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Rights for Sale

By Tsilly Dagan & Talia Fisher. Full text here.

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?

To answer this question we move the spotlight away from the traditional vertical (individual-government) perspective, through which public entitlements are usually viewed, to the neglected horizontal (individual-individual) perspective. Exploring the normative foundations of alienability, we develop a conceptual framework for constructing alienable public entitlements. This framework challenges existing conventions and offers 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 over-looked potential for their use as public policy instruments. The Article thus offers an exercise in expanding our legal imagination by portraying a world where alienability of public entitlements is a viable option, rather than a rare exception.