Enforcing the Contract at All (Social) Costs: The Boundary Between Private Contract Law and the Public Interest

Using the examples posed by the panelists, this Article explores the limitations on the ability of contract law to deal with the protection of third parties and the public. This limitation is manifested in two distinct ways: (1) Commercial contracts are typically enforced without regard to the negative impact they may have on the public; and (2) although some courts appear willing to stretch the bounds of the law to ensure contracts are enforced in commercial contexts, there has been substantially less motivation to enforce contracts for the public good. Accordingly, Part III will discuss the innovative and flexible nature of the common law of contracts as it applies to protecting commercial interests and players and its concomitant insensitivity toward the public interest. Part IV will address the inadequacy of contract law as a means of protecting public and non-economic interests.