Professor Chaumtoli Huq’s recently posted Article, Integrating a Racial Capitalism Framework into First-Year Contracts: A Pathway to Anticapitalist Lawyering, provides an accessible and insightful map for engaging with and applying theories of racial capitalism in a first year Contracts law course. Her 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.
The Article deftly demonstrates the pedagogy of a racial capitalism-informed contracts law analysis. 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” (P. 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. (P. 10.)
After laying the foundational vocabulary of the Article, Huq re-reads a well-known 1845 Alabama contracts law case, Kirksey v. Kirksey, through the lens of racial capitalism. 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 Huq’s discussion, the land which is offered to the widow is not actually owned by her brother-in-law. 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. Huq brings in contemporary work by scholars such as Thomas Mitchell to show how property and contract law as well as government regulation perpetuate that dispossession.1
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.
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.” (Pp. 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, 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, 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. (Pp. 23-26.) 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.
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 anti-capitalist education and critical legal analysis which Huq’s Article exemplifies.
- Thomas W. Mitchell, From Reconstruction to Deconstruction: Undermining Black Landownership, Political Independence, and Community Through Partition Sales of Tenancies in Common, 95 NW. U. L. REV. 505 (2001).
