Rights for Sale
Minnesota Law Review, Vol. 96, p. 90, 2011
51 Pages Posted: 4 Oct 2009 Last revised: 30 Oct 2013
Individuals enjoy a host of rights in relation to the government, including voting rights, the right against self-incrimination, the right to public education, pollution quotas, as well as various subsidies and tax attributes. Should individuals be able to sell these public entitlements to others? Markets for voting rights or tax attributes may seem inconceivable. Yet for pollution quotas, trade between polluters who do not fully utilize their quotas and those who wish to utilize the surplus seems natural, and is actually encouraged. Can the differences in treatment be normatively justified?
This Article challenges existing conventions regarding the inalienability of public entitlements. Public entitlements are usually considered from the vertical perspective of individual vis-à-vis government. We move the spotlight to the neglected horizontal (individual-individual) perspective, focusing on the question of their alienability. By showing that there is nothing inherently inalienable about public entitlements, we offer new insights with regard to both alienability and public entitlements: Expanding the horizons of the alienability discourse beyond the traditional contexts of taboo markets (such as organs, babies, and sexuality) to the unexplored terrain of public entitlements dismantles the simplistic binary treatment of alienability, opening up nuanced variations; Viewing public entitlements through the prism of alienability reveals an overlooked potential for their use as public policy instruments.
Keywords: Alienability, Markets, Tax, Charitable Contributions
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