1981

Authors

• Carliss Chatman, Southern Methodist University Dedman School of LawFollow

Abstract

42 U.S.C. § 1981 should have solved a pervasive problem in American capitalism—when white economic interests do not converge with the contract rights of Black people, they are excluded from the market in a way that causes systemic harm. This Article proposes that the failure to enforce 1981 in the past may render it more harmful than beneficial in the present climate of retrenchment. The realities of racism combine with the lack of economic interest convergence to make combatting contract inequality on a contract-by-contract basis legally precarious, nearly impossible to properly evaluate, and difficult to economically incentivize. This is in part because the harm of racism is systemic, making it nearly impossible to attribute to a single actor. As a result, contracts cannot be fixed by declaring that contracting should be fair and making it a cause of action—instead we must address the underlying social issues that make unfair contracting economically rational. This is in part because contract law is the law of outcomes and not intentions, but 1981 mandates a deviation from this norm, requiring the court to explore the why of contract decisions. To enforce 1981 as intended, under modern conditions, requires altering the nature of contracting and shifting the burden of addressing systemic racism to the free market by analyzing economic choice—an approach that is antithetical to capitalism. Or it requires making America a place where all persons enjoy rights and lives equal to those as white citizens—an outcome that is not feasible without addressing systemic racism.

Recommended Citation

Carliss Chatman, 1981, 82 Wash. & Lee L. Rev. 1655 (2026).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol82/iss5/5