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Law Review symposium explores the meaning of contracts in context

The Wake Forest University Law Review will host its annual Business Symposium entitled: “Contract Law in Context: Identity, Power, and Contractual Justice,” from 9 a.m. to 5 p.m. on Friday, March 26, in the Worrell Professional Center, Room 1312.

The event is free and open to the public.

The symposium will explore the meaning of contracts in context. The question to be asked, is should definitive contexts involving contracts — gender and race discrimination, large business-small business bargaining disparities, intra-ethnic contracting — be better reflected in contract law? Alternatively, has the market adequately disciplined inefficiencies related to discrimination, bias, and inequality of bargaining power?

First, the symposium will look at how contract law internalizes context in the fabrication of contract rules. Second, it will discuss contract law in its socio-cultural context, exploring the importance of context in trans-border transactions and in the evolving area of online social contracts. Third, it will examine contracts in context from different perspectives including a comparative analysis of unconscionability, the role of gender, and the interpretation of contracts in a religious context. Finally, this symposium will explore the broadening of context in areas of post-purchase consent in consumer contracts and the resolution of limited liability company disputes.

Should definitive contexts involving contracts — gender and race discrimination, large business-small business bargaining disparities, intra-ethnic contracting — be better reflected in contract law?

Panelists include Daniel Barnhizer, Michigan State University; Marcus Cole, Stanford University; Larry DiMatteo, University of Florida; Robert Emerson, University of Florida; Robert Hillman, Cornell University; Nancy Kim, California Western School of Law; Sandra Miller, Widener University; Dean Blake Morant, Wake Forest University School of Law; Nate Oman, The College of William and Mary; John Phillips, Kings College, London; Patricia Sanchez-Abril, University of Miami; Amy Schmitz, University of Colorado; and Debora Threedy, University of Utah.

The use of context to provide status-based protections is not new to the law. Scholars have offered various views of the correlations between context-status-contract law. Examples include Nathan Isaacs’ thesis (Standardizing Contracts, 1917) that legal evolution consists of recurring cycles characterized by word study, manipulation of words by fiction, increased use of equitable principles, and re-codification. Llewellyn embraced contextualism through the “delumping’” of contract rules based upon context (transaction-types analysis). More recent examples of the importance of context to contracts include Ian Ayers’ works on racial and gender discrimination and Dean Morant’s advancement of a broadened contextualism in the interpretation of contracts.

Support for the importance of context to contracts can be drawn from the Schwartz-Scott thesis. It argues that a non-interventionist-textual contract law should be the model for business-to-business contracting. They argue for a wealth-maximization guide to contract law because “that is the type of contract law that business prefers.” This model of contract law is partially made possible by disaggregating consumer contracts as the domain of consumer protection law. The focus of the Symposium is on whether contract law — consumer or business — adequately considers contextual factors, such as race, gender, and power. The symposium will question whether the consumer contract and business contract distinction is over generalized. Are small businesses more like consumers vis-à-vis large businesses?

The use of context in the fabrication of contract rules is displayed in the Uniform Commercial Code. Although the UCC is generally regarded as a body of law that applies to all sales transactions, it recognizes the importance of context in fabricating appropriate legal responses to contract disputes. Llewellyn’s contextual-interpretive methodology is the mechanism by which the UCC responds to different contexts. This methodology is partially founded on the consumer-merchant distinction. This symposium asks whether other contractual contexts should be more openly embraced by contract law? The answer to this question is possible if answers to the following questions are offered: (1) Do contract law’s policing doctrines, such as unconscionability, provide the necessary tools to deal with power, gender, and racial biases? (2) Is regulatory law the appropriate venue to correct contractual injustice? Or, assuming that racial, gender, and power asymmetries go to the core of consent, must contract law respond? The two aims of the symposium are to critique existing law’s response to context and to provide constructive insight on how to make contract law more sensitive to differing contexts.

Alberto Salazar Valle’s essay entitled The Complex Context of Contract Law raises the following topical issues that the Symposium will hopefully confront:

  • The need to develop better descriptive and normative frameworks to study contract law in context.
  • The need to better understand the relationship between context, contract law, and contractual justice problems.
  • Does regulatory law adequately protect contracting against bias and discrimination?
  • Should the small-emerging business versus large business distinction inform contract law?
  • What should the role of contract law be in regulating “discretionary power”?
  • If the influences of race, class, gender, ethnicity, and power are recognized in a contractual context, then how should contract law better respond to these influences? Broader contextual rules of interpretation? Expansion of unconscionability doctrine? Should there be a heightened duty to inform or a requirement of “particularized consent”?

This symposium is available for 6.5 hours of CLE credit.