ABSTRACT
The conventional set of tools for managing externalities created by private transactions is broad and includes various forms of ex ante regulation and ex post tort liability. While contract law is not often included in that set, some scholars have recently suggested that it should be. Most prominent is the suggestion that courts should – in some circumstances – reform and reinterpret contracts to discourage behavior that creates negative public externalities. This essay argues that the costs inherent in adapting contract law to this new public role outweigh any likely benefits.
We argue that the judicial administration of contract law is a particularly ill-suited tool for addressing systemic public problems, especially in times of crisis. Compared to other legal institutions, a court deciding a contract dispute is at a disadvantage in developing and implementing public policy. The deficiencies of courts in this context include …
Casey, Anthony Joseph and Niblett, Anthony, The Limits of Public Contract Law (August 5, 2021). Law and Contemporary Problems, forthcoming.
First posted 2021-12-21 10:00:30
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