Document Type
Article
Publication Title
Yale Journal on Regulation
Publication Date
Spring 2025
Page Number
660
Keywords
contracts, private sector allies, fiscal transparency
Disciplines
Contracts | Law
Abstract
Private law offers a unique solution to the problem of long-term fiscal commitment. When Congress enacts a spending program that will take many years to reach fruition, there is a risk of a subsequent Congress or President cutting off funding in the interim. There is no escape from the problem within appropriations law itself One solution, however, is to entrust private sector allies as vessels of long-term commitment. As a matter of political economy, that solution draws on policy-feedback theory. As a matter of law, the solution rests on a mechanism that Congress already uses but has not recognized its potential: statutory contracts. Statutory contracts are spending statutes that promise to pay if a counterparty performs a specified action. Most tax credits, most farm subsidies, and even Medicare work this way. Because statutory contracts are structured like, and implicate, the same normative interests as other contracts, this Article argues that they should be interpreted according to principles of contract law. Contract law provides remedies for a subsequent government's breach that public law cannot match. At the same time, not all statutory contracts should be enforceable, just as some executive branch contracts are held unenforceable when they constrain subsequent policy freedom.
Recommended Citation
Jeff Gordon,
Statutory Contracts, 42 Yale Journal on Regulation. 660
(2025)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1701