Contract Law, Equality and the State

There is a rich and diverse literature on contract law and equality, discussing whether contract law should advance social equality and if so how should contract law achieve that. However, this literature has yet to address the State’s role in combating social inequality through contract law. Filling this void this Article discusses three strategies the State can and should adopt in promoting social equality, by enforcing contracts, applying contract law doctrines, and regulating and legislating laws as background rules. After mapping these three state powers the Article further explores three test cases: enforcing nonmarital agreements, applying contract defenses in consumer contracts, and enacting the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act that voids mandatory arbitration agreements in sexual harassment and sexual assault cases.

Based on this analysis, the Article concludes that contract law is not purely private, but rather has public aspects; that the State is an important facilitator in promoting equality; and that the State should use its different powers in concert to promote equality.