Steven Salaita’s Promissory Estoppel Claim is Weak
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 Newton, which 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.