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History Colloquium: Dylan Penningroth
Monday, January 25, 2021 @ 5:00 pm - 6:30 pm
This paper seeks to show when and why race has mattered in contract law, why it is mostly invisible in published legal materials, and when legal professionals today should acknowledge it. The paper begins to recover a significant but mostly invisible stratum of cases involving African Americans threading through case law, state codes, law journals, treatises, and teaching casebooks during what was, arguably, the formative era of American contract law, roughly between 1880 and 1950. It then describes how African Americans dealt with contract law in their everyday lives. The paper then seeks to explain why so much of this case law and this history of everyday use is buried—to analyze when, and why, legal professionals highlighted or suppressed the fact that litigants were black—and it speculates about what those choices have meant for law students and professors since the 1970s.
The paper focuses in depth on a few issues. In particular, it argues that cases involving black litigants helped usher in one of the most important developments in American contract law: the shift from a subjective to an objective theory of contract formation and interpretation, and its closely allied concept, the “reasonable man.” This theoretical shift is usually presented as a debate about economic modernization: that objectivism provided the uniform, predictable legal rules necessary for a modern, national, business economy. I will argue that, in fact, the debate between subjective and objective theorists was also driven by jurists’ evolving thinking about blacks: about whether a black person could be a reasonable man, about when and whether blacks were capable of making binding promises.
Events are wheelchair accessible. For disability-related accommodations, contact the organizer of the event. Advance notice is kindly requested.
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