ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Monday, February 10, 2025

Reviewing Larry DiMatteo, Principles of Contract Law and Theory, Part IX

This is the ninth post in my series on  Larry Di Matteo's Principles of Contract Law and Theory (Principles).  The aim is to call some attention to this book while using it to stimulate my thinking as I once again consider how to teach contracts law to first-year students.  Principles is a scholarly textbook addressing advanced topics at a very high level of sophistication. 

PrinciplesChapter 9 of Principles is about standard terms and form contracting. It begins with the arresting observation that all contracts have both enforceable invisible terms and unenforceable express terms. (213) We should be grateful on both counts. The fact that courts can imply terms reduces transactions costs, as the parties do not have to negotiate terms that can be assumed to be part of the contract as a product of trade usage or course of dealing. Parties often draft contracts that include terms that they know are unenforceable but that nonetheless have the in terrorem effect of discouraging breach or dissuading parties from asserting their legal rights.

Courts regulate express terms such as satisfaction clauses, exculpatory clauses, and limitations on damages. (214-15) Default rules ensure fairness and efficiency and place the risks and burdens on the party that can avoid at the least cost. (216) Many such rules, Professor DiMatteo notes, were imported into the common law from the law merchant. (219) Some contract terms have their origins in case law, like “best efforts” clauses in agency relationships, which derive from Judge Cardozo’s justly celebrated opinion in Wood v. Lucy, Lady-Duff Gordon. In other cases, default terms are created by statute, as in the UCC’s ¶¶ 2-305-310. (220-21)

Professor DiMatteo provides a brief history of standard form contracting and notes the potential, especially in consumer contracts, for their use to replace with actual, substantive assent with mere manifestations of assent. (222-23). As he frequently does, he reminds U.S. readers that, contrary to what law and economics might suggest, enforcing all such contracts that fall just short of unconscionability is not the only way to preserve efficiency in commercial contracting. Other states have special rule for consumer contracts and even Karl Llewellyn thought that consumers should only be bound by dickered terms in form contracts and non-dickered terms so long as they are reasonable. (223-24). There follows a short but suggestive exploration of the dangers of contracts of adhesion and rolling contracts. (224-25)

Finally, the chapter covers the growth of statutory law and its impact on the common law of contracts. In the U.S., the adoption of the Uniform Commercial Code is the most important development in this realm, and the modernization of contract law that Article 2 entails has greatly influenced the development of the common law in the United States since the 1960s. (225-28) In the UK, membership in the EU required the adoption of a range of consumer contract laws that are far more comprehensive than their U.S. counterparts. (230) Professor DiMatteo does not address whether the UK has walked back these protections since Brexit, but I would be very surprised it they did. Brexit presented itself as a populist movement, and the popularity of consumer protection, in my experience, extends across the political spectrum.

The first post in this series can be found here
Part II is here.
Part III is here.
Part IV is here.
Part V is here.
Part VI is here.
Part VII is here.
Part VIII is here.

February 10, 2025 in Books, Commentary, Contract Profs, Recent Scholarship, Teaching | Permalink | Comments (0)

Monday, February 3, 2025

Reviewing Larry DiMatteo, Principles of Contract Law and Theory, Part VIII

This is the eighth post in my series on  Larry Di Matteo's Principles of Contract Law and Theory (Principles).  The aim is to call some attention to this book while using it to stimulate my thinking as I once again consider how to teach contracts law to first-year students.  Principles is a scholarly textbook addressing advanced topics at a very high level of sophistication. 

PrinciplesChapter 8 of Principles covers interpretation. This is a very important subject matter and a challenge to encapsulate and to teach. Most contracts disputes turn on interpretive matters, but each problem of interpretation turns on specific facts and specific contractual language. Hence the importance and the challenge. As noted in last week’s post, Professor DiMatteo speaks of “overt" regulation of contract enforcement through doctrinal defenses and excuses and “covert” regulation through the courts’ exercise of their interpretive discretion.

In this chapter, Professor DiMatteo focuses on the divide between formalist (a/k/a literalist or textualist) and contextual approaches to interpretation. He addresses sociological takes on contracts interpretation in Chapters 13 and 14. He begins by usefully distinguishing interpretation, construction, and rectification. (184-85) As he describes it, construction is contextual, but he discusses canons of construction later in the chapter (207-08), and these canons are arguably both part of construction and formalist. Rectification is a rather narrow part of the package, applying only when a court is empowered to correct some error that would lead to an outcome inconsistent with the clear intent of the parties.

The clear theme of the chapter is that contextualism has won out over formalism. As Professor DiMatteo puts it, with refreshing candor: “The plain-meaning rule is fatally defective becasuse a writing cannot be sensibly interpreted without regard to the context in which it was written, and disputed contract language is almost never unambiguous.” (183) The heroes of the chapter are, on the American side, Holmes, Cardozo, Traynor, Corbin, and Llewellyn, and on the UK side, Lord Steyn, Lord Wilberforce, and Lord Hoffman. Professor DiMatteo also sprinkles in some lovely quotations about the inability of language to convey stable meaning. Overall, one is left with the impression that, under the sway of the Restatement (2d) of Contracts and the U.C.C., contextualism routed formalism more thoroughly in the United States than it did in the UK. But elements of formalism remain in our strange attachment to the Statute of Frauds and in the continued adherence to the Willistonian version of the parol evidence rule in some jurisdictions on this side of the pond.

The first post in this series can be found here
Part II is here.
Part III is here.
Part IV is here.
Part V is here.
Part VI is here.
Part VII is here.

February 3, 2025 in Books, Commentary, Contract Profs, Recent Scholarship, Teaching | Permalink

Monday, January 20, 2025

Reviewing Larry DiMatteo, Principles of Contract Law and Theory, Part VI

This is the sixth post in my series on  Larry Di Matteo's Principles of Contract Law and Theory (Principles).  The aim is to call some attention to this book while using it to stimulate my thinking as I once again consider how to teach contracts law to first-year students.  Principles is a scholarly textbook addressing advanced topics at a very high level of sophistication. 

PrinciplesChapter Six of Principles continues its discussion of the substance of contracts law, covering remedies, excuse, and privity, with short sections on cessation (termination) and matters affecting third parties. Leaving aside those odds and ends, the chapter nicely mirrors a point Professor DiMatteo makes eloquently in its opening paragraph. Courts generally enforce valid contracts according to their terms. However, there are remedial doctrines that take justice and fairness into account. (134)

The discussion begins with a section on extraordinary remedies, with a brief reminder of their origins in Chancery courts. (135-36) In keeping with his comparative theme, Professor DiMatteo notes that specific performance is extraordinary in common-law jurisdictions but ordinary in civil law jurisdictions and also among the Scots. In a laconic parting shot, citing his own co-authored work on China, Professor DiMatteo notes that the difference may be more theoretical than practical, given the inconvenience of policing orders of specific performance. (137-38) The book sometimes teases us with the hidden depths of Professor DiMatteo’s expertise.

On the whole the section on damages is concise yet fairly comprehensive.  Foreseeability (146-48), mitigation (148-49), and certainty (149-50) are illustrated with detailed summaries of cases. Those are useful, but as the doctrines are multi-faceted, it is hard to illustrate them using just a handful of cases. 

The discussion of compensatory damages includes a tantalizing mention of a Lord Denning opinion from 1972 allowing for the recovery in contract for “disappointment and distress.” (140) Such recovery is at odds with the requirement that damages be calculable with reasonable certainty. Lord Denning thought that, if the calculations are possible for torts claims, why not also for contracts claims? I would like to know more of the post-1972 development of English law on the topic. The mention of Lord Denning comes in the context of a  discussion of how contracts damages are often under-compensatory. True enough, but nothing prevents a plaintiff from claiming negligent or intentional infliction of emotional distress along with breach of contract. This might have been an opportunity to go back to a point that Professor DiMatteo made in Chapter 2: while different legal traditions part ways on matters of doctrine, they often arrive at very similar substantive conclusions.

I get the sense that Professor DiMatteo is more sympathetic than I am to a blurring of the lines between the sorts of damages available for breach of contract and in tort. He writes that punitive damages are sometimes available for breach of contract where the party acted “willfully, maliciously, or fraudulently.” (143) I would say, at least as a matter of U.S. common law,  punitive damages are available if a breach of contract is accompanied by an independent tort, such as the tortious interference claim in the notorious Pennzoil v. Texaco case, (143-44) but not as a remedy for breach of contract unless exemplary or punitive damages are made available through statute. The difference is technical, as there is a plethora of such statutes (and yes, by “plethora,” I do mean an unhealthy excess). Our retributive instincts have made U.S. criminal law a horror; I see no need to import such venom into commercial law, but legislators gonna legislate.

DiMatteoThat interest in conflating (contorting?) contracts and tort is also evident in Professor DiMatteo’s explication of foreseeability in connection with consequential damages. He draws an analogy between Judge Cardozo’s famous elaboration of proximate cause in his Palsgraf opinion and the foreseeability analysis in Hadley v. Baxandale. (146-48) As is my wont,  I resist the analogy. To my mind, the problem in Hadley is not foreseeability; it is notice. The mill owner told the delivery service that: 1) it needed its crankshaft replaced and 2) its mill was shut down. The causal connection was hardly unforeseeable, but it was unforeseen. The Hadley rule requires that the non-breaching party provide actual notice of the potential for consequential damages so that, as Professor DiMatteo appropriately points out, the breaching party can take necessary precautions. (148) By contrast, in Palsgraf, the likelihood that a porter’s negligence would cause an explosion that led to the collapse of scales on the other end of railway platform was so remote, there was no possibility of notice and thus no precautions that the railroad might have taken.

The section on excuses (150-55) makes for nice reading. Much of the doctrine, even as taught in U.S. schools, builds on fun old cases about cancelled coronations and surprise closings of the Suez Canal. Professor DiMatteo is an excellent guide through the material. He defers discussion of allocation of risk to the end of the section (154-55), as is appropriate, as the earlier English cases do not expressly address the topic. Nonetheless, one can make sense of the earlier cases in terms of allocation of risk, as does Judge Posner when he reviews the earlier cases in NIPSCO v. Carbon County Coal

The brief discussion of privity (156-57) touches on some interesting contemporary challenges to the doctrine in the context of blockchain technology and network contracts. In my teaching, privity comes up mostly in connection with warranties and related discussions of strict liability under § 402A of the Torts Restatement. Professor DiMatteo addresses warranties in the next chapter, but the decision to discuss privity in this chapter makes sense because it provides a segue to the discussion of third-party beneficiaries and assignment and delegation with which Chapter 6 concludes. (157-59)

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

January 20, 2025 in Books, Contract Profs, Famous Cases, Recent Scholarship, Teaching | Permalink | Comments (0)

Tuesday, January 14, 2025

Contracts and the First Amendment: Union Edition

NLRB SealI was today years old (writing in December 2024) when I learned of the 2020 National Labor Relations Board (NLRB) decision finding that it had no jurisdiction over faculty at religious institutions. Overruling its own 2014 decision (Pacific Lutheran), the NLRB in 2020 adopted the D.C. Circuit’s approach in a case involving Duquesne University as more consistent with SCOTUS’s 1979 precedent in NLRB v. Catholic Bishop of Chicago. In that case, SCOTUS rejected NLRB jurisdiction over employment decisions at religious institutions that might reflect protected First Amendment values.

In Pacific Lutheran, the NLRB thought it could exercise jurisdiction over faculty unionization efforts without violating constitutional protections for religious freedom. In that case, the NLRB found that nothing in the University’s “governing documents, faculty handbook, website pages, or other material” suggested that the faculty members at issue “perform any religious function.” That standard, the NLRB held in 2020, was inconsistent with Catholic Bishop. Instead, the NLRB adopted the D.C. Circuit’s Great Falls test, according to which, the NLRB has no jurisdiction over any institution that

(a) “holds itself out to students, faculty, and community as providing a religious educational environment”; (b) is “organized as a nonprofit”; and (c) is “affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.”

Religious institutions may choose to recognize unions, but the NLRB cannot force them to do so.

MarquetteI bring all this up today because I just read Heidi Schlumpf’s reporting from November 25, 2024 in The National Catholic Reporter on the situation at Marquette University.  Ms. Schlumpf writes of full-time, non tenure-track Marquette professors who have to supplement their incomes as Uber drivers or working for food delivery services. Some have given up on teaching altogether, because they could not support their families on the salary they received from Marquette. Unionization might help, but Marquette has availed itself of the religious exemption to refuse to recognize the union. In so doing, Marquette follows the examples set by Boston College, Seattle University and St. Leo University, all of which have refused to recognize unions. There is a longer list of Catholic universities that have allowed unions.

Marquette University cites financial difficulties as the reason why it will not recognize the union. Employees note that they are underpaid compared to their peers at other universities and that Marquette has chosen to send resources towards upper administration rather than instruction.  

In any case, how are financial difficulties grounds for a religious exemption? Isn’t the fact that some Catholic universities voluntarily recognize unions evidence that there is no religious ground for excluding them? At the very least, shouldn’t the NLRB ask Marquette to explain how the a union burdens its free exercise of religion while not burdening the religious exercise of other universities that claim adherence to that same religion?

I have staked out my position on contracts and the First Amendment in a series of posts and law review articles, including this one and that one. I won’t go on at length here. Following Jamal Greene, I call oppose rights absolutism and advocate for rights mediation. You are a religious institution. Fine. Courts should protect your Free Exercise rights. But you still have to make a showing that those rights are meaningfully burdened by the existence of union on your campus. There may well be a connection, but the person claiming a burden on their rights has to make that showing in each case. The result might well be that the private parties work out their own accommodations of contractual and constitutional rights, and whatever they come up with is likely to be a lot better than an absolute bar on worker representation at religious educational institutions.

January 14, 2025 in Commentary, Current Affairs, In the News, Labor Contracts, Religion, Teaching | Permalink | Comments (0)

Friday, November 22, 2024

Thinking About/Worrying About the NextGen Bar

NextGen-logo-Rev-retinaWhen it comes to the new bar exam, coming to a state near you beginning in 2026, I am still at the bottom of the learning curve.  Oklahoma is planning to administer this version of the exam in 2027, so my current 1Ls will be the first group of students that I have taught who will have to take it. Any of my past students who cannot pass the bar exam before then will also face an exam for which I fear my teaching did not ideally prepare them.

I have long striven to design my assessments to mirror what students will face on the bar exam. My formative assessments combine multiple choice questions to familiarize students with the way fact patterns and distractors work on the MBE with short answer questions to build issue-spotting and IRAC skills. For those of you unfamiliar, IRAC stands for Issue, Rule, Application, Conclusion, which, with some variation, is the format that bar exam answers take. My final exams include essays modeled on bar exam essays. They are designed to have one or two major issues, with perhaps some minor issues layered within them. 

BarristerBut the NextGen bar expects students to have developed different skills. They need to do more than just spot issues in a fact pattern; they need to take facts as presented by a client and think about what follow-up questions they need to ask. They need to think about not just what they know from the materials but what they need to know in order to proceed. It is not that I do not think our students get training that will help them further develop those skills in their 2L and 3L years and in their summer experiences. Rather, the problem is that pretty much all of the ways in which I assess my 1Ls no longer prepare them for parts of the NextGen bar. I would like to make my assessments more like those on the NextGen bar, and that is my project for next semester. It's a tough assignment, because there are not yet very many exemplars of what the NextGen bar will look like.

I am inclined to be skeptical of a bar exam that makes me do all of this work, but there is an aspect of the NextGen roll-out that makes me more skeptical still. I have now heard from two reliable sources the National Council of Bar Examiners (NCBE), the good people behind the new bar exam, are administering tests to students who recently took the bar. They will then compare the scores of the students on the NextGen exam to their scores on the current bar exam. They will set the pass score for the NextGen exam at a level such that those who passed the current bar will also pass NextGen.

This makes no sense to me. What's the point of changing the exam, if the people who do well enough to pass the old exam also do well enough to pass the new exam? If that is so, the exam is still just a general intelligence quiz, and the new exam serves no purpose not already served by the existing exam.  That is, I thought the problem with all hitherto existing bar exams is that they do test the sorts of skills that are most relevant to practice. The aim of the new bar, one would think, would be reward the students who have the kind of skills that real attorneys need, and that might require a different kind of intelligence. We should want a difference in outcomes on the new bar. It should reward a different kind of smarts, perhaps to some extent at the expense of those with the more traditional skill set, perhaps just in the interests of broadening our assumptions about the kinds of people who can become lawyers.

My limited experience with the NextGen bar suggests that testing in a new way is challenging.  The NCBE circulated some practice questions, and I tried my hand at the problems. The MBE-type questions seem pretty-much unchanged from earlier iterations of the bar exam. The new "integrated question set" portion of the exam constitutes the real innovation here. Some of the questions required the test-taker to imagine what arguments a party in breach might make to avoid liability. I assume the fact patterns will get better, but in the fact pattern I saw, the party in breach had no strong arguments. They had clearly breached and no excuses or defenses applied, so it was matter of choosing the least bad argument. Counseling the client to settle was not an option. To my surprise, my answers were the "right" answers, I think in the sense that they were the least wrong answers. I'm not sure why testing students' ability to find the least bad arguments is a worthwhile goal. You can have a look at more sample questions here (I haven't worked through these yet).

I am relieved that the multiple-choice style questions on the NextGen bar look a lot of like the old MBE questions. I can't say that I understand the decision to cut back so radically on essay writing. It is hard for me to imagine that the practice of law has now become divorced from the need for strong writing skills to the extent that showing a basic competence to write clearly in extended form is no longer considered a qualification that the bar exam needs to test.

Perhaps the goal of the NCBE is not to change the people who can become lawyers. Perhaps the goal is to change legal education, to the extent that we in the academy are inclined to teach to the the test. Some law professors clearly are not, but we in the Other Legal Academy don't all have that luxury. I admire the aspect of the integrated-question-set portion of the NextGen bar that resists the siloing effects of law school, in which students, at least in the first year, learn subjects in isolation. The practice problem I did was a contracts fact pattern, but the questions also related to civil procedure, agency, and legal ethics. Civil procedure and agency matters come up from time to time in my first-year contracts class, but I don't have the time or expertise to perform deep-dives into that subject matter. I think that's fine. Legal education already does a pretty good job, I think, of overcoming siloing in second- and third-year doctrinal courses, and in the experiential learning curriculum.

Law LordWhen I was an attorney, I focused on writing dispositive motions and appellate briefs. My writing experience made it easy for me to train students to write bar essays. I have since learned how to write multiple-choice exams, but that too is about writing fact patterns that require the students to issue spot and apply legal rules to unique facts.  Like many law professors, I clerked for an appellate judge and I worked for a Big Law firm.

To the extent that I interacted with clients, I was talking with corporate counsel. I didn't have to help them piece together their cause of action. And I never did serious transactional work, so I was never involved in a negotiation or a client intake interview. I can learn how to teach the skills that the NextGen bar tests, but it is not a natural fit for me. If law schools are paying attention to what the NCBE is looking for from our students, it could affect hiring priorities. Most schools focus on hiring people with LL.Ms and Ph.D.'s or J.S.D.s who have won prestigious visiting assistant professorships where they taught a reduced load while focusing on their research. Hiring such people is consistent with having faculty members who will contribute to legal scholarship and to law reform projects. However, at least at law schools like mine, where students are not guaranteed to pass the bar unaided, should we have people who are more practice-focused teaching the bar-related courses?

Although the new bar exam will affect our students, I have a sense that very few law professors have contributed to its composition. Yes, our faculty members responsible for bar preparation are engaged with the process, but for the most part, they seem to be passive spectators begging the NCBE for more information about the new exam so that they can strategize about how to prepare students for it. There have been bewildering releases of information regarding concepts covered and the extent they will be covered. Given its lack of a ground game, the NCBE should not be surprised if law professors either think that the new bar exam is not their concern or react to it with hostility. The NCBE may be indifferent to law professors' response to the exam, but really the professoriate and the NCBE should be coordinating their efforts to help our students succeed.

November 22, 2024 in Commentary, Law Schools, Teaching | Permalink | Comments (1)

Friday, November 15, 2024

Enforcing Campus Due Process Through Contracts Law and Addressing Vagueness Claims

I happened upon these two different cases that seem evidence of a trend. Perhaps the trend is old, but I had not spotted it before. In the COVID cases, students sought recovery of tuition and fees based on their universities' alleged breach of a promise to provide in-person education. There were also claims for unjust enrichment. Sometimes the courts recognized a contract; sometimes they didn't.

In the cases discussed below, the courts use a contractual frame to protect the due process of right of students subject to discipline for alleged sexual misconduct. In the eyes of these courts, there is no question that the students' alleged due-process rights derive from certain representations the universities made through handbooks and manuals. The courts do not speak of due process. The only questions are whether contractual promises have been made and whether the promises are too vague to be enforced. 

Emory LogoVagueness cases are hard to come by and so these cases could be useful teaching vehicles. Unfortunately, the cases are about campus rape and sexual assault, so there is a danger that class discussion will trigger responses unrelated to the legal issues at hand. That's too bad, because the underlying facts really don't matter for the purposes of testing the legal doctrine of vagueness. I will keep on the look-out for students dismissed for less sensitive reasons, like plagiarism (if that still exists in the age of AI).

There was an interesting case, Doe v. Emory, reported on by Meghan Morris here. The case involved two students who were first rewarded for developing a new AI study tool and then disciplined (with shocking severity) when the school determined that the tool could be used for cheating. Unfortunately, for our purposes, the case settled before it generated any legal opinions. The complaint is here.

The University of Denver expelled plaintiff John Doe (Plaintiff) for alleged non-consensual sexual contact with student Jane Roe. He sued the University, alleging breach of contract, breach of the duty of good faith and fair dealing, promissory estoppel, and negligence. In University of Denver v. Doe, the Colorado Supreme Court found that there remained genuine disputes of material fact as to (1) whether DU adhered to the specific investigation provisions in the Office of Equal Opportunity (OEO) Procedures and, by extension, (2) whether DU fulfilled its promise of a “thorough, impartial, and fair” investigation. Accordingly, it allowed Plaintiff's breach of contract claims to proceed while dismissing his other claims.

Colorado_Supreme_Court_sealPlaintiff and Ms. Roe have differing accounts. Both acknowledge being drunk. Both acknowledge that they had intercourse. They dispute whether Ms. Roe consented. Ms Roe filed a complaint with DU’s OEO, and the OEO then  followed procedures for investigation dictated by state and federal law. That process resulted in a report finding that Plaintiff more likely than not had engaged in nonconsensual sexual contact with Ms. Roe. The penalty was dismissal. He appealed, alleging that the investigators were biased and that the penalty was disproportionate.  His appeal was dismissed, and the  report became a final decision.

The trial court had dismissed Plaintiff's breach of contract claim, finding that the University's promise of a "thorough, impartial, and fair" investigation was too vague to constitute a contractual promise. The Supreme Court disagreed. Viewed in the context of the University's detailed specifications of its investigative procedures, the language was sufficiently definite to constitute a legally binding contractual obligation.

The trial court had also concluded that Plaintiff's allegations that the OEO procedures were faulty were either demonstrably false or immaterial. Here again, the Supreme Court disagreed. The problems that Plaintiff identified with the OEO procedures were sufficiently weighty to constitute genuine issues of material fact, precluding summary judgment on the breach of contract claims.

One Justice dissented from the denial of summary judgment as to the breach of contract claims.

11th CircuitThe Eleventh Circuit reached a very similar conclusion in Doe v. Emory UniversityThe case featured an ugly claim by Emory that its unilateral right to amend its implied contract with its students rendered that contract void for vagueness. Again the facts involve an alleged sexual assault.

The Court first held that the Plaintiff had adequately alleged an implied contract based on Emory's Sexual Misconduct Manual. It noted the accuracy of Emory's claim that, as a matter of Georgia law, “if any term of [a] contract is amendable at the will of [one party], the entire contract [is] void for vagueness because there could be no assent of the parties to the terms of the contract.” Emory also noted that it had amended its Sexual Misconduct Manual seventeen times between 2007 and 2020. However, the Court noted that most of the changes were trivial, such as updating the names of the relevant Emory officials. Moreover, the Court rejected Emory's claim that the changes were made without student input and thus rejected Emory's argument that it had "absolute right to amend its policy that would render it effectively illusory and preclude the parties’ mutual assent." The Court thus reversed the District Court's dismissal of Plaintiff's claim and remanded for further proceedings.

November 15, 2024 in Recent Cases, Teaching | Permalink

Friday, November 8, 2024

Sid DeLong, Hillbilly Equity

HILLBILLY EQUITY: Woollums v Horsely as Mountain Melodrama
Sidney W. DeLong

When I began teaching contracts, I used the Dawson, Harvey, and Henderson Contracts casebook. As do many casebook authors, Dawson chose cases whose entertainment value enhanced their pedagogical effects. The defense of unconscionability was illustrated by Woollums v Horsley, 20 S.W. 781 (Ky. App. 1892), a masterpiece of the melodramatic genre of appellate opinion-writing,

The parties were introduced with a few deft strokes:

In August, 1887, the appellant, John Woollums, was living upon his mountain farm of about 200 acres in Bell County. He was then about 60 years old, uneducated, afflicted with disease disabling him from work, owned no other land, and but very little personal property. He knew but little of what was going on in the business world owing to his situation and circumstances in life. He moved in a small circle.

He moved in a small circle. That’s the line that got me. Woollums is the perfect victim, a lamb waiting for the wolf to appear. On cue, the villain made his moustache-twirling appearance:

Snidely_Whiplash_(Rocky_Bullwinkle)
Horsely, as portrayed by Snidely Whiplash

At this time the appellee, W.J. Horsley, who was then a man of large and varied experience in business, who was then buying mineral rights in that locality by the thousands of acres, and who was evidently familiar with all that was then going on and near at hand in the way of business and development . . . through his agent entered into a contract with [Woollums], which was signed by [Woollums] only, by which he sold to Horsely all the oils, gases and minerals in his land with customary mining privileges, for $0.40 per acre.

This melodrama was set in Bell County, a sparsely populated corner of eastern Kentucky that borders both Tennessee and North Carolina. It is in the heart of the Eastern Kentucky coal belt, which supplies its only income.

Horsely had designs on Woollums’ only asset, his modest mountain “farm,” whose commercial value lay in its coal deposits. Evidence showed that its mineral rights were worth $15 per acre. Horsely’s agent thus snagged Woollums’ $3,000 farm for $80. He persuaded Woollums to sell by assuring him that the mineral rights would never be exploited during Woollums’ lifetime. As the court put it: “He was lulled in the belief that the Rip Van Winkle sleep of that locality in former days was to continue; and the grossly inadequate price of this purchase can only be accounted for upon the ground that the appellant was misled and acted under gross misapprehension.”

In the Second Act, Woollums finally woke up and refused to convey the land. Horsely sued for specific performance, a remedy that is generally available to enforce contracts for the sale of land. In place of the mortgage foreclosure that figured so prominently in melodramas, Horsely brandished a contract for mineral rights that would have permitted the family farm to be strip-mined out from under its owners. The trial court duly granted the order and Woollums appealed, seeking the protection of Equity.

Although it is a common remedy for refusal to perform a contract for the sale of land, specific performance is an equitable remedy and will not be ordered if it would be unfair to do so. After a review of the circumstances of the transaction, the Kentucky appellate court dismissed the bill on grounds that equity would not enforce such a grossly unfair bargain. The gross inadequacy of the consideration coupled with the gross disparity in knowledge and sophistication of the parties made its decision easy. In essence, the court refused to assist Horsely in his legal depredations of local citizens.

It has long been popular among legal realists to deprecate the unsystematic reasoning of courts of equity, where outcomes are thought to rest on unreviewable and unsystematic judicial idiosyncrasy, “the length of the Chancellor’s foot.” Yet, I found the court’s holistic account to be far more compelling than a contemporary, rule-bound analysis of unconscionability.

Unconscionability is loosely defined in Restatement (Second) of the Law: Contracts § 208 and in the Uniform Commercial Code in § 2-302. Unconscionability is to be determined by the court, not a jury. Under the U.C.C., a court may, upon a finding of unconscionability, refuse to enforce a contract or enforce it without the unconscionable term.

London Court of Chancery
Court of Chancery

A strong common law tradition follows the analysis of Professor Arthur Leff in requiring both procedural and substantive unfairness as prerequisites to a finding of unconscionability. Although the Woollums contract exhibited a sufficient substantive imbalance, it is a close question whether a contemporary judge would find sufficient procedural unconscionability, absent fraud, duress, or abuse of a confidential relationship. Today’s legally-competent adults with terrible judgment are bound by contracts even more one-sided than Woollums’. Equity may have been more protective in the nineteenth century, at least at a local level.

But even though he lost on the order of specific performance, Horsely had not yet lost the case. Unconscionability was a defense only to equitable actions, not to legal claims for damages. Woollums remained liable to Horsely for the lost benefit of the bargain, the difference between the contract price ($80) and the value of the land ($3,000). Horsely would have been entitled to a money judgment against Woollums for that amount.

As an aside, the reader may wonder how Woollums, who had “but very litte personal property,” could have paid a judgment for $2,920? Re-enter the melodramatic villain, this time with a judgment instead of a mortgage to enforce. As an unpaid judgment creditor, Horsely, like a mortgagee, could force an auction of the farm at which he very likely would have been the only bidder. If the Law had taken its course, the one-sided contract would have been enforceable despite its lack of Equity.

But Dawson’s casebook posed the following question after the opinion: “It appears that John Woollums was not much of a traveler, so that any suit against him for damages would probably have to be brought in Kentucky in the county of his residence. Would you advise Horsley to bring such an action?”

I loved this classroom question. In addition to forcing law students to see themselves as attorneys for the unpopular litigant – stretching their legal imaginations – a complete answer to this question introduces them into the ways that the world of legal practice can sometimes provide a route to justice that the world of legal theory cannot. Even though the Chancellor had exhausted his institutional power to protect Woollums from Horsely’s over-reaching, the jury system offered one last line of defense. Woollums’s circle of friends may have been small but, in the land of moonshine and jury nullification, his friends and neighbors could give him more protection from Horsely than Equity could.

As the curtain drops and the credits roll, the farm is saved, the villain is foiled by Hillbilly Equity, and the circle, though small, is unbroken. That at least is how I would have written the ending. Cue the banjo.

November 8, 2024 in Commentary, Famous Cases, Teaching | Permalink | Comments (2)

Monday, October 14, 2024

The ContractsProf Vlog, Contracts Stuff, On Blogging About Scholarship

The long-awaited second installment of the Blog's new feature, Contracts Stuff. Don't worry, more episodes are in the works. Here, Dan Barnhizer and I chat about the various ways in which the Blog and legal scholarship interact.

The first episode, which is about the role of generative AI in teaching, is here.

October 14, 2024 in About this Blog, Commentary, Contract Profs, Recent Scholarship, Teaching | Permalink | Comments (0)

Wednesday, October 2, 2024

Massachusetts Supreme Judicial Court: One Cheer for Tenure!

Supreme_Judicial_Court_of_MassachusettsBeginning in 2016, Tufts University School of Medicine (Tufts) instituted new policies for tenured faculty members.  Faculty members were now required to cover fifty percent of their salary with external research funding. If they could not do so, their salaries would be cut and their employment status would be reduced from full time to part time. In addition, to maintain their existing lab space, the plaintiffs had to ensure a cost recovery rate equivalent to a that from a grant from the National Institute of Health (NIH). 

Plaintiffs, tenured faculty members at Tufts, sued alleging breach of academic freedom and contractual rights granted through tenure. A trial court granted summary judgment to Tufts on all counts, and plaintiffs appealed. In Wortis v. Trustees of Tufts College, the Massachusetts Supreme Judicial Court noted that economic security and academic freedom are "important norms in the academic community." It therefore reversed the grant of summary judgment as to changes in salary and demotion from full-time to part-time (FTE) status. However, no such norms guarantee access to lab facilities, so the Supreme Judicial Court affirmed the grant of summary judgment on claims relating to Tufts' lab space commitments to plaintiffs. 

TuftsMed_logo

Tufts was under budgetary pressure. As of 2018, it had a $6 million operating deficit.  As of 2017, it found that it needed $20 million to support "basic science research infrastructure."  As a result, it changed its policies regarding lab space commitments and full-time status in 2016, 2017, and 2019. Plaintiffs had their salaries cut dramatically and they were informed that they would have their lab space reduced or eliminated. That has not yet occurred.  

The Court begins its analysis by noting that "[t]enure, and the benefits it confers, is defined by the contract between a university and a tenured professor." But the devil is in the details.  What specific promises or guarantees does tenure provide? There is no single document that sets out the mutual obligations of the parties to a tenure agreement. In this case, there are tenure letters, a faculty handbooks, and various university policy documents. The court finds the language in the various documents ambiguous on many issues. Do they set out promises about lab space commitments going forward or do they simply describe the current state of affairs? Do expectations for tenured faculty members set out what one needs to do to get tenure or to retain it?

Medical_School _Teviot_Place _University_of_Edinburgh _exterior_2
This is the medical school in Edinburgh -- just sayin'
By LornaMCampbell - Own work, CC BY-SA 4.0 

The Court repeatedly notes that economic security is a term of the agreement between the plaintiffs and Tufts and is not merely "prefatory or hortatory." Tenure, once granted is "permanent and continuous." However, "economic security" is also ambiguous.  That being the case, the Court seems to want to determine what reasonable people would have understood as the parameters of economic security. The Court notes that, before 2009, when the most junior of plaintiffs was granted tenure, Tufts had never linked salaries to ability to attract outside funding, and so plaintiffs would not have known that their salaries could be reduced for that reason. However, Tufts did link salaries to grants in 2009, actually reducing some of plaintiffs' salaries at that time, and none objected. The more recent policies involve more drastic salary reductions, but still, the record is ambiguous.

The record on lab space commitments was less ambiguous. On that subject, the court was mindful that lab space is limited and expensive. It concluded that "even if economic security places limits on the ability of Tufts to reduce the plaintiffs' salary or FTE status, it does not preclude Tufts from allocating limited and expensive lab space based on a faculty member's ability to recover the costs incurred in building and operating lab infrastructure." Moreover, plaintiffs have not been deprived of lab space. Tufts continues to commit itself to providing appropriate space for faculty members to conduct research. It follows that plaintiffs' academic freedom and ability to apply for grants has not been curtailed.

And so, the Supreme Judical Court reversed the judgment of the Superior Court and remanded the case  as to the plaintiffs' claims regarding the compensation policies their Wage Act claim. It affirmed the Superior Court's judgment as to the plaintiffs' lab space guidelines claims.

October 2, 2024 in Recent Cases, Teaching | Permalink | Comments (0)

Friday, September 27, 2024

Friday Frivolity: A Limerick for Wisconsin Knife Works

Screenshot 2024-09-25 at 3.43.50 PM
Image by DALL-E

I am teaching Wisconsin Knife Works v. National Metal Crafters for the first time this year. It is hard to find good cases on modification under the UCC's Article 2, and I think I may stick with this one, even though it forces me to talk about the Statute of Frauds long before I am ready to talk about the Statute of Frauds. It is a fun case to teach because it is interesting to see Judge Posner and Judge Easterbrook (pictured, as ChatGPT and I imagine them dueling, at right) on different sides of a case when they were both quite new to the Seventh Circuit. They are trying to make sense of UCC § 2-209's provisions relating to oral modifications in the face of a no-oral-modifications clause. 

Judge Posner begins with two thoughts that epitomize what I love about his writing. He dismisses the "reasoning" (scare quotes his) behind the common law's willingness to set aside no-oral-modification clauses through subsequent oral agreements as not reasoning but "a conclusion disguised as a metaphor." Second, he is willing to concede that perhaps the challenge of reconciling the provisions of § 2-209 is simply a product of a failure of foresight. The drafters of the UCC made a "big break" from the common law in eliminating the requirement for consideration. They did not imagine all of the "ramifications of the break." Article 9 underwent significant revisions soon after adoption. Revision of Article 2 could also use a tune-up. I wonder why nobody ever attempted to revise Article 2 . . .  Even if Judge Posner is right about §2-209's blind spots, I don't think either he or Judge Easterbrook comes up with an entirely satisfactory solution grounded in the UCC's text.

Judge Posner correctly identifies the problem: while § 2-209(2) says that no-oral-modifications clauses will be enforced, and § 2-209(3) says that modifications within the Statue of Frauds are also within the statute of frauds, § 2-209(4) seems to undercut both. It says that "attempted" modifications may operate as waivers of the writing requirement. But if all attempted modifications count as waivers, we are back at the common law rule whereby parties can just ignore their own no-oral-modifications clauses.

Judge Posner's solution relies on the fact that § 2-209(4) does not say that all attempts are waivers; they only can operate as waivers. So far so good. But then Judge Posner adds a reliance requirement before an attempted modification transforms into a waiver. It comes out of nowhere. Worse still, UCC § 2-209(5) talks about reliance, so if the drafters wanted reliance to be a necessary element of waiver in §2-209(4), they certainly could have said that. Even worse still, as Judge Easterbrook points out in dissent, it is hard to imagine a scenario were there would not be reliance on a modification, so Judge Posner hasn't taken us far from the common-law conclusion disguised as a metaphor.

Judge Easterbrook's solution, which allows conduct to operate as a waiver, preserves some usefulness to § 2-209(2) and (3). They still prevent an oral modification of a contract that can only be modified through a signed writing, either because of a no-oral-modifications clause or because of the Statute of Frauds. The problem is that Judge Easterbrook provides no textual basis for why waiver through conduct should be favored over waiver through oral agreement. He praises the drafters of the UCC and calls it "one of the most carefully assembled statutes in American history." Seems like careful drafters could have distinguished modification by conduct from modification by oral agreement if that were their intention.

Moreover, I am not sure that there would be many more cases of attempted modification unaccompanied by conduct than there would be cases of attempted modification without reliance. Again, we seem not to have moved far from the common law rule. Perhaps no-oral-modifications clauses really are just standard boilerplate that nobody seriously intends and thus we should not be overly concerned if they are routinely ignored both by the parties and the courts.

The Limerick

Judge Easterbrook thought there was waiver,
While Judge Posner views with disfavor
Such nonchalant changes
To written exchanges
This case is one knife-fight to savor!

September 27, 2024 in Commentary, Famous Cases, Limericks, Teaching | Permalink | Comments (0)

Force Majeure, COVID, and a Win for Lizzo

I've long been on the hunt for a case that illustrates the interaction between a force majeure clause and the COVID-19 pandemic.  This might be the one.  It also makes use of the surplusage canon of construction, so if one has the time to work through a lengthy force majeure clause, it could be a useful teaching case.

In 2019, VFLA Eventco, LLC (VFLA) announced that there would be a two-day music festival, the Virgin Fest Los Angeles in June 2020.  In February and March, 2020, VFLA entered into contracts with agencies representing Ellie Goulding, Kali Uchis, and Lizzo (collectively the Artists).  William Morris Endeavor Entertainment, LLC (WME) acted as the agent for all three artists and negotiated the contracts on their behalf.  The contract provided that WME should not be liable under the contract, and there was a force majeure clause.  In this clause, VFLA is the "Purchaser" and the agencies representing the Artists are the "Producer":

A ‘Force Majeure Event’ means any act beyond the reasonable control of Producer, Artist, or Purchaser which makes any performance by Artist impossible, infeasible, or unsafe (including, but not limited to, acts of God, terrorism, failure or delay of transportation, death, illness, or injury of Artist or Artist’s immediate family (e.g., spouses, siblings, children, parents), and civil disorder). In the event of cancelation due to Force Majeure then all parties will be fully excused and there shall be no claim for damages, and subject to the terms set forth herein, Producer shall return any deposit amount(s) (i.e., any amount paid to Producer pursuant to the Performance Contract prior to payment of the Balance) previously received (unless otherwise agreed). However, if the Artist is otherwise ready, willing, and able to perform Purchaser will pay Producer the full Guarantee unless such cancellation is the result of Artist’s death, illness, or injury, or that of its immediate family, in which case Producer shall return such applicable pro-rata portion of the Guarantee previously received unless otherwise agreed.

[Italics added] This language was negotiated and had been updated based on a model used for another event.  The language that I have italicized was new language inserted by WME and agreed to by VFLA.

VFLA transferred to WME’s trust account nonrefundable deposits of $400,000 for Kali Uchis, $600,000 for Goulding, and $5 million for Lizzo. The deposits were consideration for the artists’ performance at Virgin Fest, as well as for exclusivity and advertising rights, which allowed for the use of their images for Virgin Fest's marketing materials and subjected the Artists to certain restrictions on public performances in temporal or geographic proximity to the Virgin Fest.

Lizzo.svg

And of course, the whole Virgin Fest was shut down because of COVID.  VFLA sought the return of the deposits, and the parties disagreed as to the meaning of the force majeure clause. After discovery, the parties filed motions for summary judgment.  The trial court granted summary judgment in favor of WME and the Artists and denied VFLA's motion.  The language of the force majeure clause had been revised to favor the Artists.   

Lizzo_plays_Madison_flute_(52391368441)
Now Lizzo Doesn't Have to Borrow James Madison's Flute
By Library of Congress Life 

In VFLA Eventco, LLC v. William Morris Endeavor Entertainment, LLC , a California appellate court affirmed.  The appellate court broke down the force majeure clause according to its three sentences.  The first sentence defines "force majeure," and the parties do not dispute that the pandemic was a force majeure event.  The meaning of the second sentence was also not in dispute -- the Artists had to return the deposits in case of a force majeure event unless another performance term applies.  

The dispute centers on the third sentence, which states that the Artists do not have to return the deposits if they are "otherwise ready, willing, and able to perform."  The Artists contend that the best reading of this language is that, but for the force majeure event, they would perform, which is clearly the case.  VFLA reads "otherwise" to mean something more like "notwithstanding."  In the court's view, the Artists reading is the better one, as VFLA's reading would "deprive the third sentence of any meaning and render it surplusage." The Artists could never show that they were ready, willing, and able to perform notwithstanding a force majeure event, which is defined as any event that renders performance "impossible, infeasible, or unsafe."

COVIDVFLA argued that the performance in this case would be illegal, which is different from "impossible, infeasible, or unsafe," but the court did not buy it, as the force majeure clause doesn't mention illegality, and illegality could make performance impossible.  The court also addresses the exceptions to the exceptions in the third sentence, which provides that the Artists do have to return the deposits if they or an immediate family member die, become ill, or are injured.  The court concludes that VFLA's reading cannot be squared with this language, again relying on the surplusage canon. 

Personally, I don't think there is a reading that would avoid rendering some part of this language surplusage.  If one of he artists dies, she is definitely unable to perform and so the third sentence would not apply at all.  VFLA instead argued that if it had intended to accept all risk of a force majeure event, unless it involved death, injury, or illness of an artist or a family member of an artist, it could have drafted a much shorter provision.  The court conceded the point but the fact that the provision could have been better drafted is no reason not to give effect to its most likely meaning.

BabylandThere is a lengthy section of the opinion dealing with parol evidence.  The trial court determined that the parol evidence was more or less in equipoise and did not provide a basis for giving effect to VFLA's reading of the force majeure clause.  As there were no factual disputes about the parol evidence that the trial court considered, there was no reason why the trial court could not decide the matter on summary judgment.  If I were to use this as teaching case, leaving this stuff out would help shorten the case.

There are other parts of the opinion that I would also omit if I were to use this as a teaching case. The court addresses VFLA's claim that the Artists have not proved that they were ready, willing, and able to perform, even though that issue had not been preserved.  VFLA alleges that a ruling in favor of the Artists would effect a forfeiture, but a forfeiture requires a breach, and because of the force majeure clause, the Artists are not in breach.  VFLA's argument that allowing the Artists to keep the deposits would render the contract illegal provides an interesting hypo along the lines of Hanford v. Connecticut Fair Association, a case involving the Babyland Amusement Company (whose letterhead appears above). In deciding that the Artists can keep their deposits (the opposite result from Hanford), the court is not promoting illegality; it is merely giving effect to the parties' contractual allocation of risk.

And this really is a case that comes down to allocation of risk.  Just as I think it absurd that a college football coach should be paid $75 million for not coaching (or for coaching, but that's another matter), I think it absurd that Lizzo should get $5 million for not performing.  But apparently it was so important to VFLA to secure Lizzo as a performer so that it could generate an audience for its music festival that VFLA was willing to take the risk of losing that $5 million in case of cancellation.  In the alternative, VFLA agreed to contractual language that forced it to take on more risk than it intended.  Either way, it should be bound by its objective manifestations of assent. 

Absent evidence that the allocation of risk was commercially unreasonable (another canon of construction), it seems like the court got it right.  It does not seem that VFLA made a commercial unreasonableness argument.  I lack the industry-specific knowledge to judge whether it is commercially unreasonable to pay a seven-figure, non-refundable deposit to an artist to secure their commitment to perform at a music festival.

September 27, 2024 in Celebrity Contracts, Recent Cases, Teaching | Permalink | Comments (2)

Tuesday, September 17, 2024

Putting Our Computing Might to Good Work: Does AI Think a Burrito Is a Sandwich?

Norton_TracyTracy L. M. Norton, Associate Professor of Professional Practice at Louisiana State University's Paul M. Herbert Law Center, has run a very useful and up-to-the-moment comparison of the leading generative AI products. Given our continuing coverage of the burrito controversy, and our recent Contracts Stuff Vlog on using generative AI in teaching, this seems like content we ought to share.

Here are her findings, which are not intended as an endorsement of any product:

Comparing Different Generative AI Models

The world of generative AI gets more crowded with each passing season as existing models upgrade and new models enter the chat. This document is a quick comparison of how some popular models respond to the same prompt. It's not a deep technical analysis, just a fun way to see how they stack up against each other as of September 15, 2024.

For this experiment, we're looking at:

  1. ChatGPT-4 (one of the most effective models even 6 months ago)
  2. ChatGPT-4o (one of the most effective models until a few days ago)
  3. Chat GPT-o1 and ChatGPT-o1 mini (OpenAI's newest models)
  4. Claude 3.5 Sonnet (generally agreed to have better reasoning than ChatGPT-4o
  5. Perplexity AI (integrates web searching)

To keep things simple and fair, we're using a single prompt for all models, and all responses were cut-and-paste with minimal additional formatting. 'Is a burrito a sandwich?

Read through to the end to see what adding integrated web searching does for the answers Perplexity gives.

ChatGPT-4

Screenshot 2024-09-17 at 8.32.04 AM
Image by DALL-E

A burrito isn't typically considered a sandwich. While both are portable meals that include fillings encased in a bread product, there are key differences:

  1. Bread Type: Sandwiches use two slices of bread or a split roll, whereas a burrito uses a single, soft flour tortilla that's wrapped and enclosed.
  2. Cultural Origins: Sandwiches have a broad and varied origin story, often linked back to Europe, while burritos are a traditional part of Mexican cuisine.
  3. Preparation and Presentation: Sandwiches are generally open on the sides and can be customized with a variety of toppings visible from the outside. In contrast, burritos are fully enclosed with the ingredients not visible.

These distinctions generally keep burritos out of the sandwich category in culinary and cultural discussions.

Chatbot2
Image by DALL-E

ChatGPT-4o

No, a burrito is not a sandwich. A burrito involves a tortilla wrapped around its fillings, while a sandwich typically consists of ingredients placed between two slices of bread or inside a split roll. Cultural, structural, and culinary distinctions keep them as separate categories of food.

ChatGPT-o1

The classification of a burrito as a sandwich is a subject of debate that touches on culinary definitions, legal interpretations, and cultural perceptions.

Definitions:

  • Sandwich: Traditionally, a sandwich consists of ingredients like meat, cheese, or vegetables placed between two slices of bread or within a split roll or bun.
  • Burrito: A burrito is a dish from Mexican cuisine that involves wrapping a flour tortilla around fillings such as beans, rice, meat, and cheese, fully enclosing the contents.

Arguments That a Burrito Is Not a Sandwich:

  1. Structural Differences:
    • Enclosure: Burritos are fully enclosed by the tortilla, whereas sandwiches are typically open on the sides.
    • Bread vs. Tortilla: Sandwiches use leavened bread, while burritos use unleavened flatbread (tortilla).
  2. Cultural and Culinary Distinctions:
    • Burritos are part of Mexican cuisine and have distinct preparation methods and flavor profiles compared to sandwiches.
    • The eating experience and customary accompaniments differ significantly.
  3. Legal Precedents:
    • In a 2006 Massachusetts court case, White City Shopping Center, LP v. PR Restaurants, LLC, a judge ruled that burritos are not sandwiches in a dispute over a non-compete clause in a lease agreement.

Arguments That a Burrito Could Be Considered a Sandwich:

  1. Broad Definitions:
    • Some definitions of a sandwich include any food where ingredients are "sandwiched" between or wrapped in bread or a bread-like substance.
    • For tax or regulatory purposes, some jurisdictions categorize burritos along with sandwiches.
  2. Functional Similarities:
    • Both are handheld foods that can contain similar types of fillings like meats and vegetables.

Conclusion:

While a burrito shares some similarities with a sandwich—such as containing fillings and being handheld—the differences in ingredients, preparation, and cultural origins generally place it in a separate category. Most culinary experts and legal interpretations maintain that a burrito is not a sandwich. So, in common usage and culinary contexts, a burrito is considered its own distinct type of food.

Screenshot 2024-09-17 at 8.33.51 AM
Image by DALL-E

ChatGPT-01 mini

The question of whether a burrito qualifies as a sandwich is an interesting one that touches on definitions, cultural perspectives, and culinary classifications. Here's a comprehensive look at the topic:

Definitions

  • Sandwich: Traditionally, a sandwich consists of one or more fillings (such as meat, cheese, vegetables) placed between two slices of bread, a split roll, or within a bun.
  • Burrito: A burrito is a Mexican dish that involves a flour tortilla wrapped or folded around a variety of fillings, which can include beans, rice, meat, cheese, and vegetables. The tortilla is typically fully enclosed around the fillings.

Arguments Against a Burrito Being a Sandwich

  1. Structural Differences:
    • Enclosure: Burritos are usually fully wrapped and sealed, whereas sandwiches are generally open on the sides.
    • Type of Bread: Burritos use flour tortillas, which are unleavened flatbreads, while sandwiches typically use leavened bread.
  2. Cultural and Culinary Distinctions:
    • Cuisine Origin: Burritos are a staple of Mexican cuisine with specific preparation methods and flavor profiles that distinguish them from sandwiches.
    • Eating Experience: The way burritos are consumed and the typical accompaniments (like salsa, guacamole, or sour cream) differ from those of sandwiches.
  3. Legal Precedents:
    • In certain legal contexts, such as the 2006 Massachusetts court case White City Shopping Center, LP v. PR Restaurants, LLC, burritos were not classified as sandwiches, highlighting distinctions in business and regulatory settings.

Arguments That a Burrito Could Be Considered a Sandwich

  1. Broad Definitions:
    • Some definitions of a sandwich include any food where fillings are enclosed within some form of bread or bread-like substance, which could technically encompass burritos.
  2. Functional Similarities:
    • Both sandwiches and burritos are handheld, portable meals that contain various fillings, making them functionally similar as convenient food options.

Conclusion

While there are superficial similarities between burritos and sandwiches—such as containing fillings and being handheld—the differences in their structural composition, cultural origins, and culinary contexts generally place them in separate categories. Most culinary experts, cultural perspectives, and legal interpretations treat burritos as distinct from sandwiches. Therefore, in common usage and culinary contexts, a burrito is not considered a sandwich.

However, it's worth noting that definitions can vary, and in casual conversations or certain regulatory frameworks, the classification might differ. Ultimately, whether a burrito is labeled a sandwich can depend on the criteria and context being considered.

Claude 3.5 Sonnet

Chatbot1
Image by DALL-E

This is a contentious question without a clear consensus. There are arguments on both sides:

Arguments for a burrito being a sandwich:

  • It consists of fillings between or wrapped in bread/grain-based exterior
  • Shares similarities with other wrapped sandwiches like gyros or wraps

Arguments against:

  • Burritos use a single tortilla rather than separate pieces of bread
  • Culturally and culinarily distinct from what's typically considered a sandwich

Ultimately, it depends on how strictly one defines "sandwich." Many food experts and culinary associations don't classify burritos as sandwiches, but there's room for debate. What's your view on this?

Thanks, Professor Norton!

September 17, 2024 in About this Blog, Commentary, Teaching, Web/Tech | Permalink | Comments (0)

Monday, September 16, 2024

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!

 

September 16, 2024 in About this Blog, Commentary, Contract Profs, Teaching, Web/Tech | Permalink | Comments (0)

Friday, September 13, 2024

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

Sopranos logoWhen I teach vagueness, I use Baer v. ChaseThe 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").

Kawhi_Leonard_presents_ball_to_President_Obama_2_2015-01-12_croppedWell, 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.

September 13, 2024 in Celebrity Contracts, Recent Cases, Sports, Teaching | Permalink | Comments (0)

Wednesday, September 11, 2024

New Cases, New Limericks

Thumbs-up_1f44dIn 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.

September 11, 2024 in Famous Cases, Limericks, Teaching | Permalink | Comments (0)

Thursday, August 29, 2024

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.

Hanoch_Dagan_1000wThe 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 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.

PrinciplesThe 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.

Mastering Contract LawChapter 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.

August 29, 2024 in Books, Commentary, Contract Profs, Recent Scholarship, Teaching | Permalink | Comments (0)

Monday, August 26, 2024

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.

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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.

Boson FlagBU 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.   

August 26, 2024 in Help Wanted, Law Schools, Teaching | Permalink | Comments (0)

Monday, August 19, 2024

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

This is the second post in my series on  Larry Di Matteo's Principles of Contract Law and Theory (Principles) and Irma Russell and Barbara K. Bucholtz's Mastering Contract Law (Mastering).  The aim is to all some attention to these two books while using them to stimulate my thinking as I once again consider how to teach contracts law to first-year students.  The two books are very different.  Principles is a scholarly textbook addressing advanced topics at a very high level of sophistication.  Mastering is a study-guide for first-year students.  They both have their charms, but they are very different.  Each entry in this series will cover a chapter in each book, with some splitting of chapters because the books don't have the same number of chapters.  Most weeks, the chapters will not cover corresponding subject-matters.  So be it.

PrinciplesThe 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)

MasteringChapter II of Mastering provides a short road map of definitions and guiding principles.  The Authors begin with a brief, clear, helpful discussion of what a contract is and how the word "contract" relates to similar terms, such as "bargain" or "agreement." (13-14) An agreement, the Authors explain, entails a bargain, but it may go beyond that, as the agreement of the party may entail implied terms. Not all agreements are contracts, in the sense that courts may not enforce an agreement in certain circumstances, for example if it is a contract to perform some illegal service. (14-15)

Next, the Authors introduce the concept of freedom of contract, but they also note that freedom is tempered by public policy.  (15).  They illustrate the limitation on freedom on contract with a discussion of illegal contracts. In that section, they also note that freedom of contract entails the freedom not to contract. (15-17) The stage-setting proceeds very rapidly.  This was a very short chapter.  Some of the chapters to come are far more lengthy and may end up getting split into multiple posts.

The first post in this series can be found here.

August 19, 2024 in Books, Contract Profs, Recent Scholarship, Teaching | Permalink | Comments (0)

Monday, August 12, 2024

News From New Zealand: Whan a Man Disappoints a Woman, Is It Breach?

Six years into their relationship, which included periods of co-habitation, a man promised to take his girlfriend to the airport and look after her dogs while she was on holiday.  When the day of travel arrived, he didn't show or return her calls.  She missed her flight, rescheduled, and paid to put her dogs in a kennel. 

Moreover, the two had planned to go on holiday together in December, 2023.  The woman had bought a ferry ticket for the man, but again, he had stopped taking her calls, and she was stuck with a presumably non-refundable ticket.

Rebecca HussThe 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.

Casper_in_Live-ActionIn the case at issue, the woman, identified as CL, decided to sue the man, identified as HG, for breach of contract in New Zealand's Disputes Tribunal.  In a charmingly poorly-written order, perfect for the first day of teaching, the tribunal found that CL had not stated a claim for breach of contract.  A good thing too, because had the tribunal found otherwise, it's not clear that anyone would have been able to reach HG to get him to pay up.  He was invited to participate in a hearing by telephone, but "HG sent an email that he would not attend the hearing by answering his phone." Subsequent calls from the tribunal went unanswered.  This man is one unfriendly ghost.

The tribunal found that there was no contract here because the parties never intended to be legally bound.  "Although a promise was made, it falls short of being a contract. It forms part of the everyday family and domestic relationship agreements that are not enforceable in the Disputes Tribunal."

That strikes me as all there is to say, at least with respect to HG's promise to take CL to the airport. Airport rides are an act of Grace.

The order does not separately address the ferry ticket, and there might be a viable claim of promissory estoppel there.  The tribunal's neglect of that issue may be a product of a pleading failure.  CL might not have known of the doctrine. In the alternative, it may be that New Zealand law does not award damages for breach of a social promise, regardless of reliance.  

Input on that last point would be welcome.

August 12, 2024 in Commentary, Recent Cases, Teaching, Travel | Permalink | Comments (0)

Friday, May 31, 2024

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. 

Alexander_the_Great_mosaicNot 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. 

Santa Cruz SlugsMore 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? 

May 31, 2024 in Current Affairs, In the News, Labor Contracts, Teaching | Permalink | Comments (0)