Does our legal system permit the economic exploitation of extreme vulnerability? Focusing on predatory housing loans—a thriving business at the dawn of the twenty-first century—this Article argues that the answer in most cases is yes. Under an individualistic neoliberal paradigm, borrowers are held liable for their contracts, even if they were targeted with predatory practices. Further, borrowers’ attempts to resort to antidiscrimination law, and frame their exploitation as “reverse redlining,” have offered no real answer. An important yet undertheorized explanation for this problem is the impact of the Supreme Court’s anti-classification jurisprudence on lower courts. In an anti-classification age, even outside of the constitutional arena, courts are reluctant to accept race-based arguments. As a result, colorblind analysis of predatory lending permits economic exploitation to thrive.
This Article proposes a unique solution to this deadlock: embedding the analysis of individual borrowers in the context of their neighborhood, a move that neither denies nor relies on their race. Drawing on a variety of disciplines, including psychology, sociology, and public health, this Article explains how residing in distressed neighborhoods—the most embattled neighborhoods of our country—creates conditions especially fertile for exploitation. Based on this interdisciplinary analysis, this Article suggests an alternative legal framework which would circumvent the anti-classification problem. The new framework is tailored around the idea of individual dignity, which includes the right to freedom from economic exploitation. To protect such right it is suggested to utilize contract law and particularly the doctrine of unconscionability—which is highly apposite for a contextual analysis of predatory agreements.
More broadly this Article argues that one of the important lessons to be learned from the tragic subprime crisis is how urgent it is to find an appropriate legal response to market exploitation of vulnerable individuals. Notably, the contractual framework suggested in this Article for predatory housing loans is useful for handling other exploitative loans, such as pay-day loans and auto-title loans. Further, the proposed framework is valuable beyond the contexts of lending and distressed neighborhoods, to address other forms of economic exploitation perpetuated by contract. Given persistent weakness in our economy, establishing an anti-exploitation norm in the market seems more important than ever
Law and Economic Exploitation in an Anti-Classification Age,
42 Fla. St. U. L. Rev.