Promising Justice: Contract (as) Social Responsibility
52 Pages Posted: 3 Jun 2019 Last revised: 29 Dec 2019
Date Written: March 3, 2019
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.
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