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Deborah Zalesne

Abstracted from: Deborah Zalesne, Racial Inequality in Contracting: Teaching Race as a Core Value, 3 Columbia Journal of Race and Law 23 (2013) (170 Footnotes)


      Today's students live in an era that the most dominant social voices declare to be a “post-racial society.” Issues of “discrimination,” it follows, are simply isolated incidents easily addressed by the panoply of existing civil rights laws. This belief creates expectations on the part of first-year law students who may dismiss or ignore the existence of structural racism, sexism, and classism. The law not only creates structures of subordination, it also makes them invisible. Revelation of the subordinating effects of legal rules is an important first step in legal education.

      Traditionally, much of the first-year law school curriculum is teaching students to “think like lawyers.” This includes learning, at least as a baseline principle, that the law is objective and is generally applied equally to all people. The underlying assumption is that the law includes all cultural perspectives, and therefore should be unaffected by the discourse on race and gender. While law students are commonly taught to analyze and dissect case law and legal doctrine, they are less frequently taught to question the fundamental and unstated assumptions on which legal doctrine depends. Without the requisite training or critical perspectives, students who assume neutrality and objectivity accept a flawed analytical structure.

      Contract law provides a particularly rich and interesting backdrop for the analysis of racial assumptions, in part because of its racially-charged history and the ways in which the doctrine is inextricably linked to race. Further, a complete understanding of contract disputes routinely requires an analysis of the effects of inequality, including race dynamics, on parties' bargaining choices. This Article starts from the premise that the best way to properly train students to question the fundamental assumptions of contract doctrine is to fully embed the critiques in the analytical structure and legal analysis of the doctrine we teach our students.

      When contracts scholars talk about economics, they traditionally refer to neoclassical economics of the type espoused by Judge Posner. Neoclassical contract theory embraces the idea of formal legal color blindness in assessing the validity of a contract, assuming that an individual's race or ethnicity played no role in a contract's formation or content. By focusing on ““efficiency” rather than “fairness,” the neoclassical perspective assumes a certain level of natural fairness and self-regulation in the system, even when there are great disparities in wealth. The neoclassical perspective that dominates contract doctrine also assumes autonomous choice and self-sufficiency on the part of economic actors. These assumptions require courts to treat all consenting adults the same way based on the notion that the rational economic actor has no race or gender. However, Anglo-American law was written by and for white men and the rational economic actor has been conceptualized principally from a white male perspective. The law privileges this perspective, often ignoring the contested meanings and competing perspectives that exist in the wider society.

      The apparent neutrality of contract law masks the distributive effects of legal rules. Contract is an area of private ordering, but it is courts that invalidate or legitimize the allocation of power between or among parties to a contract. Unspoken assumptions about power--who has it, who may use it, and how it may be used--are embedded in contract law and theory. These assumptions may conceal bias, the impact of stereotypes, and cultural preferences in a court's final decision. An analysis that presumes neutrality on the part of the court and autonomy on the part of the parties to the contract overlooks the various advantages and handicaps that people bring with them to each transaction, some of which may be the result of the social identities of the parties. The market, both as an institution and as an analytical concept, is flawed. The flaws are ignored or hidden in contract jurisprudence with particular (unintended) consequences for people of color and other disenfranchised groups. A “neutral” free market system tolerates certain pockets of discrimination or discriminatory impact in contracting. These practices are, in turn, endorsed by the law in the name of private ordering and freedom of contract.

      Courts and theorists have struggled to address the effect of identity in contract. The choices are represented as a set of trade-offs among moral, political, and practical goods, based on a general conflict between competing concerns about autonomy and social welfare. Legal protections cut both ways. Legal rules that protect vulnerable parties can address vast disparities in bargaining power. These rules redistribute power by lending the power of the state to some of its most disadvantaged citizens. At the same time, the legal doctrines that police contract bargains often employ harmful stereotypes, seemingly justifying intervention in terms of the ignorance, incapacity, intellectual deficiency, or lack of will power of the protected party. In this political struggle, oppositional forces may employ a rhetorical strategy that turns remedial action or constraints on overreaching or predation into “special protection” for people of color or white women. The law can cast the “victim” as “not only ignorant, incapable, or dishonest, but also advantaged--perhaps even unduly In the end, the redistribution of power to the powerless, cast in terms of the characteristics which make them marginal, works to maintain the hierarchical differentiation between blacks and whites and women and men. The dilemma is thus how to redistribute power without resorting to the cultural tropes and scripts that exist in a stratified society.

      Critical legal theory provides a useful lens through which to consider this dilemma. At the heart of critical theory and jurisprudence is a belief that the law is rife with bias and subjectivity. Critical legal theorists do not agree about the best ways to address such bias. Some critical race theorists embrace contracting as a means of empowerment. For example, many feminist and LGBT legal scholars believe that individual liberty can be achieved by contracting around society's default rules or restrictions (for example, contract can facilitate gay and lesbian relationships and parenting arrangements outside of the positive Other critical legal scholars focus on contracts between members of the subordinated community and members of the dominant society, expressing concern about the limited bargaining power of most people of color and other historically disadvantaged groups.

      Most law school contracts classes feature the dominant economic paradigm of transactional law, disregarding critical legal theory. We cannot rely on specialty or seminar courses to raise the difficult issues of race, ethnicity, gender, sex, disability--characteristics that mark people or communities as ““other”--and make up for their absence in traditional first-year course materials. Indeed, doing so reinforces the message that such concerns are at best marginal and at worst irrelevant and a waste of time that should be spent on “black letter law.”

      In the early stages of law school, students do not know what to do with their own beliefs and information-filtering systems as they read cases. They certainly come to law school with values and beliefs about how the law can impact social and political issues, but they do not necessarily know how to use those beliefs effectively in their legal analysis. Often, the use of these pre-existing beliefs is minimized in class, in many casebooks, and certainly in study aids (including hornbooks and commercial outlines).

      This Article addresses the importance of incorporating discussions about identity in the first-year core curriculum. It offers specific materials and techniques for doing this in a contracts class, with emphasis on the necessity and the value of grounding theoretical analysis squarely in the instruction students receive in legal reasoning. The Article proposes that issues of identity should be incorporated into the classroom not only when the parties in the cases are people of color, and not simply as a politically correct exercise, but pervasively throughout the semester; this incorporation will advance students' legal reasoning skills and understanding of legal rules and doctrine. This approach should improve the law school experience for most students and produce better lawyers who are more capable of practicing law holistically.

      The Article uses race as a starting point to talk about identity in the broader sense; the strategies proposed in the Article, relating to teaching about the law's effects on people of color, can also be used with different groups. The Article highlights the competing values critical race theorists grapple with in challenging race neutrality and the ways to use this debate to broaden the classroom discussion to consider the relevance of identity in any legal regime. Specifically, the Article examines the effects of various race-neutral contract law doctrines on people of color and their ability (or inability) to empower themselves through the longstanding practices and legal institution of contracting.

      Part Two provides a brief overview of critical race theory and discusses how and why aspects of critical race theory should be taught explicitly in the mainstream curriculum. Specifically, this Part highlights three distinct features of critical race theory that can be used as a starting point for law teachers to incorporate issues precipitated by race into the mainstream curriculum.

      Part Three makes specific suggestions for teaching about racial inequality in contracting. Using the three features of critical race theory described in Part Two, Part Three suggests that race theory can and should be raised throughout the course when teaching the race-neutral doctrine, despite the courts' silence on these issues in most cases. Specifically, this Part identifies various contracting issues that tend to be impacted by the race of the parties, and suggests cases in these doctrinal areas that can provide a useful backdrop for discussing the effects that race can have on contracting. For each doctrinal area, the Article poses thought questions to push forward the class's thinking about these issues and to highlight the impacts of the doctrine on some people of color. The overarching question presented by each of these doctrinal areas is what role race should play in legal analysis.

      In the broadest terms, the Article addresses the potential power of the relationship between skills and theory and the ways in which legal reasoning can elevate general race theory from social science to legal persuasion. The Article focuses on developing students' ability to see what may appear to be a narrow legal problem in a broader social and political context. It highlights ways for courts, parties, and students to strategically incorporate race theory in articulating arguments. The suggested questions in Part Three are meant to encourage students to identify underlying premises and implicit assumptions reflected in the law, and to develop awareness of their own and alternative theories and perspectives and their implications for law and lawyering. One goal is to get students to bring what they already know about social mores, cultural values, and historical perspectives to bear in the class discussion, making the cases more “real” and students more passionate, more analytic, and more confident.

* * *

      Law professors have a great deal of power because we teach students what to include and what to exclude in their analysis of the law. It is incumbent upon law professors to make people of color visible in contracting. For any given case, there are many different rules embedded in values that are often in conflict with each other. To resolve these varying legal values requires teachers, as those with power, to make what are inherently political choices that often legitimize and reflect the social values and power of the dominant class. In this role, we should encourage students to challenge ideas and the inherent political choices and influences within the law, rather than accepting information no matter how it is framed.

      It is impossible to teach law without awakening racial and cultural conflict and it is best to be prepared to include discussions of race so that one may do so in a purposeful and constructive way. Those marginalized by the white, male perspective of law school are usually forced to learn the dominant perspective while already possessing a keen understanding of the “margin.” However, those who are not outsiders will not likely see other perspectives unless they are taught or happen to come to law school with some experience that has given them some other perspective.

      Students cannot truly understand the law, how it operates in our society, and most importantly, how to use it on behalf of clients and society without seeing how race has influenced its creation and continues to be a factor in the way that the law is applied. For students of color to understand doctrine in a way that does not contradict their histories, values, and experiences, and for white students to understand the law more holistically and comprehensively, other perspectives must be acknowledged and taught. Encouraging students to examine their own assumptions and be mindful of other perspectives helps them contextualize the inherent racism in the law and understand its effects.

      The reality of the limits of race-neutral doctrine is often much clearer to law students of color who experience exclusion as they learn the doctrine. Many white students whose beliefs and values are reinforced by law school are confused by why African American students do not feel similarly. There is an assumption that white students and professors, by not directly referring to race, are neutral and that their perspectives are not racialized. This lack of perspective masks a “white middle-class world view,” that requires students of color to adopt and speak on behalf of a perspective that is not their own. The problem for students of color is compounded by the fact that if they mention this major flaw in the law, they may be judged as self-interested, inappropriate, or as taking the classroom conversation in irrelevant “tangential” directions.

      The results of this situation can be far-reaching. Students who feel “at home” or comfortable in the academic environment may be more likely to access a range of services such as professors, teaching assistants, academic support services, and writing centers. A contextualized analysis of the law that challenges the normalized assumptions inherent in the teaching of the law can help to reduce the classroom alienation of women, students of color, and students who may be marginalized for a variety of reasons, and ultimately have a positive effect on their academic performance.



. Professor of Law, City University of New York School of Law; B.A., Williams College; J.D., University of Denver College of Law; LL.M., Temple University School of Law.