Tuesday, January 21, 2020



Excerpted From: Blake D. Morant, The Relevance of Race and Disparity in Discussions of Contract Law, 31 New England Law Review 889 (Spring 1997) (270 Footnotes) (Full Document)

blakemorantTeaching contracts to eager first-year students comprised my primary goal upon entry into the legal academy. This decision not only sprung from the realization that contract law comprised a dynamic course which greatly accommodated the Socratic style of teaching so suited to my pedagogical preference, but it also conjured significant fascination as well as intellectual honesty. Once granted the opportunity to teach this dynamic field to fledgling law students, my strategy was clear: teach contracts generically, devoid of emotion and “controversial” topics such as race, gender, ethnicity, or class.

Discussion of contract law and its function presents the illusion of empiricism, highlighted by clearly defined rules that serve practical goals focused upon market preservation. Contractual rules are designed to guide parties in the formation of prospective bargains; encourage the creation of bargains by minimizing transaction costs; fill certain gaps in established bargains where consent is bona fide notwithstanding the parties' failure to articulate certain facets of their bargain; allocate resources; and create rights and duties, the enforcement of which provides surety to potential bargainers. Given these seemingly impartial goals which beg resistance to subjective factors influencing bargains, it would appear unnecessary, if not imprudent, to delve too deeply into normative functions that defy objectivity.

Before actually teaching the discipline, my read of these impartial objectives led to a steadfast belief that the law of contracts was reflective of objectivity and, consequently, devoid of human foibles. With underpinnings supported in some degree by modern economic thought, the study of “bargains” seemed academically safe and politically neutral. My function in the classroom would have been to impart the nuances and complexities of contract law as marketplace theory, without the intrusion of human emotion and subjective reasoning.

Yet the operation of contractual rules within the reality of human conduct belie the facade of objectivity. Rules of law do not constitute panaceas for transactional ills, and should be scrutinized to ensure their efficacy. This truism of imperfect objectivity led to the rise of the neoclassicists in the field. Indeed, contract law manifests complications reflecting the individuals who originated the rules of that discipline, as well as those governed by and impacted by those rules.

Nonetheless, my method of teaching contracts remained unchanged: portray contracts as an empirical doctrine, mostly governed by rules of efficiency. As I began to dissect the reasons for this aversion, my reasoning and goal became even more steadfast: teach law--pure law, and avoid discussions of race, gender, discrimination, and other sensitive issues that would overly complicate matters and stray away from the primary object of imparting law. Moreover, because of my fear of inflammatory reaction, incitement of rancorous discourse, and distraction from the seemingly more important goal of imparting contractual doctrine, this sterile approach appeared most prudent.

Although I garnered success as a teacher overall, my experience as well as “reality” in teaching contracts prompted reexamination of my strategy. Obliteration of subjective notions, imbued in motivation and perception, failed to provide complete explanation and analysis of certain decisions. Moreover, my avoidance strategy violated a cardinal credo that judicial decisions should be evaluated contextually, as well as literally, in order to gain complete comprehension of its reasoning.

In motivating the students to dissect the constructs of contract law, their analysis of cases or problems would be incomplete without the consideration of all factors influencing the application of contractual rules. To ignore subjective issues of race, gender, or issues of disparity would be disingenuous when in fact such factors (perhaps not by themselves) impact both analysis of factual situations and outcome of disputes. My “avoidance” approach was tacitly reflective of “colorblindness,” which at the least would be misleading and, at most, deleterious to the complete comprehension of reasoned analysis.

While race and issues of disparity may be tacitly or overtly excluded from discussion, they could not be completely excised given my very presence in the classroom. Moreover, the advent of famous United States Supreme Court cases such as City of Richmond v. J.A. Croson Co. and Adarand Constructors, Inc. v. Pena, each of which included contract rights as its genesis and were notoriously familiar to my students, also implored race as a potential issue in contract law. News of the Croson and Adarand decisions and my obvious ethnicity raised my students' consciousness of race within the context of the pedagogy. Moreover, my original strategy of objectivity became disingenuous given the realities of certain transactions wherein race may be a factor in parties' decisions about potential bargains. race may possibly affect decisionmakers' thought processes in adjudicating contract disputes. After discovering this conflict, my teaching methodology incorporated discussions of race and other issues of disparity when they appeared to influence the analysis of contractual rules within given situations.

Issues of race generally conjure thoughts of Williams v. Walker-Thomas Furniture Co. and the concept of unconscionability. Yet discussions of issues peculiar to disadvantaged groups are not necessarily confined to unconscionability. Indeed, monumental decisions in the area of contracts, while masked in concepts other than contract theory, implicate various aspects of contractual theory as it relates to the analysis of bargains as a whole.

This Article proposes that those who teach, research, or practice contract law should broaden their perspective to ensure that the dynamics of human perception and disparity based upon race, gender, and class are explored in case analyses when these issues play a role in the analysis of legal rules. When relevant, issues of disparity should be considered and analyzed, not as exclusive determinants, but as possible contributing components to the thought processes that lead to the formation and breakdown of bargains. To ignore matters of race, gender, or any type of disparate treatment because of contract law's objective facade would be both myopic and misleading. Cases should be examined in view of the applicable rules of law, as well as the modalities of perception that influence bargainers in the conception, negotiation (“preformation”), formation, and subsequent performance of contracts.

Raising the specter of human perception in contracting, this Article challenges, or perhaps attempts to enhance, the contemporary contractual paradigm that is presently dominated by traditional or “classical” contractual notions of personal autonomy and freedom and the objective manifestation of assent. Part II elucidates the paradigm's emphasis on consent and promissory exchange as justifications for the enforcement of bargains. Harbored in the constructs of the classical model, a subset of which is the bargain principle, lies an antithetical paradox. Objective manifestations of assent, together with the existence of exchanged promises, may doctrinally merit enforcement of agreements; yet the essentiality of true or authentic assent should overshadow enforcement of bargains burdened by deleterious opportunism, negative perception, or other distortions of the bargaining process.

Subsequent to the portrayal of the classical model, Part III explores the operation of contractual motivation, a surprisingly ignored phenomenon that significantly impacts the genesis of bargains. Examination of motivation not only provides insight into the formulation of parties' goals and expectations, but also elucidates the function of perception within the bargaining process. This revelation lays the groundwork for the consideration of race and issues of disparity within transactional processes.

In Part IV, the Article discusses the final leg of the contractual paradigm, paternalism. As a functional nexus between the sometimes harsh consequences of the classical model and the bargain principle, and the operation of disparity within the bargaining context, paternalistic intervention into seemingly valid agreements represents an imperfect yet necessary device which polices the legitimacy of consent. Unconscionability, as a subset of paternalism, is shown as a suitable vehicle for injecting issues of race and disparity into discussions of contractual analysis; however, the doctrine's suitability for this task is awkward given its amorphous definition. This Article attempts to rectify this problem through an examination of the doctrine's purpose, which should provide a more cogent justification for the inclusion of disparity issues. The often-discussed case of Williams v. Walker-Thomas Furniture Co. is reviewed by highlighting its surprising de-omission of race in both the facts and reasoning. Scrutiny of the Williams case and the unconscionability doctrine, in general, should provide insight into ways in which issues of race may be included in a court's discussion once the foundational relevance of that issue has been established.

Discussion of the contractual paradigm should reveal a critical postulate: comprehension of the dynamic forces that produce a “contract” creates a symbiosis. Individual components of the paradigm tend to coalesce due to their concerted goal of substantiating consent. Despite their seeming irrelevance within the stark rigidity of “renewed” classicism, matters of race and disparity become inexorable considerations in the enforcement of bargains if genuine consent is at all critical. This push for “true” consent, devoid of cognitive operations of negative perception, supports this Article's ultimate thesis: when race is pertinent or possibly influential within the analysis of cases, it is imperative, as well as academically honest, for teachers and scholars to consider the impact of race or disparity within discussions of applicable contractual rules.

[. . .]

A post-class discussion with a student concerning the Williams case evoked a profound revelation. Noticing the conspicuous omission of Ms. Williams' race from the exchange, the student commented, “I read somewhere that the plaintiff, in that case, was a Black woman. Wouldn't that fact possibly affect the furniture company's (sic) and the court's treatment of her?”

As I guardedly addressed the student's question in the affirmative, I suddenly became cognizant of the shortcomings in my pedagogy. Not only had I omitted or avoided racial issues in my class, but in so doing, I also restricted the depth of transactional analysis I so doggedly sought to encourage.

Despite the rigidity of the reborn classical theory of contract and my previously miscued presumptions, issues of race and disparity should be incorporated in discussions of contractual problems. While those factors are not necessarily important in all contexts, they should be explored whenever they conspicuously or tacitly impact either the bargainers' actions prior to formation, or the decisionmaker's adjudication of the formed bargain. This latter caveat may appear to perpetuate “avoidance” and further reflect the perceptional fears I maintained when I first taught the subject; but its true impact serves to treat issue of disparity as any other which negatively influences the bargain. To inject issues of race and disparity when they bear no relation to a controversy may be deleteriously inflammatory; yet to ignore them when they may be pivotal would be intellectually and academically indecorous. 

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

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