The Faculty Lounge

Repugnance, Global Kidney Exchange, and Drinking Our Own Spit: An Oral Argument Reunion

Last week I had a great “reunion” with Joe Miller and Christian Turner taping the latest episode of their Oral Argument podcast. I first appeared on Oral Argument (which was also my first podcast ever) back in episode 17 (“Fleshlist”), which Christian and Joe reminded me was WAAAYY back in 2014. Wow, that seems like last year, not five years ago! But congrats to Christian and Joe for their staying power!

As always, Joe and Christian were incredibly thoughtful, entertaining, and imaginative, taking the discussion to places I couldn’t anticipate even if I tried – make sure to listen to the end so that you can catch our discussion about drinking your own spit from a glass (yuck!).

One of the things that occurred to me, as we discussed the research I’ve been doing the last few years, is how lucky I am to have found collaborators who share my interest in taboo trades and who are much smarter than me! So, thank you, academic gods, for the wonderful co-authors you’ve sent my way.

Here’s their description of “Repugnance”, Episode 189:

Kim Krawiec rejoins us to discuss "repugnant" transactions. One common target of this adjective is trade in human body parts. While on the one hand making more matching kidneys available saves lives and prevents large amounts of suffering, on the other hand revulsion and concerns about coercion and distributive fairness arise when kidneys are bought and paid for. In recent years, a number of innovative market designs have allowed strangers to exchange kidneys without engaging in impersonal, commodified market transactions. And now there have been several global examples of such exchanges, transferring not only kidneys but also the resources needed to perform transplants in poor countries. But are these alternative designs still "markets," and what exactly is our problem with markets in kidneys anyway?

As always, the episode notes contain a wealth of information and useful links to books and articles we discussed, but I’ll add a few additional links below, for those interested in really indulging their taste for repugnant transactions and following the debate about Global Kidney Exchange.

On Global Kidney Exchange

Rees MA, Dunn TB, Kuhr CS, Marsh CL, Rogers J, Rees SE, Cicero A, Reece LJ, Roth AE, Ekwenna O, Fumo DE, Krawiec KD, Kopke JE, Jain S, Tan M, & Paloyo SR. Kidney Exchange to Overcome Financial Barriers to Kidney Transplantation. Am J Transplant 2017; 17: 782–790

Krawiec, Kimberly D., and Michael A. Rees. "Reverse transplant tourism." Law & Contemp. Probs. 77 (2014): 145.

Bozek, Danielle N., et al. "Complete Chain of the First Global Kidney Exchange Transplant and 3-yr Follow-up." European urology focus 4.2 (2018): 190-197.

Roth, A. E., Krawiec, K. D., Paloyo, S., Ekwenna, O., Marsh, C. L., Wenig, A. J., ... & Rees, M. A. (2017). People should not be banned from transplantation only because of their country of origin. American Journal of Transplantation, 17(10), 2747-2748.

Rees, M. A., Paloyo, S. R., Roth, A. E., Krawiec, K. D., Ekwenna, O., Marsh, C. L., ... & Dunn, T. B. (2017). Global kidney exchange: Financially incompatible pairs are not transplantable compatible pairs. American Journal of Transplantation, 17(10), 2743-2744.

On Repugnance

Roth, Alvin E. "Repugnance as a Constraint on Markets." Journal of Economic perspectives 21.3 (2007): 37-58.

Roth, Alvin E. Who Gets What—and Why: The New Economics of Matchmaking and Market Design. Houghton Mifflin Harcourt, 2015.

Healy, Kieran, and Kimberly D. Krawiec. "Repugnance Management and Transactions in the Body." American Economic Review 107.5 (2017): 86-90.

Healy, Kieran, and Kimberly D. Krawiec. "Organ Entrepreneurs." (2017).

Krawiec, Kimberly D. "Kidneys without Money." Journal of Institutional and Theoretical Economics JITE (2018).

            Cohen, I. Glenn, On Repugnance, Distribution, and the Global Kidney Exchange: Comment on Kidneys without Money by Kimberly D. Krawiec.” Journal of Institutional and Theoretical Economics JITE (2018).

            Lübbe, Weyma , Understanding (one's own) Repugnances: Comment on “Kidneys without Money” by Kimberly D. Krawiec.” Journal of Institutional and Theoretical Economics JITE (2018).

Repugnance Readings For The New Year

Happy 2019! Why not start out the new year with a set of readings on repugnance . . . you know you want to.  (They’re readings on repugnance, not repugnant readings!)

There is a piece from me, accompanied by excellent commentaries by Harvard law’s Glenn Cohen and the German philosopher, Weyma Lübbe (University of Regensburg). Sadly, all three pieces are behind a paywall.

The abstract for:

Kidneys without Money
by Kimberly D. Krawiec

"Market design and matching have been especially important for markets in which the use of money is viewed as repugnant or distasteful. This article employs the example of kidney exchange, with a particular focus on a new form, global kidney exchange (GKE), to highlight the manner by which repugnance and the law limit exchange and create scarcity. Yet it also opens the door to innovation that, at each stage of market development, prompts new repugnance concerns and initiates a renegotiation of legal rules, social norms, and institutional barriers."

And . . . a taste from the text:

“Repugnance influences which animals are food and which are pets, marks the limits of art and entertainment, and dictates who is eligible to marry. Importantly, repugnance is also associated with a strong resistance to the commercial exchange of certain goods and services. This aversion limits the types of transactions one sees in the marketplace and carries serious consequences for market design and regulation. Yet, as compared to the more well-known causes of market failure, scholars of economics and of law have spent less time addressing the role of repugnance in market design and regulation. Indeed, as noted by Roth (2007) and Healy and Krawiec (2017a), until fairly recently, the standard economic response to repugnance was to treat it as simply an irrational preference to be overcome with rational arguments and evidence.”

And, check out the accompanying excellent commentaries (no abstracts):

I. Glenn Cohen

On Repugnance, Distribution, and the Global Kidney Exchange
DOI: 10.1628/jite-2019-0004

Weyma Lübbe

Understanding (One's Own) Repugnances
DOI: 10.1628/jite-2019-0005

Comments are closed, but come find me on Twitter if you want to discuss! (@KimKrawiec)

 

 

Meet me in Mannheim!

Next week I’ll be giving a keynote lecture and also participating in a panel discussion on “Allocation Problems in health care” at theMaCCI Law & Economics Conference on The Law and Economics of Market Design.  From the conference website:

The conference will provide an international platform for exchange and discussion between academic researchers and practitioners in public authorities, legal counsel, and economic consultancies.

The MaCCI Law and Economics Conference is organized for the eighth time since the inaugural edition in 2011. It is our ambition to stimulate and disseminate research in the field of market design, competition, regulation, and innovation policy.

We gratefully acknowledge financial support from White & Case and the EPoS Collaborative Research Center for this year’s annual law and economics conference.

This year the topic is “The Law and Economics of Market Design”. The conference will consist of 4 panel discussions, two keynote lectures and will cover the following topics.

• Design of digital platforms
• Managing private and public procurement
• Designing infrastructure markets (telecom, traffic, energy)
• Allocation problems in health care (organ exchange)

Keynote Speakers

Professor Kimberly D. Krawiec

Duke Law School, Durham

Professor Dr. Peter Cramton

University of Cologne and University of Maryland

For the keynote address, I’ll discuss repugnant transactions, or "taboo trades" (something I also recently discussed on Brian Frye’s Ipse Dixit podcast) and how the law responds to such transactions. I’ll focus on egg, sperm, and organ “donation” and, if I have time, briefly discuss blood, plasma, and bone marrow donation. (I’ve put “donation” in quotes because, consistent with common practice, I’m using the word donation to refer to transfers without regard to whether the donor was compensated).

For the health care allocation panel, I’ll discuss Global Kidney Exchange (prior blog posts on Global Kidney Exchange are collected here).

The full conference program is here.

Me with Brian Frye on Ipse Dixit

I just did a short and fun podcast with Brian Frye (University of Kentucky College of Law) about repugnant markets ranging from kidneys to football, boxing, sex, and blood.  You can listen below.  Brian was a wonderful and generous host, and I’m so grateful for the opportunity to discuss my work with him (and with you!)

Comments are closed, but if you want to argue with me on Twitter (why not, everyone else does) I'm @KimKrawiec 

 

Links to some of the papers discussed in the podcast:

If We Allow Football Players and Boxers to be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to be Paid for Saving Lives?(with Philip Cook)

Repugnance Management and Transactions in the Body(with Kieran Healy)

Kidney Exchange to Overcome Financial Barriers to Kidney Transplantation(with Michael A. Rees et. Al)

Lessons from Law About Incomplete Commodification in the Egg Market

Details of the first Global Kidney Exchange Live and (temporarily) ungated

The final version of the paper that I blogged about last week, Complete Chain of the First Global Kidney Exchange Transplant and 3-yr Follow-up, is now available online.

The publisher has created a Share Link providing 50 days' free access to the article. Anyone clicking on this link before October 27, 2018 will be taken directly to the final version of the article on ScienceDirect, which they are welcome to read or download.

After that, the paper will be behind a paywall, so enjoy!

Share Link:
https://authors.elsevier.com/c/1XhNI8Yy0L8qol

 

Details of the First GKE (Global Kidney Exchange) Chain

My co-authors and I recently published a paperthat provides more detail on the first Global Kidney Exchange (GKE), including a 3-year follow-up report on the Filipino pair that participated. We wrote this, in part, to respond to GKE critics who argued that the Filipino pair had been exploited or coerced into participating, or who argued that the pair had been disadvantaged in the swap or not received adequate follow-up care. Al Roth has more discussionover at his market design blog. 

From the abstract:

Background

Global Kidney Exchange (GKE) offers an opportunity to expand living renal transplantation internationally to patients without financial means. These international pairs are entered into a US kidney exchange program that provides long-term financial support in an effort to identify opportunities for suitable exchanges for both these international pairs and US citizens.

Objective

While the promise of GKE is significant, it has been met with ethical criticism since its inception in 2015. This paper aims to demonstrate the selection process and provide >3 yr of follow-up on the first GKE donor and recipient from the Philippines.

Design, setting, and participants

The first GKE transplant occurred with a young Filipino husband and wife who were immunologically compatible, but lacked the financial means to continue hemodialysis or undergo a kidney transplant in their home country. The pair was enrolled in the Alliance for Paired Donation matching system, several alternative kidney exchanges were identified, and the pair subsequently underwent renal transplantation and donation in the USA financed by philanthropy. The resulting nonsimultaneous extended altruistic chain provided transplantation for the Filipino husband and 11 US patients.

. . .

Conclusions

While criticisms of GKE highlight concerns for possible exploitation of financially disadvantaged groups, these results demonstrate that these concerns did not come to fruition, and the outcome experienced by the GKE donor and recipient (and other US participants) was successful.

Patient summary

The first Filipino Global Kidney Exchange (GKE) donor-recipient pair continues to be followed by both US and Filipino transplant centers. Both are in good health, support the GKE program, and advocate for its expansion.

Related posts:

GKE Debate in The Latest Issue of the American Journal of Transplantation

GKE Debate in Current Issue of The American Journal of Transplantation

Global Kidney Exchange (GKE) to Overcome Financial Barriers to Kidney Transplantation

Reverse Transplant Tourism

Reverse Transplant Tourism (cont.)

RTT Conclusion

Reverse Transplant Tourism Goes Live!!

More News Coverage Of Reverse Transplant Tourism

Kidney Donor Stories

Over at Market Design Blog, Al Roth posts part of an incredibly moving email conversation with a donor who became part of a kidney paired exchange after hearing what I think is one of the best Freakonomics episodes of all time. As the donor describes it:

Then I heard a follow up episode that united a donor with his recipient.  Stephen Dubner was crying... I was crying... I called Mayo Clinic the next morning and signed up for testing.

You should definitely read the entire exchange here. And if you have not yet listened to the pair of Freakonomics podcasts that led to the donation, you should do so, but only if you’re in a setting where it’s okay to cry. The second podcast is the one the donor is referring to, in which a donor is reunited with his recipient.

Freakonomics podcast: Make Me a Match (Rebroadcast)

Freakonomics podcast: Ask Not What Your Podcast Can Do For You

I found this part of the exchange particularly interesting:

"The rest is a long story and I know you are a busy man so I'll skip most of it.  I ended up being part of a pair, instead of an altruistic donor.  There was a man who worked with my wife that needed a kidney.  He once saved her life with the Heimlich maneuver so it was pretty poetic that I could save his.  He received his kidney from a bridge donor and I gave mine to someone on the diseased donor list.  So I got to save two lives!  I'm doing great.  I went back to work a couple of weeks ago.  I have no regrets and I hope I can inspire others to do something selfless and extraordinary in their lifetime. (emphasis added)

This ability to help more people, through a chain or paired exchange, rather than a single recipient, as through a donation to the waitlist, seems to be something that (understandably, I think) provides kidney donors with a lot of satisfaction. More generally, it's important to hear these personal stories from kidney donors. 

I’ve blogged a few times about kidney exchange, for example:

Custom, Contract, and Kidney Exchange

Global Kidney Exchange (GKE) to Overcome Financial Barriers to Kidney Transplantation

GKE Debate in Current Issue of The American Journal of Transplantation

Reverse Transplant Tourism

Our Day of Market Design

 

New Volume: Altruism, Community, and Markets

The latest Law & Contemporary Problems volume -- Altruism, Community, and Markets -- is now available! The entire volume is free online here. From the Foreword: 

That human motivations can be complicated and that the concerns of individuals for both self and others shape communities—local, national, and global—are simple observations. It is much harder to grasp the complexities of a rapidly changing world in which human beings with their varying commitments continually interact. Our desire to better understand how and in what ways the forces of self-interest and altruism intersect—and at times collide—in the early twenty-first century inspired us to organize a symposium on “Altruism, Community, and Markets.” The proceedings of that conclave are published in this issue. Held in Washington, D.C. in October 2017 and sponsored by the American Enterprise Institute, Duke Law School, and the University of Virginia School of Law, the symposium brought together scholars in law, public policy, economics, medicine, and related fields to examine the institutions5 that promote and restrict market and nonmarket interactions. The group also explored how the powers of altruism and self-interest are (and have the potential to be) harnessed to create and distribute goods and services.

The articles produced for the symposium cover a wide range of subjects and are of exceptional depth and intellectual ambition. All address topics of current importance while situating their analyses in the broader context of the symposium’s theme. Taken together, the articles contained in this issue provide a snapshot of a world grappling with the challenges of “institutionalizing”6 human cooperation in the face of evolving social attitudes and technological advances.

As they say, download it while it's hot!

Super Bowl Week OpEd

As the Super Bowl approaches, Phil Cook and I have an OpEd running in the Raleigh News & Observer and other venues. Below is a taste, but you can read the whole thing here. Our paper on this topic, forthcoming in Law & Contemporary Problems, is available here. 

Why ban payment to kidney donors but not football players?

BY PHILIP J. COOK AND KIMBERLY D. KRAWIEC 

February 01, 2018 01:06 PM

Super Bowl week rivets national attention on America’s most popular and lucrative sport, professional football. If stories of concussion and permanent injury to players make some fans uneasy, there is always the reassuring fact that the players volunteer for the job and are well compensated – so well compensated that there are untold thousands of young men who would gladly take their place.

Football is so ingrained in our culture that we generally accept this situation without much scrutiny. However, our research got us thinking about the stark contrast with another risky but valuable activity – kidney donation.

About 6,000 people per year donate one of their two kidneys. This selfless act has some risk to the donor, both from the surgery and years later when there is a chance the remaining kidney will fail. In return, kidney donors are rewarded with the knowledge they helped save the life of a loved one. They receive nothing tangible. Indeed, federal law bans compensation for kidney donors, as do the laws of all other countries except Iran (really).

So, why do we pay football players to entertain the public, but are unwilling to pay kidney donors to save lives?

The stakes in both cases are high, but much higher in kidney donation. The total value of NFL teams is about $60 billion. If, in some unlikely future, the risk of serious permanent injury to players led to a ban on professional play, that value would be destroyed.

Meanwhile, the ban on compensation for living kidney donation currently costs thousands of lives and billions of dollars in taxpayer money every year. The waiting list for a kidney now includes 100,000 patients, who for the most part are kept alive by renal dialysis at federal government expense. If they survive long enough, typically more than five years, in this debilitated state, they may hope to rise to the top of the list and receive a kidney from a deceased donor.

. . . 

Millions of Americans, not just NFL players, work in occupations that have a substantial risk of serious injury. Loggers, fishermen and others accept these risks in exchange for compensation. Extending that list to include kidney donors is just common sense.

PHILIP COOK IS TERRY SANFORD PROFESSOR EMERITUS OF PUBLIC POLICY AND PROFESSOR OF ECONOMICS AND SOCIOLOGY AT DUKE UNIVERSITY’S SANFORD SCHOOL OF PUBLIC POLICY. KIMBERLY KRAWIEC IS THE KATHRINE ROBINSON EVERETT PROFESSOR OF LAW AT DUKE LAW SCHOOL.

Paying for Canadian Plasma

I’m a signatory (along with a number of economists and ethicists) to this letter to the Expert Panel on Immune Globulin Product Supply and Related Impacts in Canada. The letter argues that Canada, which imports most of its plasma from the United States (which, in turn, collects plasma from paid donors), should not ban compensation to plasma donors.

The genesis of the letter is that the Provinces of Québec, Ontario, and Alberta prohibit compensation for plasma donations for purposes of further processing into plasma-derived medicinal products (PDMPs). Currently, Nova Scotia and British Columbia are contemplating similar bans. The detailed letter, for which Peter Jaworski deserves primary credit, addresses, among other issues, wrongful exploitation, commodification, and crowding out.  But the most interesting issue, in my view, is the purported safety rationale behind the ban.

Many opponents of compensating Canadian plasma donors raise safety issues. This really makes no sense to me (or the other signatories) for a number of reasons.  First, some opponents conflate blood donors for transfusion purposes with plasma donors for PDMPs. As we explain in the letter, these are two very separate issues. Second, the scientific consensus is that compensating donors does not compromise the safety of PDMPs. As stated by Dr. Graham Sher, the CEO of Canadian Blood Services:

“It is categorically untrue to say, in 2015 or 2016, that plasma-protein products from paid donors are less safe or unsafe. They are not. They are as safe as the products that are manufactured from our unremunerated or unpaid donors.”

Finally, and perhaps most importantly, Canada imports PDMPs from the United States, where donors are compensated. There is no reason to believe that PDMPs made from compensated Canadian donors would be any less safe than PDMPs made from compensated United States donors. Instead, the opponents’ position seems to reflect a type of NIMBYism that fellow letter signatories Nico Lacetera (Rotman School of Management, University of Toronto) and Mario Macis (Johns Hopkins, Carey Business School) discuss in an article forthcoming in a Law & Contemporary Problems volume, Altruism, Community, and Markets, edited by me, Julia Mahoney (UVA), and Sally Satel (AEI). A draft doesn’t appear to be available online yet, but I’ll blog more about it when it is.

Fellow signatories Al Roth and Alex Tabarrok also blog about the letter here and here, respectively. The letter is very informative and can be read in full here.

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too: Wrap-Up

In this series of posts, I’ve discussed a new draft that Phil Cook and I are circulating, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?. Our claim, which I laid out in my first post, is that there is a stronger case for compensating kidney donors than for compensating participants in violent sports. If this proposition is accepted, one implication is that there are only three logically consistent positions: allow compensation for both kidney donation and for violent sports; allow compensation for kidney donation but not for violent sports; or allow compensation for neither. Our current law and practice is perverse in endorsing a fourth regime, allowing compensation for violent sports but not kidney donation.

A common argument in support of the ban on kidney donation is that if people were offered the temptation of substantial compensation, some would volunteer to donate against their own “true” best interests. This argument is often coupled with a social justice concern, namely that if kidney donors were paid, a large percentage of volunteers would be poor and financially stressed, and for them the offer of a substantial financial inducement would be coercive. In sum, a system of compensated donation would provide an undue temptation, and end up exploiting the poor.

To these arguments we offer both a direct response, and a response by analogy with violent sport. My posts have touched on a few key points. First, the medical risks to a professional career in football, boxing, and other violent sports are much greater both in the near and long term than the risks of donating a kidney. On the other hand, the consent and screening process in professional sports is not as developed as in kidney donation. The social justice concerns stem from the fact that most players are black and some come from impoverished backgrounds.

Note that these arguments focus on the donors’ welfare, and ignore the welfare of people in need of a kidney. A comprehensive evaluation of amending NOTA to allow compensation requires that both groups be considered. Such an evaluation, conducted by Philip Held and colleagues, reached the following conclusion about a regime in which living donors were offered enough compensation ($45,000) to end the kidney shortage: “From the viewpoint of society, the net benefit from saving thousands of lives each year and reducing the suffering of 100,000 more receiving dialysis would be about $46 billion per year, with the benefits exceeding the costs by a factor of 3. In addition, it would save taxpayers about $12 billion each year.”

As stated by Held et. al., “dialysis is not only an inferior therapy for end-stage renal disease (ESRD), it is also almost 4 times as expensive per quality-adjusted life-year (QALY) gained as a transplant.” This means that the Medicare (which pays for the bulk of ESRD treatments) dollars currently spent on dialysis could be reallocated to compensating kidney donors, saving lives and tax dollars in the process. 

As I said, even a series of posts gives only an introduction to our arguments and evidence, so download the full paper here.

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Paying Kidney Donors, Football Players, And Boxers: Informed Consent And It’s Limits

Paying Kidney Donors, Football Players, And Boxers: Exploitation, Race, Class

Paying Kidney Donors, Football Players, And Boxers: Exploitation, Race, Class

In prior posts, I introduced the question, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?, and argued that the medical risks to a professional career in football, boxing, and other violent sports are greater than the risks of donating a kidney and that the consent and screening process in professional sports is not as developed as in kidney donation.

Although the primary focus of our paper is on the medical risk associated with living kidney donation, we also briefly discuss concerns about exploitation, coercion, race, and class, again with an analogy to violent sports. Living kidney donors in the United States have above-average incomes (after adjusting for sex and age). In a new regime in which donors were paid a substantial fee, it is predictable that the influx of volunteers would have below-average incomes. The prospect of financially stressed individuals attempting to make ends meet by “selling” a kidney raises a red flag for some ethicists. A compensation regime would expand the choice set for those in comfortable circumstances, but those in desperate circumstances might feel compelled to sell a kidney; in that sense, the option of selling could be seen as “coercive.” Furthermore, a system that in part depended on the poor to supply kidneys could be seen as “exploiting” the poor.

We believe that using words like “coercion” and “exploitation” to characterize the introduction of a new option by which poor people (and others) could earn a substantial amount of money provides more heat than light on this situation. The legitimate ethical concern is that so many Americans are poor, with inequality increasing over time. But that observation does not support a ban on compensation, which in fact limits the options available to the poor and thereby makes a bad situation (their lack of marketable assets) worse. But for anyone not persuaded by this argument, we note that these social-justice concerns apply with at least equal force to compensating boxers; most American professional boxers were raised in lower-income neighborhoods, and are either black or Hispanic.

As more has become known about the dangers of the repeated head trauma, similar arguments regarding football have become more prominent. About 70% of NFL players are black, and Pacific Islanders are also overrepresented as compared to the American population. Accordingly, much attention has been paid to the concussion crisis as a race and class problem. As one observer recently noted, “What’s a little permanent brain damage when you’re facing a life of debilitating poverty?” In reality, NFL players are better educated themselves, and come from better educated homes, than is average for Americans, in part because the NFL typically recruits college students. Still, some NFL players, like some would-be kidney donors, come from poverty.

Of course, this is only a taste of our arguments and evidence, so read the full paper here. In my next post, I’ll recap and wrap up.

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Paying Kidney Donors, Football Players, And Boxers: Informed Consent And It’s Limits

Paying Kidney Donors, Football Players, And Boxers: Informed Consent And It’s Limits

In prior posts, I introduced the question, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?, and argued that the ban against paying kidney donors cannot rest on the basis of medical risk when we pay professional athletes to incur far greater risks. Today, I will talk about the consent process and the extent to which we might expect the system to protect participants – whether organ donors or professional athletes – from making bad choices against their own interests in exchange for the lure of money.

We believe that if NOTA were amended to allow payments to donors, potential kidney donors could be protected against being unduly tempted through the existing structure of screening, counseling, and delay, perhaps with some additional protections to prevent hasty decisions. On the other hand, it is not clear that NFL recruits have such protections in place.

Whether and when sane, sober, well-informed, adults should be banned by government authority from choosing to engage in an activity that risks their own life and limb is an ancient point of contention. There are a variety of hazardous activities that are permitted with no legal bar to receiving compensation. Included on this list are such occupations as logging, roofing, commercial fishing, and military service. Also included are violent sports such as football, boxing, and mixed martial arts (MMA). These examples illustrate a broad endorsement of the principle that consenting adults should be allowed to exchange (in a probabilistic sense) their physical health and safety for financial compensation, even in some instances where the ultimate product is simply providing a public entertainment.

One potentially distinguishing feature of kidney donation is that the harm is not the result of an accident, but rather of the deliberate action (of the surgeon and medical team). But this is also the case with fighting sports and with egg donors, who are compensated.

It is helpful to deconstruct the decision to donate a kidney under both the current regime (no compensation) and a hypothetical regime (in which the donor would be financially compensated). A well-developed organ procurement process in the American system seeks to ensure that potential donors are fully capable of making a good decision. Potential kidney donors are not only provided with full information, but also screened for mental and physical disability. While there is the possibility of “mistakes” (a decision to donate against the true best interests of the individual) under both a compensated and uncompensated system, the screening, consent process, and delays should minimize the chance for the kind of errors that behavioral economics has demonstrated are common. There is nothing intrinsically irrational about a willingness to assume medical risk in exchange for a substantial amount of money. But the quality of the choice may be influenced by a variety of factors, and we recommend some “nudges” designed to overcome the most common causes of faulty decision-making under such circumstances.

The same concerns that apply to the quality of kidney donor decisions also apply, and more obviously, to the decision to sign a contract to play in the NFL. Yet the consent and screening process in professional sports is not as developed as in kidney donation. Players are provided with little information about the risks, and indeed, the longer-term risks (including the risk of CTE in middle age) have not been well quantified, but appear to be far higher than for kidney donation. The payoff in both financial terms and status is also very high, and in part conveyed immediately. Any counseling or screening that might occur is up to the player to pursue.

In short, to the extent that the ban on compensated kidney donation is grounded in a concern that the lure of money may cause donors to disregard the risks of the procedure and subsequent long-term effects, that concern applies with even more force to participation in violent sport.

This, of course, is just a taste of our analysis and evidence, so read the full paper for more.

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Related articles

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Paying Kidney Donors, Football Players, And Boxers: Medical Risks

Yesterday, in If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too, I introduced a new paper, written by Phil Cook and me, arguing that the case for paying kidney donors is much stronger than the case for paying participants in football, boxing, and other violent sports, and promising to follow up with subsequent posts outlining our arguments and evidence. 

Today, I’ll discuss the central argument in our paper: the medical risks to a professional career in football, boxing, and other violent sports are much greater both in the near and long term than the risks of donating a kidney. Injuries in such sports are common, and retired players are very often disabled by the long-term effects of these injuries as well the cumulative effect of thousands of blows to the body.

One challenge in making a meaningful comparison between the risks entailed in kidney donation and the risks entailed in participation in contact sports is that the latter may stretch out for many years and involve not one choice (donate or not) but rather a series of choices regarding participation. While it is difficult to quantify these effects in a way that provides a natural comparison with kidney donation, we provide some statistics that suggest that, for example, a man who signs a contract to play in the NFL for a year is consenting to be exposed to far greater medical risks than someone who volunteers to donate a kidney.

We focus our analysis on football, because the epidemiology of injury and disability is better developed than for fighting sports. It is worth noting, however, that there has always been concern about the risk posed by fighting sports, and that concern has accelerated in recent years, due to a better understanding of the long-term effects of head trauma. As a result of these risks, medical associations around the world, including the American Medical Association and various state medical associations, have called for limitations or bans on boxing and MMA.

As to kidney donation, we analyze both the post-operative risk from surgery and the post-recovery chance of death or disability resulting from loss of function of the remaining kidney. Both risks – while greater than zero -- are quite low, both in an absolute sense and in comparison to the typical risks of participation in violent sport. For example, post-operative complications (most of them minor, such as bleeding or wound infection) are present in 7.3% of cases, and donors face a higher cumulative incidence of end stage renal disease than nondonors – 0.31% versus 0.04%. While that risk is thus significantly elevated for donors, it remains very low in an absolute sense, representing an increased chance of about 1 in 400.

With respect to football, we discuss injury rates at the youth, high school, collegiate, and professional level. While that data is far too extensive to fully discuss here, I’ll provide a few highlights:

• In 2016, the 2,274 active players in the NFL experienced 2066 injuries during the preseason and regular season, 244 of which were concussions. That’s .073 concussions per player-season – about equal to the rate of surgical complications (most commonly, minor complications, such as bleeding or wound infection) in kidney donation.
• Official injury reports and survey information suggest that for a substantial majority of former players, injuries ended their career or contributed to the decision to end their career. Nine of 10 former players have nagging aches and pains from football when they wake up, and for most the pain lasts all day. For those age 30-49, the ability to work is impaired by injury.
• A recent postmortem study of a sample of donated brains of former NFL players found that 110 of 111 indicated either mild or (more commonly) severe CTE.

This last point requires some explanation, because the findings do not imply that 99% of former NFL players will have CTE. The brains in the study were voluntarily submitted for examination by family members who were often motivated by a desire to know the cause of their loved ones dementia or other neurological problems. But the 111 brains do represent 8.5% of the 1300 former NFL players who died during the period that these brains were donated. That places something of a logical lower bound on the prevalence of CTE. Presumably the true prevalence is much higher than 8.5%.

While it is not possible to do a precise “apples to apples” comparison of the medical risks associated with kidney donation` and the risks associated with a professional football career, it seems clear that the acute risk of injury and of long-term disability are far higher for the football player. As discussed above, most NFL veterans live out their lives following retirement with serious physical and mental disabilities. The vast majority of kidney donors lead entirely normal lives following recovery from the initial operation.

In other words, the ban against paying kidney donors cannot rest on the basis of medical risk when we pay professional athletes to incur far greater risks. This is just a short preview of the evidence on medical risk, so read the whole paper, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don't We Allow Kidney Donors to Be Paid for Saving Lives?

Prior related posts:

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

If You Oppose Paying Kidney Donors, You Should Oppose Paying Football Players And Boxers Too

Having concluded that simply advocating for compensated kidney donation was not sufficiently controversial, Phil Cook and I are now turning our sights on professional sports – specifically, professional football and boxing. In a piece just posted to SSRN, we contrast the compensation ban on organ donation with the legal treatment of football, boxing, and other violent sports in which both acute and chronic injuries to participants are common. While there is some debate about how best to regulate these sports in order to reduce the risks, there appears to be no serious debate about whether participants should be paid. Indeed, for the best adult football players, college scholarships and perhaps a professional contract worth multiple millions are possible.

Phil and I will likely spend part of the winter break as television viewers contributing to the NFL teams’ collective $56 billion valuation. But our position on paying kidney donors saves us from hypocrisy. If, however, you are one of the many, many people who believe it is unethical to compensate kidney donors, then you should be out protesting the NFL. And don’t even think about watching the latest boxing or MMA matches.

Over the next couple of posts, I’ll outline the gist of our argument and evidence. We focus on the core argument for a ban on compensation for kidney donation, namely the paternalistic concern that even well-informed adults will sometimes be enticed by a financial reward to donate a kidney when in fact that is not in their “true” self-interest. In this view, the allure of money, especially for those who are in debt and struggling to make ends meet, will overcome good sense, leading to “exploitation” and even “coercion” to which people with less income and education are particularly vulnerable. But the same concerns apply with still greater force to participation in violent sports. Whatever one concludes about the ethics of regulating risky choices, and the problematic aspects of choices involving money and risk, the current circumstance – ban compensation for kidney donors, permit compensation for participation in violent sports – appears difficult to defend.

Over the next few days, I’ll touch on these key points: the medical risk to participants, the consent process, social justice concerns, and social welfare considerations. The medical risks to a professional career in football, boxing, and other violent sports are much greater both in the near and long term than the risks of donating a kidney. On the other hand, the consent and screening process in professional sports is not as developed as in kidney donation. The social justice concerns stem from the fact that most players are black and some come from impoverished backgrounds. Finally, the net social benefit from compensating kidney donors – namely, saving thousands of lives each year and reducing the suffering of 100,000 more receiving dialysis – far exceeds the net social benefit of entertaining the public through professional sports.

Download the piece here. And check back in over the next few days for subsequent posts.

Does Contract Law Need Morality? The Slave, The Digital Pedophile, and The Indebted Gambler

Wenhao Liu and I have just posted to SSRN a draft of our paper discussing Nate Oman’s book, The Dignity of Commerce.  For those of you who have not yet read the Dignity of Commerce, I highly recommend it. I adopted it for my Advanced Contracts seminar last year and have done the same for this year. The book might also be a useful addition to a first-year contracts course, depending on your coverage, but it definitely works well for me in the more advanced setting.

In brief, The Dignity of Commerce sets out an ambitious market theory of contract, which Nate argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. One of the book’s most important contributions is its emphasis on the positive role played by markets and thus, by extension, of contracts. In an era rife with warnings about the market’s dangers to society, Nate’s cogent reminder of the market’s benefits is both refreshing and welcome. I was particularly drawn to the discussion of the market’s (and, therefore, contract’s) often forgotten role in organizing productive social interactions. These social benefits, Nate argues, are so important that it is these benefits—rather than a commitment to markets in and of themselves—that justify the use of state resources to support markets, and thus contracts.

Nate’s theory is also descriptively appealing: by recognizing that conceptions of morality and blameworthiness impact contract law, The Dignity of Commerce surely provides a descriptively more realistic account of contract law than theories that contend that contract law is explained solely by economic considerations or solely by moral ones. We find Nate’s market theory of contract less successful as a normative or prescriptive theory, however. To our mind, Nate makes moral judgments about the validity of certain markets (and, therefore, certain contracts) without providing a theoretical framework to replace either the moralist or economic theories he rejects. As a result, we don’t think the market theory can provide meaningful guidance to courts, policymakers, or scholars confronted with the more difficult questions facing contract law.

We illustrate all of these points using the examples of forced slavery, “The Digital Pedophile,” “The Indebted Gambler,” and taboo (or pernicious) markets, such as commercial surrogacy and sex work. And, hey, what could be more fun than that?!

So, all in all, The Dignity of Commerce is definitely a worthwhile read and can easily be incorporated into contract law courses and seminars, especially if you try to spend some time asking students to think about the normative foundations of contract law and how courts should resolve some of the thornier questions that emerge.

And, of course, you should make sure to read our critique of the book, as well!

Mail-Order Body Parts

A special report by Reuters details (here) how a journalist was able to buy a spine and two human heads after exchanging just a few emails with a representative of the non-profit organization Restore Life USA of Elizabethton, Tennessee. After learning of a death in the Tennessee, Virginia and North Carolina areas, the company approaches certain families with a "free" offer to pick up the body, cremate any parts not destined for sale for medical research purposes, and then return the ashes to the family.

In the Reuters case, the purchased spine belonged to a 24-year old male who had struggled with kidney and heart problems his entire life.  His family was too poor to afford a burial or cremation, so the offer from Restore Life had great appeal.

The "donation" cost the family nothing (financially). The purchase by Reuters apparently required just a few email exchanges and $300, plus shipping.  Here is an excerpt from the special report:

Whether Restore Life vetted the buyer is unclear. But if workers there had verified their customer’s identity, they would have learned he was a reporter from Reuters. The news agency was seeking to determine how easy it might be to buy human body parts and whether those parts would be useful for medical research. In addition to the spine, Reuters later purchased two human heads from Restore Life, each priced at $300.

The transactions demonstrate the startling ease with which human body parts may be bought and sold in the United States. Neither the sales nor the shipments violated any laws, say lawyers, professors and government officials who follow the issue closely. Although it’s illegal to sell organs used for transplants, it’s perfectly legal in most states to sell body parts that were donated for research or education. Buying wine over the Internet is arguably more tightly controlled, generally requiring at minimum proof of age.

To comply with legal, ethical and safety considerations before the purchases, Reuters consulted with Angela McArthur, who directs the body donation program at the University of Minnesota Medical School. She took immediate custody of the spine and heads for Reuters, inspecting and storing them at the medical school. * * *

[The family of the cremated 24-year old] said they believed this meant that Restore Life would merely remove small skin samples from Cody for medical research, cremate him and then return his ashes. The Restore Life consent form for Cody didn’t disclose that a donated body may be dismembered, as consent forms of most other brokers do. 

Incidentally, according to Restore Life's publicly available tax returns, Mr. Byrd recently received annual compensation of $116,000 last year. In the same geographic area of Tennessee, the median income is $30,000 per household.

The full Reuters article is available here.

GKE Debate in The Latest Issue of the American Journal of Transplantation

I’ve blogged a few times before about Global Kidney Exchange (GKE, formerly called Reverse Transplant Tourism). See, for example here, here, and here. The October issue of the American Journal of Transplantation (AJT) contains a news report and six letters to the editor about GKE (3 are replies by us to pushback on our original article in the March 2017 issue). You can see Al Roth’s discussion of the issue here.

The report, written by Lara Pullen, is very well done and worth reading in full here to get a sense of the debate.

As noted in the Report:

In a recently published paper, Dr. Rees and his colleagues stressed the financial inaccessibility of dialysis for most low-income individuals.[1] With the GKE, recipients from developing countries not only receive a kidney, but also financial support to help them pay for the medical costs of maintaining their organ after they return to their home country. “Because the GKE involves exchange, it benefits both the foreign pairs and the domestic pairs. It's a win for patients and the donors who love them in both countries,” says Alvin Roth, PhD, professor of economics at Stanford University in Palo Alto, California, and co-developer of the GKE.

. . .

In an editorial and series of letters, transplantation surgeons throughout North America have raised objections to GKE.[2-4] Among the concerns is that staggering numbers of financially incompatible yet biologically compatible pairs would desire entrance into the program, and would likely overwhelm it. Opponents also contend that cultural differences in developing countries will make it difficult to definitively determine potential donors’ motivations. The risk, then, is one of exploiting individual citizens in developing countries, as well as undermining national KEs that may be in their early stages in these countries.

Some have also raised concerns that kidney paired donation (KPD) transplants would violate the current U.S. law that limits paired donation transplants to biologically incompatible donors, as opposed to financially incompatible donors. Dr. Rees and colleagues voiced their opinion on this in a recent paper.[5] [Mike Rees and I address the legality of GKE at great length here]

Thus GKE remains the subject of very strongly held opposing points of view.

As I’ve already noted in a prior post, some of these concerns are valid, but addressable by proceeding carefully with GKE. Others are simply, in my opinion, ridiculous. In any event, we respond to these criticisms in our responses and I plan to say more on this in further posts.

My co-author (not on GKE, but on another paper concerning Advanced Donation – see here), Marc Melcher, is quoted in the Report and is characteristically thoughtful:

Dr. Melcher acknowledges the importance of cultural differences and corruption. He also suggests that these factors are not unique to transplantation, and that any time a non-governmental organization (NGO) enters a developing country to provide aid, there is risk of corruption and unintended consequences. This risk, however, does not stop NGOs from stepping in and trying to provide aid in a developing country. Dr. Melcher feels that Dr. Rees and the GKE should be viewed within the context of NGOs.

. . .

Perhaps Dr. Melcher best articulates the middle-of-the-road response. Noting that there are always unintended consequences in any such venture, he suggests a deliberate approach. “On a case-by-case basis it certainly seems like a win-win situation,” he says. “My bias would be to lead with ‘yes’ and go slowly.” 

The Report and Letters to the Editor are all free and available from the links below:

The AJT Report

Global Kidney Exchange: Overcoming the Barrier of Poverty (pages 2499–2500)

Lara C. Pullen

This month's installment of “The AJT Report” debates the benefits, ethics and sustainability of Global Kidney Exchange. We also look at efforts to shore kidney paired donation implementation in the United States.

Letters to the Editor

Kidney Paired-Donation Program Versus Global Kidney Exchange in India (pages 2740–2741)

1. Kute, R. M. Jindal and N. Prasad

Comment: Kidney Exchange to Overcome Financial Barriers to Kidney Transplantation (page 2742)

1. S. Baines and R. M. Jindal

Global kidney exchange: Financially incompatible pairs are not transplantable compatible pairs (pages 2743–2744)

1. A. Rees, S. R. Paloyo, A. E. Roth, K. D. Krawiec, O. Ekwenna, C. L. Marsh, A. J. Wenig and T. B. Dunn

Opposition to irresponsible global kidney exchange (pages 2745–2746)

Francis L. Delmonico and Nancy L. Ascher

People should not be banned from transplantation only because of their country of origin (pages 2747–2748)

Alvin E. Roth, Kimberly D. Krawiec, Siegfredo Paloyo, Obi Ekwenna, Christopher L. Marsh, Alexandra J. Wenig, Ty B. Dunn and Michael A. Rees

Open dialogue between professionals with different opinions builds the best policy (page 2749)

Ignazio R. Marino, Alvin E. Roth, Michael A. Rees and Cataldo Doria

Law & Markets Volume Is Out!

I’ve posted a few times about the Duke Project on Law and Markets (see here, here, and here), which was led last year by Joseph Blocher and me. Like the Custom and Law Project that preceded it, this Project culminated in an edited volume, published this time by Law & Contemporary Problems.  

Those wanting a more detailed description of the Project and papers in the volume can read the Foreword, but here’s a taste:

We started the Law and Markets Project at Duke Law School in the summer of 2015 in an effort to better understand the relationship between the legal system on the one hand and markets on the other. That relationship is central to understanding the nature and practical impact of legal rules, the degree to which those rules are shaped by economic forces, and the ways in which law and markets should or can operate independently. Further, it inevitably raises foundational and difficult questions. What are (or should be) the limits of markets? When, and through what mechanisms, should the law restrict the free exchange of goods and services? To what extent, and how, should the legal system address market driven inequalities in income, wealth, or access to goods and services like health care and education?

By addressing these questions, we hoped to generate interesting conversations that would deepen people’s understandings of their own and each other’s work and set the stage for collaboration going forward. We chose to focus our efforts on the Duke community, so as to help build those conversations and relationships. Given our colleagues’ broad and deep substantive and methodological expertise, this hardly felt like a limitation.

* * *

We held a symposium in early May 2016, the proceedings of which are collected in this issue. Duke faculty authored or co-authored all of the pieces, and the breadth of the topics demonstrates some of the many facets of the relationship between law and markets—from the sale (and tax treatment of) body parts to moral economies in the early Chinese land market; from the supply and demand of anticorruption enforcement to evaluating financial regulation; from markets and the environment to markets for sovereignty itself.

The volume table of contents are below, and the papers can all be downloaded here. The photos throughout this post are highlights from the Project’s workshop and reading groups, which are described in prior posts: here, here, and here.

I’ll be back in due course with more to say about my contribution to the volume, coauthored with Wenhao Liu (Stanford University, Department of Management Science & Engineering; Strategic Decisions Group International) and Marc Melcher (Stanford University, Department of Surgery): Contract Development in a Matching Market: The Case of Kidney Exchange.

 

Morality, Markets, and Contract Law at William & Mary

I’m looking forward to this upcoming event at William & Mary, Morality, Markets, and Contract Law, celebrating the publication of Nate Oman’s new book, The Dignity of Commerce: Markets and the Moral Foundations of Contract Law (University of Chicago Press 2017). I used Nate’s book in my contracts law seminar this year and recommend it for those interested in contract law theory and, in particular, for those interested in the intersections among contract law, markets, and morality.

The event is free and open to the public.

Hope to see you there!