Catching up on JOTWELL, Summer 2023 Edition

Since we last checked in on JOTWELL’s Contracts feed in April, three new posts have appeared, which we summarize and link to below.

First, Hila Keren (right) posted Gender and Marketplace Morality , commenting on Gregory Klass & Tess Wilkinson-Ryan, Gender and Deception: Moral Perceptions and Legal Responses, 117 Nw. U. L. Rev. __, forthcoming 2023, Jan. 20 2023 draft available at SSRN.  In their article, Professors Klass and Wilkinson-Ryan (the authors) use empirical methods to specify the ways in which market deception plays out differently for men and women.  As Hila notes, and as we discussed here, Deborah Threedy and others have argued that courts in the Arthur Murray cases grant favorable judgments to woman while belittling their intelligence and negating their agency.  The authors devised three studies.  The first yielded significant results.  It involved the presentation of a table bought at a big-box store for $200 as an antique worth $500.  Participants founded this deception particularly objectionable when male sellers deceived women buyers, and they treated corporate sellers the same as men.  The second study indicated small but statistically significant support for legislative protections in connection with products that are primarily marketed to women.  The final study explored participants punitive instincts relating to criminal penalties for deceptive sales.  Here, to the authors’ surprise, the punishment turned not on the gender of the seller or the buyer but on the participants’ characteristics — age, gender, and political orientation.  

The authors’ research suggests that the attitudes that informed the courts in the Arthur Murray cases are on the wane, with people assuming that women and men are equally savvy in most commercial situations.  Going beyond the authors’ explicit claims, Hila finds in their support for a further feminist  argument that men are less likely that women or non-binary people to find commercial deception objectionable and thus are more likely to engage in such deception themselves.  Combining the results of the three studies, Hila notes that women are more likely to find deception objection, more likely to favor regulation, and less inclined to impose harsh criminal penalties.  All of this is consistent with what Robin West described as an ethics of care.

Next, Orit Gan (left) posted What Does Sex Have to Do with Contract, reviewing Albertina Antognini & Susan Frelich Appleton, Sexual Agreements, 99 Wash. L. Rev. 1807 (2022).  Orit remarks that the article is “thought-provoking” because it brings together the “utterly different and separate worlds” of sex and contracts.  We here at the contracts blogs are not provoked.  What could be sexier than contracts, and we’ve been writing about “love contracts” since at least 2007.  

Orit begins with the basics.  Contracts for illicit sexual services are illegal or void as against public policy.  Even within a marriage, a contract for sex would not be enforceable as sex is already an implied term of the marriage contract.  The partner for whom I worked in private practice once had to explain this black-letter law to a client who believed that he could not appear on court on a given day because of a peculiar side agreement he had entered into with his wife.  

But Professors Antognini and Appleton (the Authors) demonstrate that the line between sex, even illicit sex, and contract is not so easily drawn.  The law recognizes many contracts for sexual relations, ranging from some forms of surrogacy to adult entertainment.  The law of rape turns on consent, not on marital status.  The Authors explore the consequences of a contractual approach to sex.  They acknowledge the dangers of commodification but also recognize that sex acts, even those that are contractually negotiated, satisfy emotional as well as physical needs.  From sex, the Authors move on to consider marriage and to imagine what marriage might come to mean in an egalitarian society in which marriage can exist without prescribed gender roles.  Finally, the Authors pan out one last time to consider the role of contract in a world in which sex and contract are imagined as overlapping but not co-extensive worlds.

Finally, Martha Ertman (right) Contract as a Tool of Systemic Racism & (Maybe) Reparations, reviewing Marissa Jackson Sow, Whiteness as Contract, 78 Wash. & Lee L. Rev. 1803 (2022).  Regular readers of the blog may recall that she provided us with a two-part guest post on the topic of her article here and here.

Professor Ertman praises Professor Jackson Sow’s work as offering “the best answer I have encountered to persistent racial injustices.”  That answer consists of an insistence on “our core commitment to white supremacy,” as evidenced by constitutional commitments to the protection of contractual and property rights (including property interests in enslaved people).  That core commitment is threatened by legislation that protects equality interests at the expense of “neutral” laws that ensure the perpetuation of racial hierarchies.  Professor Jackson Sow’s work builds on Chris Mills’ 1999 book The Racial Contract, and specifies the ways in which a racial contract supplants and violates the social contract that liberal theory posits as the foundation of the law’s neutrality.  The priority given to the racial contract over the social contract facilitates the maintenance of “a sociopolitical order that places Black and Indigenous people outside of the law, outside of personhood, and – as necessary – outside of property, via displacement, dispossession, disenfranchisement, or death.”

Once we acknowledge the systemic nature of the racial contract, we can rely on contracts doctrine to formulate remedies.  Professor Jackson Sow urges her white readers to “recognize their individual and collective guilt” as either “signatories to or beneficiaries of an ongoing series of negotiations over the benefits and spoils of white supremacy.”