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This Article comprises the last leg of a larger project I have undertaken on the implied obligation of good faith in contract law. I have argued elsewhere that, as a descriptive matter, the doctrine of good faith and fair dealing in contract law, despite some theoretical controversy in the established scholarship on the doctrine, functions in contemporary contract law not as an implied contract term—as it was originally conceived—but as a rhetorical proxy for judicial analyses of material breach and constructive conditions relating to underlying breach of contract claims. While such applications of good faith have been of great functional value to courts, lawyers, and students of contract law, I have argued that these developments have caused good faith jurisprudence to languish in an impoverished state and to further detach from the doctrine’s equitable roots in implicit contractual obligation. As such, I also have argued from a critical race perspective that, as a normative matter and due to the inadequacies of civil rights remedies, good faith should be used to prohibit discriminatory conduct based on race, gender, sexual identity, age, and/or other categories of identity in the contractual context.

Critical Race Realism: Re-Claiming the Antidiscrimination Principle through the Doctrine of Good Faith in Contract Law