Private Law Theory

ABSTRACT
The state’s role in the sphere of public law is relentlessly discussed and debated. By contrast, the state’s impact and duties in the domain of private law are presumed minimalist, normatively ordering it to keep interventions to exceptional situations. This Chapter uses the vulnerability theory to critique and replace this conventional, bifurcated approach of ‘public’ vs ‘private’ with a more holistic idea the authors call ‘market citizenship’. This new concept highlights the marketplace as a crucial area of social membership and an essential source of human resilience that heavily depends on the state. Thus, when some market actors exploit powers awarded to them via private law to deplete others’ capabilities to cope with life’s challenges, a salient problem arises. This Chapter draws on the vulnerability theory’s emphasis on the state’s duty to ensure equitable resilience allocation to define this harmful behavior as a troubling pattern of ‘resilience drainage’. It asserts that the state has an obligation of the highest order to suppress resilience drainage and protect market citizenship for all. Through an analysis of contract and corporate law, fields of law branded ‘private’, this Chapter re-configures the state’s duties vis-à-vis its members’ interactions with each other in the market domain. Significantly, it also demonstrates the normative power of the vulnerability theory in both general and economic legal analysis and further enhances the theory’s force by calling attention to peer-to-peer acts of resilience drainage as a site demanding the state’s response.

Keren, Hila and Donyets-Kedar, Ronit, Market Citizenship, Resilience Drainage, and the Role of Private Law (September 30, 2023) in Law, Vulnerability, and the Responsive State: Beyond Equality and Liberty (Martha Albertson Fineman and Laura Spitz eds).