David A Hoffman and Cathy Hwang, The Social Cost of Contract, Columbia Law Review (forthcoming), available at SSRN. Almost ninety years ago, Morris Cohen taught us that the primary role of contract law is to place the enforcement mechanism of the state at the service of one party against the other (Cohen 1933, pp 585-86; see also Zamir 1997, pp 1777-78). Since enforcement of contracts entails the exercise of governmental powers and the use of public resources, contract law (like the rest of private law) is part of public law. This means that whatever the role played by freedom of contract, it cannot be the only principle that motivates the law … (more)
[Eyal Zamir, JOTWELL, 10 November]
First posted 2020-11-10 14:35:46
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