The Foie Gras Wars and the Ideology of Contract
Generally speaking debates in contract law get played out according to a well-worn ideological script. On one side are the heartless conservatives who think that a contract is a contract is a contract and that folks ought to be able to deal or not deal on whatever terms they wish and that the law should confine itself to enforcing the deal as written. On the other side are the bleeding-heart liberals who insist that the vision of the marketplace as an arena of free choice and personal autonomy is an illusion and that a host of supposedly “voluntary” associations are shot through with coercion that the law ought to be policing. Or at least that is the way that the discussion tends to play out in a first year contracts class. Which is why foie gras is so much fun.
It seems that fattened goose livers jumble the ideological picture. The lawsuit in question is Sonoma Foie Gras v. Whole Foods. Here are the facts: Persuaded by the pleas of animal-rights activists, Whole Foods refuses to sell foie gras, which involves the force feeding of geese. Furthermore, Whole Foods refuse to deal with any supplier that also supplies foie gras. Enter Sonoma Foie Gras, a small California-based company that makes — not surprisingly — foie gras, complete with the unseemly force feeding of the geese. It recently lost a contract with one of the main suppliers of its product as a result of Whole Foods’ pressure on its suppliers. Whole Foods is the Wall Mart of the natural food industry, so comparatively few suppliers are willing to risk its wrath. Sonoma Foie Gras has sued Whole Foods for tortious interference with contract.
The case is fun because it flips some ideological stereotypes on their heads. Whole Foods is making a straight forward freedom of contract type argument. Look, they say, we can contract with whomever we want to. We don’t want to contract with those implicated in cruelty to geese. Period. If this is hard for Sonoma Foie Gras too bad. It is a free market and Sonoma has to take its lumps. Sonoma in effect argues that Whole Foods’ dominant marketshare means that it doesn’t get to make this argument. It is not simply refusing to deal. By virtue of its overwhelming market power it destroying the contractual relations of powerless little foie gras companies everywhere.
Whatever happens in the case, it is a nice reminder that the law is generally more interesting than the ideological stories that we make up about it. For the red-meat conservative who would like nothing better than to smack down PETA and socially responsible posturing of Whole Foods, the case requires her to deploy all of the standard criticisms of market power and contractual freedom. For the geese-loving friend of corporate righteousness, however, the case requires him to deploy a formalistic vision of the market place that would make Frank Easterbrook proud.