Thursday, September 18, 2014

DePauw sexual assault injustice

KC Johnson writes about the DePauw case here.

Johnson writes: ". . . Judge Lawrence nonetheless granted a preliminary injunction, arguing that DePauw violated its contract (the university bulletin) with King."

Actually, we should not talk about the judge as "arguing" a point he decides. In writing a judicial opinion, a judge does not "argue" -- he is not an advocate for one party or another.

Here is the most important aspect of the decision, a point that Johnson doesn't discuss: the standard employed. The judge writes: “. . . in the area of academic services, our approach has been akin to the one used in the case of contracts conditioned upon the satisfaction of one party.”

There is a crucial distinction between commercial contracts where goods and services are bartered and sold as opposed to contracts involving artistic taste or “personal satisfaction.” Both employ a “good faith” standard for any contractual obligations where discretion is employed, but the "good faith" standard is not the same in both. While both require honesty in fact, contracts involving artistic taste or “personal satisfaction” do not require a party to employ commercial reasonableness, while other commercial transactions do. (Example: consider a contract calling for a novelist to write a book. The editor reviewing the novelist's manuscript is not required to exercise commercial reasonableness in deciding if it is satisfactory, just honesty in fact.)

In light of the standard announced by the judge in the Depauw case (where the school, apparently, is not required to act in a way that is objectively reasonable), the result is a little surprising. That's what's important here.

I do not think it is helpful to classify this contract decision, on a preliminary motion that does not reach the ultimate merits of the case, as another victory for due process.