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The field of law and economics, of which Judge Posner is the leading theorist, has offered a rich and sophisticated framework for thinking about a wide variety of problems at the interface of law and society. The theory, based on economic principles for understanding behavioral incentives and disincentives, is widely taught in law schools and is influential in scholarship. I have not always agreed with the application of the theory to complex problems of individual and group behavior, yet I constantly have been impressed with the elegance of the writing and analysis.

Judge Posner thinks about surrogacy arrangements in terms of economic liberty: The parties are in relatively free and equal bargaining positions, the arrangements are mutually beneficial, and third parties (notably the children) are not harmed. My article is written from the perspective of civil liberties rather than economic liberties. Do the two perspectives-economic and civil liberties-lead to similar policy results?

Publication Citation

17 J. Contemp. Health L. & Pol'y 429-431 (2001)