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.