Under most descriptions, contract law perceives parties as dealing with each other at arm’s length. It assumes the parties seek “to further their economic self-interest,”1 and thus generally does not expect them to assist each other. As Richard Posner once put it in one of his decisions: “Contract law does not require parties to behave altruistically toward each other; it does not proceed on the philosophy that I am my brother’s keeper.”2 Two excellent forthcoming articles offer a compelling challenge to this approach: Sarah Dadush’s Shared Responsibility in American Contract Law and Emily Stolzenberg’s Toward a Private Law of Intimates’ Obligations. I review the pair of articles in tandem to highlight the synergy between their significant contributions to contract law scholarship. While Dadush and Stolzenberg focus on contexts that could not be more distinct, I highly appreciate how they both illuminate the value of collaboration and cooperation in contractual relationships and argue that contract law could and should play a role in advancing them.3 In her article, Dadush analyzes global transactions and complex supply chains at the heart of the market. Stolzenberg, by contrast, zooms in on intimate relationships between cohabitants at the market’s margins. Nevertheless, from those opposing angles, each forcefully emphasizes the collaborative or cooperative dimension of the contractual relationship.
Dadush describes long-term supply transactions as frequently featuring joint ventures in which “it is difficult to discern where one party’s obligations end and the other’s begin.” Thus, she criticizes courts’ tendency to attribute responsibility for breaches of such obligations in a binary fashion—either to one party or the other. Dadush explains that even when courts acknowledge some interconnectedness between the parties’ acts and defaults, finding that defective performance by one of them induced the breach by the other, they still assign responsibility in a monolithic manner—imposing liability exclusively on the first party to breach. Dadush’s novel proposal is that, instead of always holding one party liable, courts should recognize that both parties often contribute to the contract’s failure. Accordingly, they should adopt a default rule of shared responsibility when contracts are breached or otherwise fail. A shift to shared responsibility, she argues, would reflect a legal requirement that parties perform “in a more collaborative manner” and “actively cooperate” with each other to uphold the goals of their joint project without harming third parties.
To demonstrate her arguments, Dadush introduces a hypothetical (yet typical) case study of a long-term relationship between Brand, a powerful global fashion company headquartered in the USA, and Supple, a smaller Bangladeshi garments manufacturer. Requiring the active cooperation that Dadush proposes in such a case would mean that Brand would not be allowed, for example, to unilaterally impose a rushed order for jean shorts on its Bangladeshi counterparty. Doing so—even if allowed under the express terms of the contract—would cause the latter to infringe on its workers’ legal protections. Descriptively, her article shows that, counter to conventional belief, American contract law already demonstrates some willingness “to make the parties share responsibility for the performance of one another’s obligations.” Normatively, however, Dadush cautions that the tendency to hold each party solely responsible for its own obligations encourages opportunistic behavior regardless of consequences while disincentivizing collaboration. Such an approach, she writes, risks “impairing the level of social trust necessary for efficient contracting to occur.”4
Stolzenberg’s analysis of the adjudication of nonmarital intimate obligations similarly points to the undervaluation of collaboration. “Because unmarried partners’ behavior rarely maps onto the arm’s length paradigm,” she states, “courts usually code it as altruistic, and therefore beyond the reach of legal obligations.” While feminist theorists have long criticized this troubling disregard as leading to the marginalization of commitments made in the domestic sphere,5 Stolzenberg adds an important emphasis on what she calls “the concept of cooperation.” Embracing rather than dismissing cooperative patterns of behavior that are common in the intimate arena, she argues, would be beneficial not only for the parties to cohabitation contracts and other agreements that structure personal relationships. It also has the potential to facilitate the development of the law of voluntary obligations, including contract law.
Centering cooperation as Stolzenberg suggests would mean that agreements between intimates should neither be set aside nor construed and enforced as merely promoting the self-interested conduct of the parties. Most directly, such a shift would better protect the parties to those voluntary arrangements. More broadly, it would offer a practical and theoretical opportunity to legally account for and respond to the inevitability of human interdependence. On this view, it is essential to recognize that many projects, both in and outside the market, cannot thrive without the legal support of collaborative and cooperative norms. “Without doctrinal frameworks that look for cooperation,” Stolzenberg cautions, private law—as the domain of interpersonal relationships—may fail to achieve some of its most important goals, from fostering trust to supporting long-term projects and preventing harm and exploitation.
Remarkably, the two independent calls to recognize, incentivize, and expect collaboration and cooperation within contractual relationships also share much when it comes to how to do so. Both authors pay close attention to disputes between the contractual parties, in particular at the breakup of their relationships. They also agree that a pro-collaboration reform is needed—what Dadush calls an “upgrade” and Stolzenberg refers to as “development.”
Dadush highlights the power of the implied duty of good faith, which, as she reminds readers, includes “failure to cooperate in the other party’s performance.” In her words: “Cases involving good faith are shared-responsibility goldmines.” For example, in the Brand v. Supple case study, the American fashion company should be found in breach of its duty when exercising its contractual right to change orders without considering how doing so would push its Bangladeshi supplier to break the law. Yet, as she explains, to foster collaboration more effectively, performance rules such as good faith must be supported by breakup rules that include shared liability, an idea Dadush develops while taking inspiration from the principle of comparative fault in torts.
Stolzenberg’s proposals cover more than contract law and are more general, stating an agnostic approach to which doctrinal solutions are adopted. Nonetheless, she asserts that intimate parties need and deserve “rules of fair play” that equitably distribute the benefits and burdens of their joint ventures when their relationships come to an end. Because current contract law “is maladapted to distribute the fruits of intimates’ cooperation,” Stolzenberg calls on scholars and legal decision makers to develop the missing solutions. At the very minimum, courts should remove “extraordinary barriers to cohabitant contacts.” Still, they should enforce them with an eye to the cooperative assumptions underlying their terms, seeking a fair resolution that reflects those assumptions.
Lastly, Dadush and Stolzenberg’s inspiring articles enrich the literature already emphasizing the public role of private law. In the face of dominant objections to using contract law to foster social goals, this body of work describes the immense impact contract law inevitably has on economic, social, and political conditions beyond the parties’ relationship, calling for interventions to advance justice. Both authors insist that protecting, nay demanding, collaboration, cooperation, and equitable distribution of gains and responsibilities is critical not only for the parties but also for society writ large. Just as supply chain contracts should be used and enforced with care for their impact on workers, communities, and the environment (Dadush), intimate contracts ought to be treated with attention to “society’s interests in close relationships” (Stolzenebrg). Critically, the advantages flowing from centering collaboration are reciprocal. Conceptualizing private actors as interconnected and embedded in society is simultaneously an important task for contract law to fulfill on their behalf and a reform that would make contract law itself a richer, more relevant, and better-justified normative system. In an increasingly individualized and competitive world, Dadush and Stolzenberg’s interventions are invaluable—they carve out a contractual path to supporting pro-social behaviors.
- Melvin A. Eisenberg, Why There Is No Law of Relational Contracts, 94 Nw. U. L. Rev. 805, 808 (2000).
- Original Great Am. Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d 273, 280 (7th Cir. 1992).
- See also Daniel Markovits, Contract and Collaboration, 113 Yale L.J. 1417 (2004).
- Citing George M. Cohen, How Fault Shapes Contract Law, in Fault in American Contract Law 53, at 59 (Omri Ben-Shahar and Ariel Porat Eds., 2010).
- Hila Keren, Feminism and Contract Law, in Research Handbook on Feminist Jurisprudence (Robin West & Cynthia Bowman Eds., 2019).
