Public Responsibilities Beyond Consent: Rethinking Contract Theory
This Article argues for a vital new pathway to the regulation of contracts in American law. It proposes a theory of public responsibility to safeguard public values that are unprotected by the reciprocal consent of private parties to contract. Challenging the conception of contracts-as-property-rights, it posits that such responsibilities are necessary to redress public harm that is ordinarily not protected by the exchange of contractual promises. If contract law is to support social justice, it ought to surpass restrictive conceptions of equity that focus wholly on corrective injustice between contracting parties at the expense of public deterrence. If contract regulation is to promote the public good, it ought to transcend limiting theories of consent that reduce public responsibilities to imperfect obligations that are binding in morality, but not in law.