ContractsProf Blog

LPE Project on Religious Accommodations for Postal Workers

We have been posting occasionally on the intersection of contracts rights and the First Amendment, with special focus on SCOTUS cases on that subject.  Links to various posts are provided in this post on Orin Kerr's work on contracts and the Fourth Amendment.  

But James D. Nelson, Elizabeth Sepper, & Kate Redburn have done us one better posting How the Court is Pitting Workers Against Each Other on the Law & Political Economy Projects Blog.  The post anticipates what might lie ahead in the aftermath of a case, Groff v. Dejoy, that SCOTUS is due to hear next week.  The case addresses the rights of postal workers to accommodations for their religious beliefs.

Plaintiff Groff was a mail carrier working for the U.S. Postal Service (USPS).  USPS entered into an agreement with Amazon to provide delivery services, including on Sundays.  As an evangelical Christian, Mr. Groff requested an accommodation, but USPS could not always find other postal carriers to take his shift, and on more than twenty Sundays, he was expected to work.  He refused to do so and eventually quit in order to avoid being fired.  He claims that USPS violated his right to a reasonable accommodation under Title VII of the Civil Rights Act.

While Groff seems to offer the possibility of interest conversion between people seeking religious accommodations and workers' rights, the blog post points out that the cost of the reasonable accommodation of Mr. Groff's religious interest will fall on other workers, who will have to give up their Sundays to cover Mr. Groff's shifts.  As the LPE authors put it:

Interpreting Title VII to require employers to impose hardships on other workers to accommodate religion would threaten the preconditions for viable collective action. Workplaces and unions rely on a sense of reciprocity, mutual support, or solidarity. And labor agreements reflect that spirit of shared interest and mutual compromise among workers. But a religious accommodation doctrine that lets some employees foist the cost of their religious exercise onto others threatens to tip these delicate balances, cutting against worker interests rather than in their favor.

And once the door is open to requiring businesses to accommodate religious employees even if that accommodation comes at the expense of other employees, the authors predict that more cases will follow that will erode protections for vulnerable minorities both as customers and as employees.  Their focus is more on the broader societal impact of religious accommodations than on the intersection between employment law and First Amendment rights.

The post notes that the old standard under Trans World Airlines, Inc. v. Hardison called for accommodation of religious observance only if the accommodation does not impose an undue hardship on the employer.  An undue hardship could be anything more than a de minimis cost imposed on an employer or a union.  The post concedes that the Hardison standard does not provide adequate protections for employees seeking accommodations.  It provides no clear guidance as to how to accommodate religious observance without eroding workplace solidarity.

I wonder if there is not a way to preserve the part of Hardison that calls for imposing no more than a de minimis cost on other workers or on unions.  The employer itself could reasonably be expected to bear a cost that is greater than de minimis.  In this case, for example, USPS might hire additional workers for Sunday shifts so as to accommodate Mr. Groff's religious beliefs while not eroding worker solidarity.  In the alternative, the employer could be required to pay additional compensation (or grant extended vacation time) to workers willing to work Sundays up to the point where all the shifts are taken, so long as doing so does not eliminate the advantages of the contract with Amazon.

Great News for Libelous Bloggers Everywhere!

Over at the Volokh Conspiracy, the man himself, Eugene Volokh (left), reports on Arthaud v. Fuglie, a case in which plaintiff alleged that he had been defamed by a blog post that was published in 2018.  Plaintiff did not discover the post until 2021 and sued within weeks of discovery.  North Dakota's Supreme Court ruled that the two-year statute of limitations had lapsed.  The statute of limitations runs from the time of publication, not from the time of discovery.

This is a boon to all bloggers, especially those whose posts are rarely discovered.  We feel newly empowered to remove the gloves!

LPE Project on the Proposed FTC Ban on Non-Competes

We posted last week on the proposed new FTC rule that would impose severe limits on non-compete provisions in employment contracts.  

The Law and Political Economy Project has posted eight perspectives on the proposed rule.  It's a great collection.  Recommended reading!

 

How to Lose Friends and Alienate People Using Contracts

I often tell my students that contracts are mutually beneficial transactions that make the world a better place.  If you really want to have a positive impact on the world, I tell them, become a transactional attorney.  But I recently had an experience of how contracts can become a roadblock preventing potentially mutually beneficial transactions.

A stranger reached out to me to invite me to appear on his yet-to-be-launched podcast.  I enjoy podcasts, and I have some experience doing interviews on podcasts and other news venues.  I followed up and asked for more information, and satisfied with the answers I received, I agreed to a time for a recording in a few days.  The podcaster told me that he would send me a contract, which I thought a bit odd, but I did not consider that a red flag. . . until I saw the contract.

The contract gave all rights in the recording to the podcaster with aggressive boilerplate about  how my consent was "irrevocable" and how his rights were "unfettered," applicable "throughout the world," and granted "in perpetuity."  His rights to "exploit and distribute" my voice and likeness were to be "sole and exclusive."  Well that was all a bit much.  I mean, I don't see any reason why I would want to exploit or distribute the recording here, there, or anywhere, but the sweeping nature of my contractual consent put me on my guard.  

And then there was the kicker: the contract also provided that I "release and discharge" the podcaster from any and all liability arising out of the podcast.  Nope.

I told the podcaster that I would not sign the release.  I told him I could send him a mark-up that would be acceptable to me, but then he would have to pay me for my time.  It wasn't a serious offer.  He responded that I didn't have to sign anything.  He just wanted to use the material as he saw fit.  Not helping.  The trust was gone.  I felt like I was being set up, and the risk outweighed the reward of appearing on a yet-to-be-launched podcast broadcast by someone I did not know personally or by reputation. 

Time will tell.  I told the podcaster that I would prefer not to be among his first guests, but that I would listen to the first episodes when they appear and consider appearing as a guest once I have a better sense of what he is up to.  It may be that this person is trying to get a new venture started, and he relied on a form agreement that is a bit more zealous in protecting his rights than the situation really calls for.  It is unlikely that there will be a movie treatment of his podcast episode featuring his interview of me.  But until proven otherwise, I am now open to the possibility that I just narrowly dodged a gotcha interview by someone from the Veritas Project.

Quick Notes: A New Promises Promises Episode and a Jotwell

After a long hiatus,  David Hoffman (left) and Tess Wilkinson-Ryan (right) are back with a new episode of their podcast Promises Promises.  Welcome back!  This time, they discuss S.P. Dunham v. Kudra, and they have as their Zoom audience Mitu Gulati's UVA students.  The case illustrates the duress doctrine.  

Professors Hoffman and Wilkinson-Ryan puzzle entertainingly (as always) over how well this case fits into the law of duress and voice their general skepticism about the line-drawing involved in identifying an improper threat, a necessary element of duress.  I don't see it as a hard case, but I agree that the court does not do much to generate confidence in the clarity of the duress doctrine. 

S.P. Dunham (Dunham) was a department store that partnered with another business (Hurwitz) that stored and cleaned fur coats.  Hurwitz, which was in financial difficulties, partnered with Kudra and owed Kudra money when it went under.  With winter coming, Dunham's customers, who apparently did not know anything about Hurwitz, wanted their coats.  Kudra demanded that Dunham cover what Hurwitz owed on the Dunham's customer's coats (about $600) before he would return them.  Fair enough, I suppose, but Kudra then demanded an additional $3200 that Hurwitz owed on other coats that had nothing to do with Dunham.   Dunham paid and then sued to recover the $3200, claiming economic duress.

I don't have any difficulty seeing Kudra's conduct as involving an improper threat that compelled Dunham to do something that it had no reason to do, but Professors Hoffman and Wilkinson-Ryan do make the fine point that Dunham doesn't really seem to be the proper plaintiff here.  Kudra is holding Dunham's customers' property hostage, and the customers, or perhaps Hurwitz's bankruptcy estate, acting on their behalf, should be bringing the challenge to Kudra's extortionate conduct.  Still, I think Sid DeLong's Coasean theory of duress makes sense of the case in a far more direct way and at least points the way towards addressing the line-drawing problem that vexed the Promises, Promises crew.  Kudra threatens to do harm to Dunham's good will value. Knowing that the value that Dunham places on that good will likely exceeds $3200, Kudra extorted payment, leaving him unjustly enriched.  Disgorgement of those ill-gotten gains is the proper remedy.

Also worth noting is Eyal Zamir's short review on Jotwell of Joanna Demaree-Cotton and Roseanna Sommers, Autonomy and the Folk Concept of Valid Consent, 224 Cognition 105065 (2022).  We have featured Roseanna Sommers' work on the blog before, and there seems to be some overlap between  Commonsense Consent, discussed previously and the article that Professor Zamir has reviewed.  But Professor Zamir brings to the topic his own expertise in empirical studies and in behavioral analysis of law, and so his review is an especially valuable contribution.

Re-Post: Eric Goldman Reviews Netflix's "Pepsi, Where's My Jet?"

Review of the “Pepsi, Where’s My Jet?” Netflix Documentary
Eric Goldman
Technology and Marketing Law Blog

In the mid-1990s, at the height of the Cola Wars, Pepsi ran an ad to introduce its “Pepsi Stuff” loyalty program, including a featured prize of a Harrier Jet for 7M points–a ridiculously high number that was supposed to signal that it was a joke. Watch the ad. However, Pepsi also sold points for 10 cents each, putting a $700k price tag on a jet that was allegedly worth tens of millions of dollars (assuming it could be acquired at all–the US government frowns on individual citizens owning military equipment).

John Leonard, backed by a rich friend Todd Hoffman (who looks like George Carlin), tendered $700k and ordered 1 Harrier Jet. Pepsico declined; they sent him coupons for a couple of cases of Pepsi instead. Leonard retained a lawyer and made legal threats. Pepsi preemptively sued Leonard in its home court of SDNY. Judge Wood’s opinion concluded that the ad objectively did not communicate an offer due to its humor, so no contract ever formed and Leonard didn’t get his Harrier jet. Wood’s opinion is relatively dry, but it’s become a staple of the contracts law canon because of its fun facts and its precise analysis.

Because this case is so iconic, I was excited to see the new Netflix documentary, “Pepsi, Where’s My Jet?” The documentary interviews key figures in the case, many of whom are still alive, and it’s fabulous to hear them tell their stories in their own words.

Despite that, the documentary was disappointing overall. If you’re a contracts or advertising law nerd like I am, you’re going to watch it no matter what I say. But I had hoped the documentary might become a must-see pedagogical supplement for anyone reading the case, and I don’t think it gets there.

The documentary is framed around the cross-generational bromance between GenXer Leonard and his financial sponsor, Boomer Hoffman. Obviously that relationship is at the story’s heart because there was no case without Hoffman’s largesse. However, the filmmakers repeatedly steered the narrative into the bromance, such as seemingly irrelevant segments showing Leonard and Hoffman recently summitting Mt. Vinson in Antarctica (an impressive, but very expensive, accomplishment).

The documentary was split into four episodes, totaling over 2.5 hours. It would have been much better packed into a single 90 minute episode, but instead it felt like the filmmakers padded the narrative with tangents and dead-ends to reach the target length.

Also, the documentary includes many historical reenactments, many of which were unnecessary and not compelling. I am not a fan of recreations in documentaries.

The actual legal ruling gets surprisingly little airtime in the back half of the fourth episode, and the filmmakers did a poor job of contextualizing it. For example, long-standing contracts law doctrine says that advertisements ordinarily are an invitation to make an offer and not an offer themselves, which the documentary doesn’t mention. The documentary repeatedly mentions that many consumers, especially teens, would have taken the ad seriously, but the documentary only offers Team Pepsi’s rebuttals and a few words from the opinion to counter this view. The filmmakers surely could have interviewed some independent experts in contracts law or the advertising industry to supplement the parties’ self-interested statements, and many of them would have sided emphatically with Team Pepsi. By omitting the independent voice, the filmmakers betrayed their normative agenda.

Similarly, the filmmakers styled the case as a David v. Goliath battle. Indeed, it was, but the filmmakers didn’t aggressively question Leonard’s motives. (Instead, the documentary spent a minute or two indulging in overly speculative conspiratorial theories about Pepsi malfeasance that should have been cut). Sure, Pepsi is the big bad company, and surely Pepsi could have easily made safer legal choices in how it presented the jet. At the same time, it’s impossible not to feel like Leonard was an opportunist who used the law, and then media pressure, to improperly seek something he knew he wasn’t really entitled to. For every story of big companies squashing little consumers, there’s another story of little consumers gaming the legal system to extract undeserved cash from big companies and subtracting social value. Leonard’s story really could be told either way. A different filmmaker might have included some counternarrative material that Leonard’s legal efforts were a wasteful and venal abuse of the legal system, along the lines of Harris v. Time. The documentary suffers by not offering that self-reflective/critical perspective.

Some other details I learned:

• At one point, Pepsi considered sending Leonard a model of a Harrier jet. That reminded me of the Toyota/Toy Yoda case.
• Leonard turned down a $1M settlement offer because he really, really wanted the jet. Ah, youthful exuberance. I was shouting at the screen for him to take the cash.
• The ad designers had initially storyboarded a 700M point price tag for the Harrier jet, but during ad review, someone said that number was too hard to read, so two zeros got dropped to make it less cluttered. Oops.
• Pepsi simultaneously ran the same ad in Canada and put a “just kidding” disclaimer on the 7M point price.
• Now-disgraced lawyer Michael Avenatti was involved in the case, principally as a PR advisor/opposition researcher because he was still in law school at the time. Avenatti advised Leonard to launch an attack ad campaign against Pepsi that sounded similar to the scheme he deployed against Nike that sent him to jail. That part of the video was painful to watch.

Other things the documentary should have addressed but did not:

• How much money Leonard/Hoffman spent on the case and why they repeatedly doubled-down despite the adverse developments.
• Why they didn’t appeal the district court decision.
• What, if any, life lessons Leonard took away from his experiences. Knowing what he knows now, would he have made the same choices? He did say he perhaps regretted not taking the settlement offer, but I would have liked to hear more about his meta-reflections after 25 years of life experience.
• In 2014, a (non-functional) Harrier jet sold at auction for $200k. This datapoint makes Pepsi’s 7M point pricetag seem actually quite reasonable, not like a joke at all. Then again, if Leonard really wanted a Harrier jet, his $700k offer was above-market, and he could have fulfilled his dream at a lower cost. I’m disappointed the documentary filmmakers didn’t raise this development because it puts the case in a whole new light.

Though it was completely irrelevant to the story, the filmmakers had many of their interview subjects take the Pepsi Challenge. I won’t spoil the fun by revealing which soda won this completely nonscientific test, but I will note that both Coke and Pepsi have lost the war as consumer tastes have evolved and consumers now drink less sugary sodas overall.

Being Talked About . . .

Last week and the week before, I put up a three-part post (here, here, and here) on what I see as the major differences between teaching at top law schools, which I called "The Legal Academy," and teaching in the schools that I have taught at for most of my career, which I call "The Other Legal Academy."  The posts gathered quite a bit of attention on Twitter.  

According to Oscar Wilde, there is only one thing worse than being talked about and that is not being talked about.  But Oscar Wilde was never talked about on Twitter. . . . 

I joke.  People on Twitter had nice and interesting things to say.  There, and in private correspondence, people in the OLA thanked me for giving voice to their experience.  Other people in the OLA shared their very different experiences in the OLA.  As they say on Twitter, YMMV.  People in the LA reached out to try to bridge the gap between the LA and the OLA.  I appreciate their efforts, but I think they to some extent misconstrued my point.  

I set out as an academic hoping to have the kind of life that my professors had.  I do not have that life, but I love my professional life, and I don't know if I would be happy in the LA.  I also recognize that there are trade-offs.  As Joni Mitchell puts it, "Something's lost, but something's gained in living every day."  Moreover, the very different ways in which people in the LA and the OLA need to allocate their time steadily widens the gulf between my part of OLA and the LA.  Differences in resources and certain structural formations push us farther apart.  I wasn't writing in the hopes of sparking a reform movement.  I was just describing the situation as I have experienced it.  But the LA and the OLA will always overlap to some extent, and I am happy about that.  

Now, over at Prawfsblawg, Jeff Lipshaw has more nice and interesting things to say about his very different experiences in the OLA.  His is an interesting perspective to compare with mine, as Jeff and I have crossed paths numerous times, in large part because of our overlapping interests in commercial law and German social theory.  He focuses on his life as a scholar.  He has not felt as cut off from the LA as I have.  

I started the series noting that there are "at least" two legal academies, and Jeff teaches at a school that is somewhere between where I teach and the LA of my youthful fantasies.  He teaches in a major city, home to plenty of other law schools.  But some of the differences just have to do with differences between Jeff and me.  Perhaps those differences have to do with our personalities or our professional drive, perhaps Jeff is a more talented scholar than I am.  Again YMMV.

The least talked-about part of my three-part post was the part about teaching.  Perhaps that is because that part came last and people were just tired of the topic and or my authorial voice, which was tendentious right from the start.  Perhaps it's because teaching is so personal and idiosyncratic.  But I think the differences in teaching in the OLA and the LA drive everything else.  

Court Spares Yale from Liability for Firing Medical School Professor

We have been distracted by armchair punditry.

Meanwhile, contracts law continues unimpeded.  As Debra Cassens Weiss reports in the ABA Journal, U.S. District Judge Sarah A.L. Merriam issued a forty-six-page opinion last week dismissing Bandy Lee's claims.  Dr. Lee sued under a Connecticut statute that incorporates constitutional protections from the U.S. and Connecticut Constitutions after Yale fired her from her position as an unpaid volunteer clinical professor for suggesting that Alan Dershowitz (left) and Donald Trump showed symptoms of psychiatric illness caused by contagion.  She had written one book and edited another about the threat to the country posed by Mr. Trump's mental condition.

According to Dr. Lee, Mr. Trump showed "definitive signs of severe pathology" that created a threat to public safety.  As a professional psychiatrist, she believed she had a duty to warn the public of these matters.  When Professor Dershowitz described his marriage as "perfect" in connection with evidence that he was connected to the sex offender, Jeffrey Epstein, Dr. Lee noted that Mr. Trump had described his allegedly coercive phone call with Ukrainian President Volodymyr Zelenskyy as "perfect."  Dr. Lee diagnosed Professor Dershowitz (via Twitter, natch) as suffering from a shared psychosis with the former President. The word choice was telling evidence.  Professor Dershowitz was not amused, and he wrote to Yale Law's Dean to request that Dr. Lee be disciplined.

A Yale review committee found that Dr. Lee had made her comments in her professional rather than a personal capacity and that in so doing she had violated a rule of psychiatry against diagnosing people without meeting them.  Ah, but what if you can't meet them because they have a contagious mental disorder?  Yale terminated her faculty appointment.

Eugene Volokh provides full coverage over at the Volokh Conspiracy, with detailed excerpts from Judge Merriam's opinion.  Professor Volokh notes that the ruling is a narrow one.  Judge Merriam found that Dr. Lee, who was an unpaid volunteer, was not an "employee" for the purposes of the Connecticut statute, despite having served in her role at Yale for seventeen years.  Dr. Lee would have had a stronger claim were she a tenure-track employee.

Whew.  I'm glad that I have tenure so that I can offer my completely unprofessional opinion that the real source of the contagion is Rudy Giuliani, shown at right at a superspreader event.

The Dropout and Blawgs

Photo by Glenn Francis (Toglenn, CC BY-SA 4.0, via Wikimedia Commons)

Hulu's The Dropout tells an amazing story.  I do not know if it is fair to the main characters or an accurate representation of how easy it is to scam angel investors and the Katy Perry and Angry Birds addicted aging executives who run corporate dinosaurs like Walgreens.  It's also hard to imagine getting top science and technology graduates from top programs to sign non-disclosure agreement after non-disclosure agreement and to work under 24-hour surveillance and conditions where they are prohibited from speaking to colleagues from other parts of the enterprise. But perhaps I am naive about work conditions in start-ups, or perhaps young graduates are naive about contracts.  Both are possible.

But I do know that it features stunning performances by great actors, including Amanda Seyfried (right), who does for Elizabeth Holmes what Johnny Depp did for Willy Wonka, and William H. Macy.  How many iconic roles can one actor create?  If I were Richard Fuisz, I don't know if being played by William H. Macy (left) would take the sting out of being portrayed as an obsessive, jealous, greedy, glorified patent troll.  

Which brings me to the justification for this post.  In episode 6 of The Dropout, about three minutes in, Fuisz is making his first contact with Wall Street Journal reporter John Kerryrou (played wonderfully by Ebon Moss-Bachrach -- every scene with him and LisaGay Hamilton as his editor Judith Baker is priceless).  Fuisz says that he read something by Adam Clapper who writes something called the Pathology Blawg and then he furrows his brown and mutters "I don't know why he spells it like that."  Well we do!

Contracts at the NRA Convention

As reported here in The New York Times, a number of musicians who were slated to perform at the National Rifle Association (NRA) convention this weekend in Houston have pulled out.  The musicians include Don McLean (pictured. in 1976), best known for the iconic songs, "American Pie" and "Vincent," both from the early 1970s; Larry Gatlin, known, according to his Wikipedia entry, for country songs written in the 1970s and 80s; and Larry Stewart, who (also according to Wikipedia) had 18 top 40 hits with Restless Heart in the 80s and 90s.   Lee Greenwood (the singer-songwriter of “God Bless the U.S.A.”, also known as “Proud to Be an American”) and T. Graham Brown also cancelled appearances.

According to the CMT website, Mr. McLean issued the following statement:

[I]n light of the recent events in Texas, I have decided it would be disrespectful and hurtful for me to perform for the NRA at their convention in Houston this week.

Mr. Gatlin explained his decision to pull out as follows: 

I cannot, in good conscience, perform at the NRA convention in Houston this weekend.  While I agree with most of the positions held by the NRA, I have come to believe that, while background checks would not stop every madman with a gun, it is at the very least a step in the right direction toward trying to prevent the kind of tragedy we saw this week in Uvalde — in my beloved, weeping TEXAS.

Mr. Stewart posted the following on Facebook:

Due to the tragedy in Uvalde with the horrific school shooting and children who died, I want to honor the victims, families, the town and our friends in the great state of Texas the best I know how. So I have made the decision to pull out as a performer for the NRA convention this weekend, especially given the event is just down the road. I just believe this is best for me at this time. God Bless everyone involved!

Here on the ContractsProf Blog, our question is, what are the contractual consequences of doing so?  We have not seen the contracts, but it seems unlikely that the musicians had clauses allowing them to pull out in case of mass shootings on the eve of the convention.  Given that there have already been 27 school shootings and over 200 mass shootings in the U.S. this year, the event was hardly unforeseeable.  Nor did the Uvalde massacre render the musicians' performance commercially impracticable. 

However, it seems unlikely that the NRA would want to risk negative publicity and harm relationships that likely will soon return to normal by going after musicians for breach of contract.  Presumably the musicians will not be paid, and so, absent some argument that people flocked to Houston to hear performances by people they remember from their childhood rather than for the main attraction of an NRA convention, the damages from the breaches would likely be limited to inconsequential costs and unrecoverable deposits and the like.  Can the NRA book alternative acts on short notice?  Are other contracts affected (promoters, sound technicians, roadies, etc.)?  All interesting matters.  All likely to resolved through quiet negotiation and private settlement.

Of course, there is another option available to the NRA.  They could take a page out of David Kopel's book, as set out in this post over at the Volokh Conspiracy.  According to Kopel, those who link the NRA to mass shootings are hate groups carrying out a blood libel.  He denounced the "cowardly politicians" who canceled their appearances at the NRA convention held in Denver shortly after the Colombine shootings.  He concludes:

We say to each and every hate group, we reject your sick and twisted lies against us, for exactly the same reason we reject the blood libels against every race, every religion, and every other group: We reject Satan and all his works.

That sounds like a great conclusion to the NRA's opening brief in its case against the Satanic musicians.  And why not throw in suits against the cowardly politicians who once again pulled out from the convention this year?  Likely there are no damages when politicians fail to show up, but you can certainly hit them in the solar plexus of endorsements and campaign fund by alleging in court documents that they have abandoned the NRA in favor of Satan.

Ted Cruz, Donald Trump, and Kristi Noem need not worry.  They will not be sued.  They showed up.  As described here (with video), Mr. Trump enacted a scene from The Hunger Games, reading out the names of the dead as a bell tolled for each murdered child.  One hopes that the allusion was inadvertent, but given Mr. Trump's adoration of Hungarian strongman Viktor Orban, and his love affair with Kim Jong Un, who knows? 

Hat tip: Peter Gulia.

Hila Keren on Luguri & Strahilevitz on JOTWELL

From time to time, JOTWELL provides reviews by contracts profs on recent contracts law scholarship.   A recent example is an essay by Hila Keren (left), Vast Scale Undue Influence, reviewing Jamie Luguri & Lior Strahilevitz, Shining a Light on Dark Patterns, 13 J. Legal Analysis 43 (2021).  

As Professor Keren presents the article, Luguri (below, right) and Strahilevitz (below left; together, "the Authors") show the following: you do not want cookies, and yet web sites are designed ("dark patterns") to manipulate you into accepting intrusions on your privacy that you would not agree to but for the manipulation.  The Authors show that dark pattern manipulations are most likely to be effective when they are subtle and that better-educated consumers more successfully resist the dark patterns' siren song.  This is not particularly surprising, but the authors' proposed solution is very surprising.

The Authors suggests that undue influence might be the best legal tool for rendering unenforceable the promises extracted through the manipulative techniques that authors see embodied in the dark patterns.  The Authors duly acknowledge that the doctrine, traditionally conceived, is quite narrow, and some of the usual components of undue influence seem to be lacking.  Most obviously, undue influence usually involves special relationships between or among the parties, and here we are dealing with an individual's encounter with a website.  The nefarious designer of that website is a stranger to the consumer.  Nonetheless, the doctrine's basic purpose is to defeat contracts formed where a combination of one party's dominance and the other party's vulnerability leads to a contract whose terms effect harms to the vulnerable party.  So conceived, the doctrine serves nicely to tame the effects of dark patterns.

Professor Keren helpfully supplements the Authors' perspective with a dose of Martha Fineman's vulnerability theory.  Undue influence doctrine is narrow precisely because courts require an extreme level of vulnerability.  Vulnerability theory helps us to understand that all of us are on a path toward vulnerability, if we have not already arrived there.  Fineman's broad view of human vulnerability informs her understanding of the role of the state in safeguarding its vulnerable citizens.  In this instance, Professor Keren uses Fineman to support the Authors' narrower claim that courts are justified in intervening to protect the typical, vulnerable consumers without having to demonstrate a pathology.

Paul Horwitz on the Dwindling Prospects for Compromise

Over on Prawfsblawg, Paul Horwitz (right) has a long and insightful rumination on some more contractual fall-out from the Russian invasion of Ukraine, a topic we have already touched on here and here.  His post was inspired by the decision of the Vancouver Recital Society (VRS) to cancel a concert by Russian pianist Alexander Malofeev (below left).  VRS pursued Mr. Malofeev for six years, but then said that it could not support Russian artists unless they denounced the war.  

Perhaps in response, or sua sponte, Mr.  Malofeev wrote on Facebook,

The truth is that every Russian will feel guilty for decades because of the terrible and bloody decision that none of us could influence and predict.

Not good enough.  In a response that it described as "complex and nuanced," VRS explained why it was nonetheless cancelling Mr. Malofeev's performance.  

Professor Horwitz makes great points about how decisions like VRS's are exceptional.  In most situations, we swallow our moral scruples in order to get on with life.  It is obviously silly to demand that Mr. Malofeev denounce the war and then cancel the concert anyway.  It is obviously hypocritical to pretend that nobody knew that Putin was a war-mongering tyrant before February 2022.  But for our purposes, his most interesting point is that decisions like VRS's are business decisions, and institutions caught in the battles over "cancel culture" make such decisions all the time.  First Amendment principles might come into play, but how one wields the rhetorical force of constitutional rights might be overdetermined by basic math: will our bottom line look better or worse if we go forward with this event?

Image by Liumir, CC BY-SA 4.0, via Wikimedia Commons

And so it has ever been.  The world is tainted.  Unless, as Professor Horwitz put it, you are a saint or a recluse, we all weigh plusses and minuses and make compromises or simply choose not to inform ourselves of the full impact of our interactions with international markets.  While "cancel culture" makes surface waves, we swim in a sea of compromise culture.  Most of us have to work somewhere; we have to buy our goods somewhere, and everything is ultimately inter-connected.  

Okay, so Professor Horwitz covered the hard stuff, the deep stuff.  I want to know the surface stuff: Did VRS have a contractual right to cancel Mr. Malofeev's performance unilaterally.  If not, wouldn't VRS have to pay Mr. Malofeev his fee, and doesn't that figure into the  economic calculations relevant to the decision to cancel the concert?  Could there not also be downstream consequences beyond the decision to cancel this one concert?  After all, Russia has produced a great many talented musicians.  So has China.  So has Israel.  The list goes on.  No state is free from moral taint.  Must every artist now pin a Tweet or a post on Facebook denouncing their home state's latest atrocities?  If doing so might be deemed inadequate by the concernt promoter, aren't artists in high demand like Mr. Malofeev going to demand assurances of payment in case of cancellation by the concert promoter?

International Agreements Among States: The Montreux Convention and the Russian Invasion of Ukraine

As someone who teaches both contracts and international law, I have had a hard time focusing on contracts law this week.  Fortunately, treaties are international contracts, and the parties are states, so these thoughts do not seem entirely out of place here.

This seems like a bad week for those who believe in the efficacy of international law.  Russia has audaciously violated  the U.N. Charter's Article 2(4), which prohibits the use of force by state against state, and the U.N. Security Council is, as it so often is, paralyzed by the ability of any one of its five permanent members (Russia, in this case) to veto any substantive resolution.  It all seems like a reminder that international law is still in what Hans Kelsen called a "primitive" state and that H.L.A. Hart was correct to say that it was not law but "positive morality."

Over at Just Security, Oona Hathaway (left) and Scott Shapiro (right) point out that Putin cannot destroy the international order all by himself.  They maintain that Putin's offenses may have the opposite effect by reaffirming the very rules that Putin violated.  I offer a slightly less optimistic take.  Over fifty years ago, my international law mentor Tom Franck (below left) asked, "Who Killed Article 2(4)?".  His answer, in a nutshell, was that states killed Article 2(4) by favoring the pursuit of short-term national interests over international legal norms.  Over thirty years later, Professor Franck posed his question again in the context of the 2003 U.S. invasion of Iraq.  

But Professor Franck was being intentionally histrionic in order to highlight the self-harm the United States was doing by undermining an international legal order that it helped establish and from which it richly benefits.  Article 2(4) is never killed, nor has it ever been consistently enforced. However, as Professor Franck notes in his essay on the U.S. invasion of Iraq, when powerful states act in violation of international law, they can stress, amend, or replace legal principles.  Putin has the power to create facts on the ground and precedents that other powerful states will cite when they want to test the limits of the international community to stand behind international legal norms.  And this is the middle ground that I would follow somewhere between Professor Franck's pessimistic pose and Hathaway and Shapiro's gritty optimism.  Actions like Putin's hack away at international legal norms.  The norms do not emerge with the same vigor that they had prior to the attack.  And the Trump administration did nothing to bolster faith in the binding power of international norms.

Shapiro and Hathaway point to the failure of the Trump impeachments as a failure to enforce municipal law, but one could spin out infinite variations on the theme of the enforcement gap in domestic law.  In the domestic context, it is not at all unusual for laws on the books to go unenforced. I can't drive to work without violating traffic laws.  Moreover, when domestic laws are violated, we often do not know the identity of the perpetrator.  By contrast, as I stress to my students, Louis Henkin found that almost all states abide by their international obligations almost all of the time.  Subsequent empirical studies confirm and strengthen Henkin's relatively rosy. 

I often begin my international law course by asking my students how many of them have been victims of a crime.  Usually 1/2 to 2/3 of the students put up their hands.  Then I ask whether the criminal justice system worked for them in connection with those crimes.  Usually, the unanimous response is that the perpetrator was never caught.  And yet my students do not conclude on that basis that domestic law has no efficacy.  By contrast, even in this era of state-sponsored cybercrime, we almost always know who violated international law. 

International law's enforcement mechanisms are more decentralized, subtle, and varied than enforcement mechanisms under domestic law.  And, of course, very few domestic actors, when accused of an unlawful act, respond by putting their nuclear forces on alert.  Nevertheless, there are powerful, long-term international responses to violations of international law.  Our assumptions about the efficacy of international law compared to domestic law need to be adjusted, if not reversed.

As Hathaway and Shapiro note, there has been an extraordinarily united international response to Russia's invasion of Ukraine.  The impact on Russia has been remarkable.  The ruble's value has plummeted, as has the Russian stock market.  The impact of international economic sanctions on the Russian economy is likely to increase as the full effect of those sanctions kick in, unless China is able to play the role of Russia's financial deus ex machina.

Image by Interiot, CC BY-SA 2.5 via Wikimedia Commons

But today I want to highlight the Montreux Convention in order to illustrate the idiosyncratic nature of enforcement mechanisms under international law.  The Dardanelles and the Bosporus straits connect the Mediterranean and Black Seas. Turkey controls the straits.  Historically, Russia has had a naval base on the Black Sea.  Without the ability to pass through the straits, the Russian Black Sea fleet would either be bottled up on the Black Sea, or it would be unable to return to its home port.  In 1936, ten states signed on to the Montreux Convention, through which Turkey guaranteed free passage through the straits for civilian vessels in peacetime.  Warships can pass through the straits subject to regulation and notice to the parties to the Convention.

On Sunday, Turkey's foreign minister announced that Turkey was asserting its authority under the Montreux Convention (the Convention) to limit passage of belligerent vessels between the Black Sea and the Mediterranean.  Although there are exceptions under the Convention that may limit the impact of Turkey's announcement, this was an example of a state risking real-world political consequences for invoking its legal rights under international law.  Turkey has placed itself first among nations willing to assert their commitment to the rule of law notwithstanding international politics.  Turkey's invocation of the Montreux Convention provides a helpful example of the independent valence of international legal norms.  While those who regard international law as nothing more than states abiding by voluntary obligations that advance states' self-interested goals can contrive explanations for Turkey's conduct, the argument for normative compliance pull seems stronger here.

The invocation of the Montreux Convention may have little effect.  According to US News, at least six Russian warships and a submarine entered the Black Sea in February, and the Convention does not permit Turkey to prevent ships from returning to their home base.  Still, in invoking the Convention, Turkey overcame its hesitancy to offend Russia, which no doubt resents the recognition of its invasion as a "war" that triggers Turkey's right to limit passage through the straits.  The movements of Russia Black Sea fleet will continue to be limited for however long Turkey considers the war to be on-going.  

85 years ago, ten states bound their wills through a written instrument.  Much has changed int the world since that time, and the Montreux Convention has been amended along the way.  But its basic provisions remain in force.  Even in times of crisis and war, pacta sunt servanda!

The Private Law Podcast Features Liam Murphy

I started law school in the Fall of 1996, visions of social justice, constitutional, international, and comparative law dancing in my head.  I knew I would have to take torts and criminal law in the first semester.  That would be diverting, I thought.  There was also something called civil procedure.  I had no idea what that was, and based on my grades in that course, that had not changed by the the end of my first year.  Contracts was a course about transactional law, I supposed.  It was for people who became lawyers so that they could make money.  I had no interest in that.

Dutifully, I showed up for class, and in walked Liam Murphy (right).  Liam was not what I had in mind when I imagined my contracts professor.  He was not a transactional lawyer.  He was a philosopher.  I don't know if he ever practiced law or even got a law license.  He was a pure academic, and he thought about contracts law the way I wanted to think about contracts law, at a time when I thought I would never want to think about contracts law.  He started in with the very basic premise that, at least in the United States, contracts law is about promises, and so we started talking right from the beginning about why we enforce some promises and not others. 

Suddenly, contracts law was not at all about commerce or transactional work.  It was about a very basic human interaction.  It was about obligations, moral and legal, and about why we think some promises entail moral obligations and why the law treats some of those moral obligations but not others as legal obligations.  Yes, we read cases and we learned doctrine, and yes, those cases mostly involved commercial transactions.  We also read a lot of economics and law literature about contracts.  But we never lost track of the basic questions with which we started.  For which promises should the law provide a remedy in case of breach, and what are our intuitions, moral, conventional, or pragmatic, about what those remedies should be?   

Oh, how I came to love my contracts class!  How happily I would return to that classroom and do it over again! 

Well, thanks to Felipe Jimenez's Private Law Podcast, I was able to bite into a madeleine and feel as though transported back through time and space into Vanderbilt Hall circa 1996-97.  The conversation begins with Liam's thoughts about tax law, moves to property, and then settles in on the nature of promise and contract.  

Highly recommended!

Kudos to Kim Krawiec, but . . .

Kim Krawiec (right) was, until recently, a friend of the blog.  And with good reason.  She does interesting work on contracts law.  Indeed, you can see some of her interesting work on contracts law here.  But note that "here" does not mean here.  Professor Krawiec has chosen to post contracts content on a rival blog.  Not even a contracts blog.  Does she not know that this blog, i.e., the ContractsProf Blog, is the world's premiere contracts law blog?

If you were to go over to that other blog, where Professor Krawiec posted her contracts law content, which you totally shouldn't do because it's not the premiere contracts law blog or even a contracts law blog at all, you might learn the following:

Two medical centers have brought suit against the National Kidney Register (NKR).  Both were being charged under their agreements with NKR for having a kidney deficit -- that is, they took more kidneys from the register than they added to it.  The agreement provides that NKR can charge medical centers $1000/kidney/month every month until they make up the deficit.  The case raises interesting questions about liquidated damages/penalty clauses.

We could tell you more, but we don't want to spoil it for you.  Actually,  we do.  The cases settled, so we'll never know how the court would have resolved the issue.  And that's all you would know if you had read Professor Krawiec's post, which you totally shouldn't do because we've told you everything you would get out of reading her post, which is excellent, by the way.  Unless you want the links that she provides to documents relevant to the cases.  

So, kudos to Professor Krawiec for a great post about contracts law.

Next time, post on the ContractsProf Blog.  

H/T John Wladis, still a friend of the blog.

We're #1

According to Feedspot, The ContractsProf Blog is the #1 contracts blog worldwide!

See you in the BCS, main contracts blog rivals!

Lighter blogging this week, cuz we're going to Disney World!

Contracts Prof Blunders into Constitutional Law

We take a break from our usual programming to provide this bit of shameless self-promotion:

Jeremy Telman on Eric Segall's Supreme Myths Podcast 

Or if you would like the full video experience (cat cameo included), there this version

 

 

Reflections on Socratic Teaching IIIA: Why Teach Socratically?

This is the third of three posts inspired by Tanya Monestier's blog post on Socratic teaching.   The first post is here.  The second is here. While you're thinking about this, you should check out the rest of Professor Monestier's blog, which has great content for law students and law professors alike.

As noted in Part I, Professor Monestier summarizes three common reasons why law professors use the Socratic method: tradition, it's more interesting than lectures, and it teaches students to "think of their feet."  She presents three critiques of the Socratic method: its inefficient, it forces students to prepare for Socratic exchange rather than learn the law, and it can be demeaning or humiliating for students.  As I am writing, I realize that I have too much to say for one post, so today, I will just focus on Professor Monestier's characterization of the reasons for teaching Socratically and the next post will address her criticisms.

In this two-part post, I respond to these claims, all of which are at least partially valid but which I view as pitfalls to be avoided rather than grounds for abandoning Socratic teaching.  And again, it bears emphasizing that to the extent that Professor Monestier and I disagree, our differences are matters of degree rather than of kind.  Both of us use the Socratic method.  Both of us use other teaching approaches, but for me Socratic teaching is central, at least for teaching contracts.

First, tradition.  I concede that I when I was a law student, I did enjoy feeling that I was part of an educational tradition.  I was reading at least some cases that my law professors read when they were law students.  I was becoming conversant with a canon; learning the lore along with the law is a rite of passage as one enters a professional community.  I am aware that I was an aspiring law professor and so my experiences may not be representative of those of my classmates.  Still, I can still partake of conversations with my friends who are practicing lawyers, confident that they will know what I am talking about when I joke about the good ship Peerless, and I can also assume that they will know what I am talking about when I reference Pennoyer v. Neff, the hairy hand, or Marbury v. Madison, even if none of those cases are relevant to our daily lives.  And these experiences link us, even if we studied at different law schools in different generations.  As Tevye could tell you, it is nice to be part of a community of the mind.

There are also downsides to tradition, especially a tradition that arose during the highpoints of Eurocentrism, colonialism, patriarchy, imperialism, and racism.  One could chuck the tradition altogether, but I prefer to keep some of the traditional cases while introducing and encouraging critical perspectives on them and also supplementing them with newer, non-canonical cases and approaches.  

But I did not adopt the Socratic approach because it was all I have ever known.  I had twenty years of schooling before I set foot in law school, and I had taught undergraduates full-time for four years as well.  Even teaching history to smallish sections of 30 students, I had mostly lectured, and I expect that my students' attention sometimes wandered during those 75 minutes of lecture.  Socratic teaching was a revelation to me -- if you move quickly through a large classroom and get a lot of students involved, they are far more likely to remain focused and alert.  This is why I have reluctantly come around to cold-calling.

If you solicit their opinions and take those opinions seriously, Socratic exchange can be exciting and empowering for students.  When I was in law school, I made a comment in a seminar, and my teacher, Ronald Dworkin, responded by saying, "That's a perspicacious observation."  That meant a lot to me, and there are lots of opportunities for exchanges like that in a Socratic classroom.  I am not Ronald Dworkin, but then again, most of my students don't know who Ronald Dworkin was, and getting encouragement from me can mean as much to them as a few kind words from Ronald Dworkin meant to me. 

I won't spend a lot of time on Professor Monestier's point that professors prefer Socratic teaching to lecture because lecture is boring.  She doesn't really seem to dispute the point, and it seems undeniable to me that Socratic exchanges are more interesting, dynamic, and engaging than the typical lecture.  But Professor Monestier jokes that Socratic teaching is more interesting for the professor.  I think she underestimates how much we professors enjoy the sound of our own voices.  No. Joking.  The serious point is that I think she is a bit ungenerous here.  I teach Socratically because I think it's better for students.  That's the only reason.  Lecturing is much easier.  Contracts law doesn't change much.  I could write a set of lectures and keep 90% of them year after year.  But I never know what's going to happen in a Socratic classroom.  It's a challenge, but a fun and rewarding one.

On a more practical note, I concluded early on that Socratic teaching is a great solution to the problem of teaching in a large-classroom setting.  I have yet to be convinced that there is a better solution, although as I have said,  I recognize the need to mix things up in the classroom. In addition, I give a lot of homework and provide written comments to students throughout the semester, so non-Socratic teaching continues outside of the classroom.

The third defense of the Socratic method that Professor Monestier discusses is the claim that it helps you to "think on your feet."  I almost completely agree with her criticisms of that defense of the method, and the notion that Socratic teaching helps student think on their feet plays almost no role on my thinking about why it is a good teaching method.  Some students will have jobs that will sometimes require them to come up with answers on the fly, but that skill is not important enough to justify the time devoted to Socratic exchanges. 

One difference between my approach and Professor Monestier's is that I don't think of Socratic exchanges being about thinking on your feet as much as they are about synthesizing information in real time.  That is something that lawyers need to do all the time.  You read through some materials and you think about how to apply law or perhaps competing legal regimes to new facts.  Doing so orally and public is not very important for most students, but knowing that you can do it and seeing how others do it is of supreme importance.  Since I don't have the time or resources to do one-on-one tutorials with students, Socratic teaching is the next-best option.

Tune in tomorrow for (I hope) my last post in this series.

Return to Teaching: Reflections on Socratic Teaching I

After a hiatus from the blog and a brief break from teaching, I am brimming with blogable thoughts to share.  If you are new to the blog this year, welcome.  If you are already a regular reader, please recommend the blog to your students and contracts-loving friends and colleagues.  Finally, if you think you are so inclined, the blog thrives on diversity of input, voices, and perspectives.  We welcome guest posts from members of the contracts law teaching profession.

I recently came across a blog post by friend of the blog and Contracts Prof Tanya Monestier (right).  Professor Monestier uses Socratic method but not exclusively and she lays out the pros and cons.  Her opening comment is that the Socratic method is not inherently better than other approaches to teaching law, and although I too do not use Socratic method exclusively, I do think it is the best way to teach law in large, common-law doctrinal courses, at least for me.  Professor Monestier did not learn law through the Socratic method, and clearly she is proof that other ways also work. Her post spurred me to re-examine and re-articulate my commitment to Socratic teaching.  I share a version of this with my 1Ls at the beginning of each school year, but I am hoping that blogging about it will render my presentation less haphazard.  There's so much to say.  

I should state at the outset my view that every teacher has to find the teaching method that works for them.  I have seen magnificent teaching that I could not possibly replicate.  My teaching persona is different from my actual personality, but I can only stretch so far.  I have come to accept that there are lots of different effective teaching methods (and at least as many that are ineffective); one has to marry up one's teaching persona with the right teaching method.  Socratic teaching, often sandwiched between mini-lectures, supplemented with Limericks and PowerPoints, works for me.  I should also note that my teaching method aims to meet my students where they are.  I might teach differently if I taught at a T14 law school, but I've never had that experience.  That said, I attended a T14 law school.  The teaching there was exclusively Socratic in doctrinal courses, and even in some seminars.

As to the mini-lectures, the best teacher I ever had was Frank Cardulla, who taught me high school chemistry.  Mr. Cardulla summarized good teaching as follows: "Tell 'em what you're gonna tell 'em, tell 'em, and then tell 'em what you told 'em."  In Socratic teaching, I leave out the "tell 'em" part, because that's the part that they work out for themselves through the Socratic process.  Still, because Socratic dialogue can be a bit ragged and students tune in and out while others are speaking, it's helpful to bring it all back together with a summary, often in the form of a PowerPoint slide featuring take-aways.

I've explained how Limericks fit into all of this here and the concept is summarized in a series of Limericks here.  I won't repeat myself on the blog today.

I had plenty of education before law school, and I taught undergraduates for four years before I went to law school.  Socratic teaching was a revelation to me when I first experienced it as 1L.  Professor Monestier offers three explanations for the persistence of Socratic teaching: tradition, lecturing is boring/less interesting than dynamic exchanges with students, and it helps student develop public speaking skills or learn how to "think on their feet."  She doesn't find these reasons justify the persistence of Socratic teaching given that: (1) Socratic teaching is "inefficient"; (2) thinking on your feet is only one of many lawyerly skills, and for many students it is not among the most important; and (3) Socratic teaching can be counter-productive because it causes so much anxiety and diverts students' energies in unproductive ways.

These are great criticisms of the Socratic method.  My response is to work on improving Socratic techniques and students' understanding of the enterprise.  I use a version of Socratic method because I think that active learning in the classroom setting, while perhaps not as efficient as lecture, is more valuable and effective than lectures (although I emphasize that I supplement Socratic teaching with lectures, break-out groups, non-Socratic discussion, formative assessments, and flipped classrooms). 

I have adopted various mitigation strategies to head off student anxiety.  I move fast so that I get between twenty and thirty students involved in each class session (not including volunteers), and I do not dwell on students' errors but move on to another student if the student is really at sea. This happens rarely with 1Ls, because they are highly motivated to keep on top of the material.  Upper-level students sometimes try to get by without reading, but they also are less apt of be ashamed to admit they haven't read.  To them, I say, "Okay, you're up next time," and they know I mean it.  The main thing (and this is what Parts II and III will be about) is that Socratic teaching is, for me, about building students' self-confidence.  It is not about putting them on the spot; it is about convincing them that they belong where they are.

This is the first in a three-part post, which will proceed as follows:

In Part II, I will set out my idiosyncratic take on the Socratic method as applied to law teaching and describe the range of ways in which Socratic exchange can be valuable as well as what one can do when they go wrong.

Finally, in Part III, I will return to Professor Monestier's comments and explain that my justifications for using the Socratic method differ from the one's she discusses and how I think it is possible to teach Socratically in ways that would address her concerns about the method.  I think our differences are simply a matter of the degree to which we feel committed to Socratic teaching.  Neither of us are teach purely though Socratic dialogue.  Neither of us thinks it has no value.

Tips on Contracts Drafting

Can be found on Michael Goldblatt's Law Practice Tips blog here.