ContractsProf Blog

Introducing: the Ladies Who Law School Podcast (LWLS)

Ever since I listened to the first season of Serial, I have thought it would be great to do a podcast called 1L.  It would track the experience of a group of law students through their first year of law school.  Not Harvard.  Not Yale.  Ordinary law students at an ordinary law school, experiencing what all law students experience, but not stepping into the same river twice.  

The podcast exists!  And it has been shockingly close for the past two years.  Two recent graduates of my law school, the Oklahoma City University School of Law, started podcasting about their experiences in January 2020.  The podcast is called Ladies Who Law School (LWLS), and it is even better than I imagined it would be.  I have yet to meet the two hosts, Samantha Lemke (left) and Haylie Davis (below, right).  I only learned of the podcast at their graduation, but I have started listening, and there is so much of value here!  I am five episodes in, and I want to share some of what I have learned.  I will post occasionally as I come across more content of interest to followers of this blog.   

I want to stress is that this blog is so very useful:

• for students considering law school;
• for students just starting law school;
• for students who are in law school but want to hear from people who are sharing some of their experiences; and
• for law professors, who so rarely get to hear honest conversations about what law school is like for our students

They launched the podcast just after having received their first-year grades.  They relate some experiences that, I have to admit, highlight some problematic features of legal education.  They amaze me with their complete lack of bitterness.  In the first episode, we learn that neither of them had any graded assessments in any of their doctrinal courses before the final exams.  In addition, they report that one of their exams had a skills component that caught them by surprise.  Their take-away: anything covered in the course is fair game for the final.  We as law professors should be grateful for students like Samantha and Haylie who  accept that challenges we throw at them.  

I am not a fan of winner-take-all final exams, especially not in the first semester of law school. That said, I also know that there are a lot of different ways to be an effective law professor.  I just think it is unfortunate if students are only exposed to one approach, and I feel like we let down our first-year students if none of them got any graded, substantive feedback in their first semester of law school until they got their grades back in January.  I commend Haylie and Samantha for the maturity with which they responded to a pedagogical experience that they might have thought less than ideal.

In Episode 2, they come to terms a little bit more with their first-semester grades.  The reality of their grades begins to sink in, and they are a bit more deflated.  Fortunately, they already know what I think I have to tell my students: their law school grades do not define them, and they will find plenty of ways to distinguish themselves and find suitable careers regardless of their class rank.  They also address the stress of cold calling and the Socratic method.  Once again, LWLS demonstrates that my students often understand law school pedagogy better than I give them credit for doing.  They really understand why we teach the way we do, and they buy into it, which really helps them get the most out of their legal education.  They know that the pressure of cold calling keeps them on top of the material, and they know that they have to keep on top of the material, because law school requires that students step up their game compared to their previous educational experiences.  

Episode 3 has useful tips about how to apply and prepare for law school. Along the way, once again the LWLS hosts understand things that students need to know: law school is not like college.  It's like a really demanding, full-time job.  Your family and loved-ones need to know that and know that you cannot be available for them as you were before.  "This is something I'm doing for me," they repeat, and I hope their classmates and peers hear it!  Episode 4 addresses the pros and cons of transferring after your first year.  I have never before heard how this calculus looks from the student perspective, other than conversations with individual students contemplating transfer.  Those conversations focus on the individual student's reasons for transferring, which are sui generis.  LWLS provides a macro perspective on transferring that I had never heard before. 

I'll admit that I skipped a lot of Episode 5, which was a Valentine's Day episode dedicated to dating while in law school, but what I heard was pretty enlightening.  I was already married when I went to law school, so dating was not an issue.  But the LWLS hosts have interesting insights and experiences to share.  One is in a long-distance relationship; the other is dating a classmate.  You can imagine the challenges. 

I approached the podcast with some trepidation.  Do I really want to hear law students talking about their experiences?  Do I want to hear commentary on my colleagues' professional performances?  So far, I have been pleasantly surprised.  LWLS refrains from picking the low-hanging fruit.  They are extremely reluctant to say anything negative about the classroom experience.  The farthest they will go is to say something like, "Let's just say, it's not my favorite course."  And as to particular professors, they recognize that an ineffective professor might just be ineffective for you.  They give us the benefit of the doubt, whether or not we deserve it.  

It's not that I don't think the legal academy would benefit from a more jaundiced perspective on our methods.  I'm just glad this podcast is not the vehicle for that.  It nevertheless manages to convey a very clear-eyed, realistic perspective on the life of law students, told as it is experienced, in something approaching real time.  

I recommend this podcast to my colleagues who want to hear what this experience looks like from the other side of the lectern.  I look forward to listening to the remaining episodes, and I will share highlights as I come across them over the summer.

Why Take Attendance? Part II

In yesterday's post, I introduced the topic of why I take attendance.  I began with a caveat, which boils down to, I might feel differently if I taught at a different kind of school.

Today, I offer three responses to what I call the libertarian and the anti-authoritarian/Foucaultian arguments against taking attendance.

The first and least satisfying (but also not as dumb as it seems) is that I take attendance because the ABA requires me to do so.  The second and third turn on what I think is an unfair and implausible imputation regarding the motivations of faculty members who take attendance.   That is, people seem to think that law professors who take attendance do so in order to assert control over or discipline students.  I don't know why other professors take attendance, but control and discipline are not my primary motivators.

The ABA requires that law schools have an attendance policy (Standard 308a).  That Standard is very vague, but most law schools (in my experience) adopt a requirement that faculty must take attendance and must require that students attend 75% or 80% of class sessions.  Also in my experience, skills and experiential learning courses are, for understandable reasons, less forgiving about absences.  I have no idea why the ABA has its policy, but I know that, as a result of the ABA's policy, there is a person at every law school with a title like "Dean of Students" or "Assistant Dean for Student Affairs," and that person spends a lot of their time tracking down students and trying to figure out why they aren't coming to class.  I make that person's job a lot easier when I take attendance and shoot an e-mail to the appropriate administrator saying, "So and so has missed two classes and didn't turn in their last assignment.  Do you know what's up with them?"  Such calls can lead to early interventions that help the student and thus help the administrator as well.  The worst that can happen is that a student got pestered.  I'll take that risk.  

One libertarian perspective argues that our students are paying us for a service, and they are free to make as much or as little use of the service for which they are paying as they choose.  The analogy offered was a gym membership.  One's gym does not have an attendance policy.  Well, what if they did?  Actually, my gym offers a discount if you use it more.  I like the model.  Our students learn of the attendance policy during orientation if not sooner.  Even libertarian students can constrain their wills through private legislation.

But ultimately I just reject the notion that my relationship with my students is akin to that of a service-provider.  I am building a life-long relationship with my students, or at least I hope to.  I keep in touch with some of my law school professors.  I have in recent years reached out to two of my college professors.  Both remembered me (from the 1980s!).  Both were glad to hear from me, but they shaped my sensibilities and my life journey in ways that I can barely articulate much less adequately acknowledge.  I can't say that about any of the people with whom I have interacted in the many gyms in which I have engaged in ritualistic forms of exercise. 

Moreover, I owe duties as an educator to constituencies other than my students.  Law schools fail.  I've seen it happen.  That's something I never want to experience again.  Even if I weren't committed to my students' success for their sake, I would be committed to it for the sake of my institution.  I also owe more attenuated but still significant duties to the legal profession, to my students' future clients, to my law school's alumni and supporters, and to the parents and others who are supporting students financially and through their encouragement.  My students and I are not ships passing in the night, or at least I hope that we are not.  The cash nexus does not define our relationship.  It's hard for me to imagine that any conscientious law professor would think that it does.

Finally, often students are not paying their own way or they at least have help.  They have scholarship money or, if they attend a state institution, part of their tuition might be underwritten by tax dollars.  Early in my teaching career, I had a good friend who taught at a community college in South Carolina.  Tuition was almost nothing.  One of her feckless students tried to make the "I'm paying for this education and so . . .  " argument.  She responded, "Actually, my tax dollars are paying for your education, and right now, I'm not getting my money's worth."  Nothing about that conversations was right, but I still admire her to this day for that snappy comeback.  

To the Foucaultian/anti-authoritarians, I concede that in taking attendance and having an attendance policy that can -- in rare cases -- penalize students for poor attendance, I am engaged in policing and social control of my students in a very broad sense.  But my relationship to my students is not that of the police to potential lawbreakers, nor is it that of the watchful state to its law-abiding citizens who are law-abiding in part because their conduct is shaped by their constant awareness that they are being or could be under surveillance at any time.  My relationship to my students is also not that of a parent to a child. 

And yet it is also not true that my relationship to my students bears none of the characteristics of the police to the criminal, the state to its citizens, or the parent to a child.  My students are mostly still emerging adults, which means that they are a little less boundedly rational than I am.  I want what is best for them.  I have views about what is best for them.  I also respect their autonomy.  They will make their own decisions, but I will contribute to the environment in which they make those decisions in (at least) one small way -- by encouraging them to come to class.  

To my colleagues at other law schools who say that they will not police their students, I would like to know how you avoid doing so and still perform your role as a law professor.  The minimal policing I do by taking attendance is nothing compared with the policing I do by grading them.   I suspect that my non-attendance-taking colleagues also grade their students and thus serve as the guardians of the path into the profession.  There is no shame in it. Not every admitted student will become a lawyer.  Perhaps others want to throw open the profession to all comers.  I don't have to have a view on that subject.  The bar exam exists, and it will keep some students out.  Performance in first-year contracts is a pretty robust predictor of likely success on the bar.  I happily provide to students, whom I recognize as independent agents, a useful datapoint to consider as they make choices about re-enrollment.

But returning to my earlier point, neither my attendance policy nor my custom of giving students grades exist to punish students.  Both are structures to help guide them along a path that they have chosen.  Faculty members who do not take attendance miss an opportunity to check in with students as they proceed along that path, and their failure to take attendance creates more work for those who do.  It is not uncommon that when I e-mail a dean of students or student affairs coordinator, my report is the first they have heard of the student's absence.  When a student who hears nothing from a professor when they miss multiple class sessions, does that silence communicate respect for students' autonomy or indifference?  

It is no doubt true that some students regard themselves as adults who resent calls from the law school when they are dealing with some crisis.  "Professor so-and-so doesn't even take attendance," I have heard them gripe.  I will not disparage a colleague in front of a student.  "I'm sure Professor so-and-so has their reasons."  And that is truly what I believe.  I draw no conclusions about my colleagues' motivations for doing what they do, nor do I assume that my colleagues who do not take attendance care any less about their students than I care about mine. 

But I do want those colleagues to know this: by far the more frequent response I get from the missing students with whom I check in is gratitude.  They are fine.  They don't need anything.  They just had something they had to deal with, and they are grateful to me for checking in and asking, as I usually do, whether there is anything they need to stay on top of the class material.  And then, every once in a while, my intervention with a student in crisis helps them get over that crisis and re-commit to their professional path.  Or perhaps they were always committed, but they were having a personal crisis and they just needed to know that somebody at the law school cared enough to reach out.  

Law students are under an incredible amount of stress.  COVID has not helped.  I don't know how we can know how students whom we do not see are doing if we don't have some means of catching warning signs.

So yes, I take attendance.  Yes, it's a bit paternalistic.  But the alternative seems to me much worse.

US News Announces that Ratings Will Henceforth Be Based on Twitter Followers

U.S. News and World Report (USNWR), an unranked online news magazine, is best known in these parts for its rankings of law schools.  Vital life decisions are made based on USNWR's mysterious calculations.  Students decide which law school to attend, faculty members decide which job offers to take or determine where to place their articles based on USNWR's rankings.  It thus comes as no surprise that law school deans take USNWR rankings into account in their strategic decisions, and academics bemoan the fact that their self-worth is tied up with the mysterious process that fuels the rankings. 

USNWR's rankings editor, Algo Rhythm, rocked the world of the legal academy, when he announced that starting next year, the reputational component of rankings will be based on the number of followers faculty members have on their Twitter feeds. 

This blog reached out to the popular Twitter personality Lawprofblawg (left), to ask if they would be revealing their true identity, now that their school's USNWR ranking could benefit from it, to which Lawprofblawg responded, "You are LITERALLY the only person who still does not know who I am!" 

We also reached out to USNWR for an explanation of this unexpected change. Mr. Rhythm responded:

It's too easy to game our system by having friends at other law schools fill out our surveys in a way that skews the results.  In addition, other unranked, online journals were making fun of us for relying on paper ballots distributed through snail mail. 

Twitter followers are a much better measure of scholarly impact.  For one thing, following someone is a real commitment.  You have to click a button or something.  It's not like citing to someone's law review article -- those citations could be added by research assistants or law review editors.  But also, high numbers of Twitter followers indicates an ability to reach beyond the academy and say things that ordinary people are interested in hearing.  If you can't revolutionize constitutional theory in 280 characters, you're just another blowhard.

Celebrated sh*tposter, Scott Shapiro (right), asked what impact USNWR's new approach would have his institution's ranking, affected disinterest.  "I don't know why people are so obsessed with the fact that I have 73,900 Twitter followers (but who's counting?).  I also have a podcast, you know, and Brian Leiter is not the only legal philosopher who blogs."  

Eric Segall, when asked to comment responded in "what may be my last TikTok ever" by noting that TikTok is the wave of the future and USNWR should really be taking note of TikTok followers rather than Twitter followers.  "Twitter is to TikTok what blogs are to Twitter, no offense," he noted, adding, "And the U.S. Supreme Court is not a court."

We have it on good information that Blog Emperor and law dean Paul Caron is pressuring USNWR to take blogging into account as well.  Until that happy day, my dean has asked that I remind readers that you can follow us on Twitter.

DePaul Seeks Visitor to Teach (inter alia) Contracts

DePaul University:
PROVOST: COLLEGE OF LAW: LAW ACADEMIC

Apply here!

Location

Chicago, IL - College of Law

Open Date

Mar 17, 2022

Description

DePaul University College of Law invites applications for a one-semester position as a visiting professor during the 2022-2023 academic year. Specific curricular needs include Contracts, Business Organizations, and Taxation. We welcome candidates with excellent academic credentials and strongly prefer those with a successful teaching record, including demonstrated experience teaching first-year law students. DePaul Law enthusiastically encourages applicants who would enrich the diversity of our academic community to apply.

Qualifications

All candidates must hold a J.D. or equivalent degree, with preference for candidates who have significant teaching experience.

Application Instructions

Required materials include a cover letter, curriculum vitae, and diverse learning environment statement. Please direct any questions about the position to Associate Dean for Academic Affairs Allison Brownell Tirres ([email protected]).

DePaul Law is committed to improving society by educating purpose-driven lawyers who will serve their clients, the legal profession, and the broader community in ways that enhance access to justice and promote equitable policies and processes. To learn more, please visit https://law.depaul.edu/Pages/default.aspx.

Hiring: Animal Law at OCU Law

OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW seeks a visiting faculty member to teach Animal Law and other subjects of interest to the candidate.  The visitor will serve as a full-time faculty member for the 2022-23 academic year. Both one-semester and full-year visits may be possible. We expect successful candidates to teach in person. Both experienced and entry-level candidates will be considered.

Candidates must have a J.D., LL.M. or S.J.D. degree from an ABA-accredited law school and be licensed to practice law in one of the states or the District of Columbia. 

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

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

To apply, please submit a CV to Associate Dean Paula Dalley ([email protected]).

If you have questions before you brave an encounter with the imposing Paula Dalley, feel free to reach out to me, [email protected] 

Two Yale Law Students Sue Yale for Breach of Contract

Yale Law School (YLS) gets a bad wrap for being too theoretical.  Outside of the clinics, so that saying goes, one hardly learns doctrine at all during one's three years in law school.  A famous alum once said to me that practicing law with a degree from YLS and nothing else is a recipe for malpractice.  He may have proved himself right.

But two YLS students have figured out a way to immerse themselves in the practicalities of litigation: they are suing their law school!  The anonymous students, styled John Doe and Jane Doe in the complaint, allege that YLS's Dean and Associate Dean (the Deans) conspired to "blackball" the plaintiffs and cut them off from career opportunities in retaliation for their refusal to lie in support of the YLS's investigation of Amy Chua.

The allegations involve the YLS Dean's attempt to discipline Chua or alleged inappropriate conduct involving social gatherings at her home and advice relating to how to dress for success in the context of clerkships.  Both plaintiffs describe themselves as persons of color, and they reached out to Professor Chua, one of YLS's few faculty members of color, to discuss the peculiar obstacles they faced as students of color at YLS.  Two such meetings took place at Chua's home, allegedly in violation of a "no-socializing" agreement that Chua had entered into with YLS.  Word of these assignations somehow got to a third YLS student, who assembled the 20-page "Dossier" and turned it over to the YLS administration. 

Plaintiffs allege that the Deans approached a professor of constitutional law and pressured him to not hire the plaintiffs as Coker Fellows (teaching assistants) in retaliation for their refusal to lie about Amy Chua.  Given the lack of grades at YLS, a Coker Fellowship is a way for a Yale student to evidence their achievement.  As a result of the Deans' actions, plaintiffs were not hired as Coker Fellows, nor did they even apply for judicial clerkships because, they allege, the Deans threatened to share with any judges who might hire them Dossier detailing plaintiffs' alleged misconduct with Professor Chua.  Plaintiffs allege that the Deans violated the University’s Policy Against Discrimination and Harassment (the Handbook), which they say is a contract "by its own terms" that prohibits the administration from "retaliating against students who report a concern, file a complaint, and/or participate in an investigation."

 According to the complaint, the Deans and the YLS Director of Equity, Diversity and Inclusion, hounded the plaintiffs and pressured them on a daily basis to testify against Professor Chua.  When they refused to do so, retaliation ensued.  Both plaintiffs have been deeply affected by the incident.  Jane has taken a leave of absence; John has resigned as the Dean's speechwriter.  Both have physical symptoms brought on by the harassment to which they have been subjected.

The complaint alleges causes of action sounding in breach of contract and promissory estoppel, plus the torts of intentional interference with prospective business relations, defamation, unreasonable publicity, false light, and intentional infliction of emotional distress.

I will be very interested to see in what sense the Handbook is a contract "by its own terms."  The Complaint does not cite to any place in the Handbook where it so self-identifies, and most such handbooks are not contracts and sometimes explicitly say that they are not contracts.  But YLS is a unique institution, so who knows?

Help Wanted: Widener Law

Widener University Commonwealth Law School in Harrisburg Pennsylvania is seeking an entry-level or lateral tenure-track professor to teach contracts, a two-semester, five-credit course, beginning with the  2022-23 academic year.   For more information about the position and other needs of the law school, please see our position description here at or contact Professor Jill Family, Appointments Committee Chair at [email protected]

Editorial Assistance Available for Law Professors in Need!

One of the great things about working at the Valparaiso University Law School was its talented and dedicated staff.  Among the most talented and dedicated was Karen Koelemeyer, who worked with the Law Review and with faculty on getting manuscripts in shape before final submission.  I rarely send out an article for publication without first sending it to Karen for above- and below-the-line edits.  Thanks to Karen, I have gotten by with my vintage 1999 knowledge of the Bluebook.  I make a good faith effort to get my footnotes into shape, and I leave it to her to tidy up my mess.  I have also relied on Karen to translate my footnotes in accordance with other citation styles.  She knows many on her own, but if you have something exotic, just send her a style manual and she will do the rest.

Karen also has an outstanding eye for line edits.  She has been editing legal manuscripts for decades.  If something doesn't make sense to her, it likely doesn't make sense. 

When Valparaiso University decided to close its law school, faculty and staff scattered to the four winds.  Most of us landed well, but Karen's talents are uniquely suited to editing legal scholarship, and there is not a lot of demand for that skill in Northwest Indiana these days.  Our loss can be your gain. 

If you have a manuscript that you would like edited, contact Karen at [email protected]   She can usually turn things around in a couple of weeks, but if she is backed up with other projects, she will certainly let you know.  The cost will depend on the length of the manuscript and the state of your footnotes ex ante, but Karen will provide a reliable estimate.

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

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

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

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

John Eastman and University of Colorado Part Ways Less Amicably

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

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

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

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

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

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

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

More on William Perdue's Legacy at Duke: Willful Breach in M&A Contracts

Earlier this week, we posted about "Lipstick on a Pig": Specific Performance Clauses in Action, by Theresa Arnold, Amanda Dixon, Madison Sherrill, Hadar Tanne, and Mitu Gulati.  The same authors have another article, Damages as a Function of Fault: Willful Breach in M&A Contracts.   Both articles, as well as The Myth of Optimal Expectation Damages, about which we blogged in September, were made possible by a grant to the Duke University School of Law from the family of William Perdue.  The fund was meant to encourage collaborations in the vein of Lon Fuller and William Perdue from the 1930s.  At the time they wrote their pathbreaking works on the reliance interest, Lon Fuller was on the Duke faculty, and William Perdue was a 3L! 

Here's the abstract for the latest, free from SSRN

The traditional framework of U.S. private law that every first-year student learns is that contracts and torts are different realms: contracts is the realm of strict liability and tort, of fault. Contracts, we learn from the writings of Holmes and Posner, are best viewed as options: they give parties the option to perform or pay damages. The question we ask is whether, in the real world, that is indeed how contracting parties view things. Using a dataset made up of a thousand M&A contracts and thirty in-depth interviews with M&A lawyers, we find that there is at least one significant area of transactional practice that rejects the “fault is irrelevant to contract breach” perspective.

Ten years ago, Omri-Ben-Shahar and Ariel Porat published a book on the subject of Fault in American Contract Law.  The book is the product of a conference that I attended.  That conference included one of the most memorable moments I have experienced in the academy.  Richard Posner delivered a paper called "Let Us Never Blame a Contract Breaker."  George M. Cohen (pictured) presented a paper arguing, more or less, the opposite, which was entitled "The Fault that Lies Within Our Contract Law."  As he started his paper, Professor Cohen noted that it had occurred to him that Judge Posner's title was trochaic pentameter, while his was iambic pentameter.  The difference between the two papers, Professor Cohen observed, was really just a matter of emphasis.

Magnifique!

Lin Wood and Mercer Law School

According to the New Yorker staff writer Charles Bethea on Twitter, students at Mercer Law School have been calling that institution to remove the name of Lin Wood (pictured with his BAE) from a courtroom in the school.  Apparently, Mr. Wood Zoom bombed a call organized to discuss the matter under the pseudonym Motley Crew.   Wood uploaded a recording of the call to Telegram, which is apparently where you go when you have been banned from all the social media platforms that I have heard of.  Now it is also available here.

Bethea shares students' accounts of the call.  According to the students, Mr. Wood abused the Dean, who responded graciously, shared some QAnon-supported conspiracy theories, promised to share evidence of voter fraud in the coming week, and threatened to demand the return of his $1 million donation to the school should they take down his name from the courtroom.  Wood's account is somewhat different, as he is threatening to sue the Dean for defamation.  

The potential conflict between Wood and his alma mater  touches on the law on contracts; more specifically, the law of charitable subscriptions.  Recall that in the Allegheny College case, Judge Cardozo observed:

The promisor wished to have a memorial to perpetuate her name. She imposed a condition that the "gift" should "be known as the Mary Yates Johnston Memorial Fund." The moment that the college accepted $1,000 as a payment on account, there was an assumption of a duty to do whatever acts were customary or reasonably necessary to maintain the memorial fairly and justly in the spirit of its creation.  The college could not accept the money, and hold itself free thereafter from personal responsibility to give effect to the condition.   More is involved in the receipt of such a fund than a mere acceptance of money to be held to a corporate use. The purpose of the founder would be unfairly thwarted or at least inadequately served if the college failed to communicate to the world, or in any event to applicants for the scholarship, the title of the memorial. By implication it undertook, when it accepted a portion of the "gift," that in its circulars of information and in other customary ways, when making announcement of this scholarship, it would couple with the announcement the name of the donor.

If Mr. Wood made clear that naming a courtroom for him was a condition of his $1 million gift, he may cite the great Cardozo as supporting his claim.  His ability to do so would of course turn on the nature of his agreement with Mercer, details of which have not been shared with the blog.   However, in the recording, the Dean characterizes the gift as subject to a contractual condition that the school would name a courtroom for Mr. Wood in exchange for his gift.  The Dean says that the contract contained no term of years and no "morals clause" that would enable the university to drop Mr. Wood's name from the courtroom.  The Dean's explanation of the contractual issue seems to be an attempt to help aggrieved students understand why the university was not entirely free to remove Mr. Wood's name from the courtroom.

In any case, Mercer might want to get ahead of the game and use this moment in the spotlight as a fundraising opportunity.  Whether or not it returns the money, it can still ask its alumni to donate so that it can do so if it must without incurring any extra financial stress.

John Eastman and Chapman University Part Ways

According to this article in the L.A. Times, John Eastman, who has recently represented the President in connection with numerous lawsuits challenging election results, has agreed to resign his position as a professor of law at Chapman University.  Professor Eastman joined Rudy Giuliani at the "Save America" Rally on January 6th.  The L.A. Times reports that, at that rally, he made unsubstantiated claims of voter fraud in connection with the 2020 Presidential election.  

More than 160 faculty members called for the University to take action, but Chapman's President Daniele Struppa refused, citing the limitations of his powers as university president and the important principles of academic freedom and contractual rights.  President Struppa's statement is worth quoting at length.

I am not the Emperor of Chapman University, nor I am the Supreme Leader of Chapman University. I am the President of the university, and as such, I am bound by laws and processes that are clearly spelled out in our Faculty Manual. The Faculty Manual, despite its common name, is actually a contractually binding document that faculty, administration, and Trustees have agreed upon. This document contains the rules that determine how faculty are hired, and how they are disciplined, up to and including termination. The documents spell out cases under which such actions can be taken, and what process must be followed. The process includes a prominent role for the Faculty Personnel Committee and affords the faculty under discipline a process, and the right to grieve the decision in multiple settings. 

I do not know anything about President Struppa (pictured), but if this statement is representative of his qualities, he is a very fine university president.  I do have some concerns about wearing such a busy tie with a plaid sports jacket, but I would not question his leadership on that basis.

Happily, Chapman University and Professor Eastman were able to come to an agreement.  He voluntarily resigned, and neither party will pursue legal action against the other.  Some may think that Professor Eastman was strong-armed into forfeiting his position and some part of his academic freedom and freedom of expression.  I choose to see this episode as one in which contract law and contractual negotiation play a starring role and put in a strong showing.

Help Wanted: Dayton Law

Assistant Professor at the University of Dayton School of Law 

Apply nowJob No: 498365
Work Type: Faculty Full Time
Location: Dayton, OH
Category: Faculty
Department: SoL Dean's Office - 230000
Advertised: December 16, 2020
Applications close: February 01, 2021

Position Summary:	The University of Dayton School of Law invites applications for a tenure-track Assistant Professor position to begin in August 16 2021. Areas of particular need include contracts, secured transactions, business organizations, property, wills and trusts, and/or tax.
Minimum Qualifications:	Applicants must have a J.D. or the equivalent degree from a foreign institution.
Preferred Qualifications:	While not everyone may possess all the preferred qualifications, the ideal candidate will bring many of the following: - An outstanding academic record; - A record of publication; - Prior successful experience in law teaching or the demonstrated potential to be an outstanding teacher; - Potential to successfully mentor students from underrepresented groups; -Demonstrated and successful experience working with people from diverse backgrounds; - Relevant prior experience in law practice; - Excellent communication skills; - Effective interpersonal skills with various constituencies; - Interest in and/or experience teaching contracts, secured transactions, business organizations, property, wills and trusts, and/or tax; - An expressed willingness and enthusiasm to teach in and develop UDSL's hybrid online J.D. program; - Willingness to engage with Catholic and Marianist educational values that promote inclusive excellence.
Special Instructions to Applicants:	Applications should include a cover letter and CV and contact information for three references. References will not be contacted until second round interviews. Inquiries may be directed to the Faculty Recruitment and Development Committee at [email protected]. Posting closes at 11:55 PM EST
Closing Statement:	The University of Dayton is a top tier, Catholic research university with offerings from the undergraduate to the doctoral levels.  Founded in 1850 by the Society of Mary, the University is a diverse community committed to advancing the common good through intellectual curiosity, academic rigor, community engagement and local, national and global partnerships. Guided by the Marianist educational philosophy, we educate the whole person and link learning and scholarship with leadership and service. Informed by its Catholic and Marianist mission, the University is committed to the principles of diversity, equity, and inclusion. Informed by this commitment, we seek to increase diversity, achieve equitable outcomes, and model inclusion across our campus community. As an Affirmative Action and Equal Opportunity Employer, we will not discriminate against minorities, women, protected veterans, individuals with disabilities, or on the basis of race, color, national origin, religion, sex, sexual orientation or gender identity. The University is also pleased to provide support for spouses of prospective and newly hired faculty through its dual career program. While we cannot guarantee placement, we serve as an effective resource and support system for your spouse. Information can be found at http://www.udayton.edu/hr/employee_resources/dual_career_resources.php

University of Akron’s Invocation of Force Majeure

In May, the University of Akron invoked the “force majeure clause” in Section 12 of Article 15 its collective bargaining agreement*( with the University of Akron’s American Association of University Professors (“AAUP) chapter and declared its intent to lay off faculty. The reason?  Financial losses stemming from the worldwide pandemic.  

In June, Akron’s AAUP chapter filed a grievance against the University and the matter went to arbitration. In July, the University announced plans to eliminate 178 positions, including 96 unionized faculty members, in a move that was referred to as a budget “bloodbath.”  On Sept. 18, the arbitrator issued his decision.  Many readers of this blog may have already heard this news from the TaxProf Blog here.  But here at the ContractsProf Blog we like to delve into the fine print.  So what happened?

First a little contractual context.  Article 15 pertains to “retrenchment” (cutting back expenses) which may be necessary in one of four situations, including (but not limited to – this become important later) “financial exigency” and “significant reduction in enrollment” over five or more academic semesters.  Article 15 has very specific procedures that should be followed in the case of retrenchment, such as notification requirements, opportunity to inspect and obtain information, the order in which faculty will be affected, etc.

Section 12 of Article 15 provides:

The procedure for retrenchment set forth in this Article is designed to accommodate both the orderly change in the University and reductions that must accompany more abrupt changes in circumstances. The parties recognize that catastrophic circumstances, such as force majeure, could develop which are beyond the control of the University and would render impossible or unfeasible the implementation of procedures set forth in this Article. Therefore, this Section 12 shall not be used to accomplish retrenchment as set forth in this Article. If such unforeseen, uncontrolled and catastrophic circumstances should occur, then the University agrees that, before taking any action that could be interpreted as bypassing the retrenchment procedures, representatives of the University will meet with representatives of the Akron-AAUP to discuss and show evidence of the circumstances described above and that this evidence will at least satisfy the requirements outlined in Section 3(A) of this Article and to discuss the proposed course of action.

In other words, the University did not want to follow the retrenchment process of Article 15 and used Section 12, aka the force majeure provision of Article 15, to get out of doing so.

The AAUP made several arguments against the University’s invoking the clause.  First, it argued that Section 12 required that the circumstances be “catastrophic” and that the financial situation of the University was not.  The projected financial situation of the University was, it argued, based on inflated assumptions.  It noted that enrollment for the fall semester was “significantly better” than predicted.  The AAUP also argued that the proposed budget contained a projected deficit of $7.8 million which was “less than one-eighth” of the projected $65 million deficit that was used to justify the faculty layoffs during a prior meeting.

It also argued that the faculty cuts were not necessary, but a continuation of the university’s disinvestment of academics and privileging of athletics.  It also noted that the Administration “did not identify one administrative position that was being eliminated” and that other cost saving measures could have been taken.  In discussions during the summer, AAUP proposed cost saving measures instead of lay-offs, including possible furlough, retirement incentive adjustments, equivalent salary reductions and increases in health care contributions. AAUP argued that Section 12 did not negate other provisions of Article 15 which set forth rights that faculty have and that the University did not give appropriate notice.

The University responded that the Governor’s declared state of emergency and the cancellation of classes were events that were “catastrophic, unforeseeable, and beyond the University’s control” and allowed it to invoke Section 12 (i.e. not follow the retrenchment procedures of Article 15).  The University stated that although it does have (substantial) cash reserves, it cannot deplete those because if they become too low, the University’s credit rating could be downgraded.  It basically argued that there just wasn’t time to come up with a new plan as AAUP urged.  There were several other arguments having to do with procedure and notice. 

The arbitrator focused on the COVID pandemic, noting that it is indeed “catastrophic” with “worldwide effects.” Ultimately, the arbitrator sided with the University and found the invocation of the force majeure clause was justified; however, he found that the clause did not excuse the University from complying with sections that refer to “right of recall if positions are reauthorized,” found that these provisions were “feasible and possible to implement” and found for AAUP on that issue. 

I don’t think that the arbitrator reached the right result for two reasons:  First, it conflated “financial exigency” with “force majeure.”  Second, it used the conflated force majeure/financial exigency as a reason to excuse performance of all the provisions of Article 15 even those which were not rendered “impossible” or “unfeasible.”

Regarding the first point, the very purpose of a retrenchment process is to address potential financial exigency – that’s expressly stated.  So there has to be something about the nature of this financial exigency that requires immediate action of this sort – or else.  What Section 12 does, IMO, is allow the University to bypass some of the lengthy processes in the event of an emergency.  For example, if lightning strikes a building and destroys everything in it, that is clearly a force majeure event that would cause financial exigency.  I think the pandemic and the state order are force majeure events which, under Section 12, could mean that the notice provisions of Section 3 might be excused (granted there is evidence they could not meet them – which it seems they could, IMHO).  A force majeure event, however, doesn’t allow the University to walk away from Article 15 or all its contractual obligations unless there really is nothing else to be done.  Keep in mind that Article 15 covers retrenchment for other reasons, such as discontinuation of a department, so Section 12 must also be interpreted as applying to those other situations, not just financial exigency.  The discontinuation of a department because of a lightning strike might excuse some of the retrenchment provisions in Article 15 by way of Section 12.  As a matter of interpretation, Section 12 should not be construed as meaning the same thing as Section 1 (financial exigency).  That wouldn’t make sense from a drafting perspective.

Regarding the second point, while the pandemic is certainly an unforeseeable event, it is not necessarily a discharging event.  Courts generally prefer the path that results in less harm and tend to allocate losses from force majeure events according to equitable principles; often they will place the burden on the party that has more control over the situation.  In this case, I think the University could have done more to reduce the harm to the faculty.  Some of what was proposed by the union instead of layoffs – salary cuts and/or furloughs, for example – would seem to align with what was anticipated by Section 12.  It is not “impossible” or “unfeasible” to do those things first, especially given the cash reserves.  The potential credit downgrade is not a catastrophic event.  I especially think the University should have been held to Section 11 of Article 15 which requires one year continuance of University health care insurance without charge for released faculty.  But the Arbitrator found that the “financial outlay would only add to the financial burden” and thus it was “not possible or feasible.”  An increased financial burden alone does not make performance impossible or unfeasible, however.  That’s pretty well established in contract law. 

In my opinion, the University did what was most expedient, not what was strictly necessary.  But force majeure clauses need to be performed in good faith, just like other contractual clauses.  I have particular issue with the Arbitrator’s conclusion that the University could not afford to pay for an additional year’s health coverage for its laid off faculty.  I find that a mean-spirited decision (aka acting in bad faith), especially given its reserves – and in the midst of a pandemic?  So what are the faculty supposed to do without jobs and no health coverage as we all brace for the second wave? 

*(H/T to Ben Davis for posting the link to the agreement on the contracts list serve). 

Weekend Frivolity: Introduction to the First Year, from UVA Law School

For the first time, I am somewhat concerned that our weekend frivolity is not sufficiently frivolous.  But this wonderful introduction to the first year from UVA's 2016 orientation focuses on Lucy v. Zehmer, which is itself about frivolous offers.  It's a fun case of course, and the UVA faculty does a great job with it and uses the case to help prepare their students for the challenges of the first year.

Guest Poster Hila Keren, Should What Happened in the Room Stay in the Room? Contract Law Has the Answer

Finally, contract law is in taking the lead in national news. As reported yesterday by the New York Times, the Trump administration has just sued the former national security adviser John R. Bolton using the argument of breach of contract in an effort “to delay the publication of his highly anticipated memoir about his time in the White House.” The book, titled The Room Where it Happened, is supposed to be released next week. ^, 2020. In fact, it is already available for advance purchase. Amazon, for example, offers Kindle users to buy it immediately, promising that it will be auto-delivered on June 23, 2020. But now, in a lawsuit against Mr. Bolton filed yesterday in federal court in Washington, the Justice Department seeks to prevent the upcoming publication, and both the leading cause of action and the primary remedy are contractual.

According to the lawsuit, Mr. Bolton signed a series of nondisclosure agreements (NDAs) that required him to complete a prepublication review process and receive written authorization from the US government before publishing his book, an obligation that he is now breaching “knowingly, willfully, and deliberately.” And, due to this alleged breach of contract, the DOJ “seeks an order directing [Mr. Bolton] to specifically perform his contractual obligations.” Perhaps out of awareness of the limits of the remedy of specific performance in our system, especially when “the book has already been printed and bound and has shipped to warehouses,” the DOJ further asks the court to “impose a constructive trust for the benefit of the United States over…all monies, gains, profits, royalties, and other advantages” that Mr. Bolton and others will derive from the publication of the book. 

The New York Times reports that Mr. Bolton’s lawyer has counter-argued that “his client acted in good faith and that the Trump administration is abusing a standard review process to prevent Mr. Bolton from revealing information that is merely embarrassing to President Trump, but not a threat to national security.” Reading the lawsuit, one learns that Mr. Bolton submitted his manuscript for review back in January, and—due to the duration of the review process—already postponed once the date of publication. In light of these facts, it may be a good idea to turn next to section 205 of the Restatement (Second) of Contracts that, as we all know, states: “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” (emphasis added). Does the lawsuit present a good faith attempt of the US Government to enforce on Mr. Bolton his obligations under the NDAs?

[Editorial addition: who knew that Bolton (a/k/a Deep 'Stache) was such a Randy Rainbow fan?]

Lawsuits Against Universities for Pandemic-Related Closures

Some students are filing class action lawsuits against their colleges and universities for partial tuition refunds and refunds of other fees. As Jeremy noted last week, some schools have given students refunds. Others, apparently, have not.  But the fees involved are not all the same. The specifics of the lawsuits might differ but basically, the students are arguing that they should get some money back because their educational experience is not what they expected.  Although faculty are trying their darnedest with Zoom and making their voices hoarse with recording and re-recording their lectures, these students say that the distance learning experience pales in comparison to the in-person experience.  We miss our professors, they say, We want them back and their disembodied voice on an audio file or their Zoomed-In-too-close-for-comfort-face is a poor substitute for their classroom presence! 

As this article from Bloomberg notes, the students are unlikely to prevail for a variety of reasons, at least on many of the claims.  But the lawsuits raise lots of contracts issues that warrant more discussion on this blog.   Fees for dining expenses and on-campus housing should be partially refunded because they are essentially prepaid fees that were not provided. 

However, there are often other “services” fees that I think should not be refunded even though students were hustled off campus in early March. Many services were/are still being provided to students even when they moved off-campus, including IT assistance, counseling, and guidance services.  Other fees relate to activities and although clubs are not meeting on campus, many continue to meet or plan future events virtually. 

Furthermore, maintenance services and administrative services continue, even if less frequently for the former and remotely for the latter.  Included in the administrative services are activities which may likely benefit them in the future.  Students understand (or at least they should) that when they enroll at a college or university, they are joining a community.  They are receiving an education but they are also going to be receiving benefits in the future from having attended that university.  There is, of course, the value of the degree.  But there is also the benefit of joining the alumni network, which is quite valuable at some places.  There are also alumni events and activities, including continuing education or special lectures.  The tuition of current students provides funding for some of those activities.

While there is justification for refunding some (although not all) fees, I’m less inclined to think students are entitled to partial tuition refunds and here’s why.

First, most universities don’t make specific promises in their enrollment contracts regarding where or how their courses will be offered.  I also don’t think that most students consider those specifics.  I don't think there is a breach of contract with respect to the education delivery part of it.  I think the student-plaintiffs are confusing the glossy marketing material with the contractual terms.  But the glossy brochures are just that – glossy brochures with happy coeds and engaging professors.  Universities generally don’t give you back your money if it turns out that your roommate is super grumpy and your professor’s droning monotone puts you to sleep.

The contract issue is really one of omitted terms.  The parties did not address what would happen in the event of a pandemic and ensuing state-ordered shut-down of campuses.  For that, we have to go to the squishy world of interpretation.  What did the parties intend when they entered into this agreement?  What was the purpose of the agreement?  The purpose was to provide the students with an education.  Most schools are continuing to do that.  It may not be what the students had in mind, but that’s not the proper question.  The question is, what would the parties have done if they had contemplated this situation?  Would they have insisted upon a partial tuition refund?  And if so, would the schools have agreed to it?

I don’t think so.  If the students insisted, the school might simply have accepted other students. But I also don’t think the students would have insisted upon a partial tuition refund if the choice were to sit out an entire year or attend three quarters of the year on campus and a quarter online (put in equation form, ¾ year on campus + ¼ online OR gap year + graduating one year later from college). Of course, they would have preferred the full year on campus but that wouldn't have been on the table.  Given that, would they have walked away?  Especially knowing that there weren’t other schools willing to give them what they wanted?* 

In addition, without looking at any particular contract, my guess is that most enrollment contracts don’t contain force majeure clauses.  But I don’t think a force majeure clause provides all the answers anyway (even in these pandemic times when they seem to be getting all the attention). 

All tuition payments have already been paid so the students’ performance can’t be excused, after all.  (It would be a different matter entirely if the pandemic occurred at the very beginning of the semester and students wanted to cancel their enrollments for that term.  It’s different b/c the pandemic spread, and schools were ordered closed, three-quarters of the way through the academic year).  The schools are not trying to get out of their contracts; in fact, they are doing whatever they can to perform.  The issue is, are they providing substantially what was bargained for?  My guess is that most are.  At least from this faculty member’s standpoint, we are dancing as fast as we can and putting in at least twice as much time as we typically do preparing for classes.  Many of us are also spending more time with students on Zoom than we would if we were just holding office hours.  I would think most schools are providing substantially similar services as they were pre-shutdown even if the services are virtual.

In any event, I can’t even begin to guess what expectation damages might be. The value of the education can’t be valued pro rata based on number of weeks or hours.  It is also not easy to separate out the portion of the tuition which is simply for the education in the classroom versus the general benefits of attending the college or university.  The same experience that the students are claiming they are not getting is exactly what will make it so hard to calculate damages. 

Ultimately, I think the students should not prevail because the result would be disastrous.  Universities and colleges are already going to be in a world of hurt and partial tuition refunds in this situation would just create a chain reaction of more problems.  Staff and faculty would be cut, services paired back, and financial aid to the next class would be greatly reduced.  I say this, not just as a faculty member, but as a parent who would be getting a hefty chunk of change back if my daughter’s institution issued partial tuition refunds.  But in the long run, I know that it wouldn’t be worth it. 

The fact is, this pandemic has wreaked a lot of damage across the board.  Some have been hurt more than others.  If there’s a great lesson from this pandemic, it’s that we live in a society and our actions affect others.  Society benefits when pains are evenly distributed and when they don’t fall disproportionately on some groups.  It makes sense for those who can, to suffer a little in order to prevent greater suffering for others.  In some cases, this means people stay inside even if they are young and healthy.  In all cases, it means making adjustments to the extent that we are able if it would prevent greater harm in the future.

 

*Note that this is not the same decision faced by students contemplating a gap year for the fall.  The choice for them is 1 year or (.5 year of online learning  gap year+.5 year on campus) OR gap year + graduating one year later from college.

Weekend Frivolity: Simulated Graduation

Sharing this lovely display put together by a Brooklyn Law School graduate.  (Hat Tip: Blog Emperor Paul Caron)

Weekend Frivolity: Texas A & M Law's Musical Tribute to Its Graduates

We are proud to have friends of the blog at TAMU law.  Our founding editor, Frank Snyder is there, as is long-time contributor Mark Burge.  As schools struggle to find ways to share the joys of graduation with their communities, it is nice to see faculty members willing to go to such lengths for their students.