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Anti-Stereotyping Theory and Contract Law

Women gained the right to contract in the nineteenth century, but it nevertheless remains relevant to ask whether modern day contract law discriminates against women. In answering this question, this Article applies anti-stereotyping theory to contract law. This anti-discrimination theory is most commonly used in equal protection cases and in Title VII cases, but its relevance is not limited to such cases. Analyzing contract law doctrines through the lens of anti-stereotyping theory reveals contract law's gender biases. Contract law endorses an “economic men” rule and a “domestic women” exception. Thus, economic concerns (generally associated with men) are at the core of contract law and other values (generally associated with women) are at the margins. This hierarchy is based on gender stereotypes and is thus discriminatory. This Article suggests that contextual contract law should be used to transcend such stereotypical and binary thinking and to make contract law more inclusive and egalitarian.