WC’s buddy AB sent WC a link to President Trump’s Contract for the American Voter, a bit of October 2016 campaign fodder. AB wondered if there could be a lawsuit for the Trumpster’s multiple breaches of those promises. As it turns out, WC had written and abandoned a similarly-themed blog post back in the Palin governorship. WC dusted that unpublished essay off, updated it a bit and offers it here. Props to AB for the suggestion and feedback.
Back in the Early Paleolithic, when WC was a first year law student, his Contracts professor was the fearsome Bobby Joe Childres, All-American running back for the University of Missisippi and a brilliant, younger version of Prof. Kingsfield in “The Paper Chase.” WC’s buddy, CW, was called on the first day of class and was so upset by his grilling – technically, the “Socractic dialog,” conducted by Prof. Childres in a gentle, Southern accent – he spent 15 minutes after class puking in the men’s room.[^1] It was that intense.
The second day of class, Childres called on WC. WC was asked to explain and defend an early Alaska Supreme Court decision, Inman v. Clyde Hall Drilling. It was a pretty awful decision, and Childres extracted from WC every flaw in the case, all the while trying to provoke WC – “Why did your supreme court say that?” Note that Childres, on the second day of class, knew WC’s name, and knew WC was from Alaska.
Just when WC, drenched in sweat and shaking slightly, thought he was done, Childres asked WC, “Richard Nixon made a number of promises last night in his campaign for re-election. If you gave him your vote, and he failed to keep one of those promises, could you sue him for breach of contract?”
After hemming and hawing for a while, WC got to the right answer: “No.”
Childres: “Why not? He broke his promise, was your exercise of the franchise not consideration?”
WC: “It’s advertising. I can’t sue a toothpaste company if their product doesn’t give me whiter teeth.”
Childres: “Right idea, but wrong answer. Do try again.”
WC [light bulb finally going on]: “Because Nixon’s promises weren’t an offer, and a contract cannot be created without an offer. As in Clyde Hall Drilling.”[^2][^3]
What Prof. Chidres was trying to beat into WC’s thick skull was that a legally enforceable contract requires an offer, acceptance of the offer and consideration (some kind of payment). Nixon’s promises weren’t legally an “offer.”
Similarly, the Trumpster’s campaign promises, his “Contract for American Voter,” aren’t a contract with the voters. Newt Gingrich and the G.O.P.’s infamous “Contract with America” wasn’t a contract. It’s puffery. It’s advertising. Politician’s promises aren’t actionable. WC hopes this doesn’t come as a shock.
There are few things as fragile as a politician’s promise. A soap bubble offers more rigor. An earthworm has more backbone. Perhaps that’s why politicians make so many promises.
Nothing to see here. Move along.
[^1]: CW went on to a brilliant legal career, clerking for a U.S. Supreme Court Justice and becoming a partner in an international law firm. Not all bad experiences are bad for you.
[^2]: WC has omitted a great deal of the extended socratic dialog/verbal thrashing in the interests of making his point. Suffice to say, WC’s 24 hour protection failed completely but WC was not forced to make use of the commode after class.
[^3]: Prof. Childres died in 1976 at the age of just 42, a tragically early death for a brilliant man and superb teacher. WC’s law school gives the Robert Childres Award each year to the year’s most outstanding teacher. It’s a well-deserved honor.