Subversion At The Margin

After teaching Contracts for nearly 15 years I've gradually come more to question the extent of its place in contemporary American life. Regardless of our theoretical justification for contract law--vindication of personal autonomy or increasing net social welfare--the increasing depth of penetration of contract into our lives leads me to be more easily convinced of the warrant for doctrines like unconscionability that, so to speak, upset the apple cart.

You can read a review of a book that gets where I'm heading here. Arlie Russell Hochschild's The Outsourced Self: Intimate Life in Market Times (2012) observes that we've moved from being objects of contract to its subjects. Contract is less a tool by which the self achieves its aims than a substitute for the self. "The more the market is the main game in town, the more hooked we get on what it sells, and the more convinced that paid expertise is what we lack and an even larger service mall is the only way to go.” From needs, to desires, to the most intimate decisions of our lives, our decisions are no longer found within the self formed as part of a community. Or, as the reviewer puts it, "Choices that used to be made based on communities of family, neighborhood or work are now being outsourced to 'consultants' in everything from clothes and style to baby names."

What has this to do with teaching Contracts? With the luxury of two three-credit semesters I've always taken the opportunity to explore the the why of contract law. Where does it fit and where should it fit in society? This is a fertile field of class discussion perhaps in part because of Regent's religious mission. Over the years, American Evangelicals, who make up a substantial portion of Regent's students, appear to have become slightly more skeptical of identifying market economics with the Christian gospel. Am I
starting to sound like Wendell Berry?

I hope no one misunderstands my expressions of discontent with the place of my field of teaching in American society as a suggestion that we replace contract law with central planning. Things could be worse. Far worse. Yet to the extent we permit limited subversions of the regime of private ordering, the law can show that values in addition to autonomy and welfare are important.

Comments

[Matt]

I wonder two things:

1) Is it in fact true that a large number of people make use of "consultants" (whatever that comes to here- the idea sounds like paid advisers) in picking thinking "everything from clothes and style to baby names"? You can count me as extremely skeptical that this is common, for any real sense of "consultants". (Perhaps this shows me to be even more cut off from main-stream American life than I think, but I suspect it's rather an exaggeration, a serious equivocation on "consultant", or an unjustified extrapolation from some bad "reality" tv shows.)

2) Is there any reason to think that advice from one's "communities of family, neighborhood or work" are more authentic or good or something else desirable than others? I'll admit to finding the input of these groups to often be oppressive and unwanted, and the view that they are particularly good to be overly romantic. (The input of one's neighbor's or one's work on the choice of clothes or baby names seems particularly dubious to me!)

[Trussell]

I love the "No Contracts" signs that some cell phone dealers have above their stores. Those signs, plus a heavy dose of Stewart Macaulay, should cause us all to be more than a bit skeptical about how and why we emphasize contracts as we do.