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Diversity Readings Related to First-Year Courses

Good Faith

Emily M.S. Houh, Critical Race Realism: Re-Claiming the Antidiscrimination Principle Through the Doctrine of Good Faith in Contract Law, 66 U. Pitt. L. Rev. 455 (2005), HeinOnline.

Emily M.S. Houh, Critical Interventions: Toward an Expansive Equality Approach to the Doctrine of Good Faith in Contract Law, 88 Cornell L. Rev. 1025 (2003), HeinOnline, Cornell Law Review.

Abstract:

This article argues that courts should use the doctrine of good faith in contract law to prohibit improper considerations of race in contract formation and performance, and should recognize good faith as a device for eliminating racial subordination that can function beyond the scope of conventional civil rights discourse. Although civil rights laws provide important remedies to victims of discrimination, the elimination of racial subordination cannot remain the exclusive domain of civil rights law. Rather, other substantive areas of law can and should incorporate expansive equality principles to achieve that end. For example, this article demonstrates how the implied obligation of good faith in contract law, applied in the at-will employment context, can employ expansive equality principles to provide alternate remedies to at-will employees who may not be able to obtain civil rights remedies because of the onerous burdens they must satisfy in order to prevail on their civil rights claims. Although courts have used the good faith doctrine largely to achieve economically efficient outcomes, this article further argues that courts need not limit the doctrine's use in that way. By screening the doctrine of good faith through the lenses of critical race and law and market economy theories, this article argues that using the doctrine of good faith to prohibit improper considerations of race in contracting is consistent not only with the equitable principles embodied by the doctrine, but also with the contractual goals of protecting parties' bargains, wealth formation, and the facilitation of exchange transactions.

Impossibility

Mary Joe Frug, Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract Law, 140 U. Pa. L. Rev. 1029 (1992), HeinOnline.

Voidable Contracts

Debra D. Burke & Angela J. Grube, The NCAA Letter of Intent: A Voidable Agreement for Minors?, 81 Miss L.J. 265 (2011), HeinOnline.

From the Introduction:

The National Letter of Intent (NLOI) program provides member schools a systematic way of recruiting student athletes. But are these letters of intent binding on prospective players who sign the agreement when they are minors? [...] While it is designed in part to inject rationality and order into a potentially chaotic recruiting process, the common law's infancy doctrine protects minors from improvident agreements made with potentially predatory adults. This paper analyzes the right of a minor to disaffirm contracts in conjunction with the NLOI program.

P.265-266

Clinton Luth, The Color of Competency: The Differential Race Impact of Mental Health Assessment in Voidable Contracts, 20 J. Gender Race & Justice 563 (2017), HeinOnline.

Daniel P. O'Gorman, Show Me the Money: The Applicability of Contract Law's Ratification and Tender-Back Doctrines to Title VII Releases, 84 Tul. L. Rev. 675 (2010), HeinOnline.

Introduction:

If an employee releases her claims under Title VII of the Civil Rights Act of 1964 (Title VII), but her assent to release is not "voluntary and knowing," the release is voidable at her option. But under common law, the power of a party to void a release, or any other contract, could be lost if the party ratifies the release or fails to tender back the consideration received. This raises the issue of whether these common law contract doctrines apply to releases that are voidable under Title VII.

P. 676-677

M. Mark Heekin & Bruce W. Burton, When is Minority Not Minority: NCAA Ignores Two Centuries of Anglo-American Contract Law Respecting Legal Status, 21 Jeffrey S. Moorad Sports L. J. 39 (2014), HeinOnline.

From the Introduction:

For centuries the common law, supplemented by state statutes, has voided or rendered voidable all contracts entered into by minors. [...] Despite this longstanding common law tradition of protecting "minors from their own want of sound judgment," current NCAA regulations discard this legal tradition. Rather than protecting minors against entering into unwise or exploitative agent contracts, mismatched as most youngsters from ages thirteen to eighteen years old may be when dealing with sports business predators, NCAA regulations offer draconian, lifelong penalties for the errors of youth.

P. 39-40