Comment by hakfoo

The current model of civil law doesn't seem like it's designed to serve the public any more. It feels like we're trying to preserve some very quaint 1700s ideas of how business is negotiated. The idea of "here's a meeting of more or less equals who are free to negotiate with minimal state interference" might have made sense in an era when the largest business entity would be an estate/plantation/farm/factory with a few dozen workers.

We have far too many contracts which are presented in scenarios with huge asymmetry of parties-- both in terms of "how much flexibility they have to negotiate and back out" and "how much legal knowledge and resources they can marshal to get a good deal." There's a subtle difference between the armies of lawyers negotiating the Microsoft-Activision deal and a bank presenting a 15-screen-long account agreement written well above the average reading level as a fait accompli, but I'm not sure I can quite put my finger on it.

There's also the matter of rework and iteration power. A typical human might open 10 or 20 bank accounts, for example, in their lifetime, but a bank will go through tens of thousands every year. This gives them both the opportunity and incentive to be constantly re-iterating and optimizing their strategy, allowing toxic terms to spread wildly from industry to industry. Remember when arbitration or anti-class-action clauses were rare and exotic?

These factors mean that well-lawyered, rich parties are usually in a position to ask for the moon. Most people won't balk, and they can start asking for Phobos, Deimos and Ganymede in the next few years. This might be a viable negotiating tactic, except that an important balancing factor is missing. We can hardly rely on the courts to help prevent abuse. A wealthy party can use the threat of a suit as a bludgeon-- "finish this disputed obligation or we'll sue; even if you win it's gonna cost you ten years and $300k to get your way", but many people can't afford to effectively use the courts to challenge toxic, socially destructive, misleading, or illegal contract terms. If there isn't big money in there, you're not going to get help on contingency. Class-action suits (when they're allowed) are a limited remedy-- they rarely end with a strong "nobody do this anymore" precedent or establishment of wrongdoing; they just serve as a "no wrongdoing was admitted" settlement, effectively liquidating your grievance in terms of dollars.

I'd love to see all permissible contracts be published in Mad Lib format in a standard government document. Nothing else is valid, no matter what story you can craft of "meeting of the minds." This would massively streamline the legal practice-- there'd rapidly be very little new under the sun to argue, so the case law could be documented and explained at a level lay people could understand.

This would also make for a huge opportunity for oversight-- if someone wants a new clause to be added to the Standard Contract Book, it has to go through a review and comment process, which could easily become a public shaming moment: Why is company XYZ trying to introduce an anti-disparagement clause in the standard employment contract? What do they want to block and hide.