Papers That Make You Think

A collection of papers that I found to be literally thought-provoking: making you think new thoughts. To be sure: Making you think is decidedly not the same as an agreement with the substance, and sometimes the correlation goes the other way. But either way, here are papers (I thought were) worth reading.

Joshua M. Silverstein, Contract Interpretation and the Parol Evidence Rule: Toward Conceptual Clarification, 24 Chapman Law Review 89

This is a long article (155 pages to be precise) and I only read a few parts. I wanted to cover it because it has a nice treatment of the parol evidence rule (PER) and also b/c I have a soft spot for good doctrinal scholarship.

The PER has so many issues and every year I spend days trying to come up with a sensible way of explaining it to my students. Silverstein has done a great job of clarifying the morass, and more importantly, recognizing where the problem is with the map, not with those trying to follow it.

A recurring issue in the context of the PER is the blind leading the blind, and he counts more than six definitions in the caselaw of what counts parol evidence. Correctly, in my view, he doesn’t think the issue is substantive disagreement b/w the courts, just confusion over what exactly is parol in parol evidence.

Exasperated, he calls for abolishing the term ‘parol evidence’ and since that’s not going to happen, he asks that people at least understand parol evidence is a shorthand for “I’m using a term I probably only vaguely understand” (my words, not his), and not take it literally.

I do note that he doesn’t deal with collateral agreements, at least not in the parts I reviewed, which is a topic that I would naturally expect to be included (apologies for the pun), as it would benefit from his clear treatment.

Hunt Allcott, Joshua J. Kim, Dmitry Taubinsky & Jonathan Zinman, Are High-Interest Loans Predatory? Theory and Evidence from Payday Lending, NBER (2021)

Do experts suffer from a bias bias? Do they see biases where none exist?
Based on Allcott et al, seems like yes?
#papersthatmakeyouthink

So payday loans are expensive and you don’t want to need one. A lot of folks believe we should restrict supply (I’m in the reduce demand camp #payday, but that’s for another day)
Why should payday loans be regulated?
New semi-consensus: borrowers are myopic so need protection from themselves.

Is that true?

Here, the researchers survey borrowers about their future borrowing and compare it to actual behavior.
*drum roll*
It seems like borrowers are well-calibrated! Errors appear to be more about inexperience than myopia. See this surprisingly boring figure:

It sure does seem like experts over-estimate the prevalence of myopia… so… a bias bias?

There is more to this paper, which seems to be going in the other direction. They also try to see–roughly speaking—how much borrowers would be willing to pay for a measure that would make borrowing more difficult.

So $ for nudge

If you are time consistent, you wouldn’t pay anything for a nudge. So $>0 means people think they need a nudge

They find that people are willing to pay $ for nudges…
but… TOO MUCH.
If my interpretation is correct, borrowers think nudges are FAR more effective than they actually are.

If all that’s correct, it means that we need to reduce confidence in the prevalence of biases + put less weight on the value of nudges. It’s hardly the last word, and it’s my interpretation, so take it as a #papersthatmakeyouthink

Jesse Schaefer, Beyond a Definition: Understanding the Nature of Void and Voidable Contracts, 33 Campbell L. Rev. 193 (2010).

So, yeah, not quite a click-bait title. But wait, there’s more!

In private law, we make a big fuss of some agreements being void, voidable, unenforceable, (have you heard of validatable?). But do we know what we are talking about? Does anyone? Schaefer is here to make us self-conscious and ashamed.

This is a major issue in a minority of cases. Take the recent case of Epps v. 4 Quarters. A homeowner hires an unlicensed contractor to do restoration work after a flood, using insurance checks as payment. The K gives the contractor the right to sign the checks on the owner’s behalf. After the work is done, Owner sues for defective work. Owner cites a local statute that prevents unlicensed contractors to sue for compensation (MCL 339.2412(1)). Here’s the thing: if the K is void, it makes the cashing of checks potentially conversion. If it’s just voidable, then it’s just illegal to sign the checks prospectively.

A void K is one that has never really existed; a voidable K is rescindable at the will of the innocent party; an unenforceable K is… one that creates a duty to perform but creates no right for damages.

When a K involves a misunderstanding, it is void; when it involves a mistake, it is voidable; when it is illegal or violates the Statute of Frauds, it is unenforceable. The key point, as I read Schaefer, is that these are all conclusions, rather than definitions.

Take Romm v. Flax. The parties signed a K for the sale of a house. A Maryland law states that if the seller of a house fails to deliver a certain disclosure, the sale K is “void.” The seller, who changed his mind, tried to get out of the K by citing his own failure to deliver the disclosure. The trial court actually agreed with the seller. The appellate court was unhappy and said that “void” only means “voidable.” So, only the buyer can ask for recission.

Schaefer has a remarkably sensitive ear. He says that courts in cases like Romm and the Restatement itself consistently mix-up the terms to serve desired outcomes.

What to do about this mess? He thinks we should just recognize that void, voidable, and unenforceable mean the same sort of thing, and that courts should always employ discretion regarding the desirable consequences of their decisions. Labels won’t do the work for us.

As I struggle every year delineating between mistake, misunderstanding, and the duty to read, I find his approach appealing. But that means we need a good theory of when a defect should lead to forfeiture, restitution, or something in between. Makes you think!

Eric Alden, Promissory Estoppel and the Origins Of Contract Law, 9 Northeastern U. L. Rev. 1 (2017)

So what’s the story with promissory estoppel and is it coming to kill contract law? (also: a lucid overview of the evolution of K law)

Common law courts relied on tortesque doctrine to create the law of Ks. Does that lead to the Lovecraftian-horrific conclusion that K is a branch of torts?

Are “concepts of contract . . . a lesser and merely derivative species descended from a primordial forefather of tort”?

K profs can sleep well at night: Alden says no.

This was, he says, well understood in “the serious literature of English legal history” but the ideas were distorted for polemic reasons by American lawyers.

Image

Specifically Williston. W wanted to justify PE by saying that reliance on a promise, w/o consideration, reflects the true doctrine and that consideration is a non-organic late-comer. But, Alden claims, W mistook the historical record, alongside Gilmore & Corbin

In making his case, Alden achieves a formidable feat. He explains the evolution of the common law of Ks in engaging, clear, and clean prose. This alone is worth the price of admission.

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(In critiquing the English doctrine of Wager of Law, is this an intentional pun??)

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It’s not like English lawyers of the time were confused; they knew pretty well that there is a clear distinction between tort and K. (the passage is a bit confusing; trespass here is literal trespass)

A sort of smoking gun here is a case called Doige, from 1442 (when assumpsit came to the front). A woman promised to sell her land, collected payment, and sold her land to another. The court says: if she could sue for non payment (debt), it must be that the buyer can sue her too. i.e., the logic is not of one-sided reliance, but mutual obligation.

One interesting point about the evolution of common law Ks is that they arose out of agreements that were fully performed on one side (in the case of informal Ks). Bilateral executory Ks came last. Alden explains:

Adding more evidence, Alden persuasively concludes that reciprocity was there all along. Therefore:

A wonderful read. I learned a lot.

Holger Spamann, Extension: Lawyers’ Role-Induced Bias Arises Fast and Persists despite Intervention, Journal of Legal Studies (2020)

If you ever talked to a lawyer about their work, you might’ve noticed an odd thing. (no, not that)

The case they are working on? It’s a winner. The other party is manipulative, the opposing counsel is delusional, and the trial judge? might need to take their 1L classes again. This case is a winner.

Image result for scratch card winners

Lawyers recognize that not all cases are winners. Intellectually, they understand that they would occasionally be retained by the party with a bad case. But this case? It’s a winner.

There are so many things that might be happening here, from some version of the winner’s curse to psychological self-deception (“role-induced bias”). Spamann offers really interesting evidence here.

Spamann randomly assigned 391 of his students in a mock oral argument to represent either the petitioner/respondent in a recent insider trading case (US v. Newman (773 F.3d 438 [2014], cert. denied, 136 S. Ct. 242).

He asked: How likely is your case to win?

Surprise, surprise. This case is a winner. Note how the parties’ evaluations systematically diverge.

And no. It’s not because the students lived with the case. The bias arises after 40 minutes of playing their role. Interestingly, the effect is driven by a cluster of individuals, consistent with 70% being unbiased.

Role-induced bias can be bad: careful evaluation of the strength of a case is often necessary. But it may be necessary: zealous advocacy requires a strong belief in the merits of the case (even if induced by self-deception). Makes you think!

Theresa Arnold, Amanda Dixon, Hadar Tanne, Madison Sherrill, & Mitu Gulati, “Lipstick on a Pig”: Specific Performance Clauses in Action, Wis. L. Rev. (2021)

Many questions about contract rules are questions about what parties want. We’ve been arguing about K remedies for so long that you’d think we would have a good sense of it by now. But we don’t.

One story is that laypeople like specific performance, but sophisticated parties understand that it’s all money in the end, and so they would cut the middleman and just contract for money damages.

In 2015, Eisenberg & Miller found that, actually, sophisticated parties sometimes really like specific performance. That’s the case in M&A deals.

This paper tries to figure out what’s going on by studying a large dataset of M&A transactions over 10 years + (millennials: cover your ears) talk to lawyers. They find that E&M underestimated specific performance, almost every deal asks for it.

How and why?

How do you get specific performance when the law prefers money damages? You say things judges like to hear. That’s where the titular lipstick on a pig comes from. The parties stuff their K with statements about irreparable harm and the such.

The why is harder. In a similarly titled paper, I also tried to figure out this question. It turns out that lawyers tilt the transaction, and in many cases, they avoid specific performance because it makes it harder to collect their own fees. Maybe it’s different with M&A?

They try to see if transactions that are about synergies stipulate for SP more than purely financial transactions. But that doesn’t seem to be the case. Lawyers said that courts are simply unlikely to order hundreds of millions of dollars in damages, so specific performance is the next best thing.

But one point I found in the paper above is that it’s not only money damages that are under-compensatory. Specific performance is also under-compensatory, once you factor in practicalities. Are mergers easy to enforce?

So while we don’t have a super clear answer, we do have a very clear and robust finding: SP is the new thing in M&A transactions. Makes you think!

Yonathan A. Arbel & Andrew Toler, ALL-CAPS, 17 Journal of Empirical Legal Studies 862 (2020)

Today, some shameful self-promotion!
IS CONSPICUOUS DISCLOSURE HELPFUL?
NO.

We talk *a lot* about the problem of informed consent in contract law.
e.g., can a firm waive all liability for wrongful death by tucking a waiver in paragraph 43(c)(2)(B)?
The most broadly adopted approach today is based on a theory of conspicuous disclosure. Under it, courts routinely enforce small potatoes terms. But big potatoes terms are only enforced if they are ‘conspicuously disclosed.’
How do you make text conspicuous? A-la 1000s of cases and statutes (famously UCC 2-316): by hitting the CAPS LOCK and not letting go

If you ever read anything that was written in English, you already suspect that capitalizing large chunks of text is not going to be the best way to communicate anything.
No one writes like that.*
Unless you write a contract.

In contracts, all of a sudden, all-caps are everywhere, and courts take them Very Seriously. Courts enforce terms simply because they appear in ALL CAPS and refuse enforcement simply because a term is in small caps.
Does that make sense?

In an empirical paper that grew out of my brilliant student @toler ‘s seminar paper, we empirically examined this question: Is ALL-CAPS effective? The answer will shock you.

I mean, it won’t shock *you*. ALL-CAPS is ineffective. What shocked me, however, is that this century-long doctrine, determinative in 1000s of cases, is built upon zero (0) empirical evidence, little in the way of theory, and less in the way of fairness. Yet, it persists.

First Q: How common are long blocks of capitalized text in consumer Ks? (this is what we mean by ALL-CAPS).

77% of contracts in our sample of very common agreements contained at least one full paragraph in ALL-CAPS.

Big Q: Can you show that ALL-CAPS improve the ability of consumers to notice important terms?

Our strategy: take 570 people, split them into two groups. Both groups read the same longish contract, but for the treatment, make the key clause in ALL-CAPS. Then ask questions on the K.

The result: roughly the same % correct in both groups, despite attention checks. Indeed, we have some initial evidence that older people perform worse in ALL-CAPS. Using a non-inferiority test, we reject the hypothesis that “all-caps meaningfully improves contractual outcomes”

There are a few important caveats here: In a replication (N=100) urged by the (bizarrely helpful) reviewer #2, we only replicated the primary effect but not the old age effect. Other limitations are in the paper.We then tested in smaller settings some alternative hypotheses.

Does it matter if you add a time pressure? (nope); do people appreciate text being in ALL-CAPS? (nope); can you improve outcomes by putting a box around the key paragraph, boldface a single sentence, or capitalize a single sentence? (sort of)

I think the prescriptions here flow pretty directly–courts shouldn’t give ALL-CAPS any special weight–but I will also add that the persistence of this practice, despite the lack of any supporting evidence, tells a worrying story about legal myths.

Now I want to thank the many people who helped with this project. Among them, is Professor David Hoffman who was oddly both the most critical reader and the most encouraging one. Professor Nancy Kim provided critique and wrote a very gracious Jot. And my colleagues at @UALawSchool, who were very supportive.

*exclusions apply

Alexandra D. Lahav, The Knowledge Remedy, 98 Texas L. Rev. 1361 (2020)

John Goldberg just wrote a fantastic JOTWELL, so I won’t recap. I’ll just note that I wish the term discovery wouldn’t have already been taken. The knowledge remedy means making the D fund research to discover if they are responsible for the P’s harm.

There is something counterintuitive about it, but Lahav makes good arguments and she has really nice historical examples. I will also add that the remedy has a res ipsa logic, so it is more grounded than initially appears.

Spencer Williams, Contracts as Systems, Forthcoming Delaware J. Corp. L. (2020)

Sure, contracts are complicated. Williams argues that they are also complex.

Complexity here has a specific meaning and this paper looks at contracts from the perspective of a combination of network and complex system theory. The key point is easy to understand, but its implications are interesting and sometimes unexpected.

The paper offers a crash course on the basics of complex system theory. The foil here is the reductive approach that thinks of contracts on a term-by-term basis. Complex systems are all about how terms interact.

What you get is what transactional lawyers feel in their bones: the meaning of a contract term requires a view of the transaction as a whole. Marginal changes–like redlining a specific term–can have profound effects on the transaction.

Complex systems are fairly resistant to change, which makes sense given the difficulty of estimating the effects of small changes. This is maybe why boilerplate remains stable over time, even when market conditions change.

If true, it means that reasoning from terms to preferences is risky: some research argues that if all sophisticated parties choose x then x must be efficient. Well, it may well be that x is part of a complex system and it serves some invisible ancillary role.

To be sure, there’s something frustrating about concluding ‘it’s complicated,’ but one nice thing is that there are ways to quantify complexity. A really interesting paper!

Scott and Triantis, What Do Lawyers Contribute to Law and Economics?, Forthcoming 38 Yale J. on Reg. (2021)

There’s a joke that says that when a lawyer has a paper idea in L&E he invites an economist to be his co-author. When the economist has an idea, she invites a lawyer to lunch.

“[A]re lawyers more than a resource for economists studying the law?” Scott & Triantis somehow answer this without engaging in standard academic turf warfare. Their response is actually more general and relevant to many L& projects: sociology, history, lit &c.

This question really asks what makes legal methodology special. They say it’s analogical reasoning.

In common law, you don’t just feed the judge facts. Nor would knowing the facts uniquely predict the outcome. You also have to argue that this case is like a different one. A car with faulty brakes is like an unexpected flood (your client is not responsible) or like a goring ox (client is responsible).

Formal econ is about deduction, and sometimes induction–but not this kind of sideways thinking. [Maybe a way of thinking about it is that lawyering is about finding the right reference class (a problem discussed extensively by Pardo and Allen)?]

The paper actually goes beyond this answer. It also argues for what I would call (non pejoratively) hand waving. The point is that neither formal models nor quantitative empirical will get us the insight we get from Lisa Bernstein or Ellickson. Accuracy can obfuscate meaning.

In a way, I think what they point out to is the value of the project I see myself being a part of: LES–Law, Economics, and Sociology. A dynamic of learning what is in the world, whether to intervene, how to do so, and how would that affect the world.

They don’t quite say whether analogical reasoning lends itself to formal modeling and if so, whether lawyers are in a god-of-the-gaps situation, but the entire piece is highly thought-provoking.

Thomas Merrill, Economics of Leasing, J. Legal Analysis (2020)

Some folks, I’m told, don’t think that leases are cool. Merrill’s paper makes us realize we have been overlooking this great, pervasive legal institution and the implications are exciting.

The first thing to note that leases are really everywhere. Homes, cars, farm machinery, shopping stores–even goats. These transactions rarely studied together, making it hard to see all the connections.

A lease is a mix of contractual and property rights. The K side smooths out some of the sharp edges of property, although Merrill thinks we should bolster the property side of leases more.

Tenant sneaks in clause in lease about birthday cake | WKRC

Why do people lease? Finance is one answer, especially when the seller has better access to capital. Another is risk allocation: I think I might like living on this street, but I want to protect myself from the risk they build yet-another Starbucks nearby. Another risk is demand surge: my family mostly needs one car, so it is more efficient for me to rely on the occasional lease even if the owner charges a premium.

A 3rd reason is specialization: Alice is good at owning office spaces and fixing cracks in the concrete, Bob is good at using the office for his tarot-reading business. Pure ownership, by either Alice or Bob, doesn’t make sense. Splitting up ownership and use makes sense.

How to identify a true lease? A question that tortures students in my secured transaction class. Merrill emphasizes duration and installment payments. I’d urge a pure economic focus–what I call the upside/downside test. Ask who benefits from appreciation in the value of the asset and who suffers from deprecation. This test avoids all the lawyerly cleverness of disguising substance through form. It is a lease when the answer is the original possessor, a secured sale when the new possessor.

To demonstrate the utility of thinking of leases as a unified topic, Merrill offers a few interesting (and provocative) implications. In his view, leases help the poor, and to the law should adopt a lease-friendly disposition (which can be overridden). OTOH, rent control is suspect and can sour the lessor-lesee relationship. Leases should be made more property like, at least by default, thus limiting tenant’s eviction when the bank forecloses on the property.

The most exciting part is that there is just so much we don’t know about leases and their regulation. When is it efficient? How does it affect investments? Does it promote or stifle competition? How does it interact with credit rationing/red-lining?

Givati and Kaplan, Harm Displacement and Tort Doctrine, 49 Journal of Legal Studies 73 (2020)

I found the image below a few years ago and thought it was an effective illustration of the idea of crime displacement.

Givati and Kaplan now bring this powerful intuition to tort law. When I install a hidden GPS tracker on my car, I make car theft riskier, as thieves don’t know which car has it. But why should I?

I can, instead, just put a sticker on my car “protected by GPS” and get thieves going for my neighbor’s car. In this case, car theft levels remain roughly the same, but I saved my own car.

In tort law, we talk a lot about how damages can cause people to take preventive action, installing the proverbial smoke scrubber. But damages can also get people to displace harm unto their neighbors.

So, suppose there’s a factory that must dispose of some polluting chemicals, and the factory can choose whether to dispose to the lot of neighbor A or B. With negligence, if closing the factory isn’t viable, the factory pollutes.

Neighbor A then hires a contractor to build a ramp that will block the factory, and Neighbor B puts signs around his property “Neighbor A is a jerk, pollute his land”. Not terribly appealing.

With strict liability*, the factory at least pays the neighbor, so neither one will invest much in displacing harm. This suggests an advantage of SL>negligence, and also the importance of tortfeasors having choice b/w victims when we design liability rules.
(*courts may still mess up strict liability determinations)

Shahar Dillbary, The Case Against Collective Liability, B.C. L. Rev. (Forthcoming, 2021)

One memory from Bootcamp is having to hold a metal target up at all times– until the one who spoke during drill admits to his wrongdoing.

Anybody could say that this collective punishment is unfair. It takes a Dillbary to say it’s inefficient.

In torts, we sometimes assign collective liability, and the key example is cases where someone in the surgery room left a sponge inside the patient, but the patient has no evidence of who it was. A more exotic case is when one of two identical twins father a child, but there’s no way of knowing who.

Should the nurse be held liable for the sponge? only the head surgeon? No one? The efficiency case for collective liability, made by Posner, Levmore, Porat &c, is that it creates good incentives to reveal evidence, monitor team members, and deter bad behavior.

My implausibly sharp colleague disagrees. Collective liability creates an incentive to produce evidence, sure, but also to fabricate it. It can people to monitor too much or too little. Worse, it just dilutes liability and if you have a group of 10 who share liability of $1,000 they might just not care about safety.

Wait, so-called Mr. Contracts, aren’t you forgetting something? Why wouldn’t everybody just contract for efficient monitoring & precaution? And don’t start transaction-costing us, you sensibly argue, team sizes are quite small and stakes are high!

Well, Dillbary explains that even if parties want to contract, the legal system is going to be in the way. It just won’t enforce such contracts.

There are several ways to fix this problem and get collective liability to work, and Dillbary notes some. But the coolest one is the frankpledge:

Felipe Jiménez, Rethinking Contract Remedies, Unpublished Manuscript (9.2020)

Today, a poll: You ordered 200 bushels of corn that you intended to sell for a profit of $200, but the seller didn’t deliver. If you sue the seller, what should you get?

Trick question. Jiménez thinks this the wrong way to even talk about these things. The K duty to sell corn \ineq any specific remedy. There is only a weak (pro-tanto) reason to think that you should get something in the zipcode of $200.

Beyond this, everything else must come “from the outside” of k law. In a specific case, the economist may come with a big calculator and persuade the judge to give less, and the moralist may give a homily on specific performance. Whatever.

This is a really impressive paper, both in writing and argumentation, and it has this golden ratio b/w things you find interesting and things you disagree with. The most provocative part is the two functions of K law.

  1. Protect parties. If you have K law that tells people that they have a legal duty to sell corn bushels contracting parties are going to expect, well, corn bushels. The legal system has a duty to protect the expectations it creates, so you have a pro tanto reason to make the seller pay $200.

    Wait, you say, what if the parties opt for free cancellation or $400 in compensation? Once the state is implicated in the enforcement of anything, it’s not obvious that the parties’ wishes control. You need a reason that’s external to the parties.
  2. Protect itself. K law should incentivize people to make contracts, which means that (promisee’s) expectations should be protected. If people don’t trust that their expectations will be met, they won’t contract.

Concluding: expectation damages are under-compensatory relative to primary rights. Less appreciated is that specific performance also tends to be under compensatory. We don’t really live in a world where K rights and remedies match, and this paper helps us think about whether we should be worried about it.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1641438

Lauren Scholz, Fiduciary Boilerplate, J. Corp. L. Forthcoming
This time Lauren Scholz. What are we going to do with all the fine print that consumers don’t read?

So there is this messy fact of life that consumers don’t read the fine print, which a lot of folks find troubling (setting aside my own views on its significance). We tried capitalizing text to get them to read, but this DOESN’T WORK

She notes that the market competition for consumer terms can’t work if consumers don’t read, and that consumer consent is too thin. (nudniks, we remember, can offer a partial solution ex-post)

Scholz makes a very bold argument here. She says: firms should be held to be fiduciaries for the consumer. For non consumer law folks, this is like saying the opposing basketball team shouldn’t run so fast.

Scholz says: courts must stop looking at the contract as the sole source of mutual obligations. They should roll up their sleeves and see if the firm exercised discretion in a way consistent with the consumer’s interests given its fiduciary duties in the transaction

Why?
She highlights a number of reasons. One is that in the digital economy, consumers don’t know a whole lot about cyber-security for example. Another is that companies invite a “relationship” (as recently analyzed by Dadush&Becher) through branding and “comforting language” e.g., “We care about your privacy”


Putting skin in the game, she offers a substantive example. Consumer data should often be held in trust, even when the contract excludes that, if “the economic realities of the transactions required that the consumer rely on the company to make decisions”

One spin on Scholz is that, like the duty of good faith, fiduciary duties can serve as a flexible ex-post stopgap, and may be justified under the Henry-Smithian view, which is based on efficiency.

Kaiponanea T. Matsumura, Breaking Down Status, Wash. U. L. Rev. (forthcoming, 2021)

Remember the old ‘from status to contract’ slogan? Matsumura thinks the rumors of status’ death were exaggerated.

Matsumura takes a legal view of status: a bundle of rights&duties that apply to whoever “has” a certain status. Think being married vs. single, employee vs. gig worker, child v. adult, and to some extent physio-typical v. disabled. All come with a legal-rights-preset

We constantly argue about who is an employee, who is married, etc. The debates and the shifting social norms might get you to despair and say: let’s leave everything to contract law. A noble instinct! But Matsumura says not so fast.

Status is a powerful regulatory tool and contract law sort-of recognizes status through a number of mandatory rules.* He believes that status is an inevitable category. So let’s squeeze this lemon! How should we design status? (One is reminded of Ayres on K Menus)

He presents some of the big questions in designing status. What status entails? Who counts as in/out? and, how many statuses to have? (stati? what’s the faux-Latin norm?) If we have: single, engaged, married, super-married, etc., at some point, you run into issues

In my Payday paper, I was puzzling over why the law would attach the status of a salaried employee to people who receive non-daily pay. Doesn’t that encourage employers to pay less frequently? Why do we want that? But status may offer a partial answer.

You can’t have status w/o such side-effects. That’s a necessary consequence of lumping rights/duties together. Thinking along the margin–wouldn’t it be better to erase this rule or that distinction–might erode the status itself.

So, many things to think about, especially pertinent to work law, gig economy, and family law, but also to bigger Qs of legal design.

Emily J. Stolzenberg, Properties of Intimacy, 80 Maryland L. Rev. (forthcoming 2021)

How should family law solve the problem of property allocation between cohabitants? Stolzenberg says that family law has a binary disposition, either you are spouses and you get to share the title in the property, or you aren’t (modulo nuance).

Family law “feels” that any deviation from this standard is a redistribution that requires some strong justification. It proves hard to think about allocation within this paradigm, and she argues that family law is captive to a rigid form of title.

Here’s the nice part. She observes that private law has a softer model for thinking about entitlements when people are not at arm’s length, what she calls “intimacy.” Key example: neighbors.

(Bonus: she cites Sartre’s No Exit for the proposition that intimacy, even forced, may create some duties of civility)

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