Gender Inequality in Contracts Casebooks: Representations of Women in the Contracts Curriculum

Gender has always explicitly or implicitly played a critical role in contracting and in contracts opinions—from the early nineteenth century, when married women lacked the legal capacity altogether to contract, through the next century, when women gained the right to contract but continued to lack bargaining power and to be disadvantaged in the bargaining process in many cases, to today, when women are present in greater numbers in business and commerce, but face continued, yet less overt, obstacles. Typical casebooks provide ample offerings for discussions of the ways in which parties can be and have been disadvantaged because of their gender and gender identity. At the core, gender inequity often stems from long-held stereotypes about women in contracting, which are often on full display in the cases. The vast majority of cases in the typical Contracts casebook are drawn primarily from the commercial context; sales, franchise, employment, and transfer of property cases predominate most Contracts casebooks, with many fewer cases in the family context. In the commercial cases, women and other people who do not identify as men, rarely seen as the businessperson, seller, or landowner, are sorely underrepresented, and the “non-male” perspective tends to be obscured. Casebook offerings involving non-male parties still tend to be clustered in certain areas—namely contract defenses, promissory estoppel, and family cases. The result is a Contracts curriculum that typically confines women to certain traditional roles and relegates women’s issues to a secondary status, privileging rational, arms-length market promises at the expense of family-based promises. The overall gender allocation in cases may or may not be reflective of the actual presence of women in the universe of American contracts cases. But either way, it raises some issues regarding how the typical casebook presents women in the realm of contracts cases, and overall, the role of women in contracting. There is, of course, a diversity of viewpoints and a multiplicity of voices among women and feminists, who are divided by age, race, religion, sexual orientation, gender identity, ethnicity, and class, among other things. There are divisions among feminists over the nature and source of gender injustice, as well as over solutions.2 Feminists differ, for example, over the roles of men and women (such as biological differences and cultural frameworks that land women as the primary caretakers most of the time), and whether and how the law should account for those differences.3 When it comes to contract law, some feminists embrace contracting as a means of empowerment,4 while others express concern over whether most women have the bargaining power necessary to protect themselves in the bargaining process. 5 The goal of the Article is not to set out in any detail the contours and fine points of feminist legal theory. Rather, the Article will simply highlight gender-based deficiencies in the ways in which women are portrayed in traditional contracts cases and casebooks, often as either victims, overly-aggressive commercial actors, or in other specific gendered roles such as bride, princess, nurturer, mother, spouse, or mistress. In doing so, the Article will highlight feminist themes and conflicts in contract law and the ways in which reliance on gender-based stereotypes can negatively affect legal analysis in Contracts cases

Racial Inequality In Contracting: Teaching Race As A Core Value

Today’s students live in an era that 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. The apparent neutrality of contract law in particular masks the distributive effects of legal rules. Contract is an area of private ordering, but it is courts that invalidate or legitimize the use or 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, 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 overlooks the various advantages and handicaps that people bring with them to each transaction, some of which may be the result of the social identity of the parties. A “neutral” free market system tolerates certain pockets of discrimination in contracting which are, in turn, endorsed by the law in the name of freedom of contract. This article addresses the importance of incorporating such 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 as a way of advancing students’ legal reasoning skills and understanding of legal doctrine. This approach should improve the law school experience for most students and produce lawyers who are more capable of practicing law holistically