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

Avery W. Katz, Columbia Law School


This paper comments on Daniel Keating's article "Exploring the Battle of the Forms in Action." In that article, Keating reports on a survey in which he interviewed a sample of 25 representatives of companies that buy and sell goods, and asked them a variety of questions about their form-contracting practices. On the basis of these interviews, Keating concludes 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. In this paper, I argue 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 subject, than he acknowledges. While Keating is correct that this "hands-on" method can 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 researcher's or interviewee's prior beliefs than to disconfirm them, or to corroborate conventional wisdom. Thus I would take his findings with some 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.