What do surrogacy, civil rights, and climate change have in common? Ask Patricia Williams, and the answer is contract law.
Williams is a lawyer who has authored several books on critical race theory and gender theory, and has a long-running monthly column in the political and cultural magazine The Nation. She’s working on two more books about our unique global, political moment (and hosting a conversation at Northeastern about it Thursday). She has appeared in The New York Times, The New Yorker, The Washington Post, and other news outlets. She was named a MacArthur “genius” fellow in 2000.
Announcing her appointment, James Hackney, dean of the School of Law, hailed Williams as “a leading figure in the legal academy, and one of the preeminent social theorists of our time.”
But Williams, who joined Northeastern University this fall as University Distinguished Professor of Law and Humanities, is, she says, “at the core, a contracts teacher.”
Contract law concerns itself with, well, contracts—that is, agreements between private parties over certain mutual obligations that are enforceable by law.
“It’s a legal scheme that assumes two parties can negotiate over a thing,” Williams says, a legal framework that was developed during the height of the Industrial Revolution and “designed to enhance the efficient, quick transfer of goods and services.”
It works really well if, for example, you’re a handyman setting the terms for a job you’ll do, or a retailer selling “ball-bearings or blue jeans,” Williams says.
But what about when you’re trying to decide who the parents of a surrogate baby are, as in the 1988 case In re Baby M? Or whether a person can be bought and sold, as in chattel slavery laws? The boundaries of the contracts aren’t as clear in these cases, yet the framework of contract law was used to decide them.
And Williams is concerned that in the United States, this “contract state of mind,” is being applied far too broadly.
“Contract law is a beautifully designed body of law, but it worries me when we take things out of our constitutional protections—our civil rights, our ability to have a public space and public accommodations in that space—and apply to them contract law,” she says.
It was partially that 1988 surrogacy case that piqued Williams’ interest in the way the courts apply contract law, she says.
In that case, William Stern and his wife, Elizabeth, entered into a surrogacy contract with Mary Beth Whitehead. Stern would inseminate Whitehead, who would have the baby, then relinquish her parental right to Elizabeth. But after Whitehead delivered the child, who was identified in the case only by her pseudonym, “Baby M,” Whitehead changed her mind. She and her husband kidnapped the child. The Sterns sued to be recognized as the child’s legal parents, and the New Jersey courts decided that the surrogacy contract was invalid, recognizing Whitehead as the child’s legal mother. Then they sent the case to family court to determine who should have legal custody of the child.
“When you put that child as the object of a contract, then it’s simply a bargain between two private individuals, and the court can only say that it goes to one individual or the other,” Williams says. “The court doesn’t have to take into account the best interest of the baby,” the way it would if it had been a case based on adoption law, she says.
At the same time she was writing about the “Baby M case,” another event in Williams’s life brought to light the confines of contract law.
“It was around that time that my sister found a contract of sale for my great-, great-grandmother from Kentucky to a man who wanted to breed her,” Williams says. “The use of the term ‘chattel slavery,’ where you are literally breeding humans like cattle, suddenly became so palpably, vividly, startlingly real. And here I am teaching contracts.”
Williams sees other areas of society in which the framework of contract law is being squeezed around issues that perhaps it shouldn’t be. She’s concerned that a changing climate could mean scarcer resources and “if it’s all about contract then we just buy up as much Campbell’s soup as we can and go to our bunkers and protect ourselves.”
She’s concerned that if we don’t recognize “the moral principle that we all ought to have a right to—and that’s a constitutional claim—a public space” then our civil rights guarantees will slowly be chipped away. Unless you consider it under constitutional law, a baker who doesn’t want to serve LGBTQ people, for example, might not have to.
“Contract, when it’s applied to full human engagement, may not be the best legal, or political, or governance vehicle through which to resolve some issues,” she says.