Nancy S. Kim (California Western School of Law) has posted Two Alternate Visions of Contract Law in 2025 (52 Duquesne University Law Review 303 (2014)) on SSRN. Here is the abstract:
The topic of this symposium issue addresses the state of contract law in the year 2025, but it raises the question: What does it mean to enter into a contract today? Contract law presumes a certain paradigmatic scenario where two equally sophisticated parties negotiate terms to achieve a mutually beneficial bargain. This paradigmatic scenario has given way to contracts in a variety of forms, presented in different ways, and serving various functions. They can be paper or digital; they can be negotiated or adhesive. Contracts occupy different roles in a transaction, the marketplace, and society. They can be used to plan complex transactions between multinational corporations, but they can also be used to establish codes of conduct on a social networking site. Does contract law adequately respond to the needs of today's society? If not, how can it be expected to meet the needs of society in 2025? Part I of this essay examines how businesses have shaped the evolution of contract’s form from the past to the present and explains how courts have responded by reshaping contract law. Part II of this essay anticipates changes in the business landscape and explains how these changes might create new challenges for contract law. Part III predicts two alternative visions for contract law in 2025. The first is as a diminished body of law, made nearly irrelevant by other laws and preempted by private rules administered by non-judicial entities. The second vision is that of a robust contract law administered by courts that understand the diversity of marketplace needs, acknowledge contracting realities, and consider the context of transactions in applying doctrinal rules. This essay concludes that the strength of contract law lies is in its flexibility, but its relevance depends upon how courts use that flexibility to guide its development.