Some American Reflections on KCON XVII

How was this year's KCON different from other KCONs?  I've been reflecting on that question in the aftermath of the conference.  The conference was large.  There were usually three concurrent sessions going at once.  I can't replicate Nick Mouttotos's feat in yesterday's post by providing an overview of the conference as a whole. Rather, this post is impressionist.

I will highlight three main differences that made this years KCON unique.  They correspond roughly to the conference's three plenary sessions, and then a fourth difference -- a focus on relational contracts theory that really took me by surprise.  The plenary themes were respectively: Hugh Beale on the drivers of difference among national contracts law regimes; Mindy Chen-Wishart on the tendency of asymmetrical contracts towards self-destruction; and Aditi Bagchi on contracts law theory.  In short, the themes were comparative contracts law, regulating consumer contracts and other contracts of adhesion, and theory -- broadly construed.

The conference organizer, Dr. Katarzyna Kryla-Cudna (Kasia), chose well in inviting Hugh Beale (right) to open the conference. After the obligatory apologies for his lack of expertise in comparative law, Professor Beale provided some keen observations not only on his proposed topics -- the drivers of diversity in legal systems -- but also on the ways in which we measure such diversity.  Adopting a functional approach, Professor Beale first noted that, setting aside terminological differences, one finds that contracts law across jurisdictions will often yield the same results in cases arising from similar facts.

That said, there are areas of striking non-uniformity.  One area of concentration during the conference was the doctrine of "good faith" and the related obligations of disclosure and fraud through non-disclosure or concealment.  Beyond Professor Beale's presentation, I learned at the conference there is some movement in the UK to adopt American approaches to the concept of good faith, but European perspectives on the subject persuaded to me that our doctrine of good faith is simultaneously well-developed and under-theorized.  Our courts invoke various good faith doctrines in all sorts of contexts, but we lack an systematic understanding of the doctrine, which perhaps explains a lot of variation in how the doctrine applies in our different jurisdictions. 

Professor Beale also touched on the most foundational differences between common-law and French approaches to formation.  In principle, Professor Beale said, the French take a subjective approach to formation.  At least at the panels I attended, the conference did not return to this theme, and I am glad.  I think my head would have exploded had I tried to work out all the consequences of such an approach to formation.

Professor Beale also introduced the comparative theme of the interaction between contracts doctrine and regulation.  This subject also was explored in multiple panels.  Professor Beale's paper focused on B2B transactions, but many papers explored the realm of consumer contracts. My general sense is that, as a regulatory matter, European approaches are far more protective of consumer interests in the context of contracts of adhesion than is the U.S. But my sense is that relational contracts theory explains why things end up about the same.  Our law allows for some pretty sharp contracting practices, but our service-oriented commercial culture and our class-action mechanism combine to discourage companies from insisting on their legal rights.  Relatedly, Professor Beale touched on the very different role of judges in the common-law and civil-law traditions.  He provided us with a wealth of themes, which were explored in greater depth, and often with an appreciative nod in Professor Beale's direction throughout the conference.  Professor Beale was also active in the sessions providing illustrations and anecdotes from his experience as a Law Commissioner, delivered with the obligatory self-deprecation one expects from UK academics.

Mindy Chen-Wishart's work was at the center of the conference both literally and figuratively.  She presented her work just after lunch on the first day of the conference, just shy of the conference's midpoint and was also the event's honoree, and so her work was also a theme at the conference dinner.  References to her work in other papers throughout the conference make clear that, once again, Kasia made an inspired choice.

Professor Chen-Wishart's theme was consumer contracting and the disconnect between our theories of contracting, whether based in will theory, promise, or assent, and the reality of contracts of adhesion.  Much like Peggy Radin's division of the universe of contracts into World A of negotiation and World B of boilerplate (you can gather links from our dedicated symposium here), Professor Chen-Wishart noted that contract theory assumes negotiations between parties of relatively equal bargaining power.  The reality is nothing like that.  Moreover, Professor Chen-Wishart's presentation focused on the ways in which modern contracts law is self-cannibalizing.  One-sided contractual terms negate the principles that contract theory posits as the reasons why contracts are binding.

Professor Chen-Wishart's presentation interacted with many of the presentations that followed, perhaps because engagement with her work is unavoidable for UK and comparative scholars.  Panelists addressing conference themes of consumer contracting, adhesion contracting, defenses to enforcement of one-sided terms, and regulation of consumer contracts all referenced Professor Chen-Wishart's work and the frameworks she has created for addressing these issues.

The final plenary session featured Aditi Bagchi's work on contract as exchange, a tour de force, piece of scholarship with which future scholarship on the theory of contracts will have to engage.  Professor Bagchi would replace theories of contract sounding in will theory or promise with a focus on the actual work that contracts do in bringing about material exchange. 

Professor Bagchi's conference presentation was stimulating and accessible.  She ably identified the elements of actual contracting left unaddressed by traditional theories of contract sounding in will theory, promise, or agreement.  She then offered an overview of the comparative advantages of her theory of contract as exchange.  It was a stimulating talk that left me wanting more.

Professor Bagchi circulated a draft of her paper which is far deeper, richer, and more philosophically challenging than the conference presentation.  It is also dauntingly complex.  I won't try to say more beyond recommending that readers look out for the paper when it makes its appearance on SSRN or in print.  This is very weighty scholarship, obviously the product of decades of reflection on the subject.  Professor Bagchi's scholarship contains multitudes but then synthesizes that material into a challenging reconceptualization of contracts theory.  She renders the familiar strange and then re-familiarizes it in striking ways.

I can't say that the panels engaged with Professor Bagchi's theories directly.  More so than the other plenary papers, Professor Bagchi was striking out in new directions, building on her prior scholarship but staking out new territory.  Nonetheless, her work is ambitious enough to touch on the conferences major themes beyond contracts theory.  Foundational as it is, it can apply to any national tradition, and her work is intensely engaged in the sorts of problems that arise in a world where the law of contracting has moved from negotiation to adhesion. 

While this year's iteration of the conference supplemented the usual KCON subject matter, there were also some themes missing or downplayed.  The first was pedagogy.  KCON usually includes multiple panels on teaching contracts law.  That subject went unaddressed.  Second, while two panels on innovation addressed the intersection of contracts law and technology, they seem to have focused  on smart contracts and blockchain.  I did not attend either session, so I'm not sure what else they covered.  In any case, I expect that when we return to the U.S. next year for KCON XVIII, the impact of AI on contract drafting and contract interpretation/enforcement will be a pervasive theme.

I hope that we can continue to pursue some of the unique themes of this year's conference next year.  While we have a favored candidate for next year's venue, place and date are yet to be determined.  Stay tuned.