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Diversity Readings in Contracts

Mary Whisner. Updated Aug. 6, 2014.

This guide is part of a series of guides with readings about issues of race, class, gender, sexuality, and disability in traditional first-year courses.


Contracts: General

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

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, Deconstructing Contract Doctrine, 94 Yale L.J. 997-1114 (1985), excerpted in Feminist Legal Theory: Readings in Law and Gender 287-304 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991), Classified Stacks (K644.Z9 F46 1991)

Larry A. DiMatteo et al., Visions of Contract Theory: Rationality, Bargaining, and Interpretation (2007), Classified Stacks (K840 .V57 2007). Chapter 9 "explores the major tenets of Critical Legal Studies, Critical Race Theory, and Feminist Legal Theory." Publisher's description.

Feminist Perspectives on Contract Law (Linda Mulcahy & Sally Wheeler eds., 2005), available through Summit

Publisher's description:

The law of contract is ripe for feminist analysis. Despite increasing calls for the re-conceptualisation of neo-classical ways of thinking, feminist perspectives on contract tend to be marginalised in mainstream textbooks. This edited collection questions the assumptions made in such works and the ideologies that underpin them, drawing attention to the ways in which the law of contract has facilitated the virtual exclusion of women, the feminine and the private sphere from legal discourse.
Contributors to this volume offer a range of ways of thinking about the subject and cover topics such as the feminine offeree, feminist perspectives on contracts in cyberspace, the forgotten world of women and contracts, restitution and feminist economic theory, the gendered power dynamics of undue influence, and the feminisation of dispute resolution.

Mary Joe Frug, Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 Am. U.L. Rev. 1065-1140 (1985) (discussing J. Dawson, W. Harvey & S. Henderson, Cases and Comment on Contracts (4th ed. 1982)), HeinOnline

First, I want to demonstrate that readers' views about gender affect their understanding of a law casebook. Second, I want to demonstrate that gendered aspects of a casebook affect readers' understanding of the law and of themselves. If these endeavors are successful, I hope that casebook readers will be liberated from some of their opinions about gender, opinions that casebooks foster and sustain. Indeed, this Essay is designed to contribute to the feminist effort to diminish the power that ideas about gender exercise over our lives. I also hope, somewhat paradoxically, that exposing and examining gender in a casebook will liberate and vitalize qualities within readers, as well as approaches to contract doctrine, that are currently linked with women.

p. 1065

Michele Goodwin, The Body Market: Race Politics & Private Ordering, 49 Ariz. L. Rev. 599-636 (2007), HeinOnline

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. 1235-85 (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. 269-315 (1994), HeinOnline

Peter D. Feaver, Robert Kling & Thomas K. Plofchan Jr., Sex as Contract: Abortion and Expanded Choice, 4 Stan. L. & Pol'y Rev. 211-20 (1992), HeinOnline

Blake D. Morant, The Relevance of Race and Disparity in Discussions of Contract Law, 31 New Eng. L. Rev. 889-939 (1997), HeinOnline

Doborah 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 89-110 (Soc'y of Am. Law Teachers & Golden Gate U. Sch. of L. eds., 2011), Classified Stacks (KF336 .V85 2011), 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.

Marjorie Maguire Shultz, The Gendered Curriculum: Of Contracts and Careers, 77 Iowa L. Rev. 55-71 (1991), HeinOnline

Barbara Sullivan, 'It's All in the Contract': Rethinking Feminist Critiques of Contract, 18 Law in Context 112-28 (2001) [check: consecutively paginated?]

Debora L. Threedy, Feminists & Contract Doctrine, 32 Ind. L. Rev. 1247-65 (1999), HeinOnline

Patricia A. Tidwell and Peter Linzer, The Flesh-Colored Band Aid—Contracts, Feminism, Dialogue, and Norms, 28 Hous. L. Rev. 791-817 (1991), HeinOnline

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. 819-59 (1991), HeinOnline

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

Kellye Y. Testy, Whose Deal is it?: Teaching about Structural Inequality by Teaching Contracts Transactionally, 34 U. Tol. L. Rev. 699-704 (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.

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

Today's students live in an era that dominant social voices declare to be a "post-racial society." Issues of "discrimination," it follows, are simply isolated incidents easily addressed by the panoply of existing civil rights laws. This belief creates expectations on the part of first-year law students who may dismiss or ignore the existence of structural racism, sexism, and classism. The law not only creates structures of subordination, it also makes them invisible. Revelation of the subordinating effects of legal rules is an important first step in legal education.
The apparent neutrality of contract law in particular masks the distributive effects of legal rules. Contract is an area of private ordering, but it is courts that invalidate or legitimize the use or allocation of power between or among parties to a contract. Unspoken assumptions about power-who has it, who may use it, and how it may be used-are embedded in contract law and theory. These assumptions may conceal bias, stereotypes, and cultural preferences in a court's final decision. An analysis that presumes neutrality on the part of the court and autonomy on the part of the parties overlooks the various advantages and handicaps that people bring with them to each transaction, some of which may be the result of the social identity of the parties. A "neutral" free market system tolerates certain pockets of discrimination in contracting which are, in turn, endorsed by the law in the name of freedom of contract.
This Article addresses the importance of incorporating such discussions about identity in the first year core curriculum. It offers specific materials and techniques for doing this in a contracts class, with emphasis on the necessity and the value of grounding theoretical analysis squarely in the instruction students receive in legal reasoning. The Article proposes that issues of identity should be incorporated into the classroom not only when the parties in the cases are people of color, and not simply as a politically correct exercise, but pervasively throughout the semester as a way of advancing students' legal reasoning skills and understanding of legal doctrine. This approach should improve the law school experience or most students and produce lawyers who are more capable of practicing law holistically.

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

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.

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Duress

Deborah Waire Post, Outsider Jurisprudence and the "Unthinkable" Tale: Spousal Abuse and the Doctrine of Duress, 26 U. Haw. L. Rev. 469-87 (2004), HeinOnline


Empirical Studies

Ian Ayres, Further Evidence of Discrimination in New Car Negotiations and Estimates of Its Cause, 94 Mich. L. Rev. 109-47 (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. 444-63 (2005), Ejournal

Authors' 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.

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Enforceability

David Delaney, Geographies of Judgment: The Doctrine of Changed Conditions and the Geopolitics of Race, 83 Annals Ass'n Am. Geographers 48 (1993): pp48(18). JSTOR

Abstract: Ideological conceptions of space influence legal thought, leading to geographies of power enforced by law. The spatial character of a legal rule can yield different outcomes depending on its manipulation. Various legal interpretations of the doctrine of changed conditions (principles that allow judges to not enforce contracts) from 1917 to 1945 shed light on, and influenced, the geopolitics of race.

Andrew Gilden, Sexual (Re)Consideration: Adult Entertainment Contracts and the Problem of Enforceability, 95 Geo. L.J. 541-63 (2007), HeinOnline

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Equitable Orders

Lea S. VanderVelde, The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity, 101 Yale L.J. 775-852 (1992), HeinOnline, reprinted in Contracts Stories 229-64 (Douglas G. Baird ed., 2007), Reference Area (KF801.A2 C66 2007)

In the familiar case of Lumley v. Wagner, the English Court of Equity held that although opera singer Johanna Wagner could not be ordered to perform her contract, she would be enjoined from singing at any competing music hall for the term of the contract. Lumley is usually lauded in first year contracts courses as a just and fair decision, one that illustrates the proper distinction between equitable orders that force performance (unworkable and unjust) and equitable orders that prevent performance (sometimes workable, usually practical, and not necessarily unjust).
Contracts classes, however, rarely consider the central labor issue: whether an injunction preventing an employee from quitting and working elsewhere violates the American tradition of free labor and the right to quit employment. . . .
In this Article, I offer a tentative explanation of this phenomenon: that the Lumley rule's reception in the United States was facilitated by the fact that the majority of cases that employers won were cases involving women.

pp. 775, 777 (citations omitted)

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Form Contracts

Nancy S. Kim, Wrap Contracts: Foundations and Ramifications (2013)

Publisher's description:

 

 


Good Faith

Emily M.S. Houh, Critical Race Realism: Re-Claiming the Antidiscrimination Principle Through the Doctrine of Good Faith in Contract Law, 66 U. Pitt. L. Rev. 455-520 (2005), HeinOnline

Emily M.S. Houh, Critical Interventions: Toward an Expansive Equality Approach to the Doctrine of Good Faith in Contract Law, 88 Cornell L. Rev. 1025- (2003), HeinOnline, SSRN

Abstract: This article argues that courts should use the doctrine of good faith in contract law to prohibit improper considerations of race in contract formation and performance, and should recognize good faith as a device for eliminating racial subordination that can function beyond the scope of conventional civil rights discourse. Although civil rights laws provide important remedies to victims of discrimination, the elimination of racial subordination cannot remain the exclusive domain of civil rights law. Rather, other substantive areas of law can and should incorporate expansive equality principles to achieve that end. For example, this article demonstrates how the implied obligation of good faith in contract law, applied in the at-will employment context, can employ expansive equality principles to provide alternate remedies to at-will employees who may not be able to obtain civil rights remedies because of the onerous burdens they must satisfy in order to prevail on their civil rights claims. Although courts have used the good faith doctrine largely to achieve economically efficient outcomes, this article further argues that courts need not limit the doctrine's use in that way. By screening the doctrine of good faith through the lenses of critical race and law and market economy theories, this article argues that using the doctrine of good faith to prohibit improper considerations of race in contracting is consistent not only with the equitable principles embodied by the doctrine, but also with the contractual goals of protecting parties' bargains, wealth formation, and the facilitation of exchange transactions.

 


Impossibility

Mary Joe Frug, Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract Law, 140 U. Pa. L. Rev. 1029-47 (1992), HeinOnline

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Slavery and Peonage

Diane J. Klein, Paying Eliza: Comity, Contracts, and Critical Race Theory—19th Century Choice of Law Doctrine and the Validation of Antebellum Contracts for the Purchase and Sale of Human Beings, 20 Nat'l Black L.J. 1-41 (2006), HeinOnline

Benno C. Schmidt Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era: Part 2: The Peonage Cases, 82 Colum. L. Rev. 646-718 (1982), HeinOnline

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Surrogacy Contracts

Anita L. Allen, The Socio-Economic Struggle for Equality: the Black Surrogate Mother, 8 Harv. BlackLetter J. 17-31 (1991), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 1117-25 (D. Kelly Weisberg ed., 1996), Classified Stacks (K349.A67 1996)

Lori B. Andrews, Surrogate Motherhood: The Challenge for Feminists, 16 Law, Med. & Health Care 72-80 (1988), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 1092-1104 (D. Kelly Weisberg ed., 1996), Classified Stacks (K349.A67 1996)

Martha A. Field, Surrogacy Contracts—Gestational and Traditional: The Argument for Nonenforcement, 31 Washburn L.J. 1-17 (1991), HeinOnline

Joan Mahoney, An Essay on Surrogacy and Feminist Thought, 16 L. Med. & Health Care 81-88 (1988), HeinOnline

Richard A. Posner, The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J. Contemp. Health L. & Pol'y 21-31 (1989), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 1105-11 (D. Kelly Weisberg ed., 1996), Classified Stacks (K349.A67 1996)

Carol Sanger, Developing Markets in Baby-Making: In the Matter of Baby M, 30 Harv. J. L. & Gender 67-97 (2007), HeinOnline reprinted in Contracts Stories 127-59 (Douglas G. Baird ed., 2007), KF801.A2 C66 2007 at Reference Area

Patricia J. Williams, On Being the Object of Property, 14 Signs: J. Women in Culture & Soc'y 5-24 (1988), JSTOR, Literature Online, excerpted in Feminist Legal Theory: Readings in Law and Gender 165-80 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991), K644.Z9 F46 1991 at Classified Stacks

    Personal essay touching on many topics; discusses Baby M case at 13-16.

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Unconscionability

Eben Colby, Note, What Did the Doctrine of Unconscionability Do to the Walker-Thomas Furniture Company?, 34 Conn. L. Rev. 625 (2002), HeinOnline

Muriel Morisey, Teaching Williams v. Walker-Thomas Furniture Co., 3 Temple Pol. & Civ. Rts. L. Rev. 89 (1993), HeinOnline

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