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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 affinities or their divergences. This Note attempts to add some precision
to the dialogue by mapping out the conceptual space of the commodification debate and deriving (and tentatively evaluating) the entailments of different anticommodificationist positions when understood
in their proper terms. In particular, this Note suggests that articulating 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 Essentialist: the former suggests that determining which exchanges are improper 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 examines the nature of the goods at issue without also considering the nature of the transaction: part of what makes an exchange improper is
the transactions expression of value equilibrium that the things being 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 concludes 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 Coercion

Voluntariness
Formulation

Access
Formulation

Objection from Corruption

Conventionalist

Essentialist

Formula from the

Nature of the Goods

Formula from the

Nature of the Transaction

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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 notions of autonomy, consent, and inequality in background conditions,
the latter from the moral worth of the object at stake.2 Commodificationists sometimes confuse the two classes, rebutting a corruption argument 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 emphasis 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 societys background distribution of resources. Its roots lie in the Kantian idea that humans cannot realize their true nature as free and rational beings if they are unduly 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) refuse.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 argument for policing the procedure of the bargain (weeding out agreements 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 object 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 Cant Buy: The Moral Limits of Markets, in 21 THE
TANNER LECTURES ON HUMAN VALUES 89, 9496 (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, 13839 (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 generally Alan Schwarz, A Reexamination of Nonsubstantive Unconscionability, 63 VA. L. REV. 1053
(1977).

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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 donors who are at least 510 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 years 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 womens bodies by

7 In re Baby M, 537 A.2d 1227, 1249 (N.J. 1988). Notice how the second part of the courts
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 periodically 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 highlights 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 Epsteins discussion of organ
donation. See Epstein, supra note 10, at 5657. 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 decisionmaking incapacity; and besides, if such incapacity is the real concern, one should focus on regulation to increase information and to combat impulsive decisionmaking. Id. at 5657. 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.

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attaching a price tag to their sexuality.13 Cass Sunstein offers a good

starting formulation of the corruption argument: an exchange is corrupting 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 differences 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 devalues womens 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 consequentialist corruption argument, a good example of which is Radins objection to baby selling an argument 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 childs
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? Its 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 14445. 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 undermine 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 sealing 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 intrinsic form, policy solutions are inapposite because whatever one does to mitigate the bad consequences 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?,
HARPERS, Oct. 1990, at 47, 50 (statement of William May))).

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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 valuation.16 Corruption arguments are more controversial than coercion arguments 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 second option is to determine appropriateness by inquiring into the essence 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 Walzers approach to commodification is paradigmatic of
the Conventionalist approach: [G]oods have different meanings in different societies. The same thing is valued for different reasons, or it
is valued here and disvalued there.17 Basing the morality of an exchange 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 problems. 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 contrasted with higher modes of valuation, such as respect. To merely use something is to subordinate it to ones own ends, without regard for its intrinsic value.). Interestingly, anticommodificationists 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 children 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 exchange (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 vulnerable 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.).

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status. Recently, however, W. R. Grace isolated azadirachtin, the trees

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 India, 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 generations within a single society.
Second, even if these problems were resolved,20 the moral relevance
of Conventionalism poses a deeper problem. Where do these conventions 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 established 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 arguments 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
19

JEREMY RIFKIN, THE BIOTECH CENTURY 5051 (1998).

See Chris Hedges, Egypts 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 example 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 courts decision or
until another case forced the court to revisit its decision (time). See In re Baby M, 537 A.2d 1227,
123435 (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.

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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 becomes especially unworkable when the problem spans multiple communities.23
B. Essentialism
The difficulties with Conventionalism point one toward Essentialism. On this view, one looks to the essence or nature of a good to determine how to value it, as well as which exchanges accord with that
mode of valuation. Kasss 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 timelessness, 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 distinguish between two possible formulations of the Essentialist position.
There is an inherent ambiguity in Sunsteins formulation of the corruption 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 exchanged 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, 7273.
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 conference, 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 18586 (Robin Waterfield trans., 1998).
24 Kass, supra note 22, at 70.
25 See Sunstein, supra note 14, at 238 (emphasis added).

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is the act of exchange itself that does violence to our considered judgments (call this the formula from the nature of the transaction).
This distinction might seem like splitting hairs, but each formula captures 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
sections 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 exchanges.
Although anticommodification debates normally center on exchanges for money, value denigration occurs whenever a higher-sphere
good is exchanged for a lower-sphere good. This point may seem obvious, but since most objectionable exchanges involve money, it is often 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 Volkswagen 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 anticommodificationists 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 objectionable even when the goods are valued in the same mode of valuation because of the involuntary
aspect of the exchange.

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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 purpose and no intrinsic value, and one of non-use goods.28 For example, selling ones vote is prohibited because a vote is a non-use good
while money is a use good, but exchanging ones child for anothers
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 ones child for anothers vote is prohibited because the former is a sacred good and the latter is a civic good,30 but
exchanging ones vote for anothers 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 ones vote for anothers
assumption of ones obligation of military service or jury duty is prohibited, but exchanging ones vote for anothers vote is permissible.32
Fifth, every individual good has its own unique sphere of valuation,
and therefore exchanging ones 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 comparisons 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 ones vote in the
presidential election for anothers vote in the same election and exchanging a vote in the presidential 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.

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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 personal 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 incommensurate, then how can we prevent the ultimate fragmentation and disintegration of any and all comparisons between alternatives? The world
will become disconnected in ways that . . . do violence to ordinary perceptions of how people think and relate to each other.33

One might think that the problem is not so bad as all that and suggest 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 Kants 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 commodified, and it certainly does not explain why votes should not be
commodified. Of course, a neo-Kantian could propose a wider definition of non-use goods that included things like votes and the environment, but in so doing he would risk lapsing into the arbitrary intuitionism 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 differentiates them from use goods?
The fifth possibility, that all individual goods have unique spheres
of valuation, seems untenable; it suggests that all exchanges are valuedenigrating, 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.

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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 republican 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 willing 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 ones own vote is different from
the way of valuing anothers vote? Even within the category of sacred goods, it is not clear that the intuition about unique value holds.
Although one ordinarily thinks of the way one values ones own child
as different from the way one values anothers child, or children generally, 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 ones own healthy, type B+
blood at one time and then withdraw an equal amount of someone
elses 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 goods sphere of valuation has a distinct width. This conclusion,
however, will strike many as a deeply unsatisfying philosophical ter-

35
36
37

Radin, supra note 4, at 143.

The West Wing: Election Night (NBC television broadcast, Nov. 6, 2002).
One possible response is to accept the point but suggest blood is not a sacred good. Anthropologically, however, blood is often treated as sacred (for example, the Jehovahs Witness prohibition 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.

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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 irrational 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 exchange, one life for ten. But if each life has a unique value, the anticommodificationist is committed to rejecting this exchange and, perhaps 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 suggestion may strike some strong Kantians as exactly right, many will
find the choice of doing nothing to be irrational, and perhaps even selfish. 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 relationship 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 advertisers. 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).

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conclusion may not comport with our considered judgments. If a newborn (which the above discussion suggests is the type of good most
likely to have unique value) is the type of thing that cannot be alienated, shouldnt adoption be banned just as baby selling is? It is precisely 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 apparent for the anticommodificationist who wants to allow organ donation but not organ sale. As Kass suggests, it is difficult to understand
why someone who sees absolutely no difficulty at all with transplantation and donation should have such trouble sanctioning sale.43 In
some ways a gift seems to be an even worse instance of value denigration because it does not merely trade one valued thing for another
(even if valued in a lower sphere of valuation) but rather trades a valued 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 determinants 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 communal 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, 124849 (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.

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tion; in the gift economy of scientific knowledge, for example, the donors get the esteem and approval of their peers.47
Even this understanding of gifts, however, does not solve the problem. 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 exchange 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 ones child.48 Again, one might appeal to this thesis 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 ones 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 children have unique value and cannot be given up for adoption without
their value being denigrated, or they do not in which case exchanging 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 distance from the inner circle to the circle of the object for which it is exchanged.
49 Cf. WALZER, supra note 17, at 128 (It isnt generous or public-spirited, however, to try to
pass on a political office or any position of power over others to ones friends and relatives.
Nor can professional standing or public honor be transferred at will, for such things lie within no
ones 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 motivation 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

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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 policy, 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 division between use and non-use goods, and that all goods have a unique
sphere. That still leaves two intermediary approaches to sphere division: 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 valuedenigrating;51 within the civic category, giving away ones vote is
unacceptable, but it might not seem value-denigrating of military service for ones brother or friend to volunteer, out of love, to go to war
in ones place. If sphere differentiation by type is right, then the mychild-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 alternatives, it appears that even the most nuanced anticommodificationist
account based solely on the nature of the goods will end in aporia; either it will become intuitionist (unable to account for what it is about
the essence of particular goods that makes their exchange objectionable) or implausible (unable to account for our considered judgments
about exchanges). This failure arises because identifying what is denigrating 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 formula does not focus on the nature of the goods, but rather on the nature of the transaction. It considers the transactions 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 reframings of the issue.
51 See supra p. 699.

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imperfect value denigration.

An exchange is perfectly valuedenigrating when the act of trading the good for money entirely destroys the goods 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 Kants Grounding: just as refraining from making a
lying promise is a perfect duty because willing the maxim of [the] action to become a universal law is logically contradictory,52 so commodifying friendship is perfect value denigration because it too is logically contradictory.
By contrast, imperfect commodification devalues a good but does
not entirely destroy its value. Commercial surrogacy is a good example: 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
Kants 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 friendship 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 selling. . . . 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 Radins 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 duties as ones that are inconsistent a priori, and it is not clear the same can be said about commodifying 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; Kants theory of perfect and imperfect duties is offered
more as an analogy than a deep philosophical twin.
53 See id. at 42126.
54 Radin, supra note 4, at 143. Perhaps Radins view is better characterized as a problem with
alienability, not with corruption.

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strong sense of logical contradiction that commercial friendship does,

and thus it is only imperfectly denigrating. Whichever way one resolves that controversy, this account will still support only a weak anticommodificationist position, in that not every exchange the anticommodificationist intuitively wants to block has this perfect valuedenigrating 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 denigrating. 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 nothing. 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 exchanged. 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 exchanged 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. 70102.
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 respects. . . . [T]he exchange of gifts among friends usually incorporates an informal understanding 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 reciprocation expresses an intrinsic valuation of the recipient: gifts are given for the friends 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 nothing between them.
ANDERSON, supra note 13, at 15152 (emphasis added) (citations omitted). But see supra p. 701
(suggesting that, on Epsteins rational actor model, the assumption is that the donor and donee
exchange things of equal value).

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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] isnt a trade in our sense of the word: necklaces and
bracelets can never be exchanged from hand to hand, with the equivalence 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 entirely 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 gimwali.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 different 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 ones 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. Whatever 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 Andersons observation 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
60
61

WALZER, supra note 17, at 12324.

KANT, supra note 3, at 434 (emphasis added).
ANDERSON, supra note 13, at 205.

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If this analysis correctly demarcates the line between gifts on the

one hand and barters and sales on the other, it may also distinguish between blocked and permissible exchanges within those categories. A
barter between goods of different spheres of valuation may be acceptable if it does not purport to express a relationship of value equilibrium 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 finders 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 element 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 nonequilibrium, or value remainder, is absent from twentieth-century approaches to insurance.64 While it is debatable whether the current insurance industry does in fact express value equilibrium in its transactions when one buys insurance there is no suggestion that the price
reflects an amount of money for which one would trade ones life it
is clear that the shift in attitude Zelizer identifies makes the twentiethcentury 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.

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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 pre1900 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, doesnt 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 example) can be described in a myriad of ways, some more palatable
than others, but they always express (in the sense of the expressive nature of the transaction) value equilibrium, the substitutability of the
things on either side of the exchange. It is this feature, not the description, that makes the transaction problematic. This observation is true
even on a more Conventionalist approach to the nature of the transaction: a transaction must be described in accordance with the prevailing
social norms of a given time period, not in any which way a given individual 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 legitimate 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 example, 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 ones life,
but ultimately they do not express substitutability because the viatical contract never purports to
be a trade between $50,000 and ones 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 (discussing 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 equilibrium, 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 contract is not.

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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 effect. 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 imbalance.68

But Epsteins 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 suggest that the government could give the environment to a particular
industry but not sell it, or that an individual could give his vote to another 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 Bolliers critique targets the idea of the government 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 expression 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
68
69

See I.R.C. 1031 (2000).

Epstein, supra note 10, at 55.
See generally BOLLIER, supra note 40.

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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 impermissible, but it is not sufficient because exchanges of goods from different spheres of valuation are permissible as long as they do not express a relation of value equilibrium (such as giving up a child for
adoption in return for feelings of doing the right thing, or compensating 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 differentiation (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 children can be put up for adoption but not sold because the latter expresses 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 anticommodificationist approaches, with a particular focus on developing a more nuanced approach to the Essentialist position. A tentative normative
evaluation of the various positions has suffused much of this discussion: a preference for positions focused on corruption over those focused 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 transaction is indispensable in constraining any formulation focused on sphere
division and value denigration. While the goal for philosophical purposes 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 himself unable to distinguish blood sale and blood donation on Essentialist corruption grounds could
still appeal to coercion arguments in blocking sale but not donation.