Modern contract law is rife with ideas about race and slavery and cases involving African Americans, but that presence is very hard to see. This Article recovers a hidden history of race in contract law, from its formative era in the 1870s, through the Realist critiques of the early 1900s to the diverse intellectual movements of the 1970s and 80s. Moving beyond recent accounts of “erasure,” and complementing Critical Race Theorists’ insights about law’s role in constructing, naturalizing, and justifying racial inequality, the Article offers a historically rich account of when, where, and why legal professionals have highlighted race in contract law.

Federal gun prosecutions have been a significant part of the federal
docket for decades. In this Article, we explore for the first time the evolution
of federal gun crimes. They cover conduct ranging from gun distribution and
possession of particular weapons such as machine guns to use by drug
traffickers and individual possession of firearms by felons. Second, we
describe how in practice gun charges have adapted to criminal law priorities
of Congress and federal prosecutors over time. More recently, they became
prominent in connection with immigration prosecutions, while in the 1980s,
drug gangs were the priority. During this time, gun cases provided vehicles
for testing the reach of federal jurisdiction, the use of federal crimes as
sentencing enhancements, and the boundaries between federal, state, and
local enforcement.

The jurisprudential evolution of evidence law is dead. At least, that’s what
we’re expected to believe. After all, it’s been forty-seven years since the
common law pedigree of evidence law came to an end in the United States.
Ushered in on the wings of a growing positivist movement, the enactment
of the Federal Rules of Evidence purported to quell judicial authority over
evidence law. Instead, committees, conferences, and members of Congress
assumed responsibility for regulating our evidentiary regime, thereby
capturing the evolution of evidence law in a single, transparent code. And as
with other transitions to positive law, perhaps that shift inherently suggested
that the Federal Rules of Evidence are “not a living organism” but simply a
“legal document” that “says what it says and doesn’t say what it doesn’t say.”

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into federal statutes. Statutory incorporation is one of the most common legislative tools employed by Congress and has been used to enact hundreds of federal statutes that affect liberty and property rights across multiple areas of law. Traditional analyses of statutory incorporation argue that it allows Congress to achieve goals of federalism and/or delegation, both of which empower state governments to shape federal policies. But this traditional narrative falls short when held up to the scrutiny of statutory realism.