Bankruptcy

Bullshit--Professionally Speaking

By Elizabeth Warren

I don't get to post very often right now, but sometimes I can put on my academic robes and talk about a new piece of scholarship. And what better thing to talk about when wearing academic robes than bullshit?

Curtis Bridgeman and Karen Sandrik have written a new piece called Bullshit Promises. The piece focuses on contract language that is designed to make someone believe that something has been promised (e.g., a promise of a fixed interest rate highlighted in the contract) while buried somewhere else is another provision that takes away that right (e.g., reservation to change terms at any time).  The result is a "bullshit promise," something that will mislead--all within the bounds of current contract and tort law.  

The work plays off Harry Frankfurt's best seller, "On Bullshit," distinguishing lying (emphasis on false belief) and bullshit (lack of concern with truth). The philosophical difference is abstract (and only arguable) for me, but Bridgeman and Sandrik bring it alive as a critical legal distinction.  We contracts teachers are still teaching the old illusory promise  cases in which the promisor who gives with one hand and takes away with the other made no binding promise. The cases skirt actionable fraud, and the person who is misled is treated as a chump instead of a victim. Many of today's consumer contracts--credit cards, cell phones, mortgages, etc--have perfected the art of drawing attention to certain benefits of the contract while burying the tricks and traps elsewhere. 

Treat yourself to reading Bullshit Promises.  It is well-written and engaging, and it makes an important point about the shortcomings of consumer contract law.

Full post as published by Credit Slips on January 07, 2009 (boomark / email).