This article attempts to "lay some of the conceptual foundations for a proper interpretation of the section 1981 ban on racial discrimination in contracting. By deconstructing the formalist presupposition of a bright line dividing civil rights law from other bodies of law, the analysis will connect formalism in economic relations to the legal doctrine of formal equality to show how they combine to oppress minorities through economic violence."
This article aims "to outline the legal discourse of contract law and to explain the unconscious influence that race has on the manner in which we interpret contract doctrine. By enforcing private intentions to promote an individualistic economic structure, contract law provides a doorway to the enfranchisement and empowerment of African-Americans." This article "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."
This article proposes that "issues of disparity should be considered and analyzed, not as exclusive determinants, but as possible contributing components to the thought processes that lead to the formation and breakdown of bargains... Cases should be examined in view of the applicable rules of law, as well as the modalities of perception that influence bargainers in the conception, negotiation ("preformation"), formation, and subsequent performance of contracts."
This article examines "the rules of contract law as applied by judges and elaborated by commentators, ask[ing] whether we can begin to understand the particular limits law stories impose on the twin projects of self-definition and self-understanding. Can we, in other words, expose the way law shapes all stories into particular patterns of telling, favors certain stories and disfavors others, or even makes it impossible to tell certain kinds of stories?"
This article argues that traditional legal pedagogy fails to demonstrate the relationship of contract to the subordination of vulnerable populations. This essay describes a technique that the authors developed to encourage students to think about the culturally-specific assumptions that inform our understanding of exchange – specifically, that deeply held sentiments about 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. It also provides exercises and specific questions to promote discussions of what the law could do to address the effects of economic disparities and discrimination.
This 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 of Contract Law.
This video discusses how race and racism have a substantial influence on a broad range of issues within contract law. This event is part of Duke Law's series on Race and the 1L Curriculum.
Appearing: Emily Houh, Gustavus Henry Wald Professor of the Law and Contracts and Co-director of the Nathaniel R. Jones Center for Race, Gender, and Social Justice at the University of Cincinnati College of Law, and Nakita Cuttino, Visiting Assistant Professor, Duke University School of Law, with moderator Professor Barak Richman."
This video by Cincinnati Law presents Professor Emily Houh, who discusses how contract law serves to empower and subordinate outsiders capitalist market-based society. She shares two case examples in which the outsider parties actually won their cases but reveals how contract law can serve as both progressive and regressive change simultaneously.
This article examines underlying conceptions of what it is to choose animate legal reasoning in contract. In particular, the author contrasts the dominant legal and economic conception of rational choice with Elizabeth Anderson's conception of rational choice, which constructs a vision of what it is to choose that is a substantial challenge to the dominant conceptions that undergird conventional contract logic. The author argues that Anderson provides the basis for reconceptualizing choice in contract law in a way that should alter radically our understanding of the source of contractual obligation.
This article explores how one's gender affects consent, bargaining and reliance, notions central to contract law. In her 1L Contracts class, the author points to the ways in which gender influences the identities of women in our cases and the ways in which judges perceive, react to, and respond to those identities.
This article proposes a theory of public responsibility to safeguard public values that are unprotected by the reciprocal consent of private parties to contract. Challenging the conception of contracts-as-property-rights, it posits that such responsibilities are necessary to redress public harm that is ordinarily not protected by the exchange of contractual promises. "If contract law is to support social justice, it ought to surpass restrictive conceptions of equity that focus wholly on corrective injustice between contracting parties at the expense of public deterrence."
This article seeks to analyze contract law from a feminist lens: how we treat patriarchal norms, conscious and unconscious, as we assess the legitimacy of law. The essay questions the reflexive (unconscious, unstated) acceptance of the inherited underpinnings of legal thinking.