TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Monday, May 21, 2018

The Persistence Of Dumb Contracts

Common-accord-cmacc-transact-iaccm-presentation-20170509-1-638I'm going to spend this summer working on a project about language, law, and code — what lawyers with meat rather than silicon brains are likely to retain as their domain over the foreseeable future.  Hence, The Persistence of Dumb Contracts.  I want to say a couple words about it, but only to highlight a convergence with the cutting edge practical work of James Hazard (founder of CommonAccord) and others at the intersection of contracts and computers.

As to the paper, I would link you to something but it's not nearly ready for prime time.  For the time being, consider the development of doctrine over the last 150 years or so regarding the parol evidence rule and the interpretation of the contractual text.  It's an ontological issue — is the "reality" of the deal bound by the metaphoric "four corners" of the document or is the text a mapping onto something else?  An early paragraph from an early draft of the intro:

Now imagine this debate in the context of digitally documented transactions that span the complexity gamut from one-shot commodity sales to longer term relationships like commercial leases or shareholder agreements. There is or will be a continuum across which “smarter” contracts will do less mapping of antecedent understandings and create more generally accepted social realities than dumber ones. I see no point in trying to create mutually exclusive sets. At one end of the continuum, the smart contract is little more than a cybernetic artifact like Bitcoin, a virtual dollar bill having a social ontology and no less a fixed and timeless meaning than a physical Federal Reserve note. At the other end, it is like more than a digitized form into which someone plugs a few chunks of data and comes out with a Kindle book or a mortgage loan. Somewhere in the middle, say in connection with a program that can sort out the puts and takes of ten years’ worth of contingency in a 50,000 square foot office lease, the contract needs to be able to create virtually a world of real estate business and law that either maps on or substituted for the physical version. Dumb contracts will persist, and the extent to which individual contracts are dumb rather than smart will depend on the extent to which there is utility to smartness or dumbness in the particular circumstance.

As to Jim Hazard, my colleague, Gabe Teninbaum, who directs Suffolk Law's Institute on Law Practice Technology & Innovation, introduced us.  Jim's passion and project is CommonAccord.org, "an initiative to create global codes of legal transacting by codifying and automating legal documents, including contracts, permits, organizational documents, and consents."

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May 21, 2018 in Jeff Lipshaw, Legal Education | Permalink | Comments (1)

Monday, April 9, 2018

The Rule Of Law Is Not A Rule Of Law: Thoughts On Solum And Meyer

Pardon me while I diverge from the topic of legal education to talk about something abstract like "the rule of law," provoked by recent work of two of my favorite legal educators.  

Solum-lawrence_1On April 4, Larry Solum (Georgetown) delivered the Regula Lecture at the University of Akron on "Surprising Originalism", which you can watch here.  I am always interested in what Larry has to say, first, because we share some common interests in language and philosophy, and, second, because he delivers it so well.  If I can summarize his point quickly, it is that (1) sensible originalism is possible if we look not at the founders' intentions, but what the words of the constitutional text actually meant at the time they were uttered; and (2) that originalism in constitutional interpretation is preferable to alternatives like the "living constitution" because the former is more likely to preserve the rule of law - that is, as a restraint on rule by pure power and might.  Larry's particular contribution is the application of the work of the philosopher of language H.P. Grice to the constitutional text - looking not merely at the semantics of the sentences as written, but at their pragmatics as well.  At the time they were written, what did they say but, more importantly, what did they implicate to the public that would have read or heard the words?

I am not a constitutional scholar, but I have my own reasons for being interested in Grice.  Robin Bradley Kar and Margaret Radin have just placed the first Harvard Law Review article on contract law in over ten years.  They use Grice's principles to argue that extensive boilerplate and click-throughs in consumer and other contracts ought not to be considered part of the parties' actual agreement.  I wrote a response, not necessarily disagreeing with the policy issues regarding boilerplate, but taking issue with, among other things, the references to Grice.

I didn't take issue with Larry Solum's point (1) above, at least in terms of thinking about constitutional meaning as guided by Grice.  What I wondered about, as I listened to his lecture, was the move in point (2) - that hewing to a philosophy of constitutional originalism was central to the rule of law.  What went through my head was a line I have used before: "the rule of law is not a rule of law."

1864So I was delighted to see that Linda Meyer (Quinnipiac) happens to have just posted an essay that expands far more eloquently on that thought.  It is not a direct response to Larry Solum's argument; I'm the one making that connection!  Her essay is Sisyphus and the Clockmaker: Two Views of the Rule of Law in Keally McBride's 'Mr. Mothercountry: The Man Who Made the Rule of Law.'  You can see from the abstract why it caught my eye:

This essay is an engagement with Keally McBride's excellent book, "Mr. Mothercountry: The Man Who Made the Rule of Law," and argues that the rule of law is not a law of rules, but a culture of self-restraint and humility.

Some comments below the break.

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April 9, 2018 in Books, Jeff Lipshaw, Legal Education, Miscellaneous, Scholarship | Permalink | Comments (1)