Gender Inequality in Contracts Casebooks: Representations of Women in the Contracts Curriculum

Abstract

Gender has always explicitly or implicitly played a critical role in contracting and in contracts opinions—from the early nineteenth century, when married women lacked the legal capacity altogether to contract, through the next century, when women gained the right to contract but continued to lack bargaining power and to be disadvantaged in the bargaining process in many cases, to today, when women are present in greater numbers in business and commerce, but face continued, yet less overt, obstacles. Typical casebooks provide ample offerings for discussions of the ways in which parties can be and have been disadvantaged because of their gender and gender identity. At the core, gender inequity often stems from long-held stereotypes about women in contracting, which are often on full display in the cases. The vast majority of cases in the typical Contracts casebook are drawn primarily from the commercial context; sales, franchise, employment, and transfer of property cases predominate most Contracts casebooks, with many fewer cases in the family context. In the commercial cases, women and other people who do not identify as men, rarely seen as the businessperson, seller, or landowner, are sorely underrepresented, and the “non-male” perspective tends to be obscured. Casebook offerings involving non-male parties still tend to be clustered in certain areas—namely contract defenses, promissory estoppel, and family cases. The result is a Contracts curriculum that typically confines women to certain traditional roles and relegates women’s issues to a secondary status, privileging rational, arms-length market promises at the expense of family-based promises. The overall gender allocation in cases may or may not be reflective of the actual presence of women in the universe of American contracts cases. But either way, it raises some issues regarding how the typical casebook presents women in the realm of contracts cases, and overall, the role of women in contracting. There is, of course, a diversity of viewpoints and a multiplicity of voices among women and feminists, who are divided by age, race, religion, sexual orientation, gender identity, ethnicity, and class, among other things. There are divisions among feminists over the nature and source of gender injustice, as well as over solutions.2 Feminists differ, for example, over the roles of men and women (such as biological differences and cultural frameworks that land women as the primary caretakers most of the time), and whether and how the law should account for those differences.3 When it comes to contract