ContractsProf Blog

New Feature! The ContractsProf Blog's ContractsProf Vlog: Contracts Stuff

Here is the first installment of what we hope will become a regular feature of the blog. Michigan State University College of Law Professor Daniel Barnhizer.

In our first session, we discuss generative AI and its potential uses in law teaching.  Our production values can only go up!

 

"We'll Take Care of You" Does Not Equal $2.5 Million for Johnny Wilkes

When I teach vagueness, I use Baer v. Chase. The case is about an aspiring screenwriter who pitches a script for a show about the New Jersey mob to David Chase, the creator of The Sopranos.  Mr. Chase did not use the script, but he is alleged to have borrowed some ideas and, at the very least, the colorful names of two characters.  Mr. Baer alleged an expectation of payment, but the best evidence he had of an agreement was an allegation that Mr. Chase repeatedly promised, "We'll take care of you."  In the mob context, I found this statement not just vague but delightfully ambiguous.  See the conversation in Pulp Fiction between Jules (Samuel Jackson) and Vincent (John Travolta) in the elevator about "taking care" of Mia Wallace ("Uma Thurman").

Well, it turns out "We'll take care of you" is just what people say in these situations.  Johnny Wilkes, the best friend of an uncle of Kawhi Leonard (right, with fan), claims that Jerry West said those words to Mr. Wilkes in connection with the latter's efforts to help the Los Angeles Clippers persuade Mr. Leonard to join the team.  Mr. Wilkes claims that he demanded and was assured that he would be taken care of to the tune of $2.5 million, which was his estimate of a sports agent's take on such a contract. 

It appears that the Mr. Wilkes's best friend, Dennis Robertson, is an important advisor to Mr. Leonard, but Mr. Wilkes does not allege that either he or Mr. Robertson was Mr. Leonard's sports agent. After Mr. Leonard did join the team, Mr. Wilkes sued Mr. West and the Clippers, alleging, inter alia, breach of contract, promissory estoppel, and fraud.  The trial court dismissed the claims, and in January, 2024, a California appellate court affirmed in Wilkes v. LA Clippers, LLC.

This case adds an agency wrinkle to the vagueness problem in Baer v. Chase.  The court provides an extended excerpt from Mr. Wilkes's testimony, and he is less than convincing about the specific promise to pay $2.5 million.  Nor is it clear what services, if any, he provided, given that Mr. Leonard appears to have been unaware fo Mr. Wilkes's role.  Another impediment is that the alleged promise came from Mr. West, but the alleged payor was Steve Ballmer, the owner of the Clippers, and Mr. Ballmer never made a promise.  The parties dispute whether Mr. West had authority to bind either Mr. Ballmer or the Clippers in this matter, but the case really turned on the court's finding that the alleged contract was fatally vague as to the services Mr. Wilkes was to perform in order to be entitled to payment.

New Cases, New Limericks

In the past two years, I got complaints on student evaluations that I had not seen before: too many of the cases I assigned were "old."  In a precedent-based system, old cases are not necessarily bad, but the complaints motivated me to take a hard look at some old cases and see whether there might be more recent cases, to which students could more easily relate, that could  serve well as teaching cases. Some cases that had to be abandoned were ones that I had memorialized in legal Limericks. Was I still teaching these old cases just for the Limericks?

Last year, I added the thumbs-up emoji case to my course. I have paired it with an Oklahoma case, Devon Energy Production L.P. v. Line Finders, LLC, discussed here, in which a lawyer's statement, "looks fine," was treated as closing the deal. But I have gotten out of the habit of writing Limericks when I adopt a new case, and so the Limerick to case ratio in my course is steadily declining. Perhaps that will be a subject for future complaints in student evaluations.

To prevent any such complaints, I have composed a Limerick for the emoji case, and it may be the world's first legal Limerick to include an emoji as a rhyme word. So history is made.

 Southwest Terminal Ltd. v. Achter Land & Cattle Ltd.

Achter, whose conduct was lax,
Was too lazy to e-mail or fax.
Instead of “k”, or “wazzup?”
He just texted “👍”,
And was bound to deliver some flax.

Reviewing Larry DiMatteo and Irma Russell and Barbara K. Bucholtz, Part III

This is the third 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 third chapter of Principles begins with a discussion of freedom of contract, which it splits into negative and positive freedom.  Positive freedom is the freedom of individuals to contract without state interference in the form of required terms; negative freedom is freedom from state interference in the form of prohibited terms.  And yet Principles notes that, at least in the context of asymmetrical bargaining, which is ubiquitous, some limitations on freedom of contract are unavoidable. (58)

Editorializing here, this is a highly libertarian presentation of positive and negative freedom. The tradition of positive freedom rooted in continental liberalism acknowledges the role of states in creating spheres in which individuals can exercise their freedom. That is, from the perspective of central Europeans prior to German and Italian unifications and the collapse of the Habsburg Empire, it was hard to imagine freedom without a strong state to create a realm in which freedom could develop and nourish. 

From this perspective, the two freedoms that Principles describes are simply two sides of the same negative conception of freedom.  What is left out is the, in my view, necessary intervention of the state, through, to give just one obvious example, the provision of a court system facilitating the enforcement of contractual obligations.  We will soon be posting reviews of recent works by Hanoch Dagan (above left) and Rebecca Stone (right) on freedom of contract, and suffice to say that both of them articulate theories of freedom of contract capacious enough to accommodate much more forceful interventions than contemplated in Principles. That said, the difference may come down to Principles regarding freedom of contract as a relatively narrow principle subject to external limitations, while Professors Dagan and Stone, especially the former, see freedom of contract itself as the source of the limitations.

The next section of the chapter explores five tensions that contracts law seeks to balance.  First, Principles acknowledges that while contract law needs to project stability in order to promote confidence in the enforceability of binding promises, the law evolves, usually slowly but sometimes jarringly, in response to exogenous impulses like the arrive of the New Deal or electronic contracting. (58-59)   In the next section, Principles veers away from the libertarian perspective discussed above and acknowledges the role of default terms and gap fillers in facilitating contract formation.  Regulation might seem in tension with facilitation. In fact, they are symbiotic. (60-61) Third, Principles identifies a tension in theories of enforcement.  Classical doctrine enforces based on promises; modern doctrine also enforces based on estoppel. (62-63) Principles next explores a tension between formal and substantive rules. The former may at times prevent the effectuation of the latter, as when a statute of limitation lapses or a contract cannot be enforced for wont of a wax seal. The abandonment of the writ system and a more capacious concept of consideration have eased some of these tensions, but they persist. (64-65) Finally, Principles notes that the seeming tension between the civil law tradition, which favors  specific performance and the common law preference for expectancy damages is not as pronounced as it seems.  The common law embraces specific performance when unique goods or property are involved, and Article 2 provides for an expansion of the availability of the remedy.  Civil courts encourage settlement in lieu of specific performance, because the latter requires potentially costly monitoring  (65-66) 

In the final section of the chapter, Principles explores tensions in contracts theory as opposed to contracts doctrine. Freedom of contract is tempered by concerns over justice in asymmetrical contracts of adhesion.  One-sided terms can be enforced only if reasonable (68-69) or meaningful consent can be guaranteed through disclosure requirements. (70) There follows a discussion of how relational contract theory and the doctrine of good faith result in shifts in contracts doctrine. (71-73) I would add that relational contract theory is especially important in understanding a tension mentioned earlier in the chapter (59) between the law on the books and the law in action.  Non-breaching parties may forgive the breach in order to preserve the relationship, or the parties might renegotiate the present deal to adjust for changed circumstances.

Chapter 3 of Mastering is about interpretation.  This strikes me as a surprising choice and not the only organizational idiosyncrasy of the book. I would treat formation before getting to interpretation.  I suppose the justification for starting with interpretation is that it permits the Authors to foreground the principle that what courts ought to enforce is the intentions of the parties.  So even before we learn about formation, we are thinking ahead to the end game of expectation damages.

An additional benefit of foregrounding rules of interpretation is that many of them have applications beyond the realm of contracts law. (20)  They begin with Williston's distinction between interpretation and construction (21), on which see Gregory Klass's work, reviewed here.  They then proceed to a discussion of interpretation in the statutory context, beginning with the "no vehicles in the park problem" and discussing the role of statutory definitions, legislative history,  explication through case law, and public policy as a tool of interpretation. (22-24)

The Authors next discuss canons of construction, mostly focusing on contractual construction, but occasionally referencing statutory construction as well.  (24-28) This is valuable material and it is well presented. I just think about how a first-year student would use this book.  I have never seen a casebook or treatise that discusses interpretation before formation.  The Restatement begins with formation.  And so, if I were assigning or recommending Mastering to my students as a supplement, I would tell then to skip chapter 3 and return to it after we have completed formation.  By that time, they will have read enough case law so that we could draw from that material to give examples of how the cannons might be deployed.

After a very short section on treatment of extrinsic evidence under the common law (29), the chapter next covers extrinsic evidence under Article 2, which they say is similar to common law rules on extrinsic evidence. (29-31) The chapter concludes with a brief section on the parol evidence rule (32), which certainly makes sense in connection with the discussion of extrinsic evidence, but is a bit odd, given that the authors say the parol evidence rule is not a rule of interpretation (19) and is covered separately in Chapter 9.  I teach the parol evidence rule in the section of my course devoted to interpretation, but I agree that it is not a rule of interpretation.  However, I would say the same about rules relating to the admissibility of extrinsic evidence. 

Again, I have reservations about organization and scope of treatment.  Chapter 9 provides a thorough treatment of the parol evidence rule but no further discussion of extrinsic evidence. Again, thinking about this book as something for first-year students, I think the discussion of extrinsic evidence is misplaced here and too cursory, given the importance of the subject matter and its conceptual difficulty.  The Authors lay out the relevant UCC rules relating to extrinsic evidence clearly enough, but they provide only one concrete example, and even there they do not cite to a case but just describe it.  Absent an opportunity to see how these rules play out in the case law, I don't think students can appreciate the dramatic effects of the UCC's rules on extrinsic evidence in cases like Nanakuli and Columbia Nitrogen.  But those are pretty complex cases, best introduced after students have gained some familiarity with the material.

The first post in this series can be found here
Part II is here.

Hiring at Boston University School of Law

Professor of Law /Associate Professor of Law

Boston University School of Law

BOSTON UNIVERSITY SCHOOL OF LAW, a top-tier law school with an international reputation, is a community of leading legal scholars, teachers, students, and alumni, who are dedicated to providing one of the finest legal educations in the world. Since our doors opened in 1872, we have admitted and enrolled accomplished students to our program regardless of their race, sex, and religion.  The breadth and depth of our curriculum and scholarship as well as our innovative spirit are distinctive in U.S. legal education. 

Boston University School of Law invites applications from both entry-level and experienced candidates for a number of positions with a projected start date of July 1, 2025. The search is broad and not limited to particular subjects, but we have especially strong teaching needs in Civil Procedure, Contracts, Criminal Procedure, Property, Trust and Estates, American Indian Law, AI Regulation, Professional Responsibility, Alternative Dispute Resolution,  and Private International Development Law, International Law, Bankruptcy, Housing Law, Sexuality/Gender/Gender Identity and the Law, and Land Use Law. Experienced candidates should have a distinguished record of scholarly achievement, effective teaching, active service, and a distinguished record of inclusion. Junior lateral and entry-level, tenure-track candidates should have demonstrated potential for high scholarly achievement, teaching excellence, service, and a record of inclusion. We are additionally seeking candidates for the Director of our Student Innovations Law Clinic (Clinical). Please see that individual posting for a full description.

At Boston University School of Law, we are dedicated to building a just, inclusive, and engaged community of faculty, staff, and students. We recognize we have more work to do to achieve this vision. Boston University School of Law is committed not only to the ideals of faculty diversity and inclusion but also to the work of creating and implementing practices that combat exclusion and inequity by race, ethnicity, gender, gender identity, sexual orientation, disability status, religion, and other identities subject to historical subordination. We also strive to foster a more inclusive intellectual culture that represents and encourages a broad range of intellectual traditions and approaches to the law. We welcome expressions of interest from applicants of all identities, intellectual traditions, and perspectives.

BU conducts a background check on all final candidates for certain faculty and staff positions. The background check includes contacting the final candidate’s current and previous employer(s) to ask whether, in the last seven years, there has been a substantiated finding of misconduct violating that employer’s applicable sexual misconduct policies. To implement this process, the University requires a final candidate to complete and sign the form entitled “Authorization to Release Information” after execution of an offer letter.

We are an equal opportunity employer, and all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, age, national origin, physical or mental disability, sexual orientation, gender identity, genetic information, military service, pregnancy or pregnancy-related condition, or because of marital, parental, or veteran status, or any other characteristic protected by law. We are a VEVRAA Federal Contractor.

How to Apply:

Applicants should send a letter of interest and a C.V. as soon as they are able to the Faculty Appointments Committee at [email protected]. Applications are being reviewed immediately and on a continuing basis, with priority given to those who submit early in the fall semester and are submitted prior to October 1, 2024.  All open faculty positions are pending budgetary approval.

To learn more about the law school, visit our website at www.bu.edu/law.   

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.

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.

Speaking of the Crappification of Work . . .

On Tuesday, I posted about Barbara Ehrenreich and the professional managerial class (PMC).  in that post, I shared an anecdote from the Know Your Enemy Podcast episode devoted to Ehrenreich's legacy in which one of the podcasters shared a story about trying to organize graduate students into a union.  The students were resistant, in part because they didn't think themselves worthy of a union. 

Not so at the University of California, where graduate student organizing has led to salary increases to $36,000 in the Fall.  So I learned from this story from the Mother Ship, Paul Caron's TaxProf Blog.  According to the story, clipped from the Chronicle of Higher Education, Amanda Reiterman was hired as a Lecturer to teach two 120-student sections of classes covering classical texts and Greek history at the University of Santa Cruz.  She recommended that the history department hire as her T.A. a recent graduate who was pursuing a masters degree.  When the department copied her on its offer letter to her former student, Professor Reiterman learned that the student's salary to be her teaching assistant would be 10% higher than her salary to teach the course.  She responded by quitting one of her two sections, instead teaching a small history course for which she would not need a T.A. She experienced learning that her student was earning more than her as "a gut punch."

Strange story, right? I mean how can it be that there are 240 students at UC Santa Cruz who want to attend a lecture course on ancient history? I wonder if any of them would be interested in taking contracts at the Oklahoma City University in the Fall, because I would love to have them.  The response is odd too. Learning that her T.A. is relatively well paid should not make Professor Reiterman want to quit.  She should just be happy that the union's efforts mean that her students can afford decent housing and meals other than packaged ramen noodles.  It should make her want to organize and demand the sort of remuneration she deserves. 

More generally, I wonder about the economics of the California state university system generally.  T.A's now earn four times what I earned when I was a graduate student at Cornell in the 1990s.  I did fine on my princely stipend, and when my wife and I both landed visiting professorships, bringing our household income over the $50,000 threshold, we felt financially secure in the moment (although prospects for future employment were gloomy).  

I understand that the cost of living in California is shockingly high, so I'm not sure $36,000/year in California goes any father than my $9000 in Ithaca, NY.  I just don't get where the money comes from.  According to the story from the Chronicle, there are 48,000 unionized graduate students, researchers and postdocs who work in the University of California system.  Their aggregate salary is now $1.728 billion, representing a $500 million increase over their aggregate salary from 2023.  The mind boggles.  If universities start spending that much money on graduate assistants, how do they have money left to recruit a football team? I mean, have the Santa Cruz Banana Slugs (above right) ever even played in bowl game? 

In Memory of Barbara Ehrenreich, Reflections on the Professional Managerial Class

Barbara Ehrenreich (right) died in 2022, but it wasn't until I listened to the Know Your Enemy Podcast episode devoted to her legacy that I thought about her concept of the professional managerial class (PMC) in connection with my own professional identity and my politics.  I should note that the KYE episode was timely. This blog post, not so much.  Summers are when I catch up on things, and this will be one of many posts in which I ruminate on things past because I've only now discovered them in my reading or listening queue.

Barbara Ehrenreich and her husband at the time John started publishing about the PMC in 1977.  They introduced the topic in two articles that appeared in Radical America, "The Professional Managerial Class," and "A Case-Study in Professional Managerial Class Radicalism."  Those two essays and a 2019 interview that Alex Press conducted with Ms. Ehrenreich in 2019 and published in Dissent magazine are my source materials  I take a certain pleasure in revisiting the older material.  Even the fonts are outdated. Ehrenreich herself describes the material from Radical America as having been written in a "rather tedious" way. I am indebted to the KYE hosts, Matthew Sitman and Sam Adler-Bell and their guests on the Ehrenreich episode, Alex Press and Gabriel Winant, for giving me a framework in which to situate the Ehrenreichs' approach to the PMC. There's a lot to unpack here, so I will keep things brief, at the risk of oversimplifying.

Office Design, 1937

The Ehrenreichs developed their concept of the PMC in response to a crisis in leftist theory after the collapse of the student movement of the 1960s. The working class had not developed into a revolutionary force along the lines predicted by Marxist theory. The New Left embraced student revolts as presenting the possibility of a vanguard of a new revolutionary class -- radicalized university students. The revolution, which for the Ehrenreichs would have been a democratic, non-violent one, did not materialize. The question for the left was, why not?

The Ehrenreichs' answer was that students belong to neither of the class categories then available to Marxist theory.  They are neither a part of the bourgeoisie, nor are they part of the proletariat.  They also are not petty bourgeois.  Rather they are part of a fluid category, the PMC, which is caught in late-stage capitalism between those with genuine economic power and the working class.  The PMC consists of "salaried mental workers who do not own the means of production and whose major function . . . [is] the reproduction of capitalist culture and capitalist class relations."  As such, the PMC is a problematic vehicle for radical social change, and the path forward is an alliance between the PMC and the working class.

Office Design After the Crappification of Work

Members of the PMC are not manual laborers, and they can become part of the managing class. However, jumping ahead a few decades, they are increasingly subject to deskilling and proletarianization through what a friend of mine called the "crappification of work." At the turn of the 21st century, my friend was a computer programmer working for an investment bank.  It was a pretty good job, and then it was an okay job, and then it was a bad job that paid okay and had decent benefits, and then it slowly became a demeaning job, and then it evolved into a soul-crushing job that one would not wish upon one's bitterest foe.  Eventually, the investment bank outsourced her department, and she never again found rewarding work in her field.  Her politics grew emphatically leftist.

Teachers are the first category of workers associated with the PMC, according to the Ehrenreichs.  Their role is social control or the production and propagation of ideology.  I feel seen. 

Not really.  Either the Marxist categories associating socio-economic roles and relation to the mode of production from the 1970s do no map well onto current realities or I am no longer persuaded by the New Left reasoning that shaped my political identity in young adulthood.  In the alternative, perhaps after decades in the PMC, I have become blind to my role in reifying existing socio-economic hierarchies. That's what I'm trying to work out.

In any case, despite the Ehrenreichs' rhetoric assigning to teachers a role in developing and disseminating the ideology of late capitalism, with all the chauvinisms that entails, it is not as if they regard members of the PMC as ineluctably aligned with the forces of oppression.  After all, they have to account for their over-educated, bookish, skilled selves.  The relationship between the PMC and workers is "objectively antagonistic," but so is the relationship between the PMC and the capitalist class.  Ehrenreich rejects the use of PMC as a slur.  PMC members have a service ethic. They are genuinely committed to making positive contributions to their communities.  But workers are motivated by a version of the same ethic, and the fact that it is ever harder for members of both groups to take pride in their work should be a source of unity.

Workers earned some protections through unionization; the PMC used the jargon of professionalism to establish their monopolies in markets for services.  The KYE folks share an anecdote that illustrates both the difference in self-conception between PMC members and workers and the crappification of mental work. One of them (hard to keep four male voices straight when none of them are Ira Glass) shared a story of trying to organize graduate students into a union. They met resistance, in part because the graduate students did not feel like they needed unions to protect their interests in the same way that workers did. It felt false. The organizers pointed out that they had been sent by the university workers' union.  The union workers wanted the graduate students to join them.  And, the organizers added, the union workers got paid far better than the graduate students did.

Barbara Ehrenreich's consciousness of her status as a member of the PMC enabled her to write her greatest hit, Nickled and Dimed, from a unique perspective. While her sympathies were with the manual laborers whose ranks she joined, she was not one of them and could never be one of them. The interests of the PMC can be opposed to those of the workers, but the real unbridgeable gap between members of the two groups is better understood, to borrow a term from Pierre Bourdieu, as a matter of differences in habitus.  Ehrenreich learned a great deal from her co-workers. In a different context, they could have learned a great deal from her, but her knowledge could not change their lives. Her mode of being-in-the-world: her tastes in food, clothes, music, reading materials, her hobbies, her sense of humor, her ways of thinking about herself, and her ways of dealing with others were all fundamentally  or subtly-but-crucially different from those of her co-workers.  She could not bridge the difference in consciousness between her own PMC-class identity and her co-workers' sense of who they were and their role in relation to work and the economy. 

The KYE podcast recounts an incident where one of Barbara Ehrenreich's co-workers injures her ankle.  She was then working for a house-cleaning service.  The injured woman was also pregnant. She needed time off, but they were paid hourly.  Ehrenreich's solution is that the workers should organize and strike, demanding, among other things, paid time off for injuries sustained at the workplace.  Her c0-workers, exhibiting what to Ehrenreich must have seemed like a textbook example of false consciousness, protested that they could not let down their employer, who was counting on them to clean houses that day. Ah, the cooptation of the service ethic to benefit capital! True to her own habitus, Ehrenreich found a middle ground.  She advocated for her co-worker and persuaded the employer to give her a day off with pay so that she could recover from her ankle injury.  Reflecting on the incident, Ehrenreich might have been reminded of Bertolt Brecht's "A Bed for the Night." A more upbeat liberal might think of the starfish story. But after her grim slog through working-class misery, Ehrenreich's worldview likely was a more inclined towards Brecht.

Ehrenreich understood the importance of habitus (although she did not use the word) in ways that others on the left didn't.  She tells of "Twinkie wars," when PMC-types would try to unite with workers to form food co-ops. The workers wanted the co-ops to carry the sorts of processed foods that they were used to eating and found in their local groceries. The PMC-types took "principled" stands against unhealthy foods, and these differences led to genuine conflicts.

The limitations of the New Left and student radicalism became clear, say the Ehrenreichs, when students radicalized by their opposition to the Vietnam War attempted to combine forces with Black radicalism. While PMC students may have been prepared to embrace the calls of the Black working class to demolish elite institutions and return power to the people, older members of the PMC denounced student radicalism as misdirected and directionless post-adolescent rebellion or the harbinger of a new kind of leftist authoritarianism.

As a law professor, at least where I teach, I am a beneficiary of professionalization.  My status remains very high, even within the university, compared to that of staff and even legal writing or clinical professors, to say nothing of our own adjuncts, or the professors, adjuncts, and staff in the rest of the university. The crappification of work has eroded my quality of life at the margins. University bureaucrats treat me like a cog and are far more concerned about my how much revenue I generate for the university (measured in FTEs) than they are in either my scholarly output or the quality of my teaching. If it weren't for ABA accreditation requirements, law students would mostly be taught by adjuncts earning $1500/credit hour taught.  Other parts of the university are already crumbling under economic strain. I would not want the life of my colleagues in the humanities at small colleges and non-flagship state universities. When young people tell me that they want to be professors, I am inclined to advise them to do something else with their lives. But what?

Listening to the KYE episode in the context of renewed student protests and my own position as an un-reconstructed Jewish New Leftist with close familial ties to Israel made me think about my PMC status in connection with those student protests.  It's a theoretical matter for me, because there were no student protests at my law school, and as far as I know there were no student encampments or mass arrests of student protests anywhere in Oklahoma, my adopted home state.

Gaza Encampment at Columbia University (my alma mater),
Image by عباد ديرانية - Own work, CC0

This post has gone on too long, so this part will be brief.

My inclination has always been to admire radical protestors for calling attention to very important issues. But I've never felt comfortable joining them.  Part of the problem is the lack of fit between my own leftism, which is based on class analysis, and the identity politics that has come to dominate the left. Part of the problem is that I am a left-wing pragmatist. Political action has to be targeted and has to have clear goals in order to be effective. You have to have a strategy for winning and something tangible to show for it at the end of the day. Finally, I think people get caught up in the theater of acting out injustice in ways that draws attention away from addressing actual injustices. When you occupy a building on a college campus, your goal is to be arrested. The people who are arrested want it to be as ugly as possible. But once they are released with a few bruises, what is the next step?

I have multiple ambivalences about the pro-Palestinian protests even while I admire the courage, discipline, and sacrifice of the students involved. I think their efforts will come to nought. Nothing good, that is. Smart university administrations will play along, promising to look at investment strategies, but they won't stop investing in companies based in countries with horrible human rights records. But even if universities did divest from Israel, that would not help Palestinians. Meanwhile, the protests drive pro-Palestinian voters away from support for Biden and drive pro-Israel voters into the Trump camp, and my view is that a Trump Presidency will exacerbate the conflict and just bring more misery to the region.

For my part, if I have to choose between the self-defeating excesses of the Netanyahu government and a Palestinian movement led by Hamas, I choose neither. I am for peace, and peace means that everybody stops fighting, recognizes the other party's right to self-determination, and all that has to happen without pre-conditions and without delay.

I used to lead study abroad programs about the conflict. Students would come because they wanted to see "the Holy Land." We hired a "dual narrative" touring company that provided us with one Jewish Israeli and one Arab Israeli guide.  Students would tell me in their final evaluations that they emerged from the program confused about the conflict. I would consider that a win, because I've been immersed in the conflict since childhood, and I'm confused.

From my perspective as a member of the PMC, all I can do is teach about the conflict. But will students come willing to listen, not only to me but to each other, and learn?

Various Problems with Liquidated Damages

I use Judge Posner's opinion in Lake River Corp. v. Carborundum Co. to teach liquidated damages and penalties.  It's a typical Judge Posner (left) opinion.  He provides policy arguments for and against the enforcement of liquidated damages provisions, even if they impose a penalty on the breaching party.  Judge Posner makes the compelling freedom of contract/anti-paternalist arguments in favor of enforcement of penalties, assuming relative sophistication and comparable bargaining power.  Against these arguments, he offers the theory that deterring opportunistic breach prevents efficient breaches that produce better outcomes for most of the parties involved and do not produce worse outcomes for any of them (assuming no transactions costs).  He then heaves a sigh, says, "Illinois, ya basic!" and applies the applicable state law prohibiting the enforcement of penalties. 

Some of my students wanted to outflank Judge Posner.  Yes, the liquidated damages clause in the contract was absurd, but why should a court come to the rescue of a well-resourced party that entered into a bad deal with eyes wide open?  Carborundum apparently valued access to Lake River's bagging and distribution capabilities so highly that it was willing to take on a high penalty for breach.  My students could have cited another Judge Posner case that I also teach, NIPSCO v. Carbon County Coal.  There, NIPSCO entered into a long-term contract to buy coal whether or not it needed the coal.  NIPSCO assumed that it would need the coal when it entered into the contract, but then it became significantly less expensive to get electricity from other sources. The state regulatory authority would not allow NIPSCO to pass on to its customers the costs it incurred through its lack of foresight, and so it sought to get out of its contractual obligations.  Judge Posner would not allow it to do so, even though the effect was quite similar to a penalty clause.  NIPSCO had to pay an inflated price for coal it didn't need.  Indeed, according to Judge Posner, nobody wanted the coal, which was why the mine shut down once NIPSCO stopped accepting shipments.  

So, Judge Posner would not force Carborundum to pay for bagging and distribution services it no longer needed, but he did force NIPSCO to pay for coal it didn't need.  The cases are reconcilable as a matter of legal doctrine.  In both cases, I find Judge Posner's legal reasoning entirely persuasive. And yet, their outcomes seem hard to square with both economic theory and the principles of freedom of contract.  Perhaps the solution is that Judge Posner, if unconstrained by the Erie doctrine or precedent, would simply allow the parties' terms, no matter how ill-conceived, to govern in both cases.

Professor Stephen Sepinuck (right), a keen-eyed scanner of the legal horizon, noticed another liquidated damages conundrum.  Ne. Ill. Reg'l Commuter R.R. Corp v. Judlau Contracting, Inc., involved a $17 million contract for construction work on Chicago's Metra line.  Judlau did not complete the project within the time specified in the contract, running over by 500 days.  Metra alleged a right to choose between enforcing the contract's liquidated damages provision and seeking actual damages.  District Judge Mary Rowland of the Northern District of Illinois, noted that Illinois law does not permit parties to choose between actual and liquidated damage, and she rejected Metra's attempt to distinguish between a right to collect liquidated damages an option to choose between liquidated and actual damages. 

Metra acknowledged the Illinois prohibition on clauses that permit a party to choose between liquidated and actual damages, citing Karimi v. 401 North Wabash Venture, LLC.  The Illinois rule struck Professor Sepinuck as unusual.  Learned commentary ensued.  Indeed, Colorado reached the opposite conclusion in Ravenstar, LLC v. One Ski Hill Place, LLC.  The Illinois rule seems to be motivated by a horror of penalty clauses.  Confronted with little or no actual damages, the non-breaching party can nonetheless profit from a liquidated damages clause.  Facing actual damages well in excess of liquidated damages, the party might choose to jettison the limits imposed by the liquidated damages clause.  It creates a win/win for the non-breaching party and also eliminates one of the primary advantages of a liquidated damages provision -- the ability to settle a claim quickly without the need to prove actual damages.

Which brings us back to Judge Posner's dilemma.  These option clauses seem ill-advised.  Why agree to a liquidated damages clause designed to  minimize litigation costs while also giving the other party the option to choose to impose litigation costs on you?  However, if sophisticated parties agreed to an ill-advised clause  why not allow them to be hoist by their own petard?  In Judlau, the court faced no such dilemma, Judge Rowland concluded that "the plain language of the contract here does not create an option between liquidated and actual damages."  Metra did not include an ill-advised option clause in its contract.  It just seems to have pursued an ill-advised litigation strategy that involved arguing without much of a textual basis that it had negotiated for an advantageous option which, it acknowledged, was foreclosed in any case by governing law.

Law Review Contracts

In Spring 2023, I was lucky enough to have one of my articles accepted for publication in a law review.  Of course, the offer was contingent on agreement to terms, but I didn't give that much thought.  Early in my career, I engaged in some negotiating with law reviews about my right to post drafts online prior to publication, but that practice is now so common that the standard contracts allow for pre-publication posting of drafts. 

However, this contract had two provisions that I found objectionable.  One was a blanket indemnification provision, which required me to pay fees and costs should the university pay a judgment or settlement in connection with any breach of the contract by me.  The other essentially rendered the agreement illusory by granting the law review the right to withdraw its offer of publication at any point in the process for any reason.  The law review must notify me of its reasons for the withdrawal, but the contract gives me no opportunity to object, so the notice provision is not helpful, beyond its value as evidence in litigation, the cost of which I would have to bear should I lose.

I surveyed colleagues about how to handle this situation.  I suspect that most professors just sign these things without much thought, as the likelihood of litigation or liability associated with legal publications is vanishingly slight.  Some law professors shared with me that they have just crossed out objectionable language and returned the documents, assuming that the law review editors will not pay much more attention to these matters than we do.  Others try to negotiate, and some told me that they had withdrawn their articles upon being told that the law review would not change its contractual terms. 

Some colleagues who have served as advisors to law reviews lamented the careless contracts that they found upon assuming the role.  They consulted with university counsel and soon contracts more protective of the universities' interests were drawn up and set in stone.  Faculty advisors were told that they contracts could not be changed; they communicated the same message to student editors, and so things remain until institutional memory fades.

I wrote to my student editors requesting that two provisions of the contract be removed or edited.  As I feared, they responded that university counsel would not permit any changes in the contract, and they knew this because another author had requested changes, and they had been told that they could not accommodate any changes.  I wonder what became of that author's submission.

Some colleagues suggested that I might insure against this risk, so I looked into it.  The American Association of University Professors AAUP) provides limited coverage, but it does not cover all of the most likely risks attendant to publication, and the combined cost of joining AAUP and buying the insurance would exceed $500.  I next considered whether a general business liability insurance policy might do the trick and be a bit less expensive.  Nope.  Errors and omissions policies exist for publishers, but getting an insurer to write a policy for an author would be prohibitively expensive.  

At this point it occurred to me that the law review with which I was hoping to publish is housed at a university with a university press.  It follows that the university likely already has coverage that addresses precisely the risks for which it was seeking indemnification from me.  I spoke to a relative who had a long-time career as an underwriter, and he reckoned that such coverage comes pretty cheap to a university, as a rider or addition to its general commercial liability coverage.  

Armed with these surmises, I wrote to my student editors again.  It seems to me that the indemnification language in their contract is a solution in search of a problem.  I also proposed language that would allow them to terminate the agreement for cause, with notice and opportunity to cure, so as not to render their promise to publish illusory.  I asked them to share my concerns with their faculty advisor and university counsel.   Otherwise, I was going to have to withdraw my piece reluctantly.

Of course, the students are just caught in the middle.  They don't have any say in the verbiage in their form contract.  They liked my article, took the time to read it, discuss it, consider it for publication through their own internal processes.  They wanted to publish it.  The contract was an obstacle that might make all of the work that they had done thus far a waste of time.  Meanwhile, the opportunity to make offers to other authors may have passed.

The whole experience saddens me both as a contracts teacher and from an institutional perspective.  As a contracts teacher, I try to persuade my students that, because contracts facilitate mutually beneficial transactions, if they really want to make the world a better place, they should consider transactional work as a possibility.  If they do consumer contracts, they can help police one-sided transactions to strive for contractual approaches that allocate risk and reward in a socially responsible manner.  But experiences like this one remind me that one-sided contracts can sow distrust and thus prevent mutually beneficial transactions from arising, as I previously noted here.  I had hoped to work with this law review, as I have worked with dozens of others, and now that might not happen.  The benefits on both sides are largely intangible but not negligible.

From an institutional perspective, I think this problem arises because of a few bad actors – authors who malign others, treat law review editors shabbily, or fail to diligently respond to reminders about deadlines. University counsel might not think that a law review is an enterprise important enough to justify risk of exposure to liability, even if that risk is very slight.  If I were to pull my piece, it would have zero impact on the rank or reputation of the law review.  The law review would publish something else.  University counsel thus has little incentive to change the terms of a contract that it regards as protective of the university’s interests. 

But university counsel is focused on risk management, and without forceful advocacy, they will prioritize those business concerns over furtherance of the university’s educational and scholarly mission. Moreover, given the networks of law review editors, faculty advisors and university counsel, all law reviews may soon adopt similar contracts.  Untenured professors will then have no choice but to put up with contract terms that are so one-sided that they would raise serious questions of unconscionability but for the likelihood that a court will treat law professors as sophisticated parties.  Contracts Profs know that sophistication doesn't help when an entire industry adopts similar, one-sided terms.  

My university's general counsel teaches at our law school, and she's a good egg, so I sought her advice on the matter.  I expected that she would give me insights as to how this all looks from the university counsel perspective, but she was as appalled by the language in the contract as I was.  She offered to call her counterpart at the law review's institution to see if hearing from a peer might yield some results.  She thought there was a reciprocity problem. Universities need professors.  Professors need to be able to publish (often through other universities publications) without putting their financial stability at risk.  But then she thought about our university's  insurance coverage and suggested that our policy might cover me in the case of a law suit relating to my professional activities.  After researching the issue, she concluded that it was not clear that our policy would protect me, and she advised me not to sign the contract.

Even if my university's insurer could provide a solution for me as to my own exposure, there would still be the other provision, which allows the law review to withdraw its acceptance at any point for any reason.  In future submission cycles, I will begin negotiating the contractual terms before I withdraw my piece from consideration elsewhere, and my ability to find a law review with reasonable contractual terms will be an important component of my decision where to publish.  But if, as I expect, law review contracts converge on language that leaves authors exposed and unprotected, I may just conclude that the world can live without my scholarship and I can live without the risks associated with publication.

In the end, I was able to get the law review editors to appeal to their university counsel and accept some of the revised language that I offered.  It didn't give me all the protection I wanted, but it gave me enough that I did not lose any more sleep over the issue. This year, I took a break from the student publication mishegoss, and just published with my law school's Law Review, after reviewing their wholly unobjectionable terms.  Given that people are far more likely to come across my work on the web than through a publication, it seems like the reasonable choice, and working with our editors was very easy and enjoyable.  

Cardozo Cup 2024 Entrants and Winner

Below are the seven student artists who participated in the 2023-2024 Cardozo Cup competition at OCU Law.  The challenge is to create an original work of art celebrating Judge Cardozo (in contracts, we are exclusively interested in New York Court of Appeals Judge Cardozo, rather than in the later Justice Cardozo).  

And here is the winner, J Badillo, pictured with his contracts professor and visiting dignitary Oklahoma City Mayor and OCU Law School Dean David Holt.  

Lest anybody think I chose the winner because it implies that I am Judge Cardozo's ward and sidekick, I note that the winner was selected through anonymous student voting tallied by Judge Cardozo's ward and sidekick.

Entries in the Third Annual Cardozo Cup Competition

This is the third year that I have asked my OCU law contracts students to create works of art commemorating Judge Cardozo.  The winner gets their name inscribed on the Cardozo Cup.  The first winner was Ethan Toutellotte, who wrote a rap in honor of Cardozo, and is now all grown up and ready to graduate.  Last year, Eric Davis wowed us with two paintings of Judge Cardozo, winning out ahead of a fiercely competitive field.

This year has brought seven new entries, pictured below.  My photography cannot do justice to these wonderful creations.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Contracts: Law in Action, Fifth Edition Is Available for Adoption!

Fans of the “law in action” tradition will be happy to learn that the authors of the contracts casebook bearing that name—Contracts: Law in Action—are on course to publish a new 5th edition for adoption fall 2024.  This edition is a significant update that consolidates what had been a two-volume casebook into a single volume that can be used for a 3, 4 or 5 credit course.  While the casebook maintains its unique emphasis on remedies and the UCC as exceptionally important teaching tools, the volume also includes important materials on interpretation, performance and breach, which carry on the book’s unique “law in action” tradition.  The authors have also added materials on COVID (and contract in crisis, generally); updated problems to provide more experiential and transactional opportunities; added some very recent material on the use of AI in contract interpretation; and supplemented and/or updated the backgrounds to some key cases, including to provoke thought and conversation on the role of race, gender, socioeconomic status, etc., in contract law. An updated Teachers Manual, which will include sample examples with answer keys, will also be available.

Reach out to Prof. Wendy Epstein ([email protected]) (pictured) with any questions or to request a review copy.

Friday Frivolity: Elon Musk, This Is Not up to Your Standards

 Several of my students shared the same story with me.  Ariel Zilber, writing in The NY Post, provides the basics:

• Corporation places a large order with a bakery for mini pies.
• Corporation then contacts the bakery to double the order. 
• Corporation then cancels the order by text  just as the pies are about to be sent out.
• Bake shop claims $16,000 in losses on the order
• CEO of the corporation (depicted at right, image by DALL-E) promises to "make things good" with the bakery.

Not much to add, beyond the fact that the corporation is Tesla, and the CEO is Elon Musk.

At first, I didn't see much potential in the hypo.  Tesla made a contract; Tesla breached the contract.  Tesla must pay damages.  Making things good with the bakery is a simple matter of paying for the pies that Tesla ordered, less any mitigation.  And since you are Tesla and this is a local bakery, why not just pay $16,000? As contracts hypos go, Mr. Musk, I expect better from you.  Remember that time you promised to buy Twitter and then pretended that it was all just a ploy to get information about the percentage of bot accounts on Twitter? 

Ah, good times. 

A few wrinkles might make this into a worthy hypo.  First, let's assume (counterfactually, apparently) that the original order and the doubled order were done by telephone and there is no electronic record.  Is the text message a sufficient writing to evidence the transaction?  According to the Post, the text read as follows: "It unfortunately sounds like we will be changing plans and will not be needing this order. Thank you so much for your support. I appreciate it."  Seems like that message must be part of a text string that provides the referent for "this order."  If so, we likely have a writing.  If not, do we have specially manufactured goods?

On that point, and also relevant to mitigation, Richard Pollina, author of another NY Post article, adds the following information.  As news of Tesla's breach spread, local residents shows up "in droves" to snatch up the pies.  If she had 4000 pies at $4/pie, it seems like the owner could have mitigated her damages by re-selling those same pies at $6/pie.  The owner also said that her business has tripled since news of the breach got out.  Is that relevant to the calculation of her damages? She also said that, notwithstanding Mr. Musk's promise to 
"make things good," she has not heard from him.

Side note on the efficient use of journalistic resources: Do we really need two NY Post reporters on the Tesla pie-order beat?  Even Taylor Swift only has one dedicated reporter per news outlet. 

UPDATE: David Propper, yes a third NY Post reporter, provides the following update.  Tesla paid the bakery $2000 and also offered to place an order for Women's History month.  The bakery responded that it was too booked up with orders to provide pies to Tesla.  Also, it asked, "Good Grief!  Who do you think I am?"

 

The Best People Leave

When I got my first teaching job at Valparaiso University Law School, there was a core of people who were on the hiring committee and also became my close friends almost immediately upon my arrival.  Because they were at Valparaiso, I knew that it would be a good fit for me, They were dedicated teachers, innovative scholars, and colleagues devoted to helping our students learn and thrive as professionals and people.  They were committed to the place in the same ways as I was.  There were also great people at the university, so I had an interdisciplinary community of colleagues.

One of my law school colleagues was Alex Geisinger, who became a mentor and a friend.  He was on the committee that hired me.  He took the lead in helping me to understand the dynamics of the small community I had joined.  One of Alex's valuable assets was his honesty, and so he warned me about Valparaiso University (Valpo): "The best people leave."  

Of my close friends at Valpo, Alex was the first to leave.  He left to help Drexel gets its law school off the ground.  I had to be happy for Alex.  It was a great move for him and his family, but it was a bitter blow.  Not only had Alex been a great mentor for me in my teaching and scholarship, he was someone I could have a coffee with regularly, and his son, Michael, exactly one year older that my daughter, Sophie, was among Sophie's most regular playmates.  Alex always called Michael, "The Boy," and I still call Sophie, "The Child."  The Boy and The Child would play, while Alex and I would talk about teaching, and behavioral economics, and law school politics, and university politics, and politics politics, and life/work balance, and living in the Midwest when you don't really feel like you belong in the Midwest.  

I wrote previously about my commitment to community and how I felt that I belonged to a community when I started teaching at Valpo.  Alex was at the heart of that community, and he continued the connection after leaving.  When I got a one-semester sabbatical, Alex got me a visiting position at Drexel so that I could have full year away from Valpo, which was not always a happy place for me.  I had a wonderful experience teaching at Drexel and spending three days a week in the heart of Philadelphia.  Alex came back to Valpo to visit, we met up at conferences at every opportunity, and he kept in touch with our colleagues even after we all dispersed, making sure that we were all up to date on each other's lives.

I learned last night that Alex died this week while traveling with his family in Malaysia.  We lost colleagues at Valpo before, but among my small circle of close friends, Alex was once again the first to leave.  It is the bitterest of blows.

Delaware Supreme Court Ruminates on Freedom of Contract

What could be more fitting on this Valentine's Day than a love letter from the Delaware Supreme  Court to the doctrine of freedom of contract.  Here is how Justice Traynor begins his opinion in Cantor Fitzgerald, L.P. v. Ainslie:

The courts of this State hold freedom of contract in high—some might say, reverential—regard. Only “a strong showing that dishonoring [a] contract is required to vindicate a public policy interest even stronger than freedom of contract” will induce our courts to ignore unambiguous contractual undertakings.

Justice Traynor then proceeds to the nature of the case.  Plaintiffs, as partners at Cantor Fitzgerald (Cantor), entered into a  partnership agreement, which included a forfeiture-for-competition clause (the Clause).  The Clause bound partners for four years after leaving the partnership.  Pursuant to that clause, Cantor demanded forfeitures from six partners, ranging from under $100,000 to over $5 million.  The Chancery Court applied a test akin to those for covenants not to compete.  By that standard, the Chancery Court found the Clause unreasonable and refused to enforce it.

In keeping with its reverence for freedom of contract, the Supreme Court reversed.  The Delaware Partnership Act, the court noted, is expressly designed “to give maximum effect to the principle of freedom of contract and to the enforceability of partnership agreements.”  These partners went into the agreement with eyes open and enforced it against other departing partners.

The discussion begins with a seven-page summary of the operative provisions of the Limited Partnership agreement.  Basically, if departing partners worked for a competitor, they forfeited the contents of the Capital Accounts that would otherwise be paid out over four years after their departure from the firm.  The departing partners must have thought that the Clause was unenforceable, because when they resigned from Cantor, they notified Cantor that they were taking up employment with a competitor.  

Two findings, one factual/conceptual, one legal, seem to me crucial to the Supreme Court's ruling in favor of Cantor.  First, the contracts at issue here were among partners, not between an employer and an ordinary employee.  Under Delaware law, restrictive covenants with employees are tested for reasonableness, but when it comes to the Clause, the public policy interests are weighed differently, with principles of freedom of contract counseling more deferential treatment to the parties' reciprocal agreement.  Freedom of contract is not absolute.  It is constrained by public policy.  But simply attaching economic penalties to a decision to compete does not offend public policy.  The departing partners are free to compete against Cantor.  Having done so, they forfeit their Capital Accounts.

While there might be situations in which a Delaware court would refuse to enforce a provision like the Clause, notwithstanding freedom of contract, this was not such a case: "[T]he plaintiffs voluntarily entered into the partnership and the Agreement, elected to compete with the partnership upon their departure, and thereby assumed the risk of the forfeiture."

Teaching aside: I use Valley Medical Specialists v. Farber to teach covenants not to compete.  The case similarly involves a departing partner who might well be enforcing the covenant were the stethoscope around another neck.  I like the case because, even if we might not think the equities favor Farber, who presumably went into the agreement with eyes open, public policy disfavors enforcement of a covenant not to compete that stands between a doctor and his patients with specialized needs or between a doctor and potential patients in a region that might lack specialists in the doctor's area.  It's a nice illustration of when judges need to intervene in the interests of public policy even in the absence of legislation or regulation.

Hat tip: Eric Chiapinelli

The Importance of Ordinary Acts of Kindness

Two years ago, I got a prize in my cereal.  I don't have much use for toys, and my daughter was away at college.  I decided I would give the toy to a student as a prize for a successful Socratic exchange.  I don't remember what prompted the award, but I gave it to a student, and she beamed.  As I recall, she attached the trinket to her computer as a badge of honor.  Happy with the exchange, I looked around my office for other small tokens with which I could happily part, and I occasionally gave out prizes to students.  Eventually, I found ways to hold mini review sessions in which everybody got the opportunity to win a prize.  In general, the prizes are random appreciations for successful responses to cold calls.  I don't want to be singling out students for excessive praise.  Once one student gets a prize, they should all get rewarded eventually.  

The exception was that I gave two students cara cara oranges in Sales last year.  One because the student successfully remonstrated with me that there may have been two correct answers to one of my multiple choice questions.  The other was because the student corrected my reading of a UCC section.  I wrote on the peels, "You were right; I was wrong."  And I signed it.  I think one of them said, "I'm showing this to my mom!"  I do want to highlight and reward vigorous advocacy.  On the whole, my students need to practice respectful disagreement with authority figures, starting with me, and hopefully working their way up to zealously advocating for their clients.   

I have neglected the gift-giving tradition this year.  I just haven't gotten my act together to gather the prizes, but a recent exchange with the original award winner persuaded me that I need to revive it.  And I know just the thing.  Last year, we gave students fidget toys around finals, and they were a huge hit.  You can get a big pack of them (left), they are cheap, and students, I have learned, have very particular and individualized preferences when it comes to fidget toys.  I thought everyone would fight over what I thought were the best toys, but everyone has their own itch to scratch, and so the toys found their way into the right hands.  Very few toys went unclaimed.  A few found their way to my desk, and now students have fidget toys to play with which they talk to me.  For some reason, only my Associate Dean tends to my Zen litter box (below right), and that's fine, because she keeps it looking its best.  When we are chatting in my office and I point out that the litter box needs tending. She gets this intense look in her eyes as she surveys and strategizes.  Then she sets to work as we continue our conversation.

I was reminded that I have been remiss about gift-giving because I did a little quiz bowl session with my Sales students and I gave out candy for correct answers.  The topic of gift-giving came up, and I remembered that the one of my Sales students was the student to whom I gave my little cereal trinket.  I asked her if my memory was correct, and she said, "Oh, yeah, I still have it!" (top right)  I told her I remembered it because I was surprised by how happy she was to get the little prize.  She told me (and the class, and she has given me permission to share the story here) that she had been going through a rough patch in law school, and she was not feeling confident about speaking in class.  That little affirmation was just the thing she needed.  It turned out that my small gesture helped my student get over a hump.  It cost me nothing, but it had great value for her.  And that's a reason to keep engaging in ordinary acts of kindness.

When I asked the student for permission to share her story, she reminded me that there was a time that I told her a variation of something that I often tell students whom I suspect are suffering from imposter syndrome.  It is something I say to students regularly, and I always believe it when I say it.  I don't say it if I don't believe it.  Fortunately, we admit very few students to whom I could not deliver a version of the following:

We admitted to you because we think you belong here.  Now you're here, and we still think you belong here.  You are exactly where you ought to be, so don't let a disappointing Socratic exchange or a marked-up legal writing draft make you think otherwise.  Most of your peers  are experiencing the same roller-coaster ride that you are.  And nobody, including me, thinks twice about anything you say in response to Socratic questioning.  Your classmates are too worried about what they are going to say, and I am satisfied so long as you manage to produce words that are arguably responsive to my question.  Keep working at it, and it comes more easily.

I have come to believe that we law professors sometimes take ourselves too seriously, e.g., when we think that a well-placed law review article will be the lever with which we can move the world.  But I have also come to realize that we don't take ourselves seriously enough when it comes to how important it can be to students to receive encouragement and affirmation from us.

Do I Teach Too Many Old Cases?

In the past few years, I have received a few complaints in my student evaluations that I teach too many old cases.  This year, there were more such complaints than ever before.  There aren't that many; only a handful out of 75 students in my contracts courses, but the complaint is new and gaining steam.  One student helpfully defined "old" as cases from the "19th and 20th centuries."  It's official.  I'm old.

The good ship Peerless as imagined by my former student, Justin Vining

These comments led me to go back through my reader and have a look.  The oldest case I teach is Mills v. Wyman, from 1825.  I teach three cases decided in 2023.  I only teach ten cases (of fifty) from the 20th century, and the median case dates from 1968.  Fifty cases total is not a lot of cases.  I supplement my reader with an Brian Blum's Examples & Explanations book, so the students get a lot of hypotheticals that are generally in a contemporary setting.  One interesting phenomenon that I have noticed since I started supplementing cases with problems is that students have difficulty keeping straight which fact patters are real and which are hypothetical.  So, from my defensive crouch, I could argue that a supplement my two score and ten vintage cases with at least that many problems set in the 21st century.

My reader includes five cases from the 19th century: Mills v. Wyman, Kirksey v. Kirksey (1845), Raffles v. Wichelhaus (1864), Hamer v. Sidway (1891), and Rickets v. Scothorn (1898).  I love these cases.  They all teach really well and lead to great class discussions.  There is rich literature and lore about all of them.  Is that reason enough to continue using them?  An additional argument in their favor is that they are all good law.  It would be hard for me to abandon these cases, even if I knew of more recent cases that covered the same ground, but I don't.  Perhaps that is because I have been complacent and haven't bothered to look, but it may be that these cases have come to occupy the field.  Rather than engaging in the kind of analysis that these cases engage in, modern courts simply cite to them or to equally musty old cases that lack their compelling facts or well-written opinions.

Cardozo Cup Competition Entry by my former student, Jeff Miller

I may be on shakier ground with the next half-century.  I teach eleven cases published between 1901 and 1935.  Judge Cardozo accounts for four of them.  Paraphrasing Ben Jonson, I might confess, "My sin was too much hope of thee, lov'd Judge."  I could drop Lady Duff, as I pair that case with B.L. Lewis Productions.  v. Angelou, but the latter case spends so much time talking about Lady Duff, it seems a shame not to share the original with my students.  Is there a better case for charitable subscriptions that Allegheny College?  A better discussion of fatally incomplete contracts than Sun Printing?  Perhaps.

There is still a part of the course that serves to contrast the more formalist approach of the early 20th century to our more contextual approach since the adoption of the Uniform Commercial Code and the Restatement Second.  I suppose I could drop some of the material on formalism.  My fear is that there are still jurisdictions that retain a commitment to formalism.  There is also a formalist wind blowing through other regions of our jurisprudence.  Who is to say it will not invade the province of private law as well?  

I think the students who complain about the old cases do not appreciate how hard it is to find cases that teach well and state the law clearly.  As I said, I added three new cases from 2023 in my last version of Contracts I.  I don't know if any of them have staying power.  The emoji case stands the best shot, but it is a Canadian case and so has certain oddities about it.  Perhaps a red-blooded American case on emojis as acceptance/signatures will come along soon. 

When I teach Sales, I don't teach any cases that are older that Article 2 itself.  The cases I have selected are a motley crew.  Sometimes I teach against the cases, because I think the judges were simply incompetent in their understanding of either Article 2 or the transactions or both.  Electricity is not a good?  Nonsense!  At other times, the cases are well reasoned, in my view, but state only a majority view not accepted in all jurisdictions (love ya, 2-207 knock-out rule for different terms.!).  The old cases that have withstood the test of time are, at least sometimes, unavoidable in a common-law system based on precedent.  I wish there were more such definitive cases that governed Article 2.  

I will say this in favor of the old chestnuts.  I sometimes interact with alumni, and when I tell them I teach contracts, they sometimes claim no knowledge or memory of the course.  But when I remind them of some of my favorite cases, they become gleeful.  I am a communitarian, and so I love that lawyers across generations can bond over these old cases, even if just involves rolling our eyes about Pennoyer v. Neff.  In my past life as an intellectual historian, I participated in debates about canonical literary texts in which white male voices predominate.  I get that, and I am all for a more inclusive canon, but I also know how I have benefited from having experienced Columbia's core curriculum.  I went to college a midwestern yokel, the product of a decent public school but never having read or been exposed to much of the canon.  The eduction I received has facilitated connections and conversations that would never have otherwise been possible.  And non-canonical works routinely reference canonical works, permitting those familiar with the canon to appreciate the layers of meaning and the reworking of traditional material on a different level from those who just miss the references.  I want my students to get the jokes and appreciate the references.

That said, I just added a case to my syllabus for this coming semester that I discovered through work on the blog.  I hope it's a keeper!

Friday Frivolity: An Interpretive Puzzle

I have been thinking about this sign in my fitness center's locker room for some time.  I think about it every time I walk into the locker room using my cell phone to listen to a podcast.  

Am I in violation?

I surveyed my students.  One section said, "No bruh, everyone needs their tunes at the gym."  The other section ordered me drawn and quartered, asking why I had to go into the locker room at all and questioning my taste in podcasts. 

But I was born a History of Byzantium listener, and I'll die a History of Byzantium listener!