Whither Commodification?

Abstract

"While early commodification theory constituted a sharp critique of economics approaches to law, the author finds a certain rapprochement in some of the newer commodification literature. Although many of the newer scholars remain critical, some in effect borrow the economic idea of the second best, to argue that although gift relationships might be first-best solutions, particularly in intimate associations, market approaches could be second-best even in those contexts, where noncommercial approaches are not feasible. (That is to say, love might be best, but getting paid is second-best, e.g., in the case of prostitution, domestic relations or organ transfers.) Other scholars see commodification as a liberating release from nosy neighbors and intrusive regulators, e.g., in the case of reproductive materials. Still others note that markets themselves are social relationships, and market exchange may act as the opening step toward later relationships of friendship and trust, as in the burgeoning affection between paid caregivers and recipients. In all these and other ways, newer commodification theorists, while still frequently very resistant to law-and-economics, have offered a fresh look into the liberatory or socializing characteristics of market transactions."