Friday, August 10, 2007
ACTA memo calls for Dartmouth governance reform
The American Council of Trustees & Alumni's President, Anne D. Neal, has written a memo in which she criticizes the Governance Committee, the Board of Trustees, and President Wright. It is reproduced below in full.
MEMORANDUM
DATE: July 30, 2007
FROM: Anne D. Neal, President
American Council of Trustees and Alumni
TO: Executive Committee, Dartmouth Association of Alumni
c/o Dr. Frank Gado, Second Vice President
RE: Dartmouth’s Governance and Best Practices
We are pleased to respond to your request for an evaluation of the Governance Review process currently underway at Dartmouth, drawing upon ACTA’s expertise in best practices in this area. Over the last decade, ACTA has been involved in numerous matters concerning higher education governance at both the state and federal levels.
Most recently, ACTA spoke out in favor of good governance and best practices at a 2006 Senate Finance Committee roundtable regarding American University, whose president was found to have used massive amounts of university funds for personal reasons with little or no board oversight. AU now has a new president and, following ACTA’s recommendations, he no longer serves on the governance committee, is a non-voting member of the board, and receives regular, comprehensive performance reviews by the board, which must participate in regular orientation programs. We have advocated similar governance practices before the Commission on the Future of Higher Education and in other high-profile venues.
On the basis of our review of Dartmouth’s current practices, we believe both trustees and alumni should be concerned by the President’s deep involvement in the Governance Review—and, more generally, in his selecting those who are responsible for reviewing his performance. The role currently afforded Dartmouth’s President in governance does not comport with best practices in the non-profit or for-profit sectors, especially in the wake of Sarbanes-Oxley, and it also raises questions under Dartmouth’s own conflict of interest policies.
Background
The Governance Committee of the Dartmouth Board of Trustees is currently reviewing the process by which Trustees are selected—a process in place with only minor changes since the 1890s. Currently, eight members of Dartmouth’s 18-member Board are Alumni Trustees, nominated by the Alumni Council’s Nominating and Trustee Search Committee or by petition and voted on by all Dartmouth alumni; eight are Charter Trustees, selected by the Governance Committee and ratified by the Board; and two are ex officio members: the President of Dartmouth and the Governor of New Hampshire. The members of the Governance Committee consist of one Charter Trustee (the Chairman of the Board), three Alumni Trustees (none of whom ran by petition) and the President.
On May 30, your Committee wrote the Board seeking assurance that “the agreement alumni have with the Board, established in 1891 and historically evolved since then, whereby alumni effectively elect half of the non-ex-officio members of the Board” would remain intact. While the Board has not responded formally, a “Q and A” document posted on the Dartmouth website regarding the Governance Review takes great pains to dispute the concept of “alumni parity” and argues, “If you read the [1891] resolution, you won’t even find the word or concept of parity in it. It only provided for the alumni to nominate the next five trustees for the Board to then elect.” To our knowledge, the Committee has given no indication that it has ruled out the possibility of changing the procedures so that petition candidates—who, in Dartmouth’s recent past, have been those most critical of the current administration—cannot be elected, or of eliminating alumni voting altogether.
Both Charter and Alumni Trustees are eligible to serve two consecutive four-year terms. Since 1990, the decision as to whether a Charter or Alumni Trustee will serve a second four-year term has been determined at the discretion of the Board. (Alumni Trustees had formerly faced all-alumni votes before both terms.) We understand that the Governance Committee performs an assessment of the Trustee’s performance and contribution to the Board during his or her first term, after which a confidential evaluation process results in a recommendation by the Governance Committee to the entire Board for action.
Discussion
The President’s involvement in a governance committee is not uncommon at private colleges. Princeton, Cornell, Caltech, MIT, the University of Chicago, Johns Hopkins, and Vanderbilt all permit the president to serve on committees that oversee the selection of trustees. However, such involvement is at odds with the governance practices of public universities, which generally do not have presidents serving as voting board members. It also does not comport well with Dartmouth’s own policies, or with best practices in both the corporate world and the non-profit sector writ large.
First, the President’s service on the Governance Committee would appear to violate Dartmouth’s existing standards regarding conflicts of interest and ethics. Those policies make clear that “[i]f an individual’s personal interests might lead an independent observer reasonably to question whether the individual’s actions or decisions on behalf of the College are influenced by those personal interests, the individual should recuse himself or herself from the decision making process.” The President has a clear professional and personal interest in the manner by which Trustees are selected since they are the ones who ultimately hire, fire and evaluate him. A memorandum outlining existing ethics standards is attached.
Relevant guidelines and best practices—in both the corporate and nonprofit worlds— would lead to the same conclusion. In the corporate world, CEOs are usually barred from being on governance committees. In fact, the New York Stock Exchange requires that companies traded on its floor “have a nominating/corporate governance committee composed entirely of independent directors” so the president is not nominating and selecting directors who will end up evaluating him. NASDAQ likewise mandates that directors are nominated by either “a majority of the independent directors” or “a nominations committee comprised solely of independent directors.” These requirements, adopted in the wake of Sarbanes-Oxley, ensure more ethical governance.
Although Sarbanes-Oxley only applies to publicly-traded companies, its implications for nonprofits and higher education institutions are evident. In 2005—at the urging of the Senate Finance Committee—Independent Sector, a coalition of leading nonprofits and foundations, released a report recommending best practices for nonprofit organizations. The report advocated for strong governance, audit, conflict of interest, travel, and whistleblower policies. According to the report, “[f]ailures by boards of directors in fulfilling their fiduciary responsibilities may arise when a board leaves governing responsibility to a small number of people, some of whom may have conflicts of interest that mar their judgment.”
A just-released study by the Urban Institute on nonprofit governance, Nonprofit Governance in the United States, found that “having the CEO/executive director serve as a voting board member was negatively related to board activity level in financial oversight, setting policy, community relations, and trying to influence public policy, and [not] positively related to [any roles].” Similarly, an independent panel (including former Harvard president Derek Bok) advising the Nature Conservancy after adverse publicity regarding governance practices, recommended that the president/CEO not serve on the governance or any other committee. The Conservancy adopted the recommendation and its website notes that major strategic issues are now managed not by committees but by the full board.
Finally, the problems inherent in Dartmouth’s Governance Committee, as currently composed, do not simply affect the current Governance Review. They relate to the entire process of Trustee selection, given that (as discussed above) the Governance Committee is largely responsible for choosing all Charter Trustees and determining which Trustees serve a second term.
As noted, the President sits on the Governance Committee, and there is no evidence that he is anything other than a full participant in its votes, and those of the full Board, on the selection of Trustees. This process turns good governance on its head: Rather than the President owing his continued employment to the Trustees, they owe their continued service in large part to his vote. Such a practice is certain to affect the independence of Board members and to interfere with the performance of their duties.
Conclusion
The stated purpose of the Dartmouth Governance Review is to examine best practices in the field. However, the Dartmouth governance structure—and, particularly, the conduct of the review itself—would appear to constitute a case study in “worst practices.”
According to best practices, the President’s prominent role in the governance review process would be unacceptable at major corporations in America and most public universities. Moreover, the President’s substantial involvement in the Committee appears to be in clear violation of Dartmouth’s own conflict of interest policies.
The direction of the current Governance Committee “study” raises serious concerns. Already exerting de facto control over the appointment of Charter Trustees and the reappointment of all Trustees to a second term, the Governance Committee may now be considering eliminating the one source of independent oversight of the Board: the longstanding ability of the alumni to vote on half its membership. And far from being disinterested, the Governance Review is being sustained by the one person who stands to gain the most—the President—who will potentially hold the power to pick and choose every Trustee to whom he ostensibly reports.
Far from modeling best practices, Dartmouth’s possible interest in creating a self- perpetuating board runs counter to growing federal and regulatory calls for transparency and independence—not to mention the desires of the thousands of alumni who have voted for independent oversight in the last four elections.
Rather than focusing on how to select Trustees, the Board should initiate an extended and honest examination of its own governance practices. The following reforms would be in order—and can be undertaken, since Dartmouth recently gained the ability to amend its Charter without the permission of New Hampshire’s legislature:
• Removal of the President from the Governance Committee;
• Changing the President’s role on the Board to that of a non-voting member, as is the case at American University; and
• Issuance of a public statement that the historic role of alumni in selecting the Board will be preserved.
We note that many other non-profit organizations—including American University but also the American Red Cross and the Smithsonian Institution—have made headlines in recent years due to poor governance practices. Dartmouth’s current governance model regrettably bears more resemblance to these cases than to the best practices to which it claims to aspire. Persisting in maintaining such a flawed governance structure will invite scrutiny and criticism of the board and risk doing damage to Dartmouth’s reputation.
Posted by Nick Desai at 2:06 PM
Comments
And now the focus goes to where it should: Jim Wright.
Hey Jimmy, Picking the trustees who evaluate you and determining the overall criteria for who gets on the Board is a real no-no.
A strong CEO picks a strong Board; a weak CEO like JW picks people like Brad Evans to be on his Board.
Posted by — August 10, 2007 3:24 PM
It's worth pointing out that the Wikipedia entry on Haldeman says "In the wake of the Mutual fund scandal of 2003, he was appointed President and CEO of Putnam and has since led the company forward in reorganization, compliance, and enhanced disclosure. He is recognized in the industry for his high ethical standards." He and his wife have also funded an "Ethics Institute" right at Dartmouth. But apparently he's not interested in having the College conform to ordinary corporate (and often non-profit) standards.
I hope that op-eds and so forth will point this out about Haldeman and put pressure on him and the Board. It seems to me, for instance, that a neutral committee evaluating Wright's performance would have to take into consideration the deeply flawed concept and execution of the Student Life Initiative.
Posted by — August 11, 2007 11:32 AM
"TO: Dartmouth Association of Alumni." Translation: We think our "evaluation" of Dr. Gado's secondhand impression of some Trustees committee is so valuable that we will actually bother to send the Trustees a copy.
"ACTA has been involved in numerous matters concerning higher education governance at both the state and federal levels." Translation: we are a bunch of pundits. We lobby Congress and complain. No one listens to us. We have no experience with actual reform of actual trustees. One of our members, Bill Tell, is a Dartmouth alum who has filed several lawsuits against Dartmouth and lost them all. See also "ACTA spoke out in favor of" anything.
"alumni should be concerned by the President’s … selecting those who are responsible for reviewing his performance." Translation: Although you asked us to review the Governance Committee's work re: the election of Alumni Trustees, at least that's what we think it's about, there is no information available about that on the Interweb, so we decided to shift the discussion to something else.
"especially in the wake of Sarbanes-Oxley" we thought we'd throw that in, even though it's not relevant. Doesn't it sound nice? "SarbOx." It sounds like a kind of cookie or something!
"a process in place with only minor changes since the 1890s." Except that the alumni got four free trustees since the 1890s, but we'll call that "minor."
"eight members … are Alumni Trustees, … voted on by all Dartmouth alumni." Translation: Eight members are Alumni Trustees nominated by all Dartmouth alumni and then elected by the Board of Trustees. But we're just running with a fantasy about "accountability," really…
"To our knowledge, the Committee has given no indication that it has ruled out the possibility of changing the procedures." Translation: We're talking out of our a** here.
"such involvement is at odds with the governance practices of public universities, " Translation: We're laying it on thick now. This is rich! We are utterly clueless about private schools, in fact we wish all schools were controlled by the government so they would have to follow Constitutional regulations of state actions, and so we think that Dartmouth should submit to such regulations voluntarily. Even though the state tried to get it to obey once and, um, something happened blah blah blah it might still be a private school.
"the non-profit sector writ large." Translation: the non-profit sector at large. But I'm just a lawyer, so don't expect me to talk like one of those highfalutin' academical types.
"A memorandum outlining existing ethics standards is attached." Translation: Frank, you might want to read this too.
"Although Sarbanes-Oxley only applies to publicly-traded companies." Translation: We know we're talking out our a** here, but bear with us…
"'[f]ailures by boards of directors in fulfilling their fiduciary responsibilities may arise when a board leaves governing responsibility to a small number of people." Translation: We know you just decided to expand your board from 16 to 22. But that's still too "small" according to some people who wrote some stuff. Keep going! Why stop at 22? Pump it up to, like, 45 or something.
"the Governance Committee is largely responsible for choosing all Charter Trustees." Except that the whole board votes on every single one. So really, they're not responsible. But that would eliminate the whole point of this letter, since we have no clue about what the Committee is doing and had to make up some stuff.
"The stated purpose of the Dartmouth Governance Review is to examine best practices in the field. However, the Dartmouth governance structure—and, particularly, the conduct of the review itself—would appear to constitute a case study in 'worst practices.'" Translation: You saw a problem and tried to fix it! What the heck's wrong with you? Why don't you do like us – act without any accountability whatsoever, refusing to put our agendas, meeting minutes, or even the names of the members of our board on line (except for our symbolic "national council" – nice ring to it, eh?). ACTA spells "best practices"!
"According to best practices, the President’s prominent role in the governance review process would be unacceptable at major corporations in America and most public universities." Translation: We can't come up with a single example of a private school that followed the practices of Podunk State. But you should lower your standards anyway – look at how successful Podunk State's board is at getting legislative appropriations! Although the fact that they are a state school means the legislature owes them, of course, and nowadays they are being cut off, but other than that…
"The direction of the current Governance Committee 'study' raises serious concerns." Translation: We have no clue what we are talking about, but if we put out some scare quotes, people might think that we do. By the way, when the Committee finally does publicize its conclusions, could you send us a copy?
"Dartmouth’s possible interest in creating a self- perpetuating board runs counter to growing federal and regulatory calls for transparency and independence." Yes, we know, you are not subject to federal or regulatory oversight. But you should want to be! And that jab at the "self-perpetuating board"? We know, you have had a self-perpetuating board for more than 230 years, and that might even have something to do with your success. But it sounds so… sexual, doesn't it? We couldn't resist.
"many other non-profit organizations—including American University but also the American Red Cross and the Smithsonian Institution—have made headlines in recent years due to poor governance practices." Okay, the word "other" was gratuitous, since Dartmouth has not made headlines for the things the other institutions have, like lavish and improper spending on private parties and such. But you get the impression, right? Do you really expect us to treat you fairly when you refuse to submit to federal regulation? Pretty please? Come on!
"Dartmouth’s current governance model regrettably bears more resemblance to these cases than to the best practices to which it claims to aspire." Except where it doesn't. Which is in anything to do with wrongdoing or poor practices at all. Which is why we had to make up this idea that trustees are elected by your committee instead of the board. Why don't you release your report already! Then we would actually have something to talk about.
Posted by — August 11, 2007 1:03 PM
"Hey Jimmy, Picking the trustees who evaluate you and determining the overall criteria for who gets on the Board is a real no-no." Except that I had no frickin' clue about this until I read it in the nice lady's memo and learned that it's a no-no in state universities.
Posted by — August 11, 2007 1:09 PM
Didn't the Ethics Institute predate Haldeman's gift of a building to house it and other institutes? The building is now named Haldeman, but the institute has been called the Ethics Institute for 20 years or so.
Posted by — August 11, 2007 2:05 PM
Oh, OK, so Haldeman shouldn't be expected to have anything to do with ethics?
Posted by — August 11, 2007 3:46 PM
John Bruce, you're the one who tries to lord over others your skills at "reading comprehension" -- wasn't Wikipedia clear enough? Why are you trying to turn your failure at comprehension into a discussion about Haldeman's ethics? You're still a blowhard.
Posted by — August 18, 2007 11:01 PM
Unrelated topic: just for the record, can we agree that at this point in the controversy over possible changes to the selection of alumni trustees, no pro-administration group, whether well-funded or otherwise, has made its presence known? The trustees are not campaigning for support of some idea, and no wealthy alums or Parkhurst slush funds are organizing the spin behind some change in governance that came out of the September trustees' meeting -- which is still in the future.
Again, for the record, can we agree that there are several organized and possibly well-funded groups on the other side (the anti-board or anti-charter side) that are already mounting a PR campaign? SaveDartmouth.org has a website and apparently put an ad in the Times that cost several hundred thousand dollars; the Hanover Institute, which existed before the controversy, is urging its members to action; VoteDartmouth.org also has a website and is maintaining a petition; the Dartmouth printed an advertisement by The 1891 Society; and four Trustees organized and sent out a direct mailing to alumni urging them to write and complain.
Does anyone dispute these facts? Later on, I promise you, someone is going to cook up some tale about how the big bad administration started the PR battle and how the pro-charter, pro-board groups (if any ever get organized) somehow had the jump on poor little old Save Dartmouth, etc.
Posted by — August 19, 2007 4:21 PM
Seems to me the administration doesn't need a pro-administration group. The administration itself controls dartmouth.edu and Ask Dartmouth, for instance. It sponsors meetings like the one on August 7 that give people like Brad Evans a platform -- shame ol' Brad put his foot in his mouth, of course. Dear Old Dartmouth itself pays the substantial salaries of Spalding and others. The budget for all this probably dwarfs anything that other well-heeled alums have put toward SaveDartmouth.org or VoteDartmouth.org.
Posted by — August 19, 2007 4:42 PM
John said "Seems to me the administration doesn't need a pro-administration group."
Well, you are entitled to your opinion.
This is probably before your time, but during the alumni constitution controversy, plenty of people whined about the politicization and spending of DAOG and DACS and the AGTF and I forget what other groups (several of them not apparently affiliated with the college). What people forgot soon afterward (but should not forget now, I hope) is that the public lobbying or "spin" put out by most of those groups was a late reaction to the campaigning, sometimes aggressively hostile and disingenuous, conducted on various websites and in mailings. Posters on this website and the Association's, the Hanover Institute, and other precursors of votedartmouth were to blame, not groups like DACS. DACS might have been among the smarmiest, but it was not the first.
"The administration itself controls dartmouth.edu" blah blah. Can you give us any examples of how any of the outlets that the trustees control, except in the case of the verbatim dissemination of trustee press releases, have mounted any public-relations campaign in reference to the current controversy? Where is the shiny "liberal" or "administration-friendly" website pointing out the gross errors that are printed on the savedartmouth website? Where is the well-funded counterpart to whoever it is who's advertising in the Times? Where is the DACS in this controversy? Even though the board could respond in well-funded way to the ignorant whiners, it has not.
Posted by — August 19, 2007 6:24 PM
I'd say the explanation -- as well as the reason why Ask Dartmouth will only respond to trivial questions, when it's received many substantive questions that it hasn't answered -- is that the Board loyalists simply don't have a case. It's only x-gneration rich ciphers like Brad Evans who don't understand this.
Posted by — August 20, 2007 10:27 AM
This is relatively off topic, but does anyone know the details of Dean/ Dr. Gazzaniga's resignation and subsequent move to California?
He seemed to be one of the few visonaries at Dartmouth, but obviously ran into some trouble with the Wright administration.
It is of course sad to see such a world class scholar depart Dartmouth - especially in comparison to the intellectualy mediocrity of the Wright administration.
Posted by — August 20, 2007 10:07 PM
"the Board loyalists simply don't have a case."
John, the "Board loyalists" don't need to have a case. You and the other anti-Board whiners need to have a case, and so far you haven't shown any convincing signs that you do.
Posted by — August 21, 2007 9:58 AM
If Stephen Smith is a lawyer, then why does he think he can make up rights as he goes along? He is quoted in The Dartmouth today in reference to the hint that he has violated his fiduciary duty by speaking publicly on Board matters:
When it comes to something as fundamental as whether or not alumni should be disenfranchised, trustees should have a right to speak.
Maybe they should, Professor Smith, but do you think they actually do? By proposing this right, are you acknowledging that at the moment you don't have it? Because the restatement of trustees' duties that came out after your election says clearly that you don't.
The Board ought to reprimand all of the Trustees who signed the letter that Smith is talking about.
Posted by — August 21, 2007 10:05 AM
9:58, what the Board is talking about doing is behaving as if the 1891 Agreement isn't binding. This is a little, again, like behaving as if your finance contract for your car isn't binding. You can do as you please about making your payment, but there will be consequences. You're then claiming that the dealer, in effect, doesn't have a case.
This will be determined in court. However, Zywicki has already outlined the argument for the alumni. He's the law prof, I don't need to repeat him.
On the other hand, there are only a few people like you publicly arguing the Board loyalist position at all -- and you feel you can't make your identity public!
Posted by — August 21, 2007 10:57 AM
there are only a few people like you publicly arguing the Board loyalist position at all -- and you feel you can't make your identity public
As far as I know, just about no one on this board has made his identity public other than John Bruce and the dartlog posters (the posters, not the commenters).
Posted by — August 21, 2007 12:27 PM
But of the anonymous posters, many are not Board loyalists like you. I would guess -- though it's hard to say, since you're anonymous --that a good 50% of the Board loyalist rants are yours.
Posted by — August 21, 2007 1:00 PM
John Bruce, where's your reading comprehension? Didn't you read Zywicki's editorial? He has never publicly outlined the argument that the 1891 agreement is enforceable as a contract. His policy paper (it's not a legal analysis or a legal argument, and he did not intend it to be one) deals only with the interpretation of the "five" seat term in the purported contract, not with the existence of the contract itself. Zywicki probably could write up a halfway-convincing argument for the enforceability of a group of trustees' resolutions as a contract, but he has not done it yet.
"what the Board is talking about doing is behaving as if the 1891 Agreement isn't binding." But what you're doing is behaving as if the 1891 agreement is binding. For no good reason that you have come up with yet.
The 1891 agreement is utterly different from an auto finance contract. I can't even figure out why you picked that example, because it is so obviously a conventional contract that both parties intend to be enforceable in court. Both parties embodied their agreement in a single written instrument and signed it. That did not happen in 1891, which is why you are stuck trying to cobble together various trustee resolutions and fill the gaps with implication.
Not all enforceable contracts are signed instruments, of course, but you have created a very difficult challenge for yourself by claiming that the 1891 agreement is a contract. All the presumptions about contracts, especially the presumption that one party's word is never enough on its own, suggest that the trustees never intended to be haled into court on this. This is not rocket science, but you still don't get it, I guess.
Zywicki has not even hinted at the corporate law problem here. Giving the alumni the authority to elect some of the board would violate the Charter of Dartmouth College.
Why is it so important to you to label your apparent adversaries as "board loyalists"? Does that make them less legitimate in your eyes? It is weak of you to suggest that the people who want to uphold the charter (or generally the people who oppose your pompous, Wikipedia-citing mumbo-jumbo) are doing so without any legitimate reason, only out of base loyalty to the board. Why not at least call them "charter loyalists" instead? And what do you call Zywicki, who is the ultimate board loyalist, as all trustees are, and yet appears to hold views with which you agree?
Do you think your position would be any less misguided if not a single person pointed that out?
Posted by — August 22, 2007 12:11 PM
Zywicki (presumably) on the VoteDartmouth site annotates this portion of the 1891 Association of Alumni meeting minutes:
the clear understanding and assurance that three vacancies in the Board will be provided at once, and two more before the next commencement in 1892. [Annotation: In order to oepn five spaces on the Board, five of the sittiing Charter Trustees were to resign their seats in 1891 and 1892.] All to be filled as above provided and that the persons so nominated by the Alumni will be elected by the Board to such Trusteeships[Annotation: Reference is made to the automatic election of trustees nominated by the alumni.], and that the term of service of such Trustees shall be so arranged that ultimately there shall be an annual election of a Trustee [Annotation: Voting by the alumni for an open seat on the Board is planned and presumed to occur annually into the future.] at each commencement; such annual elections to be secured by suitable provisions, under which the term of service fixed at five years shall be ended by the resignation of the incumbent.
All I can say is that if the Board goes ahead and abrogates these provisions of the 1891 Agreement, it will almost certainly wind up in court.
Why are you so upset that I refer to you and others as "Board loyalists"? Seems accurate and, insofar as I can see, neither defamatory nor prejudicial.
Posted by — August 22, 2007 12:44 PM
Is Stephen Smith behind "votedartmouth.org"?
Note the similarities in format, the appearance of "notable quotes" on both websites, and the repetition of the background image of Dartmouth Hall:
Smith's image has him superimposed on the building; VoteDartmouth's image is larger and lacks a picture of Smith, suggesting that its creator had access to the same original from which Smith made his image.
Then again, both of them could have taken that image from someone else. But it makes you wonder...
Posted by — August 22, 2007 5:23 PM
There is also a savedartmouth.org site, which is also similar. The D yesterday had an article in which Zywicki answers the phone as someone apparently reponsible for one of these sites, and Ed Haldeman fusses and fumes about the Gang of Four speaking out of turn.
It's worth noting that Rodgers ran on a platform of getting rid of the Trustees' Oath of silence on matters before the Board. I don't think it's a great step to think that at least the same web design guy is behind all three sites, but once we acknowledge that, I'm not sure if it tells us much.
Posted by — August 22, 2007 5:48 PM
They're probably all Malchow-designed websites, but so what?
Posted by — August 22, 2007 6:02 PM
John, those annotations on votedartmouth were not written by Zywicki. Have you read them? They are full of typos, and where they are not obvious and uncontroversial (or strangely fixated on the "permanent" nature of the agreement – is that a big issue?) they are incorrect.
The excerpt you selected proves that the AoA and the Board intended to form only an understanding or unenforceable agreement instead of a binding contract:
The alumni write of "the clear understanding and assurance" of vacancies. Note that the drafter refrained from using the words "contract," "binding," or "promise," even though this document was written one or more days after the meeting and presumably had an element of propaganda, intending to appease the radical alumni who wanted direct election of the entire Board. Their absence of those words from the meeting minutes or the resolution, despite each being carefully drafted by only one party to the agreement, suggests that neither side expected to be bound by these documents.
The minutes state "All to be filled as above provided and that the persons so nominated by the Alumni will be elected by the Board to such Trusteeships." It could not be more plain: the alumni were recording their understanding that the Board would elect (only the Board has ever had the power to "elect") persons whom the alumni had "nominated." Those are their words, not mine. These people were not sloppy and they were not idiots; they chose their words carefully for this document, which would portray the "understanding" in the best possible light.
The annotator's idea that the previous sentence refers "to the automatic election of trustees nominated by the alumni" is nonsense and is at odds with both the entire document and the plain meaning of the words themselves – even the words written by the alumni alone, free of any damping influence by the Board.
"the term of service of such Trustees shall be so arranged that ultimately there shall be an annual election of a Trustee." This is obvious. The charter, the AoA Constitution, common sense, the practice of both parties over more than 116 years (both the AoA and the Board hew explicitly to the nomination-election distinction) and the language of the previous sentences (predicting Board "election" after alumni "nomination") are all in agreement on who does what. The referenced "election of a Trustee" can only ever done be by the Board, following an alumni nomination. (But in this sentence, it's not even clear that it matters who does the "election.")
No reader of these minutes would have any reason to think that they describe a direct election by alumni, even though these minutes are the place where you would expect to find such a claim, since they represent only the alumni version of the agreement, tailored for presentation to alumni.
(Your response should be "oh, they used those particular words instead of 'promising' a 'right' to 'elect' trustees because such a grant would have violated the charter, requiring a legislative amendment." No duh. The Board cannot have made any promise of the kind you imagine, no matter what words it used. If the Board avoided certain terms because it was not authorized to give away its Charter duties, what makes you think any contract, no matter what its language, could somehow effect the transfer of those duties?)
What is it that you see the Board as "abrogating"? Is it the understanding (your word, not mine) that the Board would elect alumni nominees? Your excerpt above has failed to show that the two sides had anything more than a mere understanding, or, at most, a promise. As you know, a promise by itself is not a contract and is not enforceable; you have to come up with some evidence that the Board had both the intention and (in this case) the authority to consent to be bound to this promise.
"Why are you so upset that I refer to you and others as "Board loyalists"?" I am not "upset," but I am mildly irritated, because it's inaccurate – it ascribes a motive to us that we do not necessarily have and, more importantly, do not need to have in order to point out that your fantasies about the 1891 agreement are unfounded. The Trustees have an undeservedly poor reputation on this website, in part because of your inaccurate and silly comments about them, and so calling someone a "Board loyalist" does have a pejorative ring. You are using that phrase (indeed coining it, as far as I can tell) in order to score discussion points. Why don't you let your argument do that for you?
Posted by — August 23, 2007 9:34 AM
So let me try to figure this out. The Board has a bad reputation on this website. I'm partly to blame.
Why not blow it off? Nobody makes you come here, after all. Do you seriously think you're going to talk The Dartmouth Review out of its positions, singlehanded?
Posted by — August 23, 2007 11:11 AM
John, the post to which you responded shold have been separated into two separate posts. Putting the two topics together gave you the chance to respond to the petty one (10%) and weasel out of the substantive one (90%).
Part I: Do you have any other support for your idea that the board should be forced to comply with the 1891 agreement? If not, you should concede that the court is unlikely to interpret the agreement as a contract.
Part II: "Do you seriously think you're going to talk The Dartmouth Review out of its positions, singlehanded?" No, and we wouldn't want to. We are trying to talk you out of using the phrase "Board loyalist."
Posted by — August 24, 2007 7:45 AM
Part I: I'm not an attorney, and since it's not enough for me to cite attorneys' opinions, all I can rely on is a lay person's general understanding of contracts, implied contracts, and estoppel. The next step in this controversy will take place after the Sept 9 Board meeting. All I can say is that it must be clear to many Board members that an action that is taken as abrogating the 1891 Agreement would be very damaging to the College in several ways. This has no doubt been communicated to Haldeman with the utmost seriousness. At this point anything we can say here isn't likely to be useful.
Part II: Who is "we"? Actually, it seems to me that the pro-Board faction has been lying somewhat low in recent weeks. Even Haldeman's remarks in the last D were halfway conciliatory.
Posted by — August 24, 2007 11:07 AM
This is getting weird. Whoever it is that has a personal beef with John Bruce for his choice of words in the dartlog comments should e-mail him personally. Several of the comments here criticize him for not arguing the substance of the issues he complains about, yet those comments have also driven the discussion away from substance.
Posted by — August 24, 2007 11:26 AM
Let us get back on the topic. The topic is the ACTA memo, which has nothing to say about trustee elections but says that President Wright should not be on the nomination committee of the BOT.
Considering that the President will always have a vote on the next Trustee whenever the full Board votes on that person, do you think it matters that he helps select some of the nominees?
Does it also matter that the BOT members who are alumni help select some of the nominees also? -- Through the Alumni Trustee Balloting, natch.
Posted by — August 27, 2007 12:44 PM
If all you "can rely on is a lay person's general understanding of contracts, implied contracts, and estoppel," then feel free to rely on them in your argument. Merely identifying those concepts gets us no further than naming "The Flea" helps us know Donne.
Posted by — August 27, 2007 12:54 PM
12:44, here's the problem. If you could select someone to write your appraisal at work (or give you a grade in a critical course), you'd naturally pick someone who'd give you a good review or grade. It's no different for a university or college president. He has certain Board members in his pocket and can expect they'll give him good raises, approve his expenses, build him an addition on his house, etc. etc.
There appears to be some concern that Wright is doing a less than stellar job but is being protected by his own presence on the Committee on Governance, as well as the ability to influence who else is on the committee.
Short form: this isn't what we want in an accountable institution.
If the alumni elect Board members, no single alum is going to have the votes to put in a member who will make sweetheart deals of one sort or another.
Flee, there has been an ongoing discussion of estoppel, contracts, laches, and so forth over the past couple of months here. Bottom line is that the 1891 Agreement, to all but Ed Haldeman and a few others, including one persistent nemo here, is a contract and enforceable. It appears that we will begin to see the fallout from this in about 2 weeks.
Posted by — August 27, 2007 2:05 PM
"Bottom line is that the 1891 Agreement, to all but Ed Haldeman and a few others, including one persistent nemo here, is a contract and enforceable."
Incorrect. It's not a contract. Your repetition of this wacky idea does not make it a contract, nor do your mentions of (or attempts to explicate) legal doctrines.
Someone needs to tell you in plain words that the trustees are not accountable to you, the alumni, or the Alumni Association. No one cares what anyone "wants in an accountable institution" if you are referring to a private college, since you cannot -- and, properly, should not be able to -- hold it to account for anything merely on the basis that you are a graduate or a donor.
If you have ideas about how the trustees should manage Dartmouth that you believe they have not encountered yet, then you should drop them a note with your suggestions. You have no right to expect them to do anything about it.
Posted by — August 28, 2007 4:06 PM
So I'm curious. Other than insisting that the 1891 Agreement is not a contract (though "agreement" and "contract" in the legal sense are synonymous), and insisting that the burden is on me to prove it's a contract (actually, no, there will probably be a court case that proves this), what are your reasons for insisting it's not? I dokn't think you've ever outlined them.
Posted by — August 28, 2007 4:16 PM
John, I understand why you would want the 1891 agreement to be enforceable, since it would give you more influence than you now have over Dartmouth. A lot of people who feel that way are just as ignorant as you are. What I don't understand is why you are so certain of the correctness of your position.
Let's assume "agreement" and "contract" (not synonymou) both refer to a promise by the board to do something; that promise would be enforceable by the AoA in your world.
There is no "burden" on "a court case" to prove that an enforceable agreement exists. There is a burden on whoever wants to enforce such an agreement, which is you at the moment and will be the plaintiffs in such a court case. I don't have to "prove" that your belief is incorrect; it is enough for me to request some justification from you. The 1891 agreement is not enforceable as a contract unless you can show otherwise. That's my outline.
Why would a court agree with you after reading all the documents ("nominate" vs. "elect") and learning that the board has never amended its charter obligation to elect trustees?:
"A corporation is a creature made by a legislative act. . . . It has such powers and such only as are expressly granted to it, or such as are necessarily incidental to those granted. Its incidental powers are . . . not such as have a slight or remote relation to those granted. And the rights, powers, and franchises, conferred upon the corporation by its charter, are for itself to use and exercise. It cannot delegate them to others without the expressed consent and authority of the legislature,--the power creating it. It cannot absolve itself from its duty to use and exercise the privileges granted, by asking or permitting others to do it, even though others may do it as well."
Burke v. Concord R.R. 61 N.H. 160, 1881 WL 4692, at *14 (1881) (emphasis added).
"[A] corporation . . . may not act in any way not authorized by the articles or the declaration. S & T Anchorage, Inc. v. Lewis, 575 So.2d 696, 698 (Fla. Dist. Ct. App. 1991). '[A]cts beyond the scope of the powers so [authorized] are ultra vires.' Seabrook Island Prop. Owners Ass'n. v. Pelzer, 292 S.C. 343, 356 S.E.2d 411, 414 (App.1987).
Schaefer v. Eastman Cmty Ass'n, 150 N.H. 187, 836 A.2d 752, 755 (2003); see also Seabrook, 356 S.E.2d at 414 ("[A]cts beyond the scope of the powers so granted are ultra vires. The 'business judgment' rule applies to intra vires action of the corporation, not to ultra vires acts.") (citations omitted).
Posted by — August 28, 2007 4:55 PM
"Synonymou" looks like it might be a Greek dish but is meant to read "synonymous."
Posted by — August 28, 2007 4:57 PM
You seem to impute to me a desire to have more power over Dartmouth. I have zero power over Dartmouth at the moment, and I simply can't imagine a situation in which I might gain any more than I have. The only possibility would be to do something so absurdly heinous, while citing my alumnus status, that I could damage the College's reputation. But I wouldn't need the 1891 Agreement do to anything like that. So your attribution of motive is unrealistic. Why on earth would I even want more power over Dartmouth? I live 3000+ miles away.
The text of the 1891 Agreement, as annotated on the VoteDartmouth.org site, makes it plain that the Board will "elect" nominees from the AoA. There is both a written record that the parties intended to come to an agreement that this would be done, as well as 116 years of following this agreement. The Board in that time has not asserted a right not to elect the nominees from the AoA, and it appears that there has been some legal discussion in connection with the John Steel nomination in 1980 that this matter was discussed and disposed of at the time. (In part this is cited in the recent Frank Gado interview at The Dartmouth Review.)
The Board itself, most recently in an August 15 letter from Ed Haldeman to alumni, has not cited any such argument, which interests me. Instead, the Board keeps saying it has been talking to consultants about best practices. In fact, it's been repeating itself over this. We'll see soon enough, but it interests me that the Board doesn't seem to think much of your line of argument.
Posted by — August 28, 2007 7:35 PM
Wait just a minute, John -- first you say alumni, including you, have a right to elect trustees. Now you open your hands and say, no, you don't have any power over the board at all, and of course couldn't possibly want any....
Which is it?
You cannot hold the board's consistency in voluntarily electing alumni nominees against it.
"It interests me that the Board doesn't seem to think much of your line of argument." Wait a minute -- the Board or Neukom or Haldeman says specifically that there is no requirement of parity, calls the agreement an "agreement" in quotes while saying it is not a binding contract, and judiciously (doubtless to avoid inflaming those alumni who are ignorant or delusional) refrains from saying anything about the agreement until it can release its new policy. What makes you think the Board has any sympathy for your cuckoo contract idea?
And why, if the Board were to favor the election of alumni nominees as Board policy, would it need to have any opinion on the existence of a contract at all? It could just vote for the alumni because it wanted to without ever testing whether it actually had to do so. (This is what gets me about the insurgents' writing misleading letters and articles about the 1891 agreement -- now that they are insiders, they, of all people, no longer depend on the existence of a supposed "right" to elect trustees. They have a chance to elect alumni nominees, if they so choose, just by voting in Board elections at Board meetings.)
To get back on topic: the Board would not be wise to make any comment on the nonexistence of a contract, especially in this environment, until it releases its official policy changes. And more importantly, the Board doesn't have to say that a nonexistent contract doesn't exist for its nonexistence to be genuine. This is your burden-of-proof problem again. You can't rely on some amateurish and anonymous annotations on a website to explain the 1891 agreement, and you certainly can't do so here, since those annotations were eviscerated in a previous comment. Have you read the demolition of Zywicki's lame policy paper at the Dartmouth Independent? Do you still think that you have the power as an alumnus to elect trustees?
Posted by — August 30, 2007 10:34 AM
I never claimed I had the power as an alumnus to elect Trustees. I have the power to nominate Trustees whom, for 116 years, the Board elects. Just as I have the power to choose Electors who elect the President of the US.
I'm not an attorney (you've never said, by the way, whether or not you are), but "considerations" may surely be intangible. I send my child to a university in expectation that he or she will get an "education", in return for which I pay $xx,xxx per year. I pay much more for a Yale degree than one at Podunk State, even though the number of classes, exams, dorm room dimensions, dining hall menu, etc., may be nearly indistinguishable.
The Dartmouth alumni had been, as far as I can determine from the record, pestering the Board for some decades over representation. One "consideration" must certainly have been that the alums said they were happy.
Let's take another situation: a bunch of residents (unincorporated) of an area want access to the beach, but Mr. Moneybags, who owns the property adjoining the beach, won't let them have it. The residents pester Mr. M., who tired of the demonstrations and editorials, finally agrees to let them have access via a designated path. Where is the "consideration"? Is this invalid because the "association" is unincorporated? 116 years later, Mr. M's heirs decide to close off the property, arguing that therew was no consideration, the association was not eligible to enter into a contract, and it's Mr. M's property.
You'd have an interesting case and no assurance that Mr. M's heirs would win. Laches and estoppel apply, which the Yale prof doesn't mention at all.
What puzzles me here is that I keep asserting that (1) I am not an expert; (2) events will illuminate the situation in the near future better than any of us can; and (3) there will almost certainly be a lawsuit if the Board changes the 1891 terms. This seems to upset you, though the only upsetting part of it, as far as I can see, is the introduction of time and uncertainty. There are those, of course, who abhor both.
Posted by — August 30, 2007 11:14 AM
John, real estate does not make for good analogies here. As long as Moneybags gave people permission to cross his property, the public would not gain a right to use it. (Laches and estoppel would be even weaker than that easement argument in the face of private property rights.)
Laches is just not relevant to the 1891 "agreement," and the Yale Law prof does address estoppel:
It is equally far-fetched to claim that the Board is bound by the 1891 resolution in perpetuity because "the alumni" (which alumni? all of them? some of them?) have relied on these arrangements in one way or another. It would be well-nigh impossible for any graduate of the College to claim, much less prove, that financial contributions to Dartmouth were made in the expectation that alumni would in perpetuity nominate half of the members of the Board of Trustees. But even if such a claim could be asserted with a straight face, no court on that basis would enjoin the Trustees, in the exercise of their fiduciary responsibilities, from superseding their own resolution (as amended in 1961 and 2003)--any more than a court in 1972 would have enjoined the Trustees from admitting women to the College on the basis that a contributor to the College "relied" on its historic commitment to single-sex education.
And you haven't addressed the prohibition against the Board giving third parties a nomination right, which is hinted at in the reference to fiduciary duty above and is explained in the Burke and Schaefer quotations.
I.e. even if you dug up a copy of a signed contract in which the board ostensibly promised to elect nominees, you couldn't hold it against them as you are now hoping to do.
Why have you decided to hide behind your ignorance (lack of expertise)? It hasn't stopped you from asserting your claims with confidence in the past. Maybe your tone is partly to blame for the criticism you seem to draw. Are you aware that you write as if you know what you are talking about?
Even your claim, made in ostensibly neutral tones, that there will be a lawsuit "if the board changes the 1891 terms" implies that that there really are some 1891 terms [of an agreement, you imply] and that the board is about to change or "abrogate" them. Both implications are false, and to make them is to merely stake out a political position against the board, not to state a fact -- although your tone implies that you know what you're talking about.
Posted by — August 30, 2007 11:49 AM
But you haven't answered whether you're an attorney.
My tone, as far as I can see, is declarative. I'm not an expert (for the nnnth time), but it seems almost certain that there will be a lawsuit in the Board changes the terms of the 1891 resolution and concurrent minutes of the AoA. What we have in the record is two lawyers who disagree, and the result in common sense is likely to be a lawsuit, especially if money is added to the formula. Money there assuredly is on both sides.
I think in general, though, that a court will interpret a set of documents that strongly implies an intent to come to an agreement in a way that will support the agreement. This is a standard clause in many contracts anyhow, though I suspect not necessary. But let's say an unincorporated group (a local historical society, for example) deals with a contractor to restore a historic house. The contractor completes the work specified, but the historical society says nyah nyah, we're not going to pay, because we're unincorporated and not legally able to engage in a contract. I don't think this would hold water, but deals like this are made every day. It is certainly possible for an unincorporated group to open a bank account, for instance -- I've seen it done.
You also have bad facts, in that the Board just a couple of years ago completed a review of its function and added two members (following the 1891 provisions). Then all of a sudden it wants to think everything through all over again, after the Alumni Constitution was defeated
One thing that puzzles me is that, even if the Board felt entirely sure of its legal ground, it seems intent on poisoning the College's relationship with a large segment of alumni, as well as damaging its image in the media. There is a fiduciary responsibility here, too, as well as being just plain dumb.
Posted by — August 30, 2007 12:40 PM
Further to my comment above, Stith-Cabranes says in the Dartmouth Independent post, "the Association of Alumni is an unincorporated association without capacity to contract." I was puzzled about this, and I Googled "unincorporated association contract". I got many, many references to the fact that under many state laws, and under the common law, an unincorporated association is able to contract and open bank accounts (see my post above, where I saw this done). It's possible New Hampshire is a big exception, but I'd feel more comfortable if Stith-Cabranes had explained this in more detail. I don't have access to her citation, but it must be very, very exceptional.
This makes me skeptical of the rest of the argument.
Posted by — August 30, 2007 1:48 PM
True, there will be a lawsuit. You are still trying to make legal arguments, so I will too (I'll bet I know more about model trains or whatever than you do about the law!):
On the record is one lawyer who explains in detail why the alumni will most assuredly lose, and one (the earlier writer, admittedly) who expresses his disagreement but has not yet provided any authority. (His parity op-ed did not argue for the existence of the agreement. I believe he left out that argument because it would have taken space, because he knows that such an argument will fail, or because he was writing a propaganda piece aimed at those who were already smoking the same weed.)
The "implied contract" discussion is made unnecessary by a fact that you continue to overlook: state law prohibits the board from giving its election duty to anyone else, even if the board wants to. (And your implied contract, if it were not killed that way, would expressly reserve the election right to the board anyway; that's why it lets the alumni "nominate" only. A right to nominate is not a right to elect.)
I haven't raised the Association's unincorporated status, but Stith-Cabranes did, saying that the Association has no capacity to contract. It's true, just as with minors – even though they might try to form contracts (by opening bank accounts), they generally can't be held to them. In your example, the contractor would be out of luck, and he would probably have refused to work for the association in the first place for that reason.
What are you talking about with "bad facts"? The board added new members recently and planned to add more in the future. That's commonly known and available on the web. No one forced it to reserve some of the new seats for "Alumni Trustees," and no one could.
How exactly is the board poisoning its relationship with alumni? Are you referring to the secret creation by one or more board members (Smith) of the savedartmouth.org website? Or the other embarrassing and misleading propaganda sites? Or the ignorant zealotry of the Association's mailings? Or the unprofessional letter sent by four members of the board claiming that alumni have a right to elect trustees? How has the board done anything "in the media" except issue a few statements saying there's a governance study under way? Why are you trying to blame this on the board instead of on those at fault?
Posted by — August 30, 2007 2:29 PM
This thread has degenerated into the special olympics of armchair lawyers.
The status of the 1891 document is tough to figure out. I don't see any obvious flaws in Zywicki's or Stith's arguments, nor do I see any slam-dunk arguments. I don't think Wikipedia or appeals to common sense do it.
The discussion should be about what's best for the college, not how credible the Phrygian threat of a lawsuit is.
Posted by — August 30, 2007 2:40 PM
It's not fair to compare the two law professors' articles. Zywicki has not yet made an argument for interpreting the various board resolutions as a contract. He only said that the resolutions were a contract and then went on to dissect one particular term of that contract.
John Bruce is right, there is a lawsuit coming. It will be filed by the Association of Alumni, if Frank Gado has his way, or by a small group of individual alumni. If the Phrygian society is made up of students, it will probably not come from them.
Posted by — August 30, 2007 3:10 PM
2:29, you missed my point regarding Stith-Cabranes and unincorporated associations. She appears either to be in error or to be citing some specific New Hampshire provision which she doesn't otherwise explain on her post. Unincorporated associations can in fact enter into contracts. A partnership, for instance, is an unincorporated association. In fact, an unincorporated association is an implied contract. Google is your friend!
Posted by — August 30, 2007 4:08 PM
For what it's worth, a visitor here who is an attorney sent me a PDF copy of the New Hampshire case Stith-Cabranes cites in the Dartmouth Independent post. It turns out to cover the liability of individual members of an unincorporated association, which is a separate legal issue, and it says nothing on whether an unincorporated association can enter into a contract, which as far as I can tell is pretty universally OK.
So this is another reason for me to mistrust Stith-Cabranes. If I were the Board, I'd be looking for another opinion, too!
Posted by — August 30, 2007 5:10 PM
Zywicki has not yet made an argument for interpreting the various board resolutions as a contract. He only said that the resolutions were a contract and then went on to dissect one particular term of that contract.
Special Olympics of armchair lawyers. When you're trying to figure out whether something is a contract, one of the questions you ask is whether the parties to it intended it to be a contract. Zywicki's argument on that point is rather thin (you're right that he focuses on what the terms of the contract are, assuming that it's a contract), but it's there.
Mr. Bruce, I've read a lot of Kate Stith's scholarship, and she's very, very good. The fact that your lawyer friend reads one of the cases she cites differently from the way she does means that there's a counterargument, not that you can't trust her. I could go on at length about the legal flaws in your argument, but you seem entirely uninterested in logic or reasoning unless it supports your ultimate conclusion. The last several months of this blog are polluted with your ignorance and with equally ignorant attempts to respond to your ignorance. This is my last response to any of your posts, and I encourage the other commenters to follow suit.
We'll go retreat to our "Board loyalist" country club, and you can continue to trumpet your conspiracy theories, your legal education that you've gotten from wikipedia and your lawyer friends, and your speculation about what makes Board members tick.
Hopefully someone else will take up the business of discussing what's best for the college.
Posted by — August 31, 2007 8:38 PM
Yes, Anon 8:38, it's over for John Bruce. And it's over for all of us. We've had this quaint relationship with John Dickey's college. Now it's time to find a good homeless shelter or soup kitchen that will be happy to accept our small contributions.
I too sign off.
Posted by — August 31, 2007 9:31 PM
.
.
.
.
The threat must be made clear:
.
.
Either parity or diversion.
.
.
Withholding funds is a threat, but not a realistic one as Dartmouth can survive off large endowment funds and donations from almost half these levels.
The donor participation might drop, but it already is lower than it should be.
What is really scary is if the current Association of Alumni executive committee established a new 501(c)3 trust, named 10 new 10 year trustees to it (one to be elected each year successively) and started to request funds to benefit the association of alumni, the College, or Dartmouth related activities as the new trustees saw fit. Call it the Association of Alumni of Dartmouth College Endowment Trust.
All donations should not be withheld, but diverted to the new Endowment.
1% of every donation should be yearly forwarded to the College to maintain our donor participation. The College has wrecked participation rates, and challengers have recently improved these rates across the board and shouldn't threaten to lower them.
The impact of the alumni's endowment would be real. Alumni could officially donate to the new official fund, which would build up and at some point, the new endowment could have the bargaining power to force a full and lasting charter revision that even the dead-enders in the administration would be grudgingly accept: perpetual parity.
Every alumni officer to every class, council position, or association position must be asked:
Will you or won't you support alumni parity on the Board of Trustees?
Every donor must be asked:
Will you willingly divert your donation to the alumni's fund to be held in trust until the board permanently recognizes alumni parity on the board?
Withdrawal or lawsuits?
Perhaps a structured threat of diversion is more powerful.
Posted by — September 01, 2007 11:24 AM
Actually, I haven't been able to find much scholarship by Stith-Cabranes, at least on Google. Her only book, as far as I can tell, was co-authored with her husband, who is well connected indeed.
For a digest of what I've been able to come up with on her career, see here.
Posted by — September 01, 2007 1:15 PM
Does anyone see a parallel between the 1891 agreement and the 17th Amendment, which made the election of senators more democratic in 1913 by giving their elections to the voters?
We should ask Todd Zywicki. He wants to repeal the 17th Amendment.
His paper is here.
Posted by — September 01, 2007 11:06 PM
John, your wife should be able to tell that Stith-Cabranes' "No Contract" piece is not an academic article, but at least it cites to legal authorities, unlike Zywicki's.
The piece is about contract law -- if your wife is a corporate lawyer, she's out of her element too. What makes her think the piece is only minimally competent for an article in a student paper?
And can you ask your wife why she would think the article is really an answer to Zywicki's? Because Zywicki has not yet made the argument that the 1891 agreement is a contract. His piece presumed the existence of a contract and focused in on just one of its terms, the "parity" term. There is still room for him to answer Stith-Cabranes. I wonder whether he will be able to do it.
A detailed article by a Yale Law prof. and alumna is better authority than John's paraphrase of his wife's opinions.
Posted by — September 01, 2007 11:37 PM
John, more armchair lawyering? You never read the case cited by Stith-Cabranes if you think it "says nothing on whether an unincorporated association can enter into a contract." Stith-Cabranes cited to a specific proposition in the opinion:
A voluntary association, except as provided for by statute, see RSA 292:12-14 (unincorporated associations deemed corporations for receiving and using donations), has no legal existence apart from the members who compose it. See Lyons v. Am. Legion Realty, 172 Ohio St. 331, 333, 175 N.E.2d 733, 735 (1961). See generally H. Oleck, Non-Profit Corporations, Organizations, and Associations, § 32, at 63 (3d ed. 1974). Unlike a corporation, which can act in its own person, "the individuals who compose an association act only by virtue of a mere agency, with their privileges and duties defined by the contract they have made." Forest City Mfg. Co. et al. v. Garment Workers' Union, 233 Mo.App. 935, 944, 111 S.W.2d 934, 940 (1938).
Posted by — September 01, 2007 11:50 PM
I love this -- John Bruce, a crypto-Marxist in his sixties who still has not finished his Ph.D. (in English!) calls Scott Johnson of Power Line a "jerk"? Because he says Kate Stith-Cabranes is "a fine person"?
Posted by — September 01, 2007 11:58 PM
The question of unincorporated associations is interesting. First, the College has, for 116 years, itself treated the AoA as an entity separate from its individual members, since the Board has continued to notify the Aoa of vacancies among alumni members. You also have the case that four individual alumni brought around 2000 against Dartmouth that was thrown out of court because only the AoA had standing to sue(!!!!)
I assume that unincorporated associations in New Hampshire, as they do everywhere else, open bank accounts and do in fact execute contracts. This is just one of the factors that will make a lawsuit a very interesting case.
Yes, I'm calling Scott Johnson a jerk. He's kissing Kate's butt, presumably because you never know when you might want to be on Cabranes's good side! It's a very good reason not to blog if you've got that kind of a job, but my impression is the Power Line guys find their legal work dull (and they're dull guys anyhow), so they spend most of their time on the blog. The amount of time and effort that must go into their very conventional posts is astonishing. You don't have to be like those guys to deviate from liberal orthodoxy.
Posted by — September 02, 2007 10:49 AM
Mr. Bruce, thank you for Googling Stith-Cabranes on our behalf. Who would have thought that she is both wealthy and somewhat socially prominent? By adding your sense of envy or scorn at her background, you have given us new insight into her legal analysis.
Speaking of which: can you tell us why no lawyer on the pro-alumni (anti-trustees, anti-charter) side has yet come up with a coherent explanation of the idea that the 1891 agreement is a contract? This controversy has been going on for a couple of weeks now, and yet Zywicki and Smith, both lawyers, conspicuously exclude any legal analysis from their propaganda website (savedartmouth.org). Are they so full of bluster because they know that, lacking a viable case, they can do no more than exert pressure through public opinion? Maybe they just haven't found a good enough lawyer yet.
How do you explain this absence? Do you predict that someone will supply a legal analysis that bolsters your claim any time soon?
Posted by — September 03, 2007 9:31 AM
Well, considering the Board's decision on how to proceed is due in less than a week, I strongly suspect we will see this legal analysis appearing in some actual legal action soon afterward, assuming the Board does what it telegraphs it's planning to do.
If the anti-Board faction has the money for NY Times ads and web sites, we may assume that it also has the money to pay for litigation, and my guess is that prep work has been underway.
To assume a slapdash piece of work by someone who isn't a contracts specialist (Stith-C) answers your concerns is whistling past the graveyard, it seems to me.
Posted by — September 03, 2007 10:26 AM
So John can't explain why the anti-charter faction has failed thus far to present a legal argument in favor of the contract theory. He just assumes that they are working on one and have the money to do so, since they paid for an ad in the Times.
That's a lot of credit to give Stephen Smith, who is a criminal law specialist, isn't it? Or does John think Smith's group (CSDC) has hired someone more qualified to write the argument for him?
John just isn't qualified to call S-C's article "slapdash," especially since his only objection so far has been to its (throwaway) citation to the capacity-to-contract proposition. He is out of his league, and being married to a corporate lawyer (who, by the way, comes off as fairly ignorant in his description, which I hope is an inaccuracy introduced by him) does not qualify him to make an judgment about the quality of a legal argument. Especially about one written by a Yale Law prof about whom his only objection is that she now specializes in some area other than contract law. Especially when his side's come up with nothing more than Todd Zywicki's mere editorial, which Fred Sharpless, using as little legal authority as Todd does, takes down on the AoA site. [I am no relation to Fred but use his Emperor Has No Clothes title.]
The only logical assumption to draw from the failure of the anti-charter folks to put out any legal argument comparable to S-C's is that they have none. Isn't that why they are putting so much money into propaganda? They haven't got a leg to stand on if this comes to a court fight, so they are spending thousands on public pressure. If they had a case (or even a claim -- the trustees have done nothing to them) then they would make it public.
Posted by — September 03, 2007 12:31 PM
Wait a sec. The Emperor sees a problem that Smith, not a contract specialist, hasn't advanced an argument that the 1891 Agreement is a contract, but he doesn't see a problem that Stith-C, not a contract specialist, has.
The legal arguments will be advanced, I assume, within a week or so, if nothing that's been said so far satisfies you. What puzzles me is that you and others are so anxious to get after some folks like me, whose opinions are neither here nor there.
On the other hand, you've got what seems to be an unprecedented situation where TJ Rodgers seems to have broken the Board traditions or oath or whatever it is and come out swinging in this past Saturday's Wall Street Journal. This strikes me as an embarrassment to the Board and the College's leadership, in effect a leadership meltdown. The equivalents I can think of are the Parkhurst takeover under McLaughlin and the successful lawsuit of the Dartmouth Review students against the College when they were suspended for "vexatious oral exchange". Both episodes, the Parkhurst more clearly than the other, led to the departures of the presidents involved.
Debates among blog commenters are small potatoes. Bigger things are happening, guys.
Posted by — September 03, 2007 1:29 PM
warhammer gold warhammer money warhammer accounts tibia money tibia gold tibia item runescape accounts buy runescape accounts runescape money runescape gold runescape gp runescape power leveling runescape powerleveling cheap rs2 powerleveling runescape equipment buy rs equipment runescape runes cheap rs2 runes runescape logs cheap rs2 logs runescape items buy runescape items runescape quest point rs2 quest point cheap runescape questpoint runescape gold runescape items runescape power leveling runescape money runescape gold buy runescape gold buy runescape money runescape items runescape accounts runescape gp runescape accounts runescape money runescape power leveling runescape powerleveling tibia gold dofus kamas buy dofus kamas wow power leveling wow powerleveling runescape questpoint rs2 questpoint Warcraft PowerLeveling Warcraft Power Leveling World of Warcraft PowerLeveling World of Warcraft Power Leveling Hellgate money Hellgate gold buy runescape logs buy rs2 items cheap runescape items Hellgate London gold Guild Wars Gold buy Guild Wars Gold runescape items rs2 accounts cheap rs2 equipments lotro gold buy lotro gold buy runescape money buy runescape gold buy runescape runes lotro gold buy lotro gold runescape money runescape gold cheap rs2 powerleveling eve isk eve online isk buy runescape power leveling rs2 power leveling tibia gold tibia item runescape accounts Fiesta Silver Fiesta Gold Scions of Fate Gold Hellgate Palladium Hellgate London Palladium SOF Gold Age Of Conan Gold AOC Gold ArchLord gold tibia money tibia gold runescape accounts runescape gold cheap rs2 powerleveling buy ArchLord gold DDO Plat Dungeons and Dragons Online Plat
Posted by — October 17, 2008 10:07 PM
A片,aio,av女優,av,av片,aio交友愛情館,ut聊天室,聊天室,豆豆聊天室,色情聊天室,尋夢園聊天室,080聊天室,視訊聊天室,080苗栗人聊天室,上班族聊天室,成人聊天室,中部人聊天室,一夜情聊天室,情色聊天室,情色視訊,美女視訊,辣妹視訊,視訊交友網,免費視訊聊天,視訊,免費視訊,美女交友,成人交友,聊天室交友,微風論壇,微風成人,sex,成人,情色,情色貼圖,色情,微風,聊天室尋夢園,交友,視訊交友,視訊聊天,視訊辣妹,一夜情
情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,按摩棒,跳蛋,充氣娃娃,情境坊歡愉用品,情趣用品,情人節禮物,情惑用品性易購,A片,視訊聊天室
免費A片,AV女優,美女視訊,情色交友,免費AV,色情網站,辣妹視訊,美女交友,色情影片,成人影片,成人網站,A片,H漫,18成人,成人圖片,成人漫畫,情色網,日本A片,免費A片下載,性愛
A片,色情,成人,做愛,情色文學,A片下載,色情遊戲,色情影片,色情聊天室,情色電影,免費視訊,免費視訊聊天,免費視訊聊天室,一葉情貼圖片區,情色,情色視訊,免費成人影片,視訊交友,視訊聊天,視訊聊天室,言情小說,愛情小說,AIO,AV片,A漫,av dvd,聊天室,自拍,情色論壇,視訊美女,AV成人網,色情A片,SEX
情趣用品,A片,免費A片,AV女優,美女視訊,情趣用品,A片,免費A片,日本A片,A片下載,線上A片,成人電影,嘟嘟成人網,成人,成人貼圖,成人交友,成人圖片,18成人,成人小說,成人圖片區,微風成人區,成人文章,成人影城,情色,情色貼圖,色情聊天室,情色視訊色情網站,一葉情貼圖片區,做愛,性愛,美女視訊,辣妹視訊,視訊聊天室,視訊交友網,免費視訊聊天,美女交友,做愛影片
av,情趣用品,a片,成人電影,微風成人,嘟嘟成人網,成人,成人貼圖,成人交友,成人圖片,18成人,成人小說,成人圖片區,,情色,情色貼圖,色情聊天室,情色視訊,情色文學,色情小說,情色小說,色情,情色電影,aio,av女優,AV,免費A片,日本a片,美女視訊,辣妹視訊,聊天室
情趣用品.A片,情色,情色貼圖,色情聊天室,情色視訊,情色文學,色情小說,情色小說,色情,寄情築園小遊戲,情色電影,色情遊戲,色情網站,聊天室,ut聊天室,豆豆聊天室,美女視訊,辣妹視訊,視訊聊天室,視訊交友網,免費視訊聊天,免費A片,av女優,av,成人電影,成人,成人貼圖,成人交友,成人網站,自拍,尋夢園聊天室
Posted by — December 15, 2008 9:49 AM
runescape money runescape gold runescape money buy runescape gold buy runescape money runescape money runescape gold wow power leveling wow powerleveling Warcraft Power Leveling Warcraft PowerLeveling buy runescape gold buy runescape money runescape itemsrunescape accounts runescape gp dofus kamas buy dofus kamas Guild Wars Gold buy Guild Wars Gold lotro gold buy lotro gold lotro gold buy lotro gold lotro gold buy lotro gold runescape money runescape power leveling runescape money runescape gold dofus kamas cheap runescape money cheap runescape gold Hellgate Palladium Hellgate London Palladium Hellgate money Tabula Rasa gold tabula rasa money Tabula Rasa Credit Tabula Rasa Credits Hellgate gold Hellgate London gold wow power leveling wow powerleveling Warcraft PowerLeveling Warcraft Power Leveling World of Warcraft PowerLeveling World of Warcraft Power Leveling runescape power leveling runescape powerleveling eve isk eve online isk eve isk eve online isk tibia gold Fiesta Silver Fiesta Gold
Age of Conan Gold
buy Age of Conan Gold
aoc gold
呼吸机
无创呼吸机
家用呼吸机
呼吸机
家用呼吸机
美国呼吸机
篮球培训
篮球培训班
篮球夏令营
china tour
beijing tour
beijing travel
china tour
tibet tour
tibet travel
computer monitoring software
employee monitoring
Posted by 莉 — December 25, 2008 9:30 PM
铜米机
碳雕
炭雕
活性炭
活性炭雕
空气净化产品
好想你枣
北京好想你枣
网站建设
网站推广
googel左侧优化
googel左侧推广
搜索引擎优化
仓壁振动器
给料机
分子蒸馏
短程蒸馏
薄膜蒸发器
导热油
真空泵油
胎毛笔
手足印
婴儿纪念品
婴幼儿纪念品
园林机械
草坪机
油锯
小型收割机
收割机
割灌机
割草机
电动喷雾器
地钻
采茶机
飘人|飘人2008|云淡风清
铣刀
意大利留学
留学意大利
钢管舞
钢管舞培训
北京钢管舞
爵士舞
北京音皇国际
印刷厂
油锯
割草机
绿篱机
风力灭火机
留学意大利
意大利留学
好日子小吃车
好日子烧烤小吃车
好日子多功能小吃车
好日子烧烤车
中频感应熔炼锻造设备
高频感应加热钎焊设备
保护膜
佛具
律师事务所
北京律师事务所
法律咨询
北京律师
北京法律咨询
小吃车
多功能小吃车
烧烤小吃车
烧烤车
拓展训练
水泥艺术围栏
水泥艺术围栏设备
水泥艺术围栏机械
水泥栅栏设备
艺术护栏
艺术栏杆
环保艺术围栏
环保围栏
环保围栏机械
环保围栏设备
彩色艺术围栏
花瓶柱
阳台柱
阳台护栏设备
阳台护栏
塑料轴承
陶瓷轴承
破碎镐
铣刨机
china tours
china travel
china tour packages
tibet tour
泳池设备
桑拿设备
高低温试验箱
盐雾试验箱
割草机
风力灭火机
绿篱机
输液轨道
输液吊架
轨道输液架
医用吊架
天轨输液吊杆
医用扶手
输液架
设备带
治疗带
中心供氧
博客1
博客2
博客3
博客4
博客5
博客6
博客7
博客8
博客9
博客10
博客11
博客12
博客13
博客14
博客15
博客16
博客0
博客刘
网站建设
网站推广
googel左侧优化
googel左侧推广
搜索引擎优化
铜铝连接管
铜铝连接管焊机
千古一香小吃车
千古一香烧烤小吃车
千古一香多功能小吃车
千古一香无烟烧烤小吃车
搬家公司
北京搬家公司
北京朝阳区搬家公司
通州区搬家公司
北京通州区搬家
海淀区搬家公司
北京市丰台搬家公司
冷缠防腐胶带
环氧煤沥青冷缠带
防腐漆涂料
防腐材料
聚丙烯增强纤维防腐胶带
环氧富锌底漆
耐高温漆涂料
环氧树脂漆
环氧煤沥青
玻璃鳞片涂料胶泥
机柜
IBM机柜
APC机柜
VEOR机柜
切换器
好日子多功能小吃车
好日子小吃车
好日子烧烤小吃车
北京好日子小吃车加盟
好日子小吃车
好日子多功能小吃车
一品香小吃车
千古一香小吃车
上海租车
上海汽车租赁
上海租车网
平安保险北京
北京平安保险
石材翻新
石材结晶
石材养护
搬家公司
北京市搬家公司
朝阳区搬家公司
通州搬家公司
顺义搬家公司
亦庄搬家公司
玻璃喷砂机
喷砂机
打砂机
玻璃机械
Posted by wooaini — February 10, 2009 4:30 AM
(we enforce our comments policy)
|