Search This Blog

Friday, September 5, 2014

Contracts Exam Prediction: The Salaita Controversy at the University of Illinois

I've blogged about predicting law school exams and how students can go about predicting exam content, and I've posted some predictions about exam content on this blog and elsewhere on Facebook. As I have mentioned before, students should be on the lookout for stories in the news that have a legal hook, especially those that implicate several areas of a particular area of law. Events this August have led me to make another prediction -- this time in the field of contract law.

I predict that law professors may seek to structure a contracts exam around a recent controversy involving Professor Steven Salaita who was recently denied an offer to teach at the University of Illinois. Inside Higher Ed was one of the first outlets to report on this:

Many faculty job offers (which are well-vetted by college officials before they go out) contain language stating that the offer is pending approval by the institution's board of trustees. It's just a formality, since many college bylaws require such approval. 
Not so with a job offer made to Steven G. Salaita, who was to have joined the American Indian studies program at the University of Illinois at Urbana-Champaign this month. The appointment was made public, and Salaita resigned from his position as associate professor of English at Virginia Tech. But he was recently informed by Chancellor Phyllis Wise that the appointment would not go to the university's board, and that he did not have a job to come to in Illinois, according to two sources with knowledge of the situation. 
The university declined to confirm the blocked appointment, but would not respond to questions about whether Salaita was going to be teaching there. (And as recently as two weeks ago, the university confirmed to reporters that he was coming.) The university also declined to answer questions about how rare it is for such appointments to fall through at this stage. 
. . .
The sources familiar with the university's decision say that concern grew over the tone of his comments on Twitter about Israel's policies in Gaza. While many academics at Illinois and elsewhere are deeply critical of Israel, Salaita's tweets have struck some as crossing a line into uncivil behavior.

The Huffington post covers the story here.

This incident raises a number of questions, including whether there was an offer of employment, and whether Salaita has a promissory estoppel claim against the university. At ContractsProf Blog, Nancy Kim argues that Salaita may have had a valid contract of employment. David Hoffman replies to her claim here. This case also involves a significant promissory estoppel dimension: Michael Dorf argues that Salaita has a strong claim, Hoffman replies, arguing that the claim would be weak, and Dorf responds here.

Admittedly, this case raises a number of other questions, including whether the university violated the First Amendment, as Brian Leiter argues here. But Hoffman takes that into account, and offers an altered hypothetical where he removes a lot of the other issues from the contract law debate.

I think that this may end up being a contracts exam question because this case involves several levels of analysis, including offer and acceptance, promissory estoppel, and possibly good faith. Some of these questions are easy to answer, and others might be a bit tougher -- which is an ideal way to structure a law exam fact pattern. Moreover, while the Salaita case involves a number of non-contracts issues, as Hoffman's later post demonstrates, the fact pattern can be altered to remove those issues.

On the other hand, this controversy is occurring early in the semester, and law professors might not be thinking about using this fact pattern in their exams at the moment. But this may also count in favor of this case, since the attention it is getting now may die out by the time exams roll around, meaning that students will be less likely to have heard of this story.

With major legal blogs like Concurring Opinions, Dorf on Law, and Justia's Verdict covering this case, it is sure to be on the radar of many professors. Students would do well to take note of this case -- especially the debate between Dorf and Hoffman -- in preparing for contracts exams. In the very least, this is a good exercise for students who want to see arguments for and against promissory estoppel applied to a real case.

No comments:

Post a Comment