Thursday, January 14, 2021
Some thoughts on systemic racism and the teaching of Contracts
The popular uprisings inspired by Black Lives Matter have prompted many law teachers to reconsider how their pedagogy could better confront systemic racism in the law and the legal academy. This is perhaps more challenging for Contracts than subjects like Criminal Procedure and Property. Here are some thoughts of a white professor on how to educate ourselves (rather than burdening our BIPOC colleagues) and to rethink our Contracts syllabus. Some critical race scholars and others who have tackled this problem are listed in this helpful bibliography. Featuring African-American protagonists in at least a few cases is an important albeit superficial step many textbooks now take, but as teachers we can do far more.
One critical approach to teaching Contracts is to reverse the usual preeminent position that libertarian values like autonomy have when we present the steps of contract identification, typically by beginning a syllabus with voluntary offers and acceptances, or the consideration doctrine of equal or unequal exchange. Instead we can ground a Contracts course in the basic definition of contract, which is state coercion; specifically, an obligation identified and enforced by courts from some social context. To me this also implies starting the class with remedies, to emphasize the point that contract law is about compelling payment of money damages, or in some cases compelling delivery of property or performance of a service. The topic of when courts do and do not grant equitable remedies (injunctions and specific performance) begins to reveal the value choices embedded in our common law. Implied contract terms is also a topic rich with latent political choices, as for example with the employee’s duty of loyalty vs. at-will employment.
After exploring the scope and limits of state coercion in enforcing obligations, in a second step students may consider (following Legal Realists like Robert Hale) whether the obligations being enforced themselves arise from a spectrum of voluntariness and coercion. If we want to situate the role of contract law in this spectrum of coercion, we can teach formation and enforceability doctrines using contracts that are not the archetype of arms-length negotiation by parties of “roughly equal bargaining power,” but instead arise in employment, consumer, and housing relationships, as well as in business-to-business transactions. Another strategy to highlight the problem of coercion in private contracting is to begin the contract formation subjects with defining acceptance and the reality or fiction of consent, rather than starting with defining “offer.” Teachers could prominently contrast adhesion contracts with the idealized archetype of negotiated deals. We could follow this with cases describing physical duress, economic duress, and undue influence.
Through the lens of both state and private coercion, it becomes much easier to ground the law of contracts in the U.S. history of slavery and racism. For example, the dichotomy between contract formation and enforceability defenses (a false dichotomy for some critics) can be illustrated with discussion of the black codes as a contract-based means for perpetuating slavery after emancipation. When a freed slave is faced with the voluntary choice of working for a former master for next to nothing (as sharecroppers often were) or being imprisoned for vagrancy, we have the clearest case of contractual coercion. Cases arising under 42 USC Section 1981 (the Reconstruction act guaranteeing the right of former slaves to freely contract) are also excellent vehicles to present and critique various definitions of contract.
The habit of using unconscionability cases such as Williams v Walker-Thomas Furniture or implied terms cases such as Javins v. First National Realty (warranty of habitability in residential leases) as vehicles to raise issues of racism also needs to be approached with care. Muriel Morisey Spence wrote an excellent article on this (3 Temple Political and Civil Rights Law Review 89 (1993)). It becomes too easy to conflate, even unwittingly, economic oppression with victimhood and lack of agency on the part of the black actors in these cases. Context is vital. The story of Ms. Williams for example, should include not only the unfair practices of Walker-Thomas Furniture, but the housing segregation and redlining that produced contractual offerings like rent-to-own appliance contracts and contracts for deed as poor substitutes for sales arrangements offered to whites. The story of Ms. Javins includes the tenant organizing and rent strike that led DC legal services program to take on a litigation campaign to establish the habitability principle.
More broadly when we select humorous but decontextualized or antiquated cases like Hamer v. Sidway, Lucy v. Zehmer, and Leonard v. Pepsi, we subtly normalize the stories of white men as paradigmatic, and reinforce the invisibility of women and BIPOC. These cases can readily be replaced with cases whose dramatis personae reflect the identities and struggles of diverse Americans. As we also consider assembling free or low-cost learning materials, essential for promoting law school access, we have the occasion to say goodbye to these old chestnuts. I would love to hear from fellow Contracts teachers who are reconstructing syllabi and reading materials along these and other lines.