Regulating Information in Contractual Relationships

While much has been written about how individual rules of contract law impact parties' sharing of information, we do not yet have a general theory of the legal regulation of information in contractual relationships. In his recent article, Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere, 92 Va. L. Rev. 565 (2006), Richard Craswell starts in on the project of providing one. This essay critically examines Craswell's arguments and discusses what such a general theory should look like. One of my central theses is that such a theory should keep apart two regulatory approaches: the use of scientific methods to study the informational effects of individual transaction elements, and interpretive approaches, which take as their object the meaning and veracity of such elements. The essay also discusses legal liability for implicit misrepresentations and the role of everyday interpretive norms in the law of misrepresentation in general. The essay first summarizes what I take to be Craswell's central claims about information sharing, summarized by his rejection of the quantized view of information. I then discuss the similarities and differences between the two contract doctrines that are most obviously designed to regulate information sharing: nondisclosure and misrepresentation. This lays the groundwork for a detailed analysis of Craswell's claims about the law of misrepresentation. Craswell uses Grice's theory of conversational implicature to explain of how separate pieces of information can be bundled together in a single speech act. I argue that Craswell wrongly assumes (contrary to Grice's theory) that it is difficult to divorce implicit misrepresentations from the potentially beneficial speech acts that contain them. This error leads Craswell to overstate the similarities between misrepresentation and nondisclosure. The last part of the essay distinguishes two regulatory approaches, which I label causal-predictive and interpretive. Causal-predictive regulation, which Craswell advocates broader use of, employs the methods of behavioral economics to mandate how transactions should be structured. The law of misrepresentation, I argue, uses a fundamentally different method, one that focuses not on causation but on meaning and veracity. I make some general observations about the proper scope of these different regulatory approaches, their relative merits, and the prospects for combining them in the ways Craswell recommends.