For part 1 of this series, go here. For part 2 of this series, go here.

5300 words, 28 minutes’ reading time
Trigger warnings: broken promises, failed hookups, orgasm gaps, Immanuel Kant, Murray Rothbard, Richard Epstein, employment

3. Contract and liberal interference
Traditionally, liberals have insisted that property and contractual rights—including those rights exercised within a corporate setting–are expressions of freedom, and so, fall within the zone or space to be protected by the State. Buying, selling, paying, loaning, renting, hiring, firing, investing, gifting, donating and so on are all protected on the side of what we might call the economic agent, as are being bought-from, being sold-to, being paid, being loaned-to, being rented-to, being hired, being fired, having someone invest your money, and so on, on the side of what we might call the economic patient. A third party “interferes” here when agent and patient consent to engage in one of the preceding activities, but the third party steps in to intrude on (hence violate) the agreed-upon terms, putting an impediment in the way of one of the party’s satisfaction of the terms.

Breach of contract occurs when A contracts with B, but (say) A fails to live up to her end of the bargain. Failing to live up to a bargain you’ve made certainly seems like a wrongful thing to do–intuitively, it seems like a broken promise–but recall that to count as a violation of liberal freedom, the wrongful act can’t just be morally wrong, but has to violate freedom. Freedom is non-interference, so ex hypothesi, breach of contract has to involve an interference. This might seem paradoxical at first. Breach of contract is the omission of a promised action, but an omitted action is a non-doing, not an action. Interference, by contrast, is a doing that requires an action. By definition, not doing something doesn’t do anything to anyone, but interfering with them does.  So how can breach of contract be an interference?

The liberal conception of freedom somehow requires that we be able to reduce breach of contract to an interference of some kind. The most common and clearest sort of interference in commercial contexts is theft. When A steals from B, A interferes with B’s rightful use of property that rightfully belongs to B. Though there are deep issues here about how we rightfully acquire property, and how (or how much of) it is rightfully ours, suppose we bracket these difficult issues for now. If so, we can assume that some property rightfully is the holder’s, and take things from there. If breach of contract can be reduced to theft, then breach can be regarded as a rights-violative interference on par with theft, and be placed on the canonical list of liberal interferences alongside theft, thereby solving our problem.

It’s worth getting clear on how exactly the logic works here. For one thing, the proposed reduction of breach to theft is not self-evident (to put it mildly). For another, clarity about the logic of the breach/theft reduction might help clarify applications of contract particular controversial cases, e.g., unconscionable contracts, that is, agreements that have the outward form of a contract but that on substantive moral grounds ought to be nullified. On Pettit’s view, contracts for employment-at-will end up in the latter category.

There are at least two opposing theories of contract in contemporary jurisprudence. It’s probably a bit of an exaggeration to call them “opposed,” since (like liberalism and republicanism themselves) they overlap to some degree. But (like liberalism and republicanism), they also differ in certain significant and relevant respects worth rehearsing. These are what might be called the title-transfer and promissory theories of contracts.(1) The title-transfer theory solves our “reduction of breach to theft” problem in an immediate way, but at the price of creating other problems down the line. The promissory theory avoids the downstream problems of the title-transfer theory, but gives only an indirect, potentially convoluted solution to the reduction problem itself.

The title-transfer theory starts with the fact that we hold some property by right, and that holding property by definition entails a right to transfer it. Suppose that A rightfully holds property x, and B rightfully holds property y. Now suppose that A wants y, and B wants x. So they both have an incentive to make a transfer of property titles. Further, they both have a right to transfer their property: rightfully holding property x or y entails a right to transfer x or y. Suppose now that they mutually decide to transfer, each communicating this fact to the other. Contract is simply the formalized act of transfer, in this case, the formalized act whereby A transfers x to B, while B transfers y to A.

In theory, this solves the reduction problem. When I steal from you, I interfere with your ability to act without interference in the use of a certain owned object. Suppose that, per their agreement, B transfers y to A, but A fails to reciprocate, taking y but holding onto x. If so, A holds property that rightfully belongs (hence de jure ought to belong) to B. That holding, at that time, ceases to be rightful in A’s hands. So A is interfering with B’s use of y, and is thereby guilty of theft, a violation of B’s freedom. Problem solved.

Start the same transaction from scratch. Suppose that A owns x, and B owns y, and each wishes to transfer their current holding to the other. If a third party steps in to pre-empt this transaction, the third party is interfering with a legitimate title-transfer as it takes place. The interference involved is at least intelligibly similar to theft, or perhaps to robbery. At the very least, it’s an interference with something within the transacting agents’ zone of immunized protections. If every contract is a title-transfer, then every breach (or third-party interference) is theft, or at least sufficiently like it to count as a theft-like interference. Once again, problem solved.

Despite this success, there are many problems with the title-transfer theory, the most obviously relevant one being its excessive narrowness. The theory seems tailor-designed to solve the problem at hand: how is breach of contract a liberal interference? But it makes a terrible fit with ordinary intuitions about what contracts involve. There’s no bypassing the fact that a contract seems a lot like a formalized promise, so that what generally applies to promises ought to some degree to apply to contracts. The most obvious implication is that breach of contract seems a species of broken promise. The title-transfer theory not only doesn’t “handle” this fact, but goes out of its way to flout it.

Suppose that I’m a personnel manager for a firm on the West Coast of the United States, and you’re a working- or middle-class job seeker on the East Coast (meaning that you’re currently employed, not impoverished, but not particularly wealthy). You make an application to a job I advertise. I contact you, interview you, and declare you hired for the position. You accept. You ask about moving costs, a place to stay, salary, benefits, job description, duties, lines of supervision, and other job-related details. I send you a 100 page document answering all of your questions. Among the things I say is that the firm will pay your moving costs and give you a rent-free apartment for the first year of your employment, after which it will demand a modest rent. You love it. A document called a “contract” is circulated, which both parties sign.

You go West, and show up on the appointed day, ready to move in, and ready to work. It’s a beautiful West Coast day–all California sunlight, not a hint of Calcutta rain. I then show up and tell you that the firm has changed its mind. Turns out the deal is off. We found someone else for the job. Sorry, we forgot to tell you. As far as the job market is concerned, the song does not remain the same.

What about your having quit your prior job, declined its post-employment benefits, moved out of your old apartment (terminating your lease), incurred substantial moving costs to travel from one coast to the other, and shown up at an apartment building with all of your possessions, only to be rendered homeless, destitute, and jobless? The title-transfer theory says that this is all unfortunate, but you should have planned better, and–given the adverse, potentially character-building experience you’ve just had with destitution and betrayal–perhaps you will in the future. Yes, the West Coast firm broke its various promises to you, and that was arguably a shitty thing to do. But it’s not breach of contract. No property titles were transferred, hence harmed, in the making of this film. Words were uttered. Documents were signed. Moving occurred. But at no time was I, the hiring manager, in possession of any thing of yours, the job seeker, or vice versa. What happened wasn’t theft. So legally, it was nothing.

Many have found the preceding conclusion unpalatable. The wrong involved seems intuitively obvious. The entire transaction seems to have been conducted by the hiring manager in bad faith. Beyond this, it involved a series of false promises, each of which induced the job seeker’s reliance on the West Coast firm. Relying on the hiring manager’s word, the job seeker re-arranged her entire life on the expectation that circumstances on the West Coast would rationally facilitate these changes and make her better off. She had every reason to accept the hiring manager’s word. A third party might reasonably have accused her of paranoia for doubting it. Yet a transaction that appeared to justify large-scale changes in her life, and appeared to promise a better life, ended up through no fault of her own in personal trainwreck. Had the job seeker known what she ended up learning, she would never have entered into the transaction.

Whatever the implications for the theorist’s intended reduction of breaches of contract to theft, it seems deeply unjust to leave the job seeker entirely without legal remedies here. To do so rewards perfidy while punishing rational initiative. It seems like the legalized institutionalization of fraud. Even giving the job-seeker a legal remedy seems weak tea, since, being destitute, jobless, and homeless, it’s unlikely she has the resources to initiate a suit for breach of contract against a large, legally well-fortified firm. And even if she prevailed at law, it’s unlikely that the damages paid would be worth the cost of the suit. Still, giving her a remedy seems better than leaving her high and dry. So we need a theory that permits us to give her a remedy purely on the basis of her justifiable reliance on a series of promises, whether or not the promises involved an actual, de facto transfer of property titles.

This gets us to the promissory theory of contract.(2) On this view, we begin, not with the set of legitimate property holdings, but with the set of legitimate promises. We then subdivide this category so as to distinguish ordinary promises from legally enforceable ones, i.e., those promises that qualify on normative grounds for specifically legal enforcement. Every contract falls into the second category. Breach of contract then becomes the breaking of a promise in a contract of the legally enforceable type. However we draw the lines, employment contracts will fall into this latter category.

The promissory theory yields an easy solution to the “West Coast job offer” example. On the promissory view, the promise made by the West Coast hiring manager was a binding contract at the point when both parties accepted it from their respective physical locations on the West and East Coasts, regardless of any transfer of property that did or didn’t take place at the time (or any time). The most plausible point in the transaction was acceptance of the prior offer of employment. At that point, the promise became binding on both parties. The further promises made (salary, benefits, coverage of moving costs, etc.) were just elaborations of the first. It follows that when the job seeker showed up on the West Coast and was refused, the firm’s breaking of its promise(s) was breach of contract, so that the East Coast job seeker was owed a remedy.

The promissory theory solves the “West Coast job offer” issue, but at the price of failing to solve the “reduction to theft” issue. The liberal theory of rights and government requires breach of contract to be an act of theft. But if no transfers of title took place, it’s not clear how theft could have taken place. If it’s not clear how theft took place, it’s not clear how breach of contract is a liberal interference. So we’re back at square one.

The underlying problem here is the reverse of the problem with the title-transfer theory. The title-transfer theory starts with legitimate property holdings and insists that a contract only binds at the point when the property has been transferred. The promissory theory starts with legitimate promises, then promises (so to speak) to subdivide the set of promises into two species, the ordinary and the enforceable. Yet no promissory theorist (that I know of) has quite delivered on that promise. The promissory theory, then, tends to have an ad hoc account of which promises are binding, oscillating between broad and narrow versions of overbreadth–theft-like breaches plus a narrow set of ordinary promises or theft-like breaches plus an ever-broadening set of ordinary promises. Every legitimate contract is a legitimate promise, but it’s not clear which legitimate promises are not legitimate contracts, or how to draw the line.

There is a potential solution here to at least part of the problem. Liberal legal theorists are big fans of solving problems by “propertizing” previously un-propertized things, including non-physical things. As Richard Epstein puts it:

To tie the law of property to physical things is to ignore the important technological innovations of modern times and thus to risk ‘freezing’ into place an archaic system of property rights that could do palpable damage to the social order. If ever there was an area for social innovation in legal rules, surely it is the property rights spawned by new technology.

This case for recognizing new forms of property rights is so compelling that it seems foolhardy to mount a defense of a legal approach that downplays the claims of modernity.(3)

So one possible solution here is to turn promissory reliance itself into property: when I violate a contract with you, your reliance on my performance of my promise becomes the owned object. I come, in other words, to own your performance of your side of the contract. In that case, your non-performance would become an interference, on par with theft, with my use of that object (your performance). The first person to breach a contract violates the rights of the other, and so, incurs a debt requiring compensation.

This simple version may seem to purchase its simplicity at the price of intelligibility, however. We may well be able to model breach of contract on theft if we think of contractual reliance as property. But it’s puzzling how “reliance” can become an owned object in the first place. Reliance is a mental attitude, not a physical object. An attitude is neither an object nor a paradigm of something that, like real estate, can be bought or sold. So how does reliance become an owned object?

The essential idea, I think, comes from Kant’s classic discussion of contracts in The Metaphysics of Morals (1797), and has to do with the alienation of freedom that takes place in the contractual relation.(4) When A and B contract together, each party causes the other to rely on the other: A causes B to rely on A, and B causes A to rely on B. Now, A and B are free agents. To render themselves caused to rely on another is for each to cede their freedom to the other–in effect, to nullify their own freedom in the interests of something of greater value to them than the mere possession of that freedom. Presumably, because our freedom is ours, we can cede it to to others for a consideration and turn it into property.

The act of cession marks a moment of mutual vulnerability. When I permit you to cause me to rely on you, I permit you to take my freedom for something you promise to give me in the future. Likewise the other way around; in contracting with me, you do the same with me. It’s as though in the act of giving you the permission temporarily to take my freedom, I give you a piece of me that I only get back once you deliver to me what you’ve promised me (and vice versa). If you fail to deliver, you still have that piece of me. In failing to return it, you interfere with my expected use of it–that is, you interfere with my expected use of a notional piece of myself that you happen to have. Prior to the bargain, I had it. After the bargain, I cede it. But it remains something of mine that you now have. If you take it and abscond with it, you have something of mine. Since you have it in violation of the terms of our agreement, you have it without right. Put another way, you are interfering with my use of something, my reliance in you, that is mine by right (until you deliver). 

All of this talk of “having a piece of another” may sound a bit too metaphorical or metaphysical. Perhaps we can cash out the metaphors in a more familiar way. Anachronistic as it may sound, contractual reliance is like a pending electronic funds transfer, or maybe less anachronistically, a check written to be cashed or deposited on a specific date: if I transfer $100 to you for 48 hours from now, then 24 hours from now, the $100 is still mine. If you somehow seize it at the 24 hour mark, you interfere with my use of property that is mine, even if the “use” is simply my knowledge that the property was sitting in an electronic transfer in a pending state (but still not yours). It would be theft, after all, if (absent any agreement whatsoever) you broke into my account and “borrowed” $100 only to replace it before I knew it was taken. So it’s theft if you take the $100 before the agreed-upon period, and it’s theft if you break the terms of a contract for $100 of service. 

Now, suppose that two persons agree to an employment arrangement such that A is employed by B, and serves for pay at B’s pleasure. Suppose that they agree at the outset that their contractual arrangement is subject to nullification at will, meaning that it can be terminated by either party (or for that matter, unilaterally by one) with or without cause, and with or without notice. In short, A can terminate B’s employment at will and B can terminate her own employment with A at will. Taken literally, A can fire B whenever she wants, and for whatever reason she desires. Likewise, B can quit whenever she wants, and for whatever reason suits her. Call this arrangement employment-at-will.

Note that the flexibility involved in employment-at-will can suit one party very much to the detriment of the other. If B relies heavily on A for her livelihood, A’s abruptly terminating B can prove extremely disruptive, even dangerous to B’s well-being: B suffers an abrupt, unexpected loss with cascading effects on various aspects of her life. Coming the other way around, if A relies heavily on B’s labor, then B’s abrupt termination can adversely affect the workplace, with cascading effects on the work and on many innocent parties down the line. Though both parties have a property right here, the property right is attenuated to the vanishing point by the at-will arrangement. A comes to have a property right in a job that can vanish at will, and B comes to have a property right in a reliance that can vanish in the same way. 

In some ways, employment-at-will seems the paradigmatic expression of liberalism. Each party to a relationship has maximal freedom both to enter and exit it. It’s tempting to call it a hook-up conception of employment relations. A hook-up is a sexual liaison that takes place at will, with no commitment by either side to anything beyond a one-time sexual connection. A hook-up can continue into something beyond the hook-up, but it need not. It does if both parties want it to; otherwise, not. The point is that each side should be content with, and is presumptively made better off by, the hook-up, full stop. If you and I didn’t have the freedom to hook up, we never would hook up. We would either have to abstain from sex or masturbate while imagining one another’s presence. If every hook-up had to lead to marriage, many hook-ups would never take place–which seems a shame. Think about how much pleasure is foregone through expectations of long-term commitment.

Employment (we might think) is much like sex. Employment-at-will, like hook-ups, allows employers and employees to get together without the inhibitory threat of either party’s expectations of commitment. The employment hook-up can continue into something beyond the hook-up, but need not. It does it both parties want it to; otherwise, not. It sounds great. Rarely has the labor market sounded this sexy.

The hook-up analogy clarifies an ambiguity in employment-at-will that often goes unnoticed–one of particular relevance to Pettit’s theory. I said that a hook-up is “a sexual liaison that takes place at will, with no commitment by either side to anything beyond a one-time sexual connection.” The ambiguity here involves whose will is primary.

Suppose that A and B decide to hook up. A proposes a sex act to B. B accepts and performs it on A. A has an orgasm. Satisfied, A declares the transaction over. Is it over? How could it be? What about B? The ambiguity here is whether A’s right to leave “at will” involves a right to leave before the interaction is, in the intuitive sense, “over.” What we have here is not so much an interaction as one party’s inducing or deceiving the other into a one-sided “relationship.” A fosters an expectation of reciprocity: “I’ll get you off, you’ll get me off; then we’ll be done, but not before.” But that’s not what happens. The intuitive expectation goes unsatisfied because A interprets the “at will” proviso so as to leave the relationship before B regards the transaction to have been completed. “I got off” turns into “OK, I’m off!”

This is the basis of the so-called “orgasm gap.” The orgasm gap is the disparity in sexual satisfaction, particularly with respect to achieving orgasm, between heterosexual men and women in sexual encounters: “Across every demographic that has been studied, women report the lowest frequency of reaching orgasm during sexual encounters with men.”(5) Though the orgasm gap is not necessarily intentional, it is obviously exacerbated in hookups, and is driven by a gendered power dynamic. The normalization of this power dynamic is part of what goes by the name “hookup culture.”(6) Arguably, within the ethos of “hookup culture,” A has no prima facie obligation to consummate the sexual act with B; he can legitimately use B for achieving orgasm, and leave without reciprocating.

This, I take it, is what’s meant when we say that someone has “fucked someone else over.” In sexual contexts, to fuck someone over is to reach climax in a non-reciprocal way. More generally, it’s to reap a benefit while being indifferent as to whether the other party does, or more maliciously, while making sure that the other party doesn’t.

Something of the same ambiguity arises in employment contexts: there are more and less Machiavellian conceptions of the at-will interaction. At one pole (apologies for the pun), the at-will relation dissolves the relationship arbitrarily and abruptly, with no thought whatsoever of the needs of the other party. As we approach the other pole, those needs start to factor into the equation. But if the first pole is the baseline, movement toward the other pole will be minimal, assuming it takes place at all.

Put in this deliberately prurient way, I think we can see why many have found employment at will so objectionable. In one sense, employment-at-will seems the ultimate in flexibility. In another sense, it seems the ultimate in fucking someone over. If we focus on the second feature, we can see why employment-at-will elicits Pettit’s concern: fuckings-over seem like paradigmatic cases of domination. Since domination is what Pettit’s republicanism most clearly opposes, it seems plausible to think that republicanism rules out employment-at-will. And Pettit says as much (Republicanism, pp. 140-43, pp. 163-65, but most explicitly on p. 142).

Take a case in which A has asymmetric bargaining power relative to B. A and B meet in the labor market, and A agrees to employ B, insisting on an at-will arrangement. On Pettit’s view, this is a clear, textbook case of domination, regardless of the reasonability, fairness, or benevolence of A, and whether or not the at-will power involved is reciprocal, i.e., possessed equally by both A and B. A’s possession of asymmetric power, and the translation of that power into an at-will contract, implies that A can dominate B at will in a way that B can neither effectively counter nor engage in herself. Since domination is a violation of republican freedom, a republican polity would rule out employment-at-will from the outset, and/or stop it if it managed to get underway. Either way, from a republican perspective, employment-at-will is a non-starter.

This fact would, if implemented in the US, have some dramatic consequences. Currently, 49 of 50 US states practice employment-at-will, Montana being the lone exception. Though the contemporary American version of employment-at-will is not a pure expression of the doctrine–there are nuances and exceptions involved–it’s about as close to a pure expression of the doctrine as one is liable to see in the real world (and at any rate, as exists in the real world). The relevant point is that exceptions to the at-will doctrine are departures from strict liberalism in a quasi-republican direction.

So the adoption of Pettit-style republicanism would, in the United States at least, have some real and far-reaching effects; it would overturn the status quo that has obtained for more than a century. And yet those effects, however radical, would not be entirely novel, either. They would capitalize on the existing patchwork quilt of exceptions in American law, turning what currently are discrete, state-based exceptions into a single uniform (presumably federalized) rule. Put somewhat differently, they would push American law in the direction already taken in labor markets elsewhere in the world.(7) A couple of hundred non-American countries couldn’t be wrong, could they?

Notes

1. For clear statements of the title-transfer theory, see Williamson S. Evers, “Toward a Reformulation of the Law of Contracts,” Journal of Libertarian Studies, vol. 1:1 (1977), and Murray Rothbard, “Property Rights and the Theory of Contracts,” Chapter 19 of The Ethics of Liberty (1982).
2. The classic text is Charles Fried, Contract as Promise: A Theory of Contractual Obligation, 2nd ed. (2015). For a libertarian critique, see Randy Barnett, “Some Problems with Contract as Promise,” Cornell Law Review 77 (1992).
3. Richard Epstein, Simple Rules for a Complex World, p. 328.
4. Immanuel Kant, The Metaphysics of Morals (1797), section I generally, but specifically I.2, and even more specifically I.2.2 (sections 20-21). Kant’s theory seems to me an attempt to reconcile the title-transfer and promissory theories avant la lettre, in such a way as to be able to endorse the title-transfer theorist’s conclusion that breaches of contract reduce to theft without having to drop the promissory theorist’s insistence that formalized promises bind both parties. A promise, he suggests, entails a contractually binding right against the other party as a person; a transfer of title entails that the party who receives goods without performing his side of the bargain has committed theft (see pp. 93-95/Ak. 274-76 of the Mary Gregor translation). On the one hand, Kant suggests, we have a property right in our reliance on others with whom we contract; on the other hand, he says, we do not have a property right in the object that the other is supposed to transfer to us until it physically finds its way into our possession. The practical upshot of this combination of claims is unclear to me. (Sharon Byrd’s “Kant’s Theory of Contract” is useful, but seems to me re-state rather than resolve the problem.) The account I give in the text is somewhat loosely inspired by Kant’s discussion without being entirely faithful it. Genuine fidelity to Kant would require entanglements of a kind I prefer to avoid; a hook-up I can handle, but not a committed relationship.
5. Quoted in Wikipedia, “Orgasm gap.” See also Catherine Pearson, “The Orgasm Gap Isn’t Going Away for Straight Women,” The New York Times (Aug. 6, 2024), summarizing Amanda Gesselman et al, “The lifelong orgasm gap: exploring age’s impact on orgasm rates,” Sexual Medicine 12:3 (June 2024). I may be imagining things, but Kant seems to me to be anticipating something like the orgasm gap in section 25 of The Metaphysics of Morals: in sexual relations, he claims, “the one who is acquired acquires the other in turn; for in this way each reclaims itself and restores its personality” (Metaphysics of Morals, I.2.3, Ak 278). I’m not totally sure how any of that works in practice, but a recent Google search has gotten me pretty intrigued.
6. See Wikipedia, “Hookup culture.” Wikipedia’s characterization of hookup culture is appropriately broad (emphasis mine): “Hookup culture is one that accepts and encourages casual sex encounters, including one-night stands and other related activity, without necessarily including emotional intimacy, bonding or a committed relationship.” Thus hookup culture is compatible with emotional intimacy, bonding, and commitment, compatible with the rejection of gendered power dynamics, and also compatible with the adoption of a form of sexual reciprocity that attempts to bridge the orgasm gap. This contrasts with a view that treats hookups and hookup culture as necessarily “dark” through and through. See Robert George and John Londregan’s polemic on this topic, along with my response to them just below it. I see my criticisms of George and Londregan as fully consistent with the claims I make in the text of this post. The term “hookup” is ambiguous, “hookup culture” even more so. One ambiguity concerns what ethical norms are thought to obtain within the culture. In suggesting that no one set prevails, I don’t mean to imply that everything within “hookup culture” is everywhere and always a free-for-all. No one set of norms may prevail, but one set may be dominant, while other norms may prevail in particular contexts. Thus when I say that “within hookup culture,” there is no prima facie obligation of sexual reciprocity, what I mean is that the rejection of reciprocity is compatible with hookup culture, not that hookup culture requires its rejection. For a nuanced account, see Natalie Kitroeff, “In Hookups, Inequality Still Reigns,” The New York Times (Nov. 11, 2013).
7. For good summaries, see Wikipedia, “At-will employment,” and Charles J. Muhl, “The employment at will doctrine: three major exceptions,” Monthly Labor Review (January 2001). Muhl’s discussion of the covenant-of-good-faith exception to the at-will doctrine cites Kmart Corporation v. Ponsock, a 1987 case brought before the Supreme Court of Nevada. In that case, the Court, using strikingly Pettit-like language, instituted a “good faith” exception to the state’s at-will doctrine. However, the source cited in the case is not Pettit, but Frank Tannenbaum’s The Philosophy of Labor (1951). For a libertarian defense of employment-at-will, see Richard Epstein, “In Defense of the Contract at Will,” University of Chicago Law Review 51:4 (1984), and the shorter discussions in Epstein’s Simple Rules, pp. 156-59 and “Unconscionability: A Critical Reappraisal,” Journal of Law and Economics 18:2 (Oct. 1975). For a useful recent survey of libertarian views, see Wanjiru Njoya, “Freedom of Contract and Property Rights,” Mises Wire (April 27, 2024).