In my last few posts, I’ve been discussing the controversy generated by Gary Becker and Julio Elias’s recent essay advocating for kidney markets, Cash for Kidneys: The Case for a Market for Organs. Because Phil Cook and I are currently circulating a paper on the same topic, this is an issue that’s been on my mind lately.
In my first post I demonstrated that, when properly measured, the gap between kidney need and supply is even larger than typically assumed and there is little reason to expect that trend to abate under current conditions. The prospects are dim for increasing kidney donation rates under the current system: donation levels have been static overall since 2006, and donations from living kidney donors have actually declined from their 2003 peak. In my next post, I showed that most kidneys from suitable deceased donors are already procured -- even a perfect deceased organ consent and allocation system would not yield nearly enough kidneys to cover the amount needed per year to satisfy unmet demand.
Moreover, an increase in the number of living kidney donors would improve health outcomes for those with ESRD and reduce the annual cost per patient, while imposing relatively little donor risk. However, as shown above right (figure 8 from our paper), living kidney donations are currently nearly all directed, usually to family members. Perhaps with sufficient education and public outreach the number of altruistic donors could be increased. But the fact that there were only 182 nondirected donors in 2012, combined with the recent downward trend in living donations – despite current education and outreach efforts – are not encouraging in that regard. It is for all of these reasons that so many observers, including Becker and Elias, conclude that the time is ripe to reconsider financial incentives for kidney donation.
In response to the Becker and Elias essay, Al Roth notes that these arguments for kidney markets have made no headway over the years and questions whether repetition of the basic facts will move the ball forward. As many Loungers know, Roth has written about Repugnance as a Constraint on Markets, and has often argued that a better understanding of the precise nature of the repugnance toward financial incentives is essential to making progress on this issue.
I suspect Al is right that pure “cash for kidneys” arguments are unlikely to have much practical impact at this juncture, as evidenced by the HHS reaction to incentives for bone marrow donations that Michelle Meyer has blogged about. Instead, any successful incentive system would likely need to build on the existing transplant frameworks and methods that already enjoy widespread acceptance.
What I would like to see in the near future are innovations in, for example, contracts and NEAD chains, or incentives to participate in kidney swaps. The former is a topic I have addressed with Kieran Healy and the latter is one I take on in forthcoming work with Mike Rees, that I plan to blog about in more detail in the next few weeks.
Innovations such as these have several advantages. First, given the ambiguity in NOTA’s text and legislative history concerning the meaning of the term “valuable consideration,” these innovations, if properly structured, arguably pass master under NOTA, thus obviating the need for legislative action. Second, although these proposals undoubtedly would move kidney donation further toward “markets” along the gift-markets spectrum, they are a far cry from the “cash for kidneys” envisioned by Becker and Elias – a proposal that (predictably) prompted immediate outrage from the bulk of WSJ commenters.
In short, thoughtful commenters have proposed a rich array of incentive structures that are designed to address objections to organ markets while still incentivizing donation. Some of those proposals are featured in the forthcoming Law & Contemporary problems issue on Organs & Inducements, including a paper by keynote speaker, Al Roth, with Muriel Niederle.
I’m looing forward to blogging in more detail about the volume as the papers are made available. There are some excellent pieces worth reading by authors in law, economics, medicine, and other fields.
In the meantime, you can read the volume’s accompanying primer here.
In my last post, I discussed a new paper, A Primer on Kidney Transplantation: Anatomy of the Shortage, that Phil Cook and I just posted to SSRN. The paper provides a quantitative description of the kidney shortage and future trends, and yields some insights on possible policy solutions (and non-solutions) to the kidney shortage.
We wanted to provide a more fine-grained picture of the kidney shortage than what is typically presented, by documenting the flows on and off the kidney waiting list for a single year, 2011. For the sake of brevity I won’t repeat that analysis here, but we conclude that unmet need is at least 21,000 kidneys per year, and very likely more than that. Those interested in the specifics should consult Table 1, Figure 2, and the discussion in Parts IV and V of the article.
In considering where to look for more kidneys, we begin with the basic demographics: the typical criteria that are applied to identifying suitable deceased donors have the effect of disqualifying all but a small fraction of the 2.5 million U.S. deaths per year. Table 3 from our paper, reproduced above right, provides some detail on this “winnowing” process for 2010, gathered by sorting the 2.5 million records from the National Vital Statistics multiple cause mortality dataset according to particular fields in the electronic records, beginning with age. We begin with the fact that almost 2/3 of all deaths are over 70 and hence almost always deemed medically unacceptable due to age alone. Of the remainder, most are uncontrolled deaths out of the hospital, or deaths in the hospital from causes like cancer, diabetes, and renal disease that ordinarily are disqualifying.
The result is that, in 2010, only about 9,000 deaths were “eligible” by either the standard criteria or expanded criteria, and in 70% of those cases the kidneys were in fact donated. (In addition, there were 928 others who became donors after cardiac death, which is uncommon because it is a difficult, though expanding, procedure, which we discuss in more detail in the paper).
One lesson from these statistics is that even a deceased organ consent and allocation system with a 100% success rate would have yielded only an additional 2751 donors, or roughly 5500 kidneys. This is not nearly enough to satisfy current need, particularly if any progress is to be made on the backlog.
Those who believe that the kidney shortage can be eliminated through presumed consent, priority systems, funeral vouchers, or other proposals aimed at improving rates of deceased donation are thus mistaken. Additional kidneys from deceased donors would be welcome, of course, but will not be nearly enough to satisfy current need. Barring a major breakthrough in recovering organs from patients that are currently deemed unsuitable, increasing donations from living donors is the only plausible means to close the gap.
In my next post, I’ll conclude with some more specific policy implications of our paper.
In this weekend’s Wall Street Journal, Gary Becker and Julio Elias have an essay, Cash for Kidneys: The Case for a Market for Organs, in which they argue that paying donors for their organs would eliminate the supply-demand gap without greatly increasing the cost of a kidney transplant. This is an extension of their prior work, with which many Loungers may be familiar. The article has generated a fierce (though largely misinformed) debate in the comments section and Al Roth has a typically thoughtful post on point, questioning why repetition of these arguments and evidence has failed to make headway, and urging a more thorough understanding of the nature of the opposition to organ markets.
The WSJ piece is notable for several reasons, however. First, this is not the usual short op-ed, but a fairly extended treatment. I can’t help but think that such a piece in the mainstream press by two prominent economists signals something about the current salience of the kidney shortage. That same sense was the motivation behind the recent Organs & Inducements symposium that Phil Cook and I hosted last year at Duke. Second, as Phil and I demonstrate in a forthcoming article just posted to SSRN, the prospects for reducing the kidney deficit under the current system have only become more daunting since Becker & Elias published on this topic in 2007.
To illustrate, the accompanying figure (figure 2 from our paper) provides a historical account of the gap between kidney need and supply. That gap appeared when the UNOS data system first went on line in 1995, and has widened over the years since then. Between 1995 and 2006 both flows (new additions and transplants) increased steadily, with the need increasing faster than the supply of kidneys available for transplant. Since 2006 the need has continued to increase each year (albeit more slowly), but the rate of transplants has plateaued. (We discuss this and other trends in more detail in the paper)
The Becker and Elias WSJ piece is also timely from my perspective, given that our paper, A Primer on Kidney Transplantation: Anatomy of the Shortage, reaches largely the same conclusion, but also contains some important differences that are worth highlighting. The primer, part of the Organs & Inducements symposium, is intended as a quantitative description of the kidney shortage and future trends. That analysis yields some insights on possible policy solutions to the kidney shortage and, perhaps most importantly, demonstrates the limitations of many popular proposals aimed at reducing the gap between supply and need.
In my next few posts, I’ll take readers through a few key pieces of evidence and arguments in the paper. We are still very much in draft form, so constructive feedback is most welcome. As a preview, the main takeaways from the paper that I plan to hit in these posts are the following:
I’ll be back with more on this later. In the meantime, you can download the full paper here.
Via Al Roth, The Alliance For Paired Donation, a pioneering organization in Non-simultaneous Extended Altruistic Donor Chains (NEAD Chains), which is chaired by Organs & Inducements participant and University of Toledo renal transplantation specialist Michael Rees, is a finalist for the 2014 INFORMS Franz Edelman Prize. The Prize is the world’s most prestigious recognition for excellence in applying advanced analytics to benefit business and humanitarian outcomes.
The full press release is here.
Congratulations to Mike and the Alliance for Paired Donation!
For more on NEAD chains see the video below or this article with Kieran Healy on the topic.
An update to my previous update: The Boulder Daily Camera reports that on Wednesday, CU-Boulder administrators met with faculty in a 70-minute, closed-door meeting to discuss L’Affaire Adler and its broader ramifications for academic freedom, and then spoke to reporters afterwards. At the presser, the arts and sciences dean said—for the first time—that the “main concern” with Adler’s course was that “maybe there are cell phone videos being taken or other kinds of videos that would put students in a position where we didn't have consent on these issues.” He explained that “[w]ith any course involving something unusual, like photographing students, we ask for consent forms to be signed. For example, when we photograph someone in a theater rehearsal, they have to sign consent forms for this.” If so, the administration’s decision to send its Office of Discrimination and Harassment to sit in on Adler’s lecture (the Office found the skit to be a “risk” to the university) and the administration’s subsequent statements about the skit possibly constituting a hostile learning environment seem a bit odd, as does its decision to cancel the course for the spring.
Still, this explanation, if we credit it, partly explains why the skit would be of more concern today (and perhaps in recent years) than it was 20 years ago when Adler began teaching the course. The problem (today, at least) is not so much the “post-Penn State” world as the post-iPhone/Instagram world.
As if to prove the administration’s concerns about the dangers that modern technology poses for privacy, someone in the closed-door meeting leaked an audio of it to the Daily Camera, in which associate sociology professor Leslie Irvine called for the provost to resign for falsely “insinuat[ing] that professor Adler is under investigation for sexual harassment” in his Monday email.
During the same not-so-closed-door meeting, administrators told faculty that, “What we know based on our discussion with sociology is that there have been concerns expressed over the years, and unfortunately these concerns have not been dealt with in an effective manner.” The provost said he had (in the Daily Camera’s words) “concrete evidence of complaints from more than one student,” but would not say how many complaints when pushed by faculty.
Yet, despite this allegation of ineffective handling of student complaints about the course by the sociology department, the dean acknowledged that, the previous day, the administration had “reversed course” on its decision to preclude Adler from teaching the course this spring and had instead decided to leave that decision in the hands of…the sociology department. In order to “abide by the rules of self-governance and allow the sociology department to handle the issue internally,” the administration now says that the course can proceed if Adler agrees to a review of her course “by a group of her peers in sociology or perhaps by her sociology colleagues joined by other faculty colleagues from CU-Boulder.” The sociology department apparently voted to review the course if Adler requests it.
The Daily Camera reports that Adler hasn't yet decided whether to sign her retirement contract (due, she says, by Jan. 6) or allow the sociology department to review her course.
Update: Inside Higher Ed now reports that UC-Boulder has backed down from its suggestion that controversial teaching be prospectively approved by the university's IRB. On Monday, Provost Russell L. Moore sent the following email to faculty (emphasis mine):
Many of you are raising concerns about comments by our campus spokesperson Mark Miller published today in Inside Higher Ed.... I want to make it clear to you that this was a question raised by CU Arts & Sciences Dean Steve Leigh – whether or not the use of student TAs as actors in a skit presented in a class should be accorded a review by the IRB. I want to make clear that this was not a declaration of a policy, or an expansion of IRB’s role. Inherent in Dean Leigh’s question from the beginning was whether or not some consent form, comparable to what might be required by IRB, would be appropriate. Our campus policies reveal that this is not an area in which IRB would become involved, as it only deals with human subjects used in the research process, not material used for teaching.
A number of you have raised concerns about academic freedom and how it may connect to this situation. Academic freedom protects faculty who teach controversial and uncomfortable/ unpopular subjects. However, academic freedom does not allow faculty members to violate the university’s sexual harassment policy by creating a hostile environment for their teaching assistants, or for their students attending the class. . . . In this case, university administrators heard from a number of concerned students about Professor Adler’s 'prostitution' skit, the way it was presented, and the environment it created for both students in the class and for teaching assistants. Student assistants made it clear to administrators that they felt there would be negative consequences for anyone who refused to participate in the skit. None of them wished to be publicly identified.
Bonjour de Toulouse, where I'm visiting this month at the Institute for Advanced Study (IAST), which is hosted by the Université de Toulouse Capitole and physically (and in many senses conceptually) situated inside the Toulouse School of Economics. I may blog more about my visit as the month goes on, but in any event, it's an apt place to write this post on markets in human tissue.
In early October, I wrote about a rule that the Department of Health and Human Services has proposed that would amend the National Organ Transplant Act (NOTA) to criminalize compensation for providing peripheral blood stem cells (PBSCs) given through apheresis. Compensating those who allow their bone marrow to be aspirated — the other major source of hematopoietic stem cells (HSCs) — is already explicitly criminalized under the statute. At the end of the post, I promised to follow up with a second post on why I’m skeptical about this rule, as a matter of policy. This is that post.
But before discussing appropriate policy for addressing the problem of the 3,000 Americans who die each year for want of a bone marrow transplant, and for reasons I'll explain near the end of my post, I want to say something about one particular person: Professor Nalini Ambady, a Stanford social psychologist who, about one year ago, began an international search for a compatible, willing HSC donor to treat her leukemia.
Because she is South Asian, and because few Asians and other racial and ethnic minorities are listed in the U.S. bone marrow registry — South Asians comprise only 2% of the U.S. registry — she had a difficult time finding a match. She nevertheless found 12 potential matches in the U.S. bone marrow registry, and apparently at one point had scheduled the transplant. In the end, however, half were ruled out as imperfect matches — and each of the remaining six matches declined to donate.
Having exhausted the U.S. registry, Ambady and her supporters sought a match in South Asia registries — but even fewer people are registered in that region than in the U.S. Of India's 1.2 billion people, for example, only about 45,000 are registered. Nevertheless, a potential thirteenth match was found in an Indian registry. He matched at least 6 of 10 HLA markers; he would need a blood test to determine whether he was a complete match. Unfortunately, after a worrisome week of silence about whether he was indeed a complete match, Ambady and her family learned that the potential donor had backed out.
And then a potential fourteenth match:
Weeks later, it happened with another potential match for Nalini, this time an 8/10 and so an even likelier match. This man wanted to watch someone else donate their bone marrow before making up his mind. A registry chief actually arranged this for him in early May. Somehow, it wasn't persuasive enough. He, too, decided not to donate.
Professor Ambady died on October 28 after eight compatible or potentially compatible registered donors ultimately declined to donate.
Apparently, declining to donate after agreeing to be listed in a registry and being found to be a match is quite common. According to one registry chief, the attrition rate is 50% in the U.S., Europe, and India. Would a financial incentive have tipped any of these vaccillating prospective donors towards a decision to donate? Although we can’t say, this is an eminently answerable question. Unfortunately, the Department seems uninterested in learning whether a compensation scheme would save lives — or have ill or counterproductive effects — or not.
In its Notice, the Department lists the following policy reasons for expanding NOTA’s list of “organs,” the exchange of which for valuable consideration is prohibited, to include PBSCs: (1) preventing commodification; (2) curbing opportunities for coercion of PBSC providers and (3) exploitation of PBSC recipients; (4) encouraging altruistic donations, and (5) decreasing the likelihood of disease transmission resulting from paid donations. My responses to these arguments are after the jump. I end with some thoughts about alternative policy tools for increasing the supply of PBSCs in the absence of a legal compensation scheme.
On October 2, in the midst of the government shutdown—either HHS somehow managed to convince itself that the rule was "necessary for the protection of life" or, more likely, it had already been scheduled for printing—HHS quietly published a Notice of Proposed Rulemaking. The proposed rule would effectively moot the recent Ninth Circuit case of Flynn v. Holder by criminalizing the compensation of bone marrow donors, even when the life-saving stem cells are extracted through a newer, minimal risk procedure. In this post, I’ll explain the medicine, the Ninth Circuit’s decision, and what HHS proposes to do in response. In my next post, I’ll have some reaction to HHS’s policy arguments, about which I’m skeptical, and perhaps a few thoughts about where plaintiffs might go from here.Section 301 of the National Organ Transplant Act (NOTA) of 1984 criminalizes the transfer of "human organs" for “valuable consideration.” Reimbursement of reasonable out-of-pocket expenses associated with travel and lost wages are okay—as are, since the 2008 amendment of NOTA, paired living donor chains—but any other “valuable consideration” that might incentivize sources of organs is not. Under NOTA, as amended,
‘human organ’ means the human (including fetal) kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin or any subpart thereof and any other human organ (or any subpart thereof, including that derived from a fetus) specified by the Secretary of Health and Human Services by regulation
(emphases added). HHS has since added to this list “intestine, including the esophagus, stomach, small and/or large intestine, or any portion of the gastrointestinal tract.”
So-called “bone marrow transplants”—in reality, infusions of hematopoietic (blood) stem cells (HSCs)—are often life-saving procedures for those with, for example, leukemia or aplastic anemia. (See these sobering statistics compiled by the Institute for Justice, which represented the plaintiffs in Flynn.) When NOTA was passed, the only way to obtain HSCs was through bone marrow aspiration using a long needle thick enough to suck liquid marrow directly from the donor’s pelvic bone. HSCs are then harvested from the marrow. The procedure is done under general anesthesia and so the donor is subject to the usual risks of anesthesia. Although the donor can return to usual activities in two to seven days, discomfort may linger for up to two weeks.
[This post falls squarely in the “[pop] culture” portion of TFL’s “law, culture, and academia” mandate. Regular programming will resume in due course.]
Hi Gloria. Can I call you Gloria? I understand that you were displeased by the duet performed by your son and Miley Cyrus (as you know, your boy shows up at the 3:00 mark) at the MTV VMA awards Sunday evening.
Specifically, you said:
I was not expecting her to be putting her butt that close to my son. The problem is now I can never unsee it. . . . Him? Loved it! I love that suit, the black and white suit. I don’t understand what Miley Cyrus is trying to do. I just don’t understand. I think she’s misbegotten in this attempt of hers. And I think it was not beneficial.
Gloria, I’m confused about your confusion. I mean, look, the whole obscenity concern trolling thing isn’t my bag. VMA has been doing this for years, and if you wanted to see something else, well, that’s what they have C-SPAN for. But hey, you’re certainly free to know it when you see it. Obscenity, that is.
What I don’t get is why you see it in Cyrus but not in your own son.
To be fair, it’s not just you. All the commenters I’ve seen, from Sean Hannity (“outrageous,” “downright raunchy,” and “inappropriate” for a role model) and Bill O’Reilly (“she’s a troubled young lady” and “out of control”) to Camille Paglia (whose focus is on the philistine rather than the obscene nature of the routine) have reserved their criticism for Cyrus.
A mommy blogger’s open letter to her daughter, warning her not to follow in Cyrus’s footsteps, has gone semi-viral. But not a single Mommy blogger has warned her son against following in your son’s footsteps.
To no one's surprise, Bill O’Reilly blames Cyrus’s twerking on “bad parenting,” and after Miley’s father, country singer Billy Ray Cyrus, defended his daughter, O’Reilly asked whether he should be “shunned.” Even Brooke Shields, who played mom to Cyrus’s Hannah Montana, felt the need to weigh in and demand answers: “I was Hannah Montana’s mother. I do not approve. Where did I go wrong? I just want to know who’s advising her, and why it’s necessary?” (By contrast, Shields remains “shocked” by the controversy over her own performance in the infamous “You wanna know what comes between me and my Calvins? Nothing.” ad campaign, which she shot when she was just fifteen years old (Cyrus is twenty), and which was banned by CBS.)
And yet no one blames you, Gloria, for raising a son whose music and videos are—in addition to being just as "obscene" as Cyrus’s (and just as arguably misappropriating of black culture and glorifying of drugs)—kinda rapey. Following the VMA hoopla, Cyrus's father canceled a scheduled interview with Piers Morgan at the last minute. But free from the burden of having to defend your parenting and your child, you can grant media interviews in which you accept the condolences of a shamed nation and join the #MileyGate pile on. It’s all a little reminiscent of Justin Timberlake, whose image was only barely and very temporarily tarnished by the “wardrobe malfunction” of Janet Jackson (remember her?), which he, too, apparently helped orchestrate. I don’t personally care about either Cyrus’s butt or Janet’s nipple, Gloria. But I am annoyed by the double standard involved in criticizing the female but not the male co-venturers in these manufactured controversies—the twerkers but not the twerkees, if you will—which is why I'm writing. (More after the jump.)
U.S. District Judge Saundra Brown Armstrong has refused to dismiss the class action suit against ASRM (the American Society for Reproductive Medicine), SART (the Society for Assisted Reproductive Technology), and all clinics and egg-donor agencies that agreed to follow their pricing guidelines. (I’ve uploaded the order here: Download Order denying mtd) The suit alleges that the caps the societies have imposed on permissible oocyte compensation are per se illegal.
As regular Lounge readers may recall, this is a case about which I’ve blogged quite a bit, and I wrote a law review article in 2009 arguing that the ASRM-SART Ethical guidelines were simply horizontal price-fixing of the type long considered per se illegal in other industries. And, as I noted of the ASRM-SART motion to dismiss shortly after it was first filed back in July of 2011, “this sounds suspiciously like the standard, and typically unsuccessful, professional association defense.”
As a refresher, ASRM guidelines state that any payment by a member clinic to an egg donor in excess of $5,000 requires justification, and any donor payments above $10,000 "go beyond what is appropriate." The societies claimed that the pricing guidelines were not a per se violation because they were motivated by ethical concerns, rather than by a desire to enrich the societies or their member clinics and agencies.
According to the motion to dismiss, the maximum price rules serve several salutary functions: (1) they protect the health and safety of egg donors and infertile patients by reducing their incentive to hide medical information, (2) they resolve "social welfare concerns" about the exploitation or undue inducement of egg donors, (3) they protect against the devaluation of human life, and (4) the price caps provide access to donated eggs for infertile couples with limited economic means. Regular Loungers are already aware of my views on these arguments, and those of you new to that debate can catch up by following the links below. Judge Armstrong concluded that these issues were debatable and denied the motion to dismiss, refusing to hold as a matter of law that per se analysis should not apply to the societies’ pricing guidelines.
Judge Armstrong also addressed one argument under the rule of reason analysis that I had not noticed in the pleadings: ASRM and SART attempted to define the relevant market to include numerous other "alternative income-generating opportunities" that are "close substitutes for egg donation," including “blood, platelet, or plasma donation or paid clinical trials by hospitals, universities, companies, or research institutions.” Really?? I’ll anxiously await the evidence on that. The Judge refused to settle this at the pleading stage as well and denied the motion to dismiss under rule of reason analysis.
I will provide further updates on the case as I get them and many thanks to my colleague, Barak Richman, for forwarding the latest news on this front.
I promised to talk a bit more about the Organs & Inducements symposium that I mentioned earlier. I’ll refrain from giving much detail about individual papers at this point, as many of the authors will be substantially revising their papers over the summer and I don’t want to misrepresent them. But I will give some detail about how the conference came into being, about how Phil Cook and I conceived of the conference theme, and how we settled on the concept of “inducements.” And I’ll be back later to talk more about specific papers as the authors have a chance to revise and submit their papers to Law & Contemporary Problems for publication.
Phil and I began talking a year or two ago about our overlapping interests – mine in what I frequently refer to as “taboo trades,” and his in what might be referred to as the economics of “vice.” For example, Phil has written extensively on issues of gun control (Gun Violence: The Real Costs, Oxford University Press, 2000), state lotteries (Selling Hope: State Lotteries in America, Harvard University Press, 1989), and alcohol (Paying the Tab: The Costs and Benefits of Alcohol Control, Princeton University Press, 2007).
Anyway, Phil and I began discussing the many recent advances in organ donation, none of which have managed to eliminate the waiting list. We wanted to convene a discussion designed to tackle what we thought of as “next steps” in the long-running debate about methods to increase the supply of transplantable organs. We purposely employed the term “inducements,” rather than “incentives,” believing that the term “incentives” had become too closely tied with organ markets in the traditional sense – compensation for organs with money, vouchers, or some close cousin.
In contrast, we viewed the phrase “inducement” as potentially signifying something much broader and more inclusive. According to Merriam Webster, an inducement is simply “a motive or consideration that leads one to action.” And, as we thought about recent advances in organ donation and organ policy reform that most intrigued us, most did not involve monetary or similar compensation, but rather more subtle means to facilitate organ donation.
Thus, from our perspective, inducements could range from public awareness campaigns exhorting people to donate and informing them of the severity of the organ shortage, at one of the spectrum, to outright organ auction markets at the other end of the spectrum. But we largely expected authors to address the many interesting variations in inducement in between those two extremes, and that is exactly what our participants did. The papers covered, for example, experiments regarding changes in the framing of the donation decision; the analysis of possible changes in the consent regime – for example, opt in versus opt out; priority schemes, such as that in Israel, under which priority for an organ is given to one who has agreed to be a donor; reciprocal-exchange schemes such as swaps and NEAD chains; other barter-based systems that might expand the range of tradable items to include other types of charitable gifts; and markets tightly constrained through government oversight with prices set by regulation, rather than by supply and demand.
In other words, debates about organ policy reform have often been framed in terms of a market versus gift dichotomy, with a focus on the preservation of “altruism” -- a framing that Kieran Healy and I have previously criticized as misleading and unhelpful. As we have argued, and as the contributions of our symposium authors highlight, the real world is far more complex than this, with many shades of gray. And donors act for a variety of motives, only some of which are “altruistic” in the pure sense of that term.
We also encouraged our participants to go a step further, to address regulatory next steps. If inducements are permissible, what kind? Are all inducements created equally? Or are some more acceptable than others? And why?
Do all potential donors receive an equal inducement? Why or why not? Who is entitled to apply the inducement? Government? Private actors? Medical professionals? Transplant recipients?
In other words, in a system with at least some inducements – including our present system – what safeguards are necessary to assure us that the system is safe, fair, efficient, and egalitarian? And do we value each of those things equally or not?
Those are the questions we hoped to engage over the two-day symposium and our participants did not disappoint. Naturally, I’m biased, but I found the conversation both energizing and challenging. I think that others did too. And I’m confident that some excellent papers will emerge from this symposium.
Keynote speaker, Al Roth, discussed his work on organ donation, including recent experiments with fellow Organs and Inducements participant, Judd Kessler. You can read Al’s write-up of the event at his Market Design blog.
Anyway, I think that the event was a big success and I will have more to say about it in the coming days. For now, I’ll just post the symposium abstract, along with a thanks to all the many wonderful participants who made this event a success.
More to follow . . .
The need for human organs for transplantation far outstrips supply. As a result, a large literature has developed debating possible means to address the gap. Suggestions range from procurement system improvements and changes in the consent regime, in the case of cadaveric organ donation, to inventive exchange systems (such as swaps and NEAD chains) and financial incentives of various sorts, in the case of live organ donation.
In Organs and Inducements, contributors build on existing debates on mechanisms designed to bridge the gap between organ demand and supply, to address deeper questions regarding inducements to donate. Among the varied possible mechanisms of persuasion and incentives at society’s disposal, what are the relative advantages and disadvantages of each? What are the larger ethical, economic, sociological, and psychological issues raised by these different types of inducements, including non-financial inducements? Why are some accepted by the law and society at large, while others are not? Do the lines we’ve drawn among permissible and impermissible inducements make sense, given the concerns those rules are meant to address?
This is not about Django. As much as I am dying to write a post about Tarantino's new film, my academic writing beckons.
Thank you, Patrick O'Donnell, for your earlier post and bibliography on teaching prison law. I'd like to add to Professor Dolovich's call for a curricular commitment to bringing prisons and prisoners into legal education: We should not forget to include a consideration of how antebellum slavery shaped the development of America's early penal institutions.
I am hard at work on a project that looks at the administration of slavery in antebellum Virginia through the institutional prisms of the county jail and the state penitentiary. Many (many) years ago, while trying to nail down a dissertation topic, I became interested in the practice of confining alleged fugitive slaves in local, southern jails until they were "claimed" by their owners. (Many folks confined in antebellum Virginia’s local jails were never accused of any crimes, and were most often merely suspected of being runaways.) Hunted down on the roads and in the countrysides, people of discernible African ancestry were presumed to be fugitive slaves; no law prevented their seizure and confinement upon such suspicion.
Few have considered the experiences of blacks in what might be considered "civil" custody during this period; beyond those excellent monographs on slaves-as-criminal defendants (Schwarz, etc.), this other history has gone (somewhat) untold. Penal institutions in this country have troubled pasts; introducing them to our students will both spark their interests and motivate further scholarly excursions (and activism) into the field.
Last year, I blogged a few times about Duke’s year-long Custom and Law project, which culminated in a Duke Law Journal symposium in February. Kieran Healy and I presented a draft paper on nonsimultaneous, extended, altruistic donor (NEAD) chains at the conference (with commentary by Arti Rai), which we have just posted to SSRN. Though I’m biased, of course, I think that the paper is a neat addition to the relatively new, but growing, research on NEAD chains, and does a pretty good job of critically evaluating what we view as overly simplistic characterizations of NEAD chains as either gifts (and thus good) or market exchange (bad in the minds of most, though not all, observers).
In a NEAD chain, an altruistic donor freely gives a kidney to a patient, initiating a chain of transplants among a series of donor-patient pairs. Each donor has a kidney that is incompatible with “her” patient, so instead each donates her kidney to the compatible patient of another donor-patient pair, forming the next link in the chain. NEAD chains are a relatively recent innovation in the transplant system, and they seem set to become more common in the future.
In our paper, Kieran and I ask the question: What sort of exchange is this? And, does it matter?
In some ways, a NEAD chain resembles a form of generalized exchange, an ancient and widespread instance of the norm of reciprocity that can be thought of simply as the obligation to “pay it forward” rather than the obligation to reciprocate directly with the giver. Generalized exchange has long been seen as an extremely effective customary means of generating commitment and solidarity in social groups, because everyone participates in the exchange of values.
This imagery of solidarity and collective commitment generated through a chain of gifts has been important to the success of NEAD chains. In particular, the presence of a gap in time between exchanges introduces some standard elements of gift giving, especially the social obligation to reciprocate (pay forward) and the problem of trust that arises along with it.
Looked at from a different point of view, though, a NEAD chain is not like gift exchange at all. Instead, it resembles a string of promises and commitments to deliver something in exchange for some valuable consideration—in short, a series of contracts. After the first free donation, each donor-patient dyad in the chain in effect promises to pay the donor’s incompatible kidney forward upon receipt of a compatible kidney for the patient. Isn’t this the essence of contract?
But Kieran and I argue that the attempt to starkly categorize NEAD chains as either gift--with the attendant virtues of expressivity, warmth, and social solidarity that are taken to flow from exchange built on altruism and sharing—or contract, with the attendant self-interested, price-driven, instrumental orientation associated with market-based exchange—is misplaced. We emphasize that, although both generalized exchange and formal contract can be thought of as culturally available schemas for governing the exchange of kidneys in NEAD chains, both are imperfect fits for the intricate realities of NEAD-chain exchange. Gift- and contract-based exchange models do, however, provide a rich cultural resource to participants and professionals seeking to frame the social meaning of NEAD chains.
In the end, we conclude, both gift and contract have the potential to act as schemas for NEAD exchange. Neither fit perfectly. Gift exchange is the more familiar template associated with organ transplantation, but contract also has the potential to symbolically frame NEAD exchange. Despite being rejected as inappropriate by some organizational actors, contract-like forms appear implicitly or explicitly at several points in the NEAD donation-and-exchange process—not, we emphasize, because anyone expects to legally enforce them, but rather, it seems, for their ability to powerfully symbolize credible commitments by participants. Whether this symbolic use of contract will continue to expand is an empirical question.
One result of the current cultural and legal ambiguity about the nature of NEAD chains within this imaginary gift-market divide, we argue, is that the actual operation of NEAD chains has, so far, tended to fall back onto relatively simple forms of simultaneous direct exchange. Even in the much celebrated sixty-person (thirty-donor) chain detailed in the New York Times in February, only five links involved a pay-it-forward delay of more than twenty- four hours. We suggest that if NEAD chains are to realize their full promise of true large-scale, non-simultaneous, extended exchange, these legal and cultural ambiguities will need to be finessed in practice by the coordinating agencies and the participants themselves.
You can download the full paper here, and we welcome your feedback.
Top Image: People Magazine via Al Roth
The Library of Virginia has a wonderful blog ("Out of the Box") where archivists tell the stories of people, places, and things found among the library’s collections. This week, the blog told the story of Jane Webb, a mixed-race free woman who, in 1704, offered to serve 7 years as an indentured servant with the owner of her enslaved lover in consideration for her lover’s freedom and permission to marry. In addition, Webb promised to let the owner (Thomas Savage) “have all the children that should be bornd [sic] upon her body” during the period of servitude. The owner agreed, and (remarkably) a written contract was executed between Savage and Webb. At the conclusion of the 7 years, however, Savage refused to release either Webb’s husband or their children; Savage claimed that the agreement entitled him to all of Webb’s children, for a period of time exceeding her indenture. Over the next 16 years, Webb and Savage battled in successive court cases in which each of them claimed the right to Webb’s children and her (now) husband. In one of the cases, Savage claimed that Webb’s poverty rendered her unfit to care for her children (as “they may be induced to take ill courses”). Ultimately, Savage (and his heirs) succeeded: Webb’s case was dismissed in 1727, and, despite her efforts, her children and husband remained bound to Savage.
The case is an interesting on a number of legal/academic fronts (property, evidence, labor, children & the law, etc.) – I’m most interested in Webb’s attempt to bind herself and her unborn children in exchange for her betrothed. Scholars of slavery in the U.S. have wrestled insufficiently with what can be called “voluntary” servitude and enslavement. For free blacks during this era, a web (no pun intended) of hostile legislation threatened to plunge them into perpetual slavery for even minor infractions; faced with the prospects of familial separation and geographic exile (if trafficked further South), free blacks throughout the South petitioned legislatures and courts requesting enslavement. Through this mechanism, free blacks transformed themselves into property – and their petitions provide critical insight into the role of law, race, labor, family, and limits of “freedom” in the lives of the nominally free. Can slavery ever be voluntary? If yes, what are the implications for our Thirteenth Amendment jurisprudence and courts' refusals to enforce personal service agreements? I look forward to your thoughts on this.
Congratulations to Al Roth, co-winner of the 2012 Nobel Prize in economics for "the theory of stable allocations and the practice of market design." In an earlier post, I labeled Al the ““pied piper of repugnance,” due to his work on repugnance, kidney exchange, and similar taboo trades. His research is nearly always cited as one of the best examples of the use of sophisticated economic tools to find solutions to daunting real-world problems, from the shortage of available kidneys for transplantation to the placement of students in urban school districts to the matching of medical residents with hospitals.
As I’ve mentioned before, one of the things that you should know about Roth (in addition to his important market design work) is that he is one of the most generous people you’ll ever meet. Roth was at Duke in 2011 to discuss a paper, Organ Allocation Policy and the Decision to Donate, and during his one-day visit managed to present his own paper, speak to my Taboo Trades seminar about kidney matching, meet with Duke students studying the market for judicial clerks (Al’s prior work includes the study of judicial clerkship markets, with co-authors Richard Posner and Christine Jolls), provide guidance to various faculty (including me) about their own research projects, and hang out in the faculty lounge and at dinner acting like a completely normal person. None of this really should have surprised me – Al’s support and generosity with graduate students is well known, and he had been incredibly approachable in my prior interactions with him. But it did impress me.
Anyway, it’s always nice to see great things happen to deserving people. So, congratulations to Friend of The Lounge, Al Roth!
Prior related posts:
So I've just posted a draft paper on SSRN, "Regulating the Production of Knowledge: Research Risk-Benefit Analysis and the Heterogeneity Problem," the first of a pair of companion articles on, well, how we regulate knowledge production -- focusing on IRBs in particular and on the peculiar risk-benefit standard that pretty much every federal agency (and the governance frameworks of many other countries) requires them -- futilely, I argue -- to perform. As soon as I finish navigating the ExpressO/Scholastica maze, I'll be blogging about some of issues raised in this paper, its companion, and "Legal Experimentation: Legal & Ethical Challenges to Evidence-Based Law & Medicine," a workshop (and edited volume) I'm organizing this spring.
But for now, a few brief thoughts:
(1) I hate the title of the draft paper. It's hideous. I long for the concise elegance of Prison Vouchers or some of the others mentioned here. The companion paper is tentatively titled "Research Contracts." That's followed by the usual boring descriptive subtitle, of course, but I consider it a victory at least to have begun with the kind of title I aspire to. For the posted draft, though, I can't even manage to do that. "Hey, IRBs: You're Doing It Wrong (But It's Not Your Fault)" is a fair description, but seems a little glib for a law review article. So I'm all ears if anyone comes up with a less jargonistic, sleep-inducing title. (More importantly, and in all seriousness, I'm very open to feedback on the paper itself.)
(2) Toshiba is on my s*** list. Partly because I'm a die hard Mac person, but mostly because of Toshiba's latest ad campaign, embedded above, which stereotypically portrays research participants as the passive objects of mad scientists -- that is, as proverbial guinea pigs. Like other historically disempowered groups, career research participants have reclaimed that moniker. But Toshiba's customers don't know that, and its ad helps perpetuate the image of research participation as terribly dangerous and degrading and as something that only someone who is either irrational or desperate (and willing to be exploited) would agree to. In reality, research participants can and do initiate research, and in the increasingly popular Citizen Science and Quantified Self movements, the distinction between researcher and "subject" disappears altogether. It's also closer to the truth (ahem, Time Magazine) to say that a lack of experimentation has turned millions of us into human guinea pigs in the realms of health care and legal services, and as the subjects of any number of laws, regulations, and policies (see the "Legal Experimentation" prospectus, linked above). /Rant
Earlier this week, the 9th Circuit denied the government’s petition for rehearing and rehearing en banc in Flynn v. Holder, the bone marrow donor compensation case that I’ve discussed before here, here, and here. The order is here. Download Flynn v Holder AMENDED
It includes an amendment to the opinion to reject the government’s argument -- contained in the petition for rehearing but not its initial brief -- that because Congress defined “bone marrow” in another statute to include cells found in peripheral blood, “bone marrow” should be given the same meaning in NOTA. That always seemed like a weak argument to me, given the very different purposes of the two provisions, so I’m happy to see it rejected.
Thus, for now at least, it seems that Flynn v. Holder is over. There is, of course, the possibility of appeal or a request for legislative action, though, given the narrow 9th Circuit holding, perhaps the government will simply let it be (a possibility discussed in this post and in the comments to it).
My thanks to Glenn Cohen for the tip.