Enforce This! Contract (as) Social Responsibility (Part 4)

A prior post made two basic points about the ABA’s Model Terms to protect human rights in the supply chain (Model Terms) as an example of “contract (as) social responsibility” (KSR): (i) they say nothing about substantive human rights standards (and that may be OK), and (ii) the desire to implement these standards through KSR terms may conflict with a desire to limit the buyer’s legal exposure for their violation. Or not. . . I want to turn now to what I suspect will be a central doctrinal question presented by KSR terms: enforceability. I don’t mean enforceability in a technical sense—offer, acceptance, consideration (or equitable substitute)—but instead in a remedial sense:  Who can get a remedy for breach, and what would it look like?  Since the architecture of U.S. contract law sits on a foundation of privity and expectation, KSR may be an awkward fit, for at least three reasons. First, consider the problem of third-party…

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