Remarks on Introductory Paper

The corrected introductory paper assignment read as follows:

Write an essay of no more than 1000 words that clarifies and assesses the following argument made by Katha Pollitt.

[S]uppose we decided that contract motherhood was ...

some other, not flatly illegal transaction....Then a

deal would be a deal, right? Wrong. As anyone who has

ever shopped for a co-op apartment in New York City

knows, in the world of commerce, legal agreements are

abrogated, modified, renegotiated and bought out all

the time.

Work hard at clarifying her argument and making it precise (as A CRITIQUE OF an argument in defense of surrogate motherhood) before you attempt to defend it or to criticize it. Be sure that your essay has a definite thesis and that your paper presents Pollitt's views as part of your logically organized argument for your thesis. Your essay should also show awareness of possible difficulties or weaknesses in your argument and conclusion and should attempt to address them.

Make sure that your essay is double-spaced with wide margins and that it is correct in technical matters of spelling, punctuation, and so forth. Be sure also to consult the general suggestions on paper writing near the end of the syllabus.

It may help you in writing your papers to think about matters in the following way. There are THREE different arguments at stake here:

(1) The argument in defense of surrogate motherhood suggested by the phrase "a deal is a deal." This is of course not Pollitt's argument. It is an argument that Pollitt is concerned to criticize.

(2) Pollit's argument which attempts to refute the "a deal is a deal" argument.

(3) Your argument defending some thesis concerning the nature and merits of Pollitt's argument.

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Although these comments are meant to be constructive and helpful to you in writing your term papers, I need to list the main deficiences in the papers. The point is obviously not to chastise you or to make you feel bad, but there is no way to point out how to do better without also pointing out where you went wrong. The main difficulties I found in the essays I graded were the following:

1. To varying degrees, many students did not do the assignment. In extreme cases the particular argument quoted above was not even mentioned. In more typical cases, students mentioned the argument and discussed it in one paragraph, but then went on to completely different arguments concerning surrogate motherhood. Please don't get the impression that paper assignments are meant to be complete straight-jackets. They are meant to be interpreted, and the issues that you want to highlight will depend on you. But in the case of this particular paper topic, saying very little or nothing at all about the specific argument Pollitt makes is not a reasonable interpretation or narrowing of the assigned topic.

2. In many cases the discussion of Pollitt's argument was not rigorous and did not make use of the critical vocabulary defined in lecture. Although there is no necessity to reformulate her argument with numbered premises and conclusions, in an assignment such as this one, such a formal restatement would be a natural thing to do; and at least the analogy in ordinary prose is necessary. In many cases students discussed Pollitt's premises and conclusions without making clear what her premises or conclusions were. Students would say that the argument was valid or invalid, sound or unsound without ever clearly specifying what Pollitt's argument is. Sometimes one does not need to restate an argument carefully, because the author has already done the work for you. But this is not the case here, where Pollitt's remarks are, to put matters charitably, confusing.

3. It is very difficult to deal with an extremely unclear argument such as Pollitt's. There are two extremes to avoid: (1) One can present a formulation that is fairly close to hers and so obviously full of holes that it is almost not worth discussing. (2) One can present a tightly logical argument that bears almost no relationship to what Pollitt writes. In the sample essay presented at the end, I will illustrate one way to make one's way between these extremes. Many people tended toward the first extreme. Remember, even if at the end of the day one winds up criticizing Pollitt (and it is hard to see how not to end up there), one should attempt to be as charitable as possible and to try to extract a significant argument from what appears to be a dreadful muddle.

4. One difficulty stood out from all the others. Very few students stopped to wonder about the precise relationships between whether legal agreements are "abrogated, modified, renegotiated and bought out" and whether legal agreements are binding or enforceable. To adapt an example from a student who did recognize the problems, the fact that a car dealer offers me -- and I accept -- a good deal on a different model from the one he promised to sell me and was unable to get delivery on has nothing to do with whether the original contract is legally enforceable. Unless the rights of others are at stake, virtually all contracts can be renegotiated and modified with mutual consent. The fact that one "buys out" a contract implies that the contract was binding, for why else would one buy it out? The fact that somebody abrogates or breaks a contract no more implies that contracts are not binding than does the fact that people commit murder imply that there are no laws against murder. Pollitt is radically confused, and many of you did not realize how confused she was (perhaps out of a sense of deference or personal diffidence).

Rather than giving any further criticisms, let me offer you an example of what an excellent essay would have looked like.

Sample Essay

How not to Criticize Contract Motherhood

In her essay, "The Strange Case of Baby-M," Katha Pollitt offers a number of criticisms of commercial surrogate motherhood. In commercial surrogate motherhood, women agree in exchange for a fee to be impregnated, to carry the fetus that results to term, and then to surrender their rights to the child. Although Pollitt believes that such arrangements ought to be illegal for the same reasons that paid adoption ("baby-selling") and prostitution are illegal, she also argues that even if they were legal, the terms of such contracts should not be enforceable. Here is what she says:

[S]uppose we decided that contract motherhood was ... some other, not flatly illegal transaction....Then a deal would be a deal, right? Wrong. As anyone who has ever shopped for a co-op apartment in New York City knows, in the world of commerce, legal agreements are abrogated, modified, renegotiated and bought out all the time.

This argument is very hard to understand, and I shall argue that it is either radically confused or simply irrelevant to the question of whether surrogate motherhood contracts ought to be legally binding.

Pollitt is here conceding -- but only for the purposes of argument -- that surrogate motherhood agreements are perfectly legal. She does not believe this, but those who make the "a deal is a deal" argument do believe this, and she wants to show that even if surrogate motherhood arrangements were perfectly legal, even then "a deal would not be a deal." What does she mean by saying "a deal would not be a deal?" and what is the "a deal is a deal" argument she is contesting? Pollitt is arguing against those who maintain that if a competent individual voluntarily signs a contract that does not involve illegal activities, then that individual should be legally required to fulfill the terms of the contract. So when she writes, "Then a deal would be a deal, right? Wrong," presumably she means that even if surrogate motherhood arrangements were legal, their terms still should not be enforced -- women should still not be forced to part with their newborns.

But what is her argument for this conclusion? As a first step to clarifying and assessing it, consider the following reformulation:

1. Surrogate motherhood contracts are legal commercial agreements (premise).

2. Legal commercial agreements are abrogated, modified, renegotiated and bought out all the time.

3. Surrogate motherhood contracts should not be legally binding.

Although Pollitt does not say that surrogate motherhood contracts are specifically commercial agreements, her other premise concerns commercial agreements and would not be relevant unless surrogate motherhood contracts counted as commercial agreements or unless she offered an additional premise to the effect that what applies to commercial agreements applies to other agreements, too. As I already mentioned above, Pollitt offers (1) as a premise not because she believes it is true, but merely as a concession for the purposes of argument.

The reformulation of Pollitt's argument given above is obviously invalid. There are two problems with the logic. First, the premises talk about facts: that surrogate motherhood contracts are legal and that other contracts are bought-out, and so forth, while the conclusion concerns the way the law ought to be. Something is missing, minimally perhaps a premise stating that the way things are with commercial agreements is the way they ought to be. But even if this flaw were repaired, there is a deeper problem. For what does the fact that "legal agreements are abrogated, modified, renegotiated and bought out all the time" have to do with whether agreements are legally binding or enforceable? The fact that contracts are abrogated or broken obviously does not imply that they have no legal force. The fact that laws are sometimes or even frequently broken does not imply that they are not laws. Nor does the fact that a contract is modified (by mutual consent) or renegotiated imply that the contract is not a legally enforceable one. Suppose I signed a rental contract for one year promising to pay $500 a month, and I propose to the landlord that we change the contract so that I pay $450 a month and also take care of maintenance of the building. Our agreement to scrap the original contract and to sign the new one has nothing to do with whether the original contract was binding. If the landlord refuses to accept the new deal, and I unilaterally decided that since I sweep the front steps, I should pay only $450 a month, I would find out in court that the original contract was binding. Nor does the fact that a contract is bought out imply that it wasn't binding. To the contrary, the fact that I need to buy out the contract implies that the contract was binding.

At this point we might conclude that Pollitt is so completely confused that there is little point in attempting to reformulate her argument. But let us give her the benefit of the doubt and attribute the following argument to her:

1. Surrogate motherhood contracts are legal commercial agreements (premise).

2. All legal commercial agreements can be modified (by mutual consent), renegotiated and bought out.

3. Surrogate motherhood contracts can be modified (by mutual consent), renegotiated and bought out.

Two main things have been changed. Premise two is now a claim about what is permissible, rather than a claim about what is in fact done. So it is possible validly to draw a conclusion about what is permissible with respect to surrogate motherhood. Second, the conclusion of this argument is not at all the same as the conclusion to the first formulation. Rather than interpreting her denial of "a deal is a deal" as the claim that surrogate motherhood contracts are not binding, perhaps we should interpret it instead as her insistence that surrogate motherhood contracts should be open to renegotiation

This reformulation is valid, but I do not believe it is sound; because I believe that its second premise is false. Though most contracts are open to renegotiation, it is not true that all contracts are. When contracts affect the rights of third parties, they cannot be renegotiated at will. Take marriage, for example. Even though divorce can be obtained quite easily nowadays in the United States, married individuals cannot simply scrap their marriage agreement; and the terms of their divorce are constrained, among other things, by the rights of children.

So even this argument fails. Whatever the merits of Pollitt's other criticisms of surrogate motherhood arrangements, there is little force in the remarks quoted and analyzed in this essay.