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Monday, February 24, 2014

KCON9: Saturday Afternoon Session

We had an all-star afternoon panel on Contract Law and Social Justice.  The panel was moderated by Robin West, who gave a killer Keynote Speech over lunch.  That speech will be forthcoming in the St. Thomas Law Review, as will Amy Schmitz paper, discussed below, so look out for that.

HartDanielle Hart started off the panel with a paper on Contracts and Inequality.  Her talk took issue with the claim that the state is absent in contract law.  In fact, she regards contract law as public law because the state is neither netural nor minimal, and contract law in action helps to create and perpectuate inequality.  She illustrated her point with a case of a fairly typical subprime mortgage loan to an African-American women in a predominantly minority neighborhood.  The state helped manufacture the desire for homeowneship; the state created the residential housing market through regulation and deregulation of the housing market; and the state decides on enforcement and enforces judgment.  

The result is that law promotes inequality.  Parties to contracts are not equal, but contract law ignores structural inequality in bargaining power and applies rules "neutrally" without adjusting for structural inequality.  Thus the stronger party gets the better end of the bargain.  And getting into contracts is much easier than getting out of them, especially with the new hurdles to litigation including the Twombly/Iqbal line of cases, as well as standard contract terms such as binding arbitration clasues and class action waivers.  The result is an endless cycle in which those with more power continually can use contracts to extract favorable terms in each successive contractual relationship and those without bargaining power are made worse off through unfavorable bargains.  

Returning to her illustration involving the African-American borrower, Professor Hart noted that the banks that made subprime loans before the mortgage meltdown are mostly doing fine, but there is now a remarkable racial disparity in wealth in American households (over $113,000 for White households; about $5-6000 for African American and Hispanic households).  The numbers are very low for African-American and Hispanic households because so much of their wealth was tied up in their homes, which they lost in the subprime crisis.  This illustrates Professor Hart's cycle of contracts law serving the interests the better off at the expense of the poor.

KerenHila Keren next presented her paper on Contract Law and the Responsive State, in which she addressed what can be done in light of the very depressing state of things as described in Professor Hart's paper.  Professor Keren regards contracts as a mode of social regulation and offered ways in which we can use contracts law to further socially desireable ends.  She does so in the context of two patterns of market exploitation.  The first is "predatory prenups;" that is, prenups in which a woman is coerced into a marriage relationship because of particular vulnerabilities.  Second, in predatory loan agreements, people enter into unfavorable loans because they were vulnreable, low-income, unsophisticated, first-time buyers. 

Inequalities are increased if judges refuse to intervene to protect exploited parties.  Professor Heren agrees with Professor Hart that judges are increasingly refusing to intervene.  Her proposal is to replace our neo-liberal theory with a revamped vulnerability theory to underpin contracts doctrine.  Neo-liberal theory associates equality with non-discrimination; vulnerability theory focuses on the right of individuals to participate in society and to have their human dignity recognized and protected.  Neo-liberal theory regards the subject as the private, autonomous individual; under vulnerability theory we are all vulnerable and interconnected.  Finally, neo-liberal theory regards the state as a threat to individual freedom, while vulnerability theory desires a responsive state that will address human vulnerabilities.  In the contractual context, the responsive state simply refuses to enforce exploitative contracts.

Vulnerability theory eanbles us to appreciate that vulnerability is a normal part of life that arises as a product of state policies and politics.  Permitting exploitation of such vulnerabilities harms human dignities, and the responsive state ought not to permit such exploitation.   Professor Keren supports the recognition of a right not to be exploited through contractual means, and she notes that European law recognizes a norm against contractual exploitation.  In the U.S., where that norm is not legislatively enacted (and the prospects are dim), we might be able to make due with a beefed-up version of the doctrine of unconscionability.  

SchmitzAmy Schmitz gave a talk on Acccess to Consumer Remedies in the Squeaky Wheel System.  Her talk built on this paper from the Pepperdine Law Review.  By "squeaky wheel," Professor Schmitz refers to the fact that only 1/3 of consumers do anything when dissatisfied with a product and few go beyond just calling and complaining.  Very wealthy consumers are the most likely to complain about non-conforming consumer goods.  Those "squeaky wheels" often get the remedy they wanted and they end up being loyal customers because they are satisfied with customer service.  

The same goes with sales.  White men are more likely to bargain than women or minority groups.  An Ian Ayres study indicated that women paid a 40% mark-up over men in car sales and African Americans and Hispanics paid a 100% mark up over white male consumers.  Most people do not bargain or seek to change terms when they enter into contracts, and most people do not read or pay attention to most contractual terms.

So, how do we bring back remedies?  How do we compel sellers to stand by their goods? Professor Schmitz suggests that we need a new "handshake" to ignite justice in business-to-consumer contracting.  She thinks online dispute resolution (ODR) might be a way to do so in a low-cost, flexible, user-friendly and non-intimidating manner.

KnappCharles Knapp delivered a paper called Unconscionability: Once More Unto the Breach.  He has been tracing the progress of unconscionability doctrine in the U.S. in a series of law review articles, including this one and this one.  His main argument at this point is that courts have developed a comprehensive body of law on unconscionability.  The doctrine comes up a lot in all sorts of contexts, and the courts know how to deal with unconscionability.  The doctrine is more pervasive than one might think.  Unconscionable behavior also comes up frequently in the interpretation of state and federal statutes.  Courts have also recognized unconscionability as a sword as well as a shield, permitting recovery of large claims based on court findings that certain agreements are unconscionable.  Judges with conscience should not enforce unconscionable agreements because lots of people and corporations do not have consciences.

LinzerPeter Linzer commented on the papers.  He noted Chuck Knapp's important contribution in helping us to recognize that unsconscionability is not a doctrine that we embraced in the 60s and 70s and then it ran its course.  It is alive and well and continues to permit court to invalidate contracts when "something smells bad."  He noted that consumer contracts are far more complex today than they were in the age of face-to-face transactions, because we work through intermediaries (Amazon, Google, credit card companies) each of which has its own terms that we agree to by clicking or using the product.  

Professor Linzer expressed some skepticism that merchants will embrace Professor Schmitz's online dispute resolution mechanisms.  Doctrinal solutions to the problems of form contracts also fail because consumers don't want to litigate, and if they do, the odds are stacked against them.  He therefore prefers the European route of banning certain contractual provisions through blacklists and greylists.  So, we could simply ban pre-dispute binding arbitration in consumer contracts or choice of forum clauses that force the world to come to (e.g.) Microsoft when Microsoft already operates globally.   The new Consumer Financial Protection Bureau may be the entity that can actually do these things.  

Finally, Professor Linzer noted that consumer spending accounted for 71% of the GDP last year.  That makes contracts law an issue of public law.

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