Starting to see reports of Covid-19 "compacts" or "contracts" issued by institutions and purporting to bind students, faculty, players, employees.

Via @hesterblum, here is PSU's.

https://studentaffairs.psu.edu/sites/default/files/CovidCompact_Aug20.pdf

I continue to puzzle on such documents' form and function.

Thread.

Let's start with form.

This is not a contract. It has the trappings, but not the soul, of promises for which the law will give remedies.

Consider two key provisions.

Neither seeks assent nor documents it.

There is no new consideration offered.

The university extends no new promises.

Indeed, often these sorts of documents are being rolled out after the original contracts permitting residence or taking tuition were signed.

And yet, the document is-weirdly-formal *looking.* It smells contractual. It uses the expression "compact," which is not one that normal people (excepting international lawyers) use.

It was obviously drafted by a lawyer, or at least with many lawyerly edits.

As to function, I understand that the twitter hive-mind is horrified that folks are being sent these documents, but I think that the collective ire is misdirected.

What do these documents actually do?

The best functional case is that they are a rider wrapped into an actual contract -- a dorm room agreement, or maybe even an employee contract (if that contract has a hook to sit on).

Presumably such actual contracts say "don't break the rules or X"

..and these are the rules.

But actually the university probably already had discretion to expel students under all kinds of general provisions about respecting others.

The same is true for staff. I doubt that this document adds much to what is already a structure stacked in the firm's favor.

Even worse (?), the PSU compact is mostly hortatory: bike, don't take public transit, if you can; cooperate with contract tracing "candidly"; follow our *guidance*.

Those are not exactly the precise bright line rules that evicted students' lawyers would fear.

Now, I grant that the risk wavier might have some effect on the university's tort liability.

But, I remain very, very skeptical that such liability is a real threat, or that waivers would matter at all to the disposition of cases.

Imagine that PSU recklessly lets its athletic teams contaminate the campus and someone dies.

They are going to avoid precisely zero liability with this paragraph.

So what is going on?

It is valuable to try to adopt a charitable view.

Many of these covid statements aren't about managing litigation risk.

They probably weren't demanded by run-amok insurers.

Rather, they are attempts to actually reduce disease risk.

The best evidence for this position is a snippet I tweeted earlier, snarkily, but have now reconsidered.

I had tweeted that the below demonstrated an incompletely human drafter.

But actually what if the point is that they really want folks to read the document and to try, on the margin, to cooperate.

As I've written at length elsewhere, firms trying to actually communicate with their customers in legal documents use language *just like this*.

Obligatory cite, then come back:

https://lawreview.uchicago.edu/publication/relational-contracts-adhesion

The line that most struck me on a re-read was this one -- it comes closest to expressing a real emotion.

It's the tenuousness of hope -- the sense that this whole thing is walk over a high space with no net.

Is it possible that some of the 10,000 compacts you'll see in the next few weeks are really about managing legal risk?

Sure!

But I don't think that well-counseled firms would see them as particularly effective at that task.

So I think we should take this on its face.

A well-meaning attempt to get people to pay attention and to exercise personal responsibility.

The problem is that it's a bad attempt, infused by too much law for its own good.

It's neither clear enough, nor informal enough, nor relational enough, to really grab you.

The lawyers are ruining a good thing.

Surely, PSU (and other colleges) can do better. Use video. If you can't, press on other college traditions to exhort.

If you've seen good examples of institutions putting out strong communications that seek to motivate risk mitigation (while also, as necessary disclaiming liability) I'd love to see them.