Excerpted From: Chaumtoli Huq, Integrating a Racial Capitalism Framework into First-Year Contracts: A Pathway to Anti-capitalist Lawyering, 35 Journal of Civil Rights & Economic Development 181 (Spring, 2022) (224 Footnotes) (Full Document)

chaumtolihuqNationwide protests against police brutality in the summer of 2020, coupled with the high rates of COVID-19 deaths 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 institutions that educate future lawyers to be anti-racist, so they can, in turn, create a legal profession that is anti-racist? Being anti-racist is making conscious choices to fight racism in all its forms: individual, interpersonal, institutional, and structural. Being anti- racist also means addressing economic inequality, and as this article advances, being anti-racist is being anti-capitalist. It is not simply acknowledging racism but taking action to dismantle it. Increased scrutiny of the legal curriculum and whether law schools are explicitly addressing racism seems critical at this political moment, especially where we have witnessed Critical Race Theory coming under attack by the previous Trump administration and in the present political climate. In this article, I take this question to the classroom: what could an anti-racist/anti-capitalist contracts class look like? Contracts, or Law and the Market Economy, as it is aptly titled at CUNY School of Law, is one of the foundational first-year required courses. If we as legal educators believe that we must equip our students with the ability to address structural racism in our profession, then we must address it early on in our students' legal education in the 1L year.

How can I facilitate students' understanding of how race functions in law and empower them to make conscious choices as legal professionals to dismantle racism? Criminal Law or Constitutional Law professors may discuss race and racism under the premise that those courses lend themselves to an exploration of this topic. However, as a group of law professors who teach contracts and business law courses recently stated, "[f]rom slavery and redlining to lack of opportunity in the workplace and limited access to capital, race, and racism have always been part of business and business law." Entrenched neo-classical values of objectivity and rational choice embedded in contract doctrine, as well as the presentation of the doctrine as a mechanical application of rules, require professors to be more intentional about discussing race. For example, reinforcing the idea of objectivity in contracts leaves the impression that the doctrine is free from bias, and that there is a uniform set of lived experiences shared by all parties to a contract. More so in contract law, which entails the legal ordering of the market economy, it is important to examine the relationship of race, law, and capitalism.

For this reason, this past year and with the plan to continue to do so in the future, I introduced my first-year contracts students to the conceptual framework of racial capitalism. Briefly, racial capitalism can be described as the mutual interdependence of racism and capitalism, a form of capitalism that relies on and is maintained by the exploitation and reproduction of racial differences. Scholar Ruth Wilson Gilmore's oft-cited quote sums it up well: "[c]apitalism requires inequality, and racism enshrines it." This framework is not offered at the exclusion of other critical theoretical frameworks, but as a way to demonstrate engagement with contracts doctrine through one theoretical lens. 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 their clients and communities they seek to serve. Praxis allows students to draw connections between how they are learning law and how to mobilize that learning in support of social movements. It allows "advocates [to] dream into being new forms of governance ...."

I invite my students to engage in a dialogical and collaborative inquiry: what does racial capitalism add to their understanding of the law that is different from the dominant theories of classical and neo-classical economics in contracts? I also ask them to think about how this framework helps them to understand legal solutions and lawyering strategies. They are invited to share their thoughts with me directly or on our online course management site. In addition, I hosted a focus group discussion with a smaller group of students. This article will also share their comments.

My article centers on three main points using examples related to the praxis-oriented 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 capitalist market structures maintain racial discrimination; and finally, (3) reveals equitable contract theories' limits in addressing racism, helping students to identify anti-racist/anti-capitalist legal solutions to combat structural racism and economic inequalities. The examples in this article are for explicatory purposes rather than attempts to provide in-depth coverage of each point. First, I apply racial capitalism to Kirksey v. Kirksey, a case that many contracts students read for the principle that gratuitous promises are not legally enforceable, making visible the political and socio-economic contexts at the core of contract doctrine. Further, in providing students with background reading on the parties, I use the case to illustrate how seemingly neutral rules reinforce racial subordination. 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, 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, racial capitalism helps to explain why reparations remain 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 the extraction of wealth from communities. It is perhaps why even 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. Before I discuss these examples, I provide some context of how I am using the phrase racial capitalism in its broadest sense while remaining fully aware of its contested meanings.

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What emerged from these thoughtful student reflections underscored the importance of integrating critical frameworks into their study of law. Their insights reflected a sophisticated understanding of the law that they can better utilize in service of social movements. As I began this article, my goal was not to convince students of this approach, and I am sure many would disagree. It does catalyze students' ideas and provides them with a methodology that they can take into other classes and eventually into their lawyering. This pedagogy reflects a view of knowledge as generative, expansive, dynamic, dare I hope liberatory, in contrast to reifying one that is banked, contained, constrained, and perpetuates inequality. Given the enormous social, political, and economic challenges of our times and our collective pledge to build an anti-racist law school, integrating critical frameworks like racial capitalism into the first-year legal curriculum is an important first step. This perspective models praxis orienting students to legal solutions and lawyering approaches that seek to directly upend racial and economic injustices.