Emily M.S. Houh, Critical Race Realism: Re-Claiming the Antidiscrimination Principle Through the Doctrine of Good Faith in Contract Law, 66 U. Pitt. L. Rev. 455 (2005), HeinOnline.
This article argues that courts should use the doctrine of good faith in contract law to prohibit improper considerations of race in contract formation and performance, and should recognize good faith as a device for eliminating racial subordination that can function beyond the scope of conventional civil rights discourse. Although civil rights laws provide important remedies to victims of discrimination, the elimination of racial subordination cannot remain the exclusive domain of civil rights law. Rather, other substantive areas of law can and should incorporate expansive equality principles to achieve that end. For example, this article demonstrates how the implied obligation of good faith in contract law, applied in the at-will employment context, can employ expansive equality principles to provide alternate remedies to at-will employees who may not be able to obtain civil rights remedies because of the onerous burdens they must satisfy in order to prevail on their civil rights claims. Although courts have used the good faith doctrine largely to achieve economically efficient outcomes, this article further argues that courts need not limit the doctrine's use in that way. By screening the doctrine of good faith through the lenses of critical race and law and market economy theories, this article argues that using the doctrine of good faith to prohibit improper considerations of race in contracting is consistent not only with the equitable principles embodied by the doctrine, but also with the contractual goals of protecting parties' bargains, wealth formation, and the facilitation of exchange transactions.