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Critical Interventions: Toward An Expansive Equality Approach To The Doctrine Of Good Faith In Contract Law, Emily Houh
Critical Interventions: Toward An Expansive Equality Approach To The Doctrine Of Good Faith In Contract Law, Emily Houh
Faculty Articles and Other Publications
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 …
Arbitration, Consent And Contractual Theory: The Implications Of Eeoc V.Waffle House, Jaime L. Dodge, Elizabeth Pollman
Arbitration, Consent And Contractual Theory: The Implications Of Eeoc V.Waffle House, Jaime L. Dodge, Elizabeth Pollman
All Faculty Scholarship
Consent has long been the foundation of arbitration, giving the process legitimacy and informing decisions about its nature and structure. The Supreme Court has consistently required consent as a precondition for compelling arbitration. However, it remains unclear what actions constitute consent. In First Options v. Kaplan,1 the Supreme Court held that courts should apply state contract law to determine whether an arbitral clause exists, but “added an important qualification” that “[c]ourts should not assume that the parties have agreed to arbitrate unless there is clear and unmistakable evidence that they did so.”2 In the wake of First Options, the courts …