Custom, contract, and kidney exchange

Duke Law Journal

Volumn 62, Issue 3, 2012, Pages 645-670

  Healy, Kieran ^a   Krawiec, Kimberly D ^a  

^a DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ALLOTRANSPLANTATION; ALTRUISM; ARTICLE; CONTRACT; CULTURAL ANTHROPOLOGY; DONOR; DONOR SELECTION; GIFT GIVING; HUMAN; KIDNEY TRANSPLANTATION; LEGAL ASPECT; LIVING DONOR; METHODOLOGY; ORGANIZATION AND MANAGEMENT; SOCIAL BEHAVIOR; TRANSPLANTATION;

ALTRUISM; CONTRACTS; CULTURE; DONOR SELECTION; GIFT GIVING; HUMANS; KIDNEY TRANSPLANTATION; LIVING DONORS; SOCIAL RESPONSIBILITY; TISSUE AND ORGAN PROCUREMENT; TISSUE DONORS; TRANSPLANTATION, HOMOLOGOUS;

EID: 84872222762     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (63)

1. See, e.g., MICHAEL J. SANDEL, WHAT MONEY CAN'T BUY: THE MORAL LIMITS OF MARKETS 122-25 (2012) (discussing the commercialization of blood collection in the United States and noting that "the market values that suffuse the system exert a corrosive effect on the norm of giving").
2. E.g., PETER P. EKEH, SOCIAL EXCHANGE THEORY 47-48 (1974).
3. Alvin W. Gouldner, The Norm of Reciprocity: A Preliminary Statement, 25 AM. SOC. REV. 161, 171, 174 (1960).
4. Hence the classic structuralist treatment of social exchange, modeling a grammar of norms of exchange with little expectation that actual exchanges would smoothly conform to the model's elegant ideal structure
5. See generally CLAUDE LÉVI-STRAUSS, THE ELEMENTARY STRUCTURES OF KINSHIP (Rodney Needham, ed., James Harle Bell & John Richard von Sturmer trans., Beacon Press rev. ed. 1969) (1949).
6. Toshio Yamagishi & Karen S. Cook, Generalized Exchange and Social Dilemmas, 56 SOC. PSYCHOL. Q. 235, 237 (1993).
7. BRONISLAW MALINOWSKI, ARGONAUTS OF THE WESTERN PACIFIC: AN ACCOUNT OF NATIVE ENTERPRISE AND ADVENTURE IN THE ARCHIPELAGOES OF MELANESIAN NEW GUINEA (1922)
8. Peter Bearman, Generalized Exchange, 102 AM. J. SOC. 1383, 1413 (1997) ("In chain generalized exchange. .. social solidarity is protected from subgroup cleavage and free riding, yielding a more secure form of social solidarity.").
9. Robb Willer et al., Structure, Identity, and Solidarity: A Comparative Field Study of Generalized and Direct Exchange, 57 ADMIN. SCI. Q. 119, 143 (2012).
10. See CHARLES TAYLOR, MODERN SOCIAL IMAGINARIES 23 (Dilip Gaonkar et al. eds., 2004) ("By social imaginary, I mean something much broader and deeper than the intellectual schemes people may entertain when they think about social reality in a disengaged mode. I am thinking, rather, of the ways people imagine their social existence, how they fit together with others. .. .").
11. See, e.g., John D. Scandling, Kidney Transplant Candidate Evaluation, 18 SEMINARS DIALYSIS 487, 492 (2005) (discussing the use of pre-transplant dialysis contracts that spell out the dialysis prescription and specify that noncompliance will disqualify the patient from transplant candidacy).
12. See, e.g., D.A. Mast et al., Managing Finances of Shipping Living Donor Kidneys for Donor Exchanges, 11 AM. J. TRANSPLANTATION 1810, 1810 (2011) ("The financial sustainability of such programs depends, in part, on consistent billing mechanisms that capture appropriate costs. .. and minimize financial and regulatory barriers to recipients, donors and institutions.").
13. See generally VIVIANA A. ZELIZER, THE PURCHASE OF INTIMACY (2005) (discussing "how people and the law manage the mingling of what sometimes seem to be incompatible activities: the maintenance of intimate personal relations and the conduct of economic activity").
14. Current U.S. Waiting List Organized by Organ, ORGAN PROCUREMENT & TRANSPLANTATION NETWORK, U.S. DEP'T OF HEALTH & HUMAN SERVS., http://optn.transplant.hrsa.gov/latestData/step2.asp? (choose the "Waiting List" category; select "Candidates" and "Overall by Organ" radio buttons) (last visited Oct. 27, 2012).
15. Nat'l Kidney Found., 25 Facts About Organ Donation and Transplantation, UNC KIDNEY CTR., http://www.unckidneycenter.org/25facts.pdf (last visited Oct. 27, 2012).
16. Itai Ashlagi et al., The Need for (Long) Chains in Kidney Exchange 2 (Nat'l Bureau of Econ. Research, Working Paper No. 18202, 2012).
17. See Michael A. Rees et al., A Nonsimultaneous, Extended, Altruistic-Donor Chain, 360 NEW. ENG. J. MED. 1096, 1096-98 (2009) (describing this process).
18. See David J. Abraham et al., Clearing Algorithms for Barter Exchange Markets: Enabling Nationwide Kidney Exchanges, 8 PROC. ACM CONF. ON ELECTRONIC COM. 295, 297 (2007) (describing algorithms used in kidney exchange).
19. Compare, e.g., S.E. Gentry & D.L. Segev, The Honeymoon Phase and Studies of Nonsimultaneous Chains in Kidney Paired Donation, 11 AM. J. TRANSPLANTATION 2778, 2778 (2011) (contending that, in mature registries, domino-paired donations "give[] an equal or greater number of transplants than NEAD").
20. John P. Dickerson et al., Optimizing Kidney Exchange with Transplant Chains: Theory and Reality, 11 PROC. INT'L CONF. ON AUTONOMOUS AGENTS & MULTIAGENT SYS. 711, 715- 16 (2012).
21. Nobuyuki Takahashi, The Emergence of Generalized Exchange, 105 AM. J. SOC. 1105, 1106-09 (2000).
22. The back-and-forth of gift exchange is often thought of as being at bottom a utilitarian calculation of credits and debits. This was the view of anthropologist Bronislaw Malinowski.
23. James Carrier, Gifts, Commodities, and Social Relations: A Maussian View of Exchange, 6 SOC. FORUM 119, 120 (1991) ("Malinowski put forward a model that portrayed exchange 'as essentially dyadic transactions between self-interested individuals, and as premised on some kind of balance'.
24. Quoting Jonathan Parry, The Gift, the Indian Gift and the 'Indian Gift, 21 MAN 453, 454 (1986)
25. See PETER M. BLAU, EXCHANGE AND POWER IN SOCIAL LIFE 259-60 (1964) (providing examples of exchanges that occur among members of a group and between a member of the group and the group itself).
26. See PIERRE BOURDIEU, PRACTICAL REASON: ON THE THEORY OF ACTION 94 (Randall Johnson trans., Polity Press 1998) (1994) ("[I]n practically all societies, it is tacitly admitted that one does not immediately reciprocate for a gift received. .. .").
27. PIERRE BOURDIEU, THE LOGIC OF PRACTICE 105 (Richard Nice trans., Polity Press 1990) (1980) ("[I]f it is not to constitute an insult, the counter-gift must be deferred and different, because the immediate return of an exactly identical object clearly amounts to a refusal.").
28. See KIERAN HEALY, LAST BEST GIFTS: ALTRUISM AND THE MARKET FOR HUMAN BLOOD AND ORGANS 23-35 (2006) (describing the role of ideals of gift exchange in the creation of a socially legitimate transplant system in the 1970s and 1980s)
29. See, e.g., Gift of Life's First Multi-Site Paired Kidney Exchange, GIFT OF LIFE DONOR PROGRAM (June 24, 2011), http://www.donors1.org/about/media/press1/pairedkidney (describing a successful transplant chain which resulted in kidney transplants for five people).
30. Living Donors, NAT'L KIDNEY REGISTRY, http://www.kidneyregistry.org/living_donors.php (last visited Oct. 27, 2012) (invoking the "gift of life" and also noting that "Good Samaritan donors participating in the Registry will be assured that:. .. [the national kidney registry] will work hard to create the longest chain which maximize[s] [a donor's] gift by facilitating as many transplants as possible").
31. S.E. Gentry et al., The Roles of Dominos and Nonsimultaneous Chains in Kidney Paired Donation, 9 AM. J. TRANSPLANTATION 1330, 1332, 1334-35 (2009).
32. Kevin Sack, 60 Lives, 30 Kidneys, All Linked, N.Y. TIMES, Feb. 19, 2012, at A1.
33. David B. Leeser et al., Living Donor Kidney Paired Donation Transplantation: Experience as a Founding Member Center of the National Kidney Registry, 26 CLINICAL TRANSPLANTATION E213, E217 (2012).
34. ERIC A. POSNER, CONTRACT LAW AND THEORY 19 (2011).
35. See, e.g., Living Donor Kidney Center, DEP'T OF SURGERY, WEIL CORNELL MED. COLL., http://www.cornellsurgery.org/patients/services/livingdonor/faq-kpd.html (last visited Oct. 27, 2012) (including "Are There Donor Agreements?" in the frequently asked questions section of the website and informing prospective bridge donors that "[d]onors who choose to enter a [Kidney Paired Donation (KPD)] registry are not obligated to sign an agreement" but that they "are asked to make a firm decision to participate" because "[i]f a donor were to backout at the last minute, this would 'break the chain'").
36. F.K. Butt et al., Asynchronous, Out-of-Sequence, Transcontinental Chain Kidney Transplantation: A Novel Concept, 9 AM. J. TRANSPLANTATION 2180, 2183 (2009).
37. Tayfun Sönmez & M. Utku Ünver, Market Design for Kidney Exchange 2 (Apr. 25, 2011) (unpublished manuscript), available at https://www2.bc.edu/~sonmezt/kidneyexchange-survey-2011-04-25.pdf ("Since kidney donations are gifts,. .. it is not legal to contractually bind a donor to make future donations.").
38. National Organ Transplant Act (NOTA), 42 U.S.C. §§ 274-274e (2006 & Supp IV. 2011).
39. ROBERT E. SCOTT & JODY S. KRAUS, CONTRACT LAW AND THEORY 41 (4th ed. 2007).
40. NOTA § 301(a), 42 U.S.C. § 274e(a).
41. Charlie W. Norwood Living Organ Donation Act (Norwood Act), Pub. L. No. 110-144, 121 Stat. 1813 (2007) (codified at 42 U.S.C. §§ 273b, 274e (2006 & Supp. IV 2011)).
42. ERIN D. WILLIAMS ET AL., CONG. RESEARCH SERV., RL 33902, LIVING ORGAN DONATION AND VALUABLE CONSIDERATION 4 (2010) (observing that the Norwood Act relieved concerns that paired donations violate NOTA).
43. See Norwood Act § 2, 121 Stat. at 1813 (codified at 42 U.S.C. § 274e) (stating that the prohibition against transfer of organs for valuable consideration "does not apply with respect to human organ paired donation").
44. INS v. Nat'l Ctr. for Immigrants' Rights, 502 U.S. 183, 189 (1991).
45. NOTA § 301, 42 U.S.C. 274e.
46. S. REP. NO. 98-382, at 2, 4 (1984), reprinted in 1984 U.S.C.C.A.N. 3975, 3976, 3978.
47. H.R. REP. NO. 98-1127, at 16 (1984) (Conf. Rep.), reprinted in 1984 U.S.C.C.A.N. 3989, 3992.
48. Legality of Alt. Organ Donation Practices Under 42 U.S.C. § 274e, 31 Op. O.L.C. 1, 2 (2007).
49. WILLIAMS MULLEN, POSITION STATEMENT: KIDNEY PAIRED DONATIONS, KIDNEY LIST DONATIONS AND NOTA § 301, at 3 (2006) (on file with the Duke Law Journal)
50. See generally Uri Gneezy et al., When and Why Incentives (Don't) Work To Modify Behavior, 25 J. ECON. PERSP. 191 (2011) (reviewing the crowding-out literature).
51. See Roland Bénabou & Jean Tirole, Incentives and Prosocial Behavior, 96 AM. ECON. REV. 1652, 1652 (2006) (suggesting that motivation to perform prosocial behavior can be described by a utility function with three components: the value of extrinsic rewards, the level of enjoyment of an activity, and image-both self-image and the perceptions of others).
52. In any event, large-scale studies on the activity most closely related to organ donation-blood donation-suggest that monetary incentives do not crowd out prosocial behavior
53. See, e.g., Nicola Lacetera et al., Will There Be Blood? Incentives and Displacement Effects in Pro-Social Behavior, 4 AM. ECON. J.: ECON. POL'Y 186, 186 (2012) (presenting evidence from roughly fourteen thousand American Red Cross blood drives and concluding that "economic incentives have a positive effect on blood donations without increasing the fraction of donors who are ineligible to donate").
54. Lorenz Goette & Alois Stutzer, Blood Donations and Incentives: Evidence from a Field Experiment 15-16 (Inst. for the Study of Labor, Discussion Paper No. 3580, 2008) (presenting evidence from a study of more than ten thousand previous blood donors and finding that offering lottery tickets in exchange for donated blood increases donations without negative selection effects).
55. But see Carl Mellström & Magnus Johannesson, Crowding Out in Blood Donation: Was Titmuss Right?, 6 J. EUR. ECON. ASS'N 845, 848-56 (2008) (presenting evidence of a drop in blood donations among women, but not men, when subjects were offered fifty Swedish kronor (roughly seven dollars) to donate blood, though donations returned to normal levels when subjects were given the option to donate the money to charity).
56. Iris Bohnet et al., More Order with Less Law: On Contract Enforcement, Trust, and Crowding, 95 AM. POL. SCI. REV. 131, 132 (2001).
57. See, e.g., Stephen A. Smith, The Normativity of Private Law, 31 OXFORD J. LEGAL STUD. 215, 241-42 (2011) (arguing that private law influences behavior, not only through setting incentives, but also through setting norms, and invoking nominal and punitive damages as examples).
58. The intentional use of vague, unenforceable, or otherwise problematic contract terms, even when both contracting parties are sophisticated actors aware of the offending term, is well documented, though the reasons for this phenomenon remain poorly understood
59. See, e.g., Stephen J. Choi et al., The Evolution of Contractual Terms in Sovereign Bonds, 4 J. LEGAL ANALYSIS 131, 136 (2012) ("[E]ven if the legal terms of a sovereign debt contract are not enforceable by courts, they can matter.").
60. Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 AM. SOC. REV. 55, 65-66 (1963) (explaining why some businesses choose to use contracts even when they are not necessary to ensure compliance).
61. RENE ALMELING, SEX CELLS 110-144 (2011)
62. See Robert E. Scott, The Promise and the Peril of Relational Contract Theory 9-10 (on file with the Duke Law Journal) (reviewing the literature on formal and informal enforcement mechanisms in contract and arguing that economic-relationalist research largely assumes "that the relationship between formal contract and informal norms [i]s antagonistic: the introduction of formal contract and its 'high-powered' sanctions tended to crowd out the otherwise powerful informal forces" of contract enforcement (footnote omitted)).
63. John W. Meyer & Brian Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, 83 AM. J. SOC. 340, 357 (1977).