Modern contract law is rife with ideas about race and slavery and cases involving African Americans, but that presence is very hard to see. This Article recovers a hidden history of race in contract law, from its formative era in the 1870s, through the Realist critiques of the early 1900s to the diverse intellectual movements of the 1970s and 80s. Moving beyond recent accounts of “erasure,” and complementing Critical Race Theorists’ insights about law’s role in constructing, naturalizing, and justifying racial inequality, the Article offers a historically rich account of when, where, and why legal professionals have highlighted race in contract law.
Volume 170Issue 5 2022 Article