On the Use of Practitioner Surveys in Commercial Law Research: Comments on Daniel Keating’s ‘Exploring the Battle of the Forms in Action’

As Daniel Keating’s principal article attests, the literature on U.C.C. section 2-207 and the “battle of the forms” is both vast and intricate. 1 That fact, together with the distinguished array of commentators assembled here, makes it unlikely that I will be able to say anything substantially original on that subject. Accordingly, in the spirit of this overall symposium, I will focus the bulk of my remarks not on the substantive issues raised by Keating’s article, but on his methodology. In particular, I will suggest that Keating’s empirical method – the free-form, oral interview conducted personally by the principal researcher – is less reliable, and more vulnerable to distortion by the biases of the interviewer and respondent, than he acknowledges. While Keating is correct that this “hands-on” method can yield substantial insight and unearth information that could not be found through structured surveys or review of written company records, the information thus generated is not subject to the usual controls provided by those more conventional methods. Absent such controls, the information is much more likely to be used to confirm the interviewer’s or respondent’s prior beliefs than to disconfirm them, or to corroborate conventional wisdom rather than debunk it. Thus, I would take his findings – that commercial actors have adjusted fairly well to the use of standard form contracts, that the battle of the forms is relatively uncommon in practice, and that significant statutory reform is not in order – with skepticism, at least until they have been confirmed by a more traditional empirical study that makes greater use of tabulated quantitative data and that takes greater precautions to screen out interpretative bias.