Friday, August 23, 2024
South Texas College of Law Is Looking to Fill Tenure Track and VAP Positions
While all candidates for tenure-track and VAP positions will be considered, we particularly seek candidates interested in teaching: Legal Research and Writing; Contracts; Criminal Law; Constitutional Law; Property; and Wills, Trusts, and Estates. We seek candidates with outstanding academic records who are committed to both excellence in teaching and sustained scholarly achievement.
August 23, 2024 in Help Wanted, Law Schools | Permalink | Comments (0)
What's All the Fuss About? The Great Scrape
Occasionally, new private law scholarship posted on SSRN gets downloaded by thousands of people. When it does, inquiring minds want to know what all the fuss is about. This feature of the blog gives you the tl;dr on what you really ought to be reading for yourself. Today's subject is the most recent paper by Daniel Solove (below left) and Woodrow Hartzog (below right), The Great Scrape: The Clash Between Scraping and Privacy, which is pushing 2000 downloads on SSRN.
Scraping, the Authors tell us is. the automated extraction of large amounts of data from the internet. Through scraping, actors gather enormous amounts of data and personal information (worrisome) without notice or consent (troubling), and then this information provides fodder for AI tools such as facial recognition, deep fakes, and large language models (panic-inducing). (4 - parentheticals added). The Authors concede that scraping has its socially beneficial uses, but scraping of personal data "violates nearly every key privacy principle embodied in privacy laws, frameworks, and codes" and is, in short, "antithetical to privacy." (4) While scrapers contend that they make use of publicly available data, courts have recognized a privacy interest in publicly-available but practically obscure personal information. (4)
We need scraping to have a useable Internet, but scraping is in fundamental tension with basic privacy law. The Authors call for responding to the Great Scrape with the Great Reconciliation of scraping and privacy norms. (5)
Part I of the Article provides a history and explanation of scraping. We first learn that scraping, that is, online data harvesting, has been around as long as the Internet (7-9), but the power of scraping tools has grown vastly in the age of AI. (9-10) If you are on this site, statistically, it's more likely that you are a bot scraping the blog than a human reading the blog. Now, if you happen to be a bot, I'm not judging you. The Authors say I can't because the scraping of personal data occurs in the murk of an ethical twilight zone. (11-13) Which brings us to the current conundrum of "scraping wars." Some of the very websites that hire scrapers to enhance their functionality now object to being scraped for other purposes. (13-14) They are fighting back against the scraper through legal challenges with theories ranging from trespass and fraud to business torts and violations of privacy protections, (14-20) and by trying to use technology so that they can fight fire with firewall. (20-21) While scrapers are trying to buy out the resistance (23), regulatory intervention might change the market conditions for doing so. (23-27) The Authors highlight EU regulatory actions against Clearview AI. (25-26) While the FTC may have the legal means to regulate scrapers, it is not clear that it has the political clout to do so. (26-27)
In Part II, the Authors detail the fundamental tension between scraping and privacy. Privacy law is governed by bedrock principles known as the Fair Information Practice Principles (FIPP). FIPP comes down to three rules: only collect data when necessary, keep the data safe, and be transparent. According to the Authors, scraping violates all of these principles. (29). The overarching goad of FIPP is fairness, but the Authors also list seven other fundamental principles. (30-38). Their conclusion is not optimistic: "It is not clear that scraping can be performed in a privacy-friendly way." This is so because both the fundamental principles of privacy and the building blocks of privacy laws are "in dramatic conflict with scraping." (38)
Scrapers defend themselves by claiming that they only access publicly available information. In the next section of their paper, the Authors set out to show that the claim "that there is no privacy interest in publicly-available information is normatively and legally wrong." (39) First, it is simplistic to think that we can categorize information as "public" or private. People may still have an expectation of privacy in information that has been denoted "public" for certain purposes. (39-41) Some regulatory scheme and some caselaw recognize that privacy laws need to shield at least some publicly available information from scraping. There is safety in obscurity; SCOTUS implicitly recognized this in Carpenter when it noted that "A person does not surrender all Fourth Amendment protections by venturing into the public sphere." (44) One used to be able to make information about oneself available to the public without worrying about its dissemination, because the effort it would take to gather that information greatly exceeded its value. But with the aid of AI, scrapers can hoover up everyone's information with great efficiency. Privacy law has not fully reckoned with this environmental shift.
In Part III, the Authors introduce their proposed Great Reconciliation. They propose that we re-conceive scraping as a form of surveillance and as a data-security violation. (45) Defenders of scraping maintain that is just like human web browsing, which is true in the sense that a grain of sand is like a beach, or as the Authors put it, "But this ignores scraping's incredible affordances of scale." (47) The Authors propose that the data protection authorities, like the FTC, could impose obligations on entities entrusted with people's data to protect that data from scraping, just as they have an obligation to take measures to prevent other data-security violations. (49-50)
The Authors note that privacy law alone cannot effectuate the desired Great Reconciliation. Some privacy approaches might lead to a total ban on scraping, which would be undesirable (52-54), but other privacy laws are too loose and too easily evaded. (51) The solution involves a broader inquiry into whether particular forms of scraping are in the public interest. (52) One helpful first step would be to require individual consent for data scraping, but as anyone who has bought anything online this century knows, there are problems with the way courts have construed consent in this country. (54-55) Moreover, powerful websites may negotiate deals to sell scraping rights and further monetize their control of data, exacerbating the yawning gap between the haves and the have-nots. (55-56)
The Authors propose a legal system that regards scraping as a privilege. In order to exercise the privilege, the scraper must (1) have a valid justification; (2) provide substantive protections to ensure safety and avoid exploitation; and (3) provide procedural safeguards to ensure fairness and preserve the agency of the people whose information is to be scraped. (56) Their model draws on Lawrence Gostin's model for public health. (57-58) The remainder of the paper is a detailed proposal for assuring that scraping is conducted in a manner consistent with the public interest. It defies easy summary and demands careful reading, so I encourage you to undertake that task. (58-64)
If you missed our previous columns in the series and still don't know what the fuss was about, here's what you missed:
- Generative Interpretation by Yonathan Arbel and David Hoffman
- Lawyering in the Age of AI, by Jonathan Choi, Amy Monahan, and Dan Schwarcz
- Debt Tokens, by Diane Lourdes Dick, Chris Odinet, and Andrea Tosato.
- Governing AI Agents by Noam Kolt
August 23, 2024 in Contract Profs, E-commerce, Recent Scholarship, Web/Tech | Permalink | Comments (0)
Thursday, August 22, 2024
Mercer University School of Law Is Hiring
Hiring Announcement: Mercer University School of Law
The Mercer University School of Law invites applications for up to two entry-level or pre-tenured lateral faculty positions and one tenured faculty position, with appointments beginning in Fall 2025. We welcome applicants from all subject areas, with a particular focus on legal writing, commercial law, contracts, real property, civil procedure, business law, and remedies. We also encourage applications from truly entry-level candidates, including those without prior law teaching experience, who demonstrate significant potential for excellence in both teaching and scholarship.
Founded in 1873, Mercer University School of Law has a long tradition of producing practice-ready lawyers who are committed to service. The school has earned a reputation for providing excellent legal education with an intense focus on student and faculty interaction. With an enrollment of approximately 375 students, Mercer Law School is one of 12 schools and colleges of Mercer University, which is consistently listed among the top institutions of higher education in the nation. The School of Law is nationally recognized for its exceptional programs in legal writing, advocacy (moot court and mock trial), public service, and professionalism and ethics.
The School of Law is located in Macon, Georgia, a city of approximately 156,000 residents. Macon is known for its rich musical heritage (e.g., Otis Redding, Little Richard, the Allman Brothers), vibrant arts community, recreational offerings (e.g., the Ocmulgee Mounds National Historic Park), and affordable cost of living. Located 85 miles from Atlanta, Macon offers the livability of a smaller city with convenient access to big-city amenities.
Mercer University recognizes the power of a diverse community and encourages applications from individuals with varied experiences, perspectives, and backgrounds. Mercer University is an AA/EEO/ADA employer.
Applicants should hold a J.D. degree from an accredited institution, demonstrate a commitment to excellence in teaching, and show potential for excellence in research and scholarship. Interested applicants should complete the brief online application at http://hr.mercer.edu/jobs/ and attach a current CV with the names and contact information of three references. For more information, contact Professor Ishaq Kundawala, Chair, Appointments Committee, Mercer University School of Law, at [email protected].
August 22, 2024 in Help Wanted, Law Schools | Permalink | Comments (0)
Guest Injured at Airbnb Not Bound by Airbnb's Arbitration Clause
Last week, we were all exercised over Disney's attempt to compel arbitration based on an agreement with a pretty attenuated relationship to the cause of action. Obviously Disney's officers and directors are avid readers of the blog, because, as Claire Fahy reports in The New York Times, the company reversed course and has abandoned its motion to compel arbitration. Well, Disney is not the only entity trying to engage in this form of arbitration-clause bootsrapping.
Andrew Peterson was injured when a railing on an elevated porch gave way at an Airbnb venue rented by a friend. His injuries were serious enough to necessitate the amputation of one of his legs below the knee. Peterson sued Airbnb and others, but Airbnb moved to compel arbitration. Airbnb claimed that Peterson had agreed to Airbnb's terms of service years earlier when he created an Airbnb account, even though he never used the site. The trial court denied Airbnb's motion and it took an interlocutory appeal.
In Peterson v. Devita, a split Illinois appellate court affirmed. The majority found that courts, rather than arbiters, decide threshold issues of arbitrability and that Mr. Peterson's injuries are unrelated to his use of the Airbnb and thus not governed by any arbitration agreement to which he agreed when he registered on the site. Neither agency nor equitable estoppel principles apply.
In 2020, a Peterson's friend booked a house using Airbnb. Peterson, not a listed guest at the house, attended a party at the home and sustained serious injuries. He sued Airbnb for negligence.
Airbnb's arbitration provision provides that issues of arbitrability are to be determined by the arbiter. However, under caselaw interpreting the Federal Arbitration Act (FAA), a court must first establish that the dispute is covered by an arbitration agreement between the parties. The majority then reviewed case law, including a rich trove of Airbnb cases. There is authority from SCOTUS (Henry Schein, Inc. v. Archer & White Sales, Inc.), that where, as here, the arbitration provision delegates questions of arbitrability to arbiter, such questions must go to the arbiter even if the arguments for arbitrability are "wholly groundless." However, the majority concluded that the Henry Schein rule must be harmonized with common sense. Disputes cannot be sent to the arbiter when the dispute between the parties is wholly independent of any agreement between the parties.
The majority also rejected Airbnb's argument that Mr. Peterson was bound because his friend acted as his agent when the latter booked the house through Airbnb. No elements of an agency relationship were established. Nor was the majority convinced by arguments sounding in equitable estoppel.
The dissenting justice would have ruled for Airbnb on two grounds. First, the dissenting Justice found that, by registering with Airbnb, Mr. Peterson bound himself to Airbnb's terms of service, including its arbitration provision. According to the dissent, Mr. Peterson was also bound by Airbnb's terms because when he knowingly entered into an Airbnb rental as a guest, he did so through an agency relationship with his friend who made the booking. The dissenting justice attributes to Mr. Peterson knowledge of Airbnb's terms of service that he agreed to in 2018 when he signed up on a website that he never subsequently used. No doubt, his mind was thinking of nothing else between the time the railing gave way and the moment he hit the ground. The matter should be referred to the arbiter, said the dissent, and the arbiter may then decide (in case it matters) whether Mr. Peterson is bound through his own agreement with Airbnb or derivatively through his agent's agreement with Airbnb.
The majority was concerned that giving effect to Airbnb's terms of service in cases like this "would lead to absurd consequences." The dissent thinks doing so is simply an application of existing caselaw interpreting the FAA. I think both sides are correct.
August 22, 2024 in Recent Cases, Travel | Permalink | Comments (0)
Wednesday, August 21, 2024
Hiring in Business Law at Emory Law
Hiring Announcement: Emory University School of Law
Robert T. Thompson Professorship in Business Law
Emory University School of Law seeks applications from outstanding tenured scholars for the Robert T. Thompson Professorship in Law. This professorship recognizes outstanding achievement in scholarship and teaching in disciplines related to business law, including mergers & acquisitions, securities regulation, corporate finance, and other related business law fields. Candidates should have exceptional records in research, teaching, and service and have attained a J.D., Ph.D., or equivalent degree. Candidates should currently hold a tenured academic appointment and should be eligible for appointment as a full professor at Emory.
Candidates must complete the online application which requires creating an account, uploading a resume or CV, and providing basic demographic information. In addition, applicants should submit a cover letter, a current CV, a published or unpublished academic article, a brief research agenda, and an indication of teaching interests (if not listed on the CV) to the chair of the Appointments Committee: Professor Joanna Shepherd, at [email protected]. Applications will be considered on a rolling basis.
August 21, 2024 in Help Wanted, Law Schools | Permalink | Comments (0)
Samsung's Chutzpah Rewarded in the Seventh Circuit
We blogged about the District Court ruling in this case, in one of our first ventures into the realm of mass arbitration. The relevant facts, which have nothing to do with the merits of plaintiffs' claims, are pretty straightforward. Paula Wallrich and thousands of others filed arbitrations claims against Samsung with the American Arbitration Association (AAA). For what it's worth, they alleged that they had purchased Samsung devices and that those devices unlawfully collected and stored sensitive biometric data in violation of the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 et seq. While plaintiffs paid their arbitration fees, Samsung refused to pay its $4,1250,000 arbitration fees. The AAA gave plaintiffs the option of fronting Samsung's fees. When plaintiffs refused, the AAA responded by terminating the arbitration proceedings. In a role reversal, plaintiffs went to the District Court seeking an order compelling arbitration. The District Court granted that motion and then stayed the case pending arbitration.
Having rejected Samsung's challenges to its jurisdiction, the District Court addressed Samsung's remaining claims, as we discussed in the following terms:
Samsung's remaining arguments smack of chutzpah. Having prevented the arbitrations mandated by its terms of service from taking place by refusing to pay fees, Samsung now argues that the federal courts lack the authority to compel it to arbitrate or to pay the fees. No problem, Samsung insists, either because the plaintiffs can now just proceed in court, or better still, plaintiffs cannot proceed either in arbitration or in court because the federal courts lack the power to second-guess the AAA's refusal to reopen the arbitration proceedings.
In Wallrich v. Samsung Electronics America, Inc., the Seventh Circuit agreed with Samsung. The court first found that plaintiffs had not met their burden of proving the existence of an arbitration agreement. Moreover, even if there were an agreement, it would be governed by the AAA, which empowers arbiters, not courts, to determine fee disputes.
The court first addressed some jurisdictional issues. Plaintiffs claimed that the Seventh Circuit could not hear an interlocutory challenge to stay a proceeding pending arbitration under §§ 16(a)(3) and 16(b)(1) of the Federal Arbitration Act (FAA). The court pointed out that the limitation on appellate courts' jurisdiction to review interlocutory orders relates to orders under Section 3 of the FAA, but the challenged order relates to Section 4. This may be a fair reading of the statue and is consistent with the holdings of two other Circuit Courts, or it may be yet another instance of the federal courts' new-found formalism. It's not clear why the FAA would prohibit interlocutory appeals from Section 3 motions to compel but not Section 4.
Turning to the merits, the Seventh Circuit held that plaintiffs had not met their burden to establish an enforceable arbitration agreement. Why?
- Plaintiffs' arbitrations demands, attesting to the fact that they bought Samsung products were signed by plaintiffs' counsel and not by plaintiffs themselves;
- Samsung's terms and conditions, which clearly create an arbitration agreement are not evidence of an arbitration agreement between Samsung and the class members -- anybody could have pulled those terms off the Web; and
- The AAA's determination that plaintiffs had met the AAA's filing requirements also does not prove that they agreed to arbitrate
Okay. Fine. The AAA was satisfied. The District Court was satisfied. Let's remand and give plaintiffs another show to supplement the record. As the court acknowledges, anything will do -- receipts, order numbers, confirmation numbers, declarations signed by the plaintiffs, anything. Nope. Too late. Plaintiffs got their bite at the apple, and they blew it.
Samsung, however, gets multiple bites at the apple. The District Court took a very different approach. Plaintiffs attorneys compiled a list of claimants. Samsung compared that list to its own list of consumers and challenged some of the names. Plaintiffs lawyers removed some names from the list and Samsung made no further challenges. The District Court treated that failure as a concession that the remaining claimants were indeed Samsung customers subject to Samsung's arbitration agreement.
In any case, even if plaintiffs could prove an arbitration agreement, the parties agreed to play by the AAA's rules. Those rules grant the AAA discretion over fee disputes. Plaintiffs had the option to arbitrate by paying millions of dollars in fees up front. Why on earth did they refuse to do so? [sarcasm]
Judge Easterbrook (right) was on the panel. I owe Judge Easterbrook an apology. Reflecting on Judge Easterbrook's decision in Campbell, I accused him of inaugurating a regime of "Arbitration for All," including an employee subject to an arbitration agreement permeated with unconscionability. I concede that I misjudged Judge Easterbrook. He does not favor arbitration for all in situations when Bartleby's defense is available to a well-resourced defendant.
Hat tip to Tamar Meshel for alerting me to the case and for additional engagement.
August 21, 2024 in Commentary, Recent Cases | Permalink | Comments (0)
Tuesday, August 20, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for August 20, 2024
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 21 Jun 2024 - 20 Aug 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 1,937 | |
| 2. | 196 | |
| 3. | 181 | |
| 4. | 167 | |
| 5. | 151 | |
| 6. | 150 | |
| 7. | 140 | |
| 8. | 131 | |
| 9. | 127 | |
| 10. | 120 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 21 Jun 2024 - 20 Aug 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 181 | |
| 2. | 167 | |
| 3. | 151 | |
| 4. | 51 | |
| 5. | 44 | |
| 6. | 41 | |
| 7. | 40 | |
| 8. | 40 | |
| 9. | 32 | |
| 10. | 26 |
August 20, 2024 in Recent Scholarship | Permalink | Comments (0)
Tenured Law Professor Seeks Declaratory Judgment that She Was Wrongfully Terminated
Professor Lauren Gilbert (left) has taught at the St. Thomas University School of Law since 2002, with tenure since 2009. On July 18th of this year, she was informed by letter that her employment was terminated, effective July 19th. Here attorney tells the story over at The Faculty Lounge. The termination letter stated grounds for her termination.
Last week, Professor Gilbert filed a complaint seeking a declaratory judgment stating that she was wrongfully terminated. She seeks reinstatement and back pay. According to the complaint, Professor Gilbert was not terminated in accordance with procedures set out in the University's Faculty Handbook. Until such procedures are complied with, according to the complaint, Professor Gilbert is entitled to retain her position and her salary.
The grounds for the termination have a something old, something new, something troubling, something trivial aspect to them. There was a serious incident in 2010 which resulted in her suspension without pay for two weeks. There are serious allegations of a non-chalant response to an active shooter situation in 2022, which resulted in a written reprimand. And then there were a number of incidents in the past academic year that sound to me like what happens when a faculty is factionalized and some faculty think that the administration is taking actions without proper consultation with faculty. I have been on such a faculty, and many of us behaved badly at times. Nobody was fired. And in fact, much as we bickered behind close doors, faculty members continued to do their jobs, and I think we presented a united front for the students for the most part. The last straw for St. Thomas's administration (I'm not making this up) was that Professor Gilbert did not attend graduation. Although she gave one month's notice that she would not attend, she neither sought nor received permission to skip the event. This, the administration characterized as "yet another act of insubordination by you." Cue the gif of a soccer player pretending to writhe on the pitch in pain after tripping over a blade of grass.
The termination letter then goes on to quote something called the St. Thomas University Employee Handbook, which the University claims trumps the Faculty Handbook with respect to matters "outside of the classroom and/or academic pursuits." This case will have faculty members running to check out their own university's employee handbook, of whose existence they are, at most, dimly aware. In any case, it is some sort of a problem, although perhaps not a justiciable one, if there is significant daylight between what the Employee Handbook permits the University to do and tenure guarantees required by the relevant accrediting agencies.
Stay tuned. Let us hope for a happy resolution for all involved.
August 20, 2024 in Current Affairs, Law Schools, Recent Cases | Permalink | Comments (1)
Monday, August 19, 2024
Reviewing Larry DiMatteo and Irma Russell and Barbara K. Bucholtz, Part II
This is the second post in my series on Larry Di Matteo's Principles of Contract Law and Theory (Principles) and Irma Russell and Barbara K. Bucholtz's Mastering Contract Law (Mastering). The aim is to all some attention to these two books while using them to stimulate my thinking as I once again consider how to teach contracts law to first-year students. The two books are very different. Principles is a scholarly textbook addressing advanced topics at a very high level of sophistication. Mastering is a study-guide for first-year students. They both have their charms, but they are very different. Each entry in this series will cover a chapter in each book, with some splitting of chapters because the books don't have the same number of chapters. Most weeks, the chapters will not cover corresponding subject-matters. So be it.
The second chapter of Principles is a foray into comparative contracts law. It covers the differences between civil and common-law approaches, reciprocal influences, the internationalization of contracts law, and hard and soft law.
Principles identifies two virtues of the comparative perspective. First, knowing other traditions leads us to the humbling recognition that our way of doing things is not the only plausible way. Second, we can take some comfort as Professor DiMatteo reminds us of Hugh Beale's insight: despite differing terminologies that seem to divide the traditions, commonalities predominate. (36-37) Some of these commonalities are the product of legal transplants, and Principles highlights some imports into our common-law system that come from surprising sources. (37). Especially in private law, convergence between common law and civil law is the norm, either through revision or transplant. (40) Exceptions are rare. Specific performance is a standard remedy in the civil system and extraordinary in the common law. (45) Civil law enforces penalty clauses; common law does not. (45-46) More fundamentally, civil law is code based, and courts fill gaps through extrapolation and analogy. Common law courts are suspicious of legislation and construe statutes narrowly to avoid sudden jolts to the slow liquidation of legal norms based on precedent. (40)
One area of notable difference that occupied a lot of time at the recent KCON Conference is good faith. The concept is fundamental in civil law, an implied term in contracts in the U.S., and largely avoided in UK law, outside of the context of consumer contracts. (41-43) Unlike in the U.S., civil law imposes a duty to negotiate in good faith, and failure to do so might result in an award of reliance damages to the non-breaching party. (46-47)
The traditions also differ in interpretive matters. Common law courts attempt to get at the intentions of the parties. Civil courts attempt to determine what category of contract the parties intended and then use the statutes relevant to that category to fill in gaps. (48) Civil law also recognizes fault in contract, and thus the breaching party can sometimes allege that the non-breaching party was negligent or contributed to the fault. Fault comes into the common law indirectly through doctrines like good faith, unconscionability, and other defenses to formation. (49-50)
Internationalization came to contracts through the CISG, which was adopted in 1988 and now has been ratified by over 100 states. It illustrates internationalization but also convergence, as it was the product of negotiations among representatives of both the civil and the common law traditions. Principles then provides a summary of some differences between the CISG and the UCC/common law, contrasting the more seller-friendly approach of the former with the latter's more buyer-friendly approach. (50-53) Finally, Principles discusses hard law obligations found in international agreements and the soft law obligations that make up the lex mercatoria, comprised of trade usages, business practices, and commercial customs. (54-55)
Chapter II of Mastering provides a short road map of definitions and guiding principles. The Authors begin with a brief, clear, helpful discussion of what a contract is and how the word "contract" relates to similar terms, such as "bargain" or "agreement." (13-14) An agreement, the Authors explain, entails a bargain, but it may go beyond that, as the agreement of the party may entail implied terms. Not all agreements are contracts, in the sense that courts may not enforce an agreement in certain circumstances, for example if it is a contract to perform some illegal service. (14-15)
Next, the Authors introduce the concept of freedom of contract, but they also note that freedom is tempered by public policy. (15). They illustrate the limitation on freedom on contract with a discussion of illegal contracts. In that section, they also note that freedom of contract entails the freedom not to contract. (15-17) The stage-setting proceeds very rapidly. This was a very short chapter. Some of the chapters to come are far more lengthy and may end up getting split into multiple posts.
The first post in this series can be found here.
August 19, 2024 in Books, Contract Profs, Recent Scholarship, Teaching | Permalink | Comments (0)
Continued Incredulity Over Snyder v. United States
I blogged about this case after oral argument, and SCOTUS produced the predicted 6-3 party-line endorsement of public corruption. The opinion by Justice Kavanaugh amply illustrates just how inept this Court is at recognizing corruption.
James E. Snyder was elected Mayor of Portage, Indiana in 2011. In 2014, Mr. Snyder accepted a $13,000 check from a company, Great Lakes Peterbilt (Peterbilt). Federal prosecutors concluded that this payment was an illegal gratuity, paid to reward Mr. Snyder for steering a $1.1 million garbage truck purchasing contract to the company. Mr. Snyder contended that the payment was for consulting services. A federal jury believed the government's version of events, and a District Court sentenced Mr. Snyder to 21 months in prison. The Supreme Court took the case in order to determine whether the relevant federal statute, 18 U. S. C. §666(a)(1)(B) covers gratuities, paid as a reward, as well as bribes paid in advance of some benefit that the recipient, a government official, provides to the payor.
Justice Kavanaugh (right), writing for the majority, considers "text, statutory history, statutory structure, statutory punishments, federalism, and fair notice," and concludes that the statute applies only to bribes, not to gratuities. Indiana law may very well prohibit Mr. Snyder's conduct, but he was never prosecuted under Indiana law. Nothing to see here, folks.
Justice Kavanaugh does provide cogent reasons for a narrow reading of the statute. Two of the six Circuit Courts to confront the issue also concluded that § 666 is only about bribery and not about acceptances of gratuities. He could have just gone with text, statutory history, and statutory structure, and the opinion would have been okay. Justice Gorsuch briefly concurred, arguing that the scope of the statute is unclear, and in such cases, the rule of lenity counsels forbearance of prosecution.
Instead Justice Kavanaugh engages in a meandering discussion of what he calls fair notice. He is concerned about the possible overbreadth of the statute and its use to punish innocuous gifts, such as $100 gift cards at Dunkin' or students taking their college professors out for Chipotle or buying them tickets to a sporting event.
Here my incredulity kicks in. First, of course, the problem is not in taking gifts but in accepting them as a gratuity for some wrongful purpose. I'm not sure politicians should be accepting giftcards from businesses if there is any connection between the gift card and public affairs in over which the politician has influence or decision-making power. But if they engaged in such conduct, it would be the government's burden to convince a jury that a politician engaged in an act of official corruption in exchange for a $100 gift card at Dunkin'. All Mr. Snyder had to do was show that he did some actual work in exchange for his $13,000 gratuity. As the dissent points out, he made no such showing.
It would not be a wrongful act if all of the students in a particular course or section bought their professor a meal or some other gift, so long as there were no connection between the gift and the grade.
But I don't accept gifts from individual students. First, I am comfortably situated, and my students are students. I would not want to contribute to a culture in which students think it appropriate to transfer wealth or resources upwards. I wouldn't want students to think that there were some expectation that they buy gifts for their professors. I make an exception when student organizations give me small gifts for participating as a panelist or moderator for their events. I make this exception as a cultural accommodation because they give the same gifts to all faculty members or outside speakers who participate. I wish they wouldn't give me the gifts, but it would be awkward and churlish were I to reject the gifts that the students selected for me and which my colleagues accept. However, I usually re-gift these things because otherwise I will forget about them, and they will collect dust in my office until I re-discover them years later.
Perhaps I would feel differently about these things if, like Justice Kavanaugh, I had attended elite private schools all my life in which many of my peers were far better off financially than their teachers. But I think that says more about the lack of socio-economic diversity on the Court than it does about the ethics of the situation.
This isn't hard. I am well-compensated, and my power relations with my students are asymmetrical. Students can't afford to buy me gifts, and I can't afford the appearance of impropriety that would arise should I accept their gifts.
Not for nothing, on the subject of fair notice, it seems worth pointing out that Justice Kavanaugh joined the majority opinion in Campos-Chaves v. Goya, an immigration case decided less than two weeks before Snyder. The issue in that case was whether immigrants can be ordered removed from the United States in absentia when they were not provided with the statutorily required "notice to appear." That case actually was actually about notice and the stakes were higher than in Snyder. After all, is it even plausible to think that Snyder, whose conduct could have been punished under state law, took a gratuity because he thought the federal statute only covered quid pro quo graft? But in Campos-Chayes, Justice Kavanaugh agreed with the Majority that a later "notice of hearing" sufficed, even though the latter was to be provided only as a supplement to the required "notice to appear" in case of change or postponement in the time or place of removal proceedings. So, forgive me for thinking that Justice Kavaugh's commitment to the principle of notice is selective.
In any case, Justice Jackson, writing for the three dissenting Justices, has the better textualist reading of the statute, which punishes corruption, whether the improper payments involve quid pro quo influencing or post hoc rewards. Her reading of the statutory history and the relationship of the statutory language at issue to other federal statutes covers material in depth where the Majority opinion barely scratches the surface.
Justice Kavanaugh expresses concerns about federalism, but Congress addressed those concerns when it passed the statute. Yes, states are expected to police their own corrupt politicians. However, when state entities accept federal funds, Congress recognized a need (evident from this very case) for a federal supplement to state anti-corruption measures.
Justice Kavanaugh worries about where to draw the line between corrupt and innocent gratuities. That, Justice Jackson responds, is a question for another day, because Mr. Snyder is not arguing that what he did was innocent. He argues that the federal statute does not reach his conduct, even if it was corrupt. Justice Jackson then proceeds to illustrate the statutory guardrails already in place to address the danger about which Justice Kavanaugh worries. Nobody is going to jail for accepting a gift card, unless they do so "corruptly." Prosecutors, courts, and juries do pretty well distinguishing corrupt from innocent gifts.
Finally, Justice Kavanaugh cites to evidence that bribery is a much more serious crime than taking gratuities corruptly. He may be right that courts and statutory schemes make it so, but Justice Jackson points out that the two forms of corruption can be quite similar. In this case, Mr. Snyder apparently shepherded a contract to Peterbilt and then showed up at their offices demanding a $15,000 payment because he needed money. He got $13,000. He characterized that payment as a consulting fee, but he also called it other things. Peterbilt said that he never provided any services to them. A jury likely concluded that Mr. Snyder was lying. How is what he did any better than demanding the payment up front? Should the law care whether I demand that you pay me $13,000 in order to steer a contract your way or demand that you pay me $13,000 once I have successfully steered a contract your way?
So, bottom line; As a matter of federal law, it is not a crime for a state politician to accept after-the-fact gratuities in exchange for political favors. In related news, as a matter of federal law, states and localities can make it is a crime to sleep in public.
August 19, 2024 in Commentary, Government Contracting, Recent Cases | Permalink | Comments (0)
Friday, August 16, 2024
Golden Gate University Law Students Sue Over Law School's Closing
As a member of the Valparaiso University Law School diaspora, I am always intrigued by stories about closing law schools. As Christine Charnosky reported for Law.com in March, the ABA has approved a teach-out plan for Golden Gate University Law School (the Law School), which has shuttered its J.D. program. Financial struggles and low bar passage brought down the law school. My heart goes out to faculty and staff, whose fine qualities often do not translate into financial viability or professional success for students, especially in California, given its notoriously difficult bar exam. I know how it feels to try to keep a law school alive in such circumstances, and I hope that everyone finds a happy new home. If it's any consolation, almost all of my colleagues from Valpo landed great jobs, while others are enjoying their retirements -- a few years ahead of schedule. Golden Gate will continue to offer law courses for its graduate and undergraduate programs. It's not clear how many faculty members it will retain for those purposes.
Students will be able to finish their legal training at the University of San Francisco Law School or at the Mitchell-Hamline Law School. But not all students are accepting the offer. In February, four students and the Golden Gate University Alumni Association filed a suit in state court alleging claims for breach of contract and fiduciary duty, promissory estoppel, fraud, and unlawful business practices. They sought injunctive relief and the appointment of a receiver. They followed up in June with a motion for injunctive relief.
The allegations of the complaint are based on the fact that the Law School's Dean announced the closure of the Law School at a time when the ABA had not yet approved the Law School's teach-out plan. Doing so, the complaint alleges was a breach of a contract, embodied in the Law School's Student Handbook. The complaint further alleges an implied contract under California law that educational institutions will not close prior to students' graduation. As we learned from the COVID cases, whether or not a Student Handbook constitutes a contract, or whether one can be implied usually involves more than blanket allegations that, e.g., the Handbook "undoubtedly" constitutes a contract.
The Promissory Estoppel claim is based on a promise to the student-plaintiffs of a three-year full-tuition scholarship. If, as I expect, Golden Gate plans to pay the tuition for the students so that they can complete their educations at other law schools, it is hard to see how the students suffer monetary harm. In their motion for injunctive relief, the students allege that they will be harmed by being required to move to Minnesota, so maybe that's right. But Mitchell-Hamline offers a blended-learning program, which may have been the reason why it was chosen as a partner for the teach-out. While the Law School has yet to detail its plans for reimbursing students for travel to Minnesota, that does seem to be the plan, as acknowledged in the brief in support of the plaintiffs' request for injunctive relief.
The remaining causes of action seem to me a stretch, but I can't claim sufficient familiarity with the relevant bodies of law to comment beyond that. But the bigger challenge it seems to me is the appropriate remedy even if they do succeed on their claims. The ABA has now approved the Law School's teach-out plan, so the alleged improprieties that were the original basis for the complaint seem to have been remedied, at least in part. They seem to want the court to order Golden Gate University to allow them to complete their degrees. But there are only four of them. I can't see a court ordering a J.D. program to remain open because four students don't want to travel to Minnesota. One plaintiff is foregoing her scholarship and transferring to a different law school because Mitchell-Hamline does not have a robust enough program in her desired field.
According to Julianne Hill reporting for the ABA Journal, the court has set a hearing on the request for injunctive relief for September 13th. By then, students will be well into their first semesters at the partner law schools. That seems like something like a pocket denial of the injunction, and then the only question would be whether students are entitled to damages.
August 16, 2024 in Commentary, Law Schools, Recent Cases | Permalink | Comments (0)
Thursday, August 15, 2024
Disney, Contracts of Adhesion, and Arbitration-Clause Bootstrapping
Disney is in the news this week, and not in a good way. For the truly awful facts of the case, you can't do better than Emily Crane's and Alexandra Steigrad's reporting in the New York Post here and here. In short, Dr. Kanokporn Tangsuan had severe allergies. She ate in a Disney restaurant. She informed the restaurant of her allergies and the restaurant staff gave repeated assurances that her food was allergen-free. Soon after her meal, she was dead, and an autopsy revealed that her death was caused by allergens.
Okay, those are terrible facts. But what's going on with arbitration clauses in contracts of adhesion is, perhaps less dramatic, but still highly concerning. Christopher Leslie has described what he terms "arbitration bootstrapping." Professor Leslie defines bootstrapping as the corporate practice of loading "mandatory arbitration clauses with unconscionable contract terms." Richard Frankel has published a thoughtful response here. Increasingly, we are seeing a new form of arbitration bootstrapping; let's call it "arbitration-clause bootstrapping." Once a consumer has "agreed" to an arbitration provision through one interaction with a business entity, that entity then tries to apply that same arbitration provision to some completely unrelated interaction with the entity. I've been stockpiling posts all summer, and I keep on coming across these situations. Earlier in the summer, we wrote about Andrea Boyack's scholarship on abuse on contract, and there's plenty more where that came from.
So, getting back to the case, when Dr. Tangusuan's husband, Jeffrey Piccolo, sued Disney for negligence, Disney responded with a motion to compel arbitration. It did so on two grounds. First, Mr. Piccolo years ago signed up for a trial subscription to Disney +, and when he did so he "agreed" that all disputes should go to arbitration. Second, one month before his wife's death, Mr. Piccolo bought tickets to the Epcot theme park using the "My Disney Experience" app, which also has an arbitration provision. So, Disney's argument seems to be if you "agree" to arbitration with respect to one transaction with the company, you are agreeing to arbitration with respect to all interactions with the company. And, as Christopher Leslie's scholarship suggests, that arbitration provision can be used to bootstrap additional terms, that otherwise might not be enforceable, into the parties' "agreement." As Andrea Boyack's scholarship illustrates, consumers do not read the boilerplate terms of contracts of adhesion, hence the scare quotes bracketing forms of the word "agree" throughout this post.
You might wonder what's so bad about arbitration. Substantively, there might not be any difference in this case. Still, I can think of at least two reasons why Mr. Piccolo and his attorneys might prefer litigation. First, they might trust a jury rather than an arbitral panel to appropriately value their claim. Second, they might want the publicity associated with litigation to shine a spotlight on Disney's conduct. Of course, Disney's arbitration-clause bootstrapping has not helped it to avoid publicity in this case. Nonetheless, both of those reasons to prefer litigation are also reasons why the threat of litigation enhances the settlement value of the claim.
None of this might matter in this case. Even if the court allows Disney to engage in arbitration-clause bootstrapping, it might not think that the arbitration clause applies in this case, given that the suit is being brought on behalf of Dr. Tangusan's estate, which never "agreed" to arbitration.
UPDATE: David Horton (left), who is either maddeningly youthful or really needs to update his website, has provided a link to Disney's motion to compel. My post noted that the estate is not a party to an arbitration provision. David adds that neither is the defendant in the case, Walt Disney Parks and Resorts, U.S., Inc. David's forthcoming article Accidental Arbitration, which was on my summer reading list but is now on my urgent reading list, covers the subject matter that I have called arbitration-clause bootstrapping. He speaks of it in terms of defendants attempts "to enforce ultra-broad arbitration agreements that nobody at the time of contracting could have foreseen would be relevant to the lawsuit." It is a topic that he also addressed in his already-published article Infinite Arbitration Clauses.
August 15, 2024 in Commentary, Current Affairs, Food and Drink, In the News, Recent Cases, Recent Scholarship, Web/Tech | Permalink | Comments (0)
Oklahoma Supreme Court Finds Contract for Catholic Charter School Violates the Establishment Clause
I mean, is anybody really surprised? This case was brought by Oklahoma's Attorney General, Gentner Drummond (right), a conservative Republican, who believes in the rule of law. That quality has caused a series of clashes between the Attorney General and the more committed cultural warriors in his party.
In this case, Oklahoma's Virtual Charter School Board (the Board) has exclusive authority to form virtual schools. In October, 2023, the Board voted 3-2 to approve a charter contract with St. Isidore, a charter school formed by the Catholic Archdiocese of Oklahoma City and Catholic Diocese of Tulsa. St. Isidore describes itself as an instrument of the Catholic Church committed to the Church's evangelizing mission.
The contract entered into between the Board and St. Isidore departed in key ways from the standard contract that the Board entered into with other charter schools. While a typical charter school must warrant that it is not affiliated with a sectarian school or religious institution, the contract with St. Isidore states that St. Isidore is affiliated with a sectarian school or religious institution. Other charter schools have to be non-sectarian. St. Isidore's contract specifically recognizes its right to freely exercise its religious beliefs and practices consistent with its religious protections.
On June 25th, in Drummond v. Oklahoma Statewide Virtual Charter School Board, by a vote of 7-1, with one Justice recused, Oklahoma's Supreme Court found that the Board's plan to allow for a publicly-funded Catholic charter school violates Oklahoma's constitution. Six Justices also found that the contract violated the federal Constitution's Establishment Clause.
The Supreme Court first concluded that the Board's contract with St. Isidore violates Article II, Section 5 of the Oklahoma Constitution, which reads:
No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.
That seems pretty clear, and Oklahoma courts have repeatedly construed this provision as prohibiting state funding for sectarian schools. Consistent with the state constitution, the Act allowing for the creation of charter schools also requires that they be non-sectarian.
The Supreme Court next finds that St. Isidore is a state actor because of its reliance on state funding. I'm not sure why this holding is even necessary to the outcome of the case, as the suit is brought in mandamus against the Board. St. Isidore intervened. The point of the case is that the Board should be enjoined from contracting with St. Isidore. I suspect that finding St. Isidore to be a state actor is relevant to the Court's Free Exercise discussion, which I summarize in the next paragraph.
Finally, the Court turns its attention to the U.S. Constitution. It first finds that the contract with St. Isidore also fails under the U.S. Constitution's Establishment Clause. It next finds no violation of the Free Exercise Clause, notwithstanding the recent trilogy of SCOTUS cases allowing for public funding to flow to private sectarian schools for certain purposes. The difference here is that St. Isidore would be a public school.
The ability to admit that one is wrong about the law has been excised from the DNA of many Republican politicians. And so, Oklahoma's Superintendent of Schools, Ryan Walters, previously discussed on this blog here and here and here, without the benefit of any legal training, doubles down on his commitment to state-funded religious eduction, writing on Twitter:
It’s my firm belief that once again, the Oklahoma Supreme Court got it wrong. The words ‘separation of church and state’ do not appear in our Constitution, and it is outrageous that the Oklahoma Supreme Court misunderstood key cases involving the First Amendment and sanctioned discrimination against Christians based solely on their faith.
Mr. Walters cites to the lone dissenting Justice (whose opinion can be found here), who found that because St. Isidore is not a state actor, denying it the opportunity to run a virtual charter school violates the U.S. Constitution's Free Exercise clause. Because the dissent finds that St. Isidore is not a state actor, the relationship between the Board and the school is purely contractual, and there is nothing unconstitutional about the state contracting with sectarian entities. Moreover, following on recent SCOTUS cases allowing state funds to flow to sectarian schools, the dissenting Justice finds that the Majority's order that the Board rescind its contract with St. Isidore violates the Free Exercise Clause.
This is a cutting-edge argument and an opportunity to petition SCOTUS for review. SCOTUS has gone quite far in eliminating the "play in the joints" that once characterized its understanding of the First Amendment's religion clauses. It used to be that states could allow funds to flow to sectarian educational institutions, either to be used for non-sectarian purposes or indirectly by allowing students or parents to direct state fellowships or education vouchers to the schools of their choice. Recently, SCOTUS has held that where public education funds are available to private non-sectarian schools, they also must be available to private sectarian schools. Will SCOTUS be willing to take the next step and allow for the creation of public sectarian schools? Stay tuned.
August 15, 2024 in Commentary, Current Affairs, Government Contracting, In the News, Recent Cases, Religion | Permalink | Comments (1)
Wednesday, August 14, 2024
Reviewing Larry DiMatteo and Irma Russell and Barbara K. Bucholtz, Part I
Students often ask me to recommend study aids. I give them two bits of contradictory advice. First, I tell them they don't need any study aids for my course and that such aids might panic or confuse them. Then I tell them that I've never found a bad one. They all provide reliable, insightful, interesting takes on the material. The dangers is only that they contain more wisdom than first-year students can digest. The only thing I don't recommend is the thing they are most likely to use -- Quimbee videos.
But you know who does benefit from reading study aids, hornbooks, and treatises? Contracts Profs. I volunteered some time ago to review a book by Larry Di Matteo (right) and another by Irma Russell (below left) and Barbara K. Bucholtz (below right). It has taken me a while to get to it, but I have decided to review them side-by-side, and chapter by chapter as I use them to help me refresh my approach to teaching contracts. I should add that, while Professor DiMatteo's book is still quite new, having been published in 2023, Irma Russell and Barbara Bucholtz's book dates from 2011.
After a short preface, Professor DiMatteo's book, Principles of Contract Law and Theory (Principles) begins with an introduction, covering history, law and equity, justifications for contract law, rules principles, and standards, specialized rules, and boundaries of contract. As the preface makes clear, unlike most American books on the subject, Principles devotes equal time to UK and American law. The book could serve as a textbook for "intermediate students" but also as a reference for scholars and practitioners looking for an introduction that will situate contracts doctrine in a theoretical frame. (xviii)
Indeed, this is not material that I would recommend to first-year students. Principles delves briefly and deftly into topics, like the relationship between canon law and common law (4-6), that are not usually the stuff of contracts hornbooks. The subject-matter is interesting and leaves the reader wanting more. The work is lightly footnoted. For one used to the obsessive footnoting of law reviews, this makes for comfortable reading, but at times I wished I knew the sources in case I wanted to learn more about, say the role of late-19th century treaties in "developing a more rational and comprehensive system of rules and principles" (13) or how prior to the nineteenth century "much of contract theory was anchored in the Aristotelian idea of contract as commutative justice." (15)
There is a great deal that could be unpacked in the way Principles approaches justifications, drawing clear-cut lines between English law's preference for certainty and predictability, which yields formalist, bright-line rules, and the U.S. preference for justice in the particular case, which makes American law more open to squishy principles like good faith, unconscionability and good faith. (17-18) I assume these contracts get fleshed out in later chapters. There is a richness in this opening chapter to which I cannot do justice in this space. Suffice to say that it sets the table in way that leaves the reader hungry to learn more about literally dozens of subjects.
In the introduction to their book, Mastering Contract Law (Mastering), Professors Russell and Bucholtz make clear that their book aims to provide an overview of topics covered in the first-year contracts course. However, it supplements its organization built on proving elements of a contract claim with an exploration of some of the transactional aspects of contracts law. (xxv)
The first chapter addresses some preliminary matters before they move into the substance of doctrine. Some of these matters, like seriousness of intention (2) and the UCC (7), are addressed briefly in just a paragraph, with indications of more to come in later chapters, while other topics, like the interests protected under contract law (2-4) and the movement towards uniform law (7-9) get lengthier, through still introductory treatment. The discussion of the interests protected under contract law covers expectation, reliance, and restitution. The section on the movement towards uniformity focuses on the American Law Institute's Restatements and covers the history of the two Restatements of contracts law and the status of the Restatements as persuasive authority.
I'm a bit troubled by their section on implied-in-law and implied-in-fact contracts. I don't think it's a good idea to link these ideas in students minds, as the former are not contracts, while the latter are contracts every bit as much as express agreements. I am also a bit miffed that Mastering uses Wood v. Lady Duff-Gordon to illustrate implied-in-fact contracts. That case involved an express agreement. Judge Cardozo did not imply a contract in that case; he implied a term. Similarly, the discussion of Sullivan v. O'Connor seems misplaced in this section, as Mastering uses that case to illustrate different measures of damages rather than implied contracts, whether in law or in fact.
These quibbles aside, the opening chapter provides clear guidance on a number of topics. It begins with five basic questions that one can ask of a typical contracts problem (1-2), and it concludes with six "checkpoints" that provide a quick overview of the first chapter's themes.
August 14, 2024 in Books, Commentary, Contract Profs, Recent Scholarship | Permalink | Comments (0)
Immigrants Can Sue Department of Homeland Security for Breach of Contract
As alleged in the complaint, the Department of Homeland Security (DHS) offered classes to unsuspecting immigrants at the "University of Farmington." Members of the proposed plaintiff class paid thousands of dollars, but the University of Farmington, notwithstanding its very real-looking logo (left), was a ruse, set up to target fraud involving student visas. Once the government sting operation was exposed as a scam, plaintiffs allege they were offered neither the education for which they had paid nor a refund. The named plaintiff paid $12,500 in tuition for courses that purportedly would lead to masters degree in information technology.
They sued in the U.S. Court of Federal Claims, alleging breach of contract and breach of the duty of good faith and fair dealing. That court dismissed for lack of subject-matter jurisdiction under the Tucker Act. The government claimed to be acting in its sovereign capacity and had not consented to suit.
In Ravi v. United States, the Federal Circuit reversed. The Federal Circuit diverged from the Court of Federal Claims in their understanding of a 1981 precedent, Kania v. United States, 650 F.2d 264 (Ct. Cl. 1981). In fact, the Federal Circuit generally eschews the locution "sovereign capacity doctrine," relied on by the government at the Court of Federal Claims, finding the phrase confusing given that the government always acts in a sovereign capacity. Kania is readily distinguishable -- it was about a government promise to a prospective witness in the context of a criminal proceeding. The promise seemed to be that in exchange for testimony in proceeding A, the witness would not be prosecuted in proceeding B. Mr. Ravi's case lacked the criminal element as well as an unrelated case. It was a straightforward promise from the government to provide educational services in exchange for payment.
Plaintiffs still have many barriers to overcome, and the case is remanded for further proceedings. Still, the case is important because it goes to great lengths to clarify the narrowness of the Kania precedent.
Hat tip to Carrie Rosenbaum (right), who teaches both contract and immigration law, for sharing the case with me, and hats off to Anna Nathanson and Amy Norris for their win on the case.
August 14, 2024 in Government Contracting, Recent Cases | Permalink | Comments (0)
Tuesday, August 13, 2024
Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for August 13, 2024
Top Downloads For:
Contracts & Commercial Law eJournalRecent Top Papers (60 days)
As of: 14 Jun 2024 - 13 Aug 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 1,748 | |
| 2. | 229 | |
| 3. | 195 | |
| 4. | 173 | |
| 5. | 160 | |
| 6. | 144 | |
| 7. | 137 | |
| 8. | 135 | |
| 9. | 126 | |
| 10. | 111 |
Top Downloads For:
Law & Society: Private Law - Contracts eJournalRecent Top Papers (60 days)
As of: 14 Jun 2024 - 13 Aug 2024| Rank | Paper | Downloads |
|---|---|---|
| 1. | 173 | |
| 2. | 160 | |
| 3. | 144 | |
| 4. | 111 | |
| 5. | 49 | |
| 6. | 39 | |
| 7. | 36 | |
| 8. | 36 | |
| 9. | 32 | |
| 10. | 31 |
August 13, 2024 in Recent Scholarship | Permalink
Workers Allege Fraudulent Inducement After Disney Asked Them to Move to Florida
According to Mike Schneider writing for the Associated Press, The Disney Company asked 2000 of its employees to relocate from Southern California to Florida, as Disney was planning to build a new company campus near its theme park in Orlando. The employees allege that Disney encouraged them to move through incentives and with the threat that their employment would be terminated if they did not move.
Even though some employees resisted the move, sometime between late 2021 and June 2022, when Disney announced that the move was delayed, plaintiffs sold their California homes and relocated to Florida. They allege that, even after Disney announced that its new campus would not open until 2026, it encouraged workers to move by 2024.
Enter a certain Florida governor (right), who started a culture war against Disney. In 2023, Disney announced that it had scrapped plans for a relocation. According to Mike Schneider's reporting, it instructed workers who had already moved to Florida that they could head back to California.
But with Disney's decision to cancel its planned construction in Florida, the housing market there declined, while housing prices in California continued to climb. Although employees worried about losing their jobs if they stayed in Florida, they also did not think they could afford to return to California. They are suing Disney, alleging fraudulent inducement.
Seems like a tough claim to win on, especially against a very well-resourced company. But all may still work out for the best in the Happiest Place on Earth. Mike Schneider also reports for The Associated Press that The Disney Company and the Governor entered into a fifteen-year development agreement in May in which Disney committed to pump $17 billion into the local economy over the next two decades. It is not clear what concessions Disney got in exchange for continuing its investment in the state. It seems like the Governor caused, or at least exacerbated, a lot of disruption in peoples' lives. Suing him is not an option, and of course, he too can argue that much of his conduct was fraudulently induced. He thought he was going to be President.
Recent scholarship by Jonathan Harris (left) suggests that there might also be an economic duress angle in cases like this. Such cases are hard to win. However, like a promissory estoppel claim, such a claim might improve the settlement value of the claim. If the employment at issue is at will, damages might be limited to expenses incurred, which might not even cover the attorneys' fees involved in suing a company like Disney. Hence, the need for a lawsuit that will be expensive enough
for Disney to defend that it will be brought to the bargaining table. Other recent work by Rachel Arnow-Richman (above right) and J.H. Verkerke (right) on Deconstructing Employment Law is also of note here on the problems with conceptualizing at-will employment as a form of contract under current doctrine.
As is so often the case, there was a flurry of media interest in this case back in June and now . . . crickets. I was hoping to be able to provide an update, but I guess the reporters have all moved on to the next story.
August 13, 2024 in Commentary, Labor Contracts, Recent Cases, Recent Scholarship | Permalink | Comments (0)
Monday, August 12, 2024
News From New Zealand: Whan a Man Disappoints a Woman, Is It Breach?
Six years into their relationship, which included periods of co-habitation, a man promised to take his girlfriend to the airport and look after her dogs while she was on holiday. When the day of travel arrived, he didn't show or return her calls. She missed her flight, rescheduled, and paid to put her dogs in a kennel.
Moreover, the two had planned to go on holiday together in December, 2023. The woman had bought a ferry ticket for the man, but again, he had stopped taking her calls, and she was stuck with a presumably non-refundable ticket.
The dogs and the ferry ride complicate matters, of course, but airport rides are high-stakes promises. When I lived in Valparaiso, Indiana, airport rides could be at least two hours round trip (Midway) or three or more (O'Hare). One was lucky to have one friend willing to take you to the airport. My beloved colleague, Rebecca Huss (right), treated airport driving as the highest level of friendship. I can easily imagine that Rebecca would have treated a six-year relationship as a probationary period during which she still was not obligated to driver her partner to the airport. That would be level-jumping. Once, when we thought our law school was going to relocate to Tennessee (long story), a bunch of us went down for a publicity shoot. I volunteered to use my car to ferry myself and some colleagues to O'Hare. When Rebecca said that she would come with me, I said, "Okay, but now you owe me a ride to the airport!" I did that because I knew that Rebecca would get steamed and shout "I'M NOT DRIVING YOU TO THE AIRPORT!!!" She didn't disappoint.
In the case at issue, the woman, identified as CL, decided to sue the man, identified as HG, for breach of contract in New Zealand's Disputes Tribunal. In a charmingly poorly-written order, perfect for the first day of teaching, the tribunal found that CL had not stated a claim for breach of contract. A good thing too, because had the tribunal found otherwise, it's not clear that anyone would have been able to reach HG to get him to pay up. He was invited to participate in a hearing by telephone, but "HG sent an email that he would not attend the hearing by answering his phone." Subsequent calls from the tribunal went unanswered. This man is one unfriendly ghost.
The tribunal found that there was no contract here because the parties never intended to be legally bound. "Although a promise was made, it falls short of being a contract. It forms part of the everyday family and domestic relationship agreements that are not enforceable in the Disputes Tribunal."
That strikes me as all there is to say, at least with respect to HG's promise to take CL to the airport. Airport rides are an act of Grace.
The order does not separately address the ferry ticket, and there might be a viable claim of promissory estoppel there. The tribunal's neglect of that issue may be a product of a pleading failure. CL might not have known of the doctrine. In the alternative, it may be that New Zealand law does not award damages for breach of a social promise, regardless of reliance.
Input on that last point would be welcome.
August 12, 2024 in Commentary, Recent Cases, Teaching, Travel | Permalink | Comments (0)
Friday, August 9, 2024
St. John's Law Seeks Law Professors, Including in Business & Transactional Law
ST. JOHN’S UNIVERSITY SCHOOL OF LAW seeks entry-level and lateral candidates to join our dynamic faculty. We are deeply committed to equity, inclusion, and anti-racism, and are particularly interested in candidates who will enrich our diversity. We are open to a variety of teaching and scholarly interests including Business and Transactional Law, Constitutional Law, Dispute Resolution, Environmental Law, Race and the Law, and Technology and the Law and have a special interest in Trusts and Estates.
St. John’s Law School is located in New York City in Queens, one of the country’s most diverse urban communities. We are part of St. John’s University, a Catholic, Vincentian, metropolitan, and global institution with campuses in New York, Rome, and Paris. Committed to academic excellence, we provide an education for all people, especially those lacking economic, physical, or social advantages.
Celebrating its 100th anniversary in 2025, St. John’s Law School is proud of its vibrant student body, high bar passage and employment rates, and influential legal scholarship. We boast a close-knit and supportive community among faculty, students, alumni, and staff. In compliance with the NYC Pay Transparency Act, the annual hire-on rate for entry-level assistant professors is $140,000 - $150,000, plus additional compensation in the form of summer research stipends and supplemental publication awards. Compensation for lateral candidates coming from faculty positions at other law schools is commensurate with the candidate’s experience. St. John's considers factors such as (but not limited to) scope and responsibilities of the position, candidate's work experience, education/training, key skills, and internal peer equity, as well as market and organizational considerations.
Candidates should have demonstrated potential for high scholarly achievement, teaching excellence, service, and a record of contributing to supportive and inclusive communities.
We will consider candidates in the AALS FAR, as well as direct applicants. Applications should include a cover letter, curriculum vitae, writing sample, a research agenda, the names of three references, and teaching evaluations (if available). Please send these materials in a single PDF to Claire Pollicino at [email protected]. Inquiries (but not application materials) may be directed to Professor Elaine Chiu, Chair, Faculty Appointments Committee at [email protected].
St. John’s University is an Equal Opportunity Employer that does not discriminate on the basis of race, color, national or ethnic origin, sex (including sexual harassment and sexual violence), sexual orientation, gender identity and gender expression, disability, religion, age, status in the uniformed services of the United States (including veteran status), marital status, status as a victim of domestic violence, citizenship status, genetic predisposition, carrier status, or any other classification protected under federal, state, or local law.
August 9, 2024 in Help Wanted, Law Schools | Permalink | Comments (0)
Thursday, August 8, 2024
Albany Law Needs Contracts Prof!
As part of our unitary tenure system, tenure-track opportunities are available across all positions. In addition, Albany Law School is poised to begin new programming that will increase online opportunities for our students and our faculty. Applicants should express their potential interest in teaching in an online format, although an applicant’s preference with respect to teaching format will not impact their candidacy.
Qualifications
We seek candidates with a strong academic record, capacity for scholarly merit, and whose work encourages innovative and critical thinking. Applicants must hold a J.D. degree or the equivalent and demonstrate a commitment to teaching excellence. Appointment rank will be determined commensurate with the candidate’s qualifications and experience.
For full consideration, applicants should apply by September 15, 2024, but we recommend that you submit your materials as soon as possible. To apply, please submit a cover letter, curriculum vitae, research agenda, writing sample, diversity statement, and the contact information for at least three references. Applicants seeking a lateral appointment are encouraged to apply as soon as possible and will be considered on a rolling basis. For more information about these opportunities, please contact Professor Jennifer Martin, Recruitment Committee Chair, at [email protected]. All applications must be submitted on our employment webpage.
The estimated salary range for this position is $90,000-$160,000 per year, plus comprehensive benefits package. Salary will be based on the rank and tenure status of appointment offered, the successful candidate’s relevant experience, knowledge, skills and abilities, and in consideration of internal equity.
August 8, 2024 in Help Wanted, Law Schools | Permalink | Comments (0)
