Friday, May 21, 2021
I just received my copy of the third edition of Dorothy Brown's Critical Race Theory: Cases Material and Problems. The book devotes about 35 pages to a discussion of critical race theory and contracts, which is the subject of this blog post. The rest of the book provides an introduction to critical race theory and then there are individual chapters dedicated to torts, contracts, property, criminal procedure, criminal law, and civil procedure. The book seems ideally suited to a course dedicated entirely to critical race theory. I would be interested in hearing from contracts profs who have also made use of the book in their course. The book is not expensive, and since it's been out since 2014, there ought to be used copies in circulation, but it is still hard to make students buy a 330-page book, if you can only assign the introductory chapters and the contracts chapter. Ideally, one could get a group of doctrinal faculty members across the curriculum to each assign the relevant chapters for their courses, but that's would involve herding cats, so . . . .
The chapter on contracts begins with excerpts from an article, Racial Inequality in Contracting: Teaching Race as a Core Value by friend of the blog, Deborah Zalesne (pictured left). In it, Deborah pushes back against the law school imperative to train students to "think like a lawyer" by mastering "objective," "neutral" rules of general applicability. Approaches to doctrine that value efficiency rather than fairness bake into the law assumptions that privilege the dominant groups whom the law was designed to protect. Introducing critical approaches to the doctrine right from the start is the best way to train lawyers who know the law but also know the ways in which it applies inequitably along lines of race and gender.
Courts suppress the interplay of race, class, and gender with contracts law because lawyers and judges are trained to treat such matters as irrelevant to legal decision-making. As a result, the race and gender of parties to legal proceedings are erased, rendering women and racial minorities "invisible" in the case law. In order to counter this trend, Deborah explores the relevance of race to contracts doctrine in connection with consumer racial profiling and culturally sensitive approaches to assent and interpretation.
After that introduction to a critical race theory approach to contracts, the chapter provides a some background on unconscionability doctrine, followed by Judge Skelly Wright's opinion in Williams v. Walker Thomas Furniture, about which we have posted recently here. There follows an excerpt from Amy H. Kastely's 1994 article, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law. Professor Kastely provides a critical perspective on Skelly Wright's opinion. Although Skelly Wright appropriately invoked the unconscionability doctrine in the case, along the way he indulged the stereotype of the poor, uneducated, helpless Black welfare recipient. The opinion has about it the whiff of paternalism. Professor Kastely thinks the opinion could have improved by focusing not on the particulars of Ms. Williams' situation but on the structural racism that creates the climate in which predatory business practices thrive. The law often asks how a "reasonable person" would respond to the facts of a case. As it turns out, we all respond pretty much the same way to form contracts, but vendors would never get away with offering terms, like Walker-Thomas's notorious cross-collateralization clause to consumers in affluent (White) neighborhoods.
The chapter next provides additional commentary on the Walker-Thomas opinion in the form of a student note by Eben Colby, now a partner with Skadden. Colby suggests that Skelly Wright's intervention did little to protect consumers like Ms. Williams. Walker Thomas adjusted its contract, but it continued to pursue remedies against its customers, who continued to fall behind in their payments. Statutory measures, such as the Truth in Lending Act, turned out to be more effective in disciplining the company than the common-law unconscionability doctrine.
The chapter concludes with Muriel Morisey Spence's fictionalized account of the facts of Walker-Thomas in an excerpt from her article, Teaching Williams v. Walker-Thomas Furniture. Her alternative facts render Williams a more sympathetic party, to the extent that students may be inclined to judge her harshly for buying a stereo system that cost several times her monthly income. Professor Morisey's approach strengthens the criticisms posed in the previous segments. Skelly Wright's approach is paternalistic, and that paternalism cabins the unconscionability doctrine is ways that are not helpful. The particularities of Ms. Williams' background explain very little. She was a responsible mother and a wise consumer who managed her household on a tiny income for years. What befell her could have befallen any consumer, regardless of education or income, because people often face unforeseen financial setbacks and are suddenly on the wrong side of a nasty contractual term of which they never had any reason to take notice.
The book contains great materials, and they remain timely. That said, there are now many contracts profs who have concluded, for precisely the reasons given in the chapter, that Walker-Thomas is not the best vehicle for introducing students to the doctrine of unconscionability. If a new edition is in the works, it is to be hoped that it could be revised to consider the many contexts outside of unconscionability where race and the law intersect. The links below provide some examples of what those contexts might be.
This post is part of a continuing series on introducing critical perspectives, including critical race theory, into the teaching of first-year contracts. Other posts in the series include:
- Guest Blogger Marissa Jackson Sow on Whiteness as Contract and the Police, Part II
- Guest Blogger Marissa Jackson Sow on Whiteness as Contract and the Police, Part I
- Teaching Assistants: Marissa Jackson Sow, "Whiteness as Contract"
- Teaching Assistants: Threedy, Dancing Around Gender
- Guest Post by Alan White, Systemic Racism and Teaching Contracts
- Guest Post by Deborah Post on Williams v. Walker-Thomas
- Guest Post by Chaumtoli Huq, Part III: Counter-Hegemonic Narratives
- Guest Post by Chaumtoli Huq, Part II: Freedom to Contract and the Reasonable Man
- Guest 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