Private Law Theory

ABSTRACT
This chapter surveys the theoretical challenges raised by unfairness in contract using examples from the common law of contract, work law, consumer law, anti-discrimination law, and procedure. It is not obvious that a contract, or part of a contract, is the sort of thing that can be fair or unfair, but there is much law that seems best understood as responding to various kinds of unfairness. The intuition of unfairness in contract always faces this rhetorical challenge: how can an arrangement freely and equally chosen by the parties be unfair to those parties? We describe this challenge and then taxonomize responses to it along two bifurcations.

First, we deal with unfairness as failures of contract, that is situations where some basic assumption of the contracting parties or process does not hold. Most of consumer law is theorized, when it is theorized at all, in this way: as responding to a series of contracting failures due to information deficits and other imbalances.

Then, we consider the broader area of competing visions of fairness that sometimes conflict with contract. Work law and anti-discrimination law fit here. We divide these concerns into the nonce categories of relational and systemic, because some of these visions of fairness seem to be about fairness between the parties while others seem to implicate broader concerns.

Finally, we will collapse our categories, suggest that they are inevitably intermingled. The interconnexion of relational and systemic concerns sets a core task for contract theory. The challenge to regulating unfairness in contract remains ungrounded unless contract as it exists is justified as part of a broader scheme of justice, a theoretical task that is begun but not yet complete.

Radin, Margaret Jane and Enman-Beech, John, The Regulation of Unfairness in Contract (August 28, 2023) in Mindy Chen-Wishart and Prince Saprai, eds, Research Handbook on the Philosophy of Contract Law, forthcoming.