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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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