I believe your main point is “that doctrines of unconscionability should focus on the constraints encountered by a party that would prevent him from [owning it],” which touches on something I was attempting to bring up in class a week or two ago.

Eben drew a distinction between the ‘discreet cash for cow’ situation and the ‘relational collective bargaining’ situation, implying that the former seems prevalent, but is often just a small potatoes manifestation of the latter. Or more accurately, there is a range of potential contracting interactions, which are better described in terms of the latter than the former. The former is old-time barter mentality (all that talk about American fear of the haggle) and the latter are Leff’s scripts in various shapes and sizes (which we think are haggles, but are pre-written and describable). Leff suggests “recharacterization,” recognizing a relational collective bargaining script allows the buyer/seller to circumvent his dialogue.

I am clear on Leff’s point that the sociology as applied to economics approach is a smarter means of describing contracting in some limited situations. It is effective in better characterizing big business, for example, and shaking up the reader’s awareness of how he relates to business, how business relates to him, and how the whole thing scarily resembles a con game. The approach also works well in summing up a wide range of seemingly innocent buyer/seller transactions (the supermarket, the department store, the gas station, etc.). It turns out those are not so innocent at all, at least not from the seller’s vantage.

But I still have trouble applying the sociology/economics, or scripts, perspective to another extremely common type of contracting, the salary negotiation. Still not sure how this fits into Leff’s argument, or how a “doctrine of unconscionability” (to use Brook’s term) applies, even when the parties are on an uneven playing field. Leff didn’t lay out a script, and unless I am either completely myopic or have purchased too large a share of the script myself, I cannot see how X battling Y for wages (or sales rights, or points on the backend or pounds of widgets) is not, on the most basic level, a cash for a cow.

And a further question – how do we as lawyers fit into the scripts? Or is the point of the article, ultimately, a how-to on how to extricate ourselves as attorneys (as opposed to as buyers).

-- AerinMiller - 22 Mar 2010

I’m the Dude Playing the Dude Disguised as Another Dude!

No doubt many people will recognize this line from the movie Tropic Thunder. For those who don’t, a search of the quote will turn up the clip. I couldn’t help thinking of the scene as I read Leff’s dramaturgical account of economic transactions. It highlights a central, recurring issue I see in our readings. In the context of Leff's book, I’ll frame it thus: Does the conman own his role, or is it the other way around?

On page 181 of his book, Leff writes that he has tried to examine “the actuality of transactions between human beings, the ways in which people are stripped, strip themselves, and strip others of the knowledge and freedom that would bring them to an end state predictable under particular economic models.” I would have liked to examine Leff’s use of the word “freedom” more closely in class, because I found the reading ambivalent at best about the possibility of “non-defective” freedom.

Nevertheless, Eben has made our freedom one of his objectives in this course. Notwithstanding that this transaction possesses the structural elements of a god-con, I will assume the class is more Buddhism than Scientology. I find this assumption merited to the extent that we benefit substantively from our investment (or are at least fairly duped). Accordingly, I would like to consider what substantive freedom might look like. Is it the ability to pick your clients and your battles? To buy your tulips in the morning instead of the afternoon? To draw a generous paycheck from people you openly and enthusiastically pile abuses on?

At minimum, the outcomes above reflect a strong bargaining position, and a strong bargaining position can accomplish plenty of good things. But I can’t say with confidence that the conman owns his role any more than his mark. Moreover, as the title of this reflection is intended to imply, I don’t presume that there is an off-camera. The obvious subtext of the scene is that the method actor Kirk Lazarus may know he’s the dude playing the dude disguised as another dude, but the method actor Robert Downey, Jr. is playing him. The suggestion is two-fold: every actor is also a role played by an actor who is subsumed within that role.

I suppose I can summarize my underlying concerns and relate them to contract law in the following manner: if the parties in a transaction are completely determined by the roles they impose on each other so that they are subsumed within those roles, then a doctrine of unfairness based on the outcome of transactions seems appropriate, if not uplifting, because the intent and capacity of a party is always already only a function of his role. However, if it’s presumed that an actor can step out of his role, thereby owning it, then it seems to follow that doctrines of unconscionability should focus on the constraints encountered by a party that would prevent him from doing so. In this case, an unfair outcome would be indicative of, but not dispositive of an unfair bargaining process.

I'd be interested to hear other thoughts, if these issues resonate with anyone else.

-- BrookSutton - 13 Mar 2010

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