From Babyselling to Boilerplate: Reflections on the Limits of the Infrastructures of the Market

Abstract

This essay recounts and updates some of my research in property theory and in contract theory. One aim of my research has been to provide pathways for understanding the significance of market-inalienability. In developed societies that feature the institutions of private law, with commitment to a traditional understanding of the role of the polity in underwriting, managing, and preserving those institutions, market-inalienability has a central place. 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 — which finds no problem with commodification of anything whatever. Counter to this mode of reasoning, I review two points of view that consider some kinds of commodification wrongful: commodification as “desperate exchanges” (Michael Walzer) and commodification as “corruption” (Michael Sandel). Finding neither of these anti-commodification theories satisfactory, I review in some detail the example of babyselling — which should more accurately be called purchased adoption — to show the dilemmas of commodification, and the complexity of arguments about it. Juxtaposing to these forms of commodification a variety of commodification that is more specifically thought of as contractual overreaching rather than property overreaching, the focus turns to the practice of firms that deploy 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.