Handshakes, pot, and chickens

March 1st, 2011

Dan Ariely, behavioral economist and all-around mensch, has a post up about the advantages of “handshake” agreements — contracts that do not have exhaustive thoroughness as their goal.

Even lawyers see the risks of complete contracts. As part of my research, I asked the dean of Duke’s law school, David Levi, if I could take a look at the school’s honor code. Expecting a detailed contract written by lawyers for lawyers, I was shocked to find that the code went something like this: If a student does anything the faculty doesn’t approve of, the student won’t be allowed to take the bar exam. It was, in essence, a handshake agreement!

“Imagine that a student decides to deal drugs and raise chickens in his apartment,” Levi said. “Now suppose that our code of conduct bans many activities but doesn’t address pot or chickens. The student has honored the code. But does Duke really want that student to become a lawyer?”

Complete contracts are inevitably imperfect. So what’s better: a complete contract that mutates goodwill into legal trickery, or an incomplete contract that rests on the understanding we share of appropriate and inappropriate behavior?

Dan’s logic is sound (more on the dean’s in a moment), but the rub lies in his phrase “the understanding we share.” Handshake agreements work to the extent that there are shared norms of behavior. But even assuming the greatest goodwill in the world, there are different styles of handshakes. “Diversity” doesn’t only mean intriguing variations in skin color, appealingly displayed like the bridge of the Enterprise or a Benneton ad. Diversity may mean fundamentally different beliefs about time, personal responsibility, power and authority. These different assumptions, if unaddressed, can cause things to go sideways despite the best efforts of the people involved.

As far as the dean’s point is concerned, I disagree. When one is speaking of a dorm room, either pot or chickens might create insurmountable logistical problems, but neither are ethically problematic. In fact, a person raising either one would of necessity develop a patience, an attention to detail, a sense of humor, and a humility by which many lawyers might be improved.


2 Responses to “Handshakes, pot, and chickens”

  1. Elizabeth on March 2, 2011 1:01 am

    Funny that the Dean should choose chicken to illustrate that point, since that is the subject of one of the frequently-used cases in Contracts casebooks to illustrate contract interpretation where the parties have different understandings of the meaning of contract terms.

  2. Shulamuth on March 3, 2011 3:48 pm

    I suspect lawyerly in-joke here, actually.

    I entirely agree that the problem with “handshakes” (and for that matter, many agreements, including written ones, that don’t define terms) is that each of us assumes we all agree, and this is seldom true. It is, or should be, perhaps more true in a law school, if only because one of the functions of a law school is to enculturate future lawyers into the culture of the law.

    Robin, I have to disagree about dealing drugs not being “ethically problematic” for a law student. It is at this point (and arguably unfortunately, at least when discussing pot, but that’s not the issue) illegal to sell drugs no matter what the dorm rules state, and law students (at least those intending to take the Bar Exam) are in training to be officers of the court. Unless they are engaging in purposeful, political civil disobedience, I think there are some ethical as well as legal issues here.

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