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In Pseudo-Contract and Shared Meaning Analysis,1×1. Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis, 132 HARV. L. REV. 1135 (2019). Professors Robin Bradley Kar and Margaret Jane Radin develop an important theory of the nature of contract that draws on Paul Grice’s influential theory of meaning.2×2. Id. at 1144–56. See generally PAUL GRICE, STUDIES IN THE WAY OF WORDS (1989) (collecting many of Grice’s most important papers on the philosophy of language). That theory has significant implications for contract doctrine, especially for questions about the enforceability of so-called “contracts of adhesion” in particular and for “boilerplate” in general. But at the most fundamental level, Kar and Radin’s work is about the nature of contractual communication. They answer the question: How do contracts mean? Their answer proposes a theoretical structure, which they name “Shared Meaning Analysis.”3×3. Kar & Radin, supra note 1, at 1142–43. The capitalization of “Shared Meaning Analysis” conveys that I am using this phrase as a proper name for Kar and Radin’s theory. I use this same convention to name other theoretical positions — for example “Public Meaning Originalism” — in the discussion that follows. This Response focuses on “contractual communication”4×4. The idea of a theory of contractual communication is sometimes raised by legal scholars. See, e.g., Peter Goodrich, Habermas and the Postal Rule, 17 CARDOZO L. REV. 1457, 1467 (1996) (raising the possibility of “a general theory of contractual communication”). : it interrogates the philosophical and linguistic presuppositions of Shared Meaning Analysis and offers, in embryonic form, a rival view.
Shared Meaning Analysis begins with the idea that “meaning” can be shared. In the particular context of contractual communication, meaning is something that can be shared by the parties to a contract, but the idea of shared meaning is quite general: when a speaker successfully conveys communicated content to a listener, meaning is shared. Shared meaning arises in mundane contexts, like a conversation about the weather, and in legal contexts, including communication via constitutions, statutes, rules, regulations, treaties, judicial opinions, trusts, wills, and contracts.
Take the constitutional context as an example. When a constitutional provision is drafted (for example, by Gouverneur Morris at the Philadelphia Convention), and the drafter’s communicative intentions are successfully conveyed to the other Framers, the members of the ratifying conventions, the public at large, and the officials who implement the constitutional text, meaning is shared.5×5. Here is Kar and Radin’s initial formulation of their notion of shared meaning: “We . . . define the ‘shared meaning’ of a contract as the meaning parties produce and agree to during contract formation that is most consistent with the presupposition that both were using language cooperatively to form a contract.” Kar & Radin, supra note 1, at 1143. The meaning identified by constitutional theorists as “original public meaning” is a kind of shared meaning.6×6. Original public meaning is actually shared meaning only if it is successfully communicated. If constitutional communication misfires, then the meaning intended by the drafter of a constitutional provision can diverge from the meaning grasped by the public. Similarly, if the drafters of a statute successfully convey the same “plain meaning” (communicative content) to the relevant intended readerships (including judges, lawyers, and those subject to the statute’s provisions), then the text of the statute will have a plain meaning.
But just as communication can succeed in the creation of shared meaning, it can also fail. Communication can misfire for a host of reasons. One such reason is illustrated by the existence of what are called “terms of art” or “technical language.” Later in this Response, for instance, I will use terms like “implicature,” “impliciture,” and “presupposition.” The first two of these terms are not used in ordinary English, but they do have precise meanings in the philosophy of language and theoretical linguistics. The third term, “presupposition,” does have an ordinary meaning, but it has a more precise meaning when it is used by professional philosophers and scholars of linguistics. When the author of a text uses a technical term, but the reader doesn’t know what it means, then communication fails in a way that the reader can recognize. But when an author uses a word or phrase in a technical sense and the reader understands that term in its ordinary sense, communication may fail without the reader’s knowledge. In either case, we can say that the communication “misfires.” And “misfire” is itself a technical term used to describe such failures of communication.
There are numerous other reasons that the communicative content of a text can fail to produce shared meaning. When installing software downloaded from the Internet, we are frequently asked to click a link that says something like “I agree” while given the option to click another link that takes one to the full text of the software license. If we fail to click through, read, and comprehend the text of the agreement, clicking the “I agree” link does not create shared meaning. In the case of such clickwrap agreements, it seems likely that fully shared meaning is very rare indeed.
Communication can also fail in another way. An officer can order a subordinate into battle and be disobeyed. I can request extra salsa at a restaurant, but the wait staff might ignore my request. A contracting party can make an offer that is rejected. In cases like these, a “speech act” (more on this concept below7×7. See infra section I.A.4, pp. 32–34. ) fails to gain what we can call “uptake.” This is distinct from a failure of understanding: misunderstanding an order is one thing, but disobedience is quite another. The word “uptake” refers to the success or failure of a speech act: when a speech act succeeds, it gets “uptake.”
Some communication is cooperative. We might say that shared meaning is the goal of cooperative communication. Some communication is noncooperative or “strategic.” For example, the drafter of legal text (such as, a constitutional provision, statute, treaty, or contract) might want to communicate different messages to different readers. Thus, a clever drafter might deliberately try to write a statute that conveys one message when it is read by staffers and legislators but can convey a different message when it is read by judges and lawyers in the adjudicative process. This kind of strategic communication involves “speaking out of both sides of your mouth,” deliberately creating meanings that are not shared by all of the intended readers of the text. I will use the phrase “unshared meaning” to refer to cases in which the content communicated by a legal text is not shared by those who are intended to read or to be affected by the text.8×8. See infra section I.B.3(c), pp. 43–45.
In this Response, I will investigate the foundations of both shared and unshared meaning in legal communication. Part I takes a step back from contractual communication and offers a preliminary sketch of a general model of legal communication; the sketch draws on speech act theory and the work of Paul Grice, extending and modifying many of the insights developed by Kar and Radin. Part II turns to contractual communication, differentiating distinct “situations of contractual communication” and interrogating Kar and Radin’s Shared Meaning Analysis. Part III interrogates Kar and Radin’s distinction between “contract” and “pseudo-contract.” The conclusion of the Response briefly reflects on the significance of Kar and Radin’s project.
*Carmack Waterhouse Professor of Law, Georgetown University Law Center. This Response is dedicated to Peter Tiersma, my former colleague who passed from this earth long before his time. On many of the topics discussed in this Response, Peter got there first. See A Tribute to Peter M. Tiersma, LOYOLA L. SCH., https://petertiersma.lls.edu [https://perma.cc/K3UR-4QQR]. I am grateful to Brian Bix, Enrique Guerra-Pujol, Mitu Gulati, Tal Kastner, Dennis Patterson, Brian Slocum, and the editors of the Harvard Law Review for many helpful comments, criticisms, and suggestions.
Recommended Citation: Lawrence B. Solum, Contractual Communication, 133 HARV. L. REV. F. 23 (2019), https://harvardlawreview.org/2019/11/contractual-communication.