Sunday, August 17, 2014

Salaita Follow-Up

by Michael Dorf

This is just a quick follow-up to my Verdict column and two prior posts on the Salaita affair (here and here).

1) As Brian Leiter notes, there is a move afoot to boycott the University of Illinois in response to its un-hiring of Salaita. I dislike academic boycotts generally, and I think it especially odd to boycott an academic institution on free speech grounds. Better, it seems to me, to try to persuade (rather than coerce) the University to correct its error.

2) Speaking of persuasion, the letter I noted in Friday's blog post is now publicly available.

3) While disclaiming any expertise with respect to the First Amendment issues in the Salaita case, on Concurring Opinions, Dave Hoffman disagrees with my promissory estoppel analysis. After saying some nice things about me personally (which I hereby reciprocate about him), he attempts to pull rank, noting how he's a contracts teacher and scholar, whereas I'm not. That's true, but I still think that I am right and he is wrong. Let's look at three key points.

a) Hoffman says that courts often deny promissory estoppel relief to unsympathetic plaintiffs. He then offers this: "My gut feeling is that unlike many liberal law professors, who increasingly treat Israel as a pariah, and who think that there’s 'clearly only one defensible side to take on this case,' elected state court judges in Illinois might not think that justice requires enforcement of this non-contract claim."

First of all, if a case were brought in court, it would likely be brought in federal court before an appointed judge, with the federal First Amendment anchor claim providing the basis for supplemental jurisdiction over the state law claims.

Second, I don't know how many times I have to say it for people to get it, but I'll say it again: Sympathy for Salaita's position should turn entirely on the fact that he was apparently punished for the expression of views. He is or should be "sympathetic" in the sense that other free speech plaintiffs are sympathetic, that is to say, regardless of the content of his views. I don't know who Hoffman thinks are the "liberal law professors who increasingly treat Israel as a pariah," but I'm certainly not one of them, nor are most of the liberal law professors with whom I've spoken. I said in the column and I'll say again here: I disagree with the substance of Salaita's views and the tone he used (on Twitter) to express them. That's simply not the point. And any judge who decides a case based on his or her sympathy or lack of sympathy for the content of Salaita's views is himself or herself violating the First Amendment.

[**Update**: I originally failed to notice that Hoffman's statement regarding liberal law professors contained a link to a post by Brian Leiter, in which Leiter says "there’s clearly only one defensible side to take on this case if you support academic freedom, tenure and freedom of speech" (emphasis added by me). But Hoffman leaves out the portion of that quotation that I have placed in italics. With that omission, and by placing Leiter's statement just after Hoffman's claim that "many liberal law professors . . . increasingly treat Israel as a pariah," Hoffman (probably unintentionally) creates the misleading impression that liberal law professors who think the free speech and academic freedom issues are one-sided also necessarily think that Israel should be treated as a pariah. At least that's how I read it, even after I noticed the link.]

b) Hoffman's main point about promissory estoppel is that a promise can only induce reliance if the promissor has the authority to make it, and as the letter to Salaita makes clear, the Interim Dean making the offer did not have that ultimate authority: The appointment was subject to board of trustees approval.

First, at the very least, the Interim Dean's letter makes clear the intent to present Salaita's case to the board, and surely the Interim Dean had the authority to do that. Thus, to the extent that the core complaint is that the university officials reneged on their promise to present Salaita's case to the board, Hoffman's point is irrelevant. There is the breach of a promise.

Second, as Hoffman notes, an agent's promise can induce reliance when the principal knew about it. The offer to Salaita was made and accepted in early October 2013. There then followed a long period when Salaita was quite publicly identified with the University of Illinois. It's possible that the board was unaware of this, but it seems more likely that the board was aware. Moreover, given the apparently standard University of Illinois practice of faculty beginning teaching and working for the university before board approval of their appointments, the board had to be aware that prospective faculty would rely on board approval as a rubber stamp.

c) Hoffman also says that promissory estoppel is a rare bird, citing his expertise and that of my colleague Bob Hillman. As it happens, I got the idea to write the promissory estoppel piece from a paper that Hillman presented in a faculty workshop a couple of days before I wrote the column. I then researched Illinois law and discovered the 2009 case I cited (Newton Tractor Sales Inc. v. Kubota Tractor Corp.), which Hoffman cites as well. He then writes: "Notably, Newton recognized that there [is] a live cause of action for PE in Illinois, but the case strongly suggests that the issue had been in doubt — as of 2009!"

Strongly suggests that the issue was in doubt? Really? Some intermediate appeals courts in Illinois had questioned the availability of a promissory estoppel claim, but in fact, Newton said that those courts were dead wrong. Far from suggesting that the issue was in doubt, the Illinois Supreme Court cited multiple cases going back to at least 1879 showing "that promissory estoppel has previously been recognized as a cause of action" in Illinois. Not that the court was in 2009 first recognizing the cause of action, but that the cause of action was very well established.

Despite this very long line of Illinois precedents, Hoffman says that he, as a contracts scholar, knows better. Apparently, all of the people and firms bringing the promissory estoppel claims that ended up in the official reports were just dupes of silly lawyers who didn't really understand that promissory estoppel claims are usually hopeless, a mere plaything for academics.

Does all of this mean that Salaita would necessarily win a promissory estoppel claim? No, nor did I say so before. But nothing in Hoffman's analysis leads me to think that my initial assessment was wrong. It seems to me that Hoffman's best argument is not about the law at all but a legal realist objection that Salaita could lose because a judge might compound the university's violation of his right to freedom of speech by committing another such violation.

22 comments:

Jonathan Marks said...

As far as "liberal law professors" are concerned, perhaps Hoffman has in mind not you but Leiter and your initial co-signer Katherine Franke, who is deeply engaged in the boycott movement. http://electronicintifada.net/blogs/benjamin-doherty/columbia-prof-katherine-franke-joins-academic-boycott-israel-and-will-not (you don't issue video statements if you are not). And she has endorsed the U.S. Campaign for the Academic and Cultural boycott of Israel. I would not use the term "liberal" to describe what seems to me an illiberal movement. But otherwise the very person with whom you issued the letter fits Hoffman's description quite well. So it seems wrong to me to write as if Hoffman made this up.

Jonathan Marks said...

I think the argument that the chancellor failed to present the appointment to the board is more important. But (and here I'll defer to you lawyers), does that make it much more clear cut? Salaita didn't rely on *that* promise any more than, if you tell me I have a job interview and I'm definitely going to get the job, I am relying on the promise of an interview when I quit my job and move cross country--I've relied on the promise, which you had no authority to make, that I was sure to get the job. So it's not the promise to present the case to the board on which Salaita. It was on the supposed implicit promise that the board would approve, a promise that was explicitly denied in the offer letter.

Ben Alpers said...

IANAL, but it seems to me that if Hoffman is correct about the labor law here, the entire academic employment system will be disrupted. If faculty are forced to see regents' approval of hires as something other than pro forma, either hiring schools will have to wait an extra semester or year to bring faculty aboard or schools from which faculty are hired will be faced with tons of last minute course cancellations. The point is that this is not simply about a single letter sent to single faculty member: the academic employment system as currently constituted is absolutely reliant on what are widely seen as rubber-stamp stages of the hiring process being rubber-stamp stages of the hiring process. If Salaita's hirefire stands, it will, at the very least, make it much harder for the University of Illinois to hire senior faculty (not because of boycotts, but because of due diligence on the part of potential hires) and may well affect other institutions as well.

Michael C. Dorf said...

Ben is clearly right about academic hiring practices generally, which can be taken as part of the context for any specific agreement. Wrt the comment made by Jonathan Marks, I originally read Dave's post as targeting me, until I saw the link, but Moore generally I'm dubious of the claim. The academic left is increasingly very anti Israel, but I think that is still a fringe position in the LEGAL academy, and the point I would emphasize is that the critique of ui by liberal legal academia has been wholly in terms of free speech and academic freedom.

Barry said...

"Better, it seems to me, to try to persuade (rather than coerce) the University to correct its error."

If you come up with a better[1] way, they might adopt it.


[1] Where 'better' does not mean 'accomplishes nothing'.

Unknown said...

I cannot imagine a circumstance in which a promissory estoppel theory would trump a clear and unambiguous written disclaimer - particularly one that said, "the person you are talking to does not have the authority to bind the institution." Salaita got a disclaimer like that. Newton Tractor Sales didn't. So it seems to me that if your best cite for an estoppel theory is Newton, you're on thin ice - or trying to walk on water, actually.

Michael C. Dorf said...

Unknown: You appear not to have seen Ben Alpers's comment. There is not simply the letter. As even Prof. Hoffman notes in his original post and emphasizes in his follow-up, there is also the prior and subsequent course of dealing and the entire context of academic hiring. It is possible that the parol evidence rule might restrict the resort to extrinsic evidence of what went before, w/r/t a contract claim itself, but that doesn't apply to ambiguous terms--and in light of the overall context, there's ambiguity here.

See, e.g., the 1990 Supreme Court of Illinois decision in Quake Construction, Inc. v. American Airlines.

The Right Wing Professor... said...

First, at the very least, the Interim Dean's letter makes clear the intent to present Salaita's case to the board, and surely the Interim Dean had the authority to do that.

No. Quoting the Bylaws of the Board of Trustees.

The president shall make all nominations for appointments to positions under the Board of Trustees.

The Right Wing Professor... said...
This comment has been removed by the author.
The Right Wing Professor... said...

Re Ben Alpers' comment; in general, when one is moving from one institution to another, it is customary to ask for a years' leave of absence from the original institution, in case any one of a number of things should go wrong. This leave is usually granted; when I moved, my institution actually suggested I request a leave, precisely because they wanted to leave open the possibility I might come back. This also means slowness on the part of the Board of Trustees is much less of a problem than it appears.

I have no idea why Salaita did not ask for, or was not granted, a leave of absence. That would be ordinary prudence. It also seems curious he did not inquire why after 10 months his appointment had not been brought to the board.

I'm also at a big 10 public university, and while approvals above the Deans' level are usually pro forma, counterexamples are frequent enough that few would count on a pay raise, a promotion, tenure or hiring before it had been approved by the board. We had a case a couple of years ago where the Chancellor denied tenure after approval by the Dean (for economic rather than political reasons, but still...)

Unknown said...

In response to Michael C. Dorf at 11:45 -
I'm "unknown" - didn't mean to be anonymous, I don't know how to put my name in.

Yes, I did see Alper's comment. I am familiar with the concept of ambiguity as I litigate it all the time, and there is a bedrock principle that if a writing is unambiguous, you can't manufacture an ambiguity with extrinsic evidence.

In any event, no one is claiming ambiguity here. The letter is clear. The claim is that practice trumps a clear writing. This is never the case. There may be custom but the whole point of the writing is to preserve the Board's authority to act in spite of the custom in rare situations.

Michael C. Dorf said...

Right Wing Professor:

1) Whoever is formally supposed to present the recommendation to the board, the letter says--and more importantly the background understanding is--that the case will be presented to the board.

2) If the background understanding made clear that for budgetary reasons and perhaps some other non-merits reasons, the President and/or Board can reject a dean's recommendation based on a departmental vote, even if only very rarely, then that would substantially weaken the case for promissory estoppel where that is the basis for the disapproval. But that would not mean that a recommendation could be rejected on grounds that would violate the academic freedom of an existing faculty member, especially as it turns out that the offer letter included a copy of the AAUP 1940 Statement on academic freedom and tenure.

3) I also don't know why Salaita either didn't seek or was denied permission to take a leave from Va Tech, but such leaves are hardly a panacea. A faculty member might change affiliations on the basis of a non-finalized tenure offer but not on the basis of a visiting offer, which is how you propose to treat non-finalized offers. There are all sorts of other reliance costs that cannot be rolled into the possibility of returning to a home institution, including: moving family and disrupting children's schooling; spouse or partner needing to find a new job, often without the possibility of returning to the old one; and real estate transactions. Especially with respect to dual-career couples, it can be extremely difficult to lure someone to a new and distant location if one is only "really" promising a temporary position.

The Right Wing Professor... said...

Thanks for your reply.

There are some interesting issues with this entire appointment process. As I quoted, the only person who can make a recommendation for an appointment is the President. At UIUC, however, this authority is relegated by the President through the Chancellor to the Provost. For a tenured appointment, the Provost must give prior approval to the Dean before he issues the 'letter of invitation', which is the one Dorf links to. So, the Provost must have pre-approved the offer prior to November 2013.

But, if they adhered to university policy on delegation, it would have been the Provost who declined to forward a recommendation to the board of trustees in July 2013. So this entails that the Provost didn't simply disapprove of an offer issued by the Dean; the Provost had already seen and approved the offer, and changed his mind about it (presumably because of the tweets).

I'm not a lawyer, but possibly this makes a difference?

U of I policies are here:

http://www.provost.illinois.edu/communication/appointments.html

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Emma O'Connell said...

but I'll say it again: Sympathy for Salaita's position should turn entirely on the fact that he was apparently punished for the expression of views. He is or should be "sympathetic" in the sense that other free speech plaintiffs are sympathetic, that is to say, regardless of the content of his views. I don't know who Hoffman thinks are the LOL Boosting Service cheap fifa 15 coins

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