Wednesday, July 15, 2020
Chaumtoli Huq, Teaching Contracts through a Critical Race & Decolonial Framework, Part III: Counter Hegemonic Narratives to the Doctrine*
There are other places in the contracts curriculum where I try to insert ideas of decoloniality in less direct ways. As part of the course, I create a separate electronic folder on our course management site that allowed students to share materials related to our course, and I too share materials on critical approaches to the doctrine. This allowed students to have a place where they can engage with me on these ideas, given the perpetual scarcity of class-time. When I introduce materials, I place them in the course folder and I spend 10-15 minutes of class time to provide context to the materials. If students share materials, I announce to the class that there are materials available and try to extrapolate one key point from the material that relates to our study, a practice which encourages and validates students who take the time to provide those materials. Not doing so would signal that the materials students shared are not important.
For example, while discussing and the rule for offer in Southworth v. Oliver involving lands in Grant County, Oregon, I spend some class time discussing how ranchers like defendants came to acquire land from Pauite Native Americans. Jacqueline Keeler, a Navajo/Yankton Dakota Sioux writer living in Portland, Oregon writes in Educating the Oregon Militia on the Northern Pauite Trail of Tears: “scratch the surface of any land issues in the United States, especially in the West, and you are confronted with persisting and strong land claims held by Native nations.” Roxanne Dunbar-Ortiz in An Indigenous People’s History of United States, on land, writes:
Everything in US history is about the land-who oversaw and cultivated it, fished its waters, maintained its wildlife; who invaded and stole it; how it became a commodity ("real estate") broken into pieces to be bought and sold on the market.
In setting the backdrop to this case, I share an article on the white supremacist origins of Oregon’s statehood in 1859. Black people were not permitted to move to the state until 1926. I shared a video of Oregon’s settler colonial occupation of Native American land and brutal expulsion. I brought the issue of land to the present-day and demonstrate how settler colonialism and white supremacy work in tandem through a discussion of the 2016 armed take-over of a federal wild-life refuge by white militia members . Further, these materials show that Native American genocide and white supremacy are not matters of the past, but are present today. I share articles which question the idea of private ownership of land all together. By questioning the historical basis by which defendants gained a legal claim to the land such that they could make an offer to sell as ranchers, I enabled students to understand the process by which they come to occupy this land. What seemed like a mechanical rule on offer, and the maxim, the offeror is the master of the offer, gains different meaning. By creating these short modules connected to a doctrine and providing them to the students, I provided students who were eager to learn about these issues with some foundational materials. I also invited them to share materials that similarly provided context to the other cases we read. Some students were animated by that invitation and said it made the study of the doctrine more bearable. Students often find Contracts dry and technocratic. I often heard my students say that they thought Contracts was going to be boring, but they found it enjoyable.
In summary, all this may sound like a lot is happening that may take away from class time, but all I have done thus far is introduce an idea, question, music, a quote from a scholar, share materials for context, and that has opened up students to think critically about the doctrine. The drawback of this method is that there isn’t a longer and perhaps robust discussion, but I err on the side of floodlighting this issue, in hopes that students may be motivated to undertake a deeper investigation as they continue with their legal studies. There is also the concern of push-back from students who have come to expect one way of learning law. One student in an evaluation of my course expressed a lack of confidence in my mastery of the subject and rated me poorly. As an untenured faculty member of color, that of course is a risk when one disrupts dominant modes of legal education, but to remain silent does more harm to all my students, and to me.
As scholar Teri A. McMurth-Chubb wrote in her piece, Still Writing at the Master’s Table: Decolonizing Rhetoric in Legal Writing For “Woke” Legal Academy, “This decolonized pedagogy is the least of what is required for a ‘woke’ legal academy.” Most days, my students and I are engaged in what instructors and students in most law courses are doing: close reading of cases, analyzing, understanding the rationale. From the outside perhaps, the class looks like any other, but I hope that, through these simple interventions, more seeds are planted to allow critical thinking to flourish.
*This post is part of a series on introducing critical perspectives, including critical race perspectives into contracts teaching. Other posts in the series include:
- Guest Post by Chaumtoli Huq, Part II: Freedom to Contract and the Reasonable ManGuest Post by Chaumtoli Huq, Part I: The Decolonial Framework
- Guest Post by Deborah Zalesne, The (In)Visibility of Race in Contracts: Thoughts for Teachers
- What Should a Court Do in Response to Racist Contractual Threats? Wolf v. Marlton Corp.
- Guest Post by Charles Calleros: Raising Issues of Race, Ethnicity, and Culture in 1L Contracts: Language Barriers
- Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part II – Consideration
- Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part I – Mutual Assent
- Teaching Assistants, Emily Houh's Redemptive Theory of Contract Law