RACE IN CONTRACT LAW.

• Author: Penningroth, Dylan C.

INTRODUCTION. 1201 I. EVERYDAY USE: AFRICAN AMERICANS' ENGAGEMENT WITH CONTRACT LAW 1211 II. RACE IN LEGAL FORMALISM 1216 A. The Reconstruction Roots of Lochnerism 1216 B. The Materiality of Race. 1225 C. Blackness and the Creation of the "Reasonable Man" 1232 D. Capacity: the "Ignorant Negro". 1238 III. RACE IN LEGAL REALISM 1243 A. Realists, Race, and "Situation-Sense". 1245 B. Legal Liberalism and the Reinvention of the "Ignorant Negro" 1253 C. The Trope of Black Ignorance Comes to the City 1263 IV. RACE IN LEGAL EDUCATION. 1270 V. PRESCRIPTIONS. 1290 CONCLUSION 1296 INTRODUCTION

Law schools are once again wrestling over whether and how to incorporate race and slavery into first-year courses. (1) Legal scholars have grappled with the relationship between race and law for a long time but, until recently, little of that scholarship has focused on the place of race in contract law. Discussing race in the private law domain of contract is difficult for several reasons: because many faculty feel unprepared to discuss race; because matters relating to race are typically taught in electives and in public law courses such as criminal and constitutional law; and because race is usually treated as context--so tangential to the substantive doctrinal rules and concepts that many faculty are expressing concern that they will have to skimp on the doctrine to make room. (2) But incorporating race is also difficult for a reason few have fully appreciated: because over time judges and scholars have selectively played up, played down, and forgotten the presence of Black people in American contract law.

This Article is the first to investigate systematically the role of African Americans and race in the development of modern contract law. It offers three interlocking arguments. First, drawing on a range of archival sources, including a large sample of civil cases heard in county-level trial courts, the Article shows that African Americans have engaged vigorously and routinely with contract law for more than 150 years. This finding challenges the dominant scholarly assumption that, before the civil rights revolution of the 1960s, state and local law functioned as tools of social control against African Americans, who were kept ignorant of legal rules and alienated from legal institutions. (3) By demonstrating that Black people exercised the civil right of contract and that southern state and local courts before the 1960s recognized those claims, this Article reveals Black people as legal actors and users of law, suggesting new ways of linking race with private law while deepening the contention that law is more than politics, more than a tool of subordination wielded by dominant groups. (4) For African Americans, the rights associated with contract were among what I have elsewhere called "rights of everyday use." (5)

For decades, historians, sociologists, and legal scholars have started from the premise that Black southerners before the 1950s lived under "Negro law," a separate and unequal criminal justice system designed "for enforcing caste rather than securing justice," one that left Black people alienated and fearful of courts, and ignorant of law. (6) But precisely because federal law barred the creation of a separate body of contract law for African Americans, legal professionals have frequently relied on what I will call "'colored' cases"--cases involving African Americans, hypotheticals and cases deploying racial metaphors and analogies, and hypotheticals and cases using theories about slavery--to develop common-law rules and to think through major doctrinal and theoretical problems in contract. The term "colored" comes from a bygone historical era. I use it purposefully here, for three reasons. First, unlike "Black," "colored" reminds us that perceptions of race rely heavily on context as well as phenotype; you can't necessarily tell who is "colored" just by looking. Second, the term signals that these dynamics were not unique to cases involving people of African descent. (7) Finally, the dynamics this Article describes are not limited to the bygone past, and this concept, with its historically specific terminology, reminds us how important it is to think historically when thinking about contract law.

Indeed, history has become central to recent discussions of race and law, as a small but growing number of legal scholars revive a longstanding critique that prevailing modes of legal education and legal scholarship hide the profound influence that slavery, the violent dispossession of Native Americans, and cases involving racial minorities have had on contract law, (8) property, (9) and civil procedure, (10) as well as public law domains not conventionally associated with race. (11) But these works tend to focus on cases that explicitly discuss race. In fact, as this Article will show, many of the most influential cases involving Black people are the ones that do not talk about race. It is not enough to show that race has disappeared from the casebooks and the Restatement. We must also ask why and how it disappeared, how it got there in the first place, and what we really mean when we say it has been "erased." (12) Answering such questions requires going beyond well-known cases and standard electronic searches on keywords such as "Negro" or "slave" (13) or "Indian." (14) It means looking at trial court records, and sometimes at archival or even oral sources. And it means considering racial minorities not only as objects of law or as stand-ins for "race," but also as legal thinkers and users of law. (15)

This wide-angle, archivally-informed approach makes possible the Article's third contribution: to explain what has happened to race in contract law, and why. Race now seems absent from all but the most marginal areas of contract law but appearances can be deceiving. Rather than a straightforward response to the imperatives of white supremacy (16) or a decision made in classroom (17) or casebook, (18) race has appeared and disappeared from blackletter law over time and at all stages of the legal process, through what I call "doctrinal passing": a complex interplay between the imperatives of legal advocacy, the normal flow of "doctrinal distillation," (19) and changing ideas about Black people and slavery. Similar to the way some "colored" people were allowed to "pass" as white, (20) "colored" cases were "passed" silently into the heart of contract law and naturalized as white when legal professionals elided the fact that a litigant was Black, and when they turned slavery into an abstraction, detached from race. The very thing that made Black people's cases such useful vehicles for doctrinal development during the formative era of American contract law--the space they afforded for manipulating the materiality of race--tended to make them invisible.

One important difference, of course, is that people, unlike cases, have volition. But we should not overstate this. People don't always choose to pass. Sometimes, they get passed, unwillingly (21) Moreover, just as light skin was neither necessary nor sufficient for people to pass as white, (22) doctrinal passing has depended heavily on context (for example, whether a case was discussed or cited alongside cases that were "about" race); context, in turn, has had its strongest effect locally and became attenuated with distance (for example, as a case moved to an appellate court); and it could be resurfaced without warning at any time.

Again and again, "'colored' cases" enabled legal professionals to position slavery and race as exceptions within the world of contract relations: useful for theorizing issues they deemed more fundamental, yet peripheral to contract law itself and therefore liable to be stripped of their racial facts. As widely as legal professionals have relied on Black people's cases, they gradually stopped mentioning--or even realizing--that Black people were involved, except in the most marginal doctrinal areas. Whitening contract law enabled it to emerge as a distinct, coherent body of law but at a steep cost to its doctrinal and conceptual integrity and to the law school curriculum. The problem of race in contract law is not how to make room to discuss race without skimping on the substantive doctrinal rules and concepts of contract law. The problem is that some of the doctrines and concepts are not quite what they seem.

Consider Harrington v. Taylor, (23) one of a trio of cases widely used (24) to teach the principles governing promises based on past consideration. Harrington raises important questions about how racial minorities have perceived and used contract law, how canonical cases get chosen and presented, and how contract law gets taught. The case was an action to recover damages based on Lee Walter Taylor's oral promise to pay Lena Harrington, whose hand had been maimed when she stopped Taylor's wife, Arnisea, from killing him with an axe. (25) The issue was whether Taylor's reneged promise was consideration for Harrington's sacrifice of her hand. (26) The court held that it was not. (27) A contracts teacher who wants to incorporate race might ask, "would the court have decided differently if Harrington had been Black?" But this is the wrong question because, in fact, Harrington was Black and so was everyone else at her house that night--her daughter Dorothy Strickland, her baby grand-daughter Ruby, and the Taylors. (28) In assuming that Harrington was white, the casebooks are unwittingly teaching students a racial hypo. And this matters to the rule of Harrington. (29)

The trial record, available by request from the state archives, reveals that Arnisea Taylor was a victim of domestic violence and suggests that the parties were trying to use contract law as a substitute for an unresponsive criminal justice system. The night before, she had gone to the police to report that her husband had beaten and threatened to kill her, but the police...