The Form Knows Best (Does it Really?)

A few weeks ago, I got to give a talk at the University of Miami.  The focus: six myths about contracts, as many of us teach contract law (or at least as I teach it).  The talk was a blast -- the faculty at Miami were wonderful and generous, but poked all sorts of big holes in my claims.  The broader topic, in a little essay titled "The Form Knows Best" with two superb students (Tara Chowdhury and Faith Chudkowski), was the gravitational pull of the standard form on contract drafting practices. Our abstract:

Law students learn that contracts are carefully negotiated, precisely drafted, and shaped by doctrine. But lawyers tell a different story. This article compares six pillars of contract law with what we heard in over 170 interviews with senior transactional lawyers across M&A, sovereign bonds, and leveraged loans. The result is a gap between the Official Story taught in classrooms and the Unofficial Story told by practitioners—where boilerplate dominates, case law is rarely consulted, and market custom often prevails over rational design. We suggest that many contracts are better understood as historical artifacts—products of inherited forms and production pressure. Or, as one lawyer put it, more Mars Bar than masterpiece. That gap may matter—especially when courts often interpret form as if it reflects intent.

Deliberately Polluting the Death Master File Violates the Fair Credit Reporting Act

The Trump administration seems to be walking straight into a pair of Fair Credit Reporting Act violations by placing immigrants whom it knows to be alive on the Social Security Administration’s Death Master File. The Death Master File is a list compiled by the Social Security Administration of people Social Security believes to be dead (generally based on the filing of death benefit claims with Social Security, so it is not at all a complete list of who is actually dead). Creditors and other users of consumer reports regularly use the Death Master File, either directly or through a consumer reporting agency, as part of credit granting, employment, or insurance decisions—you don't want to be doing business with someone who is dead (and that might indicate that the living person with whom you are dealing isn't who they say they are). So, Death Master File issues end up being consumer reporting issues and fall under the Fair Credit Reporting Act, violations of which can not only create substantial private civil liability, but they can also be enjoined in a suit by a state attorney general.