UCLA Law Review Volume 57, Issue 3

Coercive Discovery and the First Amendment: Towards a Heightened Discoverability Standard

This Comment addresses whether the First Amendment restricts a litigant’s or the government’s ability to compel disclosure of information about protected First Amendment activities. In evaluating whether such speech-related information may be subpoenaed, courts have struggled to balance a speaker’s right to anonymous or confidential speech with the evidentiary needs of prosecutors or plaintiffs. The fractured jurisprudence addressing this issue contains a multitude of discoverability standards that vary dramatically in the level of protection afforded to speakers. In some circumstances, such as where a party subpoenas confidential membership or donor lists, courts have refused to compel disclosure absent a showing of a compelling interest and need for the information. In other situations, for instance subpoenas seeking confidential statements, the requesting party need only demonstrate mere relevance. In still other cases, such as where the discovery request seeks to identify an anonymous blogger or a journalist’s anonymous source, courts balance the competing interests through application of multifactor tests. This Comment suggests that notwithstanding such doctrinal compartmentalization, an important commonality exists between different types of cases involving of compelled disclosures: The risk that coercive discovery techniques, such as subpoenas and search warrants, will chill freedom of expression. This Comment argues that given the inadequacy of current discovery laws and constitutional criminal procedure standards as a safeguard of free speech interests, the First Amendment should operate as an additional restriction on coercive investigatory powers. It thus makes the case for subjecting coercive discovery requests for information about speech-protected activities to a uniform, heightened discoverability standard. Specifically, it proposes a five-part framework under which courts should analyze whether certain speech-related information can be coercively discovered.

A “Standard Clause Analysis” of the Frustration Doctrine and the Material Adverse Change Clause

In the darkest depths of a corporate merger agreement lies the MAC clause, a term that permits the acquirer to walk away from a transaction if, between signing and closing, the target company experiences a “Material Adverse Change.” Multibillion-dollar deals rise or fall based on the anticipated interpretation of a MAC clause, and invocation of the clause in a sensitive transaction could trigger the collapse of the global financial system. In short, the MAC clause is the most important contract term of our time. And yet—due to an almost total lack of case law—no one knows what it means. In this Article I explain the MAC clause using a new conceptual tool for drafting and interpreting contracts, the “standard clause analysis.” For any default rule of contract law, practitioners can be expected to develop a “standard clause analog” in order to easily contract around the default. Given this relationship between default rules and their standard clause analogs, if one is given, the other can be deduced. This is the “standard clause analysis,” and it can be used in two ways, which I call “forward” and “reverse.” In a forward standard clause analysis, one begins with a default rule and advances to its standard clause analog. The forward standard clause analysis can be used to predict the existence of standard clause analogs that have yet to be observed. And in a reverse standard clause analysis, one begins with a standard clause and advances to the default rule with which it is associated. The reverse analysis is a powerful method for interpreting contract terms. After introducing and describing the standard clause analysis, I put it to practical use. I begin by applying the forward analysis to the common law doctrine of frustration, and predict that a “frustration clause” exists, or will soon come into being, and that it would resemble a reverse-Force Majeure clause and be found in relatively high-value contracts. These predictions are then confirmed with several examples of frustration clauses observed in the real world: the Morals clause, the Walkaway clause and, most notably, the MAC clause. Then I apply the reverse analysis to the MAC clause and show it to be a standard clause analog of the frustration doctrine that alters the default rule by (a) permitting excuse on the basis of a significant (but less than total) loss in contractual value, (b) excusing the acquirer based on frustration of a “secondary” (as opposed to its “primary”) purpose, and (c) shifting major exogenous risks (such as an economic recession or a natural disaster) from the target to the acquirer. I conclude with a case study to demonstrate the difference between the MAC clause and the default frustration doctrine: Bank of America’s recent $50 billion acquisition of Merrill Lynch in late 2008. During the brief three-month period between signing and closing, Merrill lost an astounding $15 billion, but the conventional wisdom—shared by Federal Reserve Chairman Ben Bernanke, among others—is that Merrill’s loss failed to trigger the MAC clause. I disagree. While the default frustration doctrine would not have offered any relief, Bank of America did indeed have viable grounds to invoke the MAC clause, properly understood, and walk away from the Merrill deal.

Portraits of Resistance: Lawyer Responses to Unjust Proceedings

This Article considers a question rarely addressed: What is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. The analysis in this Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Alabama in the 1950s and 1960s, and that of lawyers representing detainees facing proceedings before the Military Commissions in Guantánamo Bay, Cuba. These portraits illuminate the strategies available to lawyers who face procedurally unjust tribunals operating within a larger liberal legal regime such as our own. The purpose of the Article is to paint a landscape of U.S. lawyer resistance to procedural injustice that can be used as a basis for further inquiry. The Article considers hard questions about lawyer participation in unjust tribunals, such as whether lawyers who participate are complicit in injustice and the consequences to the client and to society of lawyer resistance to injustice. It demonstrates the dualistic interplay between acts of resistance and complicity: Acts of resistance may be co-opted and perpetuate injustice and acts that appear to be complicit can result in powerful forms of resistance. It analyzes the forms and expressions of resistance, and presents an original schema of the acts of resistance. The Article also explores some questions raised by this analysis, such as what are the lawyer’s responsibilities to society and to the client, and whether lawyers can know when a tribunal is so unjust as to merit resistance. The Article concludes by considering avenues for further research.

The Many Faces of Promissory Estoppel: An Empirical Analysis Under the Restatement (Second) of Contracts

This Article examines more than three hundred promissory estoppel cases decided between January 1, 1981, when the Restatement (Second) of Contracts was published, and January 1, 2008, when research for this project began, to explore the manner in which courts conceptualize, decide, and enforce promissory estoppel claims under § 90 of the Restatement (Second) of Contracts. Specifically, because the drafters of the Restatement (Second) made several important changes to § 90 of the Restatement (First) with the intent of making promissory estoppel more available, the role of reliance more prominent, and the remedies awarded to successful litigants more flexible, this Article investigates whether these changes have had their desired effect on promissory estoppel doctrine as reflected in the case law. The research presented here can be interpreted to support three major claims. First, these data suggest that promissory estoppel is a much more significant theory of promissory recovery than has been previously thought, and seems positioned to continue to grow in importance in the coming decades. Second, the data reveal that promissory estoppel cannot be understood exclusively in terms of “promise” or “reliance,” as some scholars and judges have suggested. Instead, the data reveal that most judges require the existence of both promise and reliance before allowing a promissory estoppel claim to proceed, although surprisingly few judges require a plaintiff to show that the equitable principle of “justice” has been satisfied. Last, and most significantly, these data reveal that, with respect to remedies, courts tend to treat promissory estoppel actions as traditional breach of contract actions, in that courts generally tend to award the (usually) more generous expectation measure of damages, which is typical in ordinary breach of contract actions, over the (usually) less generous reliance measure of damages, which is often awarded where non-contractual obligations have been breached (such as in tort law). However, by replacing these conceptual labels (such as “expectation” and “reliance” damages) with a more functional classificatory scheme capturing whether a promissory estoppel plaintiff has obtained the highest recovery available under any other theory of promissory recovery, including a “traditional” breach of contract action, this Article argues that the extent to which courts have treated promissory estoppel claims as fully contractual has been underappreciated.

The Shadow Terms: Contract Procedure and Unilateral Amendments

For decades, courts and commentators have debated the normative implications of contract procedure. Conservatives argue that mandatory arbitration clauses reduce the burden on the judicial system and that class arbitration waivers, choice-of-law clauses, and jury trial waivers allow businesses to pass litigation savings to their consumers in the form of lower prices. In response, liberals object that contract procedure dilutes substantive rights and runs roughshod over important jurisdictional and constitutional values. This Article argues that neither view has accounted for a defining trait of contract procedure: the regularity with which drafters unilaterally amend procedural terms. Indeed, many standard form consumer agreements and a growing number of state statutes authorize drafters to revise procedural terms unilaterally. The frequency with which drafters exercise this power undermines the foundational conservative theory that sophisticated adherents can exert market pressure on drafters to offer efficient procedural terms. However, the liberal model of contract procedure—which urges courts to nullify procedural terms that erode substantive, jurisdictional, or constitutional interests—creates perverse incentives. Drafters respond to judicial decisions voiding procedural terms by amending their terms again. The target audience for these revisions is not the adherents who will be subject to them, but the courts who will adjudicate their validity. This “private conversation” between corporations and courts not only widens the informational gulf between drafters and adherents, but increases the burden on the judicial system. To end this pernicious feedback loop, the Article encourages policymakers to eliminate drafters’ ability to amend procedural terms unilaterally.