Abstract

Two things can be said about law in the United States: we litigate more than any culture in history, bringing almost all of our evaluative discourse before the law; and the law translates those conversations into economic analyses and ultimately awards victorious parties with cash. The process of universal commodification, where all things enter the market and abide by its principles of exchange, has gained such momentum in legal theory that the idea that something cannot be properly or respectfully managed by market forces is now written off as moralistic naivete. Everything now has a price under the law, as the particularities of one's flesh, bone, pain, and love are now systematically reduced to an abstract monetary value so that they can enter market transactions. I argue throughout this work that this practice is both cognitively and ethically flawed. ;Although critiques of identity thinking and its practical apotheosis in universal commodification are common within Continental philosophy, these criticisms do not offer progressive alternatives because they stall in Theodor Adorno and Emmanuel Levinas' respective ethical criticisms of legality as such. Seeking to press beyond this impasse, I draw practical conclusions for legal theory from Anglo-American incommensurability theory. From a confluence of the three versions of incommensurability, I sustain an ethical and epistemological critique of both the law and economics movement and other forms of legal commensuration of identity. I conclude by offering a set of practical reforms aimed at recognizing and expressing the truth of incommensurability