Erik Encarnacion, ‘Section 1981 as Contract Law’, available at SSRN (10 January 2025). Erik Encarnacion’s ‘Section 1981 as Contract Law’ presents a striking claim: 42 USC § 1981, a statute primarily understood as a piece of federal antidiscrimination law, is, in fact, a foundational component of contract law in the United States. Section 1981, originally part of the Civil Rights Act of 1866 and later amended in 1991, prohibits racial discrimination in the making, performance, modification, termination, and enforcement of contracts. Encarnacion argues that this provision does not merely sit adjacent to contract law as a regulatory constraint; rather, it is an intrinsic part of contract law itself. This conceptual reframing has significant implications for legal theory, doctrinal teaching, and the broader understanding of how contract law operates on the ground, and I recommend the paper to you … (more)
[David Hoffman, JOTWELL, 28 February 2025]
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