Reply to Professors David G. Epstein and Scott J. Burnham

By: Nancy S. Kim
Published: December 2011
1 Wake Forest L. Rev. Online 133 (2011)

I have the privilege of replying to two responses to my article, Reasonable Expectations in Socio-Cultural Context.  The first response is by Professor David Epstein, who writes in a footnote that he hopes I prepare a “devastating rejoinder showing how [he] misunderstood [my] article.”[1]  I don’t know how devastating my rejoinder is—and to devastate is not my objective—but I do think he misunderstands my article.  He certainly misread my analysis of In Re Marriage of Witten.[2]  He misconstrues a rhetorical question (asked and answered in the negative) as an affirmative statement that an implied contract to have biological children existed between the parties, Tamera and Trip: “And, assume, as the Article suggests, that had there been any cultural dissonance between the judge and [Tamera], the court would have recognized ‘an implied contract between Tamera and Trip whereby each promised to do their part to have biological children.’”[3]

But that is not at all what I suggested.  Rather, using an expanded-intent analysis, I concluded that “[b]ecause Trip lacked contextual purposive intent, the agreement between Tamera and Trip should not be enforced unless there is a strong public policy compelling enforcement.”[4]  I concluded that, applying  an expanded intent analysis, “there is no enforceable contract.”[5]

In his discussion of the second case, Kim v. Son,[6] Epstein takes issue with my argument that “saving face” should be construed as a legal benefit, stating that “the argument that moral obligation should count as consideration has been made . . . [a]nd, generally, . . . rejected.”[7]  Epstein’s comment about moral obligation is a puzzling one as my argument was not that “saving face” was a benefit previously received but that it was one that was bargained for by the promisor.[8]

Epstein argues that “the result in Kim v. Son is inconsistent with the reasonable expectation of the parties because of the elements of the doctrine of consideration—not because sociocultural dissonance caused the elements of the doctrine of consideration to be improperly applied.”[9]  But this contention is where he fails to connect the dots in my argument.  It is because the doctrine of consideration incorporates and reflects societal norms and standards of reasonable behavior that it may fail to capture the intent of parties who fall outside those norms and standards.[10]  In other words, the court in Kim v. Son did not improperly apply the doctrine of consideration; the doctrine itself is flawed because it fails to make room for sociocultural differences.  Professor Epstein states that he is “just not sure that there are a lot of cases” where sociocultural dissonance between the judge and the contracting party matters.[11]  I suggest that Professor Epstein talk to a few transactional attorneys or, better yet, business people.[12]

A big problem with writing about cultural differences is that one runs the risk of making gross generalizations or trafficking in stereotypes.  I tried to avoid these pitfalls, but because I was writing about something as lurid as a blood contract, I feared that I may not have been successful.  Not surprisingly then, the title of Professor Scott Burnham’s Blood Does Not a Contract Make: A Response to Professor Nancy Kim[13] gave me a sinking feeling.  I hoped that the point that I was making—that the determination of a party’s intent requires an understanding of that party’s background and experiences—would not be overshadowed by the “freakish” blood contract.[14]

But Professor Burnham shares none of my timidity.  He plunges boldly into the cultural fray and the world of the “other,” beginning his response with a student “from a South Pacific island” who told him that “the way of her society” was to enforce all promises.[15]  In fact, his response is chock full of multicultural references, as he bandies about blood oath scenes from the movie Mongol: The Rise of the Genghis Khan, Indian tribes, diamond brokers in New York City, and his time in Uruguay.  He concludes that “[f]or purposes of entering into an agreement that I expect to be enforced in the U.S. courts, I should recognize that I am in American society, subject to the objective standards of U.S. contract law.”[16]  That statement, however, makes two assumptions that I question in my article.

The first is the objective standard itself.  An objective standard assumes a neutrality of viewpoint that is fictitious.  What one considers reasonable is, to varying degrees, determined by one’s background and experiences.  The second assumption has to do with the underlying purpose of U.S. contract law.  The purpose of U.S. contract law is the enforcement of the parties’ intent.  In my article, I did not argue that Korean contract law should apply in Kim v. Son, nor did I question whether U.S. law should apply.  Rather, my article was a critical analysis of how U.S. law was applied.  The distinction is important.  If the primary objective of U.S. contract law is the fulfillment of the reasonable expectations of the parties, then how do we determine what those “reasonable expectations” are?  What does it mean to be “reasonable,” and what criteria should be used to make that determination?  I argued that reasonableness conflates two different concepts—believability/credibility and social conformity/normality.[17]  One’s analysis of reasonableness thus depends upon one’s sociocultural background.  What you consider strange or unbelievable, I might consider perfectly reasonable and likely.  There may be certain universal truths, but it is naive to assume that all truths are universal.  One’s experiences and world view affect one’s perceptions and interpretations.

The objections that I raised in my article were not limited to the specific cases discussed.  What I sought to explore was the broader question of why we enforce contracts.  Of course, U.S. contract law has never accepted that the subjective intent of the parties should determine the enforceability of a contract, nor was that what I advocated. [18]  What I argued was that “[r]easonableness should be the product of weighing subjective intent against societal considerations, not a factor used to make such a determination.”[19]  In other words, subjective intent should be considered and weighed against other factors, such as judicial administrability and the security of transactions.  Admittedly, objectivists may howl in protest but that does not mean there is no debate.  The debate is as old as the search for truth in contract disputes, which is to say, at least as old as the disagreement between Williston and Corbin and as varied as the approaches to the parol evidence rule.  My article explained that reasonableness—like truth and beauty—is in the eyes of the beholder.  Professors Burnham and Epstein read my article and understood it to mean something different from what I intended—perhaps that proves the point I sought to make.

* Professor, California Western School of Law.

[1]. David G. Epstein, Response to Reasonable Expectations in Sociocultural Context, 1 Wake Forest L. Rev. Online 54, 54 n.3 (2011).

[2]. 672 N.W.2d 768 (Iowa 2003).

[3]. David G. Epstein, Response to Reasonable Exceptations in Sociocultural Context, supra note 1, at 60.

[4]. Nancy S. Kim, Reasonable Expectations in Sociocultural Context, 45 Wake Forest L. Rev. 641, 667 (2010).

[5]. Id.

[6]. No. G039818, 2009 WL 597232 (Cal. Ct. App. Mar. 9, 2009).

[7]. Epstein, supra note 1, at 57.

[8]. Kim, supra note 3, at 657–58 (noting that in making his promise of repayment, Son was “trying to rid himself of the guilt and shame that accompanies a moral—if not legal—obligation”).

[9]. Epstein, supra note 1, at 58.

[10]. Kim, supra note 4, at 649.

[11]. Epstein, supra note 1, at 55.

[12]. Another issue that may exacerbate cultural dissonance is that of “consensus bias,” whereby the judge believes, incorrectly, that his or her interpretation of contractual language is the predominant one.  Lawrence Solan, Terri Rosenblatt & Daniel Osherson, False Consensus Bias in Contract Interpretation, 108 Colum. L. Rev. 1268, 1269 (2008).

[13]. 1 Wake Forest L. Rev. Online 49 (2011).

[14]. As I stated in my article, “[t]he gruesome method of contracting may have lent the entire transaction a freakish, exotic quality that might have overshadowed other, more relevant aspects of the case, including that the promise was also written much more conventionally with an ink pen.”  Kim, supra note 4, at 658–59.  Similarly, the freakish exotic quality of a blood contract seems to have also overshadowed the point of my article.

[15]. Burnham, supra note 13, at 49.

[16]. Id.

[17]. Kim, supra note 4, at 647.

[18]. But as Charles Calleros notes, different courts take various approaches to admitting extrinsic evidence regarding the meaning that each party attaches to a particular term and states that “in some circumstances a court may even take evidence of a party’s unexpressed subjective intent regarding the meaning of a term.  Although a purely objective standard is generally applied to questions of offer and acceptance, subjective intent may still be relevant in other inquiries, including contract interpretation.” Charles R. Calleros, Contracts: Cases, Text, and Problems ch. 10, § V.E.1 (forthcoming 2011).  Professor Calleros introduces a four-level spectrum to illustrate how a liberal court may receive evidence, with the most lenient level being evidence of subjective intent.  Id.

[19]. Kim, supra note 4, at 644.

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