ABSTRACT
There is a rich and diverse scholarship regarding contract law and equality addressing questions such as should contract law promote equality, and if so how. This Article contributes to this literature by looking at these questions from the perspective of the state. This Article then examines how the state can and should utilize its different powers to advance social equality through contract law. As such this Article addresses the meeting point of contract law, equality, and state power. This Article maps the three strategies the state can and should adopt in combating discrimination, by enforcing contracts, applying contract law doctrines, and regulating and legislating laws as background rules. It applies this map using three test cases: enforcing nonmarital agreements, applying contract defenses in consumer contracts, and enacting the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act which voids mandatory arbitration agreements in sexual harassment and sexual assault cases. This Article concludes by analyzing the implications of the analysis suggested in this Article regarding contract law, equality, and state power.
Gan, Orit, Contract Law, Equality and the State (October 21, 2023), 72 Cleveland State Law Review, 2024.
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