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Brooklyn Law Review

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This Article is divided into four parts. Part I describes the history and origins of § 1981, its bloodletting by the Supreme Court, and its ultimate restoration and reinvigoration by Congress. Part II first describes the federal appellate opinions addressing the applicability of § 1981 to at-will employment. It then examines the source of law question: whether state law, federal law, or some combination ought to dictate the definition of “contract” in § 1981. It concludes that federal common law, which may draw on well-established state law principles, should control. Part III examines the possible interpretations of “contract” as used in § 1981, looking at both state and federal law, ultimately concluding that at-will employees should be protected from race discrimination on the same terms as other employees. Part IV explores why § 1981 continues to be important, in light of the substantial protections provided by Title VII. This section looks at the doctrinal differences between the two statutes and examines some empirical evidence about § 1981's continuing use. It concludes that § 1981 remains an important tool in the fight for racial equality.

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