The IFLS and the Nathanson Centre are co-hosting what is bound to be a fascinating one-day conference at Osgoode on September 15, on the topic of Law & Markets: Regulating Controversial Exchange. The conference has been organized by Professor Poonam Puri, with the help of this year’s Genest Fellows: Professors Mitu Gulati and Kimberly Krawiec.
The conference will take place on Tuesday September 15th from 10:15am to 3:15pm in the Faculty Common Room (Room 2027) at Osgoode.
Speakers will touch upon issues in constitutional law, criminal law, immigration and refugee law, sexuality and the law, bioethics, and business law.
The keynote will be delivered by Professor Margaret Jane Radin, from 12:15pm to 1:15pm over a complimentary lunch. Professor Radin is a Distinguished Research Scholar at the University of Toronto Faculty of Law, winner of the Scribe Book Award in 2014 for her book Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, and author of over seventy articles, two of which were included in a list of the 100 most cited legal articles of all time. Her book, Contested Commodities, is foundational in the field of controversial exchange.
From the agenda:
Conference Concept: Within market-based economies, parties are generally free to exchange goods and services as they choose. Freedom of contract is the guiding principle, though the exchange may be regulated to protect consumers, promote competition and collect taxes. This symposium will focus on a number of conspicuous exceptions to the principle of freedom of contract.
There are certain goods and services in which governments do not allow trade. Within Canada, human biological material, sexual services, sovereignty, and refugees fall into this category of forbidden exchange. States use an arsenal of tools, from refusal to enforce such contracts to armed intervention, to prevent these markets from flourishing.
The purpose of this symposium is to critically explore the reasons for restricting trade in these commodities and the implications of doing so. The discomfort elicited by use of the word “commodity” in connection with childbearing, sex, and political participation is revealing. These activities are understood to be inherently non-commercial. While love, duty and altruism are permissible motives for participating in these activities, payment typically is not. Children, sex, and political belonging are seen to exist within a realm of non-market values and morals that are incompatible with commodification.
Prohibiting exchange can have harmful unintended consequences. For instance, the use of the blunt instrument of the criminal law to suppress markets in sexual services forces sex workers underground and into unsafe working environments. Similarly, the refusal to consider exchanging control over a separatist region for financial compensation can result in violence, to the detriment of both the region itself and the state to which it belongs. These significant harms call into question the role that morals should play in the decision to restrict a market.
Some goods and services are unavoidably dangerous or coercive and ought to be prohibited. Yet in other instances, the moral and policy concerns that lead states to suppress a market may be better addressed by regulating exchange rather than forbidding it. Market-based regulatory mechanisms, like pricing, taxes, and mandatory disclosure, can reduce harms and internalize negative market externalities. In such cases, law has a vital role to play in structuring markets. This symposium aims to critically analyze the concerns surrounding controversial markets and strengths and limitations of market allocation and regulation as an alternative for addressing them. Evolving regulatory methods and recent developments in reproductive technologies, prostitution laws, and international relations make a reconsideration of the state’s response to controversial markets timely. Due to the nature and variety of the subject matter, we expect and welcome a wide range of perspectives. The aim of the conference is to stimulate lively and respectful discussion of a number of pressing contemporary issues to which the best approach remains an open question.
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