Show Me the Money: Making Markets in Forbidden Exchange

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The most up-to-date version of this piece can be found in the Duke Law Scholarship

Foreword, Symposium on Forbidden Markets, 72 Law & Contemporary Problems (forthcoming)


As your parents doubtless told you, money can't buy everything. Nearly all cultures reserve certain items, activities, and entitlements as inalienable for profit. It would be incorrect to assume, however, that the individual mental accounting, social norms, and laws regarding the proper scope of commercial activity are universal, preordained, or inflexible. In fact, researchers across disciplines have demonstrated both the malleability and context-dependency of individual mental accounting, and the socially constructed nature of relational boundaries and the accepted means of exchange within them, which vary across time and cultures. Moreover, technological innovation, social or political change, or other developments may create previously unknown circumstances for which there are no existing rules of accepted exchange, causing social strain.

The contributors to this volume consider at length the consequences of making - and restricting - markets in various types of traditionally forbidden or contested exchange, including human blood, organs, eggs, sperm, reproductive services, and labor. What are the problems with, objections to, defenses of, impediments for, developments in, and challenges facing markets in these traditionally forbidden or contested areas of commercial exchange? What is the effect of prohibiting or impeding commercially-motivated transactions in these areas? As we move toward greater market-based exchange in some of these items and activities, what outcomes might we expect? What must those markets look like, who will intermediate them, and how must the legal regime governing the market participants be structured in order to guard against our traditional fears of market-based approaches to exchange in certain areas of life? Here, Rene Almeling, David E. Bernstein, Clark C. Havighurst, Melissa B. Jacoby, Kimberly D. Krawiec, Thomas C. Leonard, Julia D. Mahoney, Hugh V. McLachlan, Elizabeth S. Scott, and J. Kim Swales seek, if not answers, at least insight to these questions.

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organs, surrogacy, egg, sperm, adoption, blood, labor, contested commodity, markets