Socializing Contract

The resurgence of wealth inequality and private power in the contemporary world has coincided with a resurgence in governance via contract. Yet, with some notable exceptions, contract theory has greeted this reality with indifference. Nothing like the tumult in the theory of macroeconomics or antitrust or labor regulation has yet rippled through this particular corner of legal thinking. This article is an attempt to disturb the tranquility. Its negative argument is that the two dominant ways of doing contract theory in the contemporary U.S. legal academy—deontologically grounded formalism and economic analysis—serve to “de-socialize” contract, both in the sense that they articulate social-context-independent logics of voluntary exchange and in the sense that they treat these logics as specialized forms of knowledge insulated from political contestation. At their best, de-socialized versions of contract theory do not equip themselves with the tools necessary to make sense of the many weaponizations of contract in the contemporary world (e.g. non-compete agreements, arbitration clauses, insulation of responsibility for supply chains via outsourcing). At their worst, they serve as a moral laundering service for various forms of exploitation and power consolidation. This article also outlines the basis for a socialized notion of contract that accounts for the way voluntary exchanges are situated in ongoing processes of social contestation. Doing so requires drawing on the marginalized critical realist tradition in legal scholarship and on pragmatic approaches to moral and social theorizing that provide tools to situate individual action and bilateral coordination within broader social contexts