Center for Law & the Economy Workshop: Carliss Chatman (SMU)

Center for Law and the Economy Workshop Series 

The Murphy Institute's Center for Law and the Economy hosts workshops each semester featuring Tulane and guest faculty from the fields of law, economics, and political science. Presenters share their latest research on a range of topics, including regulation, civil rights, the criminal legal system, and other key issues in law and political economy. Papers are distributed beforehand to the participants who read the paper and prepare discussion questions for the presenter.

The workshops, organized by Adam Feibelman, Director of the Center on Law and the Economy and Sumter D. Marks Professor of Law at Tulane Law School, are open to faculty, students, and the Tulane community. 

Carliss N. Chatman is a Professor of Law at SMU Dedman School of Law, where she teaches Business Enterprises, Race, Entrepreneurship & Inequality, Professional Responsibility, and Commercial Law. Her scholarship examines how corporate personhood, contract structures, and governance norms reinforce racial capitalism and systemic inequality.

Her work has appeared in leading law reviews including the Texas Law Review, UCLA Law Review, UC Irvine Law Review, Washington & Lee Law Review, and Michigan Journal of Race & Law, and in major media outlets such as The Washington Post, CNN, Bloomberg Law, The Hill, and NPR. She is also the author of the Amazon best-selling children’s book Companies Are People Too.

Professor Chatman is Chair of the Article 2 Committee of the Business Law Section of the American Bar Association, an Academic Fellow at the Center for Retail Investors & Corporate Inclusion, and a Faculty Affiliate at Duke University’s Samuel DuBois Cook Center on Social Equity. She founded both the AALS Section on Race and Private Law and the Law and Society Association’s Collaborative Research Network on Race and Private Law.

Abstract:

Plessy v. Ferguson and Lochner v. New York both began as ordinary transactions: Homer Plessy’s first-class railroad ticket, and Joseph Lochner’s employment agreement with his bakers. The cases are about two contracts, and about two meanings: Lochnermade contractual liberty into constitutional liberty, Plessy let race alter the performance of a facially neutral bargain. The two decisions divided competing traditions Reconstruction and its amendments failed to reconcile: liberty of contract and the contractual citizenship promised by the Civil Rights Act of 1866, now codified at 42 U.S.C. § 1981. One was constitutionalized; the other was passed over. Both ran through the Fourteenth Amendment: substantive liberty for the party already holding market position, and a guarantee the Court narrowed by stages, first to state action and later to the making of the bargain. Yet the cases have the same outcome: the fundamentals of contract law are disregarded to maintain race and class hierarchies.

The Fourteenth Amendment guarantees equal personhood; Lochner read that guarantee as a liberty belonging to the party with market position, the conversion that later lets an entity’s liberty defeat an obligation of equal access. White Economic Comfort further names the asymmetry of Plessy: the law’s preference for the market expectations whiteness has historically carried, held out as neutral principles of private ordering, an implied condition precedent on whether a Black party’s bargain delivers its full value. That allocation persists wherever the existing distribution of market power is treated as given, and a claim to equal performance as an interference with it. Both repudiations stopped short of the bargain itself. What survived acquired new names: colorblindness supplies the measure, originalism the authority, and First Amendment Lochnerism the liberty. Read through private law, neither decision is over: what each is taken to have decided has been repudiated, and what each actually did to a bargain has not. Contract, on this account, is not the setting in which constitutional rights operate but one of the instruments that distributes freedom and subordination. The unfinished work of Reconstruction is not equal protection but equal contract.