amendment rights are not absolute and that contractual rights and interests should also play a role in adjudication of constitutional disputes. One of Professor Greene's key points is that our jurisprudence elevates certain rights as "fundamental," and courts protect those rights zealously through heightened scrutiny.  Other rights, including contracts rights, have been left nearly entirely unprotected since 1937 or thereabouts.  

Early in this project, I noticed the oddity of Fulton v. City of Philadelphia, in which the Court ordered the City to continue its contractual relationship with Catholic Social Services (CSS) in violation of its non-discrimination policy, despite CSS's policy of discriminating against same-sex married couples.  This term, with 303 Creative v. Elenis, we will come full circle.  The Court will have an opportunity to settle an issue that it ducked in Masterpiece Cakeshop; that is, whether a service provider can be compelled by a local ordinance to provide services to all comers, notwithstanding opposition to their LGBTQ+ status.  

The case is remarkable on a number of levels.  The issue in this case is whether requiring 303 Creative to provide web design for same-sex weddings constitutes impermissible compelled speech in violation of the First Amendment.

First, 303 Creative should not have standing.  The record reflects no evidence that 303 Creative has ever created a website for any wedding let alone for a same-sex couple.  You might think it shouldn't matter.  Perhaps the parties think it shouldn't matter, as Colorado does not seem to have contested standing in the lower courts.  But a court engaged in Jamal Greene style rights mediation should care, because the extent to which 303 Creative may be  compelled to speak may depend on what the company is asked to do. And that requires an inquiry into the specific facts of the specific case or controversy.  Here, we have none.

Assume, for example, that 303 Creative has already created a web design for the marriage of Adam and Eve.  Suppose Adam and Steve come along and say, "We really love what you've done for Adam and Eve, can you just add an 'St' in front of Eve and provide us a URL to send to our friends and family?"  That might be closer to content curation than to expression, and as far as the Fifth Circuit is concerned, content curation is really conduct rather than speech and is an appropriate target for state regulation.  

On the other side, returning to Jamal Greene's rights mediation model, to me, web design is distinguishable from a cake shop.  If you are a same-sex couple in a small town, you might not have very many cake shops to choose from.  If the best cake shop in town discriminates, that's a genuine hardship.  But web design is global.  Even if dozens or even hundreds of websites choose not to host same-sex marriage sites, there are plenty of others, and I'm guessing there are some that are niche and 🔥🎉fabulous🎉🔥!  Someone out there has a link so that you can book Randy Rainbow as your wedding singer.  I'm not sure the harm wrought by 303 Creative's discriminatory purpose is comparable to that caused by Masterpiece Cakeshop's refusal to serve same-sex couples.  And so even I might say that dignitary harms could bow to Free Exercise rights (because that's what this really is) in this case.  Also, gay couples don't have to and shouldn't want to patronize businesses that hate them, so why fight over a right that nobody would want to exercise except for trolling purposes.

Second, the case is a weak Free Exercise claim masquerading as a Free Speech claim.  The case was brought by the same law firm that represented Masterpiece Cakeshop.  As 303 Creative's website makes clear, its principal opposes same-sex marriage because of her Christian beliefs: "[W]hile I will serve anyone I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs."  The Supreme Court did not take the Free Exercise claim, which would force a showdown on Employment Division v. Smith for which the Court may not yet be ready.  But why bring a tricky Free Exercise claim when it is so easy to win on a free speech claim?  Thanks, rights absolutism!

Third, as an amicus brief filed by BU law prof Kent Greenfield in the case argues, 303 Creative has no beliefs and therefore is entitled to no protections.  Yes, I know, Hobby Lobby, but that was a statutory case that turned on the definition of "person" in RFRA.  This is about rights arising directly under the First Amendment.  Under current absolutist doctrine, corporations must have free speech rights, because newspapers have free speech rights.  This is the danger of treating what is really a Free Exercise claim as a Free Speech claim, because while the principal of this corporation has Free Exercise rights, it's not clear that the corporation does or should.  She derived certain benefits from the corporate form.  There ought to be some reciprocal costs, like having to abide by anti-discrimination legislation.  Also, if we are talking free speech rights and engaging in rights mediation, we could take note of the obvious.  Newspapers have as their essential purposes the communication of ideas, including the political views of the newspaper's editorial board.  Website design companies have a different corporate purpose, and so constitutional protections for their free speech rights could differ significantly from constitutional protections for newspapers' free speech rights.  Rights absolutism prevents common-sense reasoning and leads to the dumbing down of our public discourse about the ways in which we need to protect speech.

But ultimately, what interests me about this case for the purposes of blog is that this case, seen together with Fulton, illuminates the strange world and strange world view we will have arrived at when the Court finds, as it certainly will, that Colorado cannot compel 303 Creative to do web design for a same-sex couple.  The Court will have held that some corporations (Philadelphia) can be compelled to contract with corporations whose religious beliefs lead them to discriminate against gay couples but that gay couples (actual natural persons) cannot compel a corporation to contract with them.  

O tempora, o mores!

Tuesday Top Ten - Contracts & Commercial Law Downloads for October 4, 2022

Welcome to your weekly fix of the exquisite goodness of scholarship in our objectively favorite fields of contract law and commercial law! Let's see the current top offerings on SSRN, where we first notice the stability of Stablecoins holding down the top spot (Kudos to Professors Bruce, Odinet, and Tosado!). But wait, there's more:

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 05 Aug 2022 - 04 Oct 2022

Rank	Paper	Downloads
1.	The Private Law of Stablecoins Kara J. Bruce, Christopher K. Odinet and Andrea Tosato University of Oklahoma College of Law, University of Iowa - College of Law and University of Nottingham, School of Law	1,656
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	434
3.	Teaching Indian Law in the 21st Century Matthew L. M. Fletcher University of Michigan Law School	244
4.	The Restatements as Law Frederick Schauer University of Virginia School of Law	208
5.	Lost Synergies and M&A Damages: Considering Cineplex v. Cineworld Jonathan Chan and Martin Petrin UCL and University of Western Ontario	147
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	122
7.	The Market for Corporate Criminals Andrew Jennings Brooklyn Law School	112
8.	Teaching Slavery in Commercial Law Carliss Chatman Washington and Lee University School of Law	110
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	74
10.	Market Humiliation Hila Keren Southwestern Law School	56

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 05 Aug 2022 - 04 Oct 2022

Rank	Paper	Downloads
1.	The Private Law of Stablecoins Kara J. Bruce, Christopher K. Odinet and Andrea Tosato University of Oklahoma College of Law, University of Iowa - College of Law and University of Nottingham, School of Law	1,656
2.	The Restatements as Law Frederick Schauer University of Virginia School of Law	208
3.	Lost Synergies and M&A Damages: Considering Cineplex v. Cineworld Jonathan Chan and Martin Petrin UCL and University of Western Ontario	147
4.	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	122
5.	Teaching Slavery in Commercial Law Carliss Chatman Washington and Lee University School of Law	110
6.	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	74
7.	Market Humiliation Hila Keren Southwestern Law School	56
8.	Sticky Omitted Choice-of-Law Clauses: The Case of Heir Hunters David Horton University of California, Davis - School of Law	42
9.	Contractual Symmetry: A Doctrinal & Economic Analysis Jens Dammann University of Texas at Austin - School of Law	37
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

 

Lighter Posting

Expect things to be quieter in the coming weeks.  It is midterm season and time that might be devoted to writing will be devoted to grading and commenting on student work.  In addition, I am the chair of the hiring committee at my law school, and the hiring season is heating up for us.

If any of our readers have been contemplating a guest post, now would be an ideal time to provide us some easy-to-post content.