Thursday, April 24, 2008

Zywicki on AoA Election

Joe Malchow points us to this post by Todd Zywicki '88 over at the Volokh Conspiracy. Trustee Zywicki provides a brief history of the controversy surrounding this year's AoA election. He also looks at the similarities between the current case and the famous Dartmouth College v. Woodward case.

Below the fold: Todd Zywicki on Dartmouth v. Woodward, Daniel Webster, and the current election.

One final note--in this context I've been reading a great deal in recent months about the famous Dartmouth College v. Woodward case (the Dartmouth College I case). Interestingly, those such as Daniel Webster who opposed that earlier board-packing plan were roundly criticized at the time as reactionary opponents of progress. Moreover, many thought it frivolous for Webster to contend that the board-packing plan breached a contract in violation of the Contracts Clause. Webster won, of course, as the Supreme Court found that the College charter was a contract that could not be abrogated. Despite contemporary opposition to Webster's litigation, few today would doubt that bringing the case to enforce the contract was appropriate and a pivotal moment for Dartmouth. America is a country animated by the rule of law and when a party legitimately believes its rights to be violated, it is appropriate to ask a neutral judge to decide the matter.

Read the full post here.


Anonymous said...

No wonder this guy is a law professor at a second-rate school.

Who was Webster's client in Dartmouth v. Woodward?

The Board of Trustees.

Who was doing the "Board-packing" at that time?

The State of New Hampshire.

Who did Webster argue had the sole right to change the Board?

The Board of Trustees.

Who has recently changed the Board?

The Board of Trustees.

Who has recently sought to use the force of the State of New Hampshire to stop the Board from altering its own composition?

Alex Mooney (pro-lawsuit candidate), John McGovern (Hanover Institute), Joe Malchow '08 (turd).

If Webster were alive today, he would be anti-lawsuit.

Great analysis, there, Zywicki. Go back to soliciting donations for your employer at the expense of the College to which you have vowed fiduciary duty.

Anonymous said...

Great comment, but there's no need to trash Zywicki's law school. This isn't GMU's fault, and it's actually a pretty good law school.

As Zywicki omits from his post, though, the case is officially known as Trustees of Dartmouth College v. Woodward.

The Dartmouth info page on the case is here:

Full Supreme Court opinion here:

Anonymous said...

Board packing is Board packing, regardless if done by the NH legislators, FDR, or the current Dartmouth trustees. Zywicki's comparison is valid.

Anonymous said...

Ditto says:

Webster argued the charter was an agreement that needed to be followed as a binding contract.

The Alumni argue the 1891 agreement is also binding.

It matters not that the Trustees then and now were on differing sides. Both Webster and the Alumni are plaintiff's arguing that an agreement be honored. Zywicki has it right.

Truth Be Told said...

The Dartmouth College case was about whether the State of NH could modify the College's charter w/o the College's approval. The SCOTUS found that it could not.

Webster certainly did NOT argue that had the Trustees had the sole right to change the Board!

Up until 2003, the College could not modify its Charter without the approval of the State. Both parties had to agree.

Anonymous said...

Anon. 4:31, I noticed that you did not say that the AoA is arguing that the Charter is binding today. Because if the AoA were to ask the Board to follow the Charter strictly, there would be no law suit.

Webster argued for the Trustees that the Charter was a contract and thus was immune from state interference.

The AoA/HI and their law suit argue against the Trustees that the Charter is not binding, and they argue in favor of state interference.

How do they argue the Charter is not binding? The law suit claims that the Trustees sold alumni the right to elect half the board in 1891. But under the law of 1891 (and probably today too) such an act, in direct contradiction of the Charter's grant of election rights to the Trustees, would have been ultra vires and would have made the "contract" void.

How do they argue for state interference? Law suit proponents Alex Mooney, John MacGovern, and Joseph Malchow, all officers or employees of the AoA or HI, testified for the bill that proposed to reintroduce state control of Charter amendments. The four Executives who did not testify or work for the HI voted against a resolution to withhold support from the bill.

"Board-packing" requires an outside packer, like FDR. There is no FDR figure today, no outside entity trying to change the Board here, unless you count the Hanover Institute. The Board is not a court with appointed justices, it is a self-perpetuating corporation that is permitted by law to change its own composition.

Anonymous said...

Is Zywicki writing for the Hanover Institute now, or when he says he was "reading a great deal in recent months" is he talking about the occasional Alumni Assoc. propaganda flier?

Zywicki says "many thought it frivolous for Webster to contend that the board-packing plan breached a contract in violation of the Contracts Clause." I doubt he has any evidence for this, and I am suspicious of the similarity to the letter recently sent by the majority of the Alumni Assoc. Exec. Committee through the good offices of the Hanover Institute. That letter also contained this invented idea that Webster's case was criticized as "frivolous."

Second, Zywicki, like the AoA letter, focuses incorrectly on the idea that Dartmouth College Case, a milestone of constitutional law, was really about a breach of contract. As Zywicki puts it (incorrectly), "the College charter was a contract that could not be abrogated." In fact, the charter was a contract and therefore its obligations could not be interfered with by the state, because the Constitution said so. Breach or enforcement was not an issue.

How much can Zywicki really have been reading if he calls the Dartmouth College Case "Dartmouth College v. Woodward"? Shouldn't he at least try to get the caption right? Is he really a law professor, or does he just play one on line?

Zywicki just doesn't know how to avoid the tone of a political hack. His interest in the outcome of the lawsuit is probably what causes him to get the facts wrong: the Alumni Association election (which is not a trustee election) is directly and absolutely a referendum on the only significant activity of the Alumni Association: the meritless lawsuit.

Zywicki errs significantly when he claims "Under this principle the Board implicitly claims the right to dictate election procedures." In reality, the Board is not claiming the right to dictate anything to the Association. It is setting the terms under which it will accept "suitable" Association nominees (that word is from the 1891 resolution). If the Association chooses to supply someone who is unsuitable for having been chosen by an improper method, it is free to do so.

Zywicki's repeated use of the obviously inaccurate and misleading phrase "board-packing plan" is really disingenuous. The 1815 "packing" really was an illegal effort by an outside force with no business changing the Board. But the 2007 charter amendment was completely legitimate and done by the Board itself. The Board has changed its own size twice before. That is not "packing."

Zywicki is out to lunch when he says the election is a referendum on "whether the Board has absolute authority over the election and representation of alumni on the Board." That is simply false. And Zywicki must be mental if he thinks this case should be called "the Dartmouth College I case." The present piddly-ass lawsuit will be judged insignificant by all, even within the world of nonprofit governance. Calling the Dartmouth College Case "Dartmouth College I" is an insult to Daniel Webster and shows a deep ignorance of constitutional law.

Anonymous said...

Webster did not argue that the state could not interfere. He argued that the charter was a contract that could only be modified by agreement by both parties. One party, the trustees, did not agree to NH-desired changes.

The agreement of 1891 is similar. One party, the alumni, does not agree with trustee-directed changes. Webster assuredly would be pro-parity.

Anonymous said...

What in the world is anon. 5:27 talking about, saying "Webster did not argue that the state could not interfere"?

Article I, Section 10 of the Constitution says:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, expost facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

That is why the Court had to decide whether the Charter was a contract or not. It's a basic tenet of contract law that both sides must agree to any modifications, and that was not the issue. If the Charter is a contract, then it falls under that clause and the state's unilateral amendment was an unconstitutional violation of the rights of the Trustees.

The agreement of 1891 is not similar, and the fact that a few ignorant zealots claim that it is an enforceable contract does not make it so. Zywicki, by the way, does not believe it is an enforceable contract.

Webster would refrain from expressing an opinion on parity, believing the amendment of bylaws to be the exclusive province of the Board, and he would most assuredly scorn any lawsuit against his client that sought to obtain by judicial fiat a right that Governor Wentworth had expressly granted to the Trustees alone:

the said trustees and their successors, or the major part of any seven or more of them,... as often as one or more of said trustees shall die, or by removal or otherwise shall, according to their judgment, become unfit or incapable to serve the interests of said college, do, as soon as may be... elect and appoint such trustee or trustees as shall supply the place of him or them...

A.S. Erickson said...

Please observe the comments policy; it's difficult to follow the thread when most people post as anonymous. Be creative.

Ratster said...

Does anyone know why Joe Malchow thinks Zywicki's latest ramblings are "a superb bird’s-eye view of the current Association of Alumni election"? Probably didn't read them.

ratster said...

Does anyone know why Zak Moore thinks Roger Kimball's ignorant and light-on-the-facts repetition of Hanover Institute propaganda is a "fantastic summary of the history behind the Dartmouth v Dartmouth case"? Probably didn't read it. It doesn't have any history, let alone a fantastic summary. Or why Zak thinks the case is called "Dartmouth v. Dartmouth"? Does this Zak person exist?

Stray Beaver said...

Ratster - You're hot!

Truth Be Told said...

Does anyone know why Ratster asks stupid rhetorical questions that contain nothing that could possibly be construed as a rational argument?

Maybe Ratster doesn't exist either; or, perhaps, like Meacham, he is just trying to fill the blogosphere with such inanities that people will turn away from a good website.

Anonymous said...

Actually, Ratster is pretty funny in this case, and correct.

You sound sad.

Anonymous said...

Rhetorical questions can be arguments:

1. Any intelligent person who reads Zywicki's post will realize that it is rambling junk.
2. Malchow thinks Zywicki's latest post is superb.
3. Therefore Malchow probably didn't read it, or ....

vegemite said...

So does anyone know whether Zywicki was just parroting the April 16 letter from the four trustees, or whether he is behind the tripe? ==

Anonymous said...

Consider this in all the debate. Zywicki is tied Steel who is tied to Rodgers who is tied to Malchow who is tied to McGovern who is tied to Gado who is tied to Dreisbach. These are the people pledged to save Dartmouth?
God help us all.


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