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Making and Keeping Contracts

Contracts present two basic practical questions: First, what reasons exist for making them; and second, what reasons exist for keeping them. Certainly the question why one must keep one’s contracts (and when one might breach them) belongs to the mainstays of casuistic moral philosophy and legal practice. And it is equally natural, although perhaps a little less familiar, to ask what reasons a society has to promote contractual as opposed to other forms of coordination, such as bureaucratic regulation or the tort system.

Although a sympathetic reconstruction of our contractual practice must answer both questions together, the most familiar existing theories of contract each address only one and neglect the other. The economic theory of contract emphasizes making contracts but contains no independent account of why contracts should be kept; and the harm and will theories of contract emphasize keeping contracts but contain no independent account of why contracts should be made.

These patterns of inattention render existing theories of contract at best incomplete. Moreover, and more dramatically, the reasons for making and for keeping contracts are intertwined, so that the failures of existing theories to address both questions undermines the accounts that these theories propose of the aspect of contractual practice that they do address. This pattern is not surprising; whereas contracts create relations that have value in virtue of binding promisors and promises together, the familiar theories of contract all focus on benefits that contracts provide to the parties to them taken severally.

These pages therefore organize prominent dissatisfactions with existing theories of contract, together with some new objections that they introduce, into a pattern that is more forceful than the sum of its parts. Along the way, they offer support for an alternative theory of contract that I have elsewhere called the collaborative view, which emphasizes the intrinsic value of the contract relation and naturally treats the reasons for making and keeping contracts together, as belonging to a unified moral whole.

Consumerism and Information Privacy: How Upton Sinclair Might Once Again Protect Us From Ourselves (And Why We Should Let Him)

This Note will address the salience of a simple analogy: will privacy law be for the information age what consumer protection law was for the industrial age? At the height of industrialization, the market faced instability caused by a lack of consumer competence, lack of disclosure about product defects, and advancements in technology that exacerbated the market’s flaws. As this Note will show, these same causes of market failure are stirring in today’s economy as well. The modern economy is not one of goods but of information, and although consumers have long been aware that their personal information may have marketing value, the internet has fundamentally changed the scope and depth of information collection, exposing more consumers than ever to injuries that require not just a more comprehensive remedy, but a wholesale change in the level of care for the information industry. Just as the mass-production economy precipitated a wave of reforms in consumer protection, in part thanks to a kick-start by author Upton Sinclair, so too must the mass-information economy adapt. After demonstrating the parallels between the problems of today with those of yesterday, this Note will propose parallel solutions, particularly a consolidation of regulatory power and a new tort for breach of information privacy, the latter of which draws its inspiration from general products liability. These proposals show that rather than reinvent the wheel, modern lawmakers can (and should) answer today’s problems with lessons from the last century.

Eliminating Corrective Justice

A prominent position in the contemporary debate over the relationship between distributive and corrective justice is that distributive justice is normatively prior to corrective justice. The view eliminates corrective justice as a principle with independent normative force. This Comment in three sections argues that the eliminitivist arguments urged by Kevin Kordana and David Tabachnick against Rawslian conceptions of tort law are unconvincing. Section I argues that nothing intrinsic to Rawlsian methodology bars corrective justice from having independent normative force in tort law. Section II argues that the scope of Rawlsian principles of justice or considerations bearing on the temporal scope of distributive and corrective justice don’t compel the same conclusion. Briefly describing different possible positions on the point of corrective justice, Section III concludes that the relation between distributive and corrective justice can’t be assessed without determining the conceptual elements of corrective justice.

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