Margaret Jane Radin

Regulation by Contract, Regulation by Machine

Two potentially widespread phenomena, mass standardized contracts and digital rights management systems, could have dramatic impact on how the law of property and contract regulates the distribution of intellectual property. This paper argues these phenomena motivate a more careful consideration of (1) their effect on the knowledge-generation incentives that underlie intellectual property, (2) which aspects of the present property and contract regimes are default, waivable rules and which are inalienable entitlements, and (3) whether legislative approval of regulation by machine is best interpreted as a revision of the law of intellectual property or as an attempt to undermine it.

Boilerplate Today: The Rise of Modularity and the Waning of Consent

Thanks to the vision of Omri Ben-Shahar and the excellence of the scholars contributing to this symposium, students of the law of commercial exchange transactions will now understand how important and interesting, and indeed exciting, boilerplate really is. The various presentations are so rich that my assigned task of commentary cannot approach an adequate summation. Instead of attempting such a task, therefore, I will take up a slightly different one. My commentary will relate some of the ideas presented in the symposium to two themes that I think are significant for the groundwork of contract today: the growing modularity of contracts and the waning of consent as the normative basis of legal enforcement. (The latter is also a major theme of my fellow commentator, Todd Rakoff, whose contributions in this field have been preeminent.) In conjunction with these two themes, I will touch upon the interplay of standardization and customization; the dialectic of rules and standards; the collapse of the distinction between the contract and the product it relates to; the problem of shoring up (or replacing?) the liberal notion of freedom of the will; and the allied issue of the political status of the regime of private ordering.

Choosing Family Law over Contract Law as a Paradigm for Surrogate Motherhood

Among the many new forms of human reproduction,’ none raises more problems of public policy and of law than the practice of what is known, rather inaccurately, as “surrogate motherhood” or “surrogacy.”’ The central policy issue is settling on the paradigm that should govern surrogate motherhood, a model of family relations (adoption) or of contractual relations (sale of a product or service). And the central legal issue is whether any restrictions on personal choice that follow from the policy selected-and especially from a rejection of the contractual model with its implication of free choicearc constitutionally permissible. We conclude that surrogate mother arrangements should be handled from the perspective of adoption. As recent judicial decisions have demonstrated, existing law on parents and children is largely adequate, and the emergence of surrogacy as a social practice does not require major “law reform” efforts. Furthermore, neither these rulings nor legislation proposed in many jurisdictions to ban commercialized surrogacy intrude impermissibly on the range of choices about reproduction protected by the Constitution of the United States. Although we conclude that commercialized surrogacy may be prohibited, we think the weight of any legal sanctions should be concentrated against those who arrange such transactions for profit rather than against the panics (parents and would-be parents) themselves. And we believe that unpaid surrogacy should be permitted.

Response: Persistent Perplexities

This response to the preceding five articles highlights the stubborn persistence of the philosophical perplexities surrounding commodification in the realm of medicine and biotechnology.