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3 Colum. J. Race & L. 23 (2013)
Racial Inequality in Contracting: Teaching Race as a Core Value

handle is hein.journals/cjoral3 and id is 23 raw text is: COLUMBIA JOURNAL OF RACE AND LAW RACIAL INEQUALITY IN CONTRACTING: TEACHING RACE As A CORE VALUE DEBORAH ZALESNE* Todaj'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 easiy addressed by the panopy of existing dvil rights laws. This belief creates expectations on the part of firstjear 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 /egal rules is an important first step in legal education. The apparent neutrality of contract law in particular masks the distributive effects of /egal 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 maj conceal bias, stereotpes, and culturalpreferences 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 bj 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 squarey 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 simpy as a politicaljy correct exercise, but pervasivey throughout the semester as a wa of advancing students' /egal reasoning skills and understanding of legal doctrine. This approach should improve the law school experience or most students and produce lawyers who are more capable of practicing law holistically. I. INTRODUCTION: RACE NEUTRALITY AND CONCEALED RACIAL DIMENSIONS IN CONTRACT LAW.............................. 24 II. CRITICAL RACE THEORY AS A BACKDROP. .......... ............ 28 III. THE EFFECT OF RACE ON VARIOUS COMMONPLACE CONTRACTING ISSUES........................................ 29 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. Some of the introductory remarks to this paper, as well as parts of the discussion of Wilhams v. Walker Thomas, were first printed in DAVID NADVORNEY AND DEBORAH ZALESNE, TEACHING TO EVERY STUDENT: EXPLICITY INTEGRATING SKILLS AND THEORY INTO THE CONTRACTS CLASS (2013). Parts of the discussion of Acedo v. State ofAriZona, Department ofPubic Welfare were first printed in Deborah Post & Deborah Zalesne, Vulnerabiiy in Contracting: Teaching First Year Law Students About Inequakiy and its Consequences in VULNERABLE POPULATIONS AND TRANSFORMATIVE LAW TEACHING: A CRITICAL READER 89 (2011). I would like to thank Professors Alan Chen, David Nadvorney, and Deborah Post for their detailed and thoughtful comments on an earlier draft. I would also like to thank my fabulous research assistants from the University of Denver, Michael Claggett and Jacob Holt, and from CUNY, MirandaJunge, Bright Limm, and Natalie Saidi, for their invaluable research assistance. 2013 23

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