The limits of empiricism: what facts tell us.

• Author: Patterson, Dennis
• Position: Response to article by Daniel Keating in this issue, p. 2678

Comments on Daniel Keating's `Exploring the Battle of the Forms in Action'

INTRODUCTION

The conventional legal academic wisdom about empiricism is that empirical information is by-and-large a good thing, that we need more of it, and that empirical analysis is preferable to many scholarly alternatives now on offer in the law review literature.(1) I do not dispute the proposition that, all things considered, empirical information is a good thing. What I question is the notion that empirical information necessarily leads to knowledge.(2) Put differently, it is one thing to marshal the facts, and another to know what to make of the facts.(3)

I shall raise these points both in a general way and with specific reference to Professor Keating's fine contribution to the literature on U.C.C. section 2-207.(4) I applaud Professor Keating's efforts to uncover the facts surrounding the implementation and effectiveness of section 2-207. I agree with his observation that much of the literature in commercial law, and on section 2-207 in particular, simply assumes a worldview that may or may not be consistent with the way the world is. That said, I want to suggest that it takes more than knowledge of the way the world is to know what to do with section 2-207. While I disagree with some of Professor Keating's conclusions, I believe he makes a valuable contribution to the continuing discussion of one of the most nettlesome provisions of the U.C.C. Finally, I shall comment briefly on the latest revision of section 2-207, which looks quite promising.

THE CONVENTIONAL WISDOM

Professor Keating begins by observing that many people who write about section 2-207 do so against a background of dubious factual assumptions, The principal mistake scholars make is that section 2-207 "plays out in the field"(5) in ways that bear little relation to its language and structure. As he puts it: "IT]he classic battle of the forms situation seems to be, for a variety of reasons, much less prevalent than one would guess from reading most academic literature in this area."(6) Professor Keating's message is that there is a disconnect between the law on the books and the real-world problems it addresses, As further proof of the disconnect, Professor Keating reports that, without any legal incentives, firms "have shifted to drafting less one-sided forms, at least as to issues that are not seen as critical."(7)

Let me start by noting a piece of data mentioned in Professor Keating's article. We know from the pioneering work of Stuart Macaulay that for many firms, especially repeat players, explicit legal norms are not the most important dimension of the contracting context.(8) Over time, parties feel themselves governed more by norms central to their long-term relationship than to common law rules or the rules in the U.C.C. It is against this background that Professor Keating asks the question: To what extent do merchants using forms actually find themselves in disputes about whose form controls? Professor Keating reports that "virtually all of [the people he interviewed] said that post-sale disputes which depended upon conflicting forms were extremely rare and that litigation on the subject was rarer still."(9)

With respect to the question of how many firms might be involved in section 2-207 litigation,(10) I think Professor Keating asks the wrong question. To get a sense of this point, focus your attention, not on section 2-207, but on any other Code provision. Many firms never litigate any of the important provisions in the Code, yet, we certainly think every effort should be made to draft those provisions as well as possible. It is not at all clear to me that the best measure of the importance or significance of a Code section is the number of reported cases one finds in the case reporters.(11)

THE PEDAGOGICAL DIMENSION

Let us leave the realm of the empirical and turn our attention to pedagogy. If, as Professor Keating maintains, section 2-207 has had a limited impact on the world of commerce, is there anything it can teach us about commercial law or practice? Professor Keating believes that we remain fascinated with section 2-207 because "it provides a classic model for teaching students about the intricacies of statutory construction."(12)

On this point, I could not disagree more. Not only does the present section 2-207 teach students almost nothing about the proper interpretive approach to the Code, I believe it reinforces some of the more dangerous pathologies of modern legal culture. Chief among these pathologies is the notion that legal problems are best resolved through application of a formula or inflexible employment of a method.

The current section 2-207 requires that one of the two forms in question be labeled "the offer" and the other "the acceptance." Without this initial determination, the analysis cannot get off the ground. And yet, it seems almost gratuitous in many cases to label either form "the offer" or "the acceptance."

Consider a seller who sells through a widely-circulated catalog. In the catalog, interested buyers can find a section labeled "Terms of Sale." In this section, the seller sets forth all the principal terms upon which it sells its goods.

A buyer reading the catalog, and being fully apprised of the seller's terms, may nonetheless send a form to the...