Bullshit Promises

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    Bullshit Promises

    Curtis Bridgeman

    Karen Sandrik

    Abstract

    A few years ago, the philosopher Harry Frankfurt published an essay provocatively

    entitled, On Bullshit. Convinced both that our society is laden with bullshit and that wenevertheless do not have a clear idea of what it is, Frankfurt set out to explain what bullshit is

    and to distinguish it from lying. While the liar seeks to lead his listener to a false belief, the

    bullshitter is unconcerned with truth altogether. Although the project sounds at first like theessence of philosophical navel-gazing, Frankfurt was trying to make an important point about

    how this indifference to truth has caused us to lose our way a bit in philosophical and political

    discourse.

    In this project, we draw on Frankfurts work to point out a disturbing trend in contractlaw: the use of bullshit promises. Bullshit promises are promises that are in a certain sense

    insincere even though they are not lying promises, at least not in a sense that would be actionable

    under the tort of promissory fraud. Promissory fraud is available in cases where a party makes apromise that it has no intention to keep, and it does so in order to deceive the promisee about its

    intentions. But it is quite common today for parties, especially companies dealing with

    consumers, to make promises that are not lying promises in that the promisor is not concealingan intention not to perform, but that are nevertheless insincere. In such cases a party uses

    promissory language but elsewhere reserves the right not to perform, or to change the terms of

    performance unilaterally as it sees fit. Such promises are not necessarily lying, especially if the

    promisor does not at the time have a specific plan to change the terms, but they are usuallybullshit. By simply leaving its options open a party can help itself to the benefits of promissory

    language without being subject to the norms associated with promising, in particular some sort of

    commitment to a particular course of action. The tort of promissory fraud as now applied is notable to address this problem, but we will suggest minor modifications in both contract and tort

    that should help. At the very least, it is time courts and commentators recognized the

    phenomenon of bullshit promises and the potential challenges they create.

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    Bullshit Promises

    I. INTRODUCTION .................................................................................................................... 2

    II. PROMISSORY FRAUD............................................................................................................ 5

    III. HARRY FRANKFURT ON BULLSHIT....................................................................................... 9IV. BULLSHIT PROMISES.......................................................................................................... 13

    V. HOW TO RESPOND TO BULLSHIT PROMISES ....................................................................... 23

    A. Reforms in Contract Law .......................................................................................... 23

    B. Reforms in Tort Law.................................................................................................. 29VI. CLASS ACTIONS ................................................................................................................. 31

    VII. CONCLUSION...................................................................................................................... 36

    I. INTRODUCTION

    Several years ago, the philosopher Harry Frankfurt published an essay provocatively

    entitled, On Bullshit.1 Frankfurt was convinced that although our society is laden with bullshit

    we do not have a clear idea what it is. We most closely associate it with lying, but as Frankfurt

    points out lying and bullshitting are importantly distinct. Both are insincere, but unlike the

    bullshitter the liar is concerned with truth, if only in order to lead his listener away from it.

    Although the idea of a distinguished Princeton philosopher publishing an essay on the concept of

    bullshit drew a few giggles (when published as a book a few years ago the essay earned

    Frankfurt an appearance on the Comedy ChannelsDaily Show with Jon Stewart), Frankfurt was

    quite serious. He was concerned that our indifference to the truth has caused us to lose our way

    in an important sense in philosophical and political discourse.

    In this essay, we seek to apply Frankfurts insights in the perhaps unlikely setting of

    contract law. Although not the typical fraud case, there is a sense in which one may lie by

    1 HARRY G.FRANKFURT,ON BULLSHIT (2005) (originally published in 6 RARITAN (1986); references here to the

    book version).

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    making a promise. The idea of promissory fraud is based on the premise that promises make

    representations about the intentions of the promisor. Although the sentence, I promise to do X

    does not have the grammatical form of an assertion, according to the law one who makes such a

    promise represents to the promisee that she has an intention to do the promised act. Thus, one

    who makes a promise while secretly intending not to carry out that promise is potentially liable

    for promissory fraud.

    However, promissory fraud, at least as currently applied, requires a positive intention to

    deceive, not just a lack of an intention to perform. It is possible to make a promise without

    having an intention to perform or not to perform.

    2

    Because the promise would, according to law,

    represent an intention to perform it seems such a promisor would be misrepresenting her

    intentions. In fact, though, unless she has an intention to deceive when she makes the promise,

    she will not be liable for promissory fraud in courts today. Indeed, some courts go so far as to

    require proof of a scheme to defraud.3

    This distinction provides an opportunity for mischief, an opportunity that we will show

    many companies routinely take advantage of today when dealing with consumers. It is possible

    2Indeed, as Ian Ayres and Gregory Klass show in their intriguing recent book, it is possible to make a promise with

    all sorts of different attitudes toward performance, including an intention not to perform, agnosticism, all-out

    commitment, and any degree of commitment in between. See IAN AYRES &GREGORY KLASS,INSINCERE PROMISES:

    THE LAW OF MISREPRESENTED INTENT 19-45 (2005). The point for Ayres and Klass is that by presuming an all-out

    intention to perform the law fails to give promisors an opportunity to reveal to promisees valuable information, viz.

    their actual level of commitment to performance. For some discussion of their work, see Curtis Bridgeman,

    Misrepresented Intent in the Context of Unequal Bargaining Power, 2006 MICH.ST.L.REV. 993 (2006).

    3Seeinfra note 17 and accompanying text.

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    to make an insincere yet non-lying promise, what we call a bullshit promise.4

    A party can do so

    by making an offer on certain specific terms while elsewhere reserving for itself the right to

    change those terms unilaterally at any time it wishes. Since the lack of an intention to perform

    does not suffice to make out a promissory fraud (a positive intention to deceive is required),

    promisors can make all the promises they want without committing themselves to any course of

    action by simply reserving the right to change their minds later. As we will explain, such

    practices are arguably not lying per se so long as the promisor is not committed to a plan

    contrary to the one promised. Indeed, the promisor may end up fulfilling the promised plan. But

    they are insincere because they misrepresent what the promisor is up to. They are, in a word,

    bullshit.

    The goal of this essay is twofold. First, we will explain the phenomenon of bullshit

    promises and distinguish it from typical promissory fraud cases. We hope to show both that the

    possibility of bullshit promises is troubling and that in practice they are actually quite commonly

    used, at least in many standard-form contracts for consumers. Secondly, we will propose modest

    reforms aimed at addressing the phenomenon, both at the level of substantive doctrine and at the

    practical, procedural level with class actions. While we are optimistic about these reforms, the

    two projects are distinct. Our hope is that even those who are not persuaded by our reform

    efforts will at least recognize the phenomenon of bullshit promises and begin to think seriously

    about what to do about them.

    4 A more polite term used by the U.C.C. in a similar context is pseudo promise. Seeinfra, notes 60-61 and

    accompanying text. If courts take our advice and recognize this phenomenon, they probably will and should choose

    this less vulgar term, or something similar, and we take this opportunity to apologize to our mothers for not doing so

    ourselves. Frankfurt made us do it.

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    The argument will proceed as follows. In Part II, we will explain in greater detail the tort

    of promissory fraud. Part III discusses Frankfurts explanation of the term bullshit. Part IV

    applies Frankfurts work to the setting of contract law. It explains the phenomenon of bullshit

    promises, distinguishing them from typical promissory fraud cases, and provides common

    examples of their use that touch all of our lives. In Part V we suggest some modest reforms in

    both contract law and tort law that could help provide a substantive response to bullshit

    promises. But because bullshit promises are much more likely to be used against consumers,

    traditional responses are unlikely to be helpful as a practical matter without the procedural

    benefit of a class action. In Part VI we will explain how the class action can be a useful tool for

    dealing with such problems, and that in fact promissory fraud may be able to avoid some of the

    procedural problems that have doomed other kinds of consumer class actions.

    II. PROMISSORY FRAUD

    Although it has long been recognized as a cause of action in English and American

    courts, the doctrine of promissory fraud is practically ignored in law-school curricula, despite the

    fact that in many jurisdictions it is invoked more often than the better-known doctrines of

    mistake and impossibility.5 It has also been almost completely ignored by legal academics, at

    least until recently.6

    Promissory fraud, a tort, acknowledges the possibility of lying promises,

    promises made without any intention of performing. It is distinguished from ordinary actions of

    deceit by the fact that the lie is contained in a promise; it is distinguished from breach-of-contract

    5 AYRES &KLASS,supra note 2, at6.

    6See, e.g., id. See also Bridgeman,Misrepresented Intent, supra note 2; Karen Sandrik, Overlooked Tool:

    Promissory Fraud in the Class Action Context, 35 FLA.ST.L.REV. 193 (2007).

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    actions by the fact that it must be the case not only that the promisor never did the promised

    action, but that she never intended to do the promised action even at the time of making the

    promise.

    The essence of promissory fraud is the fact that by making a promise the promisor makes

    a representation to the promisee about the promisors state of mind. Although the sentence, I

    promise to do X does not have the grammatical structure of a factual assertion, courts treat such

    sentences as making a representation to the promisee that the promisor intends to X. In the

    words of the Second Restatement of Torts, a promise necessarily carries with it the implied

    assertion of an intention to perform.

    7

    Therefore, when the promisor makes a promise without

    such a state of mind she has made a misrepresentation of fact to the promisee. As Lord Bowen

    put it in an oft-quoted early opinion,

    [T]he state of a mans mind is as much a fact as the state of his digestion. It is

    true that it is very difficult to prove what the state of a mans mind at a particular

    time is, but if it can be ascertained it is as much of a fact as anything else. A

    misrepresentation as to the state of a mans mind is, therefore, a misstatement of

    fact.8

    In that case, the defendants, directors in a company, had induced the plaintiff to invest in the

    company for specific improvements in equipment and facilities.9 In fact, the defendants used the

    7 RESTATEMENT (SECOND) OF TORTS 530 cmt. C (1977).

    8 61 Edgington v. Fitzmaurice, (1885) 29 Ch.D. 459.

    9Id. at 460.

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    money to pay off their own debts, which they had planned to do all along.10

    So while proving

    the representation to be false may be difficult in any given circumstance, if a misrepresentation

    can be proven it is potentially actionable in tort.

    Promissory fraud is currently recognized in some form or other in all 50 states and the

    District of Columbia.11 The elements of promissory fraud are generally the same as those of the

    tort of deceit. Those elements are (1) a false material representation; (2) knowledge of the falsity

    of the representation; (3) an intention to induce reliance on the representation; (4) actual,

    reasonable reliance; and (5) some form of harm resulting from the reliance.12

    Notice that in the case of promissory fraud these elements can be greatly simplified. For

    one thing, because the misrepresentation in question refers to the promisors state of mind we

    can presume that most, if not all such misrepresentation will be knowing misrepresentations, and

    therefore that this scienter element will be satisfied.13 Therefore, elements (1) and (2) above

    will be satisfied together. Also, because promissory-fraud actions generally take place in a

    contract setting, the reasonable reliance by the promisee can be assumed based on the

    consideration given.14 Therefore, with scienter and detrimental reliance established as a matter

    10Id. at 461.

    11See Sandrik, supra note 6, at 221 (citing cases). Michigan and Illinois have imposed heightened requirements,

    and one recent Connecticut court has announced that Connecticut does not recognize the cause of action despite

    statements to the contrary by earlier Connecticut courts. Id. at 222.

    12Id. at 222-23.

    13 But for an argument that even this self-knowledge may be more complicated, See AYRES &KLASS, supra note 2,

    at 47.

    14 W.PAGE KEETON ET AL.,PROSSER AND KEETON ON THE LAW OF TORTS 109, at 763 (W. Page Keeton ed., 5th

    ed. 1984); DAN B.DOBBS,THE LAW OF TORTS 1358 (2000). One of us has recently shown how this

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    of course, it seems these cases will just come down to the presence or absence of an intention to

    perform.

    In fact, though, two further elements are typically required. Courts also often require

    plaintiffs to show not only that the promisor did not have the intention to perform, but also that

    the plaintiff had the positive intention notto perform, along with an intention to deceive.15 As

    the Alabama Supreme Court has put it, the plaintiff must show proof that at the time of the

    misrepresentation, the defendant had the intention not to perform the act promised, and [] proof

    that the defendant had an intention to deceive.16 In addition, a few courts have added

    underappreciated fact can be an important tool in the consumer class-action context. See Sandrik, supra note 6,

    passim.

    15 Sandrik, supra note 6, at 223.

    16 Saia Food Distribs. and Club, Inc. v. SecurityLink From Ameritech, Inc., 902 So. 2d 46, 57 (Ala. 2004) (quoting

    Waddell & Reed, Inc. v. United Investors Life Ins. Col, 875 So. 2d 1143, 1160 (Ala. 2003)); see also Birmingham

    News Co. v. Horn, 901 So. 2d 27, 59 (Ala. 2004); Howard v. Wolff Broadcasting Corp., 611 So. 2d 307, 311 (Ala.

    1992). The RESTATEMENT OF CONTRACTS is vague on this point. In a section entitled Promise With Intent Not to

    Perform, it stated that [a] contractual promise made with the undisclosed intention of not performing it is fraud.

    473 (1932). Although it agreed that making a promise is a manifestation of an existing intent to perform it, it

    goes on to imply that in order for there to be fraud there must be a contrary intent not to perform, id. at cmt. a,

    rather than just the lack of an intent to perform. But the RESTATEMENT (SECOND) OF CONTRACTS does not mention

    promissory fraud, apparently leaving the doctrine to tort law.

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    requirements that the misrepresentation be part of a scheme to defraud17

    or required a higher

    standard of proof.18

    Although they may at first seem minor, these additional elements raise the bar

    considerably. When one makes a promise, that promise implicitly represents an intention to

    perform. It is one thing to say that promissory fraud is available whenever such a promise is

    made and the intention to perform is lacking; it is quite another to say that the action is available

    only when the promisor has an affirmative intention to deceive with its promise. The latter

    requirement means that promissory fraud is aimed at lying promises. But as we shall see, there

    is an important and disturbing class of promises that should be addressed even though they do

    not meet the requirement of deceit: bullshit promises.

    III.HARRY FRANKFURT ON BULLSHIT

    Several years ago, the distinguished philosopher Harry Frankfurt asked a rather blunt and

    unorthodox question: What is bullshit?19 Frankfurt opines that although there is so much bullshit

    in our culture and many of us are fairly confident of our ability to recognize it, we have no clear

    understanding of what it is.20

    He then sets out to pin down a more precise meaning of the term.

    17See Bradley Real Estate v. Dolan Assocs. Ltd., 640 N.E.2d 9, 13 (Ill. App. Ct. 1994); Steinberg v. Chicago Med.

    School, 69 Ill. 2d 320, 334 (1988).

    18

    Jim-Bob, Inc. v. Mehling, 443 N.W.2d 451, 459-60 (Mich. Ct. App. 1989) (holding that the plaintiff must prove

    the fraud by clear, satisfactory and convincing evidence; this court also held that the evidence of fraudulent intent

    must relate to conduct by the actor at the time the representations are made or almost immediately thereafter).

    19 FRANKFURT,supra note1.

    20Id. at 1.

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    Frankfurts goal is ultimately to say something about political and philosophical discourse, but as

    we will explain his essay is surprisingly useful for contract theory.

    For Frankfurt, bullshit is best understood in comparison and in contrast with lying.

    Although both are a form of insincerity, bullshit is distinct from a lie in that bullshit does not aim

    to lead one away from the truth. Instead, the bullshitter is simply unconcerned with truth. A

    couple of examples will prove illustrative.

    First, Frankfurt considers political speech by politicians, who are purveyors of bullshit if

    anyone is. He imagines a Fourth-of-July orator who goes on bombastically about our great and

    blessed country, whose Founding Fathers under divine guidance created a new beginning for

    mankind.21 Such drivel is bullshit, no doubt, but not because it is false. Rather, the problem is

    one of insincerity. The speaker is not saying these things to convince his listener of their truth,

    but rather to make his listener favorably disposed to the speaker. The speaker may or may not

    believe these things to be true if he bothers to think about it, but that is beside the point.

    Such speech is bullshit, though, not just because it is not (necessarily) true. One can

    correctly say, as the philosopher Max Black said in a related study of humbug, 22 that it is

    something short of lying.23 Nor is bullshit mere carelessness; indeed, by contrast it is often, as

    Frankfurt puts it, carefully wrought.24 The defining characteristic of bullshit, for Frankfurt, is

    that it is speech that holds itself out as describing reality, but fails to live up to the accepted

    standards of how we go about making such descriptions. It is not its actual truth or falsity that

    21Id. at 16.

    22 MAX BLACK,THE PREVALENCE OF HUMBUG (1985).

    23 FRANKFURT, supra note 1, at 9.

    24Idat 22-24.

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    determines whether a statement is bullshit, but rather whether it is made with or without regard

    for its truth or falsity.

    Consider another example provided by Frankfurt. He describes an anecdote related by

    Fania Pascal of an interaction she had with Ludwig Wittgenstein:

    I had my tonsils out and was in the Evelyn Nursing Home feeling sorry for

    myself. Wittgenstein called. I croaked: I feel just like a dog that has been run

    over. He was disgusted: You dont know what a dog that has been run over

    feels like.25

    It is hard to know whether the incident described really took place, or to what degree

    Wittgenstein was serious in his remark, or perhaps was misunderstood.26 But putting such

    questions aside (as well as Wittgensteins apparent insensitivity), we might ask what it is that

    disgusted Wittgenstein about Pascals statement. As Frankfurt points out, Wittgenstein was not

    accusing Pascal of lying, per se. It is not that she says something she knows to be false. Rather,

    her sin is that although she means simply to convey that she feels bad, she presents herself as

    having a much more specific, particular feeling. Her statement is unconnected with a concern

    for the truth.27 Her fault is not that she fails to get things right, but that she is not even

    trying.28

    25

    Fania Pascal, Wittgenstein: A Personal Memoir, in Rhees, RECOLLECTIONS 28-29 (cited in FRANKFURT, supra

    note 1, at 24).

    26 FRANKFURT, supra note 1, at 25-26.

    27Id. at 30.

    28Id. at 32.

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    Of course, one might well complain that Wittgenstein is too hard on Pascal, especially

    considering her situation. Her aim is merely to complain, not to get things right, and in the

    circumstances it is hard to blame her. Bullshit is sometimes perfectly acceptable. Frankfurt

    notes the phenomenon of bull sessions, activities in which the participants engage in an

    exercise where they are free to speak their minds without being concerned that they will be held

    to the truth of their statements later.29

    The very idea of such an enterprise is to try out various

    thoughts and attitudes in order to see how it feels to hear themselves say such things and in order

    to discover how others respond, without its being assumed that they are committed to what they

    say.

    30

    In a conversation that is known by all participants to be a bull session it would be out of

    place to criticize someone for not even trying to get things right. If the anecdote described by

    Pascal is to be believed, Wittgenstein may have been too humorless to appreciate such a

    phenomenon, but it is nonetheless common to most of us.

    However, in other contexts one might fairly be criticized for such an unconcern with

    truth, an indifference to how things really are that Frankfurt regards as the essence of

    bullshit.31 When one is engaged, or puts oneself out as being engaged, in the activity of

    describing reality, the expectations are different and bullshit is to be criticized. But even then it

    is important to realize that what is wrong with bullshit is importantly different from what is

    wrong with lying. The liar, as Frankfurt notes, is engaged in an entirely different enterprise from

    the bullshitter. The liar is inescapably concerned with truth values, since his entire enterprise

    is to lead his listener away from the truth.32

    The bullshitter, by contrast, may in fact be saying

    29Id. at 34-38.

    30Id. at 36.

    31 FRANKFURT, supra note 1, at 34.

    32Id. at 51.

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    only true things, but her statement is grounded neither in a belief that it is true nor, as a lie must

    be, in a belief that it is not true.33 She may or may not mislead us about the facts, but she does

    mislead us about what she is up to.34 She holds herself out as representing reality and as being

    responsive to evidence for or against the claim she is making, but in fact she has no such concern

    at all.

    As mentioned above, Frankfurts interest in bullshit clearly springs from his interest in

    the perceived failings of political and philosophical discourse. Our interest, by contrast, is in

    contract law, but Frankfurts essay is surprisingly insightful for our purposes. As we shall see in

    the next section, there are contracts which, though they fall short of making lying promises, are

    nonetheless troubling. They involve parties to a contract who hold themselves out as making a

    promise, and therefore subject to the norms of promising, but who in fact carefully avoid

    committing themselves as true promisors do.

    IV.BULLSHIT PROMISES

    As mentioned in Part I, promissory fraud is typically concerned with lying promises,

    where by that courts refer to situations where a party promises to do something but actually has

    no intention even at the time of making the promise to do the thing promised. Most courts

    require an actual intent to deceive the promisee rather than just a lack of an intention to perform.

    A paradigm case would be Max Bialystock from the musical The Producers, who sold 1,000%

    interest in a musical, planning to make sure the musical was so bad that there would be no profits

    33Id. at 33.

    34Id. at 53-54.

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    to divide so that no one would discover his fraud.35

    In such a case an intention to defraud is

    clear. In other cases it is much more difficult. One suspects that in the famous contracts class

    chestnut the Garland Coal company never had any intention of performing its promise to the

    poor Peevyhouses to restore their land to its pre-mining state,36

    but proving such mischief is

    nearly impossible.

    In a world of standard-form contracts, however, consumers are faced with what is

    arguably a much more widespread problem than lying promises. Parties with great bargaining

    power who deal primarily in standard-form contracts need not lie in order to get the benefits of

    lying. Instead, what parties can do as we will see, what they often actually do is to avoid

    making a lying promise simply by making more nuanced promises that fall short of committing

    them to any particular course of conduct. To be sure, these parties use the words of promising,

    but then they elsewhere reserve the right to cancel the contract at any time or to change its terms

    unilaterally.

    Consider, for example, the credit card industry. With eight billion pre-approved credit

    card applications per year (that is seventy-three pre-approved offers per household),37 most

    everyone has been offered a low interest rate on purchases with the opening of a new credit card.

    Invariably, such an offer is subject to terms and conditions, and it is no secret that these may be

    difficult to locate and understand. In fact, the Government Accountability Office recently issued

    35 This example is borrowed from AYRES &KLASS, supra note 2, at 3-4.

    36

    Peeveyhouse v. Garland Coal, 382 P.2d 109 (OK 1962). It is possible, of course, that the coal company was more

    incompetent than immoral. For some evidence to this effect, see Judith L. Maute, The Unearthed Facts of

    Peevyhouse v. Garland Coal & Mining Co., in CONTRACT STORIES 265-303, 237 (Douglas G. Baird ed., 2007).

    37 BOB SULLIVAN,GOTCHA CAPITALISM:HOW HIDDEN FEES RIP YOU OFF EVERY DAYAND WHAT YOU CAN DO

    ABOUT IT 41 (2007).

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    a report that found on average, the disclosures in the agreements require a twelfth-grade

    education, information regarding grace periods, payment allocation, and balance computation a

    fifteenth-grade education (three years of college), and the language regarding interest rates a

    twenty-seventh-grade (Ph.D) reading level.38

    In recent years, the standard credit-card agreement

    has grown from one page in the early 1980s to over 30 pages of incomprehensible text in the

    early 2000s.39

    To make matters worse, nearly half the adult population . . . reads at or below

    the eighth-grade level.40

    Yet there is something even more troubling occurring in these offers. Although the credit

    card company makes an offer citing a low interest rate on all purchases, it is also reserving the

    right (in the terms and conditions) to change this rate at any time, constrained only by its own

    discretion. Such clause will likely read: We reserve the right to change the APRs in our

    discretion.41 Thus, in almost all cases the credit card company is not usually committed to the

    low introductory interest rate for any length of time. The consumer who finds this out the hard

    way after the company has increased the low interest rate (most often to the default rate,

    currently around 30%)42 will likely feel cheated.

    38UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE,CREDIT CARDS:INCREASED COMPLEXITY IN RATES AND

    FEES HEIGHTENS NEED FOR MORE EFFECTIVE DISCLOSURES TO CONSUMERS 37-38 (2006).

    39 Elizabeth Warren, Testimony Before the Committee on Banking, Housing and Urban Affairs of the United States

    Senate 4 (January 25, 2007) (on file with authors).

    40Id.

    41 This particular example may be found at the following website: http://www.bankofamerica.com (follow Visa

    Platinum Plus hyperlink; then follow Terms and Agreements hyperlink).

    42 SULLIVAN, supra note 37, at 43.

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    Some people might not be too troubled by the example of interest rates. Some may think

    it is common knowledge that interest rates can be changed; others may think the market will cure

    the problem. But the credit-card companies do not just change interest rates. They are well

    aware that consumers pay attention to interest rates, and the companies compete with one

    another for the lowest rates (though once a consumer is in financial trouble she loses bargaining

    power and is generally stuck). The contracts allow the companies to change other terms as well,

    including when payments are due; the maximum balance; and, importantly, the fees for late

    payment, being over ones limit, or anything else for which the company decides to charge a fee.

    Indeed, it used to be the case that credit-card companies competed with one another for low fees

    while charging higher rates.43 More recently, companies have found that consumers are not

    nearly so sensitive to high fees, but on the other hand were paying much more attention to

    interest rates.44 The companies responded by lowering rates and raising fees.45 Now, [p]enalty

    fees are the fastest growing source of revenue for issues.46

    To make matters worse, the shift to higher fees does not reflect rational consumer

    preferences. Professor Elizabeth Warren warns that credit-card companies are learning how to

    extract more and more profits from their consumers by studying their irrational tendencies.47 For

    example, in 2007 Bank of America alone conducted some 500 experiments and sent out 111

    million pieces of mail in order to learn more about the behavior of their consumers.48 The

    43 Elizabeth Warren,Balance of Knowledge, at 14-15 (draft on file with authors).

    44

    Id.

    45Id.

    46Id. at 15.

    47Id.,passim.

    48Id. at 2.

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    content and results of these studies are not made known publicly, but plenty of publicly available

    research already shows that consumers tend to make a number of systematic errors in using

    credit, failing to anticipate and/or appreciate increases in interest rates and habitually triggering

    costly fees.49

    Worse yet, credit-card companies study these poor habits closely. According to

    the former general counsel of Citigroups Europe and North American card businesses,

    No other industry in the world knows consumers and their transaction behavior

    better than the bank card industry. It has turned the analysis of consumers into a

    science rivaling the studies of DNA. The mathematics of virtually everything

    consumers do is stored, updated, categorized, churned scored, tested, valued, and

    compared from every possible angle in hundreds of the most powerful computers

    and by the most creative minds anywhere. In the past 10 years alone, the

    transactions of 200 million Americans have been reviewed in trillions of different

    ways to minimize bank card risks.50

    Taken together, this information allows credit-card companies to tailor their products so as to

    take maximum advantage of patterns of irrationality within different demographic groups and

    market different credit plans to those groups accordingly. Even now, Bank of America offers

    400 different credit cards on their website alone.51

    49Id. at 8-13.

    50Id. at 19, quoting David A. McDonald, Viewpoint: Card Industry Questions Congress Needs to Ask, AMERICAN

    BANKER, Mar. 23, 2007, at 10.

    51Id. at 13.

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    Worse yet, as Professor Warren warns, the obvious next step is for this data to be used

    not only to take advantage of consumer errors generally and of patterns of use, but to take

    careful advantage of each particular consumer error on a consumer-by-consumer basis.52 A

    credit-card company may soon be able to study each individuals use of a card and adjust the

    terms and fees to take maximum advantage of that persons particular blind spots. The legal tool

    that enables them to adjust the terms of the deal after collecting such personal information is the

    bullshit promise. Most current scholarship on such contracts of adhesion primarily focuses on

    the fact that the terms are too hard to find and too hard to understand if one does find them. But

    the real danger is not the initial details, but rather the simple clause that allows the company to

    write new terms later the clause that makes such offers bullshit promises. 53

    But have these customers been lied to? Are these promises lying promises? Possibly. It

    could be the case that the company has a plan in place to induce as many consumers as possible

    to open new credit-card accounts, and then to change the terms on those accounts as soon as the

    consumers have accrued a balance. In such a case, most of us would consider the offer of a low

    rate to be a lie, despite the fact that the company quietly reserved the right to change the terms.

    The company would be representing itself as committed to one course of action, while it was at

    the same time actually planning an inconsistent course of action. When companies make such

    offers and it can be shown that they have a plan in place to do otherwise they should be liable for

    promissory fraud even under current law.

    52

    Id. at 20.

    53 For her part, Professor Warren primarily focuses on the fact that the initial terms are either hidden or

    incomprehensible, but she does note the importance of what we call bullshit promises: A creditor that understands

    the possibility of a particular consumer error can test customers to determine which ones will make the error and can

    exploit that specific error by changing the terms of outstanding credit cards to maximize revenues. Id. at 10.

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    On the other hand, the company may have no such plan in place. It may intend to offer

    the low rate for now and simply be uncommitted as to how long it will continue to abide by the

    low rate. Although it may have no specific plan to increase the rate, it would like to reserve the

    option to do so later if it should so decide. We argue that such practices are often best described

    as bullshit promises. Bullshit promises are those promises that are not lying promises in the

    sense that they are not made with an intention to deceive the promisee about ones actually

    contrary intentions. But neither are they sincere. The promisor in such a case holds itself out as

    committed to one course of action while at the same time elsewhere reserving the right to do as it

    wishes, showing a complete disregard for the norms of honest promise-making.

    It is important to see that like bullshit, bullshit promises are something short of lying. In

    the case of the credit-card company, for example, the company may have no intention at the time

    it makes the offer to increase the rate or fees later. Indeed, it is likely that some customers will

    never see an increase.54 Thus, the company can truthfully say that at least in some sense they

    were not hiding a contrary intention when they made the initial promise. 55

    But like the bullshitter, if the company is not misrepresenting the truth it is at least

    misrepresenting what it is up to. It holds itself out as making a promise, and as thereby subject

    to the norms of promising. The bullshitter may not deceive us, or even intend to do so, either

    about the facts or about what he takes the facts to be. What he does necessarily attempt to

    54 This does not mean that the credit card company is happy with the customer, or even considers it a good customer.

    Indeed, the credit card industry has a term for people who pay their bills in full and on time, such that they are never

    subject to higher rates or any of the various late fees that have become so profitable for the credit card companies:

    deadbeats. SULLIVAN, supra note 37, at 40.

    55 As Frankfurt points out, it is a fundamental aspect of the nature of bullshit that although it is produced without

    concern with the truth, it need not be false. FRANKFURT, supra note 1at 47-48.

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    deceive us about is his enterprise. His only distinctive characteristic is that in a certain way he

    misrepresents what he is up to.56 Just so with the standard-form contracts offered by credit-card

    companies; it would appear that one is entering into an arrangement whereby one can borrow

    money at the stated rate. A consumer might well expect to be subject to penalties, and perhaps

    even higher rates, if she fails to make her payments own time. But in fact she is entering into an

    entirely different sort of arrangement altogether. What the credit-card company is up to is not

    committing itself to a course of performance, but rather getting the customer to commit while it

    reserves judgment about how to act, presumably constrained only by market pressures.

    Moreover, it is becoming increasingly obvious that there is widespread market failure in

    the credit-card industry.57 Markets work only when consumers are at least reasonably well

    informed, but the game in the credit-card industry is to keep true prices hidden. In fact, Oren

    Bar-Gill and Elizabeth Warren have recently argued that credit cards are so dangerous that they

    ought to be regulated like products that risk physical danger.58 Manufacturers of tangible goods

    have an incentive to inform consumers of possible dangers. Injuries to their consumers do the

    manufacturer no good and also could result in their own liability. But with credit cards, or any

    billing system where there is the potential to extract hidden fees, companies have every incentive

    to hide the danger for the consumer. Thus we cannot expect the market to police these products

    well, and indeed so far it has not.59

    56

    FRANKFURT, supra note 1, at 53-54.

    57 Oren Bar-Gill & Elizabeth Warren,Making Credit Safer, at 17-47, Law & Economics Research Paper Series,

    Working Paper No. 08-27 (May 2008).

    58Id.,passim.

    59Id. at 17-47.

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    The credit card companies are not the only ones to use bullshit promises. Indeed, it is all

    too easy to find other examples.60 A particularly good example is another major industry that

    affects the majority of American adults: the cell-phone industry. Cell-phone companies

    vigorously compete for business by offering new and improved plans with more minutes, more

    coverage, and lower fees. They thrive by locking consumers into plans for one or two years, and

    in that time period often the consumer cannot change or cancel her plan without high fees that

    make it more cost-effective to stay in the plan until the contract is up.

    Yet while the consumer is locked in, as with the credit-card industry every major cell

    phone company has been careful not to commit itself to a particular course of performance by

    reserving broad rights for itself in the terms and conditions.61 For example, Verizon states that

    the consumers service is subject to its business practices, procedures and policies, which may

    be changed at any time without notice.62 Verizon then proceeds to state that we can also change

    60 Other such examples can be found in a myriad of situations, such as the weight loss industry, see below for

    discussion, and even in the health insurance industry (we do not use the insurance industry, however, as an example

    due to the separate regulation by the state).

    61See, e.g., http://www.verizonwireless.com (follow Customer Agreement hyperlink) (stating in the Our Rights

    to Make Changes portion that Verizon can change prices and any other conditions in this agreement at any time);

    http://www.t-mobile.com (follow Terms and Agreements hyperlink) (stating in the Changes to the Agreement of

    Charges section changes may be made to the monthly recurring access rate plan or material terms in the

    agreement); http://www.wireless.att.com (follow Wireless Service Agreement); (then follow Terms and

    Service) (stating AT&T, in short, that any term or condition may be changed at any time). Sprint is the only major

    cell phone provider that we found that does not put its terms and agreements on the internet for customers or

    potential customers to read before purchasing a plan.

    62 http://www.verizonwireless.com (follow Customer Agreement hyperlink).

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    prices and any other conditions in this agreement.63

    Likewise, AT&Ts has a similar clause:

    We many change any terms, conditions, rates, fees, expenses, or charges regarding your service

    at any time.64 Again, like the credit card companies, cell phone companies are not making

    outright lies so long as they do not have a plan in place to increase the rates at the time of

    advertising the plan. But they are also not subjecting themselves to the norms of promising even

    as they use words that would suggest otherwise. While the consumer is committed, the cell-

    phone company can do what it likes.

    In fact, the truth is that most any industry that bills consumers over time has the potential

    to use bullshit promises to extract money in any number of clever ways. In his book, Gotcha

    Capitalism: How Hidden Fees Rip You Off Every Day and What You Can Do About It, Bob

    Sullivan exposes similar practices in a number of industries that routinely affect all of us.65

    Credit-card and cell-phone companies are some of the worst offenders, but he also shows banks,

    retirement plans, home phones, cable and satellite television, insurance, and many other

    industries regularly milk their customers with hidden fees, often introducing these fees or

    changing the terms well into the relationship.

    As troubling as these practices are, it turns out to be more difficult to respond to them

    than one might think. In the next section we discuss several possible strategies. The currently

    available responses are much too weak to have any effect. Instead, we offer some modest

    reforms to the common law of contract and tort that should help a great deal.

    63Id.

    64 http://www.wireless.att.com (follow Wireless Service Agreement); (then follow Terms and Service).

    65 SULLIVAN, supra note 37,passim.

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    V. HOW TO RESPOND TO BULLSHIT PROMISES

    Identifying the phenomenon of bullshit promises is only half of the battle. It remains to

    be seen what should be done about them. For although the bullshit promise is insincere, it is

    technically not a lying promise and therefore the traditional tort of promissory fraud will not be

    available. One way to address this phenomenon would be through legislation involving

    consumer rights and/or fair-trade practices, and we are open to such reforms. As we mentioned

    above, Professors Bar-Gill and Warren have recently argued persuasively that credit cards, at

    least, should be regulated like other dangerous products.

    66

    But such reforms would not reach the

    use of bullshit promises in other areas, and in any event such drastic measures are in reality a

    political long-shot at this time. Thus, in this section we offer some much more modest reforms

    that should address the problem from within the common law, both from within contract law and

    within tort law. Then in the next section we will discuss the use of class actions to address

    bullshit promises, which will likely be a practical necessity given that most of the examples are

    culled from consumer contracts.

    A. Reforms in Contract Law

    First of all, one possibility is that such clauses could be held unconscionable. Even under

    current law, to the degree that contractual language is difficult to find, read, or understand, courts

    can simply refuse to enforce those clauses. In our experience, it is often difficult even for us to

    find the language that gets the drafter of the contract off the hook. It is no doubt practically

    66 See supra, note 58, and accompanying text.

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    impossible to expect ordinary consumers, who have no particular expertise in the law and may

    not even know to look for them, to find them. And even when one can find the terms and

    conditions they are often long, dense, and incomprehensible. As mentioned above, the standard

    credit-card contract is now over thirty pages in length and practically unintelligible.67

    If the terms are held to be unconscionable because they are surprising or unclear then that

    might simply lead to more notice, and the agreements are long enough as it is. One possibility is

    for the courts to allow the bullshit clauses only if they are very prominent and clear. But it is

    hard to imagine language that could clearly convey the danger to consumers that would not also

    be substantively unconscionable (The company can charge the consumer whatever it likes, and

    is even free to study and exploit the consumers irrational tendencies?). And as we shall see in

    a moment, finding language unconscionable is a poor solution from a practical point of view

    anyway, not too mention that in many cases the unconscionability argument is likely pre-empted

    by federal law.68

    Another possibility is for courts simply to refuse to enforce any unilateral rights to cancel

    or modify the contract in consumer contracts while avoiding any discussion of whether the

    language is unconscionable under the circumstances.69 But clearly that would go too far. In

    some cases the right to cancel or modify a contract is unobjectionable and even beneficial to both

    67 See supra, note 39, and accompanying text.

    68 See Bar-Gill & Warren, supra note 57, at n. 216 and accompanying text.

    69

    Importantly, our concern here is only with consumer contracts and other cases of unequal bargaining power and

    sophistication. Indeed, one of us has elsewhere argued for strict enforcement of bargained-for rights to cancel for

    contracts in most cases between sophisticated parties of relatively equal bargaining strength. See Curtis Bridgeman,

    Enforcing Exchanges, Not Relationships: Acting Together and the Duty of Good Faith in Contract Law,

    unpublished manuscript on file with author.

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    sides. For example, although airlines sell tickets based on a published flight schedule they do not

    guarantee that schedule. Indeed, rather than reserving a right to cancel, they typically claim that

    the schedule is simply not part of the contract. Although such cases in some ways meet the

    structure of the bullshit promise, they do not seem to us to be bullshit. The difference is the

    background expectations of the parties. People who buy tickets on airplanes can be expected to

    know that there may be cancellations or delays. Requiring airlines strictly to abide by such

    schedules would no doubt make air travel prohibitively expensive for most of us.

    One of us has elsewhere suggested a compromise for similar situations. Courts could

    elect to uphold such cancellation clauses only if the drafter of the contract represents to the other

    party the likelihood of performance.70 For example, common carriers like airlines or delivery

    services could publish statistics on their websitesin an easily accessible placeabout on-time

    deliveries and cancellations. Other service providers have done so to good effect.71 Providing

    such information could be the price of getting the benefit of cancellation clauses and the like.

    Another possibility has already been suggested by the Uniform Commercial Code

    (U.C.C.) for a related set of promises. The U.C.C. invites sellers to give express warranties as to

    the qualities of their goods.72 In fact, any affirmation of fact or promise, any description of

    the goods, or any sample or model which is made part of the basis of the bargain will create

    an express warranty.73 If no express warranty is given, the U.C.C. will in some cases imply a

    70 Bridgeman, supra note 3, at 1005-1009.

    71See id. at 1005-1007.

    72 U.C.C. 2-313 (1977).

    73Id.

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    warranty, either of merchantability74

    or fitness for a particular purpose.75

    The U.C.C. also invites

    sellers to disclaim any warranties so long as they do so conspicuously. 76

    Against this backdrop, Comment 4 to 2-313 anticipates the sort of problem with which

    we have been concerned here: cases where a seller gives a description of an item for salewhich

    would normally constitute an express warranty under 2-313(1)(b)yet tries elsewhere to

    disclaim all warranties under 2-316.77

    In such cases, the disclaimer cannot be given literal

    effect under Section 2-316.78 The comments look to the idea of good faith to justify this result:

    This is not intended to mean that the parties, if they consciously desire, cannot

    make their own bargain as they wish. But in determining what they have agreed

    upon good faith is a factor and consideration should be given to the fact that the

    probability is small that a real price is intended to be exchanged for a pseudo-

    obligation.79

    Although the codes term, pseudo-obligation, is more polite than ours, what it describes is a

    special case of a bullshit promise.80 Its solution is to refuse to give the disclaimer literal effect,

    and instead read it in light of the description and considerations of good faith.

    74Id. 2-314.

    75Id. 2-315.

    76

    Id. 2-316.

    77Id.

    78Id. 2-313 cmt. 4.

    79Id.

    80 We thank Manuel Utset for pointing out this example to us.

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    This solution is fine as far as it goes, and in fact it is quite similar to the last proposal,

    according to which parties would be able to enforce such escape clauses only if they have

    (truthfully) disclosed information about the likelihood that such clauses would be invoked. The

    disclosure solution is consistent with the U.C.C.s proposal, because the U.C.C. bases its solution

    in the requirement of good faith. While it is never clear what is meant by good faith,

    disclosing information about the likelihood of cancellation or unilateral modification would

    certainly be a step in the right direction.

    Still, these and other81 contractual solutions all share one fatal flaw: from a practical point

    of view they simply do not help the consumer given the likely procedural posture of any

    contracts case. Consider, for example, a credit-card company that raises interest rates after

    advertising a low rate. It would be a stretch, to say the least, for the consumer to sue the credit-

    card company for breach of contract. Rather, the contractual solutions mentioned above are all

    potential defenses to an action for debt brought by the credit-card company against a consumer.

    But it is unrealistic to expect any individual consumer to defend against a debt charge by raising

    any of the above defenses. Having already borrowed from the credit-card company the

    consumer would still owe for the principal plus the original interest or fees in any contract

    action. The most she could expect to do is avoid the increase in interest rate or fees. That is an

    amount that is unlikely to cover her legal costs (even supposing she had the resources to hire an

    attorney in the first place), not to mention the additional potential late fees and so forth from not

    81

    One other possible contract defense would be to argue that some of the added fees, in particular late fees,

    constitute punitive damages, which are unenforceable in contract law. See Oren Bar-Gill & Elizabeth Warren,

    Making Credit Safer, Law & Economics Research Paper Series, Working Paper No. 08-27 (May 2008). We do not

    pursue this argument here because it would presumably apply at best only to late fees or other responses to default

    by the consumer, and also for the complications we herein describe associated with any defense to contract law.

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    Tort law seems a more natural remedy and also allows for the possibility of both a class of

    plaintiffs and punitive damages.84

    B. Reforms in Tort Law

    Any discussion of remedies in tort law should begin by remembering what should be

    uncontroversial: that companies who promise one thing while intending to do another should be

    subject to liability for promissory fraud. Such lying promises should not be confused with

    bullshit promises. They are troubling, to be sure, but they are already actionable under the law.

    Our concern in this essay is to point out that companies have figured out a way to get

    what they wantto get customers committed while the companies themselves are notwithout

    lying. They do this by making bullshit promises, that is, by making insincere offers that seem to

    convey a commitment by the company when in fact the company has shrewdly avoided making

    any such commitment whatsoever. The company can avoid lying because it does not need to lie.

    Instead, it can get the customer on the hook and then decide what to do with her later.

    We believe such practices wrong the consumer. They do not, however, meet the current

    requirements for promissory fraud. As we pointed out in Part I, according to the restatement of

    torts a promise to do something represents to the promisee that the promisor has an intention to

    do that thing. It seems, then, that bullshit promises would be a misrepresentation under this

    84

    Of course, these days the standard-form agreement will likely have something to say both about the consumers

    ability to bring a class-action suit and about the availability of punitive damages. See, e.g., Myriam Gilles, Opting

    Out of Liability: the Forthcoming Near-Total Demise of the Modern Class Action, 104 MICH.L.REV. 373 (2005).

    The enforceability of such clauses is a controversy beyond the scope of this paper, though naturally crucially

    important to the success or failure of these cases in the long run.

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    standard. If a credit-card company represents that it intends to loan money at a rate of 3%, while

    in fact it intends to loan money at whatever rate it later deems appropriate, then it has arguably

    misrepresented its intentions. It has represented itself as having an intention that it in fact lacks.

    But as the law of promissory fraud is currently applied, a plaintiff must show not only the

    lack of an intention to perform, but also an intention to deceive. Some states go so far as to

    require a showing of a scheme to defraud.85

    In practice, this has meant that a plaintiff must

    show that the promisor intended not to perform at the time it made the promise. We know of no

    cases where promising to perform while secretly holding ones options open as to whether to

    perform was deemed actionable under promissory fraud. In short, the tort of promissory fraud

    has so far been used merely to address lying promises.

    We suggest loosening this requirement and allowing the action of promissory fraud to

    address bullshit promises as well. Rather than requiring a showing of an intention to deceive,

    courts should allow the plaintiff to succeed by showing merely that the defendant simply did not

    have the intention to perform that its promise implied. Although this recommendation is a

    departure from the doctrine of promissory fraud as currently practiced, we emphasize that it is

    only a small departure. The law has long supposed that a promise does represent that the

    promisor has an intention to perform the promised action. Therefore, if the promisor in fact does

    not have that intention, then the promisor has made a misrepresentation of fact, whether or not

    the promisor actually has a positive, contrary intention not to perform. The requirement of an

    intention to deceive does not come from the Restatement and is not entailed by it. Of course,

    proving the lack of intention to perform could be difficult, but the very presence of a clause that

    85 See supra, note 17, and accompanying text.

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    would turn promissory language into a bullshit promise should be at least strong, prima facie

    evidence of the lack of an intention to perform.

    Even if these modest reforms are adopted, however, they will not be very effective unless

    individual plaintiffs can unite and bring their claims as a class action. The individual harms will

    otherwise usually be too small to justify the expense of litigation, especially against well-funded

    corporations. The requirements for bringing a class action are somewhat strict, however,

    especially for economic torts like promissory fraud. In the next section we will explain how

    consumers might satisfy these requirements despite their potentially diverse circumstances and

    successfully use class actions as a vehicle to respond to promissory fraud.

    VI.CLASS ACTIONS

    Class actions continue to be a dominant force in civil litigation, attracting negative and

    positive attention from the media and the general public. Aside from personal feelings about the

    class action, however, it is hard to argue with the Supreme Courts vision for class actions as

    stated in the seminal case,Amchem Prods., Inc. v. Windsor:86

    The policy at the very core of the class action mechanism is to overcome the problem that

    small recoveries do not provide the incentive for any individual to bring a solo action

    prosecuting his or her rights. A class action solves this problem by aggregating the

    relatively paltry potential recoveries into something worth someones (usually an

    attorneys) labor.87

    86 521 U.S. 591 (1997)

    87Id. at 617 (internal quotation marks omitted) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (1997)).

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    It follows then, that when millions of consumers have relatively small injuries, the type of injury

    that will be typically caused by bullshit promises, the class action is the only way efficiently and

    effectively to compensate the individuals for their losses, and to stop more such losses from

    occurring. The ensuing discussion will briefly discuss what is required for a class action,

    specifically when paired with an action for bullshit promises, which would function much like

    promissory fraud in the class action context.88

    Rule 23(a) of the Federal Rules of Civil Procedure contains four explicit requirements,

    each of which must be satisfied prior to class certification: numerosity, commonality, typicality,

    and adequacy.

    89

    Only after a rigorous analysis of these explicit requirements may a class

    action be certified.90 Numerosity requires that the number of plaintiffs represented in the class

    action are so numerous that joining all of their claims under a mass joinder would be

    impracticable.91 This requirement goes towards the central purpose of a class action as described

    in the passage above by the Court. And although there is no magic number, most often

    numerosity is met if there are forty or more persons in the suit.92 Commonality requires the

    plaintiff to prove that there are questions of law or fact common to the class. 93 This

    88 One of us has written on this topic in depth. See Sandrik, supra note, passism.

    89Rule 23(a) states that a class action may only be brought when (1) the class is so numerous that joinder of all

    members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of

    the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will

    fairly and adequately protect the interests of the class. FED.R.CIV.P. 23(a) (emphasis added).

    90 Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).

    91 FED.R.CIV.P. 23(a)(1).

    92See Esler v. Northrop Corp., 86 F.R.D. 20, 34 (W.D. Mo. 1979).

    93 FED.R.CIV.P. 23(a)(2).

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    requirement is sometimes treated as a mere formality by courts, as it is not taxing to find one

    commonality among all of the class members (for example, all purposed class members had or

    currently have a Bank of America Visa Credit Card is a commonality of fact). The next

    requirement, typicality, is generally found where commonality exists. This is because the

    analysis is so similar in that typicality requires that the representative parties have claims or

    defenses that are typical of those in the class.94

    And finally, adequacy of representation requires

    that the representative parties will fairly and adequately protect the interests of the class.95 This

    requirement involves a tripartite system of safeguards. . . (1) the class representative, (2) class

    counsel, and (3) court oversight.

    96

    The plaintiff, after proving the above four prerequisites are met in the suit, also has the

    burden of showing that a class action is maintainable by one of the three types of class actions set

    forth in Rule 23(b).97 Because we are focusing on bullshit promises, a type of promissory fraud,

    the (b)(1) action and the (b)(2) action will not be discussed.98 Instead, the focus here will be on

    the third type of class action, (b)(3), which is the most widely used type of action.

    The plaintiff must persuade the court in a (b)(3) that the questions of law or fact

    common to the members of the classpredominate over any questions affecting only individual

    members, and that a class action is superiorto other available methods for the fair and efficient

    94 FED.R.CIV.P 23(a)(3).

    95 FED.R.CIV.P 23(a)(4).

    96

    Debra Lyn Bassett, When Reform is Not Enough: Assuring More Than Merely Adequate Representation in

    Class Actions, 38 GA.L.REV. 927, 940 (footnotes omitted).

    97See FED.R.CIV.P. 23(b)(1)-(3).

    98See Sandrik, supra note 6, at fns. 78-79, for an explanation why these first two actions are not applicable in class

    actions suits involving promissory fraud.

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    adjudication of the controversy.99

    Thus, the (b)(3) action invokes two separate questions and

    analyses: do the questions common to the class predominate over the individualized issues, and

    is a (b)(3) class action the best form of litigation to settle the matter at hand?

    It is important to note here that these requirements are never easy to prove, and much less

    so when an action of fraud, or a misrepresentation of sorts, is involved. In fact, most suits

    involving the common law action of fraud fail at the prerequisite analysis of commonality and

    typicality.100 This is due to the variance of promises that are made to the injured persons, and

    consequently, the individualized reliance and damages that result. When the court is presented

    with such factual differences, they most often decline to certify the class action because the

    individual inquiry would be too much to handle in such an action.101

    However, with promissory fraud, since the reliance occurs when the promise is made and

    then accepted by the individual the same individualization does not occur. In other words, the

    reliance is implied by the acceptance of the promise, and, accordingly, every individuals factual

    situation is the same. This is exactly the same with bullshit promises. The consumer is relying on

    the credit-card company in its assertions to subject itself to the norms and consequences of

    promisesand every consumer does this by entering into the standard-form agreement. To be

    sure, the initial terms of these agreements can vary a great deal. But the key clause in these

    cases, the clause that makes the offer a bullshit promise, is the clause that allows the drafting

    party to change the terms of the contract at will, and these are likely to be substantially similar.

    99

    FED.R.CIV.P. 23(b)(3) (emphasis added).

    100See, e.g., Kelley v. Galveston Autoplex, 196 F.R.D. 471 (S.D. Tex. 2000) (failing to meet requirement of

    commonality and typicality because every single transaction was different than the next).

    101See, e.g., Gunnells v. Healthplan Services, Inc., 348 F.3d 417, 434 (4th Cir. 2003) (decertifying the class action

    due to the fact that considerable individual inquiry would be required making the claim unmanageable).

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    There are still some hurdles to get over to get a class action certified, such as the damages

    analysis. Although the nature of the harm may be substantially the same in many cases

    reliance on a bullshit promise often the result of that reliance can vary a great deal, with some

    parties suffering much more harm than others. In response, the class counsel for the plaintiffs

    may wish to use the increasingly common economic-tort strategy.102 The economic-tort strategy

    has two parts: first, the attorney seeks to characterize the misconduct and injury as occurring

    before individual events have differentiated members of the plaintiff class from one another,103

    and second, the attorney will seek to avoid any calculation of individualized damages by

    employing expert economic testimony to quantify and assign a dollar value to the harms and

    any variation in those harms.104

    This two-part strategy is important to utilize here because as explained above bullshit

    promises are a type of promissory fraud, an economic tort. Thus, class counsel for the plaintiffs

    would need to bring a suit, involving forty or more persons, where some common injury of fact

    or law has occurred. This could be something as simple as every person in Florida who signed up

    for a new credit card that promised a five percent fixed interest rate, but some months later

    changed the five percent to the default rate, thirty percent. All of the Florida residents who

    opened this credit card suffered the same exact injury at the same momentupon acceptance of

    the credit card and the terms and agreements, including the (likely hidden) clause that gives the

    credit-card company the right to change terms as it wishes. Hence, the first part of the economic-

    tort strategy has already been put to use: the injury is characterized before each Florida resident

    102See Sandrik, supra note 6, at 213.

    103 Roin & Monsour, at 975.

    104Id.

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    made purchases and was subject to fines in accordance to the interest rate. Simply put, the

    common injury was that every individual in the class relied on the companys promise of a

    particular course of performancea five percent fixed interest rate. A similar strategy could be

    used when companies create new fees, or new triggers for old fees, especially for existing

    balances.

    In the second step, the class counsel for the plaintiffs will then seek to avoid any

    calculation of the damages that occurred by bringing in expert testimony to establish a fair

    amount the company must pay to the entire class. This avoids the individual inquiry that a court

    will not want to handle, and instead leaves the dividing of the sums to the attorney. In this

    manner, the class action could become a vehicle to address the claims of a fairly disparate group

    of consumers. Thus, with the adoption of very modest reforms to the doctrine of promissory

    fraud, plaintiffs can effectively address bullshit promises by bringing a two-step, economic-tort

    class action.

    VII. CONCLUSION

    In this essay we have identified a growing problem in contract law, the use of bullshit

    promises. By carefully crafting standard-form agreements companies have found a way to have

    it both ways. They hold themselves out as engaging in the practice of promising by seeming to

    commit themselves to a course of action in exchange for a consumer doing the same. But in fact

    they are careful not to commit themselves to any course of action at all. In many cases this is no

    doubt not because they intend to defraud the consumer by not doing as they have promised.

    Rather, it is because they simply want the option to do whatever they wish later on, whether it be

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    the advertised performance or something else. Such practices may not be lying, and they almost

    certainly are not actionable under promissory fraud as currently applied, but they are insincere.

    They allow the promisor to make offers while remaining indifferent (at least at the moment of

    promising) as to the likelihood that it will carry them out, and that indifference is the essence of

    bullshit.

    While a legislative response to these practices may be appropriate, we have suggested

    some minor reforms in both contract law and tort law that we think will address the phenomenon

    quite well. We have also explained how the vehicle of a class action, if available to a consumer

    at all, should be able to address the problem once the appropriate doctrinal adjustments have

    been made. But if the reader is not convinced of the efficacy of these reforms we welcome

    suggestions. At the very least, we need to recognize the problem these insincere promises

    represent and begin to discuss appropriate responses.