Comment on The Limits of Public Contract Law
In May of 2020, my friends were supposed to get married. Like all organized people, they had a contract for a venue, for catering, for a cake, and for everything else. When they postponed their wedding due to the pandemic, my more humanoid friends went ahead and sent those Instant Pots and Le Creusets. I, however, sent the couple a quick text: “What happened to your deposits? Did you get them back?”
In their excellent article, The Limits of Public Contract Law, Professors Anthony Casey and Anthony Niblett (or as I like to call them, “Anthony2 ”) tackle the question of what to do about contracts and obligations that have been breached as a result of the pandemic. They argue that although courts sometimes reform and reinterpret contracts to limit negative externalities to the public, “the costs inherent in adapting contract law to this new public role outweigh any likely benefits.” It is a true pleasure to comment on this article, which is both well reasoned and a pleasure to read—even though it does disagree with my own article on this topic.
In The Social Cost of Contract, my article on this topic written with Dave Hoffman, we argue that every contract between private parties has a public cost, and every private contract proceeds only when the public acquiesces to the costs it must bear. The public has three ways to intervene in a contract: (1) through legislation, which sets the boundaries for contractable subject matter; (2) by having a seat at the negotiating table directly, usually though some of kind of regulatory body;4 and/or (3) post-hoc contract reformation by the courts.