The current legal debate about the regulation of economic exchange between intimates mistakenly assumes that the law does not countenance such exchange to any notable extent. This assumption is so widely held that it unites otherwise disparate anticommodification and pro-market scholars. Both groups agree that the law maintains a strict boundary between economic exchange and intimacy, and disagree only on whether to applaud or criticize that boundary. Both overlook or underemphasize the degree to which the law already permits economic exchange within intimate relationships.
The current debate's focus on whether the law should enforce economic exchanges between intimates misses at least three critical questions: how the law already regulates such exchanges, for what purposes, and with what consequences. One of the primary ways that the law constitutes an intimate relation as intimate - recognizes its dignity and distinguishes it from other relationships - is by regulating how economic resources are exchanged within the relationship. But efforts to denote the sanctity of intimate relationships through the regulation of economic exchange appear to systematically perpetuate and exacerbate distributive inequality for women and the poor. These distributive consequences suggest a need to reexamine and reform how the legal system establishes the specialness of an intimate relationship. This Article begins that project.