Vulnerable Populations and Transformative Law Teaching: A Critical Reader, Chapter 6 - Vulnerability in Contracting: Teaching First-Year Law Students about Inequality and Its Consequences
Traditional legal pedagogy fails to demonstrate the relationship of contract to the subordination of vulnerable populations. As a result, students rarely see the complex web of interrelationships where economic activity takes place or the legal regime that maintains it. Students are not taught how to interrogate the discourse or dismantle the systems and structures that oppress subordinated communities. This Essay describes a technique that we have developed to help students learn the meaning of law and its cultural, social, and structural significance. The traditional framing of the study of contract doctrine as one that is objective, neutral, and fair avoids any examination of human nature, subjective reasoning, or social structure. The challenge is to encourage students to think about the culturally-specific assumptions that inform our understanding of exchange – specifically, that deeply held sentiments about the appropriateness of the behavior of contracting parties are related to the relative position of the parties and the groups to which they belong, the context in which the transaction occurs, and the nature and subject matter of the exchange. A teacher who ignores the relationship between contract rules and social structure deprives students of a deeper understanding of economies and the ways in which lawyers who are concerned about inequality and poverty might use the law for social change.
We believe it is imperative to teach students three things: (1) that law creates, supports, and reinforces the relationships of inequality that exist in the United States; (2) that the law can and sometimes does compensate for the economic and social disadvantages inherent in a segmented and stratified social system; and (3) that if the law recognizes the agency of individuals who are members of subordinated communities, it can be an instrument of social change. This Essay provides concrete examples of how to introduce issues of race, gender, class, sexual orientation, and disability into first year courses. Proposed exercises provide practical guidance and specific questions that can be posed to students to promote a meaningful discussion of what the law does and what the law could do to address the effects of economic disparities, prejudice, or discrimination.
Deborah W. Post & Deborah Zalesne Vulnerability in Contracting: Teaching First-Year Law Students about Inequality and Its Consequences in Vulnerable Populations and Transformative Law Teaching: A Reader (Durham, N.C.: Carolina Academic Press, 2011).
Carolina Academic Press