Excerpted From: Dylan C. Penningroth, Race in Contract Law, 170 University of Pennsylvania Law Review 1199 (May, 2022) (651 Footnotes) (Full Document)


DylanCPenningrothLaw schools are once again wrestling over whether and how to incorporate race and slavery into first-year courses. Legal scholars have grappled with the relationship between race and law for a long time but, until recently, little of that scholarship has focused on the place of race in contract law. Discussing race in the private law domain of contract is difficult for several reasons: because many faculty feel unprepared to discuss race; because matters relating to race are typically taught in electives and in public law courses such as criminal and constitutional law; and because race is usually treated as context--so tangential to the substantive doctrinal rules and concepts that many faculty are expressing concern that they will have to skimp on the doctrine to make room. But incorporating race is also difficult for a reason few have fully appreciated: because over time judges and scholars have selectively played up, played down, and forgotten the presence of Black people in American contract law.

This Article is the first to investigate systematically the role of African Americans and race in the development of modern contract law. It offers three interlocking arguments. First, drawing on a range of archival sources, including a large sample of civil cases heard in county-level trial courts, the Article shows that African Americans have engaged vigorously and routinely with contract law for more than 150 years. This finding challenges the dominant scholarly assumption that, before the civil rights revolution of the 1960s, state and local law functioned as tools of social control against African Americans, who were kept ignorant of legal rules and alienated from legal institutions. By demonstrating that Black people exercised the civil right of contract and that southern state and local courts before the 1960s recognized those claims, this Article reveals Black people as legal actors and users of law, suggesting new ways of linking race with private law while deepening the contention that law is more than politics, more than a tool of subordination wielded by dominant groups. For African Americans, the rights associated with contract were among what I have elsewhere called “rights of everyday use.”

For decades, historians, sociologists, and legal scholars have started from the premise that Black southerners before the 1950s lived under “Negro law,” a separate and unequal criminal justice system designed “for enforcing caste rather than securing justice,” one that left Black people alienated and fearful of courts, and ignorant of law. But precisely because federal law barred the creation of a separate body of contract law for African Americans, legal professionals have frequently relied on what I will call “'colored’ cases”--cases involving African Americans, hypotheticals and cases deploying racial metaphors and analogies, and hypotheticals and cases using theories about slavery--to develop common-law rules and to think through major doctrinal and theoretical problems in contract. The term “colored” comes from a bygone historical era. I use it purposefully here, for three reasons. First, unlike “Black,” “colored” reminds us that perceptions of race rely heavily on context as well as phenotype; you can't necessarily tell who is “colored” just by looking. Second, the term signals that these dynamics were not unique to cases involving people of African descent. Finally, the dynamics this Article describes are not limited to the bygone past, and this concept, with its historically specific terminology, reminds us how important it is to think historically when thinking about contract law.

Indeed, history has become central to recent discussions of race and law, as a small but growing number of legal scholars revive a longstanding critique that prevailing modes of legal education and legal scholarship hide the profound influence that slavery, the violent dispossession of Native Americans, and cases involving racial minorities have had on contract law, property, and civil procedure, as well as public law domains not conventionally associated with race. But these works tend to focus on cases that explicitly discuss race. In fact, as this Article will show, many of the most influential cases involving Black people are the ones that do not talk about race. It is not enough to show that race has disappeared from the casebooks and the Restatement. We must also ask why and how it disappeared, how it got there in the first place, and what we really mean when we say it has been “erased.” Answering such questions requires going beyond well-known cases and standard electronic searches on keywords such as “Negro” or “slave” or “Indian.” It means looking at trial court records, and sometimes at archival or even oral sources. And it means considering racial minorities not only as objects of law or as stand-ins for “race,” but also as legal thinkers and users of law.

This wide-angle, archivally-informed approach makes possible the Article's third contribution: to explain what has happened to race in contract law, and why. Race now seems absent from all but the most marginal areas of contract law but appearances can be deceiving. Rather than a straightforward response to the imperatives of white supremacy or a decision made in classroom or casebook, race has appeared and disappeared from blackletter law over time and at all stages of the legal process, through what I call “doctrinal passing”: a complex interplay between the imperatives of legal advocacy, the normal flow of “doctrinal distillation,” and changing ideas about Black people and slavery. Similar to the way some “colored” people were allowed to “pass” as white, “colored” cases were “passed” silently into the heart of contract law and naturalized as white when legal professionals elided the fact that a litigant was Black, and when they turned slavery into an abstraction, detached from race. The very thing that made Black people's cases such useful vehicles for doctrinal development during the formative era of American contract law--the space they afforded for manipulating the materiality of race--tended to make them invisible.

One important difference, of course, is that people, unlike cases, have volition. But we should not overstate this. People don't always choose to pass. Sometimes, they get passed, unwillingly. Moreover, just as light skin was neither necessary nor sufficient for people to pass as white, doctrinal passing has depended heavily on context (for example, whether a case was discussed or cited alongside cases that were “about” race); context, in turn, has had its strongest effect locally and became attenuated with distance (for example, as a case moved to an appellate court); and it could be resurfaced without warning at any time.

Again and again, “'colored’ cases” enabled legal professionals to position slavery and race as exceptions within the world of contract relations: useful for theorizing issues they deemed more fundamental, yet peripheral to contract law itself and therefore liable to be stripped of their racial facts. As widely as legal professionals have relied on Black people's cases, they gradually stopped mentioning--or even realizing--that Black people were involved, except in the most marginal doctrinal areas. Whitening contract law enabled it to emerge as a distinct, coherent body of law but at a steep cost to its doctrinal and conceptual integrity and to the law school curriculum. The problem of race in contract law is not how to make room to discuss race without skimping on the substantive doctrinal rules and concepts of contract law. The problem is that some of the doctrines and concepts are not quite what they seem.

Consider Harrington v. Taylor, one of a trio of cases widely used to teach the principles governing promises based on past consideration. Harrington raises important questions about how racial minorities have perceived and used contract law, how canonical cases get chosen and presented, and how contract law gets taught. The case was an action to recover damages based on Lee Walter Taylor's oral promise to pay Lena Harrington, whose hand had been maimed when she stopped Taylor's wife, Arnisea, from killing him with an axe. The issue was whether Taylor's reneged promise was consideration for Harrington's sacrifice of her hand. The court held that it was not. A contracts teacher who wants to incorporate race might ask, “would the court have decided differently if Harrington had been Black?” But this is the wrong question because, in fact, Harrington was Black and so was everyone else at her house that night--her daughter Dorothy Strickland, her baby grand-daughter Ruby, and the Taylors. In assuming that Harrington was white, the casebooks are unwittingly teaching students a racial hypo. And this matters to the rule of Harrington.

The trial record, available by request from the state archives, reveals that Arnisea Taylor was a victim of domestic violence and suggests that the parties were trying to use contract law as a substitute for an unresponsive criminal justice system. The night before, she had gone to the police to report that her husband had beaten and threatened to kill her, but the police shrugged it off and simply dropped her off at Harrington's house a few doors down. When Lee Walter Taylor pushed his way in and assaulted Arnisea again, Arnisea picked up the axe Harrington kept for cutting stovewood, knocked him down with the flat of it, hit him again on the neck, and then swung at his head blade-first, saying “Let me kill him! ... If I don't kill him, he will kill me!” Harrington grabbed for the axe handle trying to stop her, caught the blade instead, and it severed her fingers against the door. By the time of the trial, Harrington had paid $59 for doctor's bills (not including medicine) even as her income--previously $26.75 a week, all from washing clothes--dried up. The bargain at issue in Harrington arose because, faced with a racist and sexist criminal justice system, private law was the only way to make Lee Walter Taylor pay for his violence. If the rule of Harrington is that a promise is not enforceable if it is made after the benefit is received, then shouldn't we wonder why Harrington, a Black woman in violently segregationist small-town North Carolina, thought she could enforce that promise and why she resorted to a bargain in the first place?

Answering such questions requires a reimagining of Black people's legal knowledge and the vibrant world from which it came. Part I of this Article recovers African Americans' engagement with contract law between the 1880s and the 1950s, a period that was, in a seldom-noticed coincidence, both the heyday of American apartheid and the formative era of American contract law. Drawing from my sample of 9,113 cases from trial court dockets at twenty-two county courthouses and five state archives, this Article shows for the first time that Black people participated vigorously in county and state courts across the South, even as their constitutional rights came under attack, and that contract law was for them a tool of everyday use. Parts II and III chart the rise and significance of “'colored’ cases” during the late nineteenth and early twentieth centuries, when contract emerged as a distinct legal topic in Anglo-American law. Part II argues that key principles of the Classical (formalist) approach to contract arose from the struggle to define freedom after the Civil War--a struggle aimed at destroying slavery without disturbing other forms of power and authority. As judges embraced freedom of contract as the bedrock principle of the modern legal order, they re-absorbed Black people as the exception that proved the rules, defining voluntariness, prudence, and capacity by reference to Black slavery, ignorance, and weakness.

Part III describes the impact of “'colored’ cases” on Legal Realism. Most Realists ignored issues of race but they, too, used Black people, racial metaphors, and slavery as tools to think with. At a time when white scholars and lawmakers used stereotypes of Black ignorance and incapacity to justify stripping away their constitutional rights, Black people's widespread legal activity produced contradictory impulses in private law, including in contract theory. On one hand, Blackness became the paradigmatic non-fact for objectivists: the prime example of a fact whose exclusion as non-material illustrated objectivism's core premises of voluntariness and formal equality. On the other hand, Legal Realists used Black people's relative powerlessness and disadvantage to attack objectivism's presumptions of voluntariness, capacity, and formal equality. But Realists did not criticize racial inequality itself. And thus, in pursuing their critique of Classical legal thought, they suppressed race or even deployed racist stereotypes.

Part IV charts the fate of race in contract law since the 1940s. It shows why, even as cases involving Black people still silently dotted the casebooks, law schools' explicit engagement with race shrank to one case, Williams v. Walker-Thomas Furniture, a case that was not typical of Black people's dealings with contract law and was already doctrinally marginal. The unconscionability cases made it difficult for legal liberals to mount a race-conscious structural critique of voluntariness. In the law of duress, legal liberals' efforts to cabin off race led them to distort the case law itself, a distortion that persists in the Restatement (Second) of Contracts. And when the first significant cohort of Black law students arrived at top law schools in the early 1970s, they found a curriculum that treated Black people as a categorical exception to the rules of contract law: incapable and irrelevant except as victims in “the law of the poor.” That treatment--which ignored African Americans' routine engagement with the full range of contract law, far beyond unconscionability--alienated Black students, a story I tell partly through the eyes of my mother, who enrolled at the University of Pennsylvania Law School in 1972.

The article's normative stance resides in its descriptive approach, but Part V offers some explicit recommendations for modifying the structure and implicit assumptions of the law school curriculum, and discusses when law teachers and other legal professionals today should talk about race in contract law.

The fact that Black people participated in contract law before the 1960s does not mean that Black people had power equal to white people, nor does it mean that law generally was colorblind--much less that it should be colorblind now. It does mean that it was easier to segregate some areas of law than others-- that it was easier to padlock the railcar and voter rolls than the deed books or even the courts. Current debates about colorblindness are too narrowly confined to public law and wrongly cut off from a rich history of African Americans using and helping to forge private law rules. To paraphrase the late Toni Morrison, the question is not, “why are Black people virtually absent from the canon of contract law?” Instead, we should be asking, “what intellectual feats had to be performed by legal professionals to erase Black people from a world of contracts seething with their presence, and what have those intellectual feats done to the law of contract?”

[. . .]

The formative era of modern contract law and legal education in the United States was also the era of slave emancipation and Jim Crow. Black people's exercise of contract rights in a world defined by white supremacy required whites to think of them as both ordinary and set apart, as people who were inferior yet “capable [of] transacting business.” Those competing visions of Black people's legal personhood emerged most explicitly in court cases, but they also permeated daily life. Then, from the 1940s to the 1960s, judges and activists reinvented that tradition under the banner of federal law, without realizing how old it really was or the role African Americans had played in making it. The same thing that made Black people's cases such useful vehicles for doctrinal development in private law--the space they afforded for manipulating the materiality of race--tended to make them invisible. “Doctrinal passing” was, and is, a dynamic, complex, mostly unplanned phenomenon, fashioned by many hands at all levels of the legal system, and any response to it must be equally nuanced and dynamic.

If, as has often been said, “we ... are all legal realists now,” then Law and Political Economy scholars seeking a “'fourth wave’ of legal realism” should think carefully about the intellectual genealogy of the original Realists, especially their approach to Black people, race, and slavery. If the “root flaw” of the Roberts Court is that it has revived the Lochner Court's Classical “presumption of a prepolitical, neutral baseline of market equality,” then critics should recognize that the key issue of that time--what the Realists and Classicists were fighting about--was the meaning of freedom in a country that had, for much of its history, defined freedom as the antonym of “African slavery.” Scholars should recognize that the Lochner Court's presumption that voluntary transactions “are, by definition, fair and equal” marked the triumph of the abolitionists' neutral baseline vision of market equality in a post-slavery society, and that the first testing ground of the “market freedom” idea in America was the contracts of Black people who had been born into slavery. The original Realists sought to expose and critique the unspoken moral judgments embedded in freedom of contract, to show that its “voluntaristic fallacy” was naturalizing contractual relations so unequal that they amounted to “industrial slavery.” Both Classicists and Realists used African Americans, race, and slavery as convenient thinking tools without seriously confronting what those words actually meant, especially to African Americans themselves. Their intellectual heirs today must grapple with that flawed inheritance.

In sketching this partial genealogy of contract law, the Article also makes a bigger argument about the relationship between law and history. Legal professionals often think of history as “context”: “descriptive” material to be “ransacked” to help “resolv[e] modern legal controversies.” And yet, like any other legal field, the doctrinal and conceptual unity of contract law rests, in part, on abstracting cases from their contexts, stripping “away what mattered.” The “'facts' as stated in a case” are partly “artifacts of the legal system” itself. Indeed, the “reported facts” of the great teaching cases are sometimes so truncated, and even inaccurate, that they are more like legends than “the historical truth.” And in law school, as in John Ford's Old West, when the legend becomes fact, we print the legend.

American law schools implicitly teach two important legends. The first is that contract law has little to do with civil rights, African Americans, or race. The second is that the history of civil rights, African Americans, and race is a story of legal liberalism and its failures--“how African American communities, and the lawyers and organizations that supported them, struggled to overturn Plessy v. Ferguson,” won a landmark victory over state-mandated white supremacy in Brown v. Board of Education, and fought to realize its promise. These two legends reinforce one another. The legal liberal interpretation and its critical heirs triumphed by throwing away alternative traditions of civil rights, including ones rooted in contract law. Modern contract law, in turn, was created in part by exiling “race” to the doctrinal niche of unconscionability and to other branches of law, especially criminal law and constitutional law, and by taking the massive legal-theoretical struggle over the meaning and limits of market freedom in a post-slavery society and turning it into abstract hypotheticals about “the negro” and “the slave.” Many of the cases reprinted or cited today in first-year contracts casebooks were chosen during the decades between the end of slavery and the end of Jim Crow. Those cases were chosen not because they were representative or frequently cited, but because men like Samuel Williston and Allan Farnsworth thought that they illustrated certain legal principles. Jurists established contract law as a conceptually unified field partly by burying their complicated choices about race. In a broader sense, race may have shaped the social domains in which contract was a key organizing institution, helping to demarcate contract from regulation in ways that made certain contracts impermissible, while steering politics away from forms of state intervention that would have limited the domain of contract.

Now, there is nothing necessarily wrong with legends, especially if they serve a useful purpose. Legal scholars, like judges and lawyers, must be choosy in their ransacking of history. But when the needs of the legal profession change, it may be worth asking whether the particular legends being taught are still useful or not. For fifty years now, law schools have struggled to attract and keep talented minority students and faculty, and to convince them that “the law” being taught is relevant to them and worth devoting their careers to. Yet the leading casebooks make it seem as though contract law has almost nothing to do with race or racial minorities or the struggle to define freedom in a world without slavery. And this doctrinal passing has cost law schools dearly. By making Williams v. Walker-Thomas Furniture the only “'colored’ case” first-year law students read, contracts teachers have inadvertently reinforced racial stereotypes and relegated racial minorities to the marginal, seldom-used doctrine of unconscionability. The point is general. There is no principled reason why only some parts of the law school curriculum--chiefly courses in constitutional and criminal law--should be responsible for teaching about the role of race and racial minorities in law, or why students interested in corporate law or contracts should be taught that those areas of law have nothing worthwhile to say about race. Many law students already realize this and are expressing their frustrations outside of class. The right to contract is a civil right. Understanding how long and how deeply Black people have engaged with the law of contract can help ease the damaging perception that racial minorities contribute only to cases that are “about” race. The curriculum needs to be desegregated.

But this might be easier than it appears. To paraphrase Toni Morrison once more, “[i]t only seems that the canon of American” contract law “is 'naturally’ or 'inevitably’ 'white.’ In fact, it is studiously so.” And the canon becomes more fascinating and more powerful when we begin to notice the unspoken presence of race and how studiously legal professionals have dealt with it. “'Colored’ cases” offer a useful window on judicial decisionmaking, lawyers' tactics, and case reporting, precisely because they obscure race. They belong at the core of our shared legal intellectual life. Indeed, more than we know, they are already there.

Professor of Law and History, the University of California at Berkeley; Affiliated Research Professor, the American Bar Foundation.