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By Dave Hoffman

Does Salaita Have a Contract Claim?

As I’ve argued in pedantic detail, Prof. Salaita’s hypothetical promissory estoppel claim against the University of Illinois is weak. In the Illinois Court of Claims, even if one can assert  estoppel against a state instrumentality, the claim should fail unless the undiscovered facts are radically different from those publicly known. But what about an ordinary contract claim? On its face, most observers have discounted the possibility because the offer letter explicitly stated there was no contract before board approval. Prof. Nancy Kim argues to the contrary, in a thoughtful post here. The nub of her argument is one of contract interpretation:

“I think both parties intended a contract and a “reasonable person” standing in the shoes of Salaita would have believed there was an offer.  The offer was clearly accepted.  What about the issue regarding final Board approval? Does that make his belief there was an offer – which he accepted -  unreasonable?  I don’t think so given the norms surrounding this which essentially act as gap fillers and the way the parties acted both before and after the offer was accepted . . . There was, however, an implied term in the contract that Salaita would not do anything or that no information would come out that would change the nature of the bargain for the university.”

I read this to be making an argument about conditions – that is, Prof. Kim thinks that we shouldn’t interpret the language “This recommendation or appointment is subject to approval by the Board of Trustees of the University of Illinois” as an express condition, given the anti-forfeiture preference that many courts practice.  Rather, Kim argues that we should see the term a promise which is subject to a brake – the implied duty of good faith and fair dealing: the Board of Trustees could only withhold approval for good cause. Whether the tweets in question constitute good cause then becomes the real issue.  She admits the problem “caused me some angst,” but ends up coming out against a finding of a condition.

I’m not unsympathetic to Prof. Kim’s position.  But to evaluate it, I would prefer to talk about Illinois decisional law, rather than contract doctrine in general terms.  Just for those few readers of this post who don’t already think about contract law all day long, well, I’ll tell you a secret: there is no contract law.  Notwithstanding the Restatement’s certitude, the states diverge sharply on many matters, including those as seemingly trivial as the preference against forfeiture, and as general as the liability of principals for agents’ actions. I’ve done some research into this.  I original wrote a post that catalogued the absence of evidence in Illinois for contract recovery under circumstances anything like these. But rather than subject myself to a tl;dr comment, I’ll just post the following challenges to Prof. Kim and others who care to take them on.

1. Doesn’t the “subject to approval” language from the letter make this a rather classic case of a non-offer under Restatement 26 and its adopting Illinois cases?

2. Why isn’t...

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Disclaimers & Promissory Estoppel

Imagine that, rather than because of his speech, but for no reason at all, University of Illinois Chancellor Wise decided not to present Prof. Salaita’s appointment to the Board of Trustees. Also assume that the facts are as they’ve been publicly described – there is no documented backchannel communication assuring that the appointment was a “rubber stamp,” and the Board had no knowledge of the offer’s existence before the summer. Finally, assume that the Illinois Chancellor has not failed to forward on a hiring proposal to the Trustees since, say, 2010.

These assumptions strip away the political and constitutional questions,* and leave us with a clean problem: does an express reservation of authority in an offer of employment make it unreasonable to rely on it, where the current institutional practice is for such authority to be confirmed later? Dorf thinks “no.” I, and Steven Lubet, think “yes.”

In my first post, I cited a number of cases in which promissory estoppel claims by prospective faculty members under circumstances like these were denied, including some that rested on the conclusion that the ultimate authority lay with the Board of Trustees.  This post continues that research.  I have found no cases directly on point in Illinois. Nor have I found a single case outside of Haviland v. Simmons where a plaintiff successfully asserted a PE claim under these circumstances.  In addition to the cases I cited in the original post, see also Drake v. Medical College of Ohio, 120 Ohio App.3d 493 (1997) (representation by college president that a faculty member would be hired and trustees would be a “rubber stamp” didn’t give rise to PE Claim);  Broderick v. Catholic University, 365 F. Supp. 147 (D.D.C. 1973) (representation of prospective wage equality in president’s letter not reasonably reliable in light of several factors, including reservation of power to Trustees).  Of the dozen or so cases I have found in this vein, Oja v. Blue Mountain Community College, 2004 WL 1119886 (D. Ore. 1994) comes closest to the Salaita facts:

 

“Defendants argue that McCarrell, the interim president, stated in the June 18, 2002 letter to plaintiff that McCarrell would recommend that the Board agree to employ plaintiff. I agree with defendants that a close reading of the letter and the contract show that McCarrell did not agree to employ plaintiff but rather stated that he would recommend that the Board employ plaintiff. This is indicated by contract’s blank signature line for the Chair of the Board. Plaintiff knew that Board approval was legally required, but argues that this as a mere formality. Plaintiff cites alleged statements by Shea to the effect that the job was secure, which Shea denies. Assuming Shea did make such statements, casual or unauthorized comments cannot create a binding employment agreement. See Butler v. Portland General Elec. Co., 748 F.Supp. 783, 792 (D.Or.1990), aff’d sub nom. Flynn v. Portland General Elec. Co.,958 F.2d 377 (9th Cir.1992) (table, text in Westlaw). The promissory estoppel claim fails because it was not reasonable for plaintiff to believe that he had a binding contract with Blue Mountain based on McCarrell’s statement that McCarrell would recommend...

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Steven Salaita’s Promissory Estoppel Claim is Weak

Mike Dorf has written something about the Steven Salaita case which I can’t agree with. Acknowledging that Professor Salaita had no actual contract with the University of Illinois, Dorf turns to promissory estoppel:

“Like many other states, Illinois law offers protection to people who, in reasonable reliance on an offer that falls short of a fully enforceable contract, take actions to their detriment. The Illinois Supreme Court affirmed this principle of “promissory estoppel” as recently as 2009, in the case of Newton Tractor Sales v. Kubota Tractor Corp.

Salaita has an almost-classic case of promissory estoppel. He was told by Illinois that trustee approval was essentially a rubber stamp, and in reliance on that representation he resigned from his prior position on the faculty of Virginia Tech.

To be sure, a party who sues for promissory estoppel rather than suing under a formal contract typically only recovers to the extent of his reliance, rather than in strict accordance with what he expected to gain under the contract. But here, there is no real difference between what contract law calls the reliance interest and the expectancy interest: By giving up his position at Virginia Tech, Salaita gave up a job in which he had academic freedom; thus, recognition of his promissory estoppel claim should mean that Illinois must afford him academic freedom.”

Mike is an enormously decent person, and he knows more about constitutional law (and debate!) than I ever will. But if Mike really believes that Salaita has a strong case for promissory estoppel recovery, well, he’s wrong.

 The Illinois Supreme Court’s last statement on promissory estoppel is Newton, which endorses the Restatement (2nd) of Contracts Section 90.  (Notably, Newton recognized that there a live cause of action for PE in Illinois, but the case strongly suggests that the issue had been in doubt — as of 2009!) The elements of promissory estoppel are consequently familiar:

 “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.”

Let’s take them one by one, as if this were a law school exam.

1.  There was a promise, but it didn’t unambiguously assure employment. It did so contingent on board approval. There are tons of cases out there (including some from Illinois, e.g., Board of Education South Stickney School District No. 111, Cook County v. Murphy, 56 Ill.App.3d 981 (1978)) holding that under the Rst.2d, a promisee can’t estop a promisor’s denial of obligation when the promisor lacked legal authority to conclude a bargain. Under the facts as they’ve been reported, the offer letter was sent by Brian Ross, U. of I.’s interim dean of the College of Liberal Arts and Sciences, and explicitly stated that it was contingent on...

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The Tomtit Theory of Consideration

I’ve been teaching contracts for a decade, and I thought I’d heard of everything.  Then I came across this squib from Corbin on the adequacy of consideration:

“The rule that market equivalence of consideration is . . . to be left solely to the free bargaining process of the parties, leads in extreme cases to seeming absurdities. When consideration is only a “peppercorn” or a “tomtit” or a worthless piece of paper, the requirement of a consideration appeared to Holmes to be as much of a mere formality as a seal…”

A peppercorn or a tomtit?  I know what the peppercorn theory of consideration is. Basically, consideration can be something of trivial value, so long as that value isn’t easily reducible to a certain sum, giving rise to the problem of inadequacy of exchange.  Some years I’ve brought in a peppercorn, suggesting that it could – in some law school hypothetical universe – have subjective value to a particular student.  (Perhaps a deity’s face is carved  on it?  Really.) Most law students have their semesters spiced up by reading about peppercorns in contracts.  It’s like the Erie doctrine: apparently iconic, mysterious, deeply bizarre law.

But has anyone else ever taught that consideration can be a tomtit?  A tomtit!  In case you were wondering, a tomtit is a small New Zealand bird. Where did Corbin come to rely on this small bird to illustrate the point?  An older (still) English case, Couldery v. Bartrum, 19 Ch. D. 394, 399 (1881), held that a creditor could take “a horse or a canary or a tomtit.”  Couldery was in turn cited and popularized by Ames in his 1899 HLR article, “Two Theories of Consideration.” But, excepting a few stray references in the law reviews in the last two generations, no one refers to tomtits anymore.  Peppercorns have replaced them in law school classrooms, though they are demonstrably less visually interesting, and wouldn’t give rise to the opportunity for a double lesson in tomtit gender identification.It’s time to bring tomtits back.

 

 

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The [Law School] Adjunct Problem

American higher education, under pressure on all fronts, has squeezed adjuncts. Adjuncts, in turn, have protested in a variety of public fora, and now seek government regulation to ameliorate the conditions of their employment. In general terms, the problem is this: universities have high fixed labor costs (TT faculty), weak manager oversight - and consequently spiraling costs, and increasing student demand for expensive facilities. Their ability to raise prices is constrained (at least more than it used to be.)  The result is that adjuncts, who typically aren’t organized and who have little job security, can be treated like workers in the rest of the economy – i.e., terribly so long as market conditions permit.  At a variety of schools – including mine – unionization movements are afoot.

One wrinkle concerns the “fate” of law school adjuncts. Law schools typically employ adjuncts to teach cutting edge areas in practice, and those adjuncts are almost always otherwise employed as full-time lawyers and judges. Those lawyers and judges provide students with opportunities to understand developments in practice that no full-time instructor could deliver (whether or not that instructor ever writes a law review article). They also can be sources for leads on jobs, and can model professionalism.  The networking and professional development street runs in both directions.  For many law school adjuncts, association with the school brings significant professional benefits, which are more likely to motivate taking the gig than the relative pittance adjuncts are paid. Lawyers routinely highlight their law school teaching expertise in advertising – “Teaches criminal advocacy at X…”, “Professor teaching ERISA at Y….”  (I can’t prove that clients care about this kind of puffing, but the prevalence of claims in the market suggests they might.) Adjuncts also can use the experience to deepen their knowledge of a field, thus improving their skills.  Or, as Eric Goldman once commented, “There are lots of good reasons to be an adjunct, but the pay is definitely not one of them.”

Now, like university adjuncts more generally, law school adjuncts can feel like second-class citizens. They are rarely if ever even mildly integrated into the faculty.  They usually teach in the evening (when their practices permit them to).  They don’t have offices on campus.  And teaching takes more time than many of them have to give. With that that said, mandating that law school adjuncts be treated like teachers in the rest of the university – and given higher benefits and salary –  is profoundly foolish and unwise.  I realize that that is very easy for me to say.  But  I have heard that at many schools, university-wide adjunct policies designed to make adjuncts’ lives better – some, of course, prompted by unionization - have had perverse effects when applied to law school adjunct faculty.   Law schools are already stretched thin, and there already is a secular trend against adjunct teaching given the reduced numbers of students.  When lumped in with & bumped up with the rest of the university’s adjuncts, law schools respond by employing many fewer adjuncts.

And even in a better law school market, law school adjuncts really are differently situated than their undergraduate counterparts.  Treating them like...

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