Eric A. Zacks of Wayne State has written Shame, Regret, and Contract Design, forthcoming in Marquette Law Review. Here is the abstract:
This Article examines whether contract design can influence the post-formation behavior of the party that did not prepare the contract. Repeat players that utilize the same contract for many transactions, as is the case for many consumer transactions, would be significantly advantaged if this were true. This Article suggests that several contractual features can be explained in terms of their ability to exploit the cognitive biases of, and to induce particular “advantageous” emotions from, the other party after the contract has been executed. These features may include arbitration provisions, disclosures in capital letter or bold face type, “reliance” language, and language framing possible losses in particular ways. Contracts can encourage us to feel shame, to blame ourselves, to believe that contracts are sacred promises that should be specifically performed, to utilize faulty judgment heuristics when determining contract costs, and to rely on misperceived social norms with respect to challenging or breaching contracts. This may influence us not to breach or challenge an otherwise uneconomical, unconscionable, or illegal contract. Consequently, contract preparers may be able to enjoy the benefits of promises that often would not be realized if the other contracting party were profit-maximizing like the contract preparer.