Diversity Readings Related to First-Year Courses

Anthony R. Chase,  Race, Culture, and Contract Law: From the Cottonfield to the Courtroom, 28 Conn. L. Rev. 1-66 (1995), HeinOnline. 

The intent of this Article is to heighten the level of consciousness through a form of cultural critique that explores the ways in which our collective and individual beliefs about and practices concerning race influence the development of contract doctrine: how we interpret it, how we apply it, and how such interpretations and applications reciprocally influence what we believe about race. Through heightened consciousness of racial beliefs we can, as Americans, begin to free our nation, our legal system, and our people from perpetuating the "inexorable plot of racism" bequeathed to us by our history. [T]his Article first explores the history of U.S. contract law and theory and relates it to the experience of African Americans during the period of slavery and immediately thereafter. [Next it] analyzes the modern problem of race discourse by comparing the theories of race consciousness and race neutrality and their connection to Critical Race Theory and Critical Legal Studies. The next part addresses the role of race in legal scholarship by focusing on the impact of racism on legal theory and teaching. [This part] reviews the treatment of African-Americans by major contract casebooks and offers suggestions for implementing race and cultural consciousness into a legal education's core curriculum. Finally, this Article concludes that implementing race consciousness in the legal classroom and beyond is the only effective means of eliminating the role that past injustices have played in African-American contracts and contacts in our society.

p. 6

Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 Yale L.J. 997 (1985), HeinOnline,  JSTOR, excerpted in Feminist Legal Theory: Readings in Law and Gender 287 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991), Classified Stacks (K644.Z9 F46 1991).

David R. Dow, Law School Feminist Chic and Respect for Persons: Comments on Contract Theory and Feminism in "The Flesh-Colored Band Aid", 28 Hous. L. Rev. 818 (1991), HeinOnline.

Martha M. Ertman, Contract’s Influence on Feminism and Vice Versa, in The Oxford Handbook of Feminism and the Law in the United States (Deborah Brake et al. eds. 2021-), link (UW)

Marjorie Florestal, Is a Burrito a Sandwich? Exploring Race, Class, and Culture in Contracts, 14 Mich. J. Race & L. 1 (2008), HeinOnline.

Mary Joe Frug, Re-Reading Contracts: A Feminist Analysis of Contracts Casebook, 34 Am. U.L. Rev. 1065 (1985) (discussing J. Dawson, W. Harvey & S. Henderson, Cases and Comment on Contracts (4th ed. 1982)), HeinOnline.

Michele Goodwin, The Body Market: Race Politics & Private Ordering, 49 Ariz. L. Rev. 599 (2007), HeinOnline.

Emily M.S. Houh, Sketches of a Redemptive Theory of Contract Law, 66 Hastings L.J. 951 (2015), HeinOnline.

Abstract:

This Article is about the the game we call contract law and what it does and means to those who, at one time or another, have been categorically barred from play. How have "outsider" players -- such as racial minorities, women, and sexual minorities -- entered the game and, subsequently, how have its governing rules -- that is, contract doctrines -- applied or not applied to them? On the flipside, how have common law contract doctrines responded to the entry of new players in the game? And, to the extent contract law has so responded, why has it done so? In asking and responding to these questions, this Article begins to examine how contract law facilitates, internalizes, and resists changing social contexts and movements. More broadly, as other scholars have done, it offers an alternative to the "formalist-realist" narrative of contract law by demonstrating how contract law has functioned and continues to function as an "engine of social change" that simultaneously "transforms" and "preserves" a stratified socioeconomic order based on race, gender, and sex. This Article further argues that by so functioning, the regime of American contract law legitimates or "redeems" itself within the neoliberal project of the American legal system as it responds to periods of transformative social, cultural, political, and economic upheaval.

P. 951

Gillian K. Hadfield, An Expressive Theory of Contract: From Feminist Dilemmas to a Reconceptualization of Rational Choice in Contract Law, 146 U. Pa. L. Rev. 1235 (1998), HeinOnline.

Amy H. Kastely, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law, 63 U. Cin. L. Rev. 269 (1994), HeinOnline.

Julian S. Lim, Tongue-Tied in the Market: The Relevance of Contract Law to Racial-Language Minorities, 91 Calif. L. Rev. 579 (2003), HeinOnline.

Peter Linzer & Patricia A. Tidwell, Letter to David Dow—Friendly Critic and Critical Friend, 28 Hous. L. Rev. 861 (1991), HeinOnline.

Allan H. Macurdy, Classical Nostalgia: Racism, Contract Ideology, and Formalist Legal Reasoning in Patterson v. McLean Credit Union, 18 N.Y.U. Rev. L. & Soc. Change 987 (1990), HeinOnline.

Blake D. Morant, The Relevance of Race and Disparity in Discussions of Contract Law, 31 New Eng. L. Rev. 889 (1997), HeinOnline.

Deborah Waire Post & Deborah Zalesne, Vulnerability in Contracting: Teaching First-Year Law Students About Inequality and Its Consequences, in Vulnerable Populations and Transformative Law Teaching: A Critical Reader 89 (Soc'y of Am. Law Teachers & Golden Gate U. Sch. of L. eds., 2011), Classified Stacks (KF336.V85 2011), SSRN. 

Marjorie Maguire Shultz, The Gendered Curriculum: Of Contracts and Careers, 77 Iowa L. Rev. 55 (1991), HeinOnline.

Kerri Lynn Stone, Teaching Gender as a Core Value in the First-Year Contracts Class, 36 Okla. City U. L. Rev. 537-43 (2011), HeinOnline.

Barbara Sullivan, 'It's All in the Contract': Rethinking Critiques of Contract, 18 Law in Context 112 (2000), HeinOnline.

Debora L. Threedy, Feminists & Contract Doctrine, 32 Ind. L. Rev. 1247 (1999), HeinOnline.

Patricia A. Tidwell & Peter Linzer, The Flesh-Colored Band Aid—Contracts, Feminism, Dialogue, and Norms, 28 Hous. L. Rev. 791 (1991), HeinOnline. 

Kellye Y. Testy, Whose Deal is it? Teaching about Structural Inequality by Teaching Contracts Transactionally, 34 U. Tol. L. Rev. 699 (2003), HeinOnline, SSRN.

Adding context that includes attention to issues of structural inequality, including gender, race, sexuality, class (and their intersections), will not only enhance students' interest in Contracts, it also will assure that they become more competent lawyers overall. We need to move beyond teaching about "deals" in the abstract to paying attention to "whose deal is it" and how much that often matters. That it is so easy to do so in teaching Contracts transactionally is yet another reason why more of our courses should move toward that pedagogical method of instruction.  

This essay is an edited version of a panel presentation given at the AALS Annual Meeting, Contract Section (January 2003). It both discusses why teaching contracts transactionally is important and gives some examples of class exercises to do so.

Leon E. Trakman, Public Responsibilities Beyond Consent: Rethinking Contract Theory, 45 Hofstra L. Rev. 217 (2016), HeinOnline.

Deborah Zalesne, Racial Inequality in Contracting: Teaching Race as a Core Value, 3 Colum. J. Race & L. 23 (2013), HeinOnline.

Deborah Zalesne & Deborah W. Post, Vulnerability in Contracting: Teaching First Year Law Students About Inequality and its Consequences (2010), SSRN. 

Abstract:

Traditional legal pedagogy fails to demonstrate the relationship of contract to the subordination of vulnerable populations. As a result, students rarely see the complex web of interrelationships where economic activity takes place or the legal regime that maintains it. Students are not taught how to interrogate the discourse or dismantle the systems and structures that oppress subordinated communities. This Essay describes a technique that we have developed to help students learn the meaning of law and its cultural, social, and structural significance. The traditional framing of the study of contract doctrine as one that is objective, neutral, and fair avoids any examination of human nature, subjective reasoning, or social structure. The challenge is to encourage students to think about the culturally-specific assumptions that inform our understanding of exchange – specifically, that deeply held sentiments about the appropriateness of the behavior of contracting parties are related to the relative position of the parties and the groups to which they belong, the context in which the transaction occurs, and the nature and subject matter of the exchange. A teacher who ignores the relationship between contract rules and social structure deprives students of a deeper understanding of economies and the ways in which lawyers who are concerned about inequality and poverty might use the law for social change.

We believe it is imperative to teach students three things: (1) that law creates, supports, and reinforces the relationships of inequality that exist in the United States; (2) that the law can and sometimes does compensate for the economic and social disadvantages inherent in a segmented and stratified social system; and (3) that if the law recognizes the agency of individuals who are members of subordinated communities, it can be an instrument of social change. This Essay provides concrete examples of how to introduce issues of race, gender, class, sexual orientation, and disability into first year courses. Proposed exercises provide practical guidance and specific questions that can be posed to students to promote a meaningful discussion of what the law does and what the law could do to address the effects of economic disparities, prejudice, or discrimination.

Ian Ayres, Further Evidence of Discrimination in New Car Negotiations and Estimates of its Cause, 94 Mich. L. Rev. 109 (1995), HeinOnline.

Abstract:

An extensive study of new car sales negotiations reveals both that dealers continue to discriminate based on race and gender and that different discriminatory motives can be isolated using game-theoretic parameterization. The survey studied the prices faced by white males, white females, black males and black females. Differing discriminatory motives can be divined from distinguishing initial offering price differences and differing concession rates. Consumer protection laws should promote price information for consumers and no-haggle car sales.

Lawrence M. Kahn & Malav Shah, Race, Compensation and Contract Length in the NBA: 2001-2002, 44 Indus. Rel. 444 (2005), Wiley Online Library.

Abstract:

We study race and pay in the NBA for 2001-2002. For players who were neither free agents nor on rookie scale contracts, there were large, statistically significant ceteris paribus nonwhite shortfalls in salary, total compensation, and contract duration. But for players under the rookie salary scale (first-round draft picks) and free agents, race effects were small and insignificant. These results suggest discrimination against marginal nonwhite players.

Willy E. Rice, Courts Gone "Irrationally Biased" in Favor of the Federal Arbitration Act?—Enforcing Arbitration Provisions in Standardized Applications and Marginalizing Consumer-Protection, Antidiscrimination, and States' Contract Laws: A 1925-2014 Legal and Empirical Analysis, 6 Wm. & Mary Bus. L. Rev. 405 (2015), HeinOnline.