Redefining Consent to Contract
Abstract
This Article examines contractual consent through an epistemic lens, bridging contract law scholarship and epistemic theory. It demonstrates that judicial decisions frequently misunderstand or deny marginalized parties’ experiences of consent. This exclusion, the Article argues, constitutes epistemic injustice, specifically hermeneutical injustice, as these parties are wronged as knowers and excluded from shaping the legal meaning of consent.
This claim is illustrated through three case studies: an agricultural employment agreement, a prenuptial agreement, and an online standard form consumer agreement.
Finally, the Article proposes integrating marginalized voices to redefine consent, ensuring a more inclusive framework for this foundational contractual concept.
Interpreting Intergovernmental Contracts (Liberally)
Abstract
Intergovernmental contracts are vital to public governance and administration in the United States. Yet contract law theorists have largely ignored intergovernmental contracts, and constitutional and administrative law scholars have only begun to incorporate them into theories of the separation of powers and federalism. Judges, by contrast, cannot ignore intergovernmental contracts, even as they struggle to decide fundamental questions about how to interpret them. In recent years, the U.S. Supreme Court has said that contract law controls the interpretation of various types of intergovernmental contracts. In this Article, we take seriously the possibility that contract law and theory provide guidance to the interpretation of intergovernmental contracts. We offer a taxonomy of the types of intergovernmental contracts and a methodology for interpreting them that draws on liberal contract theory, which insists that the value of autonomy informs contract law’s doctrines and rules, including its rules of interpretation. Interpreting intergovernmental contracts liberally yields overarching maxims and a set of critical guidelines for principled judicial interpretation of these important contracts. While our methodology is not designed to resolve all the complications, including those that arise from the constitutional law of separation of powers and federalism, we do show that if the private law of contracts is to be taken seriously, as the Court has said it should be, then existing jurisprudence needs reform.