Teaching Assistants: Jonathan Lipson on Using Contracts to Promote Social Justice
But a lot of actual contracting is what Radin calls World B contracting. The B stands for boilerplate, but the main thing is that, in World B contracts, one party dictates terms to the other on a take-it-or-leave-it basis. Parties may consent to core terms, but they have no meaningful opportunity to consent to boilerplate terms. For the most part, the bar tests students on World A contracts, but as practicing attorneys (and as conumers), they will be operating mostly in World B.
For me, teaching students the basics of contracts involves deriving rules for World A contracting from the case method, from problems, and by working through basic drafting problems. But if my students are going to be drafting boilerplate contracts in commercial contracts, I may not only be training them on how to spot traps for the unwary but how to lay traps for the unwary.
Johathan Lipson (pictured above) offers an alternative use of contracts in Promising Justice: Contract (As) Social Responsibility, 2019 Wisc. L. Rev. 1109. Lipson writes of KSR, distinguishing contractual social responsibility from its “weaker relative,” corporate responsibility (CSR), and yet he acknowledges that KSR is no panacea and remains more in the realm of normative soft law than binding law. For one thing, courts will have a hard time measuring damages arising from the breach of a KSR term.
Lipson provides a range of examples of KSR: from the Beatles’ 1965 contractual provision that they would not perform in front of segregated audience to General Motors standard supply-chain agreement that prohibits its partners from employing child- or involuntary labor.
Lipson makes three points about KSR. First, it is a response to what he terms “vertical deconstruction,” which is basically the breakdown of the communities and relationships that used to create environments for reasonable work conditions and reasonable conditions of commercial exchange. KSR steps into the breach and becomes an alternative vehicle for the dissemination of social norms.
Second, KSR contributes to the scholarly agenda of providing answers to Stewart Macauley’s insights into the under-enforcement or unenforceability of relational contracts. Other scholars have pointed out that unenforceable terms in relational contracts may serve educational, governance, or risk-sharing goals. KSR serves similar purposes with respect to social or political matters such as labor conditions or environmental safety.
Finally, Lipson cautions against expecting KSR to cure all of the ills associated with modern contracting. At best, KSR is a supplement to CSR, but its efficacy and its range should not be overstated.
I will endeavor to keep Lipson’s work in mind. Students should be encouraged to think about not only how to use contracts to pursue the best interests of their clients but also to think about how to use contracts to promote social justice.