Thursday, September 18, 2008
I promised Curtis Bridgeman (pictured) and Karen Sandrik that I would discuss their new essay "Bullshit Promises" on this blog, so long as I had the time and it wasn't too inconvenient. But now, I don't really feel like going into all that, so I'll just tell you that the paper focuses on the kinds of bullshit that can be found in the credit card and cell-phone industries. The statutory supplement that I use in my contracts course includes a reproduction of Google's Terms of Service. On the first day of class, in order to introduce students to concepts like forum selection clauses, choice of law provisions, arbitration clauses, merger clauses, limitations of liability and disclaimers of warranty, I walk the students through the Terms of Service agreement. At some point, they conclude that the Terms of Service agreement obligates Google to do absolutely nothing. As Bridgeman and Sandrik suggest, bullshit is ubiquitous. So watch your step.
The abstract page for "Bullshit Promises" (with download options) can be found here. And here is the abstract itself:
A few years ago, the philosopher Harry Frankfurt published an essay provocatively entitled, "On Bullshit." Convinced both that our society is laden with bullshit and that we nevertheless do not have a clear idea of what it is, Frankfurt set out to explain what bullshit is and to distinguish it from lying. While the liar seeks to lead his listener to a false belief, the bullshitter is unconcerned with truth altogether. Although the project sounds at first like the essence of philosophical navel-gazing, Frankfurt was trying to make an important point about how this indifference to truth has caused us to lose our way a bit in philosophical and political discourse.
In this project, we draw on Frankfurt's work to point out a disturbing trend in contract law: the use of bullshit promises. Bullshit promises are promises that are in a certain sense insincere even though they are not lying promises, at least not in a sense that would be actionable under the tort of promissory fraud. Promissory fraud is available in cases where a party makes a promise that it has no intention to keep, and it does so in order to deceive the promisee about its intentions. But it is quite common today for parties, especially companies dealing with consumers, to make promises that are not lying promises in that the promisor is not concealing an intention not to perform, but that are nevertheless insincere. In such cases a party uses promissory language but elsewhere reserves the right not to perform, or to change the terms of performance unilaterally as it sees fit. Such promises are not necessarily lying, especially if the promisor does not at the time have a specific plan to change the terms, but they are usually bullshit. By simply leaving its options open a party can help itself to the benefits of promissory language without being subject to the norms associated with promising, in particular some sort of commitment to a particular course of action. The tort of promissory fraud as now applied is not able to address this problem, but we will suggest minor modifications in both contract and tort that should help. At the very least, it is time courts and commentators recognized the phenomenon of bullshit promises and the potential challenges they create.