Wednesday, June 22, 2005
Feminism and Contract Law
by Hila Keren
Hebrew University of Jerusalem
Center for the Study of Law and Society, UC-Berkeley
A new book about contract law, Feminist Perspectives on Contract Law, edited by Linda Mulcahy and Sally Wheeler (GlassHouse Press, 2005), is now offering to us all a fresh look at the good old contract law. With contributors from all over the English speaking world, this collection constitutes a valuable addition to socio-legal contract scholarship and is truly worth exploring.
Nine different pieces challenge the masculine image of contract law under classical and neo-classical models of contract. These established models are formalistic, abstract, hold to linear reasoning, assume universal truths, claim to be objective and natural and perceive the typical contractor as a self-regarding, autonomous selfish and competitive "reasonable man" who dwells at the core of the market place. Theories of this sort leave little room within contract law for numerous important contractual experiences, many of them at least stereotypically associated with the feminine. The result is not only the marginalization of women which has engaged feminist scholars but also a poor understanding of the contractual phenomenon that should have alerted contract scholars.
Fundamental subjects in the textbooks we use in contract law courses are discussed, and questioned, from new points of view. The formation of contracts, with the adversary and inert model of offer and acceptance, is confronted with the living experience of shopping for fashionable clothing as well as with the marital roots of the postal rule which expose the overprotection of the offeree at the offeror’s expense. The levels of pressure and submission that are needed to satisfy the doctrine of undue influence are contested by the reality of what might be termed "desperate housewives" and their dependence on their partners’ business judgments. The application of traditional contract doctrine to the cyberspace is also illuminated by feminist ideas while critically examining the tendency to conceptualize cyberspace as merely an extension of the marketplace and by that as yet another public sphere. In addition, the collection suggests feminist support of dispute resolution clauses that offer the parties meditation as an alternative to an unresponsive judiciary.
In ways that exceed the reach of this brief descriptive note, reading Feminist Perspectives on Contract Law from the contractual perspective is not a trouble-free task. However, it is an effort worth making as it reminds us how, to quote the opening sentence of the collection, "the law of contracts is an area which is ripe for feminist analysis."
(Image courtesy Cavendish Publishing Ltd.)