Power and Social Justice in Contract Law
Private agreements structure our personal, professional, and public lives. Yet almost all of the most significant contracts governing our lives lack meaningful choice. From the “gigification” of employment to the terms and conditions that govern daily interactions and activities online, much of modern contracting has evolved into “captive contracting”. At the same time that contract formation has become less free, the enforcement of these agreements has shifted out of courts and into private domains through forced arbitration and class-action waivers. These twin trends raise profound social justice concerns. In a deeply unequal society, the dynamics of private bargaining power can significantly impact individuals’ life prospects, prompting urgent questions about how contract law addresses — or overlooks — issues of fairness and justice.
This seminar critically examines how contract law responds to these challenges. In the first half, we explore theoretical frameworks and perspectives to evaluate the intersection of social justice and contract law. In the second half, we delve into three key areas — contract formation and boilerplate, privity, and remedies for breach — to assess how courts navigate the tension between private agreements and public policy. Students will apply these frameworks to analyze a contested contractual arrangement of their choice, such as arbitration clauses, noncompetes, liability waivers, clickwrap agreements, cohabitation contracts, or gig economy terms.