Racial Inequality in Contracting: Teaching Race as a Core Value

Abstract

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 for most students and produce lawyers who are more capable of practicing law holistically.

Keywords: Teaching, Contracts, Legal Education, Racial Inequality