on Surrogacy

COHEN - BOOKPROOFS 11/20/03 – 9:28 PM

689

NOTE

THE PRICE OF EVERYTHING, THE VALUE OF NOTHING: REFRAMING THE COMMODIFICATION DEBATE

Under current law, sperm, art, pollution rights, and life insurance can be sold; votes, draft cards, and children cannot. Articulating a principled line between what can and cannot permissibly be sold is the goal of the commodification debate. This debate, however, is marred by imprecision. Opponents often talk past one another because they use the term “commodification” loosely; allies do not recognize their af-finities or their divergences. This Note attempts to add some precision to the dialogue by mapping out the conceptual space of the commodi-fication debate and deriving (and tentatively evaluating) the entail-ments of different anticommodificationist positions when understood in their proper terms. In particular, this Note suggests that articulat-ing the various attitudes that an anticommodificationist takes toward the notions of “sale,” “barter,” and “gift” can help in evaluating the arguments she is really putting forth.

This Note begins by dividing anticommodification arguments into two main categories: coercion arguments and corruption arguments. While this Note briefly discusses various formulations of the coercion argument, it focuses on fleshing out the corruption argument. The corruption argument has two forms, “Conventionalist” and “Essential-ist”: the former suggests that determining which exchanges are im-proper is relative to a particular society at a particular time, while the latter disputes this proposition. This Note develops the Essentialist position and argues that the position is incomplete if it merely exam-ines the nature of the goods at issue without also considering the na-ture of the transaction: part of what makes an exchange improper is the transaction’s expression of value equilibrium — that the things be-ing exchanged are of equivalent value. This Note offers a “formula from the nature of the transaction” and shows that it is a necessary but not sufficient condition in defining blocked exchanges. The Note con-cludes by redefining an objectionable commodifying exchange as a transaction that expresses value equilibrium (nature of the transaction) between two goods belonging to different spheres of valuation (nature of the goods).

Anticommodification

Objection from Corruption Objection from Coercion

Voluntariness Formulation

AccessFormulation

Conventionalist Essentialist

Formula from theNature of the Goods

Formula from the Nature of the Transaction


690 HARVARD LAW REVIEW [Vol. 117:689

I. COERCION

Michael Sandel divides anticommodification arguments into two broad classes: coercion and corruption arguments.1 Each grouping has a different philosophical starting point: the former stems from the no-tions of autonomy, consent, and inequality in background conditions, the latter from the moral worth of the object at stake.2 Commodifica-tionists sometimes confuse the two classes, rebutting a corruption ar-gument with a solution to the coercion problem.

The coercion argument has two distinct formulations, both of which address many of the same transactions; the difference is the em-phasis each formulation places on the type of harm caused by the transaction. The “voluntariness” formulation asks whether consent to the transaction was truly voluntary, given society’s background distri-bution of resources. Its roots lie in the Kantian idea that humans can-not realize their true nature as free and rational beings if they are un-duly influenced by the “coercive” effects of money.3 It is the worry that only destitute women consent to commercial surrogacy because the $10,000 reward represents an offer they cannot (autonomously) re-fuse.4 It is the concern that only the poor would sell their organs.5 This formulation views the loss of certain objects as “bad” and thus regards any agreement to sell such objects as suspect. It is an argu-ment for policing the procedure of the bargain (weeding out agree-ments made in the presence of wealth or power disparities), although it suggests that the substantive equality or inequality between the traded objects is an indicator of how free the consent was.6

The “access” formulation, by contrast, views the traded object as a “good” (in the sense of a “desirable thing”) and the exchange of that ob-ject as beneficial; it therefore focuses on unequal access to the good, given an unfair background distribution of goods. The worry is that only some will be able to afford the good if it is commodified, “that

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See Michael Sandel, What Money Can’t Buy: The Moral Limits of Markets, in 21 THE

TANNER LECTURES ON HUMAN VALUES 89, 94–96 (Grethe B. Peterson ed., 2000). 2 See id. 3 See IMMANUEL KANT, GROUNDING FOR THE METAPHYSICS OF MORALS 434 (James W. Ellington trans., 1981) (1785) (describing human beings as free, rational, and autonomous only to the extent they make choices free from the burden of inclination). 4 See, e.g., Margaret Jane Radin, What, If Anything, Is Wrong with Baby Selling?, Address at the McGeorge School of Law (Mar. 4, 1994), in 26 PAC. L.J. 135, 138–39 (1995). 5 See, e.g., ANDREW KIMBRELL, THE HUMAN BODY SHOP 30 (1993) (noting “the unique potential of organ selling for exploitation of the economically disenfranchised (who might sell an organ to pay off a mortgage or to feed their children)”). 6 A parallel analysis surrounds unconscionability doctrine in contract law. A contract may be unconscionable on substantive grounds (because of disparity in the value of what each side offers) or nonsubstantive grounds (because of disparity in the bargaining power of each side). See gener-ally Alan Schwarz, A Reexamination of Nonsubstantive Unconscionability, 63 VA. L. REV. 1053 (1977).


2003] COMMODIFICATION DEBATE 691

surrogacy will be used for the benefit of the rich at the expense of the poor.”7 Take as an example an advertisement run in an Ivy League student newspaper offering $50,000 plus medical expenses to egg do-nors who are at least 5’10” and have SAT scores of at least 1400.8 While women of all socioeconomic strata suffer from infertility, only the wealthy can afford “premium” eggs. A historical example of the same problem is the practice of “commutation” during the Civil War: a man whose draft number was called could pay three hundred dollars (the equivalent of one year’s wages for a laborer) instead of serving.9 The sale of organs on the open market poses a similar problem today.10

The coercion objection, in either form, can often be eliminated through fair background distribution of the good or a relatively low price ceiling on the good.11 In response to the “access” problem, a price cap would lower the price into the buying-power range of all consumers; in response to the “voluntariness” problem, a price cap would make the sale less attractive to those who would otherwise be induced to agree to an unfair exchange.12

II. CORRUPTION

A second type of objection to commodification is that an exchange “corrupts,” “taints,” or “denigrates” the things being exchanged — for instance, the argument that prostitution devalues women’s bodies by

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 7 In re Baby M, 537 A.2d 1227, 1249 (N.J. 1988). Notice how the second part of the court’s claim, “at the expense of the poor,” shades into the voluntariness formulation. 8 Cf. Sandel, supra note 1, at 102 (discussing sperm donation advertisements that run periodi-cally in The Harvard Crimson). 9 See JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 601 (1988); Sandel, supra note 1, at 110. 10 See Richard A. Epstein, Organ Transplants: Is Relying on Altruism Costing Lives?, AM. ENTERPRISE, Nov.–Dec. 1993, at 50, 57. 11 See Sandel, supra note 1, at 95. In practice, price caps may not always be viable solutions because, to use organ selling as an example, price caps will lower the price for those organs that get sold but might also reduce the overall number of organs sold. A more practical solution might be something like a government subsidy for buyers in the organ market. Either solution high-lights that the problem is an artifact of the wealth distribution in a society and therefore not truly inherent in the transaction. 12 Disentangling the two formulations is useful because, in a particular case, they may not be equally plausible and may require different policy solutions. Take Epstein’s discussion of organ donation. See Epstein, supra note 10, at 56–57. Epstein acknowledges the voluntariness problem — that the poor will become the primary donors of organs — and suggests two responses: First, the higher incidence of disease and alcohol and drug use among the poor make them an unlikely source of “quality” organs. Id. at 56. Second, it is paternalistic to equate poverty with decision-making incapacity; and besides, if such incapacity is the real concern, one should focus on regula-tion to increase information and to combat impulsive decisionmaking. Id. at 56–57. In response to the access formulation, Epstein notes that the problem of access to organs is a subset of the general problem of access to medical care and thus can be addressed by the same solutions, such as charitable contributions, tax incentives, and government grants. Id. at 57.



attaching a price tag to their sexuality.13 Cass Sunstein offers a good starting formulation of the corruption argument: an exchange is cor-rupting when “the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.”14 More specifically, one might suggest that there are various “spheres” (sometimes called “modes”) of valuation, and an exchange is corrupting when it ignores the differ-ences between these spheres of valuation and forces us to value all goods in the same way.15 For example, exchanging children for money corrupts the value of children because money and children belong in different spheres of valuation.

Implicit in this formulation (but often not stated or defended) are the assumptions that there are not merely different, but rather higher

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 13 The usual form of the argument is “intrinsic”; for example, the statement “prostitution de-values women’s sexuality” is a proposition about an inherent incompatibility between an object and a mode of valuation. A variant of this argument is what might be called the “consequential-ist” corruption argument, a good example of which is Radin’s objection to baby selling — an ar-gument that is premised on a concern about what children will think if they find out that they were “bought”:

If a baby is the object of a market exchange, there may be an effect on that child’s self conception when he or she grows up. You know your parents paid money for you, maybe enough to have bought a BMW, but not enough to have bought a house. . . . [K]ids talk to each other. . . . John, down the street, his parents bought him for as much as a BMW, so my son could say, Am I worth a BMW? How much would you pay for me? It’s possible, in other words, that this way of thinking about children could spread, for example, the way some people think that advertising has spread commodity ideas about sexuality or even about the ways we think about politics. . . . The question to ask is: How bad is this risk? If the risk is not very bad, then we could buy and sell babies all the time, and we could still have a non-market conception at the same time with the market conception and neither one would drive each other out.

Radin, supra note 4, at 144–45. Notice the contingent nature of this critique: children may find out how much their parents paid for them, this knowledge may spread in society, which may un-dermine the nonmarket conception. Or it may not. See ELIZABETH ANDERSON, VALUE IN

ETHICS AND ECONOMICS 172 (1993) (distinguishing consequentialist from intrinsic arguments against commercial surrogacy and dismissing the former as “anecdotal” or “speculative”). If what is wrong with baby selling is some state of the world that results as a consequence of the market, then consequentialist solutions are also possible: a flat price cap, or some form of confidential seal-ing of the records. Like the coercion objection, the consequentialist corruption objection operates only given certain states of the world. When the anticommodificationist objection takes its intrin-sic form, policy solutions are inapposite because whatever one does to mitigate the bad conse-quences of the exchange, even if the exchange is made in secret or is not widespread, the exchange still denigrates the essence of the good. For this reason, intrinsic corruption arguments are more compelling because they obtain in all states of the world and cannot be answered by a policy fix. 14 Cass R. Sunstein, Incommensurability and Kinds of Valuation: Some Applications in Law, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 234, 238 (Ruth Chang ed., 1997) (defining “incommensurability”). 15 See, e.g., KIMBRELL, supra note 5, at 35 (“If I buy a Nobel Prize, I corrupt the meaning of the Nobel Prize. . . . If I buy and sell children, I corrupt the meaning of parenthood. And if I sell myself, I corrupt the meaning of what it is to be human.” (quoting Sacred or for Sale?, HARPER’S, Oct. 1990, at 47, 50 (statement of William May))).



and lower, modes of valuation, and that corruption obtains only when something with a “higher” mode of valuation is exchanged for — and thus treated as if equal to — something with a “lower” mode of valua-tion.16 Corruption arguments are more controversial than coercion ar-guments because they require inquiry into the “appropriateness” of an exchange. Such an “appropriateness” inquiry presents a fork in the road, and each path is fraught with difficulties. The first option is to determine “appropriateness” based on prevailing societal norms (of a particular group, at a particular time) — Conventionalism. The sec-ond option is to determine “appropriateness” by inquiring into the “es-sence” of the good at issue — Essentialism, the position that there is something objective and timeless in the good that requires a particular mode of valuation, and to the extent our or other societies have failed to recognize it, they have just been “wrong.”

A. Conventionalism

Michael Walzer’s approach to commodification is paradigmatic of the Conventionalist approach: “[G]oods have different meanings in dif-ferent societies. The same ‘thing’ is valued for different reasons, or it is valued here and disvalued there.”17 Basing the morality of an ex-change on social scientific observation of the norms governing human conduct in different societies is attractive because it requires little metaphysical inquiry. This path, however, poses a number of prob-lems. First, what should be done about commodifying exchanges that reach across societies? In India, for example, the neem tree, a plant with valuable medicinal applications, has long enjoyed almost mystical

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 16 See, e.g., ANDERSON, supra note 13, at 144 (“I call the mode of valuation appropriate to pure commodities ‘use.’ Use is a lower, impersonal, and exclusive mode of valuation. It is con-trasted with higher modes of valuation, such as respect. To merely use something is to subordi-nate it to one’s own ends, without regard for its intrinsic value.”). Interestingly, anticommodifica-tionists do not focus on the reverse problem — treating something with a higher-than-it-deserves mode of valuation. Consider a person who loves her Volkswagen, washes it everyday, and treats it like her baby. She refuses to sell it at any price; perhaps she even chooses not to have real chil-dren because doing so would reduce the time she could spend with her car. Ordinarily, one does not think of this example as a commodification problem, though it seems the person has attached a mode of valuation to a car that is inappropriate because it is too high. Granted, there is no ex-change (although there is a refusal to exchange), but if the corruption objection hinges on doing violence to the way we think goods ought to be valued, it is hard to see why this example is not a problem. Maybe the reason why this problem is not so visible (except in fatuous hypotheticals) is that in every commodifying exchange, both problems are always occurring. Trading money for surrogacy can be seen as devaluing the act of childbirth or overvaluing money, but it is the former and not the latter that seems troubling. 17 MICHAEL WALZER, SPHERES OF JUSTICE 7 (1983); see also id. at 319 (“We never know exactly where to put the fences [between spheres]; they have no natural location. The goods they distinguish are artifacts; as they were made, so they can be remade. Boundaries, then, are vul-nerable to shifts in social meaning, and we have no choice but to live with the continual probes and incursions through which these shifts are worked out.”).



status. Recently, however, W. R. Grace isolated azadirachtin, the tree’s most potent extract, and received several process patents from the U.S. Patent and Trademark Office (PTO).18 If India refuses to commodify its folkways and therefore does not allow the patenting of neem in In-dia, will it make a difference if the PTO in the United States allows it to be patented by pharmaceutical manufacturers? Similarly, in the United States organ sales are illegal, while in Egypt a lucrative legal organ trade persists.19 What should be done when Americans fly to Egypt to buy organs? A similar problem might exist between genera-tions within a single society.

Second, even if these problems were resolved,20 the moral relevance of Conventionalism poses a deeper problem. Where do these conven-tions come from, and what is the relevant definition of community? Elizabeth Anderson points out:

This view encounters familiar difficulties: shared understandings, if they exist at all, are often riddled with contradictions and confusions, are estab-lished in relations of domination that silence the perspectives of some members of society, and fail to meet the pragmatic demands, such as the preservation of social order, that people ask of them.21

Finally, this line of reasoning reduces anticommodification argu-ments to the realm of preference and, given the malleability of societal preferences (via advertising, tax incentives, and other means), places us on very shaky ground. Leon Kass makes this point when contrasting Conventionalist and Essentialist oppositions to organ sale:

Some even argue that these repugnances are based mainly on strangeness and unfamiliarity: the strange repels because it is unfamiliar. On this view, our squeamishness about dismemberment of corpses is akin to our horror at eating brains or mice. Time and exposure will cure us of these revulsions, especially when there are — as with organ transplantation — such enormous benefits to be won.

These views are, I believe, mistaken. To be sure, as an empirical matter, we can probably get used to many things that once repelled us — organ swapping among them. As Raskolnikov put it, and he should know,

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 18 JEREMY RIFKIN, THE BIOTECH CENTURY 50–51 (1998). 19 See Chris Hedges, Egypt’s Desperate Trade: Body Parts for Sale, N.Y. TIMES, Sept. 22, 1991, at A1. 20 For instance, the inquiry could be limited to a particular place at a particular time. An ex-ample is the narrowness of the Baby M holding, which did not purport to decide the morality of surrogacy contracts but rather decided whether commercial surrogacy contracts were contrary to public policy in New Jersey (place) — until the legislature acted to reverse the court’s decision or until another case forced the court to revisit its decision (time). See In re Baby M, 537 A.2d 1227, 1234–35 (N.J. 1988). Of course, one can argue that although New Jersey is one legal community, it consists of multiple communities, such as Orthodox Jews and the Amish, that might be relevant from the moral, if not legal, perspective. One can make the inquiry even more microcosmic by suggesting that each family is its own community with its own conventions. 21 ANDERSON, supra note 13, at 143.



“Man gets used to everything — the beast.” But I am certain that the repugnances that protect the dignity and integrity of the body are not based solely on strangeness. And they are certainly not irrational. On the contrary, they may just be — like the human body they seek to protect — the very embodiment of reason.22

Thus, the Conventionalist approach risks moral relativism and be-comes especially unworkable when the problem spans multiple com-munities.23

B. Essentialism

The difficulties with Conventionalism point one toward Essential-ism. On this view, one looks to the essence or nature of a good to de-termine how to value it, as well as which exchanges accord with that mode of valuation. Kass’s approach to organs is paradigmatic:

What then is the fitting or suitable or seemly or decent or proper way to think about and treat the human body, living and dead? . . . [W]hat is permissible to do to and with the body is partly determined by what we take the human body to be and how it is related to our own being.24

This approach seems attractive because of its absolutism and timeless-ness, but it is beset by its own difficulties. Chief among them is the fact that there is controversy over and no clear resolution to arguments about what constitutes the essence of a thing.

Before exploring these difficulties, however, one ought to distin-guish between two possible formulations of the Essentialist position. There is an inherent ambiguity in Sunstein’s formulation of the cor-ruption objection: “the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.”25 Either the two goods being ex-changed have different “appropriate” modes of valuation, and it is this disconnect between the modes that “does violence to our considered judgments” (call this “the formula from the nature of the goods”); or it

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 22 Leon R. Kass, Organs for Sale? Propriety, Property, and the Price of Progress, PUB. INT., Spring 1992, at 65, 72–73. 23 Herodotus expressed similar concerns about an attempt to ground respect for the body in terms of convention:

[E]ach group regards its own [customs] as being by far the best. . . . . . . During [King] Darius’ reign, he invited some Greeks who were present to a con-ference, and asked them how much money it would take for them to be prepared to eat the corpses of their fathers; they replied that they would not do that for any amount of money. Next, Darius summoned some members of the Indian tribe known as Callatiae, who eat their parents, and asked them in the presence of the Greeks . . . how much money it would take for them to be willing to cremate their fathers’ corpses; they cried out in horror and told him not to say such appalling things. . . . [C]ustom is king of all.

HERODOTUS, THE HISTORIES bk. III, ch. 38, at 185–86 (Robin Waterfield trans., 1998). 24 Kass, supra note 22, at 70. 25 See Sunstein, supra note 14, at 238 (emphasis added).



is the act of exchange itself that “does violence to our considered judg-ments” (call this “the formula from the nature of the transaction”). This distinction might seem like splitting hairs, but each formula cap-tures a different facet of what is wrong with commodification. The anticommodification literature has focused almost exclusively on the first formula, but this Note argues that the account is fundamentally unsound if it does not address the second formula.

1. The Formula from the Nature of the Goods. — This formula is captured by the slogan, “it is like comparing apples and Tuesdays.” On this view, commodification is a form of “value denigration” because it treats items that belong in higher spheres of valuation as if they were in the same sphere of valuation as money. Methodologically, this section’s goal is to determine which account best fits our considered judgments; it seeks the conception that best analytically distinguishes intuitively acceptable exchanges from intuitively unacceptable ex-changes.

Although anticommodification debates normally center on ex-changes for money, value denigration occurs whenever a higher-sphere good is exchanged for a lower-sphere good. This point may seem ob-vious, but since most objectionable exchanges involve money, it is of-ten missed. To divide all goods into two spheres, one of money goods and one of non-money goods — to focus only on blocking sales and not barters — is to fetishize money. Money is merely a more convenient way of accomplishing barter in the absence of a double coincidence of wants;26 there is no reason to think that trading your child for a Volk-swagen is any less problematic than trading the child for money. The anticommodificationist thus has no principled reason to block sales and not barters.

Recognizing that there are three possibly objectionable ways to transfer goods — sale, barter, and gift27 — makes the anticommodifi-cationist’s task more difficult. Shifting attention from sale to barter also reframes the inquiry: even if one concedes that good X (your child, your vote) is denigrated when treated as equivalent to money, the questions remain whether there are other goods that you can exchange X for that will not denigrate it, and how many types of such goods there are. Otherwise put, if the problem is the exchange of things that have radically different spheres of valuation, then the philosophical

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 26 See WALZER, supra note 17, at 104 (“Money is both the measure of equivalence and the means of exchange; these are the proper functions of money and (ideally) its only functions.”). 27 To be analytically rigorous, there is also a fourth category — “taking” — the most obvious instantiations of which are conquest and eminent domain. A taking, however, may be objection-able even when the goods are valued in the same mode of valuation because of the involuntary aspect of the exchange.



battleground will be in defining how wide the various spheres are and the extent to which they overlap.

The widths of these spheres can tentatively be defined in at least five different ways, each of which appears in the literature. First, there are no spheres, or rather, everything falls within a single sphere, and therefore all exchanges are permissible. Second, there are two spheres — one of “use” goods, which have a purely instrumental pur-pose and no intrinsic value, and one of “non-use” goods.28 For exam-ple, selling one’s vote is prohibited because a vote is a non-use good while money is a use good, but exchanging one’s child for another’s vote is permissible because both are non-use goods. Third, there is a tripartite division between market goods, civic goods, and sacred goods.29 Exchanging one’s child for another’s vote is prohibited be-cause the former is a sacred good and the latter is a civic good,30 but exchanging one’s vote for another’s performance of military service or assumption of jury duty is permissible31 because both are civic goods. Fourth, every good of the same “type,” as that term is used narrowly in ordinary language, has its own sphere (for example, trading one cat for another cat is an exchange of two goods within the same type, whereas trading a cat for a vehicle is not). Exchanging one’s vote for another’s assumption of one’s obligation of military service or jury duty is pro-hibited, but exchanging one’s vote for another’s vote is permissible.32 Fifth, every individual good has its own unique sphere of valuation, and therefore exchanging one’s vote is never permissible.

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 28 See ANDERSON, supra note 13, at 144; MARK SAGOFF, THE ECONOMY OF THE EARTH

90 (1988) (“The ‘normative position,’ then, argues that certain environmental resources ought to be treated not as means to ends (e.g., consumer satisfaction, efficient allocation) but as ends in themselves. They are essential, in other words, to the process by which we create our values, not to the process by which we satisfy them.”). 29 Sandel is the main proponent of this view. See Sandel, supra note 1, at 94, 112. 30 There could also be a mismatch between the quantities of goods exchanged, accompanied by the intuition that someone is getting “cheated.” Any discussion of quantity mismatch, however, presumes that the two goods are of commensurable modes of valuation — an assumption that this attempt at sphere differentiation denies. This Note, however, does not entertain the strong form of the incommensurability thesis — that it is not possible to choose rationally between or compare certain goods — but rather adopts the weaker anticommodificationist thesis that such compari-sons are possible but do violence to the way we think goods should be properly valued. That said, if the quantity mismatch in the example is distracting, one can consider instead the exchange of a pint of blood for a vote, if that example seems to match quantities more fairly. 31 Cf. STARSHIP TROOPERS (Columbia Tristar 1997) (depicting a dystopian future in which only those who serve in the military can vote). 32 One could, of course, be more specific and distinguish between exchanging one’s vote in the presidential election for another’s vote in the same election and exchanging a vote in the presiden-tial election for a gubernatorial, congressional, or referendum vote. Although there may be good consequentialist reasons for distinguishing these cases, they seem the same with respect to value denigration arguments.



To be an anticommodificationist is to reject the first proposal for sphere differentiation (or nondifferentiation). That possibility aside, which of the four remaining widths of (or divisions into) spheres of valuation is the correct one? How does one even go about answering that question? If Essentialism seems mysterious and “intuitionist” to begin with, it seems even more so when pressed in this manner. As Richard Epstein asks:

Just how many separate domains are there? If we say that intimate per-sonal relationships occupy one sphere and business relationships occupy another, what happens when there are close friendships with many people or lots of complicated business transactions? Is it possible to make choices between friend and friend or child and child? If these choices are incom-mensurate, then how can we prevent the ultimate fragmentation and dis-integration of any and all comparisons between alternatives? The world will become disconnected in ways that . . . do violence to ordinary percep-tions of how people think and relate to each other.33

One might think that the problem is not so bad as all that and sug-gest that the second proposal, the simple binary division into use and non-use goods, is sufficient. Kant might be seen as proposing a form of this division — a division between the sphere of “humanity” and a sphere encompassing all other things. In Kant’s view, the nature of humans as free and rational beings is such that to treat them simply as means (use goods) rather than ends in themselves (non-use goods) is to do violence to the way human beings ought to be valued.34 Putting aside controversy over whether Kant got the nature of a human being right, such an approach only explains why human beings, their body parts, and possibly their sperm or eggs, should not be sold. Such an approach does not explain why the environment should not be com-modified, and it certainly does not explain why votes should not be commodified. Of course, a neo-Kantian could propose a wider defini-tion of non-use goods that included things like votes and the environ-ment, but in so doing he would risk lapsing into the arbitrary “intu-itionism” that Epstein critiques. Unlike Kant, the neo-Kantian would have difficulty articulating a good answer to the question: what is it about the essence of these non-use goods that is alike, and that differ-entiates them from use goods?

The fifth possibility, that all individual goods have unique spheres of valuation, seems untenable; it suggests that all exchanges are value-denigrating, yet no one thinks exchanging a pencil for a pen should be blocked. Still, one might consider the weaker thesis that some goods have unique spheres of valuation, and they just happen to be the kinds

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 33 Richard A. Epstein, Are Values Incommensurable, or Is Utility the Ruler of the World?, 3 UTAH L. REV. 683, 693 (1995). 34 See KANT, supra note 3, at 429.



of goods with which the commodification debate is concerned, such as eggs, babies, and votes.

There is something very attractive about this view. It explains the intuition that two families “trading” children is value-denigrating — something that none of the other sphere-division proposals can do. Perhaps this intuition stems from the belief that the way “I value my child” is different from the way “you value your child,” or, in other words, that the sphere of valuation for “my child” really is unique. Margaret Jane Radin seems to assume this implicitly when she writes: “Part of what makes something a person is that it has attributes as part of its self-constitution. It has personality, has certain unique things that make it/her/him a unique individual.”35

However, there are at least three problems with such an account. First, although it may mesh with our considered judgments about children (or people more generally), for almost all other goods it does not. If vote selling is wrong because it undermines the civic republi-can essence of voting, why can you not exchange your vote for my vote? In an episode of the popular television drama The West Wing, an employee of the Democratic president mistakenly casts her ballot for the Republican challenger but eventually finds a Republican will-ing to cast his ballot for the Democratic candidate to make right the mistake.36 Why should this exchange be blocked? Does it make sense to say that the proper way of valuing one’s own vote is different from the way of valuing another’s vote? Even within the category of “sa-cred” goods, it is not clear that the intuition about unique value holds. Although one ordinarily thinks of the way one values one’s own child as different from the way one values another’s child, or children gen-erally, the same is not true for blood, which is also viewed as a sacred good. In principle, it does not seem value-denigrating to create a blood bank in which one can “deposit” one’s own healthy, type B+ blood at one time and then “withdraw” an equal amount of someone else’s healthy, type B+ blood at a later date. It is not clear that, from the standpoint of the commodification debate, such a regime is worse than a blood bank in which donors can withdraw only their own blood.37 Perhaps this problem just means that the essence of each good is different — frustrating attempts at a unified field theory — so each good’s sphere of valuation has a distinct width. This conclusion, however, will strike many as a deeply unsatisfying philosophical ter-

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 35 Radin, supra note 4, at 143. 36 The West Wing: Election Night (NBC television broadcast, Nov. 6, 2002). 37 One possible response is to accept the point but suggest blood is not a sacred good. Anthro-pologically, however, blood is often treated as sacred (for example, the Jehovah’s Witness prohibi-tion of blood transfusions). Moreover, it is not clear that the difference between the two types of banking would work any better for other sacred goods.



minal point and a spurious basis for major public policy decisions about which exchanges to block.

Second, even for the goods for which the strongest argument for uniqueness can be made, accepting the unique width of spheres of value will commit the anticommodificationist to some potentially irra-tional positions. This is a standard charge that Utilitarians levy at Kantians: if something has a special intrinsic value, then it is irrational to prefer less of it to more. To use the famous “trolley hypothetical”: You are the conductor of a trolley whose brakes have failed, and the trolley is now hurtling at breakneck speed toward a group of ten wheelchair-bound travelers whose wheels have gotten stuck in the track. There is no time to warn or move them, but the one thing within your power to do is to switch the trolley onto a second track where a single person stands whose death will be the inevitable result of flipping the switch.38 Loosely speaking, this choice is an offer of ex-change, one life for ten. But if each life has a unique value, the anti-commodificationist is committed to rejecting this exchange and, per-haps even more strongly, to suggesting that it ought to be blocked and that if you flip the switch, you ought to be punished. While this sug-gestion may strike some strong Kantians as exactly right, many will find the choice of doing nothing to be irrational, and perhaps even self-ish. A full discussion of whether it is possible to defend the decision to do nothing is beyond the scope of this Note, but suffice it to say that if accepting the argument for unique spheres of value requires accepting this result, many anticommodificationists will jump ship.39

Third, this account threatens to devolve into anti-alienation (a rela-tionship with an object such that ownership can never be given up) as opposed to an argument against value denigration. Again, to some this argument might sound exactly right; scholars like David Bollier seem to make this equation implicitly.40 However, upon reflection, this

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 38 For a full discussion of this type of hypothetical, see Judith Jarvis Thomson, The Trolley Problem, 94 YALE L.J. 1395 (1985). 39 Of course, it is open to the anticommodificationist to suggest that the “deck is stacked” by the hypothetical because either choice is value-denigrating (at least one bystander will be killed either way), but this argument seems a cop-out, since such tragic choices must be made all the time in more mundane contexts. 40 Bollier writes:

Marketizing the Inalienable. This is the most intrusive sort of enclosure: when commercial interests seize a common resource which embodies deeply held values and so is “not for sale.” This is the objection that many people have to the patenting of the human genetic code or to selling captive audiences of schoolchildren to national adver-tisers. Allowing the market to exploit these “resources” is seen as degrading to our sense of personhood, our sense of community, and shared civic and public values.

DAVID BOLLIER, SILENT THEFT 50 (2002). Elsewhere, however, Bollier suggests it is not the concept of ownership as such but private ownership that is the threat. See id. at 83 (discussing Stonehenge as a “national heirloom” owned by everyone).



conclusion may not comport with our considered judgments. If a new-born (which the above discussion suggests is the type of good most likely to have unique value) is the type of thing that cannot be alien-ated, shouldn’t adoption be banned just as baby selling is? It is pre-cisely this dilemma that motivated the New Jersey Supreme Court to distinguish adoption from baby selling in Baby M.41

More formally, the problem can be posed as such: if some goods have unique value such that trading them for anything — even goods of the same type — constitutes value denigration, then the Essentialist anticommodificationist making a corruption argument ought to oppose not only sales and barters, but also gifts.42 This problem is most ap-parent for the anticommodificationist who wants to allow organ dona-tion but not organ sale. As Kass suggests, “it is difficult to understand why someone who sees absolutely no difficulty at all with transplanta-tion and donation should have such trouble sanctioning sale.”43 In some ways a gift seems to be an even worse instance of value denigra-tion because it does not merely trade one valued thing for another (even if valued in a lower sphere of valuation) but rather trades a val-ued thing for nothing.

One might object to this point by claiming that a gift is not a “something for nothing” exchange, but rather an exchange in which the giver receives something of value in return. Epstein, for example, observes that “[w]e may not be able to determine or quantify the de-terminants that encourage the gift, but the mere fact that it is made means that there is compensation, direct or indirect, not only to the person who received it, but also to the person who made it.”44 Using his concept of interdependent utility functions, Epstein argues that “[i]t is only because the utility of the donor is increased by the enhanced wealth of the donee that the transaction makes sense from the point of view of the participants.”45 Less cynically, Walzer observes that “[t]he act of giving is good in itself; it builds a sense of solidarity and com-munal competence.”46 Similarly, Bollier suggests that in some of the “gift economies” he identifies, donors get more than just moral satisfac-

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 41 See In re Baby M, 537 A.2d 1227, 1248–49 (N.J. 1988). But the court was able to do so only on consequentialist — not intrinsic — grounds. See supra note 13. 42 This problem does not affect the anticommodificationist making coercion arguments, since the voluntary nature of gifts is thought to defeat any argument regarding lack of autonomy. See Epstein, supra note 33, at 689. Thus, in the coercion argument, gifts are readily distinguishable from sales and barters. 43 Kass, supra note 22, at 77. 44 Epstein, supra note 33, at 689. 45 Id. at 695. 46 WALZER, supra note 17, at 94.



tion; in the gift economy of scientific knowledge, for example, the do-nors get “the esteem and approval of their peers.”47

Even this understanding of gifts, however, does not solve the prob-lem. The good that the donor gets back (call it affection or charity, if one wants to avoid the “crassness” of Epstein) is still incommensurable to the good that is given. On a wider conception of sphere width, this may not be a problem; for example, charity and affection from a friend may be conceived as within the same mode of valuation with which we value our children, and any remaining problem with adoption can be reconceived as a “raw deal” problem (same mode of valuation, but one side simply gave up too much). On the conception of unique sphere width, however, this reconception does not work. If an ex-change of children is value-denigrating because the way “you value your child” belongs to a different sphere than the way “I value my child,” then a “gift” of a child must be impermissible a fortiori because surely charity and affection as goods seem even further removed from the way one values one’s child.48 Again, one might appeal to this the-sis of variability in the essence of different goods to say there are some goods that ought not to be exchanged for affection, friendship, or charitable feelings. Voting, for example, is one such good,49 which is to say that one’s vote is inalienable.

The anticommodificationist, however, still wants to maintain the alienability of children, to allow for adoption and altruistic surrogacy. But the anticommodificationist cannot have it both ways; either chil-dren have unique value and cannot be given up for adoption without their value being denigrated, or they do not — in which case exchang-ing one child for another ought to be acceptable.50 Of course, the anti-

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 47 BOLLIER, supra note 40, at 35 (quoting Warren O. Hagstron, Gift Giving as an Organizing Principle in Science, in SCIENCE IN CONTEXT: READINGS IN THE SOCIOLOGY OF SCIENCE

21, 30 (Barry Barnes & David Edge eds., 1982)) (internal quotation mark omitted). 48 In a sense, the level of difference between the way we value two goods may be a measure of the degree of corruption, which may, in turn, measure how bad an exchange is. An exchange of a sacred object for money might be worse than an exchange of a sacred object for an object valued in civic republicanism terms, which in turn might be worse than an exchange between types of sacred objects, and so on. One might conceptualize a “core” of the unique object itself (my child), surrounded by successively more distant concentric circles of objects of the same type (another child), objects of the same category (sacred goods), and then other non-use objects (such as votes), with money in the outermost circle. One could then measure the degree of denigration as the dis-tance from the inner circle to the circle of the object for which it is exchanged. 49 Cf. WALZER, supra note 17, at 128 (“It isn’t generous or public-spirited, however, to try to pass on a political office — or any position of power over others — to one’s friends and relatives. Nor can professional standing or public honor be transferred at will, for such things lie within no one’s gift.”). 50 Perhaps adoption can be viewed not as a gift at all, but rather as the social reality of child abandonment. Perhaps in a perfect world, no parent would put a child up for adoption; the mo-tivation for adoption is always poverty or social circumstance, not altruism. Even if this rather bleak view of adoption is correct, it distinguishes only adoption from baby selling and not other



commodificationist can always choose the other horn of the dilemma: to say that societal intuitions are just wrong and that, on reflection, adoption should be outlawed. But if his view commits him to this pol-icy, many will part ways with him at this point.

This Note has now dismissed three of the five approaches to sphere differentiation: that there is only one sphere, that there is a single divi-sion between use and non-use goods, and that all goods have a unique sphere. That still leaves two intermediary approaches to sphere divi-sion: the tripartite division into sacred, civic, and monetary goods, and the division into various “types” of goods. Both of these approaches run into problems, as suggested above.

As to the tripartite division, our intuition regarding what kinds of exchanges are appropriate is not homogenous within each category. Within the “sacred” category, a my-blood-for-your-blood exchange is acceptable, whereas a my-child-for-your-child exchange is value-denigrating;51 within the “civic” category, giving away one’s vote is unacceptable, but it might not seem value-denigrating of military ser-vice for one’s brother or friend to volunteer, out of love, to go to war in one’s place. If sphere differentiation by “type” is right, then the my-child-for-your-child exchange ought not to be blocked — a conclusion that seems intuitively wrong.

While more might be said for and against each of these alterna-tives, it appears that even the most nuanced anticommodificationist account based solely on the nature of the goods will end in aporia; ei-ther it will become intuitionist (unable to account for what it is about the essence of particular goods that makes their exchange objection-able) or implausible (unable to account for our considered judgments about exchanges). This failure arises because identifying what is deni-grating about a commodifying exchange requires an analysis not just of the goods involved and their respective spheres of valuation, but also of the transaction itself.

2. The Formula from the Nature of the Transaction. — This for-mula does not focus on the nature of the goods, but rather on the na-ture of the transaction. It considers the transaction’s expression of value equilibrium or value remainder as a possible determinant of its acceptability.

To begin with, there might be something the transaction does to the goods that distinguishes impermissible from permissible exchanges. A first cut on this view might contrast what one might call “perfect” and “imperfect” commodification, or perhaps more aptly, “perfect” and

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– examples, such as organ sale versus organ donation, for which there are no similar social refram-ings of the issue. 51 See supra p. 699.



“imperfect” value denigration. An exchange is perfectly value-denigrating when the act of trading the good for money entirely de-stroys the good’s value. Friendship is a good example. It is the nature of friendship that it cannot be bought. Thus, the nature of the good is such that it cannot be commodified — an exchange for money entirely destroys its value. Call this “perfect” value denigration, in analogy to the structure for perfect and imperfect duties under the Formula of Universal Law in Kant’s Grounding: just as refraining from making a lying promise is a perfect duty because willing the “maxim of [the] ac-tion” to become a universal law is logically contradictory,52 so com-modifying friendship is perfect value denigration because it too is logi-cally contradictory.

By contrast, “imperfect” commodification devalues a good but does not entirely destroy its value. Commercial surrogacy is a good exam-ple: even if it denigrates the practice of child bearing, it does not do so to the degree that it makes the practice unintelligible. This example is analogous to the type of contradiction that obtains when one tries to universalize the maxim behind the “failure to help others” case in Kant’s Grounding.53

Therefore, an anticommodificationist could decide that all perfectly commodifying exchanges should be blocked, but not the imperfectly commodifying ones. There are exchanges other than those for friend-ship that might be thought to be perfectly value-denigrating. Radin, for instance, observes:

Part of what makes something a person is that it has attributes as part of its self-constitution. It has personality, has certain unique things that make it/her/him a unique individual. One can think of these attributes as being permanently inside the self; that is non-detachable. In other words, if I tried to sell my personality, there would be no “me” left to do the sell-ing. . . . On the other hand . . . [w]e have things that are ours, but they are objects, or at least we can detach them from ourselves without destroying the notion of personhood, and when we do that we can trade them in markets . . . .54

On Radin’s account, then, surrogacy is a perfectly value-denigrating transaction. One might object that although commercial surrogacy certainly might be value-denigrating, it does not carry with it the

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 52 KANT, supra note 3, at 422. The analogy is not exact because Kant conceives of perfect du-ties as ones that are inconsistent a priori, and it is not clear the same can be said about commodi-fying friendship. Can one imagine a world in which exchanges of money trigger feelings of friendship? If so, then friendship and commodification are only inconsistent a posteriori. That said, it is not clear this distinction matters; Kant’s theory of perfect and imperfect duties is offered more as an analogy than a deep philosophical twin. 53 See id. at 421–26. 54 Radin, supra note 4, at 143. Perhaps Radin’s view is better characterized as a problem with alienability, not with corruption.



strong sense of logical contradiction that “commercial friendship” does, and thus it is only imperfectly denigrating. Whichever way one re-solves that controversy, this account will still support only a weak an-ticommodificationist position, in that not every exchange the anticom-modificationist intuitively wants to block has this perfect value-denigrating character.55

The perfect-imperfect line does not mesh well with our considered judgments, but it reveals the missing piece from the discussion above — a focus on the nature of the transaction. Focusing on the nature of the goods persistently leads to a problem: if the gifting of X (blood, a child) is permissible, how can we object to its sale? The solution is to identify something about sale and barter, but not gift, that is denigrat-ing. An initial answer might be that in sale and barter there is a quid pro quo, while with gifts the donor gives something and receives noth-ing. However, this Note questioned this assumption earlier, suggesting that the donor might receive something in giving — yet the problem remains that the something does not seem commensurable with the good being given.56

This puzzle leads to the expressive nature of the transaction. A sale or barter is about trade, substitution, or to put it more formally, a relation in which equivalent or nearly equivalent goods have been ex-changed. As Bollier writes, a sale or barter seeks to “establish a ‘moral equilibrium’ between parties to the transaction. Payment for a good or service establishes an ‘even-steven’ symmetry.”57 The transaction is thought to have no “value remainder” because the two sides receive things of equal value. With gifts, however, there is no assumption of value equilibrium. In fact, the whole purpose of a gift (whether viewed as an exchange of “something for nothing” or “something for something incommensurable”) is that the values of the things being ex-changed are not deemed equal.58 Walzer discusses the Kula exchange

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 55 It is difficult to see how sales of emissions, organs, and military service would produce this perfect form of value denigration; it is easier to see how votes might. 56 See supra pp. 701–02. 57 BOLLIER, supra note 40, at 40. 58 As Anderson explains:

The norms of gift exchange differ from the norms of market exchange in several re-spects. . . . [T]he exchange of gifts among friends usually incorporates an informal un-derstanding of reciprocity only in the long term. To be anxious to “settle accounts” of small sums, as when one person insists upon splitting a restaurant tab exactly in half, calculating sums to the penny, is to reject the logic of friendship. The delay in reciproca-tion expresses an intrinsic valuation of the recipient: gifts are given for the friend’s sake, not merely for the sake of obtaining some good for oneself in return. . . . The debts friends owe to one another are not of a kind that they can be repaid so as to leave noth-ing between them.

ANDERSON, supra note 13, at 151–52 (emphasis added) (citations omitted). But see supra p. 701 (suggesting that, on Epstein’s rational actor model, the assumption is that the donor and donee exchange things of equal value).



described by Malinowski among the Trobriander islanders in exactly this way. The islanders exchange ritual necklaces and bracelets only for each other and nothing else:

But [the Kula] isn’t a “trade” in our sense of the word: necklaces and bracelets “can never be exchanged from hand to hand, with the equiva-lence between the two objects discussed, bargained about and computed.” The exchange has the form of a series of gifts. . . . [There is also] what Malinowski calls “trade, pure and simple” and what the islanders call gimwali. Here the trade is in commodities, not ritual objects; and it is en-tirely legitimate to bargain, to haggle, to seek private advantage. The gimwali is free; it can be carried on between any two strangers; and the striking of a bargain terminates the transaction. The islanders draw a sharp line between this sort of trade and the exchange of gifts. When criticizing bad conduct in the Kula, they will say “it was done like a gim-wali.”59

Thus, what is wrong with a commodifying exchange is that in reality it is a Kula but expressively “it was done like a gimwali.”

That gifts do not express value equilibrium between goods of dif-ferent modes is something they share in common with “compensatory” damages in a suit for wrongful death and life insurance — the thing used to compensate is never presumed to substitute for the thing that has been given up. In a “practical reason” sense, one would never choose the $5 million cash settlement to experience the wrongful death of one’s child; there is a lot of value remainder. Yet in a baby-selling market, the very fact that the seller did choose to surrender her child for $5 million expresses a relation of value equilibrium — that the $5 million was a substitute for her child. Thus, the difference between value-denigrating and non-denigrating exchanges depends on whether the transaction expresses a relationship of value equilibrium.

This idea also has Kantian roots. Kant observes in his Grounding: “In the Kingdom of Ends everything has a price or a dignity. What-ever has a price can be replaced by something else as its equivalent; on the other hand, whatever is above all price, and therefore admits of no equivalent, has a dignity.”60 Along the same lines is Anderson’s obser-vation that

as mere use-values, commodities are indifferently substitutable for any other bundle of goods with the same market price. If environmental goods are mere commodities, they should be comprehensively subject to tradeoffs against other commodities. This norm contrasts with the norms for valuing higher goods, which prohibits some tradeoffs between higher and lower goods.61

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 59 WALZER, supra note 17, at 123–24. 60 KANT, supra note 3, at 434 (emphasis added). 61 ANDERSON, supra note 13, at 205.



If this analysis correctly demarcates the line between gifts on the one hand and barters and sales on the other, it may also distinguish be-tween blocked and permissible exchanges within those categories. A barter between goods of different spheres of valuation may be accept-able if it does not purport to express a relationship of value equilib-rium or “even-stevenness.” Even exchanges of higher-valued goods for money might be saved if they express value remainder. This analysis explains why the payment of a finder’s fee for an adoption contract, or compensation for the medical costs and lost wages of a mother in a surrogacy contract is different from buying children or commercial surrogacy.62 The former transactions recognize that the money is not a substitute for the child — that some value remains uncompensated — whereas the latter do not.

Thus, within the formula from the nature of the transaction there is an echo of the Conventionalist-Essentialist split: the expressive ele-ment of a transaction may depend on the conventions of the society. Life insurance provides a good example of how the expressive nature of the transaction may determine its moral acceptability, and how this expressive nature can change over time. Viviana Zelizer observes that, before 1900, most life insurance companies denied the economic side of the transaction, evidenced by statements such as:

The term life insurance is a misnomer . . . it implies a value put on human life. But that is not our province. We recognize that life is intrinsically sacred and immeasurable, that it stands socially, morally and religiously above all possible evaluation.63

Zelizer points out, however, that the strong assertion of value non-equilibrium, or value remainder, is absent from twentieth-century ap-proaches to insurance.64 While it is debatable whether the current in-surance industry does in fact express value equilibrium in its transac-tions — when one buys insurance there is no suggestion that the price reflects an amount of money for which one would trade one’s life — it is clear that the shift in attitude Zelizer identifies makes the twentieth-century approach more of a concern to the anticommodificationist,

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 62 See Kass, supra note 22, at 83 (“Eager to encourage more donation, but loath to condone or to speak about buying and selling organs, some have called for the practice of ‘rewarded gifting’ — in which the donor is rewarded for his generosity, not paid for his organ. Some will smile at what looks like double-talk or hypocrisy, but even if it is hypocrisy, it is thereby a tribute paid to virtue. Rewards are given for good deeds, whereas fees are charged for services, and prices are paid merely for goods.”). 63 VIVIANA A. ROTMAN ZELIZER, MORALS AND MARKETS: THE DEVELOPMENT OF

LIFE INSURANCE IN THE UNITED STATES 62 (1979) (omission in original) (quoting DAVID N. HOLWIG, THE SCIENCE OF LIFE ASSURANCE 4 (1886)). 64 See id.



even though the underlying transaction is the same.65 If one relied solely on the formula from the nature of the goods, it would not be clear how the same transaction could be noncommodifying in the pre-1900 version, but commodifying in the twentieth-century version.

The flexibility of the formula from the nature of the transaction, a strength in accounting for instances like the one described above, may also seem to be a weakness. If a change in description suddenly makes a blocked exchange permissible, doesn’t this account suggest that value denigration is merely a question of language — say the magic words and a commodifying exchange becomes noncommodifying? While there is some truth in this objection, it confuses description with expression. Some transactions (buying a child is a paradigmatic ex-ample) can be described in a myriad of ways, some more palatable than others, but they always express (in the sense of the expressive na-ture of the transaction) value equilibrium, the substitutability of the things on either side of the exchange. It is this feature, not the descrip-tion, that makes the transaction problematic. This observation is true even on a more Conventionalist approach to the nature of the transac-tion: a transaction must be described in accordance with the prevailing social norms of a given time period, not in any which way a given in-dividual might want.

The formula from the nature of the transaction also helps explain an otherwise puzzling concession by arch-anticommodificationist Elizabeth Anderson: that the sale of sexual services might still be le-gitimate from the anticommodificationist point of view. A “worthwhile practice of professional sex therapy aimed at helping people liberate themselves from perverse, patriarchal forms of sexuality,”66 for exam-ple, might be permissible whereas prostitution would not be, because

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 65 In some ways, the construction of dichotomous expressive categories of “value equilibrium” and “value remainder” is artificial; in reality there is probably a sliding scale, with pure gifts on one side expressing maximal value remainder, and pure sale on the other expressing maximal value equilibrium. 66 ANDERSON, supra note 13, at 156. Similarly, paying a fee for a life-saving operation does not denigrate the value of life. Viatical contracts — transactions in which terminally ill patients sell their future benefits from life insurance policies to third parties in exchange for lump sum cash payments — are a little more difficult because they come closer to a valuation of one’s life, but ultimately they do not express substitutability because the viatical contract never purports to be a trade between $50,000 and one’s life; although the insured AIDS patient enters into the transaction in return for $50,000, it is not as if the patient would give up two years of life for $50,000. See Michael Sandel, You Bet Your Life, NEW REPUBLIC, Sept. 21, 1998, at 9, 10 (dis-cussing viatical contracts). This example is, for instance, in marked contrast to the practice of substitution in the Civil War — although then, $300 was exchanged for a chance of perishing rather than certain death. For an analogue to the viatical contract that does express value equi-librium, imagine that someone pays another to “take the rap” for a murder he committed and to go to the gallows in his place. This exchange would be commodifying in a way the viatical con-tract is not.



such sex therapy would be best conceived of as a quasi-gift — a good for which money could not entirely compensate.

One interesting application of this thesis is to what is called the “boot” in personal income tax language. For example, two people trade parcels of land, but they find that the values of the parcels are not exactly equivalent, so one person throws in $10,000 as “boot.”67 Adding boot to a transaction between goods of different spheres of valuation that did not previously express value equilibrium might “eat up” the value remainder and thus make it value-denigrating. Adding a “gratuity” to the compensation of medical expenses and lost wages for an altruistic surrogate seems to have exactly this “cheapening” ef-fect. Epstein argues for adding boot to increase organ donation:

With live altruistic donations, all the tangible gains go in one direction and all the tangible losses in the other. There is a classic divergence between private loss and social gain that cries out for redress. Compensation paid from the gainer to the loser is the best way to set right that private imbal-ance.68

But Epstein’s proposal would make the exchange value-denigrating because, with boot, the exchange expresses value equilibrium between things belonging to different spheres of valuation.

While this Note has offered the formula from the nature of the transaction in opposition to the formula from the nature of the goods, in practice the formula from the nature of the transaction would yield some anomalous results if it stood alone. For example, it would sug-gest that the government could give the environment to a particular industry but not sell it, or that an individual could give his vote to an-other individual but not sell it. This problem, however, might have more to do with the notion that one cannot give what one does not own — that the problem with the transfer of these two particular goods is not one of value denigration but one of inalienability or nonownership. Much of Bollier’s critique targets the idea of the gov-ernment “appropriating” or “enclosing” these types of goods.69 More importantly, however, the formula from the nature of the transaction presupposes some type of sphere differentiation. The problematic ex-pression of value equilibrium in impermissible exchanges is not one of quantity (that the sale price is too low), but of quality; more precisely, it is the confusion of quantity with quality and the idea that a good with a “higher” mode of valuation and a good with a “lower” one can be traded off in a way that leaves no value remainder. It is not that $5 million is too little to pay for a child, but that money, no matter how much of it, is of a lower quality of value than human life. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 67 See I.R.C. § 1031 (2000). 68 Epstein, supra note 10, at 55. 69 See generally BOLLIER, supra note 40.



Therefore, the formula from the nature of the transaction might be read as a constraint on the formula from the nature of the goods. A blocked exchange is one that expresses value equilibrium (nature of the transaction) between two goods belonging to different spheres of valuation (nature of the goods). The formula from the nature of the goods is necessary because only exchanges of goods from different spheres of valuation (such as babies for money) are potentially imper-missible, but it is not sufficient because exchanges of goods from dif-ferent spheres of valuation are permissible as long as they do not ex-press a relation of value equilibrium (such as giving up a child for adoption in return for feelings of “doing the right thing,” or compensat-ing an altruistic surrogate for her medical expenses).

One might combine the constraint of the formula from the nature of the transaction with any of the four attempts at sphere differentia-tion (or others) in the formula from the nature of the goods to achieve a more convincing anticommodification position. The constraint of the formula from the nature of the transaction makes the account of unique spheres of valuation more plausible: An anticommodificationist can maintain that each child has unique value, yet still insist that chil-dren can be put up for adoption but not sold because the latter ex-presses value equilibrium while the former expresses value remainder. Similarly, organ sale might be impermissible while organ donation is permissible.

CONCLUSION

This Note has attempted to organize the various anticommodifica-tionist approaches, with a particular focus on developing a more nu-anced approach to the Essentialist position. A tentative normative evaluation of the various positions has suffused much of this discus-sion: a preference for positions focused on corruption over those fo-cused on coercion, a preference for Essentialist over Conventionalist approaches, and, within the Essentialist category, a suggestion that a second formulation focusing on the expressive nature of the transac-tion is indispensable in constraining any formulation focused on sphere division and value denigration. While the goal for philosophical pur-poses has been to sever the various positions from one another in terms of their underlying theories, in the process of policy argument the goal shifts to using one argument to buttress the others.70 What matters is to be clear as to which types of anticommodificationist arguments one is making and to understand their assumptions and implications.

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 70 For example, an anticommodificationist who (contrary to the suggestions above) found him-self unable to distinguish blood sale and blood donation on Essentialist corruption grounds could still appeal to coercion arguments in blocking sale but not donation.

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