"From Baby-Selling to Boilerplate: Reflections on the Limits of the Infrastructures of the Market"

Market-inalienability has a central place in developed societies that embrace private law institutions and a traditional understanding of the role of the polity in underwriting, managing, and preserving those institutions. Market-inalienability is a form of non-commodification. Taking up the issue of what things or relationships can be treated as commodities, I first critique a mode of inquiry—a traditional view of law and economics—that finds no problem with commodification of anything whatsoever. Counter to this mode of reasoning, I review two points of view that consider some kinds of commodification wrongful. Finding neither of these anti-commodification theories satisfactory, I review in some detail the example of baby-selling to show the dilemmas of commodification and the complexity of arguments about it. I then turn to the practice of standardized fine-print contracts (“boilerplate”) that routinely waive the background legal rights of those who receive them. This practice of using contract to escape basic rights commodifies some rights that ought to be market-inalienable. Such rights should remain permanently in the care of the polity and should not be treated as objects of trade.