Lawyers develop documents whereby people contract to meet what are now their obligations. This seems a very fair arrangement in that people have written down what they have agreed to do, for a consideration, and that social life could not proceed if those undertakings, such as to pay a debt or offer a service, were not promised in writing. Contracts are as old as when contracts were made about whose grain would be sold in the future when the crops in Babylon were reaped. But this well appreciated practice of everyday social life that is best noticed and freshly appreciated through the lens of sociology rather than through the law because law may generate those documents but without exploring the social activities associated with documents other than that they become obligatory. As in most cases with social life, sociology trumps law by dealing with what actually transpires rather than the way things are supposed to happen. To wit, informed consent agreements are, in fac,t neither informed nor agreements, only the products sustained and operated by other social processes.
Basically, what people do with contracts and other documents is trust the people around them for the meaning of the documents that they read even when they can be held legally accountable for what is said in those documents, and so the question arises as to the purpose of the careful drafting of such documents other than to keep lawyers employed, which is certainly a part of the explanation. The truth of the matter is that everyone knows and everybody reassures you that you can disregard the document, and people generally do so as a matter of practicality rather than because they have been intimidated or are following custom. That analysis provides an insight that puts sociology on a very different footing than does its grounding in either Marx or Durkheim in that Marx would say people sign disadvantageous labor contracts because they have little economic choice and Durkheim would say people sign on the dotted line because they have learned that that is what upstanding people are supposed to do. The case is, rather, that people sign up for what they know are disadvantageous agreements because they are under only social pressure to do so.
I went some years ago for a medical test. The woman at the reception desk at the heart center gave me some stuff to read and sign. It included one of those standard informed consent agreements. I was to understand that the procedure I was to undergo could lead to dizziness, headaches, fainting, and also, though rarely, to a heart attack or death. I said that I did not want to sign the agreement. The woman said that a nurse would explain the procedure to me and I should not sign it before speaking to her. I said that I still would have to sign the agreement to go forward with the test. I was too polite to point out that the nurse was not going to contradict anything in the form but simply tell me I shouldn’t worry about it. Moreover, heart attacks and death might be rare but not so rare as to escape the need for mention. The woman I was talking to, though, did take the bit in her mouth and said that the document was the concoction of lawyers. Lawyers made us do it. Thirty people have this procedure done every day. I was too polite to ask her how many of them had side effects other than death and heart attacks. She probably didn’t know. Did anybody at the hospital check out veterans of the procedure to find out? Could I see that information? But I was not going to get into a debate with her about data and the quality thereof.
Instead, I took the lawyers at their word. They knew what they were talking about and were more candid than doctors might be because they were trying to protect the hospital and so were revealing at least the tip of the iceberg about what goes on with this procedure. Indeed, there was a story in the N YTimes at the time about information withheld from mothers about oxygen therapy for newborns that had a significant risk of leaving the children blind. Arthur Kaplan, the ethicist, said in the article that people disregarded the warnings in consent agreements because lawyers made them too worrisome; I take that to mean that he too thinks you should not believe the words put in front of you. But what I want to know is what else was there about the procedure I was to undergo that I was not being told about. The procedure sounded awful fishy to me if up front they told you about all these side effects. Not exactly a non-invasive diagnostic procedure and so not something to be toyed with unless you absolutely had to. So I didn’t sign the form and went home and left a message with my physician that I hadn’t gone through with the test because it seemed too arduous and he should call me if he wanted me to take the test anyway. In that case, I would have signed a consent agreement that was still intimidating because I trusted in my doctor to know what he was doing. Maybe turning down this diagnostic procedure might have led to my dying an earlier death, but who knew and there is no use living a life of maybes. That is pathetic.
So the bottom line is that people in authority tell you to sign things that are scary or otherwise don’t seem to you wise to sign and that you go along because of the people you trust and the practical consequences of signing or not signing. Not having the heart procedure frustrates getting an accurate diagnosis or just means the diagnosis will take longer because you will have to wait for some other event, like such serious chest pain, so that an angiogram is immediately required, which is what happened to me ten years later, and led to quadruple bypass surgery. And yet I balk at skipping over the literal meaning of what is put in front of me to sign, just as I balk at just answering a judge at a voir dire with what I know she wants to hear rather than take literally her inquiry as to whether I promise to follow her instructions. I can’t promise to do that unless I know what her instructions will be.
To whom are informed consent agreements addressed? What action are the lawyers trying to forestall? First, and there are probably always some of these, there are those who might feel aggrieved that they did suffer one or another of the stipulated symptoms and might decide to sue. The document is saying that you agreed to the procedure and so have no grounds for complaint. But no agreement can stop someone from suing a hospital; all that can happen is that the agreement can be introduced as evidence that the patient had been forewarned, not that the procedure had been correctly carried out or even that the patient understood the significance of what had been signed or whether a procedure with these risks was a good procedure for a hospital to use except under the most dire of circumstances. And a lot of satisfaction there is in knowing that your relatives have a better chance of winning a legal suit when you die if they can demonstrate that a nurse cast doubt on the meaning of what you eventually signed. The stakes are too high for the advisability of the bet to be placed on whether you as a layman can make sense of a legal document. So you rely on professionals and on the idea that forms offered to you in a reception area of a hospital building as imposing as the one in which you are could be a sham.
What the agreements do, whatever the intention of the lawyers who drew them up, is inure the patient to the idea that the discomforts or health emergencies contemplated in the agreement are now legitimate and should not be of concern. If I have a headache, I shouldn’t complain or at least it was to be expected, and if I die, then it was just the breaks, a rare occurrence after all. The agreement is a form of information, a way of training the patient to act as a patient in these circumstances, rather than a deliberative act. What you learn is not the custom of accepting authority, but the role of a patient in your circumstances. Grin and bear the discomfort and the risk.
A second group of people, probably much smaller, are those like me who take documents very literally, treat them as meaning what they say. But we are, to use an old fashioned word, “deviant” in that people will wonder who this annoying strange bird is who takes these documents literally when everyone knows that they are mostly symbolic, a sign of good intentions to inform patients about what might happen to them, rather than really the basis of a transaction: I sign so I can get on with the procedure in exchange for waiving action against the procedure should it go wrong. To do otherwise is not so much to be deviant as to be difficult. It is harder to keep things moving if too many patients ask tedious questions.
The same is true of so much other paperwork that clutters up the modern world, that paperwork also instituted for good legal or regulatory reasons but still getting in the way of speedy transactions that are based on trust and judgment rather than on legal disclosures. Think of a prospectus for a corporation or an audit statement of a corporation’s value or, during the 2007 bond crisis that might have wrecked the economic system. The bond ratings were issued by reputable ratings agencies for derivatives and were clearly fallacious, but that didn’t keep those rating agencies from turning around and judging whether one or another European or American government was handling its finances responsibly. And yet public opinion is correct to blame the people who bought derivatives for their losses rather than blame the ratings agencies. No one can deny that people will exaggerate the advantages of products that they put up for sale, whether stocks and bonds or toasters and air conditioners. If nothing else, people will claim that their products are the best without saying what that means, and no one calls the advocates of those products to account. The consumer is supposed to beware of a product too good to be true—at that price, at any rate. Similarly, a buyer of derivatives is supposed to be financially savvy and so take the statements of rating agencies with a grain of salt—unless, of course, they are cynically using the rating as a selling point, never mind whether it is a lie or a probable lie or not. And in that case they are the co-perpetrators of the fraud and should be equally liable with the ratings agencies. So tangled is this mess of supposedly accountable statement mongering that it is no wonder that people don’t particularly care about what is written on paper.
That fact holds, however, only until people are called to account because of contextual reasons for what the words say. There is a scandal at Enron, and so Jeffrey Skilling was thrown into jail for doing something which seemed legal at the time he was doing it, or couldn’t have been all that illegal because he was, by some accounts, doing something fresh that might therefore avoid then available regulation. So he was found guilty of a charge that was very broad and was later found unconstitutional and he still lingers in jail, like Frank Copperwood, in Theodore Dreiser’s ”The Financier”, did for a while. He too was doing something that was just the other side of the law but had never been prosecuted but was prosecuted in his case because a scapegoat had to be found for politicians using the public till for their own advantage even if they returned the money to the till after having used it for investments. The letter of the law applies only in special circumstances and you never know when that will arise. The rest of the time you just sign the paper and go along with the procedure. You probably won’t die and there might be brouhaha if you do, even a call to correct the “scandal” of inaccurate or poorly administered consent agreements. A major accounting firm went out of business because of the Enron mess. The basic rule that you can skirt the truth comes under pressure and so you are held hostage to the whim of circumstances.
The mortgage foreclosure scandal falls neatly into this view of the nature of written agreements. People knew they were signing agreements that they would require them to pay amounts of money they probably could not pay. But those people trusted the people who told them that this was a good deal, and why let an over-scrupulous reading of an agreement get in the way of having a house. If the person you are dealing with has confidence in the agreement, and he has more knowledge than you do about the way finance works, then it makes sense for you to sign. It is only when the economy goes into the tank that Conservative politicians come down hard on those who took the mortgages for not having been careful enough about consulting the details of the agreements they had signed. That is not the way the economy works, but it works to the advantage of Conservative politicians to get all self righteous about the literal meaning of mortgage agreements.
Private relations also allow for a loose reading of words except when things go really bad. People say things they know are untrue and don’t get called on it because it seems more practicable to let remarks pass than to call people on them, and anyway, life goes more smoothly if people are allowed their special readings of what people say, as I was supposed to accept the special reading of the consent agreement, the reading that said the consent agreement did not mean what it said. Friends are allowed, for example, to exaggerate their virtues and have their weaknesses treated as foibles until you get mad at them and then you perhaps say too much to allow a friendship or other relationship to be repaired. That is what marriage counselors mean when they say that spouses should argue in a way that does not challenge something deep about the other person and so is therefore off limits. Everyone is vulnerable somehow or other to colleagues and friends and relatives. That is just the way it is with life: words can cut deep and so should not be used when they can do so. So what people say to support one another will doubtlessly have to be taken with a grain or more of salt, however heartfelt are the words which are used to declare support. To act otherwise, to expect everything people say to one another to be literally true, is more than unkind. It is mean spirited and a little crazy. Other forms of language, such as the law, therefore follow from common practice rather than are impositions on top of it of a greater clarity that is vouchsafed to people like lawyers who have had special training at calling things what they are. They practice a craft which adds some degree of precision to language but not so much as to get in the way of language doing its job which is, in part, to let things proceed. Much of verbal life is like an informed consent agreement: its meaning honored only in the extreme breach of what everybody allows to get by.