"Taboo Markets" and Family Law. Or,

Sean Williams vs. Louis Hensler and Adeline Allen.

Can we sell (parental rights with respect to) children? Don't we in effect do so even when we say we're not?  Do we really mean that the best interests of the child are paramount in the law? Or is it the best interests of children? And why do folks in driverless car simulations choose to run over an adult instead of a child? (And a cat instead of a dog?)

For these and more serious questions arising from the field of experimental jurisprudence listen to this episode of Kim Krawiec's Taboo Trades podcast. Along with Gregg Strauss, Kim interviews Sean Williams about his his new working paper, “Sacred Children and Taboo Tradeoffs."

There are many good questions, insightful observations, and even some suggestions in the podcast. Critical readings disclose a variety of antinomies that are worthy of analysis. For example, why does the best interests of the child predominate in family law but count for nothing in criminal law when it comes to sentencing? And why is the best interests test often satisfied by little more than ungrounded judicial handwaving?

Still, Williams and his interviewers give short shrift to the political and legal significance of moral norms, the notion of tradition as a source of authority, and teleology in general. Pretty much a personal-sovereignty approach with a dose of empirically demonstrable welfarism. Trapped in the immanent, one might say. 

But perhaps there are good immanent reasons for some of the biases of family law as typically understood, reasons the author and interviewers fail to take into account. It is to point to those considerations that I refer my readers to my previous posts where I comment on the work of former colleague Louis Hensler (The Legal Significance of the Natural Affection of Charlie Gard’s Parents here) and former student Adeline Allen (A Market in Gametes here).

I won't bore folks by summarizing my summaries of what Hensler and Allen have written. But I will suggest that, as useful as experimental jurisprudence can be, there's more to the picture of family relationships and family law than it discloses.