A Lottery Winnings Contract Hypothetical

Due to the overzealous sharing of dubious content, this Facebook Post showed up on my news feed earlier this evening. Here's a photo of the post:

Unless you expand the photo, the writing may be difficult to read. The photo shows several Mega Millions lottery tickets under the following text:

October 22, 2018
Mega Millions Proposition
I Christopher Ferry, herby [sic] agree to equally share 100% of the earnings I win from the Mega Millions drawing on Tuesday, October 23rd, 2018 with all parties that like, share and comment on my Facebook post that states this propostiion [sic]. This is an official legal document that can be used in the court of law. 

It's then signed, presumably by Christopher Ferry. The writing is in all capital letters, so I took the liberty of guessing at the intended capitalization rather than hurt your eyes.

After liking, sharing and commenting on the post (just kidding), I made the foolish mistake of reading the comments. There seem to be many people out there on the Internet who are confused about the basics of contract law. 

To those confused souls, I now say, you're welcome.

A surprising number of very confident commenters on the post noted that the document was not legally binding because it was not notarized. This is nonsense. While notarization may be required for certain documents or agreements, parties can enter into contracts with each other without notarization. Take, for example, oral agreements, or the website terms of service for reading this blog post, which state that by reading this I now own a small, yet noticeable percentage of your soul and that you are required to enter into binding arbitration with me to prove otherwise. This story of a winning lawsuit to claim a portion of lottery winnings as a result of a verbal agreement is yet another example. People can, and do, enter into non-notarized contracts every day. 

A smaller number of commenters speculated that the document may not be legally binding because it had numerous spelling errors. While spelling errors may occasionally be of legal significance (by misidentifying parties or terms, or injecting vagueness into the agreement), the errors here do not appear to have this effect. If spelling errors meant doom for legal documents, than a disturbingly massive percentage of contracts, pleadings, and judicial opinions would be rendered void.

Some other folks point out that the document is not legally binding because there is only one signature on it. A contract, they think, needs to be signed by all parties that are bound by it. This does not appear to be the case here, however, as Ferry's post is an offer that invites acceptance by performance. Ferry indicates that to accept his offer of sharing the earnings he receives, a party need only "like, share and comment on my Facebook post that states this propostiion [sic]." Once a party has done that, that person or entity will have fulfilled their end of the agreement.

On a related note, if Ferry ends up winning, a likely way he will whittle down the number of those who may have a claim against him will be to refuse to compensate anyone who did not completely perform their side of the agreement. Ferry notably requires that parties "like, share and comment" on the post, so anyone who only likes, or only comments would not have fulfilled their end of the bargain. His comments could make this issue a little more interesting, as he states that only those who "LIKE / SHARE / COMMENT" are eligible -- but these comments are parol evidence which some courts may deem inadmissible (particularly since the terms of the contract itself are fairly clear). And even if Ferry's comments are considered, they do not appear to contradict the terms of the agreement.

In short, the offer may give rise to a binding contract, provided that the party claiming to accept the offer has liked, shared, and commented on the post.

Unfortunately for Ferry, if he wins anything in the lottery, he will be required to share those winnings with anyone who fulfilled the requirements that he posted. Whether that is $1.6 billion or $2.00 -- Ferry agreed to share "100% of the earnings" that he would win, rather than limiting his performance only to a situation in which he won the jackpot. At the time of this writing, there are only about 30 minutes to go, but it will be interesting to see if Ferry wins a substantial amount, but less than the jackpot, as this may be enough for certain delightful people on the Internet to seek to recover their $1.32 to which they are entitled.

It's also fun that Ferry states that the document "can be used in the court of law." 

Good luck to Mr. Ferry, and to all others out there who, like me, are excited for their inevitable life of leisure once the winning numbers are announced.

Fish, the Fourth Amendment, and the Scope of Consent

It's always a pleasant surprise to see legal disputes that involve fish for nonsensical reasons, particularly fish-related disputes that may be heard by the United States Supreme Court. Cases involving salmon are of particular interest (see, e.g. here and here). 

I was therefore thrilled to see this report by James Gill of the New Orleans Advocate on the case of Jacson Moore, who thought he could successfully smuggle marijuana inside of frozen salmon. Moore thought wrong:

Baton Rouge police were staking out the UPS depot in Port Allen in 2012 when they noticed a package from Oakland, California, which is evidently the source of many illegal drug shipments. The package was addressed to Moore, who has a police record that would heighten suspicions that drugs were inside. 

The police department, of course, has sniffer dogs that could have settled the issue, but K-9 was not called in. Neither was a search warrant applied for. The cops just kept tabs.
Moore retrieved the package from his doorstep, re-emerging a little later with a Styrofoam container he put in the trunk of his car. He then drove off on an erratic path that indicated he was “heat checking” — trying to make sure the cops weren't on his tail. But they were, and, after 15 zigzagging minutes, he was pulled over. 

A rule of thumb might be that an offender with contraband in his car is best advised not to consent to a search, but Moore did so after being told that the police who stopped him were investigating an armed robbery. He evidently figured that nobody seeking the fruits of a heist would look twice at a few frozen members of the finny tribe. 

When the cops did, he said the fish were a present from his aunt. Officers cut them open and found the dope. Moore also gave them permission to search his apartment, where they found more cannabis and a gun.

Moore argued that the search was unconstitutional, and while the trial court agreed, its decision was overturned on appeal. The Louisiana Supreme Court declined to hear the case although Justice Crichton and Justice Weimar dissented. Joe Gyan Jr. of The Advocate reports that Moore is now trying to appeal to the United States Supreme Court:

In a legal brief filed at the Supreme Court, Messina claims the officers did not have probable cause to believe contraband was in the car, and he says Moore's consent to search the car was not freely and voluntarily given because officers lied about investigating a robbery. 

Messina acknowledges that officers can use deception during interrogations, but he stresses that such interrogations must be preceded by police informing the suspect of certain constitutional rights, such as the right to remain silent. 

"There is a distinction between misleading a defendant once he has relinquished a Constitutional right versus misleading a defendant in order to cause him to relinquish a Constitutional right," he argues in the Supreme Court documents.

There had better be a bit more to Messina's argument, since police can lie in order to gain consent for searches or entry onto property. No less a Fourth Amendment stickler than Justice Warren held that officers can lie about their identity to gain access to property in order to find evidence of drugs.

This is not to say that officers' ability to deceive is unlimited, nor is it to say that Moore does not have a decent Fourth Amendment argument. Indeed, the officers' lie about what they were searching for (evidence of an armed robbery), and the scope of their ultimate search raises significant constitutional concerns. But this case is not so much one of deceit as it is a test of the scope of consent in the Fourth Amendment context.

Police officers can ask for consent to search a suspect's home, vehicle, or person. If officers obtain consent to conduct a search, incriminating evidence that they discover can be admitted at trial. There are limits to the consent exception to Fourth Amendment protection. For one, the consent must be voluntary. Additionally, officers cannot exceed the scope of the authority they are granted by the subject's consent. As Justice Stevens wrote in Walter v. United States:

When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization. Consent to search a garage would not implicitly authorize a search of an adjoining house; a warrant to search for a stolen refrigerator would not authorize the opening of desk drawers.

Moore consenting to a search of his vehicle puts him in a tough position, as the Court held in Florida v. Jimeno that giving officers consent to search a vehicle permits officers to search containers within the body of the car. A search of the trunk is a bit more complicated, though. From the Jimeno decision:

The facts of this case are therefore different from those in State v. Wells, supra, on which the Supreme Court of Florida relied in affirming the supression order in this case. There the Supreme Court of Florida held that consent to search the trunk of a car did not include authorization to pry open a locked briefcase found inside the trunk. It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag.

So under Fourth Amendment law officers can search a closed paper bag in a trunk, but (as the Court noted in some very strong dicta) not a locked briefcase in the trunk. What about the interior of vacuum sealed salmon that are inside a Styrofoam container in the trunk of a car?

The fish in Moore's case are far more analogous to a closed, locked container than a closed paper bag. Officers had to open a Styrofoam container, cut through vacuum sealed wrapping, and open up the fish before they found the drugs. Moore therefore has a strong argument that the officers went beyond the scope permitted by his consent to a search of the vehicle when they searched the fish in the trunk.

Moore's argument is strengthened by the fact that the officers said that they were looking for evidence of an armed robbery when they obtained Moore's consent. In granting the officers consent to search his vehicle for evidence of an armed robbery, Moore likely did not expect that officers would extend their search to the interiors of vacuum sealed fish in the trunk of his car, and has a strong argument that the officers' search went beyond the scope of the consent he granted.

Based on the facts that have been reported, the ideal outcome would be for the United States Supreme Court to grant certiorari and reverse the Louisiana Court of Appeals' decision. Based on the percentage of cases that the Supreme Court agrees to hear, however, I think that such an outcome is unlikely. Accordingly, Moore is most likely out of luck.

As a final note, while this post may be a bit last-minute for law students this semester, this case is a fantastic basis for a criminal procedure exam. Students studying for exams now (and next semester) should take note of this case and the many issues it raises. There may just be a few professors out there who think that this story would make a solid issue-spotter.

Sorry Iowa, Political Robocalls Are Protected by the First Amendment

While I currently live in California, I spent most of my life in Iowa, and I regularly visit my family in Iowa around the holidays. It is nice to go back, but if it happens to be a month before a caucus, I find that the phone rings off the hook with repeated robocalls from various candidates -- a phenomenon that I simply do not experience now that I live in such a politically irrelevant state. During my 2012 visit home I would try to guess which Republican candidate would greet me with their pre-recorded voice -- Michelle Bachmann and Newt Gingrich were the safest bets.

If somebody had proposed banning these robocalls, I would have welcomed the proposal without hesitation. But, according to the Federal District Court for the Eastern District of Arkansas, my enthusiasm would have been misplaced.

So reports the Wall Street Journal Law Blog:

Political robocalls may be an irritating feature of modern campaigning, but that doesn’t mean they don’t deserve protection under the First Amendment, a federal judge ruled. 

A decision handed down Wednesday in Arkansas federal court struck down a state law passed 35 years ago that banned political robocalls. The statute restricted commercial robocalling and also made it unlawful to solicit information “in connection with a political campaign” using an automated phone system for dialing numbers and playing recorded messages. 

. . .

The state attorney general’s office defended the robocall prohibition as a justifiable effort to respect people’s privacy interests and protect them from unwanted intrusions into their homes. They also argued that the law prevented “the seizure of phone lines, which could interfere with emergency calls being placed or received.” 

U.S. District Judge Leon Holmes was unpersuaded. He said the state’s motives would be more convincing had the law targeted robocalling more broadly.

The full text of the opinion is here.

Content-based restrictions on speech must pass the difficult "strict scrutiny" test -- meaning that advocates for the law must argue that the law is narrowly tailored to achieve a compelling government interest. The Arkansas law and the courts ruling on it present an interesting case in which the law was deemed underinclusive -- that is, the government interest in preventing privacy violations from automated calls is only partially served by a ban on one subset of automated calls. Often, in the context of freedom of speech, it is more likely that a statute will be deemed overinclusive in that the law prohibits too much speech to be narrowly tailored to achieve its goal.

It looks like Iowans and others will continue to suffer political robocalls. Additionally, if I were a law student, I would take note of this case, as its emphasis on underinclusiveness highlights an aspect of strict scrutiny that is often unaddressed, and that may be likely to make its way onto a future exam...

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.

Wall Street Journal Law Blog Issue-Spots Potential Federal Courts Exam Question

When I was in law school, one of my hobbies was attempting to predict the content of law school exams. I've been fairly successful in predicting exam questions, and I go into more detail here on how students may go about predicting the content of exams.

Here, I would like to offer a specific prediction about next year's exams: I think that there is a good chance that federal courts classes offered during the upcoming fall semester may include House Speaker John Boehner's plan to sue President Obama as a fact pattern. Boehner has stated that President Obama's use of executive orders is unconstitutional and plans to sue, claiming that the President has "not faithfully executed the law."

Going into the potential causes of action Boehner may claim and addressing the merits of the lawsuit is something I don't have the time to do in this post. But I would direct those interested in learning more to the Wall Street Journal Law Blog's informative post on the lawsuit, which concisely outlines many of the potential avenues the lawsuit may take and the obstacles it may face.

Students in particular may want to look over the Journal's post, since its coverage of the various facets of the case provides a good outline for a possible issue-spotting answer to an exam question that asks students to discuss the merits of the lawsuit.

I think that this issue is likely to come up on fall federal courts exams because it is a rare example of media coverage of a lawsuit that primarily revolves around federal courts questions. While issues of standing and political questions are often too technical for mainstream media coverage, this case is being aggressively publicized (probably for political purposes), and the high profile nature of the parties involved has gotten the attention of many national news outlets. There is a possibility that this issue could be tested in the spring, but that may depend on whether this lawsuit continues to attract coverage.

Of course, if this issue continues to draw media attention, it might become so well-known that it would not be a practical item to include on the exam. If most students have heard about the lawsuit and read ongoing, in-depth media coverage, this could end up leading to uniformly thorough answers. As a caveat to this caveat: some media outlets may cover this issue more than others, and continuing coverage by select networks (especially those that are not frequented by most law students or professors) shouldn't count too much against the probability of this issue being tested.

While predicting exams is no science, a newsworthy lawsuit in an under-publicized area of law coupled by a nifty blog post that issue-spots the lawsuit is probably worth a moment of a student's attention.

Predicting the Content of Law School Exams

Writing outlines, reviewing notes, and doing practice exams are all useful ways to prepare for final exams in law school.  But nothing compares to reading the prompt on an exam and realizing you have read the case or news story on which the exam is based.  Knowing the fact pattern and the important issues of your exam beforehand will greatly reduce the surprise/panic of the exam environment, and enable you to spot the smaller facts and issues that the professor hides beneath the obvious points.

I am not being purely theoretical here -- at least one exam I took last year had a question based on a case I had read for another class.  My answer to that question was particularly thorough, and my confidence on the exam as a whole was greatly increased.  I also have a decent track record when it comes to attempting to predict the subjects of exams.  Last semester, I successfully predicted at least two of the issues involved in two different exams (and I would have correctly predicted the content of a third exam had anybody in that class asked me to speculate).  My predictions were based on the strategies that I discuss in this post.

Here, I provide some tactics students can use to predict the types of fact patterns that you will encounter on a law school exam.  Of course, these strategies will be most useful if the exam will be formatted as an issue-spotter exam based on a set of facts that the professor provides.  But taking these steps will help students understand a class's subject matter at a deeper level, and apply the law to new fact patterns, and this type of studying will likely help prepare students for any exam.

As an aside, students should consider taking these steps in any areas of law where they have a particular interest -- I have found that these steps are a good way to engage in an area of law, and to pinpoint important issues that have yet to be resolved, and cases that may end up having significant impacts.