Steven Salaita’s Promissory Estoppel Claim is Weak

Not a good fact for PE claim: Salaita's tween that "Zionists: transforming 'anti-semitism' from something horrible into something honorable since 1948"

Not a good fact for PE claim: Salaita’s tweet “Zionists: transforming ‘anti-semitism’ from something horrible into something honorable since 1948”

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 Newtonwhich 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 final board approval.

2.  Would the promisor reasonably expect the promise to induce action? Salaita knew the Interim Dean lacked the authority to make a promise that could be relied upon. Dorf argues that Salaita was told by “Illinois” that Board approval was a rubber stamp. But that’s a figure of speech: Salaita was told by the same person who wrote the letter, who, again, lacked decisional authority. (At least, based on what’s been reported.) If an agent tells you that he doesn’t have authority but that his principal will surely back him up, is it reasonable to rely on that representation? I think probably not.  In the classic PE case of Hoffman v. Red Owl, the promisor is bound by an agent’s promises in part because the principal knew about them. What did the relevant University executives know about the hire before the letter was sent out? It’s my impression that at most universities, Department chairs are approved to hire someone, and the President/Board don’t know who until the final package arrives on their desks.  The only winning case that I can find on facts remotely like this one is Haviland v. Simmons, 45 A.3d 1246 (Rhode Island 2012). In Haviland, “upper echelon of Brown’s administration—including the Dean, the Provost, and the Interim President” made promises, and Brown was thus “precluded from denying that its administrators had the authority to provide plaintiff with employment security because the University has failed to produce any probative evidence establishing that those officers lacked such authority.” Is that the case here? 

3.  Can injustice be avoided only by enforcement of the promise? I teach this provision as a catchall – a way for courts to avoid enforcement if they dislike plaintiffs and permit it if they do. Here, I think a court would focus heavily on the language in the letter and inquire about relevant practices at the University. How many times have job offers been extended only to have met board resistance? How much does the court think that a university’s right to control who works for it is trumped by the benefits of academic freedom. (This obviously ties the injustice prong into a first amendment analysis.) 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. Those tweets would make mighty fine campaign fodder. 

Why am I so skeptical when Mike Dorf is not? I think it’s largely because I’ve read alot of promissory estoppel cases, and a lot of promissory estoppel articles. And the consensus is that over the last generation, promissory estoppel has waned as a theory of recovery. As Bob Hillman famously concluded, it’s a “remarkably unsuccessful” cause of action, which, in my experience, is brought largely in weak cases as a last-ditch shot to push through to discovery and thus motivate settlement.  I think that most contracts professors spend time on the doctrine these days largely because it’s so darn fun — the facts are wonderful! — but not because it’s a regular part of the business lawyer’s arsenal. Promissory estoppel cases are losers. This case would be a loser.  See, e.g., Awada v. University of Cincinnati, 3 Ohio Misc.2d. 100 (1997) (particle group promises of employment not binding); Daniel v. University of Cincinatti, 116 Ohio Misc. 2d 1 (2001) (reliance on faculty promises not reasonable given final trustee approval);Suddith v. Univ. of S. Miss., 977 So.2d 1158  (Miss.Ct.App.2007) (no injustice when after-acquired information about candidate changed president’s mind).

Now, nothing said here in any way suggests I know a thing about the first amendment claim’s merits.  I don’t.  Professor Salaita might have a good constitutional claim, or under some other regime of law. And I agree with Steven Lubet that a settlement is the modal outcome. But, to be snarky, Dorf is right: it’s “an almost-classic case of promissory estoppel.” A weak one.

 

Update: Mike Dorf responds.  My reply follows after the jump:

 1.  I wasn’t pulling rank, I was suggesting that reading lots of promissory estoppel cases makes me believe that underneath the formal requirements of the doctrine there’s a strong wind blowing against recovery. It’s like undue influence and duress defenses: on their face easy enough to make out, almost impossible to win in practice.  Mike says this is “legal realism” and I suppose it is – I’d think more particularly, it’s situation sense in action.  I’m sorry if Mike saw my comments as “pulling rank.” As if such a thing were possible with a person of his reputation.

2.  I did incompletely quote Brian Leiter, which was an oversight. I meant to say  (a) that many liberal law professors think that Israel ought to be treated as a pariah; (b) that many of those professors also think that there’s only one reasonable way to see this case (it is “as clear as they come”); and (c) those two conclusions might not be unrelated to one another.  Obviously, not all (or even not many) liberal law professors would agree with Professor Salaita’s views; fewer still support the BDS movement. To the extent my phrasing lumped Brian or Mike in with groups they didn’t intend to be lumped with, I’m sorry!

3.   The meat of Mike’s argument, bolded below:

“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.”

Are we reading the same letter? I don’t see a promise to present to the board: I see a condition of employment. Actually two – Salaita also has to either be a citizen or obtain a visa (which condition, incidentally, suggests that this is a form letter).  If approval by the board was not forthcoming – for whatever reason, including, I guess, a failure to present it, there’s no contract. Now maybe there’s an implicit promise to present, though it seems odd to me to make recovery turn on whether they formally said no or just told the Chancellor not to ask them. (They can always fix that problem.)  Moreover, as a commentator points out below, if the promise is “we’ll present,” than the remedy should be what was expected, which amounted to “teach here on probation while we present,” i.e., for a year.

“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.”

I agree, and said in the post, that standard University practices matter to the analysis, and Board awareness is also important. I tend to doubt that the trustees knew a thing about what this professor was saying on social media, or elsewhere.  But if I’m wrong, well, that’s a good fact for recovery.  I don’t see in the letter the assurance which made its way on the blogs, which is that this was a rubber stamp process. Was there a side communication?  Perhaps I’m influenced by my own University, where under some administrations (not the current one) such approval wasn’t always so certain.

Finally, Mike tweaks my claim of expertise, saying

“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.”

I don’t think that “all the people and firms bringing estoppel claims” were dupes. First, I don’t think that there are that many cases (though no one has done an analysis of state court dockets to know for sure.)  Second, I  was clear that I think that promissory estoppel claims are brought to get to discovery and thus motivate settlement.  That’s not to say they are “hopeless” or a “plaything.” That’s to say that they are, like commerce clause and statutory interpretation challenges to ACA, seen by the mainstream of contracts professors to be long-shots.

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18 Responses

  1. Jack says:

    Interesting post. My question is: Would it make a difference if, say, 1) no recommended appointment had ever been denied by the board, and 2) the person who made the offer had been authorized by all higher ups to engage in the search and to make an offer?

  2. Dave,

    Nowhere in the post do you acknowledge what seems to be a central fact: after waiting 10 months, Chancellor Wise never submitted Salaita’s appointment to the Board for approval. Perhaps if she had and the Board rejected the appointment, Salaita might not be entitled to promissory estoppel. (Although, as Dorf points out in his convincing response to you today, the University’s regular practice was to seek Board approval after an employee had already started working for the University.) But Chancellor Wise did not submit the appointment; she rejected it herself (again, 10 months after it was accepted) on the ground that in her view the Board would not approve it. Maybe she’s right — or maybe she was afraid that it would appoint someone she found offensive. Either way, I do not see how you could deny promissory estoppel to Salaita, given that he certainly had a right to rely, at a minimum, on the University following the procedure set forth in his letter for the confirmation of his appointment.

    • I’m with Kevin on this cause of action for promissory estoppel. The letter does say it is subject to Board approval but continues to talk of offer and the only thing left being the prof to be’s acceptance of the offer. The facts of the case as known so far are that he accepts in October and makes changes in his life over months thereafter and there is nothing but silence from the Board and the administration is talking about him being a part of the faculty for the fall. That is surely a case that goes to a jury at least and survives summary judgment on the question of promissory estoppel. As someone who handles contracts with tort implications and personal injury cases from the defense, and advises insurers who are covering part or all of the claims, I can assure you I would not be as blithe about the lack of success as Mr. Hoffman is being. And I doubt he would if he was advising the university as to their chances to completely smoke Salaita (I guess I’m pulling rank here myself! :-)). And I also say this as someone who found Salaita’s comments very harsh and deeply intemperate….

  3. Dave Hoffman says:

    Kevin

    Do you have a copy of the actual letter? (If you do, please email to me, as I can’t find it online.)

    I don’t know what Illinois practice was. If, in fact, people ordinarily begin teaching before the approval comes through, the case might be different. The actual – not hypothetical or anecdotal – facts matter, *as my post clearly states.* But I do know that merely delaying 10 months doesn’t matter if, as in most universities, many different hires are considered by the provost and board together over the summer.

    Jack, yes I think that the university’s practice matters. I don’t think approval to make an offer alone so long as the board retained authority to say no to particular people on the back end. Else why retain that authority at all?

  4. Dave,

    You can find it here — along with the recission email (!).

    http://www.news-gazette.com/sites/all/files/pdf/2014/08/13/14-529.Documents.pdf

    Would be curious to know how it affects your analysis.

  5. You might also take the time to read this analysis of Salaita’s tweeting:

    http://mondoweiss.net/2014/08/reading-salaita-illinois-1.html

    You may still find the tweets highlighted by Cary Nelson and the University to be offensive, but they need to be read in context — which Nelson didn’t. (Indeed, he admitted he knows nothing about twitter and claimed that each individual tweet stands on its own, which is obviously unfair.) If nothing else, a fuller look at Salaita’s tweets make clear that however critical of Israel he may be (which is not surprising, given his Palestinian background), he is anything but some kind of anti-Semite.

  6. Query says:

    A tenured position at a public university — particularly when given to a young scholar — means the commitment of several million dollars from the public fisc. It’s certainly reasonable for state law to provide that such commitments can only be made by the highest level actors responsible for the university’s budget — i.e., the regents.

    If actions by a lower-level administrator, such as a department chair, can result in an enforceable promise that is in all intents and purposes the same as that action by the regents, then that check-and-balance, designed to safeguard the management of the public institution, will be defeated. It seems to me that, as a matter of state governance law, that’s a terrible result. And perhaps it should be considered barred by sovereign immunity. (Compare the antideficiency act in federal law — which makes promises of federal payment a crime if they’re in excess of congressional lay granted authority.)

    To the extent there’s an estoppel claim, then, perhaps it should be limited to the one academic year that he was evidently prepared to begin teaching while he waited for the tenure approval.

  7. Lawrence Cunningham says:

    Interesting debate. There is a further problem concerning promissory estoppel under Illinois law, which is the statute of frauds. It likely applies to a promise of life time tenure and I cannot tell from the facts whether a written memorandum of the promise was ever rendered. See generally Dumas v. Infinity Broadcasting Corp., 416 F.3d 671 (7th Cir. 2005) (applying Illinois state law). Here is the relevant section of the Illinois statute of frauds:

    “No action shall be brought . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”

  8. Lawrence,

    Not my area of law, but the offer letter, which Salaita accepted, specifically noted that the appointment included indefinite tenure. You can find the letter at the link I posted above.

    • Bloix says:

      The letter you link to says it is a “recommendation for appointment” and that it is “subject to approval.” This is not ambiguous language – it clearly provides that Salaita cannot form a binding contract by accepting. This sort of thing goes on all the time – Agent A solicits B to agree to terms, which do not become a binding contract until A’s principal C agrees.

      This is why Salaita’s supporters have to spin a promissory estoppel theory instead of asserting a straight contract claim. Their problem is that their leading case (Newton Tractor) did not involve a written disclaimer like this. Until someone shows me a case in which PE trumps a contrary writing (and the case may exist), I’m going to continue to believe that PE is irrelevant to this dispute.

  9. Andrew F. says:

    Dorf fails to recognize that the letter is only part of the correspondence sent to Salaita.

    Enclosed with the letter is a statement containing general terms. This statement reiterates that the Board must approve any appointment.

    Moreover, and perhaps most damning, the statement explicitly notes that it only provides excerpts, and that for the full terms the applicant should consult the governing Illinois statutes, which are cited.

    Those statutes clearly state that the hiring process is as follows: the dean transmits a recommendation to the Chancellor or applicable Vice President, who then may recommend appointment to the Board, who then may decide whether to actually make the appointment.

    See my comment here for the relevant quotations.

    I link to the full correspondence in earlier comments.

  10. Andrew F,

    It’s a bit convenient that you ignore the text of the actual offer letter that Salaita signed, which clearly states that the appointment is subject — and by implication only subject — to approval by the Board of Trustees. Nowhere in the actual offer letter does it state that the process for confirming the appointment specified is subject to modification by a provision in a University statute that the letter does not directly reference and that was not even included with the letter. Indeed, the actual offer letter refers to the included partial document as containing “general terms of employment,” not “general terms of appointment,” and the “general terms of employment” specifically state that the terms apply to “academic staff members” — ie, those that have already been appointed. The idea that a court would ignore the plain text of the actual offer letter in favour of a provision never referred to in that letter and only available by clicking a l, especially in the context of promissory estoppel is thus more than a little unconvincing, especially in the context of promissory estoppel.

    • Andrew F. says:

      The letter doesn’t stand by itself. It does not purport to set out the full conditions of Salaita’s appointment, and it is for that reason that more specific terms are included in the enclosed document and in the statutes referenced in that document. Those specific terms are as plain, as clear, and as important as the information contained in the letter. The title of the document means little given that the very first section governs the procedure to be appointed. Content ordinarily trumps a questionable interpretation of a title or section heading. When the cover letter explicitly describes itself as a recommendation subject to approval, when the general terms attached further state as much, note that they are not exhaustive, and direct the reader to the specific statute describing the process, it is very hard to believe that it is reasonable to ignore all of this and construe the letter as though it were sent by itself. The case for PE here relies on the court finding reasonable an entirely selective ignorance by the potential plaintiff of material terms and conditions that constituted in large part the substance of what he was being offered. I recommend the court reject that proposal, but my recommendation is subject to their approval.

    • Stash says:

      Actually surrounding law is usually read into any contract, and what the law is we are all presumed to know. In other words, if the offer had been unconditional, yet the trustees failed to approve it, there would be no contract because the offer would have been at least ultra vires, if not illegal. As far as the government is concerned the doctrine of “apparent authority” does not apply. The Illinois Supreme Court says:
      “anyone dealing with a governmental body takes the risk of having accurately ascertained that he who purports to act for it stays within the bounds of his authority , and *** this is so even though the agent himself may have been unaware of the limitations on his authority .” Patrick Engineering, Inc. v. City of Naperville , 2012 IL 113148.¶ 36

      In the case cited above, an engineering firm was told it must take a six figure bath if the city official who told it to go ahead and do the work didn’t have actual authority to do so (as the city claimed). Estoppel was not available. The court also states generally that estoppel is not favored against municipalities except in egregious cases, and my guess is it would be even less favored against the state. Someone in this debate should look it up as my quick research is at an end.

      The delay is troubling, because the University let him rearrange his life while it sat on the decision, but you again run into state privilege in the form of the maxim: “nullum tempus occurrit regi” (“time does not run against the king”). Unless a statute required the trustees to act on the matter within a certain time, arguably one could not reasonably rely on the government acting promptly (and who does?)

      In short, whether or not there is classic “promissory estoppel” here may never be decided because the State may be immune from it or not subject to a necessary element to build it.

  11. Stash says:

    Am I missing something, or is the reliance here not on the promise, but on the representation that the trustees would approve the appointment? If the latter, isn’t this just a prediction or opinion that would not be actionable, unless it was fraudulent because it was said knowing that approval was actually unlikely or not forthcoming as a certainty? It may be a prediction on which a reasonable person would rely, but there is no estoppel for predictions.

    Is the argument here then that he was “promised” that the trustees would grant approval? The words might matter, but even if it was framed as a promise, it seems that a reasonable listener would construe it as a prediction, because the speaker is representing what others will do. E.g., “I promise so-and-so will win the election” is generally not taken to be a promise at all, even if made by Nate Silver.

    Or, have I missed the boat entirely because representations concerning the promise served to transform it from a conditional promise to an unconditional one?

    Second, is “indefinite tenure” an industry term that takes this out of Illinois’ harsh employment-at-will doctrine that tends to trump promissory estoppel in the employment context? Seems like it would if “tenure” carries with it the agreement that he could only be fired for cause.

    Just asking.

  12. Karen says:

    Promissory Estoppel is an equitable claim and, as such, a “clean hands” element will come into play. I have a hard time believing that a court would give the benefit of such a claim, under these facts, to a person who publicly wrote the following:

    “Rednecks need a new slogan. Instead of “kick their ass and take their gas,” how about “#Gaza is a disaster, but Netanyahu is my master”? (Aug 2)

    “Republicans are such tough guys, eager to kill 4 God and country. #Israel slaps around the US of A, though, and all they do is ask for more.” (Aug 2)

    “#Israel is rounding up people and murdering them at point-blank range. The word “genocide” is more germane the more news we hear. #Gaza” (Aug 1, without referencing any source for the charge)

    “#Israel’s message to #Obama and #Kerry: we’ll kill as many Palestinians as we want, when we want.

    p.s.: fuck you, pay me.

    #Gaza”

  13. Eric Rasmusen says:

    How about this argument? —The Department led Salaita to believe that the Trustees *had* approved the offer at some point after he accepted it. We’d need evidence, but I’m sure it exists, in the form of telling him his office number, what courses he would teach, helping him find a house, and so forth.

    Otherwise, could a university hire a professor on the condition that the Trustees approve the offer, deliberately hold off on putting his name before the Trustees, and then say two years later, “Sorry, you were never approved. You don’t have a job here.”

    (Note that in the Salaita case the biggest problem is that apparently Illinois doesn’t allow contract claims based on the apparent authority of a government agent. But it’s interesting to ask what would happen in the absence of such a statute.)