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By Dave Hoffman

What Do Contract Formalities Do?

In 1941, Lon Fuller published his classic Consideration and Form. Among other things, the article articulated three famous functional claims for consideration: it evidences bargains, channels parties’ behavior, and cautions signers by “check[ing] against inconsiderate action,” and “induc[ing] the circumspective frame of mind appropriate in one pledging his future.”  How? By signaling to prospective signers of contracts that the law was drawing near.  Thus, he hypothesized that seals (“symbol[s] in the popular mind of legalism and weightiness”), the “requirement of a writing,” “attestation, notarization,” and recitals of consideration all induce individuals to feel and behave in a more committed way to the underlying term supported by the formal recitation.

I’ve been studying what individuals think about contract formalities in a series of papers.  That work, combined with other recent scholarship about contracting behavior, made me skeptical that contract language reciting obligation — or disclaiming it — had the straightforward effects that Fuller proposed.  So, with Zev Eigen (Northwestern/visiting Yale), I decided to test Fuller’s foundational & empirical intuition.  In A Fuller Understanding of Contractual Commitment, Zev and I suggest that the conventional account is unrealistic:

“Contract recitals are ubiquitous. Yet, we have a thin understanding of how individuals behave with respect to these doctrinally important relics. Most jurists follow Lon Fuller in concluding that when read, contract recitals accomplish their purpose: to caution against inconsiderate contractual obligation. Notwithstanding the foundational role that this assumption has played in doctrinal and theoretical debates, it has not been tested. This Article offers what we believe to be the first experimental evidence of the effects of formal recitals of contract obligation — and, importantly too, disclaimers of contractual obligation — on individual behavior. In a series of online experiments, we found that participants were less likely to back out of an agreement, forgoing personal gain, when they were endowed with a small extra sum of money at the time of contracting, and when they acknowledged that they were not forming a contract. They were more likely to back out of their original commitment when their agreeing was accompanied by a recital of consideration, and in a control condition in which the natural consideration of bargained-for exchange prevailed. Younger, male respondents were generally more likely to back out of their agreements across all conditions than were women and older participants. The reported experimental results suggest both the descriptive weakness of theorized accounts of private control over contract enforceability and the general value of experimental work about contracting behavior.” The paper suggests that to the extent that we think formal devices permitting private party control over enforceability are useful, we might want to think carefully about developing ones that signal “law” more clearly to 21st century eyes.  I’d love to get your comments — the paper is still in draft form.

 

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(Il)liberalism’s Paralysis

At Vox, Ezra Klein claims that the White House believes the bully pulpit drives illiberal dissensus on most matters of public concern.

“The problem is the White House no longer believes Obama can bridge [racial] divides. They believe — with good reason — that he widens them. They learned this early in his presidency, when Obama said that the police had “acted stupidly” when they arrested Harvard University professor Skip Gates on the porch of his own home. The backlash was fierce. To defuse it, Obama ended up inviting both Gates and his arresting officer for a “beer summit” at the White House . . .

Moreover, Obama’s presidency has seen a potent merging of the racial and political divides. It’s always been true that views on racial issues drive views on American politics. But as political scientist Michael Tesler has documented, during Obama’s presidency, views on American politics have begun driving views on racially charged issues.

This all speaks to a point that the White House never forgets: President Obama’s speeches polarize in a way candidate Obama’s didn’t. Obama’s supporters often want to see their president “leading,” but the White House knows that when Obama leads, his critics becomeeven less likely to follow. The evidence political scientists have gathered documenting this dynamic is overwhelming, and Frances Lee lays it out well here…”

Klein (channelling the White House) and others seems to suggest that this illiberal bully pulpit effect is a feature of the modern presidency.  I take it this argument comes in parts: (1) twitter & 24-hour news cycle require comments on every issue lest president be seen as passive and consequently weak; (2) modern media fragment the bully pulpit’s message and make it more likely for any speech to take on purely political valence; so therefore (3) presidential speeches will, through naive realism, harden battle lines and make it more difficult for non-political institutions to come to solutions.  Therefore, says the hyper-sophisticated Klein and other savvy consumers of our political science and psychology literatures, Presidential pablum is the future. While the White House may use rhetorical nudges on the margin, any attempt to move the needle on matters of public note is basically self-defeating.

This all strikes me as too clever by half. It takes the wrong lesson from problem of cognitive illiberalism (as popularized by the the Cultural Cognition Project’s blog).  It’s not that we are doomed to process information through cultural lenses, and that we inevitably view political leaders from opposite parties as our antagonists.  Rather, the way that messages are framed – whether threatening to identity or not - matters a great deal.  Or to put it differently, cultural dissensus isn’t inevitable. Look at nanotech and GM foods: notwithstanding all the preconditions for cultural warfare, the western front remains silent.

My intuition is that the President’s rhetorical boomerang effect doesn’t so much result from a structural feature of the modern Presidency as a bug. That bug flows from some set of small tics related to how the President speaks to audiences – how he (and his speechwriters) can’t manage to make it...

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Is Using USNews Ranking in Making Hiring Decisions Discriminatory?

That’s what Drexel 3L William Hanrahan claims in a newly filed complaint against Dechert LLP.  According to Hanrahan, though he ranks #4 in Drexel’s class, Dechert (and other large firms) hire disproportionately from higher ranked schools, and consequently refused to hire him.  Why is that a problem? Well, here’s what the complaint says:

Hanrahan, who suffers from “Asperger’s Syndrome, an Autism Spectrum Disorder, and a concomitant non-verbal learning disability,” also argues that Drexel accepted more students than other local schools with disabilities, and that refusal to hire from Drexel tends to disproportionately screen out non-disabled candidates.

I’m not an expert in this area of the law, but I thought the complaint provided an interesting set of facts for discussion. My uninformed view is that the chain of causation (disability –> lower LSAT –> lower-ranked school –> fewer job offers) isn’t incredible, but that it’s hard to imagine a judge forcing firms to discount rankings (which, after all, aren’t entirely or even mostly based on student credentials) when making hiring decisions.

 

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“Mighty In Their Day:” Reflections on the 9th Annual Empirical Legal Studies Conference

In Tolkein’s legendarium, the 9 rings of power were given to mortal men as a means of their corruption.

“Those who used the Nine Rings became mighty in their day, kings, sorcerers, and warriors of old. They obtained glory and great wealth, yet it turned to their undoing. They had, as it seemed, unending life, yet life became unendurable to them. They could walk, if they would, unseen by all eyes in this world beneath the sun, and they could see things in worlds invisible to mortal men; but too often they beheld only the phantoms and delusions of Sauron. And one by one, sooner or later, according to their native strength and to the good or evil of their wills in the beginning, they fell under the thraldom of the ring that they bore and of the domination of the One which was Sauron’s. And they became forever invisible save to him that wore the Ruling Ring, and they entered into the realm of shadows. The Nazgûl were they, the Ringwraiths, the Úlairi, the Enemy’s most terrible servants; darkness went with them, and they cried with the voices of death. — The Silmarillion, Of the Rings of Power and the Third Age, 346.

The fate of those holding one of the Nine struck me as a useful starting off point for my review of the Ninth Empirical Legal Studies Conference. [For previous installments in my CELS recap series, see CELS III,IV, V, and VI, VII, VIII.1, VIII.2]  The ring-of-power story is apt for several reasons.  ELS is waxing — we’ve obtained “glory and great [relative] wealth,” yet our methods are often described as inscrutable, as we see “things in worlds invisible to mortal men.” One well-known law blogger and sci-fi geek repeatedly has claimed that we behold only Sauron.  Ultimately, there’s a fairly decent argument, based on this year’s conference, that our thraldom — to machine learning — is nigh.  But putting aside the obvious parallels between the world’s leading legal empiricists and Angmar, the witch-king, there’s a far more pressing reason to use the 9 rings as a hook. Multiple sources told me that they found last year’s two-part recap to be “boring” or at best “workmanlike,” asking for more “made-up anecdotes” to spice it up.  So, off we go to Berkeley.

To start, let’s acknowledge the obvious. The West Coast is terribly distant from the home schools of most of the conference’s attendees. (I can’t prove that with data, but I thought this was exactly the kind of unsourced gossip that my readers wanted to see here.)  That was especially true for roughly 200 attendees from the Max Planck institute & the entire faculty of every Israeli law school.  The weather rendered the long trip tolerable, but only just.  Why not bend to reason and just hold a future conference in Germany or in Tel Aviv? Certainly, the conference is now decidedly more international in scope than it was only a few years back.  Was this the result of a maturing discipline, rapidly falling domestic travel budgets, or some unknown missing...

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Introducing Guest Blogger Jeffrey Vagle

We are happy to host Penn’s Jeff Vagle for the month of November.

Jeff is Lecturer in Law and Executive Director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Law School. His research interests include cryptography, cybersecurity, electronic privacy, the mechanisms and societal effects of surveillance, Internet architecture, and networked economies and societies. He most recently served as an associate in Pepper Hamilton’s Privacy, Security and Data Protection Group. He earned his JD from Temple University School of Law, where he was Editor-in-Chief of the Temple International and Comparative Law Journal. Jeff writes and speaks regularly on privacy, data security, surveillance, and other cyberlaw-related topics, and is the author of several law review and technical articles, including, most recently, “Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance,” forthcoming in the Indiana Law Journal.

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