Integrating a Racial Capitalism Framework into First Year Contracts: A Pathway to Anti-Capitalist Lawyering

Abstract

Nationwide protests against police brutality in summer of 2020 coupled with the high rates of COVID19 death among Black, Indigenous and People of Color (BIPOC) has brought to the foreground the role of the legal system in upholding structural racism and economic inequality. This renewed focus spotlighted our legal education: what are law schools doing as the institution that educates future lawyers to be anti-racist so they can in turn create a legal profession that is. In my contracts class, I introduce students to the concept of racial capitalism and ask: what does racial capitalism add to their understanding of the law that is different than the dominant theories of classical and neo-classical economics in contracts. To meet broader learning objectives, I intend this approach to model for students praxis: integrating theory into the class to facilitate a dynamic and interactive practice of action and reflection which empowers them to question the foundation of law and develop critical thinking skills. Further, it empowers them to explore creative lawyering approaches aimed to realize the justice demands of the client and communities they seek to serve. My essay centers on three main points using examples related to the study of contracts. The concept of racial capitalism (1) provides a critical analytic lens to the study of contracts, (2) illuminates how the interplay of law and market structures maintain racial discrimination, and finally, (3) reveals limits of equitable contract theories to address racism to helps students to identify anti-racist/anti-capitalist legal solutions to combat structural racism and economic inequalities. First, I apply racial capitalism to Kirksey v. Kirksey a case that many contract students read for the principle that gratuitous promises are not legally enforceable so as to make visible the political and socio-economic contexts at the core of contract doctrine. Second, I use a reported instance of discrimination in the appraisal of a home to show how Black homeowners, whether as buyers or sellers with access to capital, they get a lower value on their property by virtue of their race. This disrupts the deeply held notion within contracts that ultimately the market is fair. Third, how racial capitalism helps to explain why reparations remains an elusive goal despite the existence of unjust enrichment as a restitution principle long recognized as an equitable legal theory. The call for reparations discloses the integral role that United States capitalism has and continues to play in the subjugation of Black labor and extraction of wealth from communities. It is perhaps why even a legislation to establish a commission to study its feasibility continually fails. Finally, I conclude with some thoughts on how introducing this theory allows students to explore anti-capitalist and anti-racist lawyering approaches.