I don’t agree much with Duncan Kennedy, but I thought this was an interesting passage, especially the last paragraph:
[T]he doctrine of unequal bargaining power has the appeal that it presupposes that most of the time there is equal bargaining power, so that freedom of contract is the appropriate norm.... It says that so long as the liberals don’t let the idiot conservatives exaggerate, it is possible to make a market system like ours work well. When judges and legislatures have corrected the abuses caused by inequality of bargaining power, everything will be OK....Eliminating inequality of bargaining power, as liberals conceive it, has nothing to do with eliminating factual inequalities. It has no direct reference either to equality in the actual division of transaction surplus between buyer and seller, or to the actual division of social product among the warring groups of civil society. It nonetheless gives a very good feeling....
[This perspective claims] not that people are trying to take things away from one another, because they think they have been unjustly distributed, or that people are destroying themselves by making wrong choices. It’s just that the rules of the game of bargaining have not worked in this particular case, and the outcome is therefore outside automatic legitimation of the bargain principle....
The vagueness of the slogan appeals to two different currents within the larger stream of liberalism. The first is the sense of disenfranchisement of the liberal intelligensia, which sees itself as morally and intellectually superior to the manegerial and plutocratic classes, but relatively impotent by comparison with them. This intelligensia can easily identify with similar complaints from those less privileged. The second is the rhetoric of populism, which claims that factual inequality stems from cheating or biases in the rules of the game, rather than from the game itself. Within this strand, people argue that they and others like them would be richer and more powerful, while the rich and powerful would be less so, if only the “interests” hadn’t perverted the system of individual effort under freedom of contract. Both critiques respond to two fears: the fear of degradation if one were to accept the outcome of the struggle of civil society as representing one’s true worth, and the fear of losing to those below if the rhetoric of equality were to pass beyond form to substantive proposals for leveling.
Duncan Kennedy, Distributive And Paternalist Motives in Contract And Tort Law, with Special Reference to Compulsory Terms And Unequal Bargaining Power, 41 Md. L. Rev. 563, 621-22 (1982).
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