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Diversity Readings Related to First-Year Courses

Slavery & Peonage

Tamar R. Birckhead, The New Peonage, 72 Wash. & Lee L. Rev. 1595 (2015), HeinOnline.


Although the Thirteenth Amendment to the Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment of crimes "whereof the party shall have been duly convicted." Two years later, Congress passed The Anti-Peonage Act in an attempt to prohibit the practice of coerced labor for debt. Yet, in the wake of the Civil War, Souther states innovated ways to impose peonage but avoid violations of the law, including criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with minor offenses in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers' debt records were subsequently "lost" or there was an allegation of breach, surety contracts were extended, and workers became further indebted to local planters and merchants. Several decades later in Bailey v. Alabama (1911) and United States v. Reynolds (1914), the Supreme Court invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Anti-Peonage Act. Yet, these decisions ultimately had little impact on the "ever-turning wheel of servitude," and the practice persisted under alternative forms after World War II.

P. 1595

Aziz Z. Huq, Peonage and Contractual Liberty, 101 Colum. L. Rev. 351 (2001), HeinOnline.


Supreme Court jurisprudence concerning the Thirteenth Amendment is sparse. However, in 1911 and 1914, the Court decided two cases concerning peonage laws: law s that had the effect of extracting labor from blacks under threat of criminal sanction. Although the Court in this epoch was typically hostile to claims of racial subordination, in both these cases, black litigants won. This Note argues that these cases are best understood in light of freedom of contract jurisprudence. In particular, freedom of contract theory suggested an understanding of coercion that was transplanted into the Thirteenth Amendment context. Recent case law suggests that this theory persists in the Court's understanding of the Thirteenth Amendment.

P. 351

Diane J. Klein, Paying Eliza: Comity, Contracts, and Critical Race Theory19th Century Choice of Law Doctrine and the Validation of Antebellum Contracts for the Purchase and Sale of Human Beings, 20 Nat'l Black L.J. 1 (2006), HeinOnline.

James Gray Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude", 119 Yale L. J. 1474 (2010), HeinOnline

Benno C. Schmidt Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era: Part 2: The Peonage Cases, 82 Colum. L. Rev. 646 (1982), HeinOnline.

Noah D. Zatz, A New Peonage?: Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond, 39 Seattle U. L. Rev. 927 (2016),  HeinOnline.

Contracts & Families: Surrogacy, Custody, & Other Topics

Sarah Abramowicz, Contractualizing Custody, 83 Fordham L. Rev. 67 (2014), HeinOnline


Many scholars otherwise in favor of the enforcement of family contracts agree that parent-child relationships should continue to prove the exception to any contractualized family law regime. This Article instead questions the continued refusal to enforce contracts concerning parental rights to children's custody. It argues that the refusal to enforce such contracts contributes to a differential treatment of two types of families: those deemed "intact"—typically consisting of two married parents and their offspring—and those deemed non-intact. Intact families are granted a degree of freedom from government intervention, provided there is no evidence that children are in any danger of harm. Non-intact families, by contrast, are subject to the perpetual threat of intervention, even in the absence of harm. The result of this two-tier system is that non-intact families are denied the autonomy and stability that intact families enjoy, to the detriment of parents and children alike.

P. 67

Anita L. Allen, The Black Surrogate Mother, 8 Harv. BlackLetter J. 17 (1991), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 1117 (D. Kelly Weisberg ed., 1996), Classified Stacks (K349.A67 1996). 

From the Introduction:

I will comment on Johnson v. Calvert, a case involving a Black surrogate mother, and on whether gestational surrogacy by Black women simply puts a new face on an old problem: whites owning Black women's wombs.

P. 17 of the journal printing

Anita L. Allen, Surrogacy, Slavery, and the Ownership of Life, 13 Harv. J. L. & Pub. Pol'y 139 (1990), HeinOnline.

Lori B. Andrews, Surrogate Motherhood: The Challenge for Feminists, 16 Law, Med & Health Care 72 (1988), HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives : Sex, Violence, Work, and Reproduction 1092 (D. Kelly Weisberg ed., 1996), Classified Stacks (K349.A67 1996).

Veronique Boillet & Hajime Akiyama, Stateless and International Surrogacy from the International and European Legal Perspectives, 27 Swiss. Rev. of Int'l and European Law 513 (2017), HeinOnline.

Khiara M. Bridges, Windsor, Surrogacy, and Race, 89 Wash. L. Rev. 1125 (2014), HeinOnline


Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Their fear has been that surrogacy arrangements will magnify racial inequalities inasmuch as wealthy white people will look to poor women of color to carry and give birth to the white babies that the couples covet. However, perhaps critical thinkers about race should reconsider their contempt for surrogacy following the Supreme Court's recent decision in United States v. Windsor. In the decision, the Court envisions same-sex couples and the families that they head as valuable threads in the fabric of American society. Surrogacy arrangements are vehicles for same-sex couples to produce the families that Windsor celebrates. This fact may encourage opponents of surrogacy arrangements who have been concerned about the racial implications of the practice to reconsider their opposition. This Article conducts that reconsideration, ultimately concluding that while surrogacy arrangements are beneficial because they enable persons who are unprivileged by virtue of sexual orientation to have children, they may reaffirm extant racial hierarchies and exacerbate the marginalization of persons and families that are already unprivileged by virtue of race and class. However, instead of calling for a ban on surrogacy for these reasons, the Article argues that there are more desirable avenues for destabilizing racial hierarchies and undoing the marginalization of unprivileged persons and families.

P. 1125 

Karen Busby & Delaney Vun, Revisiting The Handmaid's Tale: Feminist Theory Meets Empirical Research on Surrogate Mothers, 26 Can. J. Fam. L. 13 (2010), HeinOnline.

Martha A. Field, Compensated Surrogacy, 89 Wash. L. Rev. 1155 (2014), HeinOnline.

From the Introduction:

It is easy to understand why gay couples want to be able to have genetically related babies; their reasons are the same as other couples', and the desire is widespread. Why would anyone want to interfere with a procedure that helps create loving and happy families and allows many men, single or married, to have a genetically related child? From that perspective, it seems cruel to deny this procedure to gay male couples, to couples in which the wife is infertile, or to single persons, for that matter. 

But surrogacy is not problem-free. It raises serious issues of commodification—of sex, of childbirth, of birthmothers, and of children—by allowing contracts, sales, and money to govern these once noncommercialized areas of life. Such commercialization of childbirth could profoundly affect the kind of society in which we live. Surrogacy also arguably exploits women instead of liberating them. Accordingly the calls to legalize surrogacy further are joined by calls to eliminate surrogacy altogether—or to restrict it as fully as possible.

P. 1155-1156

Martha A. Field, Surrogacy ContractsGestational and Traditional: The Argument for Nonenforcement, 31 Washburn L.J. 1 (1991), HeinOnline

Deborah L. Forman, Abortion Clauses in Surrogacy Contracts: Insights from a Case Study, 49 Fam. L.Q. 29 (2015), HeinOnline.

Joan Mahoney, An Essay on Surrogacy and Feminist Thought, 16 L. Med. & Health Care 81 (1988), HeinOnline.

Yehezkel Margalit, In Defense of Surrogacy Agreements: A Modern Contract Law Perspective, 20 Wm. & Mary J. Women & L. 423 (2014), HeinOnline.

Marina Merjan, Rethinking the Force behind Forced Procreation: The Case for Giving Women Exclusive Decisional Authority over their Cryopreserved Pre-Embryos, 64 DePaul L. Rev. 737 (2015), HeinOnline

Lina Peng, Surrogate Mothers: An Exploration of the Empirical and the Normative, 21 Am. U. J. Gender Soc. Pol'y & L. 555 (2013), HeinOnline.

Richard A. Posner, The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J. Contemp. Health L. & Pol'y 21 (1989) HeinOnline, excerpted in Applications of Feminist Legal Theory to Women's Lives: Sex, Violence, Work, and Reproduction 1105 (D. Kelly Weisberg ed., 1996), Classified Stacks (K349.A67 1996).

Carol Sanger, Developing Markets in Baby-Making: In the Matter of Baby M, 30 Harv. J. L. & Gender 67 (2007), HeinOnline, reprinted in Contracts Stories 127 (Douglas G. Baird ed., 2007), Reference Area (KF801.A2 C66 2007).

David M. Smolin, Surrogacy as the Sale of Children: Applying Lessons Learned from Adoption to the Regulation of the Surrogacy Industry's Global Marketing of Children, 43 Pepp. L. Rev. 265 (2016), HeinOnline.

Patricia J. Williams, On Being the Object of Property, 14 Signs: J. Women in Culture & Soc'y 5 (1988), JSTOR, excerpted in Feminist Legal Theory: Readings in Law and Gender 165 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991), Classified Stacks (K644. Z9 F46 1991).

Personal essay touching on many topics; discusses Baby M case starting at page 13 in the journal article printing.

Deborah Zalesne, The Contractual Family: The Role of the Market in Shaping Family Formations and Rights, 36 Cardozo L. Rev. 1027 (2015), HeinOnline.

Even with federal recognition of marriage equality and the increasing number of states that allow same-sex marriage, marriage is not available or not desirable to everyone. Yet marriage remains a prerequisite to many legal protections. Despite the popularity and prevalence of alternative reproductive technologies (ART) as a means of having a child when natural childbirth is not feasible, biology similarly remains a prerequisit to many legal protections and rights over one's children. Within this paradigm, the ever-growing number of families and couples not fitting the traditional mold are forced to search other areas of the law, such as contract law, for legal protections. By utilizing contract law, modern families should be able to achieve the protections that are currently awarded to "traditional" families by law upon marriage and through biology.

P. 1027


Contracts for Organs

Stephen J. Choi, Mitu Gulati, & Eric A. Posner, Altruism Exchanges and the Kidney Shortage, 77 Law & Contemp. Probs 289 (2014), HeinOnline.

Jamila Jefferson-Jones, The Exchange of Inmate Organs for Liberty: Diminishing the "Yuck Factor" in the Bioethics Repugnance Debate, 16 J. Gender Race & Just. 105 (2013),  HeinOnline.

This Article contemplates whether the National Organ Transplant Act's (NOTA) prohibition against the trading of organs for "valuable consideration" should include an exception that would allow state and federal prison inmates to donate organs in exchange for release or credit toward release. Such a stance surely raises questions regarding whether the State would be coercing the forfeiture of body parts as punishment or in exchange for freedom. Moreover, critics may question the potential effects on the criminal justice system including the permissibility or legality of allowing those facing incarceration to bargain their bodies, and conceivably their long-term health, in exchange for reduced prison terms.

P. 109-110 (citations omitted)

Kimberly D. Krawiec, Wenhao Liu, & Marc L. Melcher, Contract Development in a Matching Market: The Case of Kidney Exchange, 80 Law & Contempt. Probs. 11 (2017), HeinOnline.

Seema Mohapatra, Cutting the Cord to Private Cord Blood Banking: Encouraging Compensation for Public Cord Blood Donations After Flynn v. Holder, 84 U. Colo. L. Rev. 933 (2013), HeinOnline.

This Article argues that the Ninth Circuit's recent ruling in Flynn v. Holder, which allowed compensation for peripheral blood stem cells ("PBSCs")  obtained via apheresis under the National Organ Transplant Act ("NOTA"), also opens up the possibility for compensation for umbilical cord blood ("cord blood"). The holding in Flynn applies to cord blood for several reasons. First, Flynn held that bone marrow was subject to NOTA's prohibition on compensation because bone marrow was explicitly mentioned in the statute. In contrast, no mention of cord blood appears in NOTA or its applicable regulations. Also, the procedure to utilize cord blood was not in practice at the time of NOTA passage and could therefore not have been contemplated by Congress. Additionally, similar to PBSCs, when Congress revisited NOTA and passed later amendments adding fetal organs to the prohibition on payment, it chose not to modify the statute to explicitly include cord blood. Finally, there is a longstanding view that blood should not be covered by NOTA's prohibitions and this should apply equally to cord blood.

P. 933-934

Sarah Panis, The Curious Case of Umbilical Cord Blood: Minors and Donation, 30 Med. & L. 383 (2011), HeinOnline.

Prostitution & Sex

Vednita Carter & Evelina Giobbe, Duet: Prostitution, Racism and Feminist Discourse, 10 Hastings Women's L.J. 37 (1999), HeinOnline.

Peter D. Feaver, Robert Kling & Thomas K. Plofchan Jr., Sex as Contract: Abortion and Expanded Choice, 4 Stan. L. Pol'y Rev. 211 (1992), HeinOnline.

Sibyl Schwarzenbach, Contractarians and Feminists Debate Prostitution, 18 N.Y.U. Rev. L. & Soc. Change 103 (1990), HeinOnline.

Julie M. Spanbauer, Selling Sex: Analyzing the Improper Use Defense to Contract Enforcement Through the Lens of Carroll v. Beardon, 59 Clev. St. L. Rev. 693 (2011), HeinOnline.

Prostitution will always lead into a moral quagmire in democratic societies with capitalist economies; it invades the terrain of intimate sexual relations yet beckons for regulation. A society's response to prostitution goes to the core of how it chooses between the rights of some persons and the protection of others.

P. 693