In this Essay, the Author examines contract doctrine's weaknesses as applied to issues of race and gender. By contrasting the doctrinal silence concerning these issues with facts and circumstances that may have influenced the results in specific cases, the Author challenges classical contract theory's assertion of objectivity and its associated assumption of bargaining equality as an integral component of each contract. The Author then uses literature as an illustrative tool to highlight contract law's failings in contexts where bargaining disparities related to race and gender issues are present. This approach is not meant to eliminate contract rules but rather to lessen their formalistic nature to make contract rules more effective. Accordingly, the Article establishes that a law and literature analysis not only exposes flaws in the contract doctrine but demonstrates the need for a more flexible application of contract rules in cases involving race and gender disparity. Arguing that prejudicial behavior must be addressed and pre-empted in order to prevent its harmful effects in the formation of contracts, the Author again uses literature to develop a framework to remedy the biased conduct that leads to inequalities in contract formation.
Blake D. Morant,
Law, Literature, and Contract: An Essay in Realism,
Mich. J. Race & L.
Available at: https://repository.law.umich.edu/mjrl/vol4/iss1/1