Jonathan Lipson, ‘Promising Justice: Contract (as) Social Responsibility’

ABSTRACT
Contracts in a variety of contexts – from multinational supply chain agreements to movie-production deals – increasingly include promises on such ‘social responsibility’ matters as human trafficking, environmental sustainability, and socio-demographic diversity. These terms literally promise justice. Can they deliver? This paper makes three claims about the use of contract to achieve social responsibility (which I abbreviate ‘KSR’). First, KSR can be seen as a response to ‘vertical deconstruction’, the erosion of intra-firm and social orders that historically generated and transmitted non-commercial social norms. Second, as such, KSR terms will be legally un(der)-enforceable: Like better-studied relational contracts, KSR will blend enforceable and unenforceable terms to achieve governance, risk-sharing, and educative goals. Third, although KSR may be more effective than more popular mechanisms, in particular corporate social responsibility, KSR is not a panacea, and presents risks of cooptation and fragmentation often associated with soft-law regimes.

Lipson, Jonathan C, Promising Justice: Contract (as) Social Responsibility (December 23, 2019). Wisconsin Law Review, forthcoming.

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