Fight The Hypo » Hypos

Stop and Smell the Lawsuits: GW and Those Troublesome Evening Law Students

Magnus Wellborn — Mon, 12 Oct 2009 14:46:14 +0000

Every now and again, we all need a diversion from the rigors of work and law school. Being devoted law students, however, we don’t have time for real pleasures or dalliances like stopping to smell roses, so we must find joy in that last remaining respite: daydreams of suing Deep Pockets. This is the first of hopefully many (or at least several) distractions I can provide you with as we collectively dream about those large negotiated settlements, jury awards, and attorney’s fees.

Sherpa and I came up with the idea for this feature last week as we discussed this story. If you haven’t already heard, The George Washington University Law School (nice title, but it’s no The Catholic University of America, Columbus School of Law) dropped in the U.S. News & World Report Rankings, from #20 in 2008 to #28 in 2009. Senior Associate Dean Greg Maggs blamed the tumble on U.S. News’ decision “to count full-time and part-time students mixed together.” Apparently U.S. News made this decision “without giving [GW] any notice.” How did GW respond? The same way any reasonable law school would respond: by slashing the size of the evening program so there are now fewer slots for those underachieving part-time dolts!

Personally, I think GW’s ranking at #20 was an inflated ranking based on incomplete statistics. They haven’t accepted worse students in the last year. They just had to disclose data that they’d previously swept under the rug. It’s no secret that many law schools have gamed the system to achieve higher rankings. There are plenty of stories of schools admitting students with lower GPAs and LSAT scores into part-time programs to avoid reporting those credentials to U.S. News, only to then transfer those same students into full-time programs after making the report. In that case, GW has always been around a #28 school, but it was able to manufacture a #20 ranking through gamesmanship. And now GW has taken steps to once again manufacture a higher ranking by allowing fewer students into its school. They’re taking less tuition money now to appease U.S. News and increase their prestige so they can have higher contributions from alumni later.

The point, though, is not that GW may have made a bad decision and done wrong by its evening students. The point is that U.S. News wields an incredible amount of power over law schools. U.S. News giveth, and U.S. News taketh away. And its 200 or so law school lapdogs bend over backwards for the chance to move up incrementally in the rankings. Moving up a few slots in the rankings is cause for much celebration and rejoicing; moving down a few slots is cause for weeping and gnashing of teeth.

U.S. News pulls the strings, which is why I dream of suing them. I think I could do it if the Perfect Client walks through my door. Imagine:

Perfect applied to GW’s part-time program, but was not admitted after GW slashed the size of its part-time program from 100 slots to 50 slots. Perfect found out GW ranked him as the 52nd-best candidate, so he easily would have been admitted had GW not reduced its class size. GW cut its part-time program solely as an attempt to increase its standing with U.S. News and to get a higher ranking. U.S. News, then, is directly responsible for GW denying admission to Perfect.

U.S. News would argue that there are about 200 ABA-accredited law schools in the country, and if Perfect was almost good enough to get into GW’s part-time program, he is certainly good enough to get into numerous other programs. But let’s assume that other law schools follow GW’s lead to such an extent that Perfect is denied admission to Tier 1 schools and now must attend a Tier 3 school. This leads to (arguably) a lower-quality education which leads to lesser job prospects and lesser career earnings. In that scenario, the actions of law schools to appease U.S. News and regain their illusory higher rankings have had a significant impact on Perfect’s life.

U.S. News would counter that nobody has a right to go to law school and that law schools should be free to exercise their autonomy to make determinations regarding admissions standards and class sizes. But it’s arguable that, while Perfect does not have a right to go to law school, he has the right to a free and equal opportunity to compete, which U.S. News denied. U.S. News denied Perfect this opportunity because its ranking system creates an inflated sense that some schools are of a higher caliber than they truly are, and this leads those schools to deny admission to qualified candidates who are otherwise capable of succeeding at those schools. U.S. News would counter that Perfect had an adequate opportunity to compete during the application process and simply failed to secure a slot. Perfect would probably reply that the application process was neither free nor equal because U.S. News’ influence on the law schools he applied to skewed it from the start.

It’s a tough case, but I think it’s colorable. What do you think? Any other theories on going after U.S. News? Any antitrust whizzes out there who have ideas about whether U.S. News’ monopoly (or at least current predominance) in the rankings game could saddle them with any duties that they arguably violated? Anyone want to be my co-counsel? Better yet, anyone want to be my Perfect Client?

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The Subway Hypo

Casebook Sherpa — Wed, 25 Feb 2009 04:33:19 +0000

Tonight in Con Law we started on nonverbal conduct as speech warranting First Amendment protection and finished up the classes of speech that can be regulated with a quick overview of commercial speech.

Because one of the examples our professor used as a permissible regulation was burning things in your fireplace, I got to thinking on the way home about Subway.

You know what I’m talking about. Subway bakes its own fresh bread. If you walk by one of their restaurants at various times during the day your nostrils inhale that sweet, sweet smell of fresh baked bread. I swear it’s not really bread baking but a commercially produced scent that they vent into the air. Either way, it’s gotten me thinking about whether a city could regulate the release of such wondrous odors into the air.

Initially I’d think the answer is yes, but I’m interested in taking my learning for test-drive here. Feel free to critique. Could Subway argue that it is engaging in a constitutionally-protected form of commercial speech?

Now I’m just taking my learning for test drive here, but to do so I think because it is not actually using verbal or written words, Subway would need to argue that such nonverbal conduct was intended to communicate a message and that its audience understood Subway to be communicate some sort of message.

Then Subway would need to show that the ordinance was related to supression of the company’s intended expression. To show that Subway would argue that the city’s interest – presumably preventing the use of undue influence over unsuspecting passers-by who can’t help but stop and buy a $5 footlong – is threatened by the communicative impact of the expression. Here, Subway would say that the intended impact is to tell potential customers they can expect fresh baked bread, certainly a major selling point for choosing to eat there.

Assuming we got that far, the speech at issue would need to be inviting the audience to enter into a commercial transaction with Subway. The restaurant’s stated intent is to create a more welcoming atmosphere for its customers so as to make money. That seems pretty clear-cut to me.

Next, the court would be unlikely to uphold a blanket ban on such speech if, indeed, it is inviting customers to enter into a lawful commercial transaction. As far as a I can tell, there’s no law against eating a Subway sandwich. (Though one could argue that the Chicken Bacon Ranch on wheat is so good it should be illegal.)

So the city would need to argue that its limited ban on certain bakery-induced emanations from culinary establishments create some sort of harm that the city is justified in remedying. Specifically the city would need to argue that it has enacted a narrowly tailored ordinance that directly advances a substantial interest.

The substantial interest can’t be such that it seeks to save consumers from themselves, but could include preventing minors from smoking or preventing deception by attorneys marketing legal services, for instance. This ordinance would likely be struck down on this point. But for sake of argument, let’s say it’s not.

To directly advance a substantial interest the ordinance would need to materially alleviate the harm. I’m not sure there’s even a real harm here, unless the city has developed a body of research that suggests that odors contain a harmful chemical or is otherwise harmful by, let’s say, inducing consumers would otherwise avoid buying a sandwich at Subway into buying sandwiches thus creating vast financial and health problems in the area because there’s no way to resist the temptation. (Kind of like The Colonel with his wee-beedy eyes and his secret addictive ingredient.)

We’re really reaching now on the narrow tailoring issue, but the city could argue that it has made a reasonable request of Subway to combat what is either deceptive marketing practices or the cause of childhood obesity and diabetes. Though if we assume that Subway is deliberately venting this odor into the air who’s to say the ovens don’t naturally give off such scents, making any effort to completely curtail the release of such odors into the air nearly impossible without designing a specialized oven and airtight restaurant.

So, in my brief and admittedly rough sketch here, Subway could probably prevail on a claim against such an ordinance. Anyone care to take another view?

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Dram Shop Liability (for Lousy Drinks)

Dr. Bombay — Mon, 07 Apr 2008 13:27:25 +0000

So Mrs. Bombay and I were at a wedding this weekend in Philadelphia, and stopped off for a drink with some friends for a drink. The selected venue was an establishment called The Continental, which holds itself out to be a martini bar. I sat down and ordered a pair of “Dirty Goose Martini’s, Straight Up.” What I should have received was a Grey Goose Vodka martini, made with olive brine instead of dry vermouth. What I got was a warm glass of vodka, sans brine, which cost me $12. In thinking about it since, I’ve convinced myself that the problem was one of construction. The glass was not chilled prior to pouring in the contents of the shaker, which doomed it.

Now I know some of you are going to think it cowardly for me to slam this restaurant anonymously after the fact, or wondering why I just didn’t send the drink back. I think the answer is that I’m a coward who likes to stew about things. But I’ve also been fascinated by the notion of the drink order as an implied contract, and remedies available to me for a violation thereof.

Growing up in D.C., there was always this story (that I considered apocryphal) about the now defunct Blackie’s House of Beef. On the menu of this legendary steakhouse, it clearly stated “We do not serve Coca Cola Products.” The story goes that a traveling representative of the company ordered a “Rum and Coke” but was served a Rum and Pepsi instead. He detected the difference, and the Coca Cola promptly sued Blackie’s, winning a judgment based on the claim that “Rum and Coke” was a specific combination of products, and that he did not get what he had contracted for in his order.

So my question is, when I order a “Dirty Goose Martini’s, Straight Up,” have I entered into an express oral contract with specific points of performance? Do I have a cause of action if the drink is lousy? And though not mutually exclusive, is it possible that I’m just a jerk?

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Fight The Hypo Award: Mommy On The Floor

Casebook Sherpa — Fri, 15 Feb 2008 10:56:05 +0000

I was going to call this the “Friday Fight The Hypo Award” but who has time to award something every week?

So our first official and illustrious “Every Now and Then Award For Fighting the Hypo” goes to, Mommy on the Floor.

She writes:

I was on call for Torts. The professor kept asking if I had a duty of care in certain situations. If I am a homeowner, do I need to try and rescue a trespasser who has fallen in quicksand? What about a bear trap? I wasn’t really sure so I was hemming and hawing. A few weeks ago, he had talked about sea captains and how they have a duty of care to the crew because he is pretty much the only one who can rescue them. Apparently, this is analogous to being a homeowner. He said, you have a duty of care because its like you are a sea captain.

So I am typing along and my friend who sits next to me starts to laugh. She points at my screen. I had written,

“If someone gets caught in a bear trap, you have to help them because you are the sea captain.”

When will this stop being funny? It just made me realize how ridiculous these hypos are. Am I going to be defending sea captains? Are we plagued with bears and everyone is running out and planting traps?

But I promise you, if you fall into quick sand on my property, I will help you. I have too, because I am the sea captain. Aye Matey!

Fight on, Mommy. Fight on!

(H/T to Divine Angst for the heads up on this post; check out the law school roundup that she and Evan Schaeffer put together each week)

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Best. Mix Tape. Ever?

Casebook Sherpa — Thu, 03 Jan 2008 19:58:55 +0000

So here’s your hypo for today. If you could record a mix tape (or a “CD” for you hipsters out there) of the best music ever, what would you put on it?

Here’s what would have to be on mine, in no particular order:

“Born In the U.S.A.” by Bruce Springsteen
“Blister In The Sun” by Violent Femmes
“We’re Not Gonna Take It” by Twisted Sister
“And We Danced” by The Hooters
“We Got The Jazz” by Tribe Called Quest
“Even Flow” by Pearl Jam
“9-1-1 Is A Joke” by Public Enemy
“Don’t Stop Believin” by Journey
“Meant To Live” by Switchfoot
“Cantaloupe Island” by Herbie Hancock
Multiple U2 songs

What’s on yours? Keep in mind that the RIAA might sue you for doing it… so make it good!

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Friday Hypo: Suing George Mitchell

Casebook Sherpa — Fri, 21 Dec 2007 18:15:43 +0000

Here’s a hypo right out of a Civil Procedure exam (and inspired by this excellent discussion):

What if Roger Clemens sued George Mitchell over the steroids report?

The facts (as I understand them):

Major League Baseball contracted with Former Maine Senator to investigate the use and abuse of steroids by baseball players. He was given the full blessing of the league and his contract included an indemnification clause shielding him (to an as-yet-unknown extent) from liability.

The 400-page report delivered by Senator Mitchell included many copies of checks and press reports detailing the use of steroids. It named some 80 players as having used performance enhancing drugs over the last decade, including likely Hall of Fame pitcher Roger Clemens. Senator Mitchell has suggested publicly that he is certain use runs much higher.

His report also relied in large part on the testimony of two men. One source is Kirk Radomski, a former Mets clubhouse attendant. Radomski has struck a deal with federal prosecutors in exchange for his cooperation in their investigation of the drug use. Brian McNamee is a former trainer who claims to have personally administered steroids to Roger Clemens and who is also cooperating with federal investigators.

If Clemens were to sue, who would he sue? To what extent can he access the testimony of Radomski and McNamee? Can he get at the records of Mitchell and his investigation team? What other issues must Clemens consider in deciding whether to file a lawsuit?

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