Contracts Count


The Art of the Deal

Though negotiations are a rough game, you should never allow them to become a dirty game.
Once you've agreed to a deal, don't back out of it unless the other party fails to deliver as promised.
Your handshake is your bond.  As far as I'm concerned, a handshake is worth more than a signed contract.
As an entrepreneur, a reputation for integrity is your most valuable commodity.
If you try to put something over on someone, it will come back to haunt you.

- Victor Kiam

A verbal contract isn't worth the paper it's written on.

- Samuel Goldwyn

by Ben Greenstein

Life is structured around contracts.  There is a case for arguing that all intelligent life is impossible without contracts.  Virtually every interaction between two individuals includes, and may depend for its success on, a mutually acceptable deal or contract.  In fact, without deals, the normal functioning of human society would be impossible.  They allow the flow of information, labour and resources.

Strictly speaking, a deal is a good thing.  It keeps men from killing each other over land, possessions and women.  The deal, especially the written and signed deal, is a form of protection, a compromise, an agreement between two individuals free to make it.  In some cases it is a compromise between freedom and safety.

So what is a contract anyway?

Legally speaking, a contract is an agreement giving rise to obligations enforced or recognised by law.  The contract, generally, requires that both parties should have reached agreement, the agreement should be certain and final, and the contract can be enforced in law.  The law isn’t interested in the letter of the contract.  What's written in it is not relevant.  What is relevant, however, is how acceptable the contract is morally and legally.

It's the appearance of the contract that counts.

Source: taken from The Fragile Male

I'm not sure I fully agree with that last sentence.  I presume Greenstein doesn't mean a contract should be clean and tidy - he probably means a contract should not be deliberately deceptive, with surprise clauses that actually make the contract mean the opposite of what one of the parties signing clearly took it to mean.  In an ideal world, that would certainly be true.  However, our world is far from ideal.

Also, apparently Greenstein feels contracts are more useful for men.  Women tend to be willing to accept someone's word in place of demanding something in writing.  I wonder who gets cheated more?

Jurisprudence: An Overview

The word jurisprudence derives from the Latin term juris prudentia, which means "the study, knowledge, or science of law."  In the United States jurisprudence commonly means the philosophy of law.  Legal philosophy has many aspects, but four of them are the most common.

bulletThe first and the most prevalent form of jurisprudence seeks to analyse, explain, classify, and criticise entire bodies of law.  Law school textbooks and legal encyclopedias represent this type of scholarship.
bulletThe second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences.
bulletThe third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a particular legal concept.
bulletThe fourth body of jurisprudence focuses on finding the answer to such abstract questions as What is law?  How do judges (properly) decide cases?

Apart from different types of jurisprudence, different schools of jurisprudence exist.

bulletFormalism, or conceptualism, treats law like math or science.  Formalists believe that a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of the dispute.
bulletIn contrast, proponents of legal realism believe that most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute.  This line, realists maintain, is drawn according to the political, economic, and psychological inclinations of the judge.  Some legal realists even believe that a judge is able to shape the outcome of the case based on personal biases.

Apart from the realist-formalist dichotomy, there is the classic debate over the appropriate sources of law between positivist and natural law schools of thought.

bulletPositivists argue that there is no connection between law and morality and the the only sources of law are rules that have been expressly enacted by a governmental entity or court of law.
bulletNaturalists, or proponents of natural law, insist that the rules enacted by government are not the only sources of law.  They argue that moral philosophy, religion, human reason and individual conscience are also integrate parts of the law.

There are no bright lines between different schools of jurisprudence.  The legal philosophy of a particular legal scholar may consist of a combination of strains from many schools of legal thought.  Some scholars think that it is more appropriate to think about jurisprudence as a continuum.

The above mentioned schools of legal thoughts are only part of a diverse jurisprudential picture of the United States.  Other prominent schools of legal thought exist.  Critical legal studies, feminist jurisprudence, law and economics, utilitarianism, and legal pragmatism are but a few of them.


Trial by Jury

by Richard Dawkins

Trial by jury must be one of the most conspicuously bad good ideas anyone ever had.  Its devisers can hardly be blamed.  They lived before the principles of statistical sampling and experimental design had been worked out.  They weren’t scientists.  Let me explain using an analogy.  And if, at the end, somebody objects to my argument on the grounds that humans aren’t herring gulls, I’ll have failed to get my point across.

Adult herring gulls have a bright yellow bill with a conspicuous red spot near the tip.  Their babies peck at the red spot, which induces the parents to regurgitate food for them.  Niko Tinbergen, Nobel-Prizewinning zoologist and my old maestro at Oxford, offered naive young chicks a range of cardboard dummy gull heads varying in bill and spot colour, and shape.  For each colour, shape or combination, Tinbergen measured the preferences of the baby chicks by counting their pecks in a standard time.  The idea was to discover whether naive gull chicks are born with a built-in preference for long yellow things with red spots.  If so, this would suggest that genes equip the young birds with detailed prior knowledge of the world in which they are about to hatch – a world in which food comes out of adult herring gull beaks.

Never mind the reason for the research, and never mind the conclusions.  Consider, instead, the methods you must use, and the pitfalls you must avoid, if you want to get a correct result in any such experiment.  These turn out to be general principles which apply to human juries as strongly as to gull chicks.

First, you obviously must test more than one chick.  It could be that some chicks are red-biased, others blue-biased, with no tendency for herring gull chicks in general to share the same favourite colour.  So, by picking out a single chick, you are measuring nothing more than individual bias.  It is no answer to this objection that our chick may have given hundreds more pecks to one colour than to the other.  A chick might begin by choosing any old colour at random, but once he has chosen he gets ‘locked on’ to that colour and hammers away at it, giving the other colours no chance.  The essential problem here is that successive pecks, however numerous, are not "independent data."

So, we must test more than one chick.  How many?  Is two enough?  No, nor is three, and now we must start to think statistically.  To make it simple, suppose that in a particular experiment we are comparing only red spots versus blue spots, both on a yellow background, and always presented simultaneously.  If we test just two chicks separately, suppose the first chick chooses red.  It had a 50% chance of doing so, at random.  Now the second chick also happens to choose red.  Again, the odds were 50% that it would do so at random, even if it were colourblind.  There’s a 50% chance that two randomly choosing chicks will agree (half of the four possibilities: red red, red blue, blue red, blue blue).  Three chicks aren’t enough either.  If you write down all the possibilities, you’ll find that there’s a 25% chance of a unanimous verdict, by luck alone - 25%, as the odds of reaching a conclusion for the wrong reason, is unacceptably large.

How about 12 good chicks and true?  Now you’re talking.  If 12 chicks are independently offered a choice between two alternatives, the odds that they will all reach the same verdict by chance alone are satisfyingly low, only one in 1,024.  But now suppose that, instead of testing our 12 chicks independently, we test them as a group.  We take a maelstrom of 12 cheeping chicks and lower into their midst a red spotted dummy and a blue spotted dummy, each fitted with an electrical device for automatically tallying pecks.  And suppose that the collective of chicks registers 532 pecks at red and zero at blue.  Does this massive disparity show that herring gull chicks, in general, prefer red?  Absolutely not.  The pecks are not independent data.  Chicks could have a strong tendency to imitate one another (as well as imitate themselves in lock-on effects).  If one chick just happened to peck at red first, others might copy him and the whole company of chicks join in a frenzy of imitative pecking.  As a matter of fact this is precisely what domestic chicken chicks do, and gull chicks are very likely the same.  Even if not, the principle remains that the data are not independent and the experiment is therefore invalid.  The 12 chicks are strictly equivalent to a single chick, and their summed pecks amount to only a single independent result.

Turning to courts of law, why are 12 jurors preferred to a single judge?  Not because they are wiser, more knowledgeable or more practised in the arts of reasoning.  Certainly not, and with a vengeance.  Think of the astronomical damages awarded by juries in footling libel cases.  Think how juries bring out the worst in histrionic, gallery-playing lawyers.  Twelve jurors are preferred to one judge only because they are more numerous.  Letting a single judge decide a verdict would be like letting a single chick speak for the whole herring gull species.  Twelve heads are better than one, because they represent 12 assessments of the evidence.  But for this argument to be valid, the 12 assessments really have to be independent.  And of course they are not.  Twelve men and women locked in a jury room are like our clutch of 12 gull chicks.  Whether they actually imitate each other like chicks, they might.  That is enough to invalidate the principle by which a jury might be preferred over a single judge.

In practice, as is well documented and as I remember from the three juries that it has been my misfortune to serve on, juries are massively swayed by one or two vocal individuals.  There is also strong pressure to conform to a unanimous verdict, which further undermines the principle of independent data.  Increasing the number of jurors doesn’t help, or not much (and not at all in strict principle).  What you have to increase is the number of independent verdict-reaching units.

Oddly enough, the bizarre American system of televising trials opens up a real possibility of improving the jury system.  By the end of trials such as those of Louise Woodward or O J Simpson, literally thousands of people around the country have attended to the evidence as assiduously as the official jury.  A mass phone-in might produce a fairer verdict than a jury.  But unfortunately journalistic discussion, radio talk-shows, and ordinary gossip would violate the Principle of Independent Data and we’d be back where we started.  The broadcasting of trials, in any case, has horrible consequences.  In the wake of Louise Woodward’s trial, the Internet seethes with ill-spelled and ungrammatical viciousness, the chequebook journalists are queuing up, and the unfortunate Judge Zobel has had to change his telephone number and employ a bodyguard.

So, how can we improve the system?  Should 12 jurors be locked in 12 isolation chambers and their opinions separately polled so that they constitute genuinely independent data?  If it is objected that some would be too stupid or inarticulate to reach a verdict on their own, we are left wondering why such individuals are allowed on a jury at all.  Perhaps there is something to be said for the collective wisdom that emerges when a group of 12 people thrash out a topic together, round a table.  But this still leaves the principle of independent data unsatisfied.

Should all cases be tried by two separate juries?  Or three?  Or 12?  Too expensive, at least if each jury has 12 members.  Two juries of 6 members, or 3 juries of 4 members, would probably be an improvement over the present system.  But isn’t there some way of testing the relative merits of such alternative options, or of comparing the merits of trial by jury versus trial by judge?  Yes, there is.  I’ll call it the Two Verdicts Concordance Test.  It is based on the principle that, if a decision is valid, two independent shots at making it should yield the same result.  Just for purposes of the test, we run to the expense of having two juries, listening to the same case and forbidden to talk to members of the other jury.  At the end, we lock the two juries in two separate jury rooms and see if they reach the same verdict.  If they don’t, nothing can be proved beyond reasonable doubt, and this would cast reasonable doubt on the jury system itself.

To make the experimental comparison with Trial by Judge, we need two experienced judges to listen to the same case, and require them too to reach their separate verdicts without talking to each other.  Whichever system, Trial by Jury or Trial by Judge, yields the higher score of agreements over a number of trials is the better system and might even be accredited for future use with some confidence.

Would you bet on two independent juries reaching the same verdict in the Louise Woodward case?  Could you imagine even one other jury reaching the same verdict in the O J Simpson case?  Two judges, on the other hand, seem to me rather likely to score well on the concordance test.  And should I be charged with a serious crime here’s how I want to be tried.  If I know myself to be guilty, I’ll go with the loose cannon of a jury, the more ignorant, prejudiced and capricious the better.  But if I am innocent, and the ideal of multiple independent decision-takers is unavailable, please give me a judge.  Preferably Judge Hiller Zobel.

Source: posted by John Catalano, published as "Three herring gull chicks . . . the reason juries don't work" in The Observer (London), Sunday 16 November 1997

US Juries Get Verdict Wrong in One of Six Cases: Study

So much for US justice: juries get the verdict wrong in one 1 of 6 criminal cases and judges don't do much better, a new study has found.  And when they make those mistakes, both judges and juries are far more likely to send an innocent person to jail than to let a guilty person go free, according to an upcoming study out of Northwestern University.

"Those are really shocking numbers," said Jack Heinz, a law professor at Northwestern who reviewed the research of his colleague Bruce Spencer, a professor in the statistics department.  Recent high-profile exonerations of scores of death row inmates have undermined faith in the infallibility of the justice system, Heinz said.  But these cases were considered relative rarities given how many checks and balances - like rules on the admissibility of evidence, the presumption of innocence and the appeals process - are built into the system.  "We assume as lawyers that the system has been created in such a way to minimize the chance we'll convict the innocent," he said in an interview.  "The standard of proof in a criminal case is beyond a reasonable doubt - it's supposed to be a high one.  But judging by Bruce's data the problem is substantial."

The study, which looked at 290 non-capital criminal cases in four major cities from 2000 to 2001, is the first to examine the accuracy of modern juries and judges in the United States.  It found that judges were mistaken in their verdicts in 12% of the cases while juries were wrong 17% of the time.  More troubling was that juries sent 25% of innocent people to jail while the innocent had a 37% chance of being wrongfully convicted by a judge.  The good news was that the guilty did not have a great chance of getting off.  There was only a 10% chance that a jury would let a guilty person free while the judge wrongfully acquitted a defendant in 13% of the cases.  But that could have been because so many of the cases ended in a conviction: juries convicted 70% of the time while the judges said they would have found the defendant guilty in 82% of the cases.

The study did not look at enough cases to prove that these numbers are true across the country, Spencer cautioned.  But it has provided insight into how severe the problem could be, and has also shown that measuring the problem is possible.  "People have to have some faith in the court system.  We have to know how well our systems are working," Spencer said in his suburban Chicago office.  "We know there are errors because someone confesses after the fact or there's DNA evidence," he said.  "What's the optimal tradeoff given that juries ultimately will make mistakes? ... Are those balances something society is okay with?"

Spencer's study does not examine why the mistakes were made or which cases ought to be overturned.  Instead, he determined the probability that a mistake was made by looking at how often judges disagreed with the jury's verdict.  "If they disagree they can't both be right," he explained.  Spencer found an agreement rate of just 77%, which means a lot of mistakes were being made.  Spencer hopes to find funding for a much larger study whose results could be representative of the overall system.

Finding a solution will be much harder to do than quantifying the problem, Heinz warned.  "The sources of the errors are quite resilient to correction," he said.  "They have to do with all sorts of biases and the strong presumption of guilt when someone is arrested and brought to trial."

The study will be published in the July edition of the Journal of Empirical Legal Studies.

Source: 28 June 2007

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