INTRODUCTION I was invited to deliver the September 2017 Dean's Lecture, on which this essay is b... more INTRODUCTION I was invited to deliver the September 2017 Dean's Lecture, on which this essay is based, in March of 2017, shortly after the inauguration of Donald J. Trump as the 45 th president of the United States. I had originally planned to present on one of my longstanding research areas, the intersections of contract law and critical race theory, but as the spring wore on, I began to feel an urgency about using my expertise to comment more directly on the increasingly overt but trenchant race, gender, sex, and class inequalities and conflicts that have plagued our nation for centuries. This sense of urgency was stoked by the intense summer of 2017, which brought us, among other things: the white supremacist, torchlight "Unite the Right" rally in Charlottesville-organized ostensibly to protest the city's plans to remove its Confederate monuments-during which thirty-four people were injured and three died, including 32-year-old Virginian, Heather Heyer (a white counter-protester killed by a Unite the Right marcher who drove his car into a crowd of which she was a part). 1 Additionally, two Virginia state troopers were killed in a helicopter crash
ABSTRACT Empty Vessel explores both the positive and normative questions of what the contractuall... more ABSTRACT Empty Vessel explores both the positive and normative questions of what the contractually implied obligation of good faith does and should require of contracting parties. The Article attempts to assess and evaluate the ways in which courts are currently employing the good faith doctrine in contract disputes, as part of a larger project whose goal is to re-conceive and reinvigorate the private law doctrine of good faith as one that might assist in effecting the public law norm of equality. Empty Vessel identifies two dominant theoretical approaches to how to define good faith, which I refer to as the fairness (or, Restatement) and the economic (or, foregone-opportunities) approaches. Further, it argues that, to the extent courts have applied and/or referenced the economic and/or fairness models of good faith in their decisions, they have rendered the two approaches operationally and functionally indistinguishable by employing both approaches as analytical proxies for material breach. Empty Vessel is divided into three parts. Part I explains the good faith doctrine, and explores in some depth the theoretical differences between the fairness and economic approaches to good faith. By examining exemplary good faith decisions in the contexts of "vanilla" commercial contracting, commercial lending, contractor cases, and commercial real estate leasing, Part II argues that contemporary courts employ the good faith doctrine not as a truly implied contractual obligation, but as a rhetorical framework for analyzing underlying issues of what constitutes material breach. In conclusion, Empty Vessel argues that the good faith doctrine might be given new life in two different ways: first, vis-a-vis its applicability to bad faith conduct in contract formation and negotiation (presently the obligation applies only to the performance and termination of contract); and, second, with respect to performance and termination, vis-a-vis it's applicability in the employment context. While the scholarship relating to the former is quite rich, that relating to the latter remains relatively unexplored. As a result, I explore in other articles how good faith might be used in the employment context to remedy presently non-cognizable forms of discrimination.
This Article examines the strength of arguments concerning the causal connection between racial s... more This Article examines the strength of arguments concerning the causal connection between racial stigma and affirmative action. In so doing, this Article reports and analyzes the results of a survey on internal stigma (feelings of dependency, inadequacy, or guilt) and external stigma (the burden of others' resentment or doubt about one's qualifications) for the Class of 2009 at seven public law schools, four of which employed race-based affirmative action policies when the Class of 2009 was admitted and three of which did not use such policies at that time. Specifically, this Article examines and presents survey findings of 1) minimal, if any, internal stigma felt by minority law students, regardless of whether their schools practiced race-based affirmative action; 2) no statistically significant difference in internal stigma between minority students at affirmative action law schools and non-affirmative action law schools; and 3) no significant impact from external stigma.
This Article examines the strength of arguments concerning the causal connection between racial s... more This Article examines the strength of arguments concerning the causal connection between racial stigma and affirmative action. In so doing, this Article reports and analyzes the results of a survey on internal stigma (feelings of dependency, inadequacy, or guilt) and external stigma (the burden of others' resentment or doubt about one's qualifications) for the Class of 2009 at seven public law schools, four of which employed race-based affirmative action policies when the Class of 2009 was admitted and three of which did not use such policies at that time. Specifically, this Article examines and presents survey findings of 1) minimal, if any, internal stigma felt by minority law students, regardless of whether their schools practiced race-based affirmative action; 2) no statistically significant difference in internal stigma between minority students at affirmative action law schools and non-affirmative action law schools; and 3) no significant impact from external stigma.
INTRODUCTION I was invited to deliver the September 2017 Dean's Lecture, on which this essay is b... more INTRODUCTION I was invited to deliver the September 2017 Dean's Lecture, on which this essay is based, in March of 2017, shortly after the inauguration of Donald J. Trump as the 45 th president of the United States. I had originally planned to present on one of my longstanding research areas, the intersections of contract law and critical race theory, but as the spring wore on, I began to feel an urgency about using my expertise to comment more directly on the increasingly overt but trenchant race, gender, sex, and class inequalities and conflicts that have plagued our nation for centuries. This sense of urgency was stoked by the intense summer of 2017, which brought us, among other things: the white supremacist, torchlight "Unite the Right" rally in Charlottesville-organized ostensibly to protest the city's plans to remove its Confederate monuments-during which thirty-four people were injured and three died, including 32-year-old Virginian, Heather Heyer (a white counter-protester killed by a Unite the Right marcher who drove his car into a crowd of which she was a part). 1 Additionally, two Virginia state troopers were killed in a helicopter crash
ABSTRACT Empty Vessel explores both the positive and normative questions of what the contractuall... more ABSTRACT Empty Vessel explores both the positive and normative questions of what the contractually implied obligation of good faith does and should require of contracting parties. The Article attempts to assess and evaluate the ways in which courts are currently employing the good faith doctrine in contract disputes, as part of a larger project whose goal is to re-conceive and reinvigorate the private law doctrine of good faith as one that might assist in effecting the public law norm of equality. Empty Vessel identifies two dominant theoretical approaches to how to define good faith, which I refer to as the fairness (or, Restatement) and the economic (or, foregone-opportunities) approaches. Further, it argues that, to the extent courts have applied and/or referenced the economic and/or fairness models of good faith in their decisions, they have rendered the two approaches operationally and functionally indistinguishable by employing both approaches as analytical proxies for material breach. Empty Vessel is divided into three parts. Part I explains the good faith doctrine, and explores in some depth the theoretical differences between the fairness and economic approaches to good faith. By examining exemplary good faith decisions in the contexts of "vanilla" commercial contracting, commercial lending, contractor cases, and commercial real estate leasing, Part II argues that contemporary courts employ the good faith doctrine not as a truly implied contractual obligation, but as a rhetorical framework for analyzing underlying issues of what constitutes material breach. In conclusion, Empty Vessel argues that the good faith doctrine might be given new life in two different ways: first, vis-a-vis its applicability to bad faith conduct in contract formation and negotiation (presently the obligation applies only to the performance and termination of contract); and, second, with respect to performance and termination, vis-a-vis it's applicability in the employment context. While the scholarship relating to the former is quite rich, that relating to the latter remains relatively unexplored. As a result, I explore in other articles how good faith might be used in the employment context to remedy presently non-cognizable forms of discrimination.
This Article examines the strength of arguments concerning the causal connection between racial s... more This Article examines the strength of arguments concerning the causal connection between racial stigma and affirmative action. In so doing, this Article reports and analyzes the results of a survey on internal stigma (feelings of dependency, inadequacy, or guilt) and external stigma (the burden of others' resentment or doubt about one's qualifications) for the Class of 2009 at seven public law schools, four of which employed race-based affirmative action policies when the Class of 2009 was admitted and three of which did not use such policies at that time. Specifically, this Article examines and presents survey findings of 1) minimal, if any, internal stigma felt by minority law students, regardless of whether their schools practiced race-based affirmative action; 2) no statistically significant difference in internal stigma between minority students at affirmative action law schools and non-affirmative action law schools; and 3) no significant impact from external stigma.
This Article examines the strength of arguments concerning the causal connection between racial s... more This Article examines the strength of arguments concerning the causal connection between racial stigma and affirmative action. In so doing, this Article reports and analyzes the results of a survey on internal stigma (feelings of dependency, inadequacy, or guilt) and external stigma (the burden of others' resentment or doubt about one's qualifications) for the Class of 2009 at seven public law schools, four of which employed race-based affirmative action policies when the Class of 2009 was admitted and three of which did not use such policies at that time. Specifically, this Article examines and presents survey findings of 1) minimal, if any, internal stigma felt by minority law students, regardless of whether their schools practiced race-based affirmative action; 2) no statistically significant difference in internal stigma between minority students at affirmative action law schools and non-affirmative action law schools; and 3) no significant impact from external stigma.
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Papers by Emily Houh