Danielle Kie Hart, Contract Law & Racial Inequality: A Primer
, 21-05 Sw. L. Sch. Res. Paper
1 (2021), available at SSRN
For nearly a year and a half, our country has been in the grips of a global pandemic. Covid-19 has exposed and exacerbated racial and economic inequities that have plagued our society for centuries. As we have grappled with the dual pandemics of Covid-19 and systemic racism, there has been a renewed focus on interrogating historical and current practices that have contributed to the inequalities that many communities of color experience. In her recent thought-provoking essay Contract Law & Racial Inequality: A Primer, Professor Danielle Kie Hart examines the role that contract law has played in creating, maintaining, and perpetuating such inequities. She argues that acknowledgement of this role is critical if America is to become a more equitable society.
Professor Hart begins her essay by detailing the medical and economic harms that members of Latinx, Black, indigenous and immigrant communities have disproportionately experienced during the pandemic. Death rates, job and wage loss, and housing and food insecurity were proportionately higher for communities of color, and, generally speaking, such communities did not share in the increases in wealth that occurred during the pandemic. According to Professor Hart, this disparate reality can be explained, in part, by the historical and present operation of contracts and contract law in our society.
In her discussion of the use of contracts to transfer property, Professor Hart explains the importance of bargaining power and asserts that “in the context of contract law, property also means bargaining power, because property is the original basis of bargaining power.” (Pp. 6-7.) She argues that a property owner’s right to withhold or exclude property from others gives the owner power to compel the non-owner to accept the owner’s terms. “Consequently, the more one person owns, the more potent the owner’s threat to withhold and, therefore, his ability to get his preferred terms becomes.” (P. 7.) Those with more property and, thus, more bargaining power “will be able to reap more gains from each contract that it enters into than it otherwise would with less bargaining power at its disposal.” (Pp. 11-12.) She contends that “[o]ver time, the party with more bargaining power will end up owning more—more land, money, labor, and other resources both tangible and intangible” (P. 12), which contributes to “pre-existing and intersecting hierarchies of race and class.” (P. 12.)
Given that unequal bargaining power is rarely a successful claim to justify the unenforceability of contracts, Professor Hart asserts that contract law’s lack of acknowledgment of the detrimental role such power can play in contract formation contributes to contract law’s “own structural inequality.” (P. 8.) She argues that ignoring this issue is particularly problematic considering the relative ease in which a party can be deemed to have consented to entering into a contract and the considerable difficulty a party will have in seeking to invalidate one. Although contractual defenses including duress and unconscionability remain available to parties challenging the enforceability of contracts, Professor Hart cites to empirical research evidencing that such defenses are rarely successful. Therefore, in order to minimize the reinforcement of structural inequities to which contract law contributes, she advocates for greater recognition and consideration of the societal consequences that can result from the operation of contractual bargaining power (or the lack thereof) in practice.
In examining bargaining power and its role in creating and fostering inequality, Professor Hart situates her discussion in the context of slavery, Emancipation, and Reconstruction, which I found to be quite illustrative. As she acknowledges, prior to obtaining their freedom, enslaved persons were considered to be property with no property rights of their own. Their owners, who had the contractual right to buy and sell them, possessed the power to bargain and negotiate. After Emancipation, freedmen’s newfound “freedom” to sell their labor was significantly hampered by their lack of bargaining power resulting in unfair arrangements that continued the exploitation experienced by Black people during slavery.
Professor Hart provides an informative historical account of the adoption of a “formal equality” (P. 21) approach during Reconstruction whereby newly freed persons were expected to “take care of themselves” (P. 20) rather than a reparative regime in which the government would take a more active role in mitigating the devastating harms of slavery. She makes a compelling argument that this misguided approach, which was based on an inherently false assumption that a “free” post-Emancipation market would produce just and equitable outcomes between private contracting parties, significantly impeded racial and economic progress then and continues to do so today. Professor Hart urges us to confront and interrogate this reality and to no longer overlook or accept contract law’s role “in facilitating and perpetuating” (P. 25) similar assumptions and inequities.
Using the housing market crisis as her example, she recounts the harms that disproportionately fell upon Black and other borrowers of color who were targeted by subprime lenders. Unlike many banks and lenders who were bailed out by the government during the ensuing Great Rescission, the vast majority of borrowers, who were deemed to be private actors who willingly entered into mortgage contracts, found themselves with little or no recourse. This and other examples in Professor Hart’s essay highlight how contract law policies and assumptions can impede racial and economic equality rather than advance it.
With a renewed focus on examining issues of racial and social justice, particularly in the legal academy and profession, Professor Hart’s essay is a timely and helpful contribution. She provides a valuable perspective through which professors, scholars, jurists, and policymakers can reexamine and afford serious consideration to the role contracts and contract law play in contributing to inequities that continue to plague our society. As Professor Hart correctly notes, “there is a particular urgency to any discussions about inequality right now.” (P. 36.) We must all engage in such discussions and take concrete action if we are to achieve real and sustainable progress.
Eric Goldman, Content Moderation Remedies
, __ Mich. Telecomm. & Tech. L. Rev.
__ (forthcoming, 2021), available at SSRN
What are the appropriate remedies when Internet services, such as Twitter, Facebook, and YouTube, publish anti-social user content? Although regulators and analysts have pondered issues such as what constitutes offending content and who should decide the question, the issue of appropriate remedies needs development. This important question is the subject of an excellent article, Content Moderation Remedies, by Eric Goldman. Notwithstanding that the dominant strategy has been removal of the offending content, Goldman urges a more nuanced approach. He compiles useful and comprehensive examples of alternative remedies short of removal that Internet services already have employed and develops a helpful framework for determining when such remedies may be superior.
Content Moderation Remedies focuses on Internet services’ decisions on remedies, not on legal regulation. The article points out that although content may be illegal, Internet services most often are free from liability under Federal law. Services therefore enjoy some discretion in formulating appropriate remedies for offending content. Even if content is legal, services have discretion under their own house rules on how to deal with offensive material.
With this background, Goldman sees a clash of remedial policies, namely restricting anti-social online content, on the one hand, and avoiding the specter of censorship on the other. He argues that to date, the predominant remedy has been removal of offending content, leaving little room to explore the range of remedies that might better harmonize the clashing policies. The article then develops a framework for determining what alternative remedies might be more appropriate under particular circumstances. The goal is to employ nuanced solutions that are better than a one-size- fits-all remedy of removal of the content.
Notwithstanding the predominance of removal, the article offers many examples (36 to be exact) of remedies short of removal that Internet services have employed. Goldman helpfully sorts these promising remedies into five categories:
- actions directed at the content, such as editing or setting forth warnings about the content;
- actions directed at the online account, such as suspending the account or calling attention to the poster’s poor behavior;
- actions to reduce the visibility of the content, such as by reducing internal promotions or external search indexes;
- actions directed at financial consequences, such as terminating or suspending future earnings; and
- a catch-all category of assorted remedies that do not fit into the previous categories, such as educating users about the illicit content or reporting the issue to law enforcement.
Goldman argues that in many circumstances these remedies are superior to removal in no small part because removal may cause a litany of problems. For example, removal extinguishes evidence of the problem (such as Twitter’s removal of Trump’s tweets). Removal also orphans any comments on the offending content if the comments are not removed and breaks links to other content. Most harmful, removal impinges on free expression and contributes to a negative view of Internet services. Goldman urges flexibility so that the punishment fits the “crime” and offenders can be “rehabilitated rather than “banished.”
If a smorgasbord of potential remedies is to be successful, the challenge, of course, is to set forth a set of principles to guide the choice of remedies in various contexts. Goldman develops several sensible criteria, among others, whether the content in fact violates legal regulation or internal services’ rules, the severity of the violation, how a remedy will impact third parties, and the possibility of rehabilitation of the content provider.
Notwithstanding the article’s impressive effort to establish guidance for remedy selection, Content Moderation Remedies readers who favor certainty in the law may be concerned that the costs of remedial diversity outweigh its benefits. For example, Goldman proposes a scale from 1 to 100 to determine the severity of the violation that in turn impacts selection of the appropriate remedy. Situating particular content on such a scale and matching it to a remedy will be no small task in cases that do not demand removal.
The article’s opening example of problematic content, some might argue, is unfortunate if Goldman’s goal is to persuade readers of the need for remedial diversity:
In May 2019, a President Trump supporter published a video of House Speaker Nancy Pelosi, which slowed down authentic footage without lowering the voice pitch, conveying the inauthentic impression that Speaker Pelosi had delivered her remarks while intoxicated. The video quickly became a viral sensation and spread rapidly across the Internet… The video probably didn’t violate the law, and even if it did, the social media services likely were not legally liable for it. As a result, the social media services had the legal freedom to moderate the video as they saw fit.
Although Facebook, Twitter, and YouTube selected different remedies for this content, Goldman may face an uphill battle persuading many readers that anything other than removal is appropriate for fraudulent content such as this, which content could have major political implications. On the other hand, Goldman has a good argument that his many examples of responses short of removal in other contexts are the best evidence that Internet services should not automatically default to an all-or-nothing approach.
Goldman does not ignore the possibility that the best approach to the problem of offending content may be website design that would deter such content in the first place. In fact, Content Moderation Remedies treats all aspects of this important problem in a thoughtful and impressive way and is must reading for anyone interested in governance of the Internet.
The last couple decades in Europe have been an exciting time for private law. European integration created a dazzling opportunity to articulate a distinctly European private law, potentially even overcoming the classic line between common and civil law.
As it happens, even before the departure of the United Kingdom from the European Union, this project failed in its more ambitious forms. Although legal convergence would fit the mandate to harmonize the common market, it turned out that there was substantial disagreement even within continental Europe about what a European private law should look like.
The quiescence of the convergence project has actually opened space for a less politically fraught and doctrinally constrained discussion of contract law in Europe. Delinked from the political will to integrate or constitutional constraints on what the basis for a common framework could be, the conversation has broadened to ask first order questions about the basis for contract law in Europe. That conversation just got a big theoretical boost from Martijn Hesselink.
In Justifying Contract in Europe: Political Philosophies of European Contract Law, Hesselink explores how Europeans think about contract. By grounding divergent approaches to contract in divergent political theories, he is at once generous and rigorous in his characterization of diversity. That is, he starts with the premise that disagreement about fundamental policies does not reflect simple error but engages hard questions to which no democratic society has generated a univocal and consistent answer. Disagreement about contract doctrine reflects at some level potentially deep disagreement about the animating principles of contract, and the relative priority of distinct ends that contract serves. These disagreements themselves are rooted in divergent political philosophies. We cannot dismiss opposing views on contract without dismissing philosophical schools of thought that are rich and embedded in a variety of institutions. That is to say, we should take disagreement about contract seriously.
Hesselink takes disagreement seriously not only because it runs deep, but also because the primary parties to disagreement are neither bureaucrats nor political actors. They are the citizens of states that must make choices about the degree to which they should aim to harmonize their contract law with those of other states (whether in the context of the European Union or outside of that region); when contracts should be legally binding and with what consequence upon breach; to what extent weaker parties should be protected (and, of course, who is weak and from whom must they be protected); the boundaries of freedom of contract, and; the relative scope of default and mandatory rules in contract. One might object that citizens do not really make these choices, and indeed, many are not aware that these are choices they must collectively make. It is the job of lawyers–in a number of roles, including legal scholars–to construct a public discourse that underpins a society’s answers to these questions. That discourse helps to form collective answers, in part through exchange of ideas and arguments, but ultimately also by deciphering intellectual preferences as they stand among the people that will be governed by contract’s rules.
One of Hesselink’s insights is that we cannot take people to be silent about or indifferent to contract if they have not petitioned for a different rule on damages or organized a political action committee against the rule of consideration. Democracies sort through questions about contract by way of underlying political philosophies that direct political communities to distinct answers. Hesselink considers six leading theories: utilitarianism; liberal-egalitarianism; libertarianism; communitarianism; civic republicanism, and; discourse theory. We find robust debate among proponents of these philosophies even if we rarely find direct political engagement with contract. In fact, debate among these ideologies is effectively (albeit not limited to) a debate among approaches to contract.
American talk about contract law is almost entirely devoted to the question of what the best rules would be, without worrying too much about the process by which those rules are made or how our choices connect with other political questions. European integration put front and center in Europe meta-questions about the procedural legitimacy of contract law and the phenomenon of deep disagreement about what it should look like, even among liberal democratic states. In light of their heated debates, Hesselink has taken a much-needed step back to assess the democratic basis of contract law. American legal scholars should go there with him.
Mehrsa Baradaran makes an outstanding contribution to the literature on de jure, systemic racial bias and lays a foundation for reparations in the context of consumer credit in Jim Crow Credit. Drawing from and building on her two Harvard U. Press books, How the Other Half Banks (2018) and The Color of Money (2017), Baradaran documents the systematic subsidization of white borrowers–and thus the creation of the white, suburban middle class–in the New Deal and subsequent 20th century government programs that brought us today’s home mortgages, credit cards, and predatory lending practices such as payday lending. Bottom line up front: in credit as elsewhere the haves come out ahead. The surprise is how the federal government subsidized this enormous giveaway to create a white, suburban middle class at the expense of urban and African-American communities.
In bumper sticker form, Baradaran’s message is that Black lines of credit matter. Just as driving or jogging while Black too often proves fatal, borrowing while Black harms Black lives by imposing financial and other injuries that white borrowers are much less likely to suffer. Perhaps most galling–and akin to criminal defendants funding mass incarceration through fees and fines–is that African Americans taxpayers helped fund the U.S subsidies to white borrowers via mortgages and later, credit cards. The compound interest resulting from those subsidies explains a good amount of today’s income inequality: whites enjoy 10 times the wealth of African-Americans, and measured in quasi-liquid assets like retirement accounts, that inequity jumps to a jaw-dropping 100 times more wealth.
Baradaran flags the relevance of this breach of the social contract for concrete proposals to award damages for it via reparations, but the bulk of her article recites the history that justifies reparation proposals. We need this scholarly work, since at long last reparations are getting serious attention. For example, as much as $4 billion of the $1.9 trillion post-COVID stimulus package is slated to pay off the debt of Black farmers as reparations for the U.S. Dept. of Agriculture’s past credit discrimination against them. Baradaran tells the story of another credit market debacle involving New Deal and subsequent statutes, agencies, and lender practices.
But before jumping to the fascinating – and appalling – history, a note on law. Entirely different statutory frameworks govern loans involving real property and credit relationships to purchase things and services. They are so different that many of us who teach and research debtor-creditor relations specialize in either “dirt law” regarding real estate finance or “thing law” that involves personal property as collateral or unsecured loans such as credit card debt. Baradaran’s article impressively bridges this divide to show readers the system-wide, outrageous patterns of favoritism to white borrowers.
A. Federally-Funded Great White Giveaway & Steal from African Americans
We start with dirt law because subsidized mortgages to help white borrowers purchase homes provided a template for parallel developments in credit card debt in subsequent decades.
1. Dirt Law
Baradaran traces the historic New Deal corrections to market failures in credit markets, providing specific evidence of how they built white supremacy into their very foundations. For example, everyone knows about red-lining, but who knew that the Federal Housing Administration explicitly used dark skin – and foreign birth – as proxies for credit risk. Their maps, Baradaran explains, assigned colors to neighborhoods: green for the lowest credit risk, red for the highest, and blue and yellow in between. But too few realize that the FHA’s underwriting manual warned against lending to “inharmonious racial or nationality groups,” meaning Blacks and immigrants. Or that years after Shelley v. Kraemer struck down restrictive racial covenants the FHA continued to promote the use of restrictive covenants to benefit white borrowers at Black borrowers’ expense.
Mortgages from private lenders operated in the shadow of the government give-away. To get the security of federal guaranteed mortgages, lenders tended to avoid redlined neighborhoods. Thus even purportedly private transactions reflected the federal subsidies directed to white borrowers.
Immense consequences flow from these bureaucratic maneuvers, Baradaran explains. Monthly mortgage payments that were cheaper than rent enabled working-class whites to become middle-class. Lily-white suburbs graced with parks, schools, and other amenities followed, as did retail districts that likewise extended low-cost credit to customers. Jim Crow Credit painstakingly catalogs this process of how New Deal credit policies socialized loss for white borrowers and privatized their gain, which then enabled them to accumulate wealth to pass along to their boomer children. Also that it happened at the expense of African American families.
The glaring “red” label slapped on to property in wealthy neighborhoods peopled by African-American professionals such as those surrounding Morehouse and Spelman College campuses prevented those professionals from accumulating wealth at the rate of their white counterparts. The only sources of credit were those left over from the bad old days before the Great Depression. Without federal-guaranteed mortgages, African-Americans too often could only purchase shoddier homes through installment contracts with high interest rates. In contrast to protections enjoyed by white borrowers, many or most African-American borrowers merely owned an option to purchase the home, which they could forfeit for missing a single payment. The devaluation of those properties, in turn prevented the accumulation of equity that could fund other life projects, such as a child’s education or a business.
2. Thing Law
Jim Crow also traces how this pattern played out in other credit markets. New Deal federal subsidies for loans to improve real estate–and thus stimulate the building industry–morphed into the infrastructure of today’s credit cards. Before the Depression, installment purchases with high interest rates were the norm until new banking regulations and policies lowered the cost of credit, at least for white borrowers. As with real estate loans, credit-card and finance companies avoided customers in redlined neighborhoods, due to both racism and the greater risks of issuing credit in communities with fragile economic bases due to the devaluation of that real estate due to federal red-lining and other forms of racism.
While white borrowers got used to doing laundry at home with the washing machines purchased with the low-interest loans from retailers and finance companies, Black borrowers were left behind in the much more expensive rent-to-own market. The unconscionable terms of those installment contracts are familiar to anyone who has taught or taken a 1L Contracts class thanks to the canonical case Williams v. Walker-Thomas, an injustice that state and federal law has since remedied. But other predations in the form of payday loans and check cashing centers replaced them, as Baradaran’s book How the Other Half Banks explores in great detail.
Today poor African-American communities, Baradaran explains, are banking deserts. Consequently, African Americans are more likely to obtain payday loans at interest rates of 300%–or even up to 2000%–in staggering comparison to the 10% interest rate on home equity loans.
B. Movements to Reveal, Challenge, and Remedy Racial Disparities in Credit
Jim Crow Credit also reveals that resistance to these unjust credit rules played a crucial role of credit in the 20th century civil rights movement. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 banned discrimination, but as Baradaran says, “[e]nding credit discrimination was not the same as providing credit.” (P. 904.) They did nothing to provide restitution to African Americans for the unjust gains that systemic subsidies lavished on white borrowers.
She reports that urban riots in the 1960s–such as Watts–were fueled by rage about being “stuck in an ancient debt market while the rest of the country had taken off into the modern world of risk sharing, secondary markets, and large finance companies that all worked to lower the risks and the costs of debt.” (P. 911.) No wonder that media at the time reported rioting crowds shouting “burn the damn records,” and a mother telling grocery store looters, “Don’t grab the groceries, grab the book.” (P. 907.)
The article then explains that in the wake of those riots even politicians who understood the systemic bias failed to rectify that injustice. Instead they again forbade discrimination–this time via the Equal Credit Opportunity Act–and provided mechanisms for giving financial advice to Black borrowers and Black-owned banks. What those communities needed instead was restitution.
Jim Crow Credit concludes with a brief discussion of ways that law and policy could do better. First, of course, we must recognize the lopsided subsidies that undergird racial wealth disparities. Then remedy them. The article discusses a handful of possibilities:
- “Follow the red lines” where poor African American communities were denied the stability and wealth accumulation enjoyed by their white suburban counterparts, and implement reforms to facilitate home ownership;
- “Greenline” to lower interest rates by, for example, guarantying mortgages;
- “Shared equity mortgages” or “SEMs” allow private investors such as a non-profit or bank to jointly make mortgage payments and accrue a proportion of home equity alongside the homeowner;
- Vouchers for home purchases, akin to § 8 vouchers in which governments subsidize payments for rental housing; and
- Direct loans from government entities such as the FHA could, as Baradaran says, “fix the problem the FHA itself created.”(Pp. 946-48, quoted language on 948.)
Scholars, litigators, and policy makers all will doubtless rely on Jim Crow Credit as they consider reforms like those listed, and also when they litigate inevitable challenges to those reparative efforts. We all owe Baradaran a debt for compiling the detailed history of government subsidies to white property accumulation, and thus providing key tools to right this wrong.
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Renée B. Adams, Roman Kräussl, Marco A. Navone, and Patrick Verwijmeren, Gendered Prices
(Dec. 10, 2020), available at SSRN
We know prices are neither gender neutral nor race neutral. Prices reflect not only factors such as quality but also bias. Thirty years ago, Ian Ayers demonstrated, in a pioneering study, that Chicago retail car dealerships systematically offered substantially better prices on identical cars to white men than they did to both Black men and women and to white women.
In a more recent study, Tamar Kricheli-Katz and Tali Regev showed that women sellers on eBay obtained a smaller number of bids and lower final prices in auctions for both used and new products. While the former study addressed the prices women buyers paid, the latter study addressed the prices women sellers were paid. These studies were conducted nearly 25 years apart from one another, and examined different merchandise. However, in both cases (and in many other similar studies) gender had an impact on the prices, and men got better deals than women as both buyers and sellers.
Gendered Prices, a new study by Adams, Kräussl, Navone and Verwijmeren explores gender bias in the pricing of artwork. The authors examined a sample of 1.9 million transactions conducted at more than 68,000 auctions for 69,189 individual artists in 49 countries from 1970 to 2016. This sample was taken from Blouin Art Sales Index, the largest database of artwork, and was limited to paintings only. This sample showed that auction prices for paintings by female artists were significantly lower than prices for paintings by male artists. The mean transaction price for male artists was around US $50,480, while the mean price for female artists was only US $29,235, meaning that the discount for paintings by women was 42.1%. When excluding mega-transactions (above one million dollars), the discount dropped from 33.1% in the 1970s to below 22% after 2000 (and to 8.4% after 2010).
In addition, the study showed that the gender discount in auction prices is generally higher in countries with greater gender inequality. The authors concluded that culture was a source of pricing bias. The authors ruled out the explanation that “female” art was less appealing to investors since they showed that it was no different from “male” art in style and themes. The authors concluded that art by women artists sold for a lower price simply because it is made by women. To affirm their conclusion, the authors conducted two experiments using surveys. In the first experiment using a sample of ten paintings they asked 1,000 participants how much they liked the painting on a scale of 0-10 after guessing the gender of the artist. They found that participants who were male, affluent and who visit art galleries (the prototype of a typical bidder in art auctions) had a lower appreciation of works they associated with female artists than other participants. In the second experiment they “created” ten paintings using a neural network algorithm. Then they randomly associated fake male and female names with these paintings and again asked 2,000 participants how much they liked the paintings (again in a 0-10 scale). They found that affluent participants who visit art galleries had a lower appreciation of works which were associated with a female artist name. These experiments again supported the conclusion that women’s art was sold for less simply because it was women’s art. Therefore, price indicated not only quality but other factors like culture. Since culture is not immutable and social inequality can decrease over time, the paper is ultimately an optimistic one.
What are the legal implications of these studies? It is challenging to formulate a legal response to this systematic price discrimination. With that, here are three preliminary thoughts:
First, all of the above sales (of used cars, products on eBay or paintings) are contracts. Can contract law address gendered pricing? A known contract law principle is that the court will not look at the adequacy of consideration. In other words, the parties decide the terms (such as price) of their exchange and the court will refrain from intervening. However, should contracts that perpetuate discrimination be allowed? Hila Keren, for example, has argued that contract law has an important role to play in addressing discrimination. Though Keren focused on precontractual negotiations and on the refusal to contract, she generally argued that contract law should not ignore discrimination. There are advocates for fair exchange or fair price rules under contract law. This could ultimately mean that contracts that discriminate on the basis of gender or race should not be enforced.
Second, consumer protection laws and regulations might also address gendered pricing. Given that the studies demonstrated systematic racial and gender discrimination, it is necessary for the government to intervene in the way the market sets the prices, rather than restricting its role to that of contract enforcement. It is especially important in markets for necessities or large transactions to mitigate the effect of factors such as race or gender on price. Laws and regulations, however, which are limited to consumer transactions would unfortunately not apply to other cases where women pay more/are paid less than men.
Third, the most promising legal avenue is anti-discrimination laws. Since discrimination is a social and cultural phenomenon, it is imperative to uproot stereotypes and notions of inferiority of marginalized groups and to protect underprivileged parties. As the study of Adams et al showed, gender discounts reduce over time as gender equality increases, thus one optimistically hopes that advancement of social equality in general would bear fruits also in terms of fair pricing. In other words, in a post-patriarchal world, women would get as good a deal as men whether they are artists, buyers, or sellers.
Cite as: Orit Gan, Gendered Culture and Pricing Bias
(June 15, 2021) (reviewing Renée B. Adams, Roman Kräussl, Marco A. Navone, and Patrick Verwijmeren, Gendered Prices
(Dec. 10, 2020), available at SSRN), https://contracts.jotwell.com/gendered-culture-and-pricing-bias/
Zahra Takhshid, Assumption of Risk in Consumer Contracts and the Distraction of Unconscionability
, 42 Cardozo L. Rev.
__ (forthcoming, 2021), available at SSRN
It has been a while since many of us have been able to attend the gym. Yet, before Covid-19, those committed to working out in this setting were kindly asked (read: required) to sign a contract that released the business operating the fitness facility from liability for any injury that might occur while using the premises. Accordingly, if an injury happened due to the business’ negligence, its defense against tort-based liability was contractual: it relied on the exculpatory clause that the user signed before the user was hurt. If the user took legal action, courts faced a Hamlet-style dilemma: to enforce or not to enforce the contract that was designed to prevent the operation of tort law. On the one hand, as we all know and as Danielle Hart has empirically shown, courts are heavily inclined to enforce contracts. On the other, at stake are bodily injuries that the business could have probably prevented if only it had exercised more caution.
In her forthcoming article, Assumption of Risk in Consumer Contracts and the Distraction of Unconscionability, Zahra Takhshid importantly focuses on this tension between contract law and tort law and pays particular attention to recreational activities in the commercial sphere that have resulted in bodily injuries. She opens with the unfortunate story of Gina Stelluti, a woman who suffered long-term injuries because an instructor of a spinning class she took for the first time neglected to secure her bicycle’s handlebars. The New Jersey Supreme Court upheld an exculpatory clause signed by Stelluti in which she released the gym from liability for negligence. This court clarified that only gross negligence—as opposed to the gym’s ordinary negligence—might have justified invalidating the exculpatory clause. For Stelluti, that meant no compensation.
Descriptively, Takhshid reports that “exculpatory clauses are now routinely enforced in a stunningly broad range of cases” in which “plaintiffs injured in recreational activities [sue] those who negligently provided such activities.” Her use of the word “now” is significant because Takhshid also argues that the result in cases like Stelluti v. Casapenn Enters., LLC would have probably been different in the past. She explains that for many years courts in a variety of jurisdictions had followed the 1963 Californian decision in Tunkl v. Regents of Univ. of Cal., holding negligent businesses responsible for physical injuries despite exculpation clauses. More recently, however, courts have demonstrated increasing reluctance to hold negligent businesses liable. Takhshid attributes the change to a shift in the way courts analyze the issue. Courts, she reports, have moved from scrutinizing exculpation clauses under the public policy doctrine to handling them via the unconscionability doctrine. Takhshid sees this doctrinal shift as detrimental to the state’s ability to protect injured consumers. While the older cases “were concerned with the public policy as part of the regulatory role of the state to protect consumers,” the newer cases narrowly focus on the relationship between the contractual parties. Accordingly, if no evidence of oppression is available, they enforce the parties’ contract.
The question raised by Takhshid’s article is normative: should we let standard contracts have this impact over tort law? Significantly, she emphasizes that when people decide to participate in certain activities, they assume the risks that come with them. For example, those who play soccer assume the risk of an injury that may come from physical contact with another player. Signing an exculpation contract with the business organizing the game would add an obligation not to sue this business when such injury occurs. But, Takhshid insists, we must distinguish between such assumed risks and other perils that originate in the organizer’s negligence. When an exculpation clause is raised as a defense against a business’ carelessness, the legal response must differ. Then, she argues, “courts should announce the clause void as against tort law’s public policy of protecting physical integrity.”
The article offers strong comparative support to its normative call. Delving into the parallel regulation of the issue in other countries across the pond, it shows that “many foreign jurisdictions–both common law and civil law–treat physical integrity as an inalienable right.” Similarly, Takhshid concludes, bodily injuries that arise from the negligence of service providers such as the gym in Stelluti should remain beyond the reach of private parties and contractual terms. Allowing contracts to undermine tort law’s duty of care would put at risk “one of the main ways societies and legal systems protect people against bodily injures and promote safety.”
Takhshid’s observations about the state of the law and her normative arguments are highly compelling. Her new article contributes to the growing literature that criticizes the unfair use of standard contracts in ways that generally exploit and enhance consumers’ powerlessness and particularly deprive them of the right to their day in court. Consumers’ re-empowerment, however, may demand more than a return to the public policy principles that guided decisions such as Tunkl. We may also need to re-embrace the ideology that inspired courts to refuse to enforce contracts in the decades between the end of the Lochner era and neoliberalism’s rise to dominance. This period of demonstrated willingness to refuse enforcement was explained in a recent Jot as follows: “whenever a contract creates substantial negative externalities—that is, whenever it adversely affects the well-being of other people—there are prima-facie grounds for curtailing freedom of contract.”
Nonetheless, the newer cases described by Takhshid, which enforce exculpation clauses even when it means legitimizing negligence, turn back to unrestrained freedom of contract. They epitomize a neoliberal era in which corporations increasingly use contracts and contract law to manipulate and even take over the state’s regulatory role. In that sense, these cases can demonstrate the model presented in Katarina Pistor’s The Code of Capital. What Pistor calls “legal coding” is a capital-producing process that heavily depends on adding unique legal qualities to regular assets. The coding process starts privately. In the case of recreational injuries, it takes place by adding exculpation clauses to standard contracts. The next step, however, depends on the state. In the context of exculpation clauses, enforcement by courts is necessary to insulate businesses from the risk of having to pay for their negligence. And, as Pistor argues, the more the state is willing “to recognize and enforce privately coded capital,” the greater socioeconomic inequalities grow.
Takhshid’s article offers a chilling demonstration of Pistor’s theory. The more the state’s courts enforce privately drafted exculpation clauses, the less the state can secure health and safety via its tort law. The obvious beneficiaries are the businesses while consumers pay the price and inequality increases. Thus, the article belongs with the law and political economy project as it illuminates how contracts’ enforcement is far from being neutral and instead facilitates rising inequality. For that reason, courts must protect the state’s power to regulate what Takhshid calls “risk-creating enterprises” and incentivize them to take due care of their clients’ health and safety. As the article concludes: we should not “let contract erode tort for a domain where tort law’s regulatory bite is important.”
Cite as: Hila Keren, Contract Law v. Tort Law
(May 19, 2021) (reviewing Zahra Takhshid, Assumption of Risk in Consumer Contracts and the Distraction of Unconscionability
, 42 Cardozo L. Rev.
__ (forthcoming, 2021), available at SSRN), https://contracts.jotwell.com/contract-law-v-tort-law/
Theresa Arnold, Amanda Gray Dixon, Hadar Tanne, Madison Sherrill and G. Mitu Gulati, 'Lipstick on a Pig': Specific Performance Clauses in Action
, __ Wisconsin L.R. __ (forthcoming, 2020), available at SSRN.
“Lipstick on a Pig”: Specific Performance Clauses in Action, forthcoming in the Wisconsin Law Review, is a good example of how to pack a deep insight into a short essay. The authors—Theresa Arnold, Amanda Dixon, Hadar Tanne, Madison Sherrill and Mitu Gulati—have made a real contribution. That they were able to do so about an old topic—damages or injunctions in contract law—illustrates the continuing value of the Wisconsin-school tradition of looking at real contracts to teach us something about the state of doctrine.
As readers will be well-aware, we teach specific performance as a disfavored remedy, available rarely outside of the unique goods and real estate contexts. But, as the authors cogently show, this is a puzzle: the damages preference is both comparatively exceptional and theoretically hard to defend. It’s also hard to know if it’s a majoritarian default. The existing literature on the prevalence of specific performance opt-in clauses in contracts is sparse, being limited to Eisenberg and Miller’s (2015) finding that lawyers drafted specific performance clauses in around 50% of a small sample of M&A clauses from 2002.
The author extend the Eisenberg and Miller analysis significantly. They hand-collect and code 1000 contracts from 2010-2019, randomly selected from the universe contained in the What’s Market database on Westlaw set of deals from that time period, while balancing public deals and deals where at least one party was privately held.
Their empirical finding is striking: 85% of all deals contracted into specific performance. That number has increased slightly over the time period (particularly for private deals, where only 3 in 4 in in 2010 had such a clause but now greater than 9 in 10 do). The authors slice at this data in various ways (including the sort of deal, and rationale) without finding a particularly striking difference. Overall, sophisticated lawyers overwhelmingly prefer to contract into specific performance for breach of M&A deals.
The question is why? To begin to find out, the authors asked practitioners. As in previous work, these seasoned lawyers told stories. As one pointed out, when asked if what we’re teaching in the 1L classroom is “wrong”:
I would not say that it is wrong. The law does prefer money damages. [But one learns how to get around that. To be granted the remedy] [o]ne has to pay homage to history, perform the right rituals. It is like saying at the front of contract that the parties acknowledge that there has been “full and adequate consideration.” You are in the south, so you know the expression “putting lipstick on a pig.”
The lawyers discussed the need for specific performance in light of the deal synergies. But, when pressed, their real concern was that that judges would not be comfortable with the kind of damage numbers that a broken M&A transaction would entail—simply put, damages would never make them whole. Finally, many asserted that “Delaware was different,” i.e., both thinking that the state’s Chancery Court was open to enforcing specific performance, and the deals were likely to be litigated there.
Interestingly, Delaware’s distinct approach is new: it appears to date from a 2001 opinion from then Vice Chancellor Leo Strine in the IBP/Tyson Merger. Both in the case, and in a series of talks given to M&A audiences afterwards, Strine welcomed the sellers and buyers alike to draft specific performance opt-ins, promising their swift enforcement in the Chancery Court. The authors posit that this welcome spurred adoption of clauses, which were thus revealed to be what practitioners wanted all along.
As the authors point out, the movement in Delaware (and, more slowly, New York) toward permitting specific performance in this important class of “service contracts” has implications for how we teach and think about remedies in contract law.
First, if it’s true that specific performance isn’t limited in practice to “unique goods” and “real estate” but rather is the preferred—and awarded—remedy in other classes of contract, we should ask some hard questions of what we teach in the 1L classroom. Rather than thinking of specific performance as a rare doctrine, we might want to consider if it is not, in fact, the rule in a large swath of litigated cases. And why not? Psychological research strongly suggests this is what even naïve parties prefer. The result would be that contract casebook authors should take more affirmative steps to find examples of the award of specific performance outside of the highly sentimental good cases one often sees.
We might also want to work on buttressing practice with a theory. One thing to note about the M&A context is that the request for specific performance is made against a firm. As VC Strine pointed out in IBP, though it’s true that normally injunctions create monitoring concerns, firms can simply fire workers who don’t like the order. In future work the authors might consider exploring the implications of this concept more generally. Might we consider limiting the preference against specific performance for services contracts to those with natural parties? Or is there something distinctive about the M&A context?
The authors only gesture at these ideas, but what they’ve given us, in a short and highly readable piece, is enough.
Cite as: David Hoffman, Folk Wisdom about Remedies
(April 21, 2021) (reviewing Theresa Arnold, Amanda Gray Dixon, Hadar Tanne, Madison Sherrill and G. Mitu Gulati, 'Lipstick on a Pig': Specific Performance Clauses in Action
, __ Wisconsin L.R. __ (forthcoming, 2020), available at SSRN), https://contracts.jotwell.com/folk-wisdom-about-remedies/
John Linarelli, Advanced Artificial Intelligence and Contract
, 24 UNIF. L. REV.
330 (2019), available at SSRN
Contracts and contracting have changed dramatically in the past fifty years. We have moved from negotiated paper contracts to standard form contracts to digital contracts presented in various ways. The next fifty years promises even more dramatic changes, and not just to the form of contracts. Technological innovation and marketplace needs will undoubtedly disrupt contracting in ways that don’t exist today. John Linarelli’s article Advanced Artificial Intelligence and Contract addresses one of the biggest anticipated disruptions – a not-quite human contracting party. In this article, Linarelli asks the provocative question, “How might contract law adapt to a situation in which at least one of the contract parties could, from the standpoint of a capacity to engage in promising and exchange, be an AGI?”
Linarelli states that artificial intelligence will bring about transformational changes in the law. He uses the term “artificial general intelligence” or “AGI” to refer to an advanced form of artificial intelligence which has a cognitive architecture of its own, unlike the artificial intelligence that currently exists. He invites us to consider the “feasibility of investing an AGI, from a legal point of view, with the power to enter into contracts, either with humans or other AGIs.”
By referring to AGI as a contracting party, Linarelli is not talking about as an agent for a human, nor is he talking about “smart contracts” which he states is “not a legal concept” and which is simply a substitution of “algorithms for human contract performance and enforcement.” In his words, “(t)he difference between contracting with or by an AGI and smart (or algorithmic) contracts is that human or legal persons in the form of entities such as corporations are the actual parties to smart contracts, whereas contracts with AGIs involve at least one contract party that is neither a human nor a currently recognized legal person such as a corporation, limited liability company, or partnership.” (P. 333-34.)
So should the law grant AGIs legal status with all the rights and obligations that such a designation confers? And how should contract law respond to AGIs as potential contracting parties?
The issues pertaining to the first question have been discussed before in the context of limited liability firms, such as corporations. As Linarelli notes, “(a)n artificial person with limited liability, however, still must operate through human agents” unlike the AGIs that he is anticipating which would operate independently of humans. Linarelli argues that AGIs should be granted legal status as contracting parties only when AGIs develop the cognitive architecture that humans possess. His rationale is simply that “(c)ontract law exists to meet human needs in human societies for voluntary exchange.” (P. 343.) Accordingly, AGIs should exhibit a “sufficient level of mutuality in terms of autonomy, interaction, and adaptability” before granting them contract rights and liabilities otherwise “cooperation with humans will fail.” (P. 343.) Thus, he makes a simple yet profound observation — that one of the primary societal benefits of contract law is to encourage cooperative activity — and cautions that to recognize a contracting party without the relevant human qualities poses serious risks to society: “Worse, an alien system of AGI values and cognitive abilities, based on norms humans do not understand and cannot reasonably accept, may be considered by humans to be harmful or pernicious or may cause harm to humans.” (P. 343.) (Of course, one could argue that by recognizing limited liability entities as contracting parties, we have done just that….) Linarelli notes, “It will be difficult for AGI to engage in contracting or to be subject to contract law if it cannot interact with humans since humans have evolved to interact and to be regulated by institutions that humans have constructed to reflect the intentions they hold in common.” (P. 342.) Thus, before we recognize AGIs as contracting agents, they should exhibit cognitive capabilities that are human-like as it will be “far more practical to align their cognition to contract law and values it represents than to change contract law and the humans who invented it.”
But are those values reflected in modern contract doctrine? While the “smarter-than-us” AI scenario is what tends to capture the public imagination and terrify entrepreneurs like Elon Musk, it is the second question – how should contract law respond to AGIs as a contracting party? — that is perhaps more intriguing to contracts scholars. Linarelli notes that the objective theory of contracts “coincides closely to the Turing test for assessing whether AI exists” and therefore, may “at least partly, and with some adaptation…answer the question of how to treat an AGI as a contract party.” (P. 334.) The objective of the Turing test is to determine whether a human interrogator can distinguish the answers given by a machine from those given by a human. The Turing test may be useful for “weak AI” but in order to qualify as “strong AI,” the machine must also “simulate thinking and intentions.” (P. 335.) Linarelli observes that contract law, however, would be satisfied with weak AI: “Weak AI is sufficient for the purposes of determining whether an AGI could be a party to a contract in terms of understanding the question as one that is internal to contract law…The Turing test has been effectively embedded into Anglo-American contract law in the objective theory of contract.” (P. 336.) In other words, contracts and contract law — capitalism’s vaunted tools of autonomy — require very little of contracting parties; they require only outward appearances regardless of mental states: “The objective theory of contract tells us that the intention to be bound to, or form, a contract is determined by evidence external to the actual intentions of the parties.” (P. 336.)
Linarelli isn’t the only scholar to point out the ways that contract law seems to permit – even encourage – automated, mechanical behavior from contracting parties. Notably, Brett Frischmann and Evan Selinger questioned the way that wrap contracts and in particular, clickwraps, have conditioned humans to act like machines. But Linarelli’s questions are directed more pointedly to contracts scholars who may not have considered the way technology changes contract law – and the way that contract law alters our expectations and standards for human and human-like behavior.
First year teachers of common law subjects describe the common law system with a little bit of romanticism. Through the aggregation of many court opinions, and through learning from variant approaches in different states’ jurisdictions, a process of reflective equilibrium finds legal rules that make sense as applied to diverse fact patterns and that reflect ongoing changes in technology and social mores. The status of each state’s supreme court as the final arbiter of questions of common law features keenly in Louis Brandeis’s oft-quoted characterization of the states as “laboratories of democracy.” Writing with Samuel Warren, Louis Brandeis famously declared that “the common law, in its eternal youth, grows to meet the new demands of society.”
As Samuel Issacharoff and Florencia Marotta-Wurgler’s important new paper The Hollowed Out Common Law shows, changes in procedure and surrounding law have caused the common law of contracts not to function as it has in the past. Specifically, they argue that there has been a dearth of doctrinal elaboration and robustness in the burgeoning domain of online contracting over the past three decades. They document several shifts in law and legal practice that has led to the decline in number and refinement of analysis in these consumer contracting cases. As Brandeis’s comments show, the pressure on common law judges to develop doctrine comes from contrasting apex state supreme court opinions, and the consideration of a variety of novel fact patterns by all courts. Yet Issacharoff and Marotta-Wurgler’s study shows two shifts against the creation of a robust common law of contracts (1) state supreme courts are no longer the dominant voice in consumer contract law and (2) a depressed number of consumer contract cases are decided on their merits before any court. I will address their contributions on each of these points in turn.
Through an empirical study of cases from 1954 to 2016, the authors show that most consumer contract cases are being heard in federal courts and that federal circuit court opinions have stronger influence than other courts. They show that the dominance of federal courts as forums for state law claims has steadily increased over time. A concomitant trend they document is the rise of class action in consumer contract cases, and the role of the Class Action Fairness Act of 2005 in pushing most class actions into federal court. The statistics here show a striking shift. Before 2000, class actions composed less than 20 percent of the consumer contract cases adjudicated in federal court. Yet the post-2000 data shows that class actions make up 60 percent of consumer contract cases in federal court. The result has been that the leaders in contract law innovation in the information era—such that they are—are courts that do not even have the power to create new state common law. Despite their persuasive influence, such cases are as a technical matter one-off developments, with no binding effect on other courts. Yet the common law lacks robustness for another, more meaningful reason besides the lack of definitive doctrinal statements from state supreme courts: an insufficient amount of cases that reach the merits.
With the blessing of federal legislation and courts, over the past three decades there has been a rise of contract terms that take the adjudication of individual disputes out of the sight of courts altogether. Arbitration and anti-aggregation clauses have been enforced by courts, leading to the resolution of many cases outside of public observation and precedent. While the parties involved may save money in resolving disputes through such terms, decades of removing most consumer disputes to the private sphere retards the law’s understanding of contemporary issues in consumer contracting. This results in a collective loss to every actor, even though the costs of litigating an uncertain legal matter are expensive and undesired by parties. Issacharoff and Marotta-Wurgler explain “decisional law generates a public good, even though private parties have no reason to want to invest in its creation. …[P]arties are likely to be unable to settle and find themselves in litigation when legal claims are uncertain. The testing of boundaries of legal norms under conditions of uncertainty prompts the creation of additional positive law that, in turn, helps avoid costly litigation by future disputants. .” At a certain point, some actor needs to spend the money to figure out how law should apply to innovative forms of social organizing. Arbitration and aggregation clauses have allowed private actors to avoid footing the bill, but legislatures have not stepped up to provide guidance, either.
With no disputes between state courts to provoke conflicting approaches within jurisdictions, and an overall lack of cases to introduce new fact patterns to the case law, there has been dominance in consumer contracts of a handful of cases based largely on the prestige of the court or individual author with little serious contestation, analysis or willingness to adapt to new fact patterns by courts using the cases as persuasive authority. Issacharoff and Marotta-Wurgler seek not to contest the quality of these influential opinions but to observe that as a matter of procedure these leading cases were not subject to the same ongoing process of vetting and contestation as leading cases of yore.
Issacharoff and Marotta-Wurgler show that there is arrested development in the doctrine of consumer contracts due to legal developments outside the law of contracts. There is a natural corollary to this analysis in the specific context of the information age. The absence of court opinions on consumer contract law has lent an artificial youthful ambiguity to governing the information age. The common law is not just about determining rules of law, it is about the fact pattern and analysis that leads to the rule, and that it is a public, ongoing conversation that others in society can listen to.
The notion of the internet as an ungovernable frontier full of infant industries that need protection from lawsuits may have made sense in the mid-1990s, but the landscape has shifted considerably since then. The common law’s loss of elasticity and ability to develop due to the shifts Issacharoff and Marotta-Wurgler describe has led to a characterization of information age technology and business practices as permanently brand new and uncharted.
One does not have to be a common law lawyer to be concerned about the hollowing out of the common law. Common law and statutory law have a mutually reinforcing relationship to one another. When disputes are resolved at common law, it brings the attention of legislatures to new types of conflicts and gives them material to use to determine whether statutory law should reinforce the common law rule, alter the common law rule, or even take the matter out of the common law to be codified statutorily. The common law translates disputes in society into legal language that can then be applied by legislatures and stakeholders to predict how the law can and should apply to new forms of socio-economic ordering.
The information age has reached childhood’s end, yet due to the procedural hurdles to bringing disputes in consumer contract law, courts and legislators still discuss the field as if it is in its infancy. The common law process has traditionally helped society to understand the law’s effect on new phenomena, yet it has been hollowed out at a key inflection point in American history.