Over at the FP blog, there is someone described (opaquely) as "having some expertise in law and philosophy." Is the person a lawyer? I'm not sure. Is it one person or several (the FP blog refers to the pseudonym as "they"). In any case, in the post at issue, the procedural posture of the recent events in the Salaita lawsuit is correctly described. But buried in the rather pedantic discussion of the procedures comes this gem:
(Pardon a brief detour in the discussion. Looming over the entire process is settlement. Discovery is very costly, so the University may be especially motivated to settle now that their motion to dismiss has been denied. Suppose that the University wants to depose 10 people, and suppose each deposition takes 8 hours. Depending on who is taking the deposition, the hourly billable rate might be anywhere from $450 to upwards of $1000. Suppose it’s something in the middle, maybe $700. Just the deposition time itself — setting aside preparation time and assuming that it’s just this one lawyer doing all the work — will cost the University $56,000. That’s a new professor’s salary or a few graduate student stipends for a year and that’s just taking depositions. There will also be time spent defending depositions (what the University will do when their witnesses are being deposed, which amounts to sitting there and occasionally objecting for the record), collecting and reviewing documents, and preparing for trial. The high costs of litigation may often make settlements a good economic proposition for both parties, which is why reading anything about the merits into the existence or amount of a settlement alone, as some did after the University of Colorado settled with David Barnett, is disfavored.)
That last line is obviously a reference to my (correct) diagnosis of the Barnett case But I did wonder, who exactly is it that "disfavors" drawing inferences from the terms of a settlement? Certainly not anyone familiar with the law or lawsuits. Indeed, even FP's "they" are in favor of drawing inferences: after all, the point of noting the costs of discovery is to suggest that sometimes lawsuits settle simply for economic reasons. No one, of course, denied that cost-benefit calculations go into settlements, though they don't work in the simple-minded way "their" discussion suggests: after all, it just isn't the case that a university's budget for litigation is fungible with its instructional budget. And the more important point, which I made in connection with the Barnett settlement, is that universities can almost always afford to litigate longer than individuals: all the economic considerations typically force individuals to settle for less when litigating against institutional actors. That's why the terms of the Barnett settlement were so striking: not only a cash payout, and a forgiven loan, but payment of a substantial portion of Barnett's attorney fees. Against the backdrop of Colorado's Title IX troubles (described in my post), and no evidence of wrongdoing by Barnett that would justify revocation of tenure, the inference to the best explanation of what happened is plainly the one I offered. The only relevant question is whether there is a better explanation; it certainly isn't "theirs."
But back to Salaita: although "they" describe the procedural posture of the case correctly, they omit all the relevant strategic considerations that now kick in. The University wants to avoid discovery, which will be hugely embarrassing, even more embarrassing than what's already come out. The most potent claims in Salaita's lawsuit survived the motion to dismiss. If, as seems very likely, Salaita establishes the facts alleged in the complaint for the breach of contract claim, he will win a motion for summary judgment before the judge who decided the motion to dismiss claim. The lawyers for the University of Illinois understand all this. This is why, as I said a few days ago, I predict a settlement before the calendar year is out, and I would not be surprised if it includes reinstatement for Prof. Salaita, which will save the University millions of dollars in monetary damages (as well as legal costs).
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