ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, October 18, 2016

Contract Clauses and Transactional Skills

Fundamentals of Contract Law

I'm happy to report that my new book, The Fundamentals of Contract Law and Clauses, is now available.  The book is intended to give students a working knowledge of contract law, meaning that they learn the meaning of contract clauses and how they are shaped and affected by doctrine.  It's a textbook but it's not a casebook - it's intended to be used as a supplement in a first year contracts course or a primary text in a business school or undergraduate contracts law course.  (There's a Teacher's Manual which is available to instructors adopting the book which contains discussion points and exercises). 

 It always seemed a bit strange to me to teach contracts law solely by using cases - this emphasizes how to win disputes rather than how to avoid them.  This makes sense for litigators, but transactional attorneys (which I was for a decade) have a different role.  As Mark Burge has pointed out on this blog, contracts is a good gateway to transactional skills but it's not easy to figure out how to do that seamlessly.  Hopefully, this book will be an easy way to incorporate some "transactional skills" into a first year contracts course. 

October 18, 2016 in Books, Miscellaneous, Teaching | Permalink | Comments (0)

Wednesday, July 13, 2016

New Book: Damages and Human Rights

I promised our friends at Hart Publishing to post the following notification about a new book by Jason Varuhas: Damages and Human Rights is a major work on awards of damages for violations of human rights that will be of compelling interest to practitioners, judges and academics alike. Damages for breaches of human rights is emerging as an important and practically significant field of law, yet the rules and principles governing such awards and their theoretical foundations remain underexplored, while courts continue to struggle to articulate a coherent law of human rights damages. The book's focus is English law, but it draws heavily on comparative material from a range of common law jurisdictions, as well as the jurisprudence of international courts.
The current law on when damages can be obtained and how they are assessed is set out in detail and analysed comprehensively. The theoretical foundations of human rights damages are examined with a view to enhancing our understanding of the remedy and resolving the currently troubled state of human rights damages jurisprudence. The book argues that in awarding damages in human rights cases the courts should adopt a vindicatory approach, modelled on those rules and principles applied in tort cases when basic rights are violated. Other approaches are considered in detail, including the current 'mirror' approach which ties the domestic approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States constitutional law.
The analysis has important implications for our understanding of fundamental issues including the interrelationship between public law and private law, the theoretical and conceptual foundations of human rights law and the law of torts, the nature and functions of the damages remedy, the connection between rights and remedies, the intersection of domestic and international law, and the impact of damages liability on public funds and public administration. - See more here.

July 13, 2016 in Books | Permalink

Monday, July 4, 2016

Emory Announces Tina L. Stark Award for Excellence in Transactional Teaching

As a many-years user of Drafting Contracts: How and Why Lawyers Do What They Do, I was pleased to see the following press release from Emory University Law School.

Tina StarkEmory University Law School is proud to announce the creation of the Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills. The award will be presented at Emory’s sixth biennial conference on the teaching of transactional law and skills in June of 2018.

Tina L. Stark, the founding director of Emory Law’s Center for Transactional Law and Practice and the author of the groundbreaking textbook “Drafting Contracts:  How and Why Lawyers Do What They Do,” has worked tirelessly to assure that law students have the opportunity to graduate as practice-ready transactional attorneys. Through her enthusiasm and perseverance, and with considerable grace and vision, she has nurtured the efforts of transactional law and skills educators the world over.

In honor of Tina’s considerable achievements, and in further recognition of her continued service as a beloved teacher and a cherished mentor, the Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills will be awarded to an educator who is:

  • committed to training students to be practice-ready transactional attorneys Drafting Contracts by Stark
  • dedicated to engaging, inspiring, motivating and nurturing students
  • devoted to teaching with passion, using creative and innovative methods
  • known for achievement in curriculum or program development and pedagogy
  • pledged to advance the cause of transactional law and skills education

Nominations for the 2018 Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills will be accepted beginning in June of 2017. Please see the Center for Transactional Law and Practice website for further details about the nomination and selection process in 2017 when the nomination window opens.

If you have any questions about the award, please contact Sue Payne at sue.payne@emory.edu.

H/T:  D.C. Toedt, On Contracts

July 4, 2016 in Books, Contract Profs, Law Schools | Permalink | Comments (0)

Thursday, May 26, 2016

Book Review: Drafting and Analyzing Contracts: A Guide to the Practical Application of the Principles of Contracts Law

Carolina Academic Press has just released the fourth edition of the above title by Professor Scott J. Burnham. I got a chance to review it and, although I have not used it in a classroom setting yet, share my impressions with you here.

The book is well organized into twenty clearly defined chapters. Each chapter boils the relevant contract law into nicely terse “blackletter” law segments with no cases (a plus!) or irrelevant matter. This may serve the dual function of reminding students taking a contract drafting class about the applicable law for purposes of such a class, but also to refresh their memories again before taking the bar.

The exercises alter between reading/understanding-style problems and actual drafting problems. For example, some problems will ask the students pointed questions about contract clauses (“Is nonperformance excused?,” “What does the company have to pay [an injured worker],?” “Which of the following clauses are enforceable?” Many more, though, ask for more student involvement and deeper analysis while drafting. For example, several exercises give students a range of objectives to be accomplished and ask the students to draft the appropriate language, others ask students to identify ambiguities and improving them, some deliberately provide overly complicated “legalese” clauses, asking students to modernize them without compromising the legal objectives, and yet others ask students to rely on certain passages in the book in order to draft certain clauses, taking into consideration certain concerns.

The book also asks students to address various ethical concerns, which is a plus.

The only activity that I saw that I personally do not care for is one asking the students to “research the law in your jurisdiction” to be draft a certain problem. For me, that is too open-ended. I would fear questions about substantive law provisions with which I am not personally familiar and the potential surprise when students find out that we do not know “everything” about the law. However, that was just one of many great, diverse exercises.

In short: this book contains much good substantive information and features a wealth of different types of exercises. I highly recommend that you examine this book for your potential classroom or other use.

May 26, 2016 in Books, Commentary | Permalink

Wednesday, December 2, 2015

GLOBAL K: In memoriam – Louis F. Del Duca

I have been looking forward to the resumption of my posts on ContractsProf blog, but sometimes events overtake us. It is with the greatest regret that I report that our colleague Louis F. Del Duca, Professor Emeritus at Penn State Law, died suddenly on 30 November 2015. An announcement from his law school is available here.

Lou was one of my co-authors on Global Issues in Contract Law (“GICL”), and a beloved friend and colleague for all of us. He was the longest-serving faculty member in the history of Penn State – Dickinson Law, and an internationally recognized scholar in commercial and comparative law. His influence in the “internationalization” of American legal education was profound. His inspiration on the development of West Academic’s Global Issues series was palpable.

At the time of his passing, Lou, I and our coauthors were finishing up the preparation of the GICL second edition. We all feel fortunate to have had this one last interaction with Lou, and I look on GICL second as a small remembrance of our friend and colleague. Godspeed Lou!

GICL

 


Michael P. Malloy

December 2, 2015 in Books, Contract Profs | Permalink

Monday, October 5, 2015

New in Print: Books from Carolina Academic Press

CAROLINA ACADEMIC PRESS
 
The Latest in Contracts!
 
 
Book Cover
Book Cover
 

Contracts

A Context and Practice Casebook

Second Edition

Michael Hunter Schwartz and Adrian J. Walters

2015 | 818 pp | ISBN 978-1-61163-554-6 | casebound | $99.00
Electronic Teacher’s Manual available (PowerPoint slides available for adopters)

Every chapter in this innovative casebook places students in roles as practitioners handling simulated law practice problems; provides context in the form of an overview of the law, similar to that which an attorney would read before reading cases in a new subject area; includes questions designed to encourage students to find the applicable statutes and cases on point in the state where the student is planning to practice law; includes exercises, visual aids, and case reading scaffolds, designed to engage students with a wide range of learning styles; and ends with professionalism questions addressing ethical and professional identity questions suggested by the materials in the chapter.

The second edition retains the style, format, and teaching and learning goals of the first edition, but some cases have been replaced or re-edited, and many of the textual materials, problems, exercises, and case questions have been revised, supplemented, or updated. 

This book is part of the Context and Practice Series, edited by Michael Hunter Schwartz, Professor of Law and Dean of the University of Arkansas at Little Rock Bowen School of Law.

View the Table of Contents and more.

 

Contracting Law

Fifth Edition

Amy KastelyDeborah Waire PostNancy Ota, and Deborah Zalesne

 2015 | 948 pp | ISBN 978-1-59460-989-3 | casebound | $110.00

Student Workbook forthcoming 2016
Electronic Teacher’s Manual forthcoming

Revised and updated to 2015, the fifth edition of Contracting Law continues the clear explanations of contract doctrine, engaging cases, and thought-provoking cultural and historical materials that have made this casebook a favorite of students and professors. Students and faculty appreciate the fact that no separate statutory supplement is necessary. Selected provisions from the Restatement Second of Contracts and the Uniform Commercial Code are included in the casebook as appendices. The revised Student Workbook (purchased separately) is updated to complement the fifth edition with flow charts, vocabulary lists, problems and structured exercises to help students understand legal doctrines, case briefing, and synthesis. Students can use the workbook independently or exercises can be used in class discussions.

The fifth edition augments the cultural material with notes and questions showing the social contexts for specific contract doctrines. Many sections are shortened and reorganized for ease of use in 3-, 4-, or 5-credit courses, while UCC coverage is maintained for those courses designed to include sales law.

View the Table of Contents and more.

October 5, 2015 in Books, Recent Scholarship, Teaching | Permalink

Friday, September 25, 2015

Private Law Blog on Fried's Contract as Promise 2.0

Yonathan Arbel has a post over on the New Private Law blog about the publication of the 2d edition of Charles Fried's classic Contract as Promise.  

The post is here.

The post also includes a video of a panel discussion on the publication, which is embedded below.

 

September 25, 2015 in Books, Conferences, Contract Profs, Weblogs | Permalink | Comments (0)

Monday, July 13, 2015

Weekly News Roundup

ChicagoBlackhawksLogo.svgWe have some news from the world of hockey, that is, the sport of the 2015 Stanley Cup Champion Chicago Blackhawks (logo pictured).   While elite teams (like the Blackhawks) struggle to keep their rosters under the salary camp (Goodbye Patrick Sharp; Goodbye Brandon Saad -- thanks for the memories and the Cups!), as reported on ESPN.com, the L.A. Kings used an alleged "material" breach of contract to terminate center Mike Richards rather than buying him out to evade the cap.  The alleged material breach was at first mysterious, but it has now bee reported, e.g., here on Forbes.com, that Richards was detained at the Canadian border in illegal possession of OxyContin.  But the Forbes report also indicates that Richards' mere arrest is not grounds for termination, and even if he is convicted, the NHL's drug policy does not call for termination.  It calls for substance abuse treatment.  Go Blackhawks!

The Bangor Daily News reports that author Tess Gerritsen has dropped her $10 million law suit against Warner Bros. for breach of contract in connection with the film "Gravity."  As we reported previously, a District Court in California dismissed her complaint but  allowed her twenty days to amend and refile.  The complaint is based on a $1 million contract Gerritsen signed in 1999 to sell the book’s feature film rights to a company that was eventually purchased by Warner Bros.  Gerritsen has admitted that the film "is not based on" her book, but she asserts that the book clearly inspired the film.  

 

 

July 13, 2015 in Books, Celebrity Contracts, Film, In the News, Sports | Permalink | Comments (0)

Tuesday, July 7, 2015

New Book: Money Awards in Contract Law

WintertonHart Publishing is delighted to announce the publication of

‘Money Awards in Contract Law’ by David Winterton

Hart is pleased to offer you 20% discount on the book

To order online with your 20% discount please click on the link below the title and then click on the ‘pay now’ button on the right hand side of the screen. Once through to the ordering screen type ref: CV7 in the voucher code field and click ‘apply’

Alternatively, please contact Hart Publishing’s distributor, Macmillan Distribution Limited, by telephone or email (details below) quoting ref: CV7

Money Awards in Contract Law

David Winterton

The quantification of money awards for breach of contract is a topic of both significant theoretical interest and immense practical importance. Recent debates have ranged from the availability of gain-based awards to the theoretical basis for principles of remoteness and mitigation. While these and other important issues, such as the recovery of compensation for non-pecuniary loss, are touched upon, the book's principal objective is to challenge the orthodox understanding of the expectation principle, as famously laid down by Parke B in Robinson v Harman. According to this understanding, the usual objective of money awards for breach of contract is to compensate for 'loss' suffered by reference to the position the innocent party would have occupied had the contract been performed. After challenging this orthodoxy, Dr Winterton proposes a new account of the money awards provided in response to breach of contract which draws an important distinction between substitutionary and compensatory awards. The book aims to provide a coherent picture of contractual rights and remedies and will be of interest to judges, practitioners and academics alike.

David Winterton is a Lecturer in Law at the University of New South Wales.

BOOK DETAILS

June 2015   9781849464574   244pp   Pbk   RSP: £50

20% Discount Price: £40

 Order Online

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount, please click on the ‘pay now’ button on the right hand side of the screen. Once through to the ordering screen type ref: CV7 in the voucher code field and click ‘apply’.

http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849464574

Alternatively, please contact Hart Publishing’s Distributor, Macmillan Distribution Limited, by telephone or e-mail and quote reference CV7 when placing your order.

Macmillan Distribution (MDL), Brunel Road, Houndmills, Basingstoke, RG21 6XS, UK

UK ORDERS: Tel: +44 (0)1256 302692    Fax: +44 (0)1256 812521 / 812558      E-mail: direct@macmillan.co.uk

EU AND ROW ORDERS: Tel: +44 (0)1256 329242    Fax: +44 (0)1256 842084    E-mail: export@macmillan.co.uk

July 7, 2015 in Books, Recent Scholarship | Permalink

Tuesday, March 31, 2015

Physicist Publishes Autobiography, Defying the Department of Energy: A Contracts Take

Building the H-BombMy friend Ken Ford is enjoying his fifteen minutes of fame, courtesy of the Department of Energy (D0E), which is displeased with his memoir, Building the H-Bomb: A Personal History.  According to this report in the New York Times, DoE officials told Dr. Ford to make cuts to his book that would have eliminated 10% of the text.  DoE personnel flagged 60 separate passages in the book for editing.

This demand (and the DoE made clear that it was making demands not requests) came as a surprise to Dr. Ford, who had submitted the book for DoE review expecting the process to be a mere formality.  In Dr. Ford's view, the book contains no secrets, as the information that he included in his book relating to the history of the hydrogen bomb either had been previously disclosed or was released to him through FOIA requests.  The DoE sees things differently, but the agency is unlikely to respond to the publication of Dr. Ford's book, in large part because any action it takes would only draw attention to the information whose disclosure it regards as improper.  

The Times articles covers the story well and provides some examples of material that the DoE regards as classified but Dr. Ford regards as public.  We would like to focus on a couple of contractual issues.  First, the Times references Ken's alleged contractual obligation arising from a non-disclosure agreement he signed in the 50s.  Dr. Ford does not recall what that agreement said, but he provided this blog with a copy of a similar agreement dated from September 2014.  The DoE asked Dr. Ford to sign this new non-disclosure agreement  in connection with its review of his manuscript.   That document provides the government with multiple remedies should Dr. Ford reveal any classified information, including:

  • termination of security clearances and government employment;
  • recovery of royalties and other benefits that might result from any sort of disclosure of classified information; and 
  • criminal prosecution under Titles 18 and 50 of the U.S. Code and the Intelligence Identities Protection Act of 1982.

Given this non-disclosure agreement, one would expect that Dr. Ford's publisher would be reluctant to publish the book, fearing that it too might become a target of government scrutiny.  In order to protect his publisher against liability, Dr. Ford agreed to amend his publication agreement to expand the usual indemnification clause.  The additional language in the contract provides that Dr. Ford will indemnify his publisher "against any suit, demand, claim or recovery, finally sustained, by reason of . . . any material whose dissemination is judged by the United States Government to have violated the Author's obligations regarding the handling of sensitive information."  

Steven Aftergood provides further information on the Federation of American Science Secrecy blog here.  

Dr. Ford provides an overview of the story that his book tells, as well as links to about a score of documents, eight of which are annotated with Dr. Ford's comments, on George Washington University's National Security Archives.

March 31, 2015 in Books, Government Contracting, In the News, Science | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

Guest Post: Robin Kar, The Emerging New Life of Contract Law Studies, Part IV

KarThis is the fourth in a four-part post by Robin Kar that serves as a sort of coda to our virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure 

Part I, The Proverbial “Egg,” can be found here.

Part II, Breaking Out of the Shell, can be found here.

Part III, What Is This Emerging New Life? can be found here.

Part IV: Discarding the Last Remnants of the Old Shell

When reading More Than You Wanted to Know together with the reactions in the virtual symposium, I have been struck by two facts. First, we clearly know much more about how mandatory disclosure regimes work than ever before. Details aside, a consensus is emerging that these regimes do not always help consumers make better decisions. Second, despite this increase in knowledge and emerging consensus over the problem, there is even more uncertainty and even less consensus over how consumer protection should be reformed in light of these facts.  

            i.          Diagnosing the Problem

How can more clarity about the empirical facts lead to less clarity about what the law should be? I believe that part of the reason is simple: many of the current debates over these issues are still insufficiently attentive to the rigorous types of argumentation needed to address the purely normative aspects of these questions. To be more specific, the third premise of the classical law and economics movement (see Part I) has not yet been replaced by rigorously developed lines of argumentation from the appropriate cognate fields—as has happened with the first two premises. 

MoreIn saying this, I do not mean to suggest that rigorous argumentation on these topics is lacking. I mean to highlight a sociological fact about the current legal academy. I believe that the right lines of argument have not yet been sufficiently absorbed by contract law scholars who work in and around the law and economics paradigm. Because of the predominance and recent expansions of this paradigm within the study of contract law, this third premise is increasingly assumed or tacitly accepted by many other contract law scholars. This includes many scholars who do work predominantly in law and psychology or engage in straightforward empirical legal research.

In More Than You Wanted to Know, Ben-Shahar and Schneider are, for example, apparently willing to accept that the primary purpose of consumer protection law is to help consumers make better decisions. This is why they recommend better advice instead of more disclosure. But interestingly enough, almost all of the people who have responded critically in this symposium appear to accept—either explicitly or tacitly—either the same normative proposition or the alternative view that consumer protection laws should be set up to promote social welfare more generally. (The most notable exception is Aditi Bagchi’s response—though Steven Burton’s plea that the authors spend more time thinking about obligation may represent a similar thought.)

Hence, there is a normative assumption running through many of the current debates. The assumption is that consumer protection laws should be shaped to promote either better subjective choice or human welfare more generally. But is this normative premise true? And before we even get to that question: how might we determine whether it is true?

After the jump, I will pursue these questions. I will suggest that we cannot get clearer about the appropriate shape of consumer protection law, however, until we ask the right normative questions. And I will suggest that we are not yet doing that in major areas of contract law studies.

Continue reading

October 10, 2014 in Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 9, 2014

Guest Post: Robin Kar, The Emerging New Life of Contract Law Studies, Part III

KarThis is the third in a four-part post by Robin Kar that serves as a sort of coda to our virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure 

Part I, The Proverbial “Egg,” can be found here.

Part II, Breaking Out of the Shell, can be found here.

Part III: What IsThis Emerging New Life?

In Part II, I described how More Than You Wanted to Know seeks to answer psychological and empirical questions relevant to consumer protection law based not on ungrounded psychological premises or the kind of abstract theoretical reasoning that is typically associated with the classical law and economics paradigm but rather on actual psychological and empirical research. I suggested that these methodological moves explain the power of the book to take us much closer to the truth about use and sufficiency of mandatory disclosure regimes to cure a host of problems in consumer contracting.

As someone interested in methodology and the sociology of knowledge production in the legal academy, I find developments like these incredibly interesting. I am fascinated by the fact that they are often viewed as developments internal to the law and economics movement—even though they essentially dispense with some of its early guiding premises and draw on methodologies from other cognate fields.

The movement to replace classical economic assumptions about human decision-making with psychological facts is, for example, sometimes called “behavioral economics”. But what is really happening is that classical economic assumptions about human psychology are being replaced with direct psychological research into the relevant facts. Similarly, the move to replace economic modeling with rigorous empirical research is sometimes called “econometrics”. But what is really happening—at least within the legal academy—is that fewer law and economics scholars are making predictions about legal rules based merely on theoretical modeling and more are engaging in genuine empirical research. When they do this, they typically use statistical and other methods developed in the social sciences more generally—and not methods specific to the field of economics.  

Morethan In my view, one of the greatest virtues of some parts of the law and economics movement is that it has been willing to revise many of its early premises and adopt methodologies from other fields when necessary to make its scholarship better track the truth. This willingness is also one of its greatest sources of continuing strength. Because of this willingness, the field has essentially been able to absorb a broad range of criticisms, while continuing to broaden in influence and produce scholarship that better tracks the truth. More Than What You Wanted to Know is a wonderful example of this development—at least when it come to curing distortions caused by the first two premises of the classical law and economics paradigm.  (For a description of these 3 premises, see here.)  

Still, as far as I know, there is not yet any name for the move to replace ungrounded economic assumptions about how to assess normative arguments (i.e., premise 3 from Part I) with rigorous thought developed by experts in the appropriate cognate fields. These are the fields of moral, legal and political philosophy, along with the field of meta-ethics. Corresponding to this fact, there is not yet as robust an acknowledgment of the need for this move within many influential contract law circles.

When I say I believe significant new life may be emerging in the study of contract law, I am nevertheless referring to the possibility that all three of the classical law and economics premises be replaced with rigorous lines of evidence and argumentation drawn from the correct cognate fields. I am referring to a highly interdisciplinary research program that draws on (1) our best contemporary psychological findings into decision-making and how humans operate with legal rules when asking psychological questions relevant to contract law, (2) rigorous empirical research into the consequences of different legal rules when adopted by groups with real human psychologies, and (3) philosophically well-grounded argumentation and debate over the normative propositions that are most relevant to contract law.

I am describing a hope, not an expectation—because it is we, as a field, who will decide whether this new life fully emerges. 

For a range of historically contingent reasons, the classical law and economics movement may just end up serving as the early vehicle (or the proverbial “egg”) for this transition within the legal academy. I believe that would be an incredibly good thing for the study of contract law because it would essentially allow the legal academy to adapt a ready-made set of social and academic networks that are already studying this subject matter intensively and in highly influential manners. But this would also require a much greater appreciation by scholars who work within this paradigm of the need for more rigorous philosophical input on normative questions.

The result would, moreover, not just be an expanded sub-field of law and economics. It would be better described as a fully informed search for the truth. The proverbial “egg” will have given birth to something much, much better.

But we are not yet there yet. There is still too large a disconnect between moral and political philosophers and economists within the legal academy. Hence, a great deal of highly influential work on contract law still risks producing distortion. In Part IV, I will show how this problem still affects many discussions of consumer protection law. I will also make a plea that we work together to breath the right new life into contract law studies going forward.

October 9, 2014 in Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Guest Post: Robin Kar, The Emerging New Life of Contract Law Studies, Part II

KarThis is the second in a four-part post by Robin Kar that serves as a sort of coda to our virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure 

Part I, The Proverbial “Egg,” can be found here.

Part II: Breaking Out of the Shell

As we all know, the law and economics movement has proven a formidable force within the legal academy, especially in relation to subjects like contract law. As recently as 2012, even Charles Fried, the author of Contract as Promise, was forced to acknowledge that “the economic analysis of law may today be the dominant intellectual approach to legal institutions generally and contract law in particular.”

Because of Omri Ben-Shahar’s training and intellectual ties, many will view More Than What You Wanted to Know as a work that is partly internal to the law and economics movement. This affiliation should help the book because it will allow the book to speak credibly to a wide range of influential contract law scholars who currently share this affiliation. The book ultimately challenges one of the early dogmas of the classical law and economics paradigm, as described in my prior post, but—because of the book’s intellectual affiliations—the book can pose this challenge in an especially effective manner.

It should nevertheless be noted that the central insights in the book arise not from anything specific to the field of law and economics but rather from rejection of the field’s first two classical premises. With respect to human psychology (see premise 1 in Part I), Ben-Shahar and Schneider do not simply assume that consumers make more rational decisions whenever more facts are disclosed to them. Instead, they canvass a wealth of psychological evidence to the contrary. This evidence shows that consumers are especially likely to make poorer decisions as their choices become more complex and unfamiliar and when those terms are dictated by sophisticated contracting parties. 

When determining the likely consequences of legal rules (see premise 2 in Part I), the authors similarly avoid abstract economic modeling and turn instead to direct empirical data. They draw this empirical data from a broad range of sources, and the facts suggest that mandatory disclosure regimes have increasingly begun to harm consumers in many contexts. 

Itunes scrollOne reason for this is dynamic. Over time, mandatory disclosure regimes tend to lend increasing complexity and unfamiliarity to even the most banal of transactions. In one particularly poignant example, the authors describe the $.99 purchase of an iTunes song—which was accompanied by 32 feet of complex and often incomprehensible boilerplate (when printed out in a tiny font, as illustrated on the left). One of the underappreciated consequences of mandatory disclosure regimes is that they have increasingly begun to flummox consumers in even the simplest of transactions.

In highlighting facts like these, More Than You Wanted to Know takes us much closer to the truth about mandatory disclosure regimes than classical law and economics methodologies can. Speaking from a purely methodological perspective, it is able to do this because it is willing to abandon the first two premises of the classical paradigm and replace them with something better. It seeks to answer psychological and empirical questions relevant to consumer protection law based not on ungrounded premises but rather on actual psychological and empirical research.

This is an example of the emerging new life that I see in contract law studies. It is a better life because it is more likely to track the truth.

In my next post, I will nevertheless reflect more deeply on this new life. I will ask whether we have gone far enough as a field to make it really come to life. Have we—in other words—gone far enough yet to ensure that our collective research best tracks the truth?

October 9, 2014 in Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 8, 2014

Guest Post: Robin Kar, The Emerging New Life of Contract Law Studies, Part I

KarThis is the first in a four-part post by Robin Kar that serves as a sort of coda to our virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure 

Introduction

When an egg hatches, new life emerges. But it often takes its first steps into the world with some remnants of its newly discarded shell.

I believe that significant new life may be emerging in the study of contract law, but that too much of an old shell remains. Rather than hide the ball, let me just say that the proverbial “egg” is the classical law and economics movement. And More Than What You Wanted to Know takes us part—though only part—of the way toward that emerging new life.

Jeremy Telman has been kind enough to let me post a late addendum to this symposium so that I can explain these perceptions. I want to use this review to prompt more scholars in the field—including Ben-Shahar and Schneider—to acknowledge what we need to do as a field to get further toward the right destination in the study of contract law.

As other contributors have noted, More Than You Wanted to Know is a full-throated attack on mandatory disclosure regimes. These regimes have been widely used and accepted in many contexts for some time now. It is therefore interesting to note that almost all of the commentators here have voiced some agreement with the basic thrust of the book—even while arguing that its thesis is overly general. We are witnessing the tail end of a shift from what once seemed to be common knowledge (i.e., about the usefulness and sufficiency of mandatory disclosure to cure a host problems in consumer contracting contexts) to a very different shared understanding.

But how has this shift occurred? As someone interested in the sociology of the legal academy and how different interdisciplinary methods can combine to produce (or distort) knowledge, I want to delve further into this question. I also want to ask whether we have gone far enough, in our collective studies of contract law, in the right direction. (I should probably apologize in advance to Carl Schneider that I will focus more on contract than informed medical consent in these posts, given the nature of this blog.)

The Proverbial “Egg”

If the “egg” is the classical law and economics movement, then that is where we should start.

Interdisciplinary studies of law can obviously produce enormous insight. When methods from cognate fields are applied to the law without sufficient reflection on the validity or applicability of their guiding premises, they can, however, also produce significant distortion. In this particular case, I believe that faulty premises associated with the classical law and economics movement are part of the cause of overblown intuitions concerning the use and value of mandatory disclosure regimes.

To analyze the source of this distortion more concretely, I ask you to consider an approach to studying contract law that might seem fanciful at first. This approach combines three basic elements:

  1. MoreHuman Psychology. The approach starts with certain assumptions about how human psychology and decision-makings works. These assumptions are intuitively plausible to some but are not rooted in any rigorous psychological research.

  2. Predictions about Legal Rules. The approach then generates predictions about the consequences of legal rules by modeling interactions among hypothetical people with the psychologies presumed in premise 1 under different hypothetical legal rules. The approach thus relies on theoretical modeling instead of rigorous empirical research to make empirical predictions.

  3. Normative Questions. The approach is skeptical of any kind of value that is not reducible to the value of some state of affairs. Proponents of this approach are thus impatient with normative arguments that do not fit easily into the consequentialist (and/or welfarist or cost-benefit) frameworks that they best understand. People who adopt this approach are not, however, typically trained in moral or political philosophy—which are the fields that deal most directly and rigorously with normative questions. Nor are they trained in the field of “meta-ethics”—which is the study of the status or objectivity of normative judgments. People who adopt this approach are thus largely unversed in the considerations that might legitimately ground (or respond) to their skepticism. This prevents them from knowing whether their grounds for skepticism are valid. It also prevents them from knowing whether their skepticism can be limited to concepts they reject (like “rights” and “fairness”), or whether it equally affects the values they accept (like “welfare” and a person’s “good”).

On its face, an approach like this would appear to be a recipe for disaster. It studies contract law and makes numerous recommendations for legal reform, but it employs a methodology that is unmoored in the specific classes of evidence and types of argumentation that are most relevant to its professed subject matter. 

But as anyone reading this blog will know, this description is far from fanciful. To make it describe something real, one need only clarify that the psychology referenced in premise 1 is homo economicus—or the classical, “rational actor” model. Then these three premises provide a pretty good description of the heart of the classical law and economics approach to studying contract law. 

These three premises can also seem to lend support to the value and sufficiency of mandatory disclosure regimes to cure a host of problems with consumer contracting. Mandatory disclosure regimes purport to produce the precise information needed for rational consumers to make better choices for themselves. If people are rational actors (see premise 1), then economic modeling (as described in premise 2) can thus be used to show that these regimes should simultaneously produce overall gains for consumers who contract, overall gains in social welfare and a more efficient allocation of resources. These regimes should also work relatively automatically, or “as by an invisible hand”, in the following sense: they should produce these results without the need for any centralized state planner to know in advance which exchanges are better for specific parties. There is, moreover, nothing else to value (as per premise 3). Hence, there is nothing else that legitimately speaks to the appropriate contours of consumer protection law.

There is no doubt about it: mandatory disclosure regimes work incredibly well in (classical economic) theory. The question is whether they work in reality.  In the posts that follow, I will explore that question.  I will suggest that More Than You Wanted to Know takes us further toward the truth—but cannot, as it stands, take us all the way there. 

 

October 8, 2014 in Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

Introducing our Guest Blogger, Robin Kar's Coda to Our Virtual Symposium on More That You Wanted to Know

KarProfessor Robin Kar is a professor of law and philosophy at the University of Illinois College of Law. He is a faculty affiliate of the Illinois Law and Philosophy Program, the Beckman Institute for Science and Technology (in the Cognitive Psychology Research Group), the Illinois Program in Law, Behavior and he Social Sciences, and the Illinois Network for Neurocultures.  He is Director of the Illinois Center for Interdisciplinary and Comparative Jurisprudence, and a Project Leader for the Illinois Program on Cultures of Law in Global Contexts.  He has a PhD in philosophy, with a special focus on moral psychology, moral, legal and social philosophy, meta-ethics, rational choice and game theory, and the foundations of economics and the social sciences.  Some of his work on moral psychology, the psychology of obligation, and the nature of law and legal obligation can be found in pieces like The Deep Structure of Law and Morality, The Psychological Foundations of Human Rights, Hart’s Response to Exclusive Legal Positivism, and The Two Faces of Morality

Readers of the blog are also likely already familiar with Professor Kar’s recent SSRN Top Ten hits on contract law and theory, Contract as Empowerment: A New Theory of Contract and Contract as Empowerment Part II: Harmonizing the Case Law, along with his piece The Challenge of Boilerplate.  Kar teaches contract law and wide array of jurisprudence and legal theory courses, including seminars like morals, markets and the law.

Professor Kar’s posts serve as a sort of coda to our our virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure 

Professor Kar will present his argument in four parts:

Part I: The Proverbial “Egg” suggests that three ungrounded premises of the classical law and economics movement have often caused many people to think that mandatory disclosure regimes have an unwarranted degree of support. 

Morethan Part II: Breaking Out of the Shell describes More Than You Wanted to Know as emerging from the classical law and economics paradigm but as able to challenge one of its central dogmas because it is willing to depart from two of the three core assumptions associated with that classical tradition.  The book seeks to answer psychological and empirical questions based on real psychological and empirical research rather than ungrounded psychological premises and abstract theoretical modeling. This explains why the book is better able to track the truth about mandatory disclosure regimes.   

Part III: What Is This Emerging New Life? outlines a better and even more broadly interdisciplinary paradigm that Professor Kar sees as potentially emerging from these developments. This research program would draw not only on psychological and empirical research to answer any psychological and empirical questions relevant to contract and consumer protection law but also on a broader range of philosophical methods of argumentation to answer any normative questions relevant to these topics. Part III argues that further development toward this interdisciplinary collaboration is needed for contract law studies to better track the truth.      

Part IV: Discarding the Last Remnants of the Old Shell suggests that we still have a way to go in freeing ourselves from the limitations of the classical law and economics paradigm.  It describes how this problem still causes many scholars to ask the wrong normative questions when asking how best to reform consumer protection law—as illustrated both by More Than You Wanted to Know and many of the responses to it in this symposium. This has led to an increase in knowledge about the psychological and empirical facts, but even more uncertainty and less consensus over how best to reform consumer protection law in light of them.  This problem can only be fully addressed by attending better to the right normative questions. 

So what are the right normative questions, you ask?  Stay tuned to find out!

October 7, 2014 in About this Blog, Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 30, 2014

Ben-Shahar & Schneider Symposium: One-Stop Shopping

Monday, September 29, 2014

Smoking and the Dangers of Disclosure

The NYT had an article about e-cigarette label warnings today that was eerily appropriate given our symposium on Omri Ben-Shahar and Carl Schneider's book, More Than You Wanted to Know:  The Failure of Mandated Disclosure. The reporter must have been following our blog symposium and seems to have come up with an example that supports the arguments made by Ben-Shahar and Schneider.  The article explains how big tobacco companies have been putting warning labels on their e-cigarette packages that are more extensive than those on their tobacco cigarettes.  There are several possible explanations for why they are doing this, ranging from the least cynical (they want to be good corporate citizens) to the more cynical (they are trying to set up their smaller e-cigarette competitors for later regulation, possibly reduce demand for e-cigs to boost sales of tobacco cigs, and protect themselves from liability). 

I tend to be in the more cynical camp.  Big tobacco companies are both attempting to protect themselves from liability by setting forth as many potential dangers of their product as they can, and they are positioning e-cigarettes as "just as" dangerous, if not more, than plain old tobacco cigarettes.  The article notes something that readers of the book and blog already know - the disclosures have little effect on consumer purchasing decisions because nobody reads them.  The strategy of big tobacco supports the arguments made by Ben Shahar and Schneider that disclosure hurts rather than helps consumers except there's one crucial difference -  the companies are putting these extensive disclosures on the labels themselves.   They are not mandated. By voluntarily disclosing the harms of e-cigs, big tobacco companies both protect themselves from liability and avert regulation.  Doing away with mandated disclosure wouldn't prevent this kind of strategic selective disclosure --selective and strategic in the sense that these companies are only forthcoming with certain products and with certain types of disclosure.  It's revealing that one of the companies claiming that e-cigarettes warrant more extensive disclosure than their tobacco counterparts is RJ Reynolds, which succesfully sued the FDA to prevent mandated graphic warnings on cigarette packages.

So - the battle about disclosure continues to rage....

 

September 29, 2014 in Books, Commentary, Contract Profs, Current Affairs, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Ben-Shahar & Schneider Symposium, Finale: The Authors Respond

Ormi 3 SchneiderAfter reading our book and the blogs about it, you are surely in danger of hearing more than you want to know and even more surely apprehensive about a response in which we battle and bicker point by point.   Our critics have described our thesis accurately:  More Than You Wanted To Know does argue that mandated disclosure is the most common and least successful form of regulation today, that it cannot be fixed, and that it does more harm than good.  But our critics puzzle us in some basic ways we will briefly explore. 

 Our objection to mandated disclosure is not an objection to information. People need information, seek it, and commonly use it wisely, especially when they want and even enjoy it.  Advertising would not thrive were people indifferent to information, nor would libraries, newspapers, universities, or Google.  But mandated disclosure is not just about information; it is a regulatory technique that directs quite particular kinds of information at quite particular times in quite particular ways.  It aspires to give people information they did not seek and do not like to use.  Information they often find irrelevant to their decision.  Information that is often repellently complex and baffling.   Information that thus requires training to use well.  All this while people are contending with counterparties who are well informed and have interests of their own. 

Morethan Our critics in this symposium and elsewhere widely acknowledge the strength of our core arguments that mandated disclosure’s record is poor and its challenges great.  In area after area, mandated disclosure’s history is the same:  high hopes that people will be liberated from ignorance, made at last truly autonomous, and led to improved decisions.  In area after area, able and thoughtful people have labored decade after decade to realize these hopes.   After all these years, those hopes are still thwarted.  One might have expected, then, that all this thought and effort and ability would be turned to seeking better regulatory methods and persuading law-makers to use them.  Instead, two responses are common:  One is to argue that disclosure will work if only we can at last learn to do it better; the other is to shift the goals of disclosure from helping people make choices to more general benefits more indirectly achieved.

For example, immense creativity has been harnessed to solve the problem of conveying complex information to people ill-situated to interpret it.   We devote a chapter in the book to arguing that simplification—the deus ex machina of contemporary disclosurism—has not only disappointed its advocates’ eager hopes, it has barely budged the meter.   True, there are always more techniques to try, like Ryan Calo’s “visceral” disclosures, Bar-Gill’s “use pattern” disclosure, or Porat-Strahilevitz’ “personalized” disclosures.  These might succeed where others failed, but let’s make sure we understand how formidable their task is and how discouraging the history of such efforts has been.

Take Lauren Willis’ example of the CARD Act’s simplified disclosure, a payment “nudge” invented in the era of “smart” disclosure to prompt debtors to pay balances faster. Willis—one the most sophisticated critics of disclosures in consumer law—calls this regime successful even while recognizing that its benefits are not “dramatic.” How undramatic can benefits be before we stop advocating simplified disclosure? A recent study based on government data finds few cardholders responded to this nudge, that those who did saved only $24 on average, and that the total effect of this disclosure reform was $71 million annualized savings. In a $750 billion market, this benefit is so undramatic that we doubt it’s worth its design costs. (Luckily, the CARD Act did more than simplify disclosure.  It also limited fees and saved consumers—especially lower income people—many billions of dollars.)

Can disclosure serve other goals than improving people’s decisions? Can it “improve accountability”? Can firms be deterred from bad conduct even if disclosures go unread?  If disclosure helps the government improve enforcement actions, then the answer is yes.  But now we are talking about a different regulatory animal, where information is reported to the government and used as a baseline for command and control, like enforcing emission standards or collecting taxes. When, instead, disclosure is targeted at the public, does it improve accountability? Hospital report cards have almost no detectable effect on the quality of medical care, but hospitals worried for their reputation seem to be sending high-risk patients (especially minorities) away.  How is that for accountability?  What evidence is there that campaign-finance disclosure reduces money’s corruption of politics?  Or that Miranda stops police coercion?   Instead of sanitizing public life, disclosure is often a fig leaf to make disreputable behavior acceptable.  The rich buy influence—and file their disclosures.  Police, as Stuntz shows, use abusive tactics—and recite Miranda warnings.  Lenders lure gullible borrowers into disastrous debt—and making everything kosher with their neat stack of disclosures. 

While our critics are rich in new refinements on disclosure and in new purposes for disclosure to serve, they are not rich in responses to one of our central concerns:  that mandated disclosure is incompatible with basic features of human nature, with the way that people live their lives and make their decisions.  Unless human nature changes or people live differently, refinements in mandated disclosure can do little and new purposes for mandated disclosure will be increasingly peripheral.

So what do we propose instead? We propose a moratorium on mandated disclosure because we want real problems to be addressed with real solutions. Are credit card fees obnoxious?  Regulate them.  Are medical charges unconscionable? Face up to the perplexities of medical costs.  Do firms cheat customers?  Punish them.  Do conflicts of interest distort incentives?  Decide whether the distortion is great enough to justify prohibiting the conflict.  All these solutions are politically hard, and some of them may be politically unattainable.  But is that a good reason to encourage law-makers to persist in solutions that, while politically feasible, don’t work?

September 29, 2014 in About this Blog, Books, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 25, 2014

Ben-Shahar & Schneider Symposium Part XI B: David Vladeck, Living in a Post-Disclosure World, Part B

This is the eleventh in a series of posts that are part of a virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure Biographies for the second week's contributors can be found here.  The authors' introduction to the symposium can be found here.  

VladeckDavid C. Vladeck is a Professor of Law at Georgetown University Law Center, where he teaches federal courts, civil procedure, administrative law, and a seminar on First Amendment litigation. Professor Vladeck recently returned to the law school after serving for nearly four years as the Director of the Federal Trade Commission’s Bureau of Consumer Protection.

This is the second of a two-part post.  The first can be found here.

My commentary on More Than You Needed to Know picks up where Ben-Shahar and Schneider’s critique of mandatory disclosure leaves off; that is, how to reform the process to move to less bad disclosure regimes. 

I have three modest points:  In yesterday’s post, I argued that there are disclosure regimes that work.  We should explore them to see why.   In today’s post, I will argue that there are tools that can be used to address some of the flaws that Omri and Carl rightly identify and criticize.  They must be employed.  Finally, my tenure at the FTC taught me that mandatory disclosures are often an effective way to ensure accountability.  That virtue is worth exploiting. 

2.  Fix disclosures.  As Omri and Carl point out, disclosures often fail because they are designed to fail.  True, but that state of affairs is not inevitable.   Legislatures and regulatory agencies can mandate that disclosures do just that:  Convey important information to consumers concisely, in plain English, and at the right moment, and nothing more. 

Let’s do a thought experiment with privacy policies, which are rightly the poster child for disclosures that go unread.  Let’s assume that companies were forced to abide by the following simple rules:

(1) Get rid of Orwellian names for mandatory disclosures.   The name “privacy Morepolicy” is itself an oxymoron.   It deceives consumers by assuring them that the company takes privacy seriously because it has a privacy policy.  But these policies abrogate privacy.   Imagine instead if the disclosure were entitled “All the things we will do with your personal information, regardless of whether those uses are harmful to you.”   There is a chance that it would be read.  That might be true even if the title of the disclosure was “What we do with your personal data.” 

(2) Tell consumers what they need to know and nothing else.  Next, imagine that the policies stated clearly and concisely the uses to which one’s personal data would be put.  No other statement would be permitted, especially the long prefatory comments about how much the company really “cares” about your privacy.  And no prevarication would be permitted.  If the data will be given or sold to a third party, that fact – along with the identity of the third parties (and affiliates) and the uses the third party would put the data – would have to be disclosed.   If the company wants to reserve the right to sell the data as it sees fit, the company would have to disclose in bold letters:  “We reserve the right to sell your personal data to whomever we want!”    

(3) Make the legal disclaimers and boilerplate a separate “disclosure”.    Most privacy policies are incomprehensible because they are written by lawyers expert in what Senator Elizabeth Warren calls the art of “wordbarf” (her term, not mine) and focus mainly on disclaiming legal liability, not on “disclosing” the key information. 

(4) Require that the disclosure be made prominently each time a consumer is asked to provide personal information.   At the moment, finding a privacy policy is often like playing “hide and seek” against a determined and smart twelve year old.   If disclosures are going to work, they must be both conspicuous and delivered at the right time. 

(5) Make sure that there is a robust default.    Disclosure regimes are too often stand-alone efforts to regulate, employed as a sop to beat back efforts to impose more stringent regulation.   Default rules are often needed so that if the disclosure fails, the presumption should be that the default rule remains in place.             

I could go on.  But you see my point.  Today most disclosures are carefully engineered by lawyers and experts on human behavior not to be read, or to be discounted because of other claims more prominently displayed.  If you want to see how sophisticated these obfuscation efforts can be, take a look at FTC v. Commerce Planet, Inc., 878 F. Supp. 2d 1048, 1068-72 (C.D. Cal. 2012), a fraud case involving the adequacy of buried disclosures that were contradicted by other far more prominent claims. 

If we are going to reclaim disclosures, those techniques will have to be reined in by more than enforcement cases by the FTC and state agencies.  More important, we must focus on making disclosures comprehensible and addressing the “indifference” problem that Omni and Carl describe.   Professor Oren Bar-Gill’s book, Seduction by Contract, argues that more effective disclosures could be designed to enhance consumer welfare.  And the FTC’s work on disclosures holds some promise.  Look at, for example, the FTC’s work on Dot.Com disclosures available here

3.  Disclosures to ensure accountability.  There is a long history of mandatory disclosures in the United States.   For instance, even before there was an FDA, Congress mandated that food labels identify the name of the food, the food’s ingredients, the net weight of the food, and the name and address of the manufacturer.  The requirement was intended to aid consumers in making purchasing decisions.  But more than that, the requirement was intended to give law enforcement agencies a hook to bring enforcement cases in the event that the food was misbranded.  When Congress passed the Food, Drug and Cosmetic Act in 1938, it carried forward these requirements, and they remain in force today. 

The same of course is true with the Federal Trade Commission Act’s longstanding prohibition on deceptive acts and practices.  Without disclosure regimes, many mandated by law, the FTC’s enforcement authority would be a shell of what it is today, as would be the case for State Unfair and Deceptive Acts and Practices statutes.    

My point here isn’t to claim that disclosure regimes should ordinarily be imposed to serve only as accountability mechanisms.  How to inject greater accountability into the marketplace is an issue that extends far beyond the scope of Omri and Carl’s wonderful book.  Instead, it is to make the more modest claim that even if, as Omri and Carl demonstrate, disclosure regimes generally fail to inform, they often serve the collateral purpose of enabling law enforcement agencies, and at times private parties, to hold sellers accountable for their claims.

                                    *                                  *                                  *

Let me end where I began.   The Failure of Mandated Disclosure is a must-read book for anyone who cares about consumer protection, contract law, and an informed marketplace.  To me, the book throws down the gauntlet to anyone who is willing to defend the status quo.    I doubt that anyone will pick that gauntlet up.  But if we agree that the status quo is indefensible, we need to figure how either to live in a post-disclosure world or how to improve disclosures to the point that some of Omri and Carl’s criticisms no longer stick.  That is our challenge.  I for one am not ready to surrender to a post-disclosure marketplace, especially when we have not yet really focused on designing and enforcing effective disclosure mandates.   

September 25, 2014 in About this Blog, Books, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2014

Ben-Shahar & Schneider Symposium Part XI A: David Vladeck, Living in a Post-Disclosure World, Part A

This is the eleventh in a series of posts that are part of a virtual symposium on the new book by Omri Ben-Shahar and Carl E. SchneiderMore Than You Wanted to Know: The Failure of Mandated Disclosure Biographies for the second week's contributors can be found here.  The authors' introduction to the symposium can be found here.  

Vladeck-david_1David C. Vladeck is a Professor of Law at Georgetown University Law Center, where he teaches federal courts, civil procedure, administrative law, and a seminar on First Amendment litigation. Professor Vladeck recently returned to the law school after serving for nearly four years as the Director of the Federal Trade Commission’s Bureau of Consumer Protection.

This is the first of a two-part post.

Living in a Post-Disclosure World?:  The Challenge of The Failure of Mandated Disclosure

 The title of Omri Ben-Shahar and Carl Schneider’s new book, More Than You Wanted to Know:  The Failure of Mandated Disclosure, is perfectly apt; the book did tell me far more about the failings in mandated disclosures than I wanted to know.   But to be fair, I was warned.  The “disclosure” in the title put me on notice that I would learn “more than I wanted to know,” and the authors kept their promise, proving, perhaps in tension with their title, that disclosures sometimes work.

This is a book worth reading.  The authors ably stake out and defend their thesis.  They carefully, cogently, and at times, ardently make the argument that mandated disclosure regimes are destined to fail.   Too many disclosures lead to overload.  Too many disclosures are incomprehensible - written in leaden language, laden with disclaimers, and comprehensible only by people with multiple doctorate degrees.  But what really dooms disclosures is indifference – a curse for which there is no cure.   While improvements around the margins may be possible, the authors contend that engaging in the quixotic effort to fix unfixable mandated disclosure regimes is a fool’s errand.   Instead, we should move to better and more effective regulatory regimes in those instances where they are really needed.   

Make no mistake; Omri and Carl are not corporatists who want to leverage corporate power over consumers.  Their intentions are pure and good.  They care deeply about promoting consumer welfare.  But, in their view, our current disclosure regime does the opposite:  It is a ruse that promises consumer protection but delivers nothing more than an illusion.       There is, of course, a great deal of truth in the authors’ critique of mandatory disclosure regimes.  Few, if anyone, will defend the status quo.   I certainly will not.  I share most, if not all, of the criticisms that the authors rightly train on mandatory disclosure regimes.   And I wholeheartedly endorse their view that disclosure and more disclosure, as a politically expedient compromise, often prevents needed regulation.  

But I do not accept the pessimism that runs through the book.   Reading it, I was reminded of the quip about democracy –  which “ is the worst form of government, except for all those other forms that have been tried from time to time.”   In some respects, disclosure mandates are the worst form of consumer protection tools.  But for some things, disclosures serve important interests.   Disclosures cannot simply be abandoned; we need to preserve them where appropriate, we certainly need to figure out how to do them better, and we need to stop using disclosure regimes as a substitute for needed regulation.  For this reason, I’ll pick up where the book leaves off; that is, how to reform the process to move to less bad disclosure regimes. 

I have three modest points:  In today’s post I will argue that there are disclosure regimes that work.  We should explore them to see why.   In my second post, I will argue that there are tools that can be used to address some of the flaws that Omri and Carl rightly identify and criticize.  They must be employed.  Finally, my tenure at the FTC taught me that mandatory disclosures are often an effective way to ensure accountability.  That virtue is worth exploiting.  

Morethan 1.  Success stories:   There is no question some mandatory disclosure schemes work.  A number of health warnings have succeeded.   For instance, no one would seriously challenge the success of the Food Allergen Labeling and Consumer Protection Act of 2004 in substantially reducing life-threatening allergic reactions to foods.   Nor would one take issue with the success of poison-prevention programs that rely on Skull and Crossbones warnings.   Perhaps the most dramatic success story is the virtual elimination of Reye’s syndrome in children in the United States as a result of mandatory labeling of aspirin-containing products.   Reye’s syndrome is a rare and potentially fatal condition affecting children and adolescents.  The syndrome attacks the brain and liver, and about half of those afflicted die, with many more suffering severe and irreversible brain damage.  By the late 1970s, strong evidence emerged that there was an association between Reye’s syndrome, and children and teenagers taking aspirin-containing products to treat flu like symptoms and chicken pox.   I was a lawyer at Public Citizen Litigation Group when we brought suit to compel the FDA in 1986 to amend the labeling of all aspirin-containing products to warn parents of the association.  The litigation took a few years, but ultimately succeeded in forcing the FDA to put this warning on aspirin-containing products:  “Children and teenagers who have or are recovering from chicken pox or flu-like symptoms should not use this product.  When using this product, if changes in behavior with nausea and vomiting occur, consult a doctor because these symptoms could be an early sign of Reye’s syndrome, a rare but serious illness.”    The statistics are striking.   “In 1977, 454 cases of Reye’s syndrome were reported in the United States.  Of the 373 cases with follow-up, 42% of these patients died, and 11% survived with residual neurologic damage. Incidence was increased with viral epidemics, especially influenza B and varicella. Reye’s syndrome cases in the U.S. numbered 555 in 1980, but they have fallen drastically.  From 1994 until 1997, identified cases in the U.S. were fewer than two per year.” Lisa Degnan,  Reye’s Syndrome: A Rare But Serious Pediatric Condition, U.S. Pharmacist.

To be sure, there are a number of factors that one could argue make these examples aberrational:  they involve matters of life and death; they generally involve young children or other vulnerable populations; and with the food allergen legislation and the Reye’s syndrome warning, the risks were conveyed not just by warnings, but by broader publicity and public education.  And the industry has become more sensitive to these risks.  For instance, most children’s pain relievers no longer contain aspirin (although some do), and some manufacturers have reformulated their products to reduce the use of food dyes, nuts, and other known allergens.   All fair points.  But the publicity surrounding Reye’s syndrome has disappeared over the past thirty years, as has the buzz surrounding children’s allergies.  Yet Reye’s syndrome has been virtually eliminated, and the risk of allergic reactions triggered by food allergens has been driven down.    

Why did these disclosure schemes work?  I think that there are a number of reasons.   First, people are not indifferent to immediate life-threatening health issues, especially for their children.  Second, these disclosures were just that - disclosures written in short, highly directive language, geared to people with no more than an elementary school education.  Third, the disclosures were not drowned in a sea of disclaimers, which is often the fatal flaw.  Fourth, the disclosures were properly labeled – the disclosure did in fact convey important health information.   Fifth, the disclosures were provided just in time – just when the consumer is making a purchase, and not in a pile of paper in the box to be viewed at some point after the purchasing decision.  And sixth, the disclosures were part of a broader education campaign and were backed up by a strong regulatory scheme.      

Tune in tomorrow for Part B. 

September 24, 2014 in About this Blog, Books, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)