Contract Theory and Marginalized Workers

Collage of people around table at a conference
The colloquium focused on how contract law can better protect the rights of vulnerable workers. Photo credit: Ava Freeman

October 20, 2023

About the Colloquium

Labor and employment statutes exclude from coverage a significant number of workers, such as independent contractors, or fail to protect others because of judicial interpretation (in the case of incarcerated people) or immigration law. As a result, millions of immigrants, incarcerated people, and independent contractors labor under a regime of contract that implies, according to the conventional wisdom, a dramatic downgrade – (almost) a full collapse – of their rights as compared to the rights of employees. Contract, according to this conventional wisdom, both enables employers to opt out of minimum labor standards laws for those who would otherwise be protected and contains no substantive guarantees of fair treatment.

To critically investigate this conventional wisdom, the colloquium will bring together scholars who study marginalized workers and work law more generally with scholars who focus on contract, contract theory, and private law theory. Our main questions will be what made contract the enemy of marginalized workers, and whether contract law may become part of the solution for, rather than one of the causes of, the vulnerability of workers to exploitative working conditions.

This colloquium is co-organized with Berkeley’s Center for Law and Work.


Sponsored by Berkeley Center for Private Law Theory and Center on Law and Work

We will divide our day-long conversation into four sessions. Each participant will have 5 minutes to explain what their chosen paper contributes to our thinking about how contract constructs work relationships, followed by 35 minutes of discussion focused on that paper. We assume everyone will have read every paper, and the job of the panel chair is simply to keep time and moderate the discussion.

Can Contract Law Promote Justice at Work? Radical Critiques                       9 – 11 a.m.

Brishen Rogers – The Legal Construction of Workplace Neoliberalism

Sameer Ashar – Brittany Farr’s Breach by Violence

Veena Dubal – Gali Racabi’s At Will as Taking

Chair: Catherine Fisk

Private Law Theory and Justice in Employment                                      11:20 – 12:40   p.m.

Aditi Bagchi – Nondomination and The Ambitions of Employment Law

Hugh Collins – Relational and Associational Justice in Employment

Chair: Hanoch Dagan

Lunch on the Steinhart Terrace

Using Relational Justice in Contract to Achieve Justice at Work                        1:40 – 3 p.m.

Hanoch Dagan & Catherine Fisk – Independent Contractors and the ABCs of Contract Law

Mark Gergen – John Gardner’s The Contractualisation of Labour Law

Chair: Veena Dubal

Collective Bargaining Contracts, Power, and Justice                                           3:30 – 5 p.m.

Diana Reddy – Clyde Summers’ Collective Agreements and the Law of Contracts

Sabine Tsuruda – Collective Bargaining and Workers’ Freedom of Contract

Chair: Brishen Rogers

Dinner at Agrodolce, 1730 Shattuck Avenue, Berkeley                                                      6 p.m.

If you have any inquiries, please reach out to the administrative assistant, 


Sameer Ashar (UCI)
Aditi Bagchi (Fordham)
Hugh Collins (LSE)
Hanoch Dagan (Berkeley)
Veena Dubal (UCI)
Catherine Fisk (Berkeley)
Mark Gergen (Berkeley)
Diana Reddy (Berkeley)
Brishen Rogers (Georgetown)
Sabine Tsuruda (Queen’s, Canada)


Papers can only be accessed with a password. Please click the page above to access the papers. 

Professor Catherine Fisk and Professor Hanoch Dagan
Independent Contractors and the ABCs of Contract Law 

Professor Sameer Ashar
Contract Work Cover 
Breach by Violence: The Forgotten History of Sharecropper Litigation in the Post-Slavery South by Brittany Farr (Reading, U.C.L.A Law Review) 

Professor Aditi Bagchi
NonDomination and the Ambitions of Employment Law 

Professor Hugh Collins
Relational and Associational Justice in Employment

Professor Veena Dubal 
On Algorithmic Wage Discrimination 
At Will as Taking by Gali Racabi (Reading, 133 Yale L.J. forthcoming 2024)

Professor Mark Gergen
The Contractualisation of Labour Law by John Gardner (Reading)

Professor Diana Reddy
Collective Agreements and the Law of Contracts by Clyde W. Summers (Reading, 33_78YaleLJ525_1968_1969)

Professor Brishen Rogers
Data and Democracy at Work: Advanced Information Technologies, Labor Law, and the New Working Class

Professor Sabine Tsuruda
Collective Bargaining and Workers’ Freedom of Contract