Theresa Arnold, Amanda Dixon, Madison Whalen, & Mitu Gulati, The Myth of Optimal Expectation Damages
, __ Marquette L. Rev. __ (forthcoming), available at SSRN
Everyone knows that the expectation measure is the standard, default measure of damages for a bargain contract, and for the last few decades most scholars have regarded the expectation measure as backed by weighty, straightforward justifications grounded on economic efficiency. But there are several reasons to doubt both of these general propositions, as the authors of The Myth of Optimal Expectation Damages nicely suggest and begin to demonstrate using empirical data from bond markets.
As doctrinal background, the expectation measure is not in fact as widely established as the default damages measure in contract law as many teachers of Contracts suppose. It’s true that it’s one standard measure, but the law uses other defaults in several important and often neglected contexts. For example, in many states, buyers of real estate don’t get expectation damages for breach by the seller unless the breach is in bad faith; instead, the buyer is often limited to reliance damages (and often quite a limited subset of reliance damages). Similarly, doctrines that are commonly regarded as non-remedial, like doctrines of mistake, increasingly lead to remedies other than expectation damages.
As economic background, the standard instrumental justification for expectation damages is, on reflection, surprisingly circular. Expectation damages are treated as necessary to require the promisor to take appropriate precautions against breach, but at bottom “appropriate” ordinarily ends up resolving to some definition that assumes the efficiency of the expectation measure. And as a purportedly comprehensive refutation of remedial measures greater than expectation damages—such as disgorgement or specific performance—the simple version of the “theory of efficient breach” still often taught uncritically by Contracts professors has proven to be an analytical disaster.
The Myth of Optimal Expectation Damages makes a specific, important empirical contribution to this debate. As the authors note, empirical contributions here are difficult for several reasons. For example, some remedial rules are mandatory rules, like those that prevent stipulated “penalties” in excess of expectation damages, so the absence of such provisions from contracts isn’t evidence that parties prefer expectation damages. To get around this and other problems, the article focuses on terms that are not formally remedial but that serve an economically identical role: alternative performance terms in bond contracts that specify costs for an issuer who prepays debt in advance of the schedule otherwise contemplated in the bond. Of course, this is just one domain—though, as the authors point out, “a multi-trillion dollar one”—but the authors’ data is important and is consistent with skepticism of a single, efficient measure of contract damages.
The authors’ central empirical findings are clear: virtually none of the contracts they studied call for prepayment penalties that would implement expectation damages; in fact, a range of measures is used; and parties often seek what would formally be labeled “supracompensatory” damages. This finding adds to other literature showing that sophisticated parties often choose measures of damages other than the expectation measure, which undercuts one type of efficiency-based analysis in contract law: that default rules should do what theoreticians predict rational parties would want them to do.
The authors also interviewed transactional lawyers who work with debt agreements and found that these lawyers don’t appear to think in terms that orthodox contract-law theory would suggest. Instead, they adopt other perspectives, including one that the authors interestingly characterize as associated more with joint ventures than with simple contracts: borrowers may ask for “supracompensatory” damages from issuers because they want to share in the issuer’s upside in the event an issuer finds itself with the ability to prepay debt. (After all, this is only fair: borrowers face significant downside in the event an issuer is unable to pay on the original schedule.)
A coda to the article (which, admittedly as a theoretician myself, I wish were longer!) raises the notion that simple analyses of allocative efficiency may not be an appropriate basis after all for a justification of expectation damages. The authors propose one alternative (that the default availability of expectation damages is an information-forcing rule—a penalty default that parties don’t want and ought to bargain around), but others are important to consider as well. The most obvious is perhaps the administrative simplicity of expectation damages: by focusing on the contract price or the cost of substitute performance, expectation damages give courts a readily workable measure.
Another possibility, of course, is that the justification for expectation damages as at least the dominant measure of contract damages does not lie in a simple conception of efficiency at all. For example, maybe the main purpose of expectation damages is to prevent unfair speculation by one party against another in rapidly changing marketplaces. The quicker and deeper a market, the more appealing expectation damages appear to become. Of course, this rationale can be framed in economic terms too —one party ought to pay the other to reserve an option to select a future market price rather than the present market price—but it suggests that the orthodox legal-economic view needs to be rethought.
Articles like The Myth of Optimal Expectation Damages highlight some of the dangers in trying to defend too broadly a single remedial measure of supposedly universal applicability by means only of simple theoretical explanations. Its attention to the details of real transactional practice is a useful reminder that the world of contracting is richer than commentators often pretend.
Cite as: Shawn Bayern, A Crisis of Faith in (the Efficiency of) Expectation Damages
(July 22, 2020) (reviewing Theresa Arnold, Amanda Dixon, Madison Whalen, & Mitu Gulati, The Myth of Optimal Expectation Damages
, __ Marquette L. Rev. __ (forthcoming), available at SSRN), https://contracts.jotwell.com/a-crisis-of-faith-in-the-efficiency-of-expectation-damages/
Is there a moral principle that animates contract law everywhere? In his thoughtful book that elegantly spans high theory and ground-level doctrine, Prince Saprai argues that there is not. While contract law in Great Britain might be designed to promote trust through cooperative relations, that is not its exclusive purpose. Moreover, even that purpose is contingent on the particular normative priorities of the British with respect to contract. Saprai says that contract theorists, especially those who promote the idea that contract law tracks promissory morality, are not just wrong about their primary claim but also about their underlying assumption that contract law has an essential governing moral principle that is independent of the commitments of those who use it in a given time and place.
Saprai suggests that contract theorists tend to overclaim in another respect as well. Whatever the constitutive purpose of contract law in a jurisdiction, that purpose is usually not determinative of doctrine in any complete way. There are many ways to interpret the purpose and how it is best served by rule choices. Even systems that espouse the same purpose for contract law are likely to diverge in their substantive doctrines.
The pluralism we should expect from divergent purposes and varied interpretations of even coincident purposes is not a cause for concern. While some dominant views of contract seem to proceed as if there is one optimal law of contract in relation to which each body of actual law is but a pale shadow, Saprai takes pluralism of purpose and doctrine as evidence of legitimacy. The most exciting chapter in Saprai’s book is Chapter 4, in which he elaborates the republican character of his theory and sources it to Dworkin’s view of law more broadly. Saprai reads Dworkin to recommend that scholars not impose a favored moral principle on a body of law but instead uncover it from the ground up in the particular laws of a jurisdiction. Local priority, or looking first to the rules of the immediate area of law that governs a legal question, helps jurisprudence to track how citizens understand questions in each domain. By so tethering doctrine to popular understanding of relevant moral principles, local priority renders legal doctrines accessible to citizens. It is essential to the legitimacy of law, on the republic view, that citizens be able to directly engage and take ownership of law, including contract law.
The picture that Saprai paints is an attractive one. One might reject the idea of a universal contract law, though, without fully embracing the republican alternative he offers. In particular, one might endorse pluralism on avowedly liberal grounds – liberal democratic grounds. The line between a republican and democratic account of contract is not bright but Saprai would seem to emphasize the significance of civic engagement with the law and with one another, and borrowing from Pettit, the commitment to non-domination in one’s social relations rather than rights against the state alone. But civic engagement, or the conditions of public discourse, are important to modern theories of liberal democracy too. Liberal theory might also offer a more compelling account of why private domination is an affront to the liberal subject than does republican theory, which tends to take the ideal of non-domination as more a starting point.
Of course, much of liberal theory fails to concern itself seriously with private domination. The trouble is, this is also true of common law contract. Although Saprai teases out contract doctrines that appear protective of weaker parties as evidence of its fidelity to the non-domination principle, these doctrines appear to operate on the margins. As Saprai himself acknowledges, it is not clear that contract on the whole promotes non-domination among participants in the institution. A republican theory of contract must contend with the facts of rampant domination no less than liberal theory. In light of their influence over mainstream discourse, liberal theorists of contract might need to grapple with a further worry that their historical lack of attention to the problem of domination has actually enabled institutional neglect of the problem – but this worry is justified only to the extent that liberal theories of contract really do track how people think about contract after all.
One of the most challenging questions for present day tort law is who should be liable when an Uber car crashes and a passenger or a pedestrian is hurt, the driver or the platform? Similar legal dilemmas arise all over the platform economy. When a defective product sold by a vendor through Amazon’s Marketplace malfunctions or causes personal injuries, can the platform be held liable as a “seller”?
An entirely separate question has for long haunted contract law: should a party be held liable for abandoning negotiations prior to the formation of a contract, if it can be shown that the other party sunk non-salvageable investment in the course of the negotiations? Most courts say no, but in some notable exceptions courts have awarded the disappointed party it full reliance costs. Is this the right result?
These two seemingly unrelated puzzles have recently received a unified and persuasive theoretical treatment in Omer Pelled’s excellent article, The Proportional Internalization Principle in Private Law. Pelled argues that one underlying principle ought to shape the answer to these problems. He regards these as two illustrations of a general problem arising in multi-party interactions: How to apportion liability when the actions of one party, which caused the loss, benefitted others. The principle Pelled uncovers—“proportional internalization”—works by ensuring that each party internalizes an identical proportion of the costs and benefits.
In the Uber example, the driver’s efforts create revenue divided according to a fixed proportion with Uber (say, 70:30). The proportional internalization principle dictates that the cost of liability should also be borne by the parties in the same ratio. When an accident occurs, Uber should be liable for 30% of the harm. Not for the entire loss, as it might be held under a vicarious liability regime, nor a free pass. Dividing the costs of liability in the same proportion the benefits are shared would lead the driver to exert optimal effort.
Or, take the Amazon example. The question it poses has enormous stakes—whether the platform should be held liable for injuries from products sold by one of the many Marketplace vendors. The answer has split American courts. Technically, Amazon is not the “seller.” It doesn’t have title to the products sold by other vendors, and it merely provides the service to connect consumers with vendors. Many courts have therefore held that Amazon is not liable under products liability law (see, for example, a recent decision by a Federal Court in Arizona). But some new decisions, most prominently by the Third Circuit in Oberdorf v. Amazon, reached the opposite result.
The proportional internalization principle breaks the all-or-nothing dichotomy that seems to characterize court decisions. Rather than choosing between zero or full liability, Amazon ought to be liable in part, and its share should equal the share of the benefit it receives from the sale of the product over its platform. “Comparative benefit”—rather than comparative fault—should shape the allocation of liability, and provide optimal incentives for precaution to the vendors and the platform.
In contract law, the question how to share the benefits from a contract, especially when such benefits arise from an investment by one side, is determined by the contract, not by the law. But the law does affect the sharing rule when the contract breaks down. Imagine that the possibility of reaching an agreement leads one party (at the encouragement of the other) to make costly precontractual investments. These investments would be beneficial to both if an agreement is reached. Under the proportional internalization principle, if an agreement fails, the same one-party investments should be costly to both, divided in a manner that approximates how the benefits would have been split.
To illustrate, consider the investments a franchisee makes while negotiating a possible franchise with the corporation. The hopeful franchisee incurs costly reliance expenditures in relocating, training, buying property, and forfeiting other income opportunities, all under some assurance that negotiations are moving forward. If the negotiations fail, courts typically refuse to award the disappointed franchisee any damages: no contract means no liability. But sometimes courts take the opposite view, as the Wisconsin Supreme Court did in Hoffman v. Red Owl Stores, awarding Mr. Hoffmann damages for the non-salvageable portions of his reliance investment.
Again, the proportional internalization principle comes to the rescue. If the goal is to induce negotiating parties to make optimal reliance investments, liability for the investment costs should not be all or nothing. Instead, it should be apportioned based on the parties’ prospective shares in the expected surplus.
Pelled’s proportional internalization principle offers a broad-reaching unified treatment of many problems in private law and indeed the article is rich in illustrations from every corner of the law. It makes a crisp and fundamental observation about the design of optimal liability in situations of joint care or joint benefit. It also lends itself to endless applications that are not analyzed in the article, like the Amazon liability question. Of course, the basic intuition it builds on was recognized and even formally applied in specific contexts in prior literature, but the cross-substantive template was never elicited in such useful way. The article will have much value by offering a simple and intuitive mechanism to address many questions, old and new, in private law.
Shmuel I. Becher & Uri Benoliel, Sneak In Contracts: An Empirical Perspective
, 55 Ga. L. Rev.
__ (forthcoming), available on SSRN
Have you ever created an account with Facebook, Amazon, Instagram, or Uber? If so, you agreed—with or without awareness—to let the company that drafted your contract a right to change that contract as they may see fit, without your consent. Shmuel Becher and Uri Benoliel’s empirical new study focuses on this practice, exposing a remarkable reality. With a focus on the central subset of digitally procured standard contracts, their study shows that 95.8% of the firms on their large sample (479 out of 500) have drafted “a change-of-terms clause that enables the firms to change the consumer agreement.” In 94.4% of the cases (472 out of 500), such clause explicitly allowed the drafting company to impose the change one-sidedly. Even to those who, like Margaret Radin, have long argued that standard contracts undermine people’s rights and the rule of law, the authors’ findings may offer a chilling update concerning the world of contracts. The patterns revealed in Sneak In Contracts seem to mimic a famous Star Wars scene in which Darth Vader orders to take the princess and the Wookie to his ship. As you may recall, when Lando protests the order and says it deviates from what was previously agreed, Vader forcefully answers: “I am altering the deal. Pray I don’t alter it any further.”
One of the central roles of contract law is to hold people responsible for duties they consented to assume by forming a contract. This is one of the main reasons for which, once a contract is formed, Anglo-American contract law limits the parties’ ability to change it. In general, even if both parties appear to have agreed to a modification of their original contract, the law would invalidate the alternation if one party coerced the other to consent by exploiting its permanent or temporary superior power. To this end, classical contract law has long required a new and separate consideration to support any change of the initial contract. This formal requirement’s rationale is that it demonstrates that the party that otherwise is not benefiting from the alteration received something in return to consenting rather than was forced to agree. Modern contract law added that a valid modification could be achieved even without supporting consideration if both parties had a reason to agree to the change due to new circumstances that called for it. Yet, modified contracts not supported by independent consideration would only be enforced in as much as the revised contract is also fair. Neither the classical nor the modern approach would have allowed drafting parties (or Darth Vader) to establish what is so thoroughly depicted by Becher and Benoliel: a practice that welcomes one-sided alternations of the deal.
Coining the term “Sneak In Contracts,” the authors describe the rise to dominance of assumed liberty to modify contracts that is trifold. Such liberty includes the drafter’s right to change the original agreement unilaterally, to do so expansively, and to execute it stealthily. Their findings compellingly demonstrate how the vast majority of the study’s reviewed contracts combined all the mechanisms that comprise sneak-in contracts. First, as already mentioned, 472 large corporations, 94.4% of the sample, awarded themselves the freedom to modify their contracts unilaterally. Second, almost all corporations reserved an expansive right to effectuate a change: for any purpose (476 out of 500), and throughout the entire contractual period (479 out of 500). Third, the lion’s share of corporations also took the liberty to make the change stealthily, releasing themselves from the need to let consumers and those who care about their rights know about it. Only 5% to 6% of the 479 corporations that included change-of-terms clauses in their contract promised to notify consumers about the occurrence of a change. All the others (around 94%) refrained from guaranteeing even such a minimal level of transparency. Strikingly and tellingly, none of these 479 corporations committed to notifying consumers about the content of the change.
Becher and Benoliel juxtapose these results with the judicial approach to the issue, one they describe as “underdeveloped, undertheorized and imbalanced.” (P.29.) They explain that their empirical project supports previous arguments that sneak-in contracts are unfair, socially costly, and should not be hastily enforced. For one, allowing firms to modify their standard contracts according to their wishes and whims turns the terms of the original contracts into “Bullshit Promises.” Moreover, by enforcing such sneak-in contracts, courts educate market actors—stronger and weaker alike—that opportunistic market behavior is legitimate. This message, in turn, increases the incentives to take advantage of consumers’ bounded rationality while enhancing consumers’ helplessness. What’s worse, by affirming the hidden nature of the practice, courts make it much harder for consumer watchdogs to do their salient work—raising awareness of risky changes and putting reputational pressure on opportunistic corporations. In the face of all these problems, the authors agree, regulation is in place. In their words: “the law ought to prevent or minimize firms’ ability to take advantage of consumers by using sneak in contracts.” (P.36.)
The main policy question is, of course, how to regulate the harmful practice. Becher and Benoliel describe the possibility of refusing to enforce sneak-in contracts but immediately express a strong preference for what they call “a subtle approach,” (P.37) one that merely attempts to enhance transparency. They argue that requiring firms to first get consumers’ consent to the changes they seek to implement would be too costly. They further raise the following common concern—that in response to being subjected to such a new burden, firms will roll the cost to consumers. However, I must disagree with the quick dismissal of the idea of refusal to enforce sneak-in contracts. One critical way in which firms have been “altering the deal” is supplementing their agreements with prohibitions of collective challenges of their acts. Phrased as “waivers,” such added terms forbid consumers to engage in both class actions and class arbitrations. The waivers take away consumers’ only legal way to overcome their systemic weakness: coming together to protect their rights. And, once the method of sneaky modification was deployed to prevent collective actions, consumers are left divided and conquered, forever deprived of the legal tools most necessary to resisting all the biased changes to follow. It is, therefore, hard to see how increasing transparency—even in the sophisticated way suggested by Becher and Benoliel—can help debilitated consumers to legally cope with future unilateral modifications.
While Becher and Benoliel write that “courts often enforce contracts that allow firms to unilaterally amend their agreements,” courts around the country appear to be sending mixed messages regarding such enforceability. In a very recent case, for example, the court rejected the consumer’s argument that reserving the right to unilaterally change the contract makes it illusory. However, the same court refused to enforce a modification that aimed to remove the consumer’s ability to use class action by adding a term of “mandatory (individual) arbitration.” The fact that courts seem undecided—and many of them hold, as Nancy Kim writes, that “a unilateral right to modify an agreement renders it illusory”—presents, I believe, an opportunity. It allows us to dare to call for a deeper reform than the one proposed by Becher and Benoliel.
Nevertheless, it is certainly possible that the combination of the current political climate and the present structure of the Supreme Court would turn such a call futile. If that will be the case, we may be limited to the authors’ “subtle” and very thoughtful set of solutions to the problem they help in comprehending. Then, besides praying, what the authors propose may be all we will have to constrain “Darth Vader firms” from constantly altering the deal. But, before we resort to the limited consolation that more transparency can offer consumers, we should at least try to protect them more meaningfully by insisting on their consent.
Oddly enough, contract law may help quell at least some of the panic that comes with a pandemic. Sure, contract doctrine can’t tell us about the spread of the COVID-19 virus. But Emily Strauss’ article Crisis Construction in Contract Boilerplate shows how courts adeptly and quietly helped the economy recover during the 2008 financial crisis. She tracks the surprising outcomes and rationale of cases allocating risk among loan originators, investors in residential mortgage backed securities (RMBS), and insurers in those transactions, and reports that they followed a method of contract interpretation she dubs “crisis construction.” Faced with “sole remedy” contract clauses in asset securitization contracts that simply could not remedy the magnitude of losses that investors and insurers suffered, courts abandoned the plain language of those standard clauses in favor of a plaintiff-proposed equitable alternative. That method, Strauss contends, helped restore investor confidence and right the economy.
Those of us who value predictability of contract law—and the rule of law more generally—will be relieved to hear that the judicial rejiggering only lasted a few years. As the economy was getting back on track in 2015, courts quietly reverted to the ordinary course of judicial business by enforcing those “sole remedy” allocation-of-risk clauses.
In short, Strauss demonstrates that common law injected equity in a crisis. To this reader, that displacement of the plain meaning of the risk allocation clauses is not as inconsistent with the parties’ intent as it may initially appear. Instead, the judiciary’s equitable revision of the written provision arguably followed the prime directive of contract law to enforce the parties’ intent by inserting a reasonable substitute for the plain meaning when circumstances stray so far from foreseeability and practicality that reasonable parties would intend an alternative remedy.
Hotels, restaurants, airlines, retail businesses, and manufacturers who are just beginning to absorb the shock of widespread business shut-downs, event cancellations, and interruptions in supply chains will comb through their contracts hoping that a force majeure clause protects them. Regardless of how that boilerplate reads, we should all take heart that the doctrine and practice of contract law provide a model for equitably allocating the risks of losses that occur in an unprecedented—and thus unforeseeable—crisis.
The Problem: Unusable “Sole Remedy” Clauses
Here’s the problem. One key way that governments counter economic crises such as the Great Depression, the Great Recession, and the 2020 COVID pandemic is to lower interest rates near zero. When that didn’t do the job to counter the Great Recession, the judicial branch quietly used its own tool of crisis construction to ease investor fears. Strauss’s article give us an insider’s view, gleaned from her time as a lawyer in litigation that allocated losses in the wake of the 2008 financial crisis.
Strauss efficiently explains the transactions at the heart of the financial meltdown (P. 167):
- Loan originators or “sponsors” bundle mortgages as assets;
- Special Purpose Entitles (“SPEs”), often trusts, acquire the bundle and sell shares in a Mortgage Loan Purchase Agreement and Pooling and Service Agreement;
- Investors buy the shares; and
- Insurers pay investors if mortgages don’t pay a certain amount.
The contracts between the sponsors and the SPEs have the sponsor represent and warrant that the mortgages conform to specific guidelines such as property appraisal and no default or delinquencies, and that all information in the mortgage paperwork is true. (P. 168.) The contracts also specify three possible remedies for breach of those representations and warranties such as failing to appraise the property. The sponsor can cure the breach, can substitute a compliant loan for the non-compliant one, or repurchase the loan. (P. 168.) The party demanding that the sponsor repurchase the loan must show that the loan “materially and adversely” breached a representation and warranty. (P. 170.) The contracts unambiguously designate these as the “sole remedy” for breach.
The Solution: Instead use Equitable Sampling Remedy
Enter cases like Syncora Guaranty Inc. v. EMC Mortgage CorP. The court balked at examining nearly 10,000 loans one-by-one to identify breaches such as missing verification of a debtor’s employment, the materiality of each breach, and an appropriate repurchase price. The judge emphatically refused to use the boilerplate remedy in a footnote:
The repurchase protocol . . . is appropriate for individualized breaches. . . . That is not what is alleged here. . . . Accordingly [the sponsor] cannot reasonably expect the Court to examine each of the 9,871 transactions to determine whether there has been a breach, with the sole remedy of putting them back one by one.
Strauss tells us that this fact-intensive inquiry could take about two to three hours of an expert’s time, at a cost of between $300-$400 for each loan. (P. 171.) No wonder Strauss calls this court’s refusal “blistering.” (P. 184.)
Contract law had two options. Plan A would be to follow the plain meaning rule and enforce the “sole remedy” clause, which could result in impossibly time-consuming and onerous analyses and vastly inadequate remedies for plaintiffs. Plan B would be to find another way to match the breach to the losses suffered.
Strauss says this “blistering” footnote along with other cases explained why the court instead allowed plaintiffs to use a statistical sampling method to determine breach and damages by extrapolation from the sample. (P. 164.) The written agreements neither allowed nor mandated that method and the defendants strenuously objected. But court after court essentially exercised its equity powers to replace the agreed-upon remedy with one provided by the court in crisis conditions. The early decisions, Straus contends, lacked rationale or support in precedent, but created what she calls an “echo chamber” in which the later decisions could cite the earlier ones as precedential authority. By 2013 and 2014, courts justified the swap of the sole remedy clause for court-provided statistical sampling in terms of commercial reasonableness. (P. 174.)
Strauss explains the courts’ Plan B approach, suggesting that the decisions
appear to reflect the sentiment that perilous economic times called for unusual measures, and that judges should produce decisions that would make investors whole, increase investor confidence and thus stabilize and ultimately help stimulate the battered economy. (P. 179.)
That choice, often made in pretrial motions, set the stage for cases to settle in the “millions, even billions” of dollars. (P. 175.) This judicial resort to an equitable remedy in the financial crisis, Strauss argues, helped shore up investor confidence and thus the wider economy.
Paths not Taken
Strauss reviews alternative routes courts could have taken, such as opting for a different kind of Plan B. The doctrines of impracticality and frustration of purpose immediately come to mind, yet Strauss explains that those defenses typically seek to excuse non-performance. Here, the investors sought to make the sponsors meet their contractual obligations of providing high-quality loans in the bundle to be securitized. (P. 183.) Likewise non-enforceability on the grounds of public policy typically would avoid a contract instead of provide a different remedy for its breach. But if it did, the public policy of protecting public welfare could certainly justify refraining from enforcing the sole remedy clause if not the entire contract. (P. 183.)
Strauss convincingly contends that the judicial swap of statistical sampling for a loan-by-loan remedy better served the end of quieting an economic panic. A decision based on impracticability, or more likely interference with public policy, could generate headlines, provide grounds for a public and drawn-out appeal process and perhaps reversal, as well as criticism from scholars and other commentators. Instead these trial courts quietly substituted an equitable remedy for the plain language of a contract. The sub rosa quality of the approach, Strauss explains, “provided a quiet, flexible medium for judges to stabilize investor confidence.” (P. 186.)
Once the economy and culture were safely on track toward ordinary life, courts became more explicit in their rationale for setting aside the sole remedy clauses in favor of statistical sampling. For example, cases in 2017 and 2018 justified their reliance on sampling on the public policy against enforcing exculpatory clauses in cases involving gross negligence. (P. 187.)
After the Crisis Passes
Among the most fascinating patterns that Strauss reveals is that courts only applied the sampling remedy for a few years. Once the economy began to recover in late 2015, courts began to revert to the “sole remedy” of loan-by-loan repurchase. Strauss tells us that these cases returned to the conventional approach of enforcing contracts as written without commenting on the earlier decisions that allowed sampling.
She sees this as a pattern of courts using “crisis construction” to fashion an appropriate remedy in cataclysmic circumstances that make the usual approach unusable.
That’s hardly surprising. As Strauss also explains, courts likewise construed contracts to account for major changes in the economy such as the departure from the gold standard during the Depression. (P. 178.)
But it did surprise me that the defects in that sole remedy and the financial collapse apparently did not make the parties edit their remedial clauses in subsequent transactions. Strauss surmises that the stickiness of these default provisions is due to the costs of revising them, and the reduced likelihood of them coming up again en mass given the protections in the Dodd-Frank Act that require lenders to assess each borrower in detail. (Pp. 190-91.)
But what really matters today—in the spring of 2020 as businesses and whole states shelter in place, borders are closed, conferences and building projects postponed or cancelled, and workers laid off—is that “crisis construction” lies at the ready for courts to resolve the many disputes that will arise from the COVID-19 pandemic. As I write in April 2020, hotels, airlines, schools, construction companies, and buyers and sellers of goods in supply chains are doubtless pulling out their written agreements and puzzling whether a force majeure clause that specifies “bacterial infection” also applies to a viral pandemic. While they puzzle over that legalese, they should read Emily Strauss’ important Crisis Construction article to find out how judges and the doctrine and practice of common law retain the flexible, quiet tools of equity to steer parties as well as the economy and wider culture back toward normalcy.
Gregory Klass, Boilerplate and Party Intent, 82 Law & Contemp. Probs. no. 4, 2019, at 105.
In Boilerplate and Party Intent, just out in Law and Contemporary Problems, Greg Klass unearths the following lovely piece of boilerplate from an insurance contract:
“Touching the Adventures and Perils which we the Assurers are contented to bear and do take upon us in this Voyage, they are, of the Seas, Men-of-War, Fire, Enemies, Pirates, Roverts, Thieves, Jettisons, Letters of Mart and Counter-mart, Suprisals, Takings at Sea, Arrests, Restraints and Detainments of all Kings, Princes, and People…”
Roverts! Counter-marts! Oh my. As Klass observes, this sort of clause is an example of non-negotiable boilerplate, which propagates in part because no one would dream of altering such hoary text. But it is also an exemplar of a type of contractual clause that is interpreted without regard to the parties’ intent, even if what particular signatories wanted “Suprisals” to mean could be ascertained.
Non-negotiable boilerplate can arise from the passage of time—the Adventures and Perils clauses joins other grotesques (pari pasu!) in the category of too hard to change. But so too can boilerplate arise from mandatory clauses which the law requires to be inserted into contractual writings. Such mandatory clauses include, for example, uniform covenants that the FHA and HUD mandate in federally-insured mortgages. For language inserted by time and by the government, stating that the goal of interpretation is to effect intent is clearly incorrect. Rather, as Klass observes, courts may be seeking to give life to the government’s meaning, or that of the shared community of jurists and lawyers who have interpreted and parsed these clauses over time. Klass thus distinguishes the author of clauses from the authorizer. When the two are different, it is the authorizer’s intent, not the drafter, that ought to control. (This argument has particular weight in the insurance market, where the regulator’s interpretation perhaps is more important than the parties to the insurance contract itself.)
Klass also includes a very interesting discussion of Restatement 2nd 212(2). He describes a set of procedural decisions about class certification in adhesive consumer contracts that are likely not on the radar of contract scholars. Courts, it seems, have used Section 212 to certify classes against defendant objections that extrinsic evidence would preclude Rule 23 certification. Plaintiffs have responded, mainly successfully, that Section 212 precludes evidence of the parties’ actual intent in such boilerplate examples. Why? Because only such uniform interpretations give life to non-drafting parties’ rights in the micro-harm setting present in most class adjudication. That is, ignoring the actual parties’ reasonable understandings is necessary to vindicating their global rights.
Though Klass does not quite say so, his approach to boilerplate interpretation can be usefully counterpoised to two recent attempts to bring contract interpretation forward from the dark days of Latin canons to the golden dawn of big data. Recent work by Omri Ben-Shahar and Lior Strahilevitz (arguing for surveys) on the one hand, and Stephen Mouritsen (corpus linguistics) on the other both argue that better data can get us more precise answers to what boilerplate meant to the parties. Klass offers a sophisticated and nuanced challenge to that goal. Sometimes, he argues, boilerplate should be interpreted in ways contrary to party intent, facts (and Pirates, Roverts and Thieves) be damned. This is a counterintuitive thesis, supported with a wealth of examples, and written in an engaging style. I recommend it to you.
Cite as: David Hoffman, Pirates, Roverts, Thieves and Boilerplate
(March 4, 2020) (reviewing Gregory Klass, Boilerplate and Party Intent
, 82 Law & Contemp. Probs. no. 4, 2019, at 105), https://contracts.jotwell.com/pirates-roverts-thieves-and-boilerplate/
Yonathan A. Arbel & Andrew Toler, All-Caps
(January 15, 2020), available at SSRN
A strange thing has been happening in the world of consumer contracts. “Contract” is being elbowed–roughly–aside by “notice.” While contract requires offer, acceptance, mutual assent and consideration, notice seems to require only conspicuousness. Accordingly, it is important that we get conspicuousness right. Unfortunately, too often, we get it wrong. One of the most common ways we get it wrong, as Yonathan A. Arbel and Andrew Toler explain in their article, ALL-CAPS is by relying upon the effectiveness of capitalized text. Their article, the first to test the effect of capitalized text upon consumer perception, shows that all-caps not only fails to improve the quality of consent, it may diminish it for some consumers.
Arbel and Toler argue that capitalization of contract clauses is treated by judges, legislators and consumer agencies as “strong evidence, often dispositive, that the text was read and understood by the consumer.” (P. 5.) Consequently, all-caps is “used to show meaningful consent to especially onerous terms that would not be enforced but-for the use of all-caps.” (P. 10.) They review the background surrounding this faith in all-caps and find that, despite its pervasiveness, it is based upon “speculation and intuition.” (P. 6.) They explain how the focus on conspicuousness was intended to be a sort of compromise, the idea being that even if consumers don’t read all the terms in form contracts, they could read conspicuous key terms. All-caps became “a widely endorsed method of making a term conspicuous and thus rendering it enforceable.” (P. 5) But the evidence for this support of all-caps, they note, was nowhere to be found.
They then seek to test whether this reliance on all-caps is justified. They collected the standard form contracts of 500 large consumer companies, such as Amazon and Uber, and analyzed them by using specially developed code that counted instances of a letter being capitalized, and attempted to classify capitalization at the word, sentence, paragraph and header level. They found evidence of too much capitalization, including that approximately 77% of contracts had at least one paragraph that was fully capitalized. (P. 19.) They then assessed whether all-caps improves “consumer consent.” (P. 20.) By consent, the authors seem to mean “informed consent” as distinguished from a mere manifestation of consent, which is required for contract formation. They state that conspicuousness could arguably improve consumer consent in three ways: it could help the consumer “economize” the consumer’s attention by directing it to the most important terms; it could improve readability; and/or it could enhance deliberation by slowing down reading times. (P. 20.) They come up with a “testable hypothesis” for all these possibilities: “other things beings equal, the consumer would have better recall of the conspicuous term than if the term was inconspicuous.” (P. 21.) The provision in all-caps had to do with the cancellation policy for a free trial and whether consumers could recall and understand its meaning.
I don’t think we even need a drum roll for the results since they are, unfortunately, predictable. It turns out that with “high statistical significance” all-caps do not enhance consumer consent and low caps is no worse than all-caps. (P. 27.) But what may be surprising is that capitalization may diminish the quality of consent, at least for those respondents who were older than 55 years of age (60% got questions regarding the cancellation policy wrong in the all-caps group and 31% in the low-caps group) (P. 31.) All-caps didn’t increase salience, it didn’t make the text easier to read, and it didn’t seem to focus reader attention to important terms. The authors hypothesize that all-caps actually make it harder to read the text! In fact, the authors suggest that ALL-CAPS is akin to textual yelling! (P. 47.) And who wants to deal with textual yelling?
The authors then undertook several exploratory studies, testing all-caps in different settings, including time pressure and other modes of highlighting. THEY FOUND THAT ALL-CAPS WAS NOT HELPFUL BUT THAT THE USE OF BOLD MIGHT BE. (P. 51) (I think the use of italics might also be effective, don’t you agree? But only if used sparingly).
The purpose of testing these other treatments was not to suggest one surefire way to enhance consumer consent. On the contrary, the authors caution against safe harbors such as capitalized text or boxes – or even bold. Too much of anything causes habituation which in turn leads to inattention. As long as the bold is not overused, it can be an effective strategy. If everything is in bold, however, then it becomes harder to differentiate the important bolded text from that text which is much less important.
The authors point out that firms seem to know very well how to communicate with consumers when they are trying to get them to buy something. Marketing materials contain a “rich, creative mix” of text sizes, colors, and typefaces and “one never finds…blocks of capitalized text, i.e., all-caps.” (P. 46.) There may be the occasional all-cap word here and there but “blocks of homogenous capitalized text are all but absent.” (P. 46.)
Arbel and Toler have some suggestions based on their findings, the most promising being the application to contracts of Lauren Willis’s performance-based approach to consumer law. (P. 53.) Their proposal, adapted for contracts, would find certain key terms by default unenforceable unless the firm could prove that the term was conspicuous. Others have made similar suggestions regarding this type of burden shifting, and it is unclear how their proposal would differ from these other proposals. But the authors state that they leave “the full case for performance-based conspicuousness” for a later day. (P. 55.) They have done enough for today, by making a strong case against the upper case.
Julian Nyarko, Stickiness and Incomplete Contracts
(Sept 1, 2019), available at SSRN
According to prevailing conceptions, the primary role of contract law is to give effect to the parties’ will (the so-called will theory of contract), thereby enhancing overall human welfare (the standard law and economics perspective). Thus, the law may legitimately intervene in the content of contracts, or otherwise try to influence the contracting process and its outcomes, only if there is some flaw in the contracting process (such as duress) or if there is a market failure (such as a monopoly or an acute information problem). In recent years, the notion of market failure has been extended to encompass behavioral market failures as well—that is, deviations from the assumption that people are invariably rational maximizers of their own utility. However, it is still commonly believed that the need for compulsory (mandatory rules) or choice-preserving interventions (nudges) is limited to transactions with relatively weak and unsophisticated parties—such as consumers, employees, and tenants. When it comes to commercial transactions in competitive markets, the very fact that a contract does or does not contain a given term is perceived as a proof that that term (or its absence) is optimal—that is, maximizes the joint surplus of the parties. Otherwise, why would sophisticated parties include (or fail to include) that term in the contract? In fact, some scholars have grounded an entire theory of contract law on such strong belief in the rationality and competence of commercial contracting parties (Schwartz & Scott).
Until recently, people’s beliefs about these issues were primarily based on anecdotal evidence, personal experience, and ideological inclinations. With the advancement of empirical legal research, observational and experimental studies offer more reliable and systematic evidence about such matters (which does not mean, of course, that ideology ceases to play a role, as people often do not allow themselves to be confused by the facts). In his intriguing new research, Julian Nyarko uses cutting-edge methods of machine learning to study the inclusion or non-inclusion of choice-of-forum clauses in hundreds of thousands of contracts contained in a dataset of commercial agreements reported to the U.S. Securities and Exchange Commission (SEC). He then examines what factors might explain the inclusion or non-inclusion of such clauses in any agreement.
The study found that, while 75% of the contracts in the dataset include a choice-of-law provision, only 44%—less than half—include a choice-of-forum clause. (P. 32.) The latter figure is surprising, given the potentially large practical importance of choice-of-forum clauses (Pp. 10–19) and the prevalent opinion among practitioners that failing to include such a clause verges on malpractice. (P. 63.) Surprisingly, firms do not show consistency in this regard. While very few firms consistently include (or fail to include) such clauses in all (or any) of their agreements, most firms display considerable variance in this respect: the consistency measure—ranging from 0 (choice-of-forum not included in any of the firm’s contracts) to 1 (choice-of-forum included in all of the firm’s contracts)—is normally distributed around 0.5. (Pp. 33–34.) Similar inconsistency is revealed when breaking down the data by industry. (P. 35.) Unsurprisingly, choice-of-forum clauses are more prevalent in some types of agreements than in others (e.g., 61% in joint-venture agreements, compared with only 47% in transportation agreements). (P. 36.) Such clauses are also more prevalent in contracts drafted by leading law firms. (Pp. 38–40.)
If neither the consistent preferences of firms nor the types of industry or agreement explain the decision as to whether or not to include a choice-of-forum clause in an agreement, are there other observable variables that can explain it? It turns out that whether or not a choice-of-forum clause is included in the contract is largely determined by the lawyers that draft the contract. Moreover, in this regard lawyers do not appear to prioritize their own interests over those of their clients. Rather, there is strong evidence to suggest that “whether or not the final contract includes a choice-of-forum provision is determined almost exclusively by the template that a law firm uses.” (P. 7.)
Admittedly, given the observational (rather than experimental) nature of the study, there was an outside chance that “reverse causality” might be at play—namely, that firms hire lawyers who use the most beneficial template for each of their deals. However, the study largely rules out this theoretical possibility by examining the impact of two “external shocks.” One is the fact that some law firms collapsed during the period of observation, thus forcing firms and clients to hire new external counsel. (Pp. 44–46.) The other is significant changes in the legal default rules concerning the courts’ jurisdiction, which appear to have had no noticeable impact on the inclusion or non-inclusion of choice-of-forum clauses. (Pp. 50–58.)
The author readily (and commendably) concedes the limitations of the study. (Pp. 58–63.) For one thing, the study pertains to a particular type of term, which usually does not attract the attention of the negotiating parties, or even their lawyers. More studies are necessary to examine the generalizability of the findings with regard to both primary and secondary contract clauses. For another thing, the study only analyzes observable variables—primarily those that can be extracted from the dataset—and one cannot rule out the possibility that the inclusion or non-inclusion of choice-of-forum clauses in contracts is determined or mediated by other, unobservable factors.
Notwithstanding these limitations, the findings are intriguing, and their potential policy implications important. First, the findings highlight the role of lawyers in commercial transactions—thus questioning the common treatment of each contracting party as a unitary entity. The findings also cast doubt on the attempt to derive normative conclusions from observations of prevailing provisions in commercial contracts (see, e.g., Benoliel).
Furthermore, the strong evidence suggesting that whether a choice-of-forum clause is included in a contract is determined by the language of the boilerplate used to prepare the first draft (rather than by any rational deliberation), lends support to the observation that cognitive heuristics and biases—in this case, the status quo and omission biases that result in a default effect (Zamir & Teichman, Pp. 48–50)—are not limited to laypersons making mundane decisions (see Id., Pp. 114–17). They affect even top-tier professionals who charge large sums of money to handle transactions worth millions of dollars. This observation must be taken into account even if one is solely interested in maximizing overall social utility, to the exclusion of any other normative concern. Among other things, it bears upon the design of legal default rules, and on the appropriate division of labor between the contracting parties and the law (see also Zamir; Ayres).
Finally, Nyarko (P. 65) aptly offers a more general lesson for legal theory in contract law and beyond: rather than trying to theorize away gaps between expectations and reality, we should try to understand these gaps.
According to Columbus, the protagonist of Zombieland (2009), “enjoy the little things” is Rule #32 for surviving a zombie apocalypse. Professor Emily Kadens’ Cheating Pays explores the darker side of enjoying the little things against the backdrop of the 1622 trial of a London grocer, Francis Newton. Specifically, Professor Kadens argues that in the context of cheating by heavily networked commercial actors, it is the little things—small-scale but regular cheats in transactions with contracting partners—that pay off in the end. Small cheats are potentially more lucrative than large cheats because small cheats are unlikely to be discovered or may be discounted as mistakes even if discovered, the cheater can take steps to misdirect attacks on the cheater’s reputation, and contracting partners are unlikely to take significant measures to punish the small-scale cheater even after the cheats are discovered.
In this sordid tale of petty lies, betrayal, and revenge, the villain was not particularly glamorous nor interesting in terms of the scale of his misconduct. Francis Newton was a successful grocer who routinely cheated customers and suppliers by subtly altering the length of balance scale arms, substituting low quality goods in sales to buyers, changing tare weight markings on shipping containers, and secretly attaching extra weights to scale platforms. These cheats presented lighter weights on goods sold by suppliers and heavier weights on goods sold to customers. Newton apparently carried on this scheme of regular, small-scale cheats for at least a decade before rumors of his dishonesty began to spread. Although earlier cheats had been discovered by others, it was not publicly sanctioned until Newton’s enemies began a campaign to spread news of the cheats and ultimately bankrupted themselves bringing Newton to trial. Newton was found guilty of dishonest practices and forced to make a public apology and pay a £1000 fine. Nonetheless, Newton appears to have continued more-or-less successfully in business after that public punishment.
Professor Kadens uses this story to critique the standard trope in contract theory that fear of reputational harms will cause repeat players in business networks to resist the temptation to cheat their contracting partners. Ultimately, Kadens lays out a detailed, original, and powerful case demonstrating that while reputational concerns likely do curb large scale cheating, small-scale cheating by contract partners not only will likely go unpunished but also may not yield serious consequences for future dealings even when discovered and punished.
London grocers of Newton’s time were members of a trade guild with the power to sanction individual grocers for wrongdoing. Grocers engaged in repeated transactions with their regular customers and suppliers, but those customers and suppliers also interacted with each other and with other grocers regularly. In this network, reputational information regarding individual players could be disseminated relatively inexpensively as actors within the network shared news and gossip about their dealings with each other.
In this context, theories of private ordering predict that actors in the network have strong incentives to deal honestly with each other. Any member of the network who believes their contracting partner has behaved dishonestly can punish that behavior by spreading the news of the cheating through the network. Consequently, assuming there are no extrinsic factors controlling morality such as ethical or religious beliefs, actors in such contexts will refrain from cheating behavior where the cost of cheating exceeds the benefits. Thus, in such a system, we might expect to see a retiring corporate officer embezzling $20 million if the officer has confidence in being able to relocate to a jurisdiction with no extradition treaty because the return on investment is significantly in excess of the expected loss from discovery. But such grand opportunities are rare, especially compared to opportunities for lower level cheats such as hiding personal expenses on a corporate credit card, selling misbranded products, or cheating customers and suppliers in calculating prices. In the latter situations, private ordering theories predict that the potential reputational costs (and expected losses discounted by the likelihood of discovery and punishment) of small order cheating just aren’t worth it. In other words, potential cheaters should be guided by the maxim, “Go big or go home.”
Kadens counters this narrative by observing that many factors make regular, small-scale cheating profitable.
While private-ordering theories may accurately predict that fear of the loss of reputation will keep cheaters from committing big cheats, they do not have the same disciplinary power over small cheats. Cheaters are clever; victims can be ignorant of their victimization or unwilling to broadcast it; and gossip can be ambiguous. All of these real life factors render reputation an imperfect policing mechanism. As a result, low-level cheating may be—and indeed is—a common cost of doing business. Such low-level cheating certainly seems to have been embedded in the grocery market of early seventeenth-century England…. (P. 543.)
This article is an important insight into the limits of private ordering and insightfully analyzes the factors contributing to the success of dishonest actors even within a commercial network that should serve to impose reputational costs that should prevent cheating. As Kadens notes, it is unclear whether Newton was an anomaly or whether all actors in his network simply assumed that everyone engaged in small-scale cheating as a cost of doing business in that network. Newton’s accusers, for instance, engaged in their own small-scale cheats. While such trade expectations may ameliorate the immorality of cheating within the network, it remains that cheating reduces economic efficiency and activity. To counteract this drain, however, regulatory and private contract solutions must account for the possibility that the cost of remediation may exceed the economic benefits. At the end of the day, we may be left with the conclusions that cheating will occur and that cheating pays for those who just enjoy the little cheats.
Just after the turn of the millennium, it was common to hear the burgeoning data economy ethically justified through the following refrain: “If you’re not paying for it, you’re the product.” Consumers, wittingly or unwittingly, pay for free services by giving companies access to their personal information and data logs.
In this way, Article 9 and the Bankruptcy Code amplify the impact of transfer of data and encourage its transfer. Corporations borrowing money and taking risks is the lifeblood of the American economy. A company would be putting itself at a disadvantage if it did not seek to borrow against its consumer data and take advantage of secured credit. And the more control a company gives itself over consumer data in its privacy policies, the more flexible it can be in the case of bankruptcy. The shadow of what might happen if bankruptcy were to occur influences creditor and investor behavior.
Article 9 and Bankruptcy Code predated what Elvy calls “the IoT data gold rush” by several decades, and the results of their interaction were not intended by policymakers. In fact, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) was intended (among many other things) to address consumer privacy concerns arising from data sales following several high-profile corporate bankruptcy cases. As Elvy describes in detail in the article, however, BAPCPA has many limitations, most notably its limitation to personally identifiable information (a dinosaur of a concept in an era where anonymized data can be readily re-identified) and deference to privacy policies.
Elvy proposes two principal solutions to the consumer-unfriendly landscape she describes. She notes that deferring to the concept of notice and choice does not adequately protect consumers; it gives consumers no control over their data while increasing the ability of companies to profit from that same data. Elvy also suggests bright-line rules limiting biometric data use in secured transactions and sale during bankruptcy because unlike other personal information like credit card numbers or addresses, fingerprints and eye scans cannot be changed.
Ultimately Elvy’s most valuable contribution is the bringing together of the various sources of law that govern transfer of personal information. American law is characteristically sector and subject matter specific. However, looking at the problem of personal information transfer in the IoT economy exclusively as a commercial lawyer, a consumer protection lawyer, or even a privacy lawyer is not sufficient. Policymakers, scholars, and stakeholders should periodically take a big picture approach to see how different areas of the law fit together and reinforce (or undermine) each other.
There is a deeply held American cultural tendency to hold individuals responsible for fine print in contracts. However, Elvy’s piece shows that when and how personal information is transferred between companies is largely not determined by contract law at all, but rather a combination of commercial law and sector-specific privacy law. Who has access to what type of data held by a company is a creature of commercial law, determined by the internal policies of that company and contractual relationships between debtor and creditor.