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Choice is Good, Maybe.

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This is a telling quip at Newmark’s Door [2]:

A saying almost as good as Newmark’s First Law is Margolis’s Observation: "A Liberal is someone who believes a woman should be able to choose to kill her fetus, but if she carries the fetus to term, should not be able to choose where the child goes to school."

It reminds me of an incident in contracts class during my (and Karol’s) first year at law school.  It was Fall 1989 at the University of Virginia. The professor was Robert Scott – a truly gifted scholar and teacher (and, later, Dean). Our class had well over 100 students.

At the end of one class, Prof. Scott passed out the text of the then-recent Baby M decision [3] – the New Jersey case in which surrogate-motherhood contracts were declared to be against public policy. Because the case was famous, we all knew about it even before reading the decision.

Before dismissing us for the day, Prof. Scott asked for a show of hands of the students who believe that the court was wrong – that is, who believe that women should be permitted to contract for money to be surrogate mothers. Only two or three of my fellow students joined me in raising their hands. (One was my good friend Adam Pritchard, who was fresh from working as an assistant to Richard Posner.)

At the start of the next class meeting, Prof. Scott began by talking about abortion. "How many of you believe that a woman should have the right to choose to abort?" About 90% of the students raised their hands. "And, again, how many of you believe that a woman should have the right to choose to be a surrogate mother?" Three or four hands rose.

Scott – who, by the way, is no conservative – brilliantly exposed the contradiction. (This incident eventually led me to compose this article [4] for the Cato Journal.)

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