In our strange time of both Equity- Diversity- Inclusion (or EDI, or DEI) buzz as well as the , many law schools have recommitted themselves to integrating racial analysis in doctrinal classes. Even with such a commitment, addressing how racial discrimination and inequality are not just singular aberrations but rather are structurally entrenched across multiple fields of law remains a challenge in the classroom. Professor Chaumtoli Huq’s recently posted Article, , provides an accessible and insightful map for engaging with and applying theories of racial capitalism in a first year Contracts law course.
Professor Huq’s Article is a powerful testament to the idea that critical legal thinking skills are good legal practice skills. Asking questions informed by racial capitalism enables us to better articulate in the classroom how the law that builds and reinforces capitalism is not (only) racially exploitative through one-off instances of discrimination, but rather throughout the very foundations of labor, property, contract, and corporate jurisprudence. Law’s role in perpetuating structural racism - as opposed to individual, delineable instances of discrimination in an otherwise race-neutral economic and social system – can be difficult to grasp and therefore to teach as law professors. Professor Huq’s Article makes a marvelous contribution to doing just that, one that folks familiar with racial capitalism literature as well as folks new to it can enjoy and learn from.
The Article deftly demonstrates the pedagogy of a racial capitalism-informed contracts law analysis. Professor Huq presents several critical concepts, including “praxis” and “racial capitalism,” in accessible language while also explaining their relevance for legal education. In describing racial capitalism as “the mutual interdependence of racism and capitalism, a form of capitalism that relies on and is maintained by the exploitation and reproduction of racial differences” (5), she draws from Ruth Wilson Gilmore, Cedric Robinson, Robin D. G. Kelley, Claudia Jones, and others, explaining the under-appreciation of Jones’ and other Black feminist insights in academic literature along the way. She describes the relevance of racial capitalism for contract law thus:
“Racial capitalism provides an important through-line for students to understand how racial inequalities are reproduced in the present and the law’s role in this reproduction. As essentially a political- economic theory, it is particularly useful to draw connections between legal doctrine and the market economy. It stands in contra- distinction to the dominant classical and neoclassical economic theory embedded in contract doctrine” (10).
After laying the foundational vocabulary of the Article, Professor Huq re-reads a well-known 1845 Alabama contracts law case, Kirksey v. Kirksey (8 Ala. 131), through the lens of racial capitalism. Professor Huq’s analysis shows what is missing from conventional accounts of the case. The case involves a lawsuit between a woman and her brother-in-law. The woman was a widow with children, and the brother-in-law had offered them a place to live, only to evict them after several years. As we learn from Professor Huq’s discussion, the land which is offered to the widow is not actually owned by her brother-in-law. Professor Huq draws in historical literature depicting how the brother-in-law had been attempting to use the widow as a kind of placeholder enabling him to avail himself of a government program granting land to white settlers in the American South. She then takes the analysis further to reveal what is rendered invisible through the Court’s recognition of the claim between the two family members: the dispossession of Indigenous peoples by the American government as well as the exclusion of Black people from land ownership. Both modes of dispossession are ongoing. Professor Huq brings in contemporary work by scholars such as to show how property and contract law as well as government regulation perpetuate that dispossession.
Professor Huq effectively shows how social science literature –both the racial capitalism understandings of the economy as well as the historical literature around land allocations in the South – is essential to understanding the case before us. Such literature and the valid concerns around racial equity that it raises is not mere “policy” to be added on at the end of “real” or “doctrinal” legal analysis. It would be impossible to read the case as effective lawyer without knowing its context and its consequences. Those consequences go well beyond the individual land at stake, but rather necessitate a critical, revised appreciation of the process of land grants in the South and elsewhere in the U.S.
Professor Huq’s Article also elegantly illustrates how to appreciate seemingly race-neutral private law doctrine as having profound, invisibilized, racial effect. She distinguishes this kind of analysis from a “narrow legal analytic approach” which “fails to give students a robust understanding of the doctrine and fails to reveal how the doctrine is formed on the exclusion of others whose stakes to the claim for land were denied” (17-18). The assumption that contracts, property, and corporate law are generally race-neutral (unless they are facially discriminatory) has reinforced racial subordination by constructing and entrenching deeply oppressive economic structures such as land access and ownership as we see in Kirksey. By drawing our attention to what has been rendered invisible outside of the legal claim at stake, Professor Huq shows us (and her students) how to better appreciate the piece-by-piece, or case-by-case and policy-by-policy, construction of structural oppression. She shows how cases like Kirby exist not just in their text but in what happened when that text was written and when that opinion was rendered. In the shadow spaces surrounding claim recognition in judicial opinions, racial and other forms of subordination are given free reign.
To illustrate the ongoing effect of dispossession and the widespread impact of racially-discriminate housing policy in more recent times, Professor Huq then turns to African American Studies Professor Keeanga-Yamahtta Taylor’s work on the racially exploitative structures put in place by the federal government and the banking and real estate industries in the 20th and 21st centuries (23-26). This engagement deepens our understanding of the long history of racially-discriminatory practices of property valuation, the ways that “the market” is neither fair nor race-neutral, the influence of race on one’s ability to contract, the inadequacy of protective contract doctrines such as the requirement for adequate consideration in preventing exploitation and discrimination, as well as the impacts on community wealth and neighborhood investment today.
Once these limits of traditional contract law protections are appreciated by students, they are better able to “to explore additional approaches that get to the foundation of the racialized political economy such as the regulation of appraisers, diversification of the appraisal industry, which is mostly white, the standardization of methods for calculating value, and the regulations against house flippers and greater protection for Black homeowners.” (26, internal citations omitted). This wider frame of analysis enables students to appreciate what facts are being left out of dominant narratives, how public and private actors’ racially-disparate programs and policies are invisibilized through the assumption that they are race-neutral, and to therefore make stronger arguments for deserved relief. In Professor Huq’s Article, that recognition of deserved relief takes shape in a contract law-based argument for reparations through the principles of unjust enrichment and restitution. In reparations, law’s potential to be radically anti-racist is revealed, if only lawyers would take heed.
As Professor Huq argues, “contract law is not about what promises to enforce but rather reflects which socio-economic and power relationships are validated when courts enforce certain promises” (18). By appreciating how power relationships are legitimated through law, Professor Huq effectively empowers her students to use their legal practice to actively promote anti-racism. “From a praxis standpoint,” she argues, “a narrow legal analytic approach presents doctrine as fixed and inevitable and disempowers students from making choices to be antiracist” (18). Here, the goal isn’t just to further an anti-discriminatory or inclusionary form of capitalism through law but rather to reveal and eradicate “racially exploitative capitalist market structures” themselves (21).
By seeing contract and other fields of law through the lens of racial capitalism, we can better appreciate how law renders its own structural racism invisible – not just in the effect of a single judicial opinion or policy, but rather more deeply in methods of claim adjudication and reasoning, resulting jurisprudence, and in legal pedagogy. Eradication of those institutions and practices requires the form of anti-racism and anticapitalist education and critical legal analysis which Professor Huq’s Article exemplifies. It is a wonderful journey of pedagogy, history, contract and property law, and critical analysis and lawyering, and is eloquently written and a pleasure to read. This kind of pedagogical practice goes well beyond cursory race-based analysis. It calls for a slower, more deliberate, more historically-informed form of legal teaching. That this form of pedagogy can reach students is well demonstrated by the closing section which provides quotes and analytical insights by her students. Not only has Professor Huq walked them through this exemplary form of contracts law analysis, she has also provided foundational methods for how to think about law itself.
Priya S. Gupta is an Associate Professor at Ď㽶ĘÓƵ Faculty of Law. She teaches and writes in property law, race, and urban governance. An earlier version of this essay was published on Jotwell: .