I do understand the logic behind not allowing just any old contract to be legally binding. The reductio ad absurdum is the EULA that says “By opening this product, you agree not to sue us if this product malfunctions and hurts you, not to give us any negative feedback, and not to object if this product monitors everything you do and reports it back to us.” And people never read those things, so it basically means companies can be above whatever laws they choose.
The other reductio is the job offer with the contract saying “By accepting this job, you agree to work whatever hours we tell you without overtime, and you can’t raise sexual harassment complaints, and you’re bound by a non-compete agreement not to work in this industry again if we fire you.” That’s basically selling yourself into slavery, and although in theory the problem should be limited by people being unwilling to sign such a deal, in practice, the job market.
I do understand the logic, really. But restrictions on contracts scare me, and they should scare you too.
It’s easy to say things like “Well, in those examples above, contracts are a tool used by the powerful to oppress the powerless. And it seems like a general case that the powerful will have lots of ability to coerce the powerless into signing unfair contracts, so in general banning forms of voluntary contract should always be a progressive, pro-egalitarian position.” And a lot of progressive egalitarians do say this.
So let me talk about my f@#king life.
Every day I get to evaluate new psychiatric patients in the emergency room. A lot of them are there for attempted suicide. They say they’re depressed. They say they’re not getting any treatment for their depression. I gingerly bring up that they might want to stay a couple of days in the psych unit for treatment.
“Oh, no, I could never do that. My sainted mother’s in the hospital on her death bed now, and I’m the only family she has left, and if I’m not there with her when she goes it would haunt me forever. And my kid has his Little League championships this evening, and it’s the only time he’s ever won something, and he specifically told me if I’m not there cheering him on he’ll never forgive me.”
I gingerly bring up that, actually, the law requires that if someone is a danger to themselves or others, I have to commit them to the psychiatric hospital, whether it is convenient for them or not.
“What? Me? A danger? No! I was just really tired, and high on drugs, and my car broke down, and I don’t have any money to fix it, and I saw some pills, and I impulsively did something stupid. I’ll never do it again! Honest! If you give me the name of an outpatient psychiatrist, I’ll go there every day! Twice a day! I promise!”
I gingerly bring up that this isn’t really a debate, that they’re squarely in the “very high risk” category, and all of the appropriate rules and procedures say that they need to spend a little while in the hospital and get treatment. That sometimes getting treatment for unremitting life-ruining totally unmanaged depression is a good thing.
“You don’t understand. It’s not just my mother and the Little League game. I’ve already missed a couple days of work this month, and my boss says if I miss any more I’m going to be fired, and there’s no way I can find another job in this economy, and without that money me and my kids will lose our house. And I’m in the middle of a divorce and I have to be at the court in two days for the hearing or else my sadistic abusive ex will get custody of the kids.”
I gingerly bring up that no, really, this isn’t a debate, there are rules here.
“You don’t understand! I have to transport my adopted daughter’s boyfriend to safety. This man’s done no wrong, and he needs a doctor’s care. Another hour yet, and then I’m yours, and all our debts are paid.”
I’m not heartless. I really want to respect people’s autonomy. I obviously want to help people stay alive long enough to get better, but I don’t really have any personal investment in maintaining the suicide rate at exactly zero if the human costs of doing so are too high. I just want to do more good for my patients than harm. So finally I give up and go ask a superior, and they always say the same thing. Commit.
Suppose that I guess this patient’s risk of another suicide attempt in the next year is something like 15%. Suppose that 1/5 of those attempts will result in serious injury or death. So there’s a 3% one-year risk of suicide-related injury or death for this guy.
Suppose that if a lawyer comes to a person who has just suffered a suicide-related injury, or the family of a person who has just completed suicide, and offers them a free $500,000 at no cost to them, at least 10% of people will take it.
So if 3% of patients get hurt, and 10% of the ones who get hurt sue, then one in every three hundred patients like this whom I discharge is going to sue me. And win, because it’s my legal duty to assess a patient’s safety and treat if unsafe. And if I take an obviously suicidal patient and send them home untreated, no court in the world is going to rule in my favor.
I see about a hundred of these people a year, so that’s a lost lawsuit about every three years. Depending on how bad the court loss is, and how good my malpractice insurance is, I might not be completely ruined by a single lawsuit. I might get to keep my house, keep the clothes on my back, keep my job, keep my medical license. Then again, I might not. And another lawsuit every three years? Good frickin’ luck.
This is not a theoretical possibility. The doctors older and more experienced than I am have seen it happen. A guy begs to be allowed to go, says he’s not suicidal at all, everything will be fine. The doctor goes soft and lets him. He thanks the doctor profusely, says she can’t possibly understand how much it means to him. The next month he shoots himself and is permanently crippled. A lawyer informs him he can get $500,000 by suing the doctor for breach of duty since she let him go home even though he was clearly suicidal, and the doctor doesn’t have a leg to stand on. There’s the guy on the stand, saying “She knew I was suicidal, I told her all about it, and she did nothing!”
(Doctor’s attorney: “But didn’t you specifically ask not be treated?” Patient: “Yes, but I wasn’t in my right mind. Maybe the fact that I was undergoing psychiatric evaluation just after a suicide attempt should have clued you in!“)
I want to do what’s right for my patients. But I also want to follow the law. And I also want to avoid losing my livelihood and everything I have. There have been times I may have slightly bent certain standards, when the moral pull was so strong I wasn’t going to be able to sleep at night otherwise. But on the main, I don’t want to last only three years in the business. That’s not good for me, and it’s not good for patients who I might otherwise be able to help.
The progressive says: “This insistence on the sanctity of voluntary contracts only benefits privileged oppressors. It allows them to force poor innocent victims to sign away their rights to protest ill treatment.”
And so it does. I’m clearly the privileged oppressor here. And I would really like to be able to ask my patients to sign a contract saying they waive their rights to sue me if things go wrong. Actually, I want to be even more evil than that. I want to ask my patients to sign a contract waiving their rights to sue me, and threaten to commit them to hospital against their will if they refuse.
And yet this would be the most powerful method possible of protecting patient autonomy. I would love to be able to bend the rules for a patient who has some really good reason not to want to go to hospital, whether it’s their dying mother or their demanding boss or even just that they can’t afford it (did you know they can force you to pay for your involuntary commitments? What a country!) I would love to be able to tell them “Well, as your psychiatrist I strongly recommend hospitalization, but you’re in your right mind, you’ve got decision making capacity, and hey, it’s your life.” But the only way I can do this without pretty much ensuring I’m going to get bitten sooner or later is if they can waive their rights to take advantage of me.
This situation kinda maps on to the Prisoner’s Dilemma, you know. We can both cooperate – I send him home, he doesn’t sue me. I can cooperate while he defects – I send him home, then he sues me. I can pre-emptively defect against him – commit him to hospital.
When you prevent people from making deals to cooperate with each other in Prisoner’s Dilemmas, terrible things happen. It means that, unless one or another party is a martyr, they’re both going to end up defecting on each other. And when both parties defect on each other, that’s no big deal for the more powerful party, but a disaster for the powerless oppressed people we’re trying to help. When we end up in mutual defection, I don’t have to deal with anything worse than the patient yelling at me while I write it down on my little pad and try to sound sympathetic. The patient has to miss their son’s Little League championship game and then he never talks to them again.
(ninety percent of sob stories are false, but ten percent are true).
I know it sounds weird to insist on a right to waive your rights. Isn’t that more of an anti-right, so to speak? But come on, read your Schelling. In multiplayer games, the ability to limit your options can provide a decisive advantage. If you’re playing Chicken, the winning strategy is to conspicuously break your steering wheel so your opponent knows you can’t turn even if you want to. If you’re playing global thermonuclear war, the winning strategy is to conspicuously remove your ability not to retaliate, using something like the Dead Hand system. Waiving your right to steer, waiving your right not to nuke, these are winning strategies; whoever can’t do them has been artificially handicapped.
I do understand the logic behind not allowing just any old contract to be legally binding. But I also think that the right to waive your rights is a right. We understand that there are cases in which we can violate rights; there are a whole host of exceptions to the right of free speech. But it requires a good reason, and you had better realize you’re treading on dangerous ground.