Tuesday, November 12, 2019

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Abstract

Excerpted From: Blake D. Morant, The Teachings of Dr. Martin Luther King, Jr. and Contract Theory: An Intriguing Comparison, 50 Alabama Law Review 63 (Fall, 1998) (284 Footnotes) (Full Document)

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At first glance, the speeches and writings of Dr. Martin Luther King, Jr. appear inapposite to or, at some cognitive level, irrelevant to the traditional law of contract. A cursory inspection of both reveals this paradox. Dr. King's goals and dreams reflect the realism and passion of the sixties' Civil Rights Movement, a phenomenon fueled by social consciousness and the proactive aftermath of the United States Supreme Court's path-breaking decision in Brown v. Board of Education. Judicial action evidenced by the Brown decision must have influenced Dr. King's omnipresent conviction that societal norms may be altered by means of constructive engagement and deliberate action.

Dr. King's messages present a fusion of justice, hope, and morality contrasted with the contextual realism of society's struggle with what Dr. W.E.B. DuBois termed the “color line.” Realism infused with optimism typifies Dr. King's rhetoric and plea for racial equality and harmony. His impassioned and immortal speech, I Have a Dream, constituted a striking prototype of the vehicle for his themes. Speaking from the steps of the Lincoln Memorial during the historic Civil Rights March on Washington, D.C. in 1963, Dr. King noted the feelings of hope and joy experienced by African Americans after the signing of the Emancipation Proclamation. He then contrasted this euphoria with the despair caused by racial conditions of the time. He stated:

[O]ne hundred years [after the signing of the Emancipation Proclamation] the Negro still is not free; one hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination; one hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity; one hundred years later, the Negro is still languished in the corners of American society and finds himself in exile in his own land.

Dr. King further underscored the erosion of hope and joy, emphasizing with vivid imagery the African American's limited access to basic American entitlements--life, liberty and the pursuit of happiness.

After focusing on past glory (emancipation from slavery) and the more contemporary malaise of African American disenchantment resulting from the denial of the fruits of that glory, Dr. King then advanced the lofty goal of universal inclusiveness. The “dream” portion of his speech proclaimed: “I have a dream my four little children will one day live in a nation where they will not be judged by the color of their skin but by content of their character.” He then dramatized this aspired universality with the plea for interracial harmony and unity in an unfathomable 1963 context: “[I]n Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification, … little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.”

Of course, Dr. King's philosophies of universality, hope, and social justice were not confined to his I Have a Dream speech. Many of his other writings and speeches echoed these themes, along with an agenda of proactivism, where responsible persons would embrace and take deliberate action to reinforce hope, dignity and social justice. Before an assassin's bullet felled him on April 4, 1968, at the Lorraine Motel in Memphis, Tennessee, Dr. King authored Where Do We Go From Here, one of his last public addresses. This work not only emphasized this poignant charge of hope and dignity, but also expanded his message to include a more transformative agenda. Universal themes of global peace and proactive justice became cornerstone aspirations. Dr. King also tinged his aspirations with theological concepts of morality and abjectly renounced hedonistic individualism. His rallying cry became a moral commitment to alter societal circumstances that exacerbate hopelessness and despair. He augmented this plea with an optimistic call for universal justice and harmony.

Contract law, on the other hand, presents a seemingly stark contrast to Dr. King's messages of hope and justice. Contract rules possess few semblances of passion, hope or love. Dispassionate principles that presumably provide an efficient system of transactional conduct dominate its character. On its face, the theory of contract is objective, eschewing any notion of societal inequities that girded Dr. King's beliefs. The theoretical basis for contract, and bargaining conduct in general, revolves around the notion of assent and the need for some bargained for exchange of value. The deceptive simplicity of this formula fosters a variety of transactional goals which presumably offer societal benefits. Moreover, economic principles, which offer some theoretical justification for many contract rules, further this seeming objectivity. As such, a superficial examination of contract law reveals resultant rules that function empirically, regulating seemingly objective human transactions. The morality of contract law functions more as a system of abstractions where fungible bargainers utilize “off-the-rack” rules to form binding agreements. Justice, as a tacit force, results from strict adherence to stark rules of bargain formation.

Yet, the objectivity and abstraction fostered by the principles of contractual theory have an illusory quality when viewed in terms of actual human contexts. Because bargainers are affected and influenced by environmental and societal stimuli, their resultant conduct may not conform to the egalitarian goals of contractual rules. Indeed, the very act of bargain formation, i.e., discreet individuals searching out bargains to maximize the gain, represents an interpersonal dynamic that automatically implicates subjective notions such as judgment, information processes, bias, opportunism, and discretion.

This latter, more contextual view of contract theory forms the theoretical bridge between Dr. King's beliefs and teachings and the practical law of contract. Dr. King's humanistic desire for universality, hope and love, interpreted within the contextual realities of pejorative human behavior, such as prejudices, discrimination, and bias, illustrates a theoretical weakness of contract law. Even his accommodations in the segregated Lorraine Motel during the eve of his assassination in 1968 provide a contextual link between his message of universality and positive change and bargaining theory. The problems of bias, prejudice, and reduced acumen due to circumstance, all of which prompted Dr. King and many others to champion the courses of the disenfranchised, can allegorically reveal fallacies within the bargaining context. More critically, these problems expose the inability of contract rules, and the decision makers who interpret and apply those rules, to correct those fallacies. This reality of bargaining behavior shatters contract law's illusion of objectivity. It also commensurately prompts discussion of methods to cure the transitional ills resulting from those problems.

To some extent, contract law has progressed to allow certain defenses to compensate for these transactional ills when bargaining positions are disparate and contractual terms are unfair, as well as when individuals are unduly forced into agreements or are improperly encouraged to enter into certain deals. The law of contract also provides remedies for those who suffered some cognitive impairment at the time they entered the bargain. However, these correctional tools remain elusive, and only scratch the surface of transactional problems related to greed, prejudice and other forms of negative opportunism. These problems alter bargaining judgment and marginalize disadvantaged bargainers.

My aim in this Article is to utilize the theoretical teachings of Dr. King to underscore the need for a more realistic and contextual application of contract rules. The principal term here is realism theoretical constructs of bargaining relationships are deconstructed to allow for more proactive measures to counter pejorative conduct. This exercise is not intended to dismantle the rules of contract. Rules are fundamentally required mechanisms within any transactional enterprise. But contextual realities demonstrate a need to construe and apply contract rules more flexibly, thereby allowing decision makers to take into account such transactional ills as bias, opportunism, and prejudice.

The allegorical use of Dr. King's teachings, which portray the contextual realities of human dynamics, can emphasize the need to take a more expansive, less rigid view of contractual rules. Contextual realities, if employed by both judicial and legislative decision makers, can support remedial efforts that counteract the effects of biased bargaining behavior. This, too, may lend further support to the now recognized defensive tools of unconscionability, duress, undue influence, and capacity.

Part II of this Article utilizes jurisprudential constructs to form an analytical bridge between Dr. King's teachings and contract law. Finally, Dr. King's embrace of natural law will be examined through an analysis of his critical speeches and writings. This examination will be contrasted with the theoretical basis of contractual rules which demonstrate more positivist characteristics. The underpinnings of traditional, classical contractual theory include bargaining autonomy. This policy will be contrasted with the pleas for justice and equality espoused by Dr. King, who does not necessarily reject autonomy outright, but acknowledges its limitations.

Part II will also highlight the failings of rigid, classical contract theory as an idealistic mechanism. In its unabashed and unchecked form, classical contract theory fails to maintain the overall transactional goal of efficiency and marketplace integrity. This, then, provides an appropriate transition into the motivational and perceptual factors which can dictate and influence bargaining conduct. Modern contractual theory fails to overtly recognize the influence of cognitive processes, i.e., motivation, bias, or prejudice, that drive bargaining behavior. But an appreciation of these influences, and the need to neutralize their effects, will provide a foundational parallel between the law of contract and the basic constructs of Dr. King's teachings. They also serve to underscore the need for transactional remedy.

After establishing bargain motivation as a transactional variable, Part III of this Article will then use Dr. King's theories to buttress the need for a more flexible approach to the application of contract rules to transactions colored by bias or opportunism. The Article will debunk the belief that Dr. King's teachings were primarily tenets of natural law. An examination of the full dynamic of his writings reveals a more contextual ideology, one defined more by events of the time. Dr. King's teachings are defined more by circumstance than by abstractions. Despite the more superficial contentions that Dr. King called for judgment by character rather than color, the true essence of his teachings present a more complex agenda that embraced a proactive approach to the resolution of inequity and provision of justice. The contextual examination of his writings illustrates Dr. King's theoretical support for a more elastic application of the rules for contractual remedies such as unconscionability, duress, undue influence, and capacity.

Hopefully, this exercise will expand the conventional applicability of Dr. King's teachings beyond the customary problems of political disenfranchisement. His messages serve as a catalyst to examine the probative value of the effectiveness of contract rules. They also enliven the debate for a less abstract dependence on contractual rules as they relate to bargaining inequities.

[. . .]

The Reverend Martin Luther King, Jr. was multidimensional, and his writings reflected that diversity. While he embraced the ideal of morality as a higher order, that naturalist notion only defines one aspect of his overall philosophy. Indeed, morality served as a preliminary litmus test that evaluates existing legal structures and illuminates their fallibility. But this critique does not end with legal deconstruction by mere comparisons to naturalist principles. The context in which legal structures or rules operate becomes an operative, evaluative factor.

Dr. King's views were born of circumstance, and that circumstance should be used to evaluate the effectiveness of societal structures such as legal rules. Certainly, his messages focused upon the political ramifications. However, Dr. King's broad critique of law has had applicability to every legal structure, both political as well as economic.

If political rights are synchronous with economic rights, then the evaluation of economic structures becomes critical in the attainment of true equality and justice. Certainly, the foundational elements of contract law can be focal points in that analysis. As Dr. King has observed, rules alone are not solutions--they are mere attempts at solutions. That limitation, however, need not end the analysis. Rules, adjudicated within the full scope of actual human dynamics, have the potential of effectuating bona fide, remedial change. Perhaps decision-makers will eventually heed this point as they wade through the sterile rules of contract law. 


Associate Professor of Law, Washington & Lee University School of Law; J.D., B.A., University of Virginia.

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