ContractsProf Blog

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.

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.

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.

Image by DALL-E

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.

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.

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.

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.

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for August 13, 2024

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 14 Jun 2024 - 13 Aug 2024

Rank	Paper	Downloads
1.	The Great Scrape: The Clash Between Scraping and Privacy Daniel J. Solove and Woodrow Hartzog George Washington University Law School and Boston University School of Law	1,748
2.	A Short History of the Interpretation-Construction Distinction Gregory Klass Georgetown University Law Center	229
3.	Private International Law: A Hungarian Perspective Csongor István Nagy University of Galway - School of Law	195
4.	Keeping ChatGPT a Trade Secret While Selling It Too Camilla Alexandra Hrdy Rutgers, The State University of New Jersey - Rutgers Law School	173
5.	Default Procedures Pamela K. Bookman Fordham University School of Law	160
6.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	144
7.	The Renaissance of Private Law Yotam Kaplan, Adi Libson and Gideon Parchomovsky Hebrew University of Jerusalem, Bar-Ilan University - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law, University of Pennsylvania Carey Law School	137
8.	The Merging of Ownership and Control Tomer Stein University of Tennessee College of Law	135
9.	Fairness in Market Instrumental Data Governance Tommaso Fia University of Tuebingen - Faculty of Law	126
10.	A Story of Two Holy Grails: How Artificial Intelligence Will Change the Design and Use of Corporate Insolvency Law Felix Steffek University of Cambridge - Faculty of Law	111

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 14 Jun 2024 - 13 Aug 2024

Rank	Paper	Downloads
1.	Keeping ChatGPT a Trade Secret While Selling It Too Camilla Alexandra Hrdy Rutgers, The State University of New Jersey - Rutgers Law School	173
2.	Default Procedures Pamela K. Bookman Fordham University School of Law	160
3.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	144
4.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	111
5.	Commuters Beware: Lawmakers and Rideshare Companies Jeopardize Passengers Jacob Guariglia University of Florida, Levin College of Law	49
6.	A Concept of Personal Autonomy Fit for Contract Law Diogo Tapada dos Santos CIDP	39
7.	Consumer Law and Artificial Intelligence Przemysław Pałka and Agnieszka Jabłonowska Jagiellonian University in Krakow - Faculty of Law and Administration and Leiden University - Leiden Law School	36
8.	Avoiding "Shall" when Expressing Policies Mark Cooney Cooley Law School	36
9.	Electronic Assent: Assuring the Review and Comprehension of Contract Terms in Franchising Robert W. Emerson University of Florida - Warrington College of Business Administration	32
10.	Cruising Beyond Car Dealer Dominance Piotr Tereszkiewicz Jagiellonian University in Krakow - Faculty of Law and Administration	31

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.

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.

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 100^th 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. 

Albany Law Needs Contracts Prof!

ASSISTANT/ASSOCIATE/PROFESSOR OF LAW

 

ALBANY LAW SCHOOL, in New York’s Capital City, invites applications from entry-level and lateral candidates for multiple faculty positions beginning in July 2025. We are committed to the diversity of our student body and faculty. We seek candidates with experience in teaching and mentoring students from groups historically excluded from higher education and the legal profession and whose work advances critical thinking on questions of importance to society. We welcome applications from qualified candidates across all areas and specializations, from core first-year classes to specialty upper-level courses. In addition, we have particular interest in candidates with expertise in the following primary areas: business law (including contracts, corporate, commercial and transactional law courses); clinic (including the Director of the Immigration Law Clinic and Director of a new Housing Clinic); Introduction to Lawyering. Secondary areas include: administrative law, legislation, regulation, tax, law & technology, intellectual property, criminal law, evidence, constitutional law and environmental/energy law.

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.

Application Instructions
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.

 

Compensation
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.
 

ABOUT ALBANY LAW SCHOOL: Established in 1851, ALBANY LAW SCHOOL is the oldest independent law school in the nation and the oldest law school in New York State. Our faculty are productive, collaborative, and growth oriented. We are committed to admitting and retaining a student body that represents the diversity of the society in which we live. Our students enter the law school from undergraduate institutions, other graduate studies, industry, and often as part of a career progression or change. Our graduates consistently secure employment and career advancement across several areas of practice, including government service, Big Law, and public interest. Our most recent graduating class performed over 52,176 hours of pro bono and public service work during their law school careers.

North Pearl Street from Maiden Lane North a c. 1805 portrait by James Eights

Albany Law School’s commitment to diversity, equity, and inclusion means that our community does not discriminate on the basis of gender, gender identity or expression, race, creed, color, national origin, ethnicity, religion, disability, sexual orientation, marital status, familial status, pregnancy, domestic violence victim status, military or veteran status, genetic predisposition status, age, or any other protected characteristic under applicable local, state or federal law, in its programs and activities. We are committed to building and sustaining a more diverse, equitable, and inclusive community to address specific forms of discrimination that have historically affected the legal profession in particular. To that end, we take active steps to support this goal, including but not limited to: promoting Anti-Racism, working to actively oppose racism by advocating for changes in political, economic, and social life where necessary to overcome racial inequality; promoting Gender Justice, advocating changes necessary to ensure that everyone is treated equally and with respect and enjoys full rights and equal dignity regardless of their gender, transgender or nonbinary identity or expression, or lesbian, gay, bisexual, and queer existence; and, promoting Disability Equity, committing to ensuring the profession values access, self-determination, and an expectation and valuing of difference in terms of disability, identity, and culture.

 

ABOUT NEW YORK’S CAPITAL DISTRICT: As the home of the state capital of New York, the Capital District is a vibrant and diverse area with significant political impact both at the state and national levels. Albany, Troy, Schenectady, and Saratoga Springs are the four cities around which New York’s Capital District—a metro region with over one million in population—is centered. Boasting some of the best schools in New York, access to mountain ranges and lakes, and the robust artistic life of the Hudson Valley, the region is especially attractive for its work-life balance. In addition, the Capital District is a short drive to major metropolitan regions including Boston, New York City, and Montreal.

Syracuse University Seeks Contracts Prof

Syracuse University College of Law invites applications from entry-level candidates for a tenure-track position on the law faculty.

Syracuse University College of Law invites applications from entry-level candidates for a tenure-track position with an expected start date of August 2025. We are interested in scholars teaching and writing in the fields of contracts, commercial law, and other business law subjects. A focus on the impact of emerging technologies on these areas (blockchain, cryptocurrency, etc.) is particularly welcome. Candidates are expected to teach courses in both the residential law program and in our online JD interactive program, and can expect to teach a first-year course (Contracts) or a core upper-division course (Business Associations or Commercial Transactions), along with other courses as needed.

We are seeking individuals who are or have the potential to become outstanding scholars and excellent teachers. Candidates should have a distinguished academic record, including a J.D. from an accredited law school. Preferred post-J.D. experience and credentials include advanced degrees, judicial clerkships, relevant legal practice, or similar experience. Candidates must have the skills to effectively interact with diverse groups of students, colleagues, and community members.

The salary range for an Associate Professor, depending on experience, is $115,000 to $160,000 with benefits. Interested applicants should email a cover letter, resume, writing sample, and the names of three references who can assess the candidate’s potential as a legal academic, to Professor Lauryn Gouldin, Chair, Faculty Appointments Committee, [email protected].

Syracuse University is committed to diversity and is an equal opportunity employer. Priority consideration will be given to applications received on or before August 31, 2024.

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for August 6, 2024

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 07 Jun 2024 - 06 Aug 2024

Rank	Paper	Downloads
1.	The Great Scrape: The Clash Between Scraping and Privacy Daniel J. Solove and Woodrow Hartzog George Washington University Law School and Boston University School of Law	1,711
2.	A Short History of the Interpretation-Construction Distinction Gregory Klass Georgetown University Law Center	224
3.	Keeping ChatGPT a Trade Secret While Selling It Too Camilla Alexandra Hrdy Rutgers, The State University of New Jersey - Rutgers Law School	164
4.	Default Procedures Pamela K. Bookman Fordham University School of Law	156
5.	The Renaissance of Private Law Yotam Kaplan, Adi Libson and Gideon Parchomovsky Hebrew University of Jerusalem, Bar-Ilan University - Faculty of Law and Hebrew University of Jerusalem - Faculty of LawUniversity of Pennsylvania Carey Law School	136
6.	The Merging of Ownership and Control Tomer Stein University of Tennessee College of Law	134
7.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	129
8.	Fairness in Market Instrumental Data Governance Tommaso Fia University of Tuebingen - Faculty of Law	125
9.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	108
10.	The Judgment-Holder Problem in Sovereign Debt Workouts Mark C. Weidemaier and F. Andrew Hessick University of North Carolina School of Law and University of North Carolina School of Law	104

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 07 Jun 2024 - 06 Aug 2024

Rank	Paper	Downloads
1.	Keeping ChatGPT a Trade Secret While Selling It Too Camilla Alexandra Hrdy Rutgers, The State University of New Jersey - Rutgers Law School	164
2.	Default Procedures Pamela K. Bookman Fordham University School of Law	156
3.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	129
4.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	108
5.	Commuters Beware: Lawmakers and Rideshare Companies Jeopardize Passengers Jacob Guariglia University of Florida, Levin College of Law	46
6.	Deterring Unenforceable Terms Daniel Wilf-Townsend Georgetown University Law Center	43
7.	Consumer Law and Artificial Intelligence Przemysław Pałka and Agnieszka Jabłonowska Jagiellonian University in Krakow - Faculty of Law and Administration and Leiden University - Leiden Law School	33
8.	Electronic Assent: Assuring the Review and Comprehension of Contract Terms in Franchising Robert W. Emerson University of Florida - Warrington College of Business Administration	28
9.	Resolving Crypto Disputes through Arbitration: the Binance Case Before the Honk Kong International Arbitration Center (HKIAC) Cayetana Santaolalla Public University of Navarra (UPNA)	28
10.	Avoiding "Shall" when Expressing Policies Mark Cooney Cooley Law School	26

Villanova Law Seeks Contracts Prof

Villanova University Charles Widger School of Law seeks an outstanding scholar and teacher to join its faculty. We welcome applications from candidates across all areas of law, especially in the areas of Contracts and Torts. Other areas of interest include commercial law and bankruptcy.


This tenure-track faculty position will be filled at the Assistant, Associate, or Professor level depending on the candidate’s experience and qualifications.

Villanova is a Catholic university sponsored by the Augustinian order. Diversity and inclusion have been and will continue to be an integral component of Villanova University’s mission. The University is an Equal Opportunity/Affirmative Action employer and seeks candidates who understand, respect and can contribute to the University’s mission and values.

Texas Tech Law School Needs a Contracts & Corporate/Business Law Prof

Texas Tech University School of Law, Lubbock, Texas

Summary Information

The School of Law at Texas Tech University invites applications for a full-time, 9-month tenure-track Professor of Law position to begin in August of 2025.  The position is open to both entry-level candidates and candidates who are on the tenure-track or tenured at another school.  Candidates who satisfy Texas Tech University’s requirements to be hired with tenure will also be eligible to hold the Frank McDonald Endowed Professorship in business law.

Required Qualifications

In line with TTU’s strategic priorities to engage and empower a diverse student body, enable innovative research and creative activities, and transform lives and communities through outreach and engaged scholarship, applicants should have experience or demonstrated potential for working with diverse student populations at the undergraduate and/or graduate levels within individual or across the areas of teaching, research/creative activity, and service.

Specific required qualifications are:

1. Candidates should have a J.D.;
2. Candidates should have a demonstrated potential for excellence in research, teaching, and service; and
3. Candidates should have demonstrated potential for excellence in the areas of Contracts and in corporate/business law, such as Business Entities, Securities Regulation, Mergers & Acquisitions, and related courses.

Preferred Qualifications

In addition to the required qualifications, individuals with the following preferred qualifications are strongly encouraged to apply:  Experience teaching corporate/business law courses and scholarly publications in corporate/business law areas.

About the University and School of Law

Established in 1923, Texas Tech University is a Carnegie R1 (very high research activity) Doctoral/Research-Extensive, Hispanic Serving, and state-assisted institution. Located on a beautiful 1,850-acre campus in Lubbock, a city in West Texas with a growing metropolitan-area population of over 300,000, the university enrolls over 40,000 students with 33,000 undergraduate and 7,000 graduate students.  As the primary research institution in the western two-thirds of the state, Texas Tech University is home to 10 colleges, the Schools of Law and Veterinary Medicine, and the Graduate School.  The flagship of the Texas Tech University System, Texas Tech is dedicated to student success by preparing learners to be ethical leaders for a diverse and globally competitive workforce.  It is committed to enhancing the cultural and economic development of the state, nation, and world.

The School of Law has approximately 440 students and 38 full-time faculty members.  The School of Law is an integral part of the University and offers 10 dual-degree programs with other Texas Tech schools and colleges. The School of Law has a strong focus on students and is committed to a practical education to produce practice-ready graduates.

About Lubbock

Referred to as the “Hub City” because it serves as the educational, cultural, economic, and health care hub of the South Plains region, Lubbock boasts a diverse population and a strong connection to community, history, and land.  With a mild climate, highly rated public schools, and a low cost of living, Lubbock is a family-friendly community that is ranked as one of the best places to live in Texas.  Lubbock is home to a celebrated and ever-evolving music scene, a vibrant arts community, and is within driving distance of Dallas, Austin, Santa Fe, and other major metropolitan cities.  Lubbock’s Convention & Visitors Bureau provides a comprehensive overview of the Lubbock community and its resources, programs, events, and histories.

Equal Opportunity Statement

All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, gender expression, national origin, age, disability, genetic information or status as a protected veteran.

To Apply for this Position

Please include the following documents in your application at the Texas Tech Jobs website  https://www.depts.ttu.edu/hr/workattexastech/

• Curriculum Vitae
• Cover Letter
• List of references

Questions about this position should be directed to Jarod Gonzalez, J. Hadley and Helen Edgar Professor of Law and Chair, Faculty Appointments Committee at [email protected]. For your application to be considered, you must submit it at the Texas Tech Jobs website. If you need assistance with the application process, contact Human Resources, Talent Acquisition at [email protected] or 806-742-3851.

Application Process

Submission of applications is preferred by September 16, 2024. To ensure full consideration, please complete an online application at https://www.depts.ttu.edu/hr/workattexastech/ Requisition # 38114BR. 

Update: Forever War Means Forever Detention Without Trial

Last week, in a fit of irrational exuberance, I reported on a plea deal to resolve the cases against three of the architects of the 9/11 attacks on the United States.  That plea deal has now been scuppered through the usual combination of thirst for retribution, political posturing on the one hand, and lack of political will on the other.  In short, as Carol Rosenberg and Eric Schmitt reported in The New York Times yesterday, under pressure from relatives of the dead and the same knuckleheads who prevented the overdue closure of the Guantanamo detention center during the Obama administration, Defense Secretary Lloyd J. Austin, III cancelled the plea deals.  Families of victims who supported the deal suffered "emotional whiplash."

Millions of people who were  alive that day feel some special connection to the events of 9/11.  Mine is that I worked in the World Trade Center and watched my office building burn that morning from the street.  I made it home in time to watch that building collapse on television. I reflected on that experience here. The men responsible for that catastrophe need to have their guilt adjudicated in a court of law which can be a context for fact-finding and some sort of ending to our national ordeal. 

Because the George W. Bush administration engaged in systematic violations of the laws of armed conflict in the form of "enhanced interrogation techniques" universally denounced as torture and cruel, inhuman and degrading treatment, it will not be possible to have a fully satisfying adjudication of the perpetrators' guilt.  One of the five defendants is now unfit to stand trial, likely because the conditions of his detention rendered him so. Evidence gathered against the others may not be admissible because it was produced under conditions that render it of dubious reliability as a true accounting of the facts.

The plea deals were likely the only path forward towards some sort of final reckoning with these mass murderers.  That path is now foreclosed and the national shame of indefinite detention without adjudication of guilt will continue.  Inhumane treatment of the detainees will not bring back the dead.  It just heaps on top of a human tragedy a national disgrace which also provides fodder for the sort of hatred that fueled the attacks whose perpetrators, it seems, will never be held to account.

Gregory Klass on the Interpretation/Construction Distinction

Compiling three blog posts that he wrote in 2015, Gregory Klass (right) has now posted on SSRN his Short History of the Interpretation Construction Distinction. The three parts discuss Francis Lieber, Samuel Williston, and Arthur Corbin respectively, with lots of links to other posts Professor Klass has written.  It's a short piece, but if you follow the links, it's also a rabbit hole.

Lieber addressed the interpretation/construction distinction in his 1839 book, Legal and Political Hermeneutics, or Principles of Interpretation and Construction in Law and Politics. Based on his Austinian positivist approach to law, Lieber regarded interpretation of the process of divining the intentions of the lawgiver.  But sometimes interpretation does not suffice and then we must use principles of construction to arrive at the meaning of the legal text.  His version of construction sounds something like 1990s "new originalism" (and Professor Klass acknowledges his debt to Larry Solum's work) -- there is an acknowledgment that sometimes interpretation (or original meaning) runs out and one has to have recourse to supplementary modes of analysis that give effect to the spirit rather than the letter of the text.  Lieber goes farther still, allowing that construction can sometimes go beyond the spirit, when the law must yield to some superior legal principle.

From Klass's perspective, Williston (left) improved on Lieber in two ways. First, for Williston, discerning the "spirit" of the text is still an act of interpretation.  Construction arises, for Williston, only when one brings to the matter something beyond the intentions of the parties like, for example, a public policy constraint on a contract's meaning.  Second, while Williston retains Lieber's concept of construction as supplemental to interpretation, he adds a third component -- the legal effect of a contract, which is determined according to the substantive law of contracts.  So, for example, interpretation might tell us what a penalty clause means, but the law of contracts tells us that it has no legal effect.  Klass notes that Williston thus needs to move beyond J. L. Austin's command theory of law to something more like H. L. A. Hart's positivism.  We need secondary rules to tell us how to apply the substantive law of contracts.

Thesis, antithesis, Corbin. Corbin's approach collapses Williston's three categories into two and treats interpretation and construction as complementary rather than treating the latter as a supplement to the former.  Based on Professor Klass's presentation of Corbin's ideas, I would say that he folds legal effect and interpretation into construction.  Construction is the process of determining the legal effect of what a legal actor said and did.  Interpretation, which gets at what a person said, meant or intended, is part of the process of construction.  But there remains room for canons of construction, like contra proferentem or public policy, that go beyond the aim of Corbin's narrower sense of construction, which gets at the intentions of the parties.  Drawing on Larry Solum's work, Professor Klass suggests that the work of construction takes place both within the process of interpretation/construction and in the separate "construction zone."

Contracts (Plea Deals) May Finally Resolve Some of the 9/11 Cases

Seems fitting to ease in to blogging again with some breaking news, even if it is not your typical contracts law fare.  More like Lawfare fare.

Back in May, I suggested that contracts, in the form of plea deals, were the best way to finally end the national shame of the detentions at Guantanamo Bay and the travesty of justice that ought to bring resolution to the cases against the people responsible for the attacks on the United States on September 11, 2001.  Now, Carol Rosenberg (right), the last reporter standing in Gitmo, brings us news in The New York Times that some of the 9/11 defendants have entered into plea deals. 

Khalid Shaikh Mohammed (KSM), Walid bin Attash, and Mustafa al-Hawsawi, who have been in U.S. custody since 2003, agreed to plead guilty to the murder of 2.976 people in exchange for a promise that they will be spared the death penalty.  They were supposed to stand trial in the military tribunals set up at Guantanamo Bay.  The defendants had been held there since 2006, but their trial has been mired in pretrial proceedings for ten years.  It was unclear whether they were ever going to be tried.  We know, for example, that KSM was waterboarded 183 times, and Carol Rosenberg suggests the possibility that the military judge might throw out their confessions, which would have been a key piece of evidence.  

As expected, relatives of some of the defendants' victims are upset that the death penalty will be taken off the table.  Others are relieved that there will be some resolution.  While there will not be a trial, there will be hearing, which will provide an opportunity for the victims' families and the public at large to get all of the information they might want to learn from the perpetrators. KSM (left) had previously bragged about having been the "mastermind" behind 9/11.  Unless he has changed his ways, we can expect that he will be happy to have a forum in which to explain his thought processes and the techniques he used to perpetrate mass murder.  It seems unlikely that he will have much to add to what he has already told his interrogators.  We will also learn from the defendants about their treatment while in custody.  What we hear will be ugly but again it seems unlikely that people who have been following the story of US treatment of detainees in the war on terror will be surprised by what they hear.  But who knows? Some of my students were probably in kindergarten when we learned about crimes perpetrated by Americans against detainees at the Abu Ghraib prison.  The hearing may revive interest and educate the public about this chapter of our recent history.

There were originally five defendants in the case.  One has been found unfit to stand trial due to mental illness.  A fifth, Ammar al Baluchi, might have to stand trial alone.  Carol Rosenberg reports that he conditioned his agreement to a plea on a demand that the U.S. set up a civilian-run torture treatment facility for the defendants in prison.  The government may not have been willing to commit to that, but perhaps the government has more leverage now that Mr. Baluchi stands alone.

This may be a farewell gift from the Biden administration.  These talks have been going on for over two years.  The Biden administration originally would not accept the defendants' terms.  Now that President Biden is not seeking a second term, perhaps he feels emboldened to shut down as much of Gitmo as he can so that future administrations will not have to deal with the continued embarrassment of  the indefinite detention of mass murderers who cannot be tried because the U.S. found compliance with legal norms inconvenient and thus tainted all of the evidence that might have been marshaled so that they could be convicted of their crimes. 

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for July 30, 2024

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 31 May 2024 - 30 Jul 2024

Rank	Paper	Downloads
1.	The Great Scrape: The Clash Between Scraping and Privacy Daniel J. Solove and Woodrow Hartzog George Washington University Law School and Boston University School of Law	1,658
2.	A Short History of the Interpretation-Construction Distinction Gregory Klass Georgetown University Law Center	210
3.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	166
4.	Default Procedures Pamela K. Bookman Fordham University School of Law	156
5.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan University of California, Berkeley - School of Law	140
6.	The Renaissance of Private Law Yotam Kaplan, Adi Libson and Gideon Parchomovsky Hebrew University of Jerusalem, Bar-Ilan University - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law University of Pennsylvania Carey Law School	131
7.	The Merging of Ownership and Control Tomer Stein University of Tennessee College of Law	130
8.	Fairness in Market Instrumental Data Governance Tommaso Fia University of Tuebingen - Faculty of Law	125
9.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	124
10.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	104

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 31 May 2024 - 30 Jul 2024

Rank	Paper	Downloads
1.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	166
2.	Default Procedures Pamela K. Bookman Fordham University School of Law	156
3.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan University of California, Berkeley - School of Law	140
4.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	124
5.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	104
6.	Topic Modelling Case Law Using a Large Language Model and a New Taxonomy for UK Law: AI Insights into Summary Judgment Holli Sargeant, Ahmed Izzidien and Felix Steffek University of Cambridge, Faculty of Law, University of Cambridge and University of Cambridge - Faculty of Law	76
7.	Anticontract D.P. Waddilove Notre Dame Law School	65
8.	Contract and Fraud Eric A. Zacks Wayne State University Law School	49
9.	Commuters Beware: Lawmakers and Rideshare Companies Jeopardize Passengers Jacob Guariglia University of Florida, Levin College of Law	44
10.	Deterring Unenforceable Terms Daniel Wilf-Townsend Georgetown University Law Center	39

Tuesday Top Ten - Contracts & Commercial Law Top SSRN Downloads for July 23, 2024

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 24 May 2024 - 23 Jul 2024

Rank	Paper	Downloads
1.	A Short History of the Interpretation-Construction Distinction Gregory Klass Georgetown University Law Center	200
2.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	161
3.	Default Procedures Pamela K. Bookman Fordham University School of Law	149
4.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan Berkeley Law School	137
5.	Fairness in Market Instrumental Data Governance Tommaso Fia University of Tuebingen - Faculty of Law	125
6.	Corporate Law's Coup de Grâce: The Case for Managerial Independence Tomer Stein University of Tennessee College of Law	122
7.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	101
8.	The Judgment-Holder Problem in Sovereign Debt Workouts Mark C. Weidemaier and F. Andrew Hessick University of North Carolina School of Law and University of North Carolina School of Law	100
9.	Keeping ChatGPT a Trade Secret While Selling It Too Camilla Alexandra Hrdy Rutgers, The State University of New Jersey - Rutgers Law School	100
10.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	98

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 24 May 2024 - 23 Jul 2024

Rank	Paper	Downloads
1.	The Original Meaning of Equity Asaf Raz University of Pennsylvania Carey Law School	161
2.	Default Procedures Pamela K. Bookman Fordham University School of Law	149
3.	Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture Hanoch Dagan Berkeley Law School	137
4.	Putting Freedom of Contract in its Place Rebecca Stone University of California, Los Angeles (UCLA) - School of Law	101
5.	Keeping ChatGPT a Trade Secret While Selling It Too Camilla Alexandra Hrdy Rutgers, The State University of New Jersey - Rutgers Law School	100
6.	The Duty to Make Contracts Understandable Michael Blasie Seattle University School of Law	98
7.	Topic Modelling Case Law Using a Large Language Model and a New Taxonomy for UK Law: AI Insights into Summary Judgment Holli Sargeant, Ahmed Izzidien and Felix Steffek University of Cambridge, Faculty of Law, University of Cambridge and University of Cambridge - Faculty of Law	71
8.	Anticontract D.P. Waddilove Notre Dame Law School	62
9.	Contract and Fraud Eric A. Zacks Wayne State University Law School	47
10.	Commuters Beware: Lawmakers and Rideshare Companies Jeopardize Passengers Jacob Guariglia University of Florida, Levin College of Law	38