Posted by Randy Barnett: Critiquing Contract Law http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118945265
I am late for the program on Critiquing Contract Law--again because I was uploading the last blog post in my room. Since I now know someone is reading these posts, I decided to proofread it albeit quickly. Jay Feinman (Rutgers) is almost done with his talk. I like Jay a lot, ever since we both visited at Northwestern teaching contracts. He's a nice guy. He is both describing the Critical Legal Studies (CLS) movement and how it came under attack and went into somewhat of a decline in favor of the New Formalism and the New Conservatism. It is interesting that he attributes the decline of the political critique of law to politics. This is consistent. What is not entirely consistent is why a rational critique offered by Crits is supposed to be evaluated on its merits as an effort in reason, but its rejection cannot be based on any deficiencies in their argument. It is just politics. But I suppose proponents of every school of thought (including libertarians, of course) attribute its lack of more general acceptance to a misunderstanding of the audience rather than to weaknesses of their arguments. Jay closes on the pessimistic note that the contributions of the other scholars are unlikely to have much influence. He says "don't shoot the messenger." I do think Jay's gloominess from the Left is a social phenomena worth noting. Deborah Waire Post (Tauro) opens with a PowerPoint slide with David Rosenberg's in class statement dismissing the contribution to torts of critical race theory and feminism. It gets a laugh. Her talk is about "critical outsider theory." The project is to construct alternative paradigms of the rules. . . . [to read the rest click show] ([1]show) She confesses an ambience towards contract law. On the one hand, contract promises to be a tool in contesting subordination and oppression. On the other hand, since assent is often lacking without âantisubordinationâ rules, contract law becomes an instrument of oppression. Examples of this can be found in intimate contracts, IP, and civil procedure. She says that the idea of contract has become all pervasive as a means of people asserting their rights. Examples are litigation against schools, employers and government agencies. I am finding her presentation to be interesting and engaging, but a little too disjointed to report faithfully here. She is jumping from one point to another (apologizing for going so fast), while interjecting anecdotes, so it is hard to summarize fairly. As a result, I am doing a bit more listening than writing. She gets cheers for her presentation. The moderator Blake Moran (a really wonderful guy from Washington & Lee) notes on how fast she spoke and attributes this to the fact that she just flew in from China and is probably high on caffeine. I am looking forward to Neil Williams' (Loyola) talk as it is based on the case of Bailey v. Alabama. Bailey is a case in which the Lochner-era court struck down a statute criminalizing breach of labor contracts as a means of establishing a system of peonage in Alabama. Justice Holmes (âThe Great Dissenterâ) dissented and would have upheld the statute. I included the case in my contracts casebook (the first time this was done), and now learn that Murphy, Speidel & Ayres now has it in theirs. I cannot complain, as I "borrowed" from other casebooks when writing mine. For me, all this borrowing is an argument against intellectual property. Neil asks whether it is appropriate for law professors to take into account the race of the parties when teaching cases? This is a very interesting and important question. He starts by telling the story of Alphonso Bailey. He took an advance for his employment contract, and when he left his job he was charged with a crime of fraud. The Supreme Court mentioned Bailey's race to claim (unpersuasively to Neil) that his race did not matter. He says that the Lochner era court was reluctant to confront racial oppression head on but, to its credit, it struck down the statute for violating the 13th Amendment that prohibited involuntary servitude. Neil notes that Holmes dissented, which he thinks is inconsistent with others of his opinions. He cuts Holmes a bit of slack for his criticizing the court for failing to consider the case race neutrally as it claimed to be doing. I don't think that was Holmes's beef. Instead, Holmes himself insists upon the race neutrality perspective (which no one made him do) to assert his view that he could see no reason why the state can throw its weight on the side of contract performance by use of he criminal law. The presentation raises but does not acknowledge how protecting freedom of contract ostensibly neutrally served to help blacks, whereas Holmes's majoritarianism hurt blacks. (This is David Bernstein's bailiwick.) If faithfully adopted, freedom of contract is valuable as a means to various ends. Perhaps one of these ends is the protection of disfavored minorities from oppressive majorities. Neil is now talking about another interesting and classic case of Glover v. Jewish War Veterans. I won't summarize his interesting discussion of this case, which involved the refusal to pay a reward for information leading to the capture of the murderer. It has long been assumed that the claimant was black, but the case does not say. Williams' research confirms that she was, and he asks whether the refusal to pay Mrs. Glover was racially motivated. He says the black letter rules of contract shut down this relevant inquiry. He contrasts Glover with the recent effort to obtain reward for Ashley Smith despite the fact that she may not have been aware of the reward when she provided the information. He closes by affirming that race is relevant to teaching otherwise abstract doctrines. I agree, which is why I include so much material on race (and gender) in my contracts casebook, including In re Mary Clark (involving involuntary servitude)--which is now finding its way into other casebooks--Bailey, and a background section on the role of race in the Chicago Coliseum v. Dempsey case, among other material. So too in Constitutional Law, I stress the role of slavery without which you cannot fully appreciate the original form of federalism adopted by the founders. Of course, race is also needed to understand the 14th Amendment that altered that original structure. The challenge is to distinguish when race and gender is truly relevant and when it is not. Relevance will often be in the eyes of the beholder, but it is important for students to be aware that abstract rules and principles do not apply or enforce themselves. Indeed, this relates to the previous panel. Acknowledging our cognitive biases is one way we counteract those biases. On the other hand, what makes sense while studying law may not be as desirable when courts are applying it. We may want to critique decisions by taking race into account, while still contending that courts should strive to be as race neutral as they can. The Bailey court (unlike Justice Holmes) was conscious of Alphonso Bailey's race as it needed to be to recognize peonage when evaluating the constitutionality of this "race neutral" criminal statute. Yet it still justified its decision by "race neutral" principles that could be used to protect any citizen. It is not obvious to me why this is not the appropriate use of race along with the appropriate use of neutrality. But only if race can be raised in the classroom can we consider whether this defense of Bailey is warranted. Keith Rowley (UNLV) asks why Mrs. Glover could not be white which is why she turned in her daughter's black husband. Neil had proven Mrs. Glover's race by showing a picture of her son-in-law, who was clearly black. A nice point that is not inconsistent with Neil's basic thesis, as he himself raised the prospect that he might falsely be assuming that Mrs. Glover was black, which is why he did his research. Charles Knapp, asking the last question from the floor, confesses that he has been hard on Jay Feinman in his writings, which he justifies now on the ground that he was equally hard on your humble blogging correspondent. That got a big laugh too. All in all a very interesting and provocative session, but I am now late for the afternoon session. ([2]hide) References 1. file://localhost/var/www/powerblogs/volokh/posts/1118945265.html 2. file://localhost/var/www/powerblogs/volokh/posts/1118945265.html _______________________________________________ Volokh mailing list Volokh@lists.powerblogs.com http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
