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Abstract:
Empty Vessel explores both the positive and normative questions of what the contractually implied obligation of good faith does and should require of contracting parties. The Article attempts to assess and evaluate the ways in which courts are currently employing the good faith doctrine in contract disputes, as part of a larger project whose goal is to re-conceive and reinvigorate the private law doctrine of good faith as one that might assist in effecting the public law norm of equality. Empty Vessel identifies two dominant theoretical approaches to how to define good faith, which I refer to as the fairness (or, Restatement) and the economic (or, foregone-opportunities) approaches. Further, it argues that, to the extent courts have applied and/or referenced the economic and/or fairness models of good faith in their decisions, they have rendered the two approaches operationally and functionally indistinguishable by employing both approaches as analytical proxies for material breach. Empty Vessel is divided into three parts. Part I explains the good faith doctrine, and explores in some depth the theoretical differences between the fairness and economic approaches to good faith. By examining exemplary good faith decisions in the contexts of "vanilla" commercial contracting, commercial lending, contractor cases, and commercial real estate leasing, Part II argues that contemporary courts employ the good faith doctrine not as a truly implied contractual obligation, but as a rhetorical framework for analyzing underlying issues of what constitutes material breach. In conclusion, Empty Vessel argues that the good faith doctrine might be given new life in two different ways: first, vis-a-vis its applicability to bad faith conduct in contract formation and negotiation (presently the obligation applies only to the performance and termination of contract); and, second, with respect to performance and termination, vis-a-vis it's applicability in the employment context. While the scholarship relating to the former is quite rich, that relating to the latter remains relatively unexplored. As a result, I explore in other articles how good faith might be used in the employment context to remedy presently non-cognizable forms of discrimination.

Good Faith, Breach of Contract

Abstract:
This Article examines the strength of arguments concerning the causal connection between racial stigma and affirmative action. In so doing, this article reports and analyzes the results of a survey on internal stigma (feelings of dependency, inadequacy, or guilt) and external stigma (the burden of others' resentment or doubt about one's qualifications) for the Class of 2009 at seven public law schools, four of which employed race-based affirmative action policies when the Class of 2009 was admitted and three of which did not use such policies at that time.

Specifically, this Article examines and presents survey findings of 1) minimal, if any, internal stigma felt by minority law students, regardless of whether their schools practiced race-based affirmative action; 2) no statistically significant difference in internal stigma between minority students at affirmative action law school and non-affirmative action law schools; and 3) no significant impact from external stigma.

race, affirmative action, education, law school

Abstract:
This Essay, written for a 2005 symposium issue of the U.C. Davis Law Review, responds to an important question posed by the symposium organizers: What is the future of critical race feminism? In this Essay, I use a common law contractual good faith antidiscrimination claim, developed and proposed by me in a series of previously written articles, to help answer that question. While, in the past, my proposed good faith claim aimed principally to operationalize some recurring and foundational insights of critical race theory, such as the race crits' critique of the intentionality requirement in conventional antidiscrimination law, the Davis Symposium inspired related challenges and questions. What does my good faith antidiscrimination claim do for the future of critical race feminism? Does the claim have the potential also to operationalize foundational tenets of critical race feminism? Additionally, how might the insights of critical race feminists enable the further development of my good faith project?

This Essay begins to answer those questions. To provide background, it lays out the theoretical foundations of my proposed good faith antidiscrimination claim, specifically describing Devon Carbado and Mitu Gulati's influential working identity theory and its impact on the development of the claim. The Essay then sets forth aspirations of my proposed good faith claim, as well as for the future of critical race feminism more generally, that call for more aggressive critical engagement and 'publicization' of private law. It then describes the elements of the good faith antidiscrimination claim itself, and explains how the claim was developed to operationalize Carbado and Gulati's working identity theory. Finally, in the last part of the Essay, I begin to explore the potential that my proposed claim may have for transferring the related critical race feminist theories of antiessentialism and intersectionality into praxis, and, on the flipside, the implications those theories may have for the further refinement and development of my good faith claim. In this regard, the Essay defines the foundational critical race feminist concepts of antiessentialism and intersectionality and offers some responses to various critiques of those concepts. It then attempts to operationalize antiessentialism and intersectionality vis-a-vis my proposed claim, specifically in the context of sexual harassment and a sexual harassment hypothetical, in order to demonstrate how the claim might move critical race feminism toward praxis along the lines I have suggested elsewhere in the Essay.

Antidiscrimination, Feminism, Critical Race Theory, Sexual Harrassment

Abstract:
I didn't understand that my life-style was an act. I was on stage until I was almost fifty years old. I was really on stage being an image that somebody else had built me up to be. It wasn't what I really wanted to be, and I learned to come offstage. I'm offstage now. (Johnson, p. 139)

In the above excerpt from Paula Johnson's important new book, Bettie Gibson describes what it means to live as a representation: the Black female criminal. The hopelessness and hopefulness in the voices of the women profiled in Inner Lives exemplify a semiotic response to the racism that permeates the criminal justice and prison systems in the United States. This article asks how, in the telling of their stories and living of their lives, the incarcerated and formerly incarcerated women profiled in the book engage in a working semiotics. The extraordinary thing about the narratives collected by Johnson is that they describe how women who have been placed at the very bottom of the American social consciousness are successfully constructing their own image-repertoires rather than accepting the ones given to them by society, often in the most depressing of settings.

Critical Race Theory, Law & Narrative

Abstract:
An anthology by Austin Sarat is reviewed from a critical race perspective. The book's agenda is to show how the law seeks to work in the world, particularly when, why, and how legal decisions respond to social characteristics of those making them as well as those who are subject to them. Also emphasized are the complex relations among the law's various parts (e.g., judges and jurors, police and prosecutors, appellate and trial courts). The book is organized around the law's paradoxes, purposes of the law which can be somewhat mutually exclusive.

Many of the leading voices in the law and society movement are represented in the excerpts included in the anthology. Still, the review shows that the book fails to incorporate a critical race or feminist perspective into its stated goals. Discussion of race is not completely absent, just inadequate. The review considers many of the selections from the anthology and offers some commentary on them, as well as suggesting pieces that may have been included to address race and gender more effectively.

The review also briefly considers the relationship between the law and society and critical race movements and pointedly questions what meaning has been imposed upon the law and society movement as a consequence of Sarat constructing and interpreting its introductory canon.

critical race, feminism, gender

Abstract:
This Article employs what it calls "critical race realism" to theorize and propose a common law antidiscrimination claim that incorporates contemporary re-conceptualizations of antidiscrimination jurisprudence and grounds itself doctrinally not in civil rights law but in the contractually implied obligation of good faith. "Critical race realism" refers in part to this Article's explicit goal, in proposing the common law claim, to re-conceive explicitly the private law doctrine of good faith as one that might assist in effecting a public law norm of equality. By employing critical race realism, this Article hopes to help revive the controversy over what constitutes the public and private in American jurisprudence, so that legal realists and critical scholars might continue to interrogate, jointly, how our constructions and/or deconstructions of the public-private dichotomy implicate and affect our common goal: the elimination of the material and ideological conditions and causes of inequality.

In proposing the good faith discrimination claim, the Article attempts two interventions, one doctrinal and one theoretical. Doctrinally, the good faith discrimination claim explicitly traverses the boundary between public and private law by using the contractual doctrine of the implied obligation of good faith to effect a public law norm of equality. Theoretically, the good faith discrimination claim attempts to take account of and actualize Iris Marion Young's "five faces of oppression" by operationalizing Devon Carbado and Mitu Gulati's theory of "working identity." Moreover, the good faith discrimination claim attempts to drive theory into praxis by shifting its analytical inquiry away from intentionality and the "perpetrator perspective" - so deeply embedded in conventional civil rights law - and toward the conditions and agents, both material and ideological, of group-based subordination. In so doing, this Article does not argue that racial and gender identity and difference, specifically as those identities are lived in the workplace, should be de-constructed to the point of non-existence. Rather, the good faith discrimination claim means to address, contextually and specifically, the material burdens and risks imposed on workplace-outsiders by their ideological "image repertoires."

Contract Law, Good Faith, Antidiscrimination

Abstract:
This article argues that courts should use the doctrine of good faith in contract law to prohibit improper considerations of race in contract formation and performance, and should recognize good faith as a device for eliminating racial subordination that can function beyond the scope of conventional civil rights discourse. Although civil rights laws provide important remedies to victims of discrimination, the elimination of racial subordination cannot remain the exclusive domain of civil rights law. Rather, other substantive areas of law can and should incorporate expansive equality principles to achieve that end. For example, this article demonstrates how the implied obligation of good faith in contract law, applied in the at-will employment context, can employ expansive equality principles to provide alternate remedies to at-will employees who may not be able to obtain civil rights remedies because of the onerous burdens they must satisfy in order to prevail on their civil rights claims. Although courts have used the good faith doctrine largely to achieve economically efficient outcomes, this article further argues that courts need not limit the doctrine's use in that way. By screening the doctrine of good faith through the lenses of critical race and law and market economy theories, this article argues that using the doctrine of good faith to prohibit improper considerations of race in contracting is consistent not only with the equitable principles embodied by the doctrine, but also with the contractual goals of protecting parties' bargains, wealth formation, and the facilitation of exchange transactions.

Good Faith, Contracts, Employment, Civil Rights