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Diversity Readings Related to First-Year Courses

Enforceability

David Delaney, Geographies of Judgment: The Doctrine of Changed Conditions and the Geopolitics of Race, 83 Annals Ass'n Am. Geographers 48 (1993), JSTOR.

Abstract:

Ideological conceptions of space influence legal thought, leading to geographies of power enforced by law. The spatial character of a legal rule can yield different outcomes depending on its manipulation. Various legal interpretations of the doctrine of changed conditions (principles that allow judges to not enforce contracts) from 1917 to 1945 shed light on, and influenced, the geopolitics of race.

Andrew Gilden, Sexual (Re)Consideration: Adult Entertainment Contracts and the Problem of Enforceability, 95 Geo. L.J. 541 (2007), HeinOnline.

David P. Weber, Restricting the Freedom of Contract: A Fundamental Prohibition, 16 Yale Hum. Rts. & Dev. L.J. 51 (2013), HeinOnline.

Abstract:

This article argues that the general right to contract, that is to say the ability of one to obligate himself in exchange for another's obligation in return, is a fundamental (or basic) though not all-encompassing right and one that is subject to additional legal protections especially when limitations are sought to be imposed discriminatorily or based on status rather than capacity or subject matter of the contract. While post-Lochner decisions have given states considerable leeway to regulate the scope of freedom of contract, restrictions based on status, especially the status of unauthorized immigrants, are invidious and go beyond the ambit of the type of state regulation previously permitted. This article concludes that a prohibition on the right to contract based solely on unauthorized immigration status in the United States likely violates the Civil Rights Act and the U.S. Constitution on preemption, due process and equal protection grounds, and, to the extent executed contracts are involved, on Contract Clause grounds as well. The article analyzes other circumstances in which states and the federal government have previously restricted the right to contract based on status, and finds in nearly every case that the restriction of the right to contract affected members of a suspect class based on immutable characteristics such as race, national origin, alienage, gender, or servitude. While the Supreme Court has previously concluded immigration status is not a suspect class, this article argues that states' illicit use of immigration status as a proxy for race, national origin or alienage suffices to meet the Arlington Heights test for disparate impact and therefore qualifies for strict scrutiny. 

P. 51-52

Duress

Steven W. Feldman, Pre-Dispute Arbitration Agreements, Freedom of Contract, and the Economic Duress Defense: A Critique of Three Commentaries, 64 Clev. St. L. Rev. 37 (2015), HeinOnline

Orit Gan, Contractual Duress and Relations of Power, 36 Harv. J.L. &Gender 171 (2013), HeinOnline.

Nancy S. Kim, Situational Duress and the Aberrance of Electronic Contracts, 89 Chi.-Kent L. Rev. 265 (2014), HeinOnline.

Deborah Waire Post, Outsider Jurisprudence and the "Unthinkable" Tale: Spousal Abuse and the Doctrine of Duress, 26 U. Haw. L. Rev. 469 (2004), HeinOnline.

Promissory Estoppel

Orit Gan, A Feminist Economic Perspective on Contract Law: Promissory Estoppel as an Example, 28 Mich. J. Gender & L. 1 (2021), [HeinOnline], [journal site]

Economic analysis is a highly influential theoretical approach to contract law. At the same time, feminist analysis of contract law offers an important critical approach to the field. However, feminist economics, a prominent alternative approach to mainstream neo-classical economics drawing from both economic theory and feminist theory, has only been applied scarcely and sporadically to contract law. This Article seeks to bridge this gap and to apply the key features of feminist economics to an analysis of the doctrine of promissory estoppel. This Article uses promissory estoppel as an example to demonstrate a feminist economic analysis of contract law.

Unconscionability

Eben Colby, Note, What did the Doctrine of Unsconscionability do to the Walker-Thomas Furniture Company?, 34 Conn. L. Rev. 625 (2002), [HeinOnline]. 

Anne Fleming, The Rise and Fall of Unconsciounability as the Law of the Poor, 102 Geo. L.J. 1383 (2014), [HeinOnline]. Focusing on Williams v. Walker-Thomas Furniture Co., explores interplay of legislators and courts in developing doctrine of unconscionability and then a consumer protection law removed retail installment contracts from common law of contracts.

David Gilo & Ariel Porat, Viewing Unconscionability Through a Market Lens, 52 Wm. & Mary L. Rev. 133 (2010), [HeinOnline]. From the Abstract (at 134):

We offer workable guidelines for courts as to how they could implement the market-based approach proposed in this Article and demonstrate how this approach could produce outcomes opposite to, but fairer and more efficient, than the ones courts conventionally adopt or legal scholars offer. We also identify oppressive techniques suppliers employ in their contracts with consumers that are currently ignored completely by courts and are expected to survive even vigorous competition over contracts. We suggest that courts should be particularly suspicious of such oppressive techniques and scrutinize them with special care.

Muriel Morisey, Teaching Williams v. Walker-Thomas Furniture Co., 3 Temple Pol. & Civ. Rts. L. Rev. 89 (1993), [HeinOnline].