Over at Concurring Opinions, Dave Hoffman explains why he thinks Professor Dorf is wrong (and, in the process, suggests that promissory estoppel is a doctrine more favored by legal academics than the courts). Among other things, Hoffman notes, the letter of appointment Salaita received clearly indicated that the offer was contingent upon board approval and Salaita understood that the author of the letter, the Interim Dean, lacked the authority to finalize the appointment. He writes further:
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.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.
SECOND UPDATE: Steven Lubet adds additional thoughts at The Faculty Lounge. Note also that Hoffman’s post has been updated with a reply to Dorf.
THIRD UPDATE: More from Hoffman here.