Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, May 13, 2009

Learning about Contract Law and Credit cards

When I was in law school, the class that disturbed me the most was contract law. That's right. I was unfased by the "hairy hand," the dead parent's leg, and other horribles of torts class. Criminal law was rather quaint, really. You got tested on whether you could recall that the medieval definition of burglary was the breaking and entering of a dwelling house at night. If the law school exam omitted the breaking (door was open) or it was a garage, or it was twilight, it wasn't burglary. For me, there was no "paper chase" or 1L moment from any of that.

Contract law was what messed with my worldview, demonstrating how fundamentally rotten people can be. The bones of contract law are doctrines, both ancient and modern, that are pure common law overlaid with twentieth century nonsense about plain language and market custom. The meat of it is relationships gone horribly, horribly wrong. Brothers, long-time partners, family members, people screwing one another over for small sums of money. I like to say that a useful way to think about negotiation is the difference between selling a car to a friend and selling one to a stranger. When selling a car to a friend, both parties are - or should be - fundamentally interested in the deal that is fairest. When selling one to a stranger, we can and do take some, but one hopes limited, advantage of one another's ignorance, gullibility, or desperation. (Peacemaking, btw, must be like selling a car to a friend; it fails when the haggling approach is used). One of my favorite cases in contract law was an old Campbell's soup chestnut. Campbell's used to have contracts to pay farmers a lump sum for all the carrots they grew on X acres. You know, something like "You got fifteen nice acres of carrots there, Farmer Ted, I'll buy seven." This way, farmers knew in advance what they would get even if the harvest failed, and Campbell's could negotiate a deal that, building in the risk, would amortize across farms to a lower average carrot cost. Either that or they were all lazy. Anyhow, farmers, they later discovered, would transplant carrots to the other side of their property shortly before harvest time to deprive Campbell's of a small (say 5%) of what it should have made, at enormous effort that could not possibly have been worthwhile. Clauses had to be later added about not moving vegetables. Then there's the uncle who promised the nephew $1000 if he graduated college, reassured him repeatedly of this, then welched. (Uncle wins). There's a saying that "hard cases make bad law." This is truest in contract alw.

I mention this because this libertarian/jungle version of contract law we learned in law school and continue to pump over the airwaves is no longer accurate, although it is dominant in the minds of those who speak of "freedom of contract." In your lifetime, unless you are a businessman/woman you will probably get to negotiate no more than a handful of contracts in your life, of all the thousands you will sign. Almost every contract we sign is presented on a take-it-or-leave-it basis by very powerful corporations. Old-fashioned contract law does have some acknowledgement of the power relationships that produce these one-sided deals, but limited.

This is what the current credit card regulation controversy is all about. "Freedom of contract" cry the banks. If people don't like these terms, they can go elsewhere. Of course, you can't negotiate the terms. You can't say, "Yes, I'll take this, but I want a .5% lower interest rate and to be governed by Indiana law, not Delaware law, and I want voluntary arbitration, not mandatory." In fact, the market simply doesn't provide any possibility for negotiating or choosing between alternatives for 99% of the terms in any of these contracts. They are pretty much all standardized. You may get to choose a better rate, but you can't choose to avoid things like the right to change the rate at any time. All those terms are fixed across the industry. This is why it makes sense for the government to simply step in and regulate the terms. We have to live in the real world, not a legal make-believe world where we pretend that signing up for telephone service or a credit card is about the "meeting of the minds" between two somewhat equal parties. You can choose to forego credit cards, as you can choose to forego television, telephones, automobiles, or underwear. Calling such regulation socialism is just silly.

36 comments:

Anonymous said...

This just validates what happens when you aggressively deregulate, there are fewer banks, and if they all do the same thing, there really is no choice, no matter what bank you go to, you're going to have to submit to what they want. You are correct, regulation is clearly not socialism, over regulation can be however...like in Europe, they are not a litigious society due to all of the regulation, whereas, we are a litigious society, expecting the lawyers to keep the corporations in check and then Bush attacked contingency law due to all of the huge settlements that were passed on the the public...corporate socialism...

I think it is time to re-name the Republican Party...I have some suggestions...I think we should submit something formally, seriously:

Republicons
Republicraps
Republicommies
The Republican Corporate Socialist Party

If they have to gumption to attempt to re-name the democratic party, then we should do the same.

Anonymous said...

There are only two ways to be in the US. Rich or dirt poor. Neither group wants any change because any change means it will get worse for them.

They are the conservatives automatically.

Both parties have both of these.

Third party is the only way for common sense to make any changes.

Raised By Republicans said...

Anonymous 1:35 makes an interesting point linking regulation to litigiousness. In the US we have essentially "privatized" our regulatory system by dismantling government regulations and replacing them with civil liability law suits. It's an enormously inefficient way to regulate an economy.

Some suggested new names for the Grand Old Party:

Party of God (translates interestingly in Arabic)
Republican Action Taskforce (R.A.T.)
Party of Incompetent Government (P.I.G.)

Anonymous 3:25 seems to be voicing some frustration. I sympathize. However, his/her characterization of social demographics in the US is way off. While income disparities in the USA have been getting worse for a while, the middle class is alive and while not exactly "well" is not on its death bead by any stretch.

The Law Talking Guy said...

While America is not Brazil, its tendency in terms of income disparity is headed toward Brazil, not Sweden. In large urban areas, the middle class has been sorely squeezed and impoverished. The cost of education, housing, and health care have skyrocketed while salaries have stagnated. In and around these large urban centers where a huge percentage, if not a majority, of Americans live, the middle class aspiration of a house with a yard and good schools has become impossible on a middle class salary. In just the last 15 years, costs have run up so much. And the middle class - who used to be able to go through state universities with little or no debt - now graduate with debt burdens of $100K or more, taking yet another chunk out of the dwindling income available. Credit card financing is the stopgap measure for so many families, and it is becoming expensive and abusive.

This is why the Obama administration has such important tasks to do. If they can reduce the cost of higher education (through expanded pell grants, tax deductions, and direct loans), arrest the growth of health insurance costs, and rein in credit card abuses, the middle class will begin to pull ahead again. Housing costs are coming down - somewhat - or at least no longer accelerating out of control. The result can be a sustained economic recovery led by middle class prosperity, not just another millionaire's bubble with some hangers-on.

Anonymous said...

Thanks for the party name suggestions RBR! 1:35

Pombat said...

Quick question: can someone explain the US education system for me please? Including sophomores, grades etc? (I know what a freshman is I think...)

The UK and Aus are quite similar: you go to a primary/junior school until you are 11yrs old [classes are labelled Year 1 to 6, there's often a 'prep' year before Year 1 as well; Prep, Yr1, Yr2 are called 'infants', Yrs3-7 are 'juniors'], then go on to secondary/high school for the next 7 (possibly 6 in Aus) years [Years 7 to 13, or 7 to 11 + Sixth Form]. In the UK, you do GCSEs at age 16, end of the fifth year of secondary school [Yr11] - typically a range of subjects, up to around ten of them (for bright kids). Aus you do your final school exams at 17, UK at 18 (two years after GCSEs, end of sixth form), and these are the exams that dictate whether you can get into the university of your choice - you apply during your final school year.

University you then do three years for a BSc/BA, or four years (or three + one) for a Masters, after which you are fully qualified for employment. Exceptions would include medical doctors, who obviously have a lot more than just three years training, and professions such as lawyers & accountants, who complete their not-necessarily-related degree, then find a job and get the relevant certification (bar exam etc) there (I believe!). PhDs also take a lot more time & money - some people choose to do them full time straight after their Masters, others get a job & do them part time. If you do a PhD fulltime, you get a bit of a salary, but it's not great.

For example, I did a Maths BSc, meaning three years at uni, pretty much every course I took was maths (managed to squeeze a flute one in though, as y'do), and I graduated with about GBP12k debt, which was a combination of low interest student loans (from the Student Loan Company, a Gov't set-up), and a bank loan to buy the car & furniture I needed for my employed life.

Also, the UK works on 'terms', not 'semesters', although my university did have a crack at semesters. UK the Autumn Term is Sept-Dec, then there's Christmas holidays, Spring Term is Jan-Mar, then Easter hols, Summer Term is May-July, with six weeks' summer hols mid-July to end of August. Plus one week off at half-term, midway through each. Private schools have longer holidays, typically week longer for Christmas & Easter, with a total of eight weeks for summer. Universities tend to follow the same terms. My uni decided that we would follow those terms, but that we would take two sets of courses in the year, running Sep-Jan/Feb, and Feb-May/Jun, with exams in June, and all holidays as per normal. Was a bit weird really. The academic year here in Aus is still odd for me - it starts in January I think, with the big holiday being the combined summer & Christmas one (not sure about details, pretty sure they have three terms).

I'm relying on Spotted H to correct anything I've gotten wrong about Aus and/or supply more detail if needed...

Dr. Strangelove said...

Primary EducationKindergarten (the "Prep" year equivalent)
Grades 1-6: Elementary SchoolThere are no "terms" really here. We just speak of full years, with extended breaks for summer--although some "year-round" school systems now have more evenly spread breaks than the traditional one, which was a result of agrarian practices.

Secondary EducationGrades 7-8 Junior HighGrades 9-12 High School*Gr. 9: "Freshman Year"
*Gr. 10: "Sophomore Year"
*Gr. 11: "Junior Year"
*Gr. 12: "Senior Year"
There are terms here, almost always semesters, just like college (see below). There will be a long summer break or year-round school depending on the school district.

One minor alternative arrangement in some school districts is to end Elementary school one year early, then group Grades 6-8 together as Middle School. Regardless, the "K-12" system (as it is known) is the standard American public school system, free to all. Beyond that you have to pay $$$.

College or Undergraduate EducationFour years of college are required to receive a BA/BS. These four years are not considered grades and have no numbers. These four years have precisely the same names as the four High School years. So sometimes you have to distinguish a "High School Senior" from a "College Senior" if the context is unclear. Some universities use semesters (Fall and Spring), some use "quarters" (Fall, Winter, Spring, Summer) although the so-called "summer quarter" is really not a regular term--it's really just a break--so there are actually three quarters in an academic year. The big holidays are always Christmas/Winter Break and Spring Break (near Easter). There is no school in summer.

Generally speaking, courses taken in the first two years are "Lower Division" and those taken in the final two years are "Upper Division" courses, although it is not uncommon for an advanced student to take an Upper Division course in their first year.

Note that an AA degree is a two-year degree (no names or numbers for the years) conferred by a local community college. People who earn an AA can usually transfer to a regular four-year college to complete their upper division coursework and earn a BA/BS. Community colleges are much cheaper, so this alternative is becoming more popular. However graduate schools look less favorably on it for admissions.

Graduate EducationMasters: can take anywhere from 1 year to 3 or 4 years, depending on the university and department.

Doctorate: an additional 1 to 5 years, depending on the university and department. The fees for grad school are the same as for undergrad, but one often works as a research assistant or teaching assistant to pay for the fees and for other expenses.

Dr. Strangelove said...

I tried four times and it screwed up the spacing every time. stupid blogger. Each bold line and each grade should be on its own line to itself.

Raised By Republicans said...

Supplementary info:

quarters are typically 10 weeks long.
semesters are typically 15 weeks long.

There is no set number of years needed for any college degree. People can get a BA in 3 years or take 7 years for the same degree. Most universities have sunset rules whereby your credits started to evaporate after a certain time requiring you to finish by a certain deadline or be forced to retake older credits.

PhD time to completion varies quite a lot by discipline and university. The natural sciences typically go faster than the social sciences which go faster than the humanities. Some universities fund their doctoral students at levels that enable a modest living in their towns/cities and those can get done faster. Others have less generous funding relative to local cost of living and require more hustling for extra money to make ends meet and they take longer.

Dr. S, LTG and I probably all went to "Junior High" but the "middle school" option is much more common these days. In my 6th grade year, I was in the same building with K-5. I did 7th and 8th grade in a Junior High together with 9th grade but my 9th grade was the first to be put in the same building with the High School. Before that change, 9th graders in my school system were called "Freshmen" but were the oldest kids in their building and the term did not really carry the implication of youth and naiveté it usually does.

Pombat said...

Huh. Ok. That's all starting to make a bit more sense (although seeing 9th grade labelled Freshman confused me until I read on!). Still prefer our system though ;-p

I forgot to say, [UK] universities are now charging fees for pretty much all courses, I have no idea what kind of level they're at though. I know they started for the year after mine (BIG sigh of relief for me there - I could barely afford uni as it was!), and were about a grand/yr for most standard courses. More popular, or more expensive to run courses, such as medicine, had higher fees.

From everything that's been said, plus the odd conversation here and there with people, I get the impression that an Aus/UK BA/BSc is 'worth' more than a US BA/BS, possibly nearer the level of a US Masters [could be wrong about Aus ones]. Not sure though - I'm not really that in touch with the relative worth of degrees, since I did Maths (always well regarded) at a good university, after spending my entire secondary education at a good school too - my degree was always going to be seen as a 'good' one (part of why I chose it). Interesting though - thanks!

Raised By Republicans said...

Pombat,

The value of US degrees is very hard to judge as a monolithic group. The US higher education system is not centrally managed or really regulated much and so is not set up to produce consistent results from school to school the way many other tertiary education systems in other rich industrialized countries are.

I've been to a fair number of international conferences and I've talked extensively with friends of mine who have lots of experience in BA/BS, masters and doctoral programs in both the US and either the UK, Ireland or Germany. The comparison Pombat is making is of some interest to academics on both sides of the pond (at least those who work in internationally diverse communities like the one I work in).

From those conversations, my impression is that the quality of high end US degrees is as good or better than anything that can be found in Europe (the UK, Germany and Scandinavia seem to be the best in Europe in my field). But the USA has A LOT of really mediocre universities that produce degrees that are not nearly as good what is consistently produced in the UK et al.

It's one thing to compare a BA from Oxbridge or U. of Warwick to a BA from U. of Wisconsin at Green Bay or U. of Southern Florida or something. It's quite another to compare Oxbridge or U. of Warwick to the U. of Michigan, U. of California Berkeley (where Dr. S got his BA), UCLA or U. of Virginia or something (all public schools), let alone elite private research universities like Stanford (where LTG attended law school), Harvard, Duke or U. of Chicago. Then there are the small, private liberal arts colleges like Amherst, Bowdoin (where Bell Curve got his BA), Wellesley (where Seventh Sister got her BA), Oberlin, Lawrence (where I got my BA), Reed, Pamona or Scrips.

Of course K-12 education is equally varied in the USA. So the comparison Pombat was making is really messy and complicated.

The Law Talking Guy said...

Pombat, I doubt a bachelor's-equivalent degree from a foreign university would ever be valued more - by anyone except possibly the holder - than a master's or other post-graduate degree from an equally good American institution. I suspect you misunderstood something in Dr.s's exposition.

Anonymous said...

A few quick points:

Most American children attend some kind of preschool as toddlers (around 3-4 years of age). I think this is called "playschool" in the UK. This isn't required by law (in many states, a child need not attend school before 6 or even 7), but most middle-class parents get frantic about preschool admissions since the early years of elementary school are much more academic than they used to be. A kid who doesn't know which end of a book is up or how to button their coat in kindergarten would probably be surrounded by classmates who could (in a better school district).

Of course, some children (like Law Talking Baby) start a preschool program earlier, but most of it is really daycare with a little age-appropriate instruction (singing songs, art projects).

The reputation of four-year colleges varies widely and is somewhat regionally based since folks in Hawaii might have heard about Wellesley but folks in New England know the drill. Also, small private colleges that are not selective can cost just as much as those that are really highly regarded, and (this is important) private colleges and universities are not necessarily more expensive than the higher end of some state universities. The "sticker price" might be higher, but I have personally met young women who have turned down schools like UCLA and Berkeley since the financial aid and grants offered by smaller private colleges is actually more favorable. This is kind of tragic for the UC system, but unfortunately par for the course.

-Seventh Sister

ec said...

"This is why it makes sense for the government to simply step in and regulate the terms. We have to live in the real world, not a legal make-believe world where we pretend that signing up for telephone service or a credit card is about the "meeting of the minds" between two somewhat equal parties."

Businesses are creating their own shadow legal system via the use of manditory binding arbitration clauses.

It is also funny how a business can also qualify your acceptance of a contract via "continued use of our service/credit card" but the consumer must reject a contract change via a paper letter sent via US mail to an obscure Utah address And you better certify/register the letter too as I bet the business could lose your un-registered letter quickly if it needed to do that.

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