Sketches of a Redemptive Theory of Contract Law
Emily M.S. Houh
Volume 66, Issue 4, 951-970
This Article is about the game we call contract law and what it does and means to those who, at one time or another, have been categorically barred from play. How have “outsider” players—such as racial minorities, women, and sexual minorities—entered the game and, subsequently, how have its governing rules—that is, contract doctrines—applied or not applied to them? On the flipside, how have common law contract doctrines responded to the entry of new players in the game? And, to the extent contract law has so responded, why has it done so? In asking and responding to these questions, this Article begins to examine how contract law facilitates, internalizes, and resists changing social contexts and movements. More broadly, as other scholars have done, it offers an alternative to the “formalist-realist” narrative of contract law by demonstrating how contract law has functioned and continues to function as an “engine of social change” that simultaneously “transforms” and “preserves” a stratified socioeconomic order based on race, gender, and sex. This Article further argues that by so functioning, the regime of American contract law legitimates or “redeems” itself within the neoliberal project of the American legal system as it responds to periods of transformative social, cultural, political, and economic upheaval.