Taboo Trades
Taboo Trades
Consentability with Nancy Kim
Nancy discusses the limits of consent. I contemplate putting silicone horns on my head.
Nancy Kim is the ProFlowers Distinguished Professor of Internet Studies at California Western School of Law and visiting Professor, Rady School of Management at UC San Diego. Professor Kim is a former chair of both the section on Commercial and Related Consumer Law and the section on Contracts of the Association of American Law Schools (AALS). She is an elected member of the American Law Institute and the Chair of the Subcommittee on UCC Article 1 of the ABA Business Law Section. Her scholarly interests focus on culture and the law, contracts, women and the law, and technology. She is the author of Consentability: Consent & Its Limits (Cambridge Univ. Press).
Helpful links for this episode:
1. Nancy S. Kim, Consentability: Consent and its Limits https://www.cambridge.org/us/academic/subjects/law/contract-law/consentability-consent-and-its-limits?format=PB
2. Cook, Philip J. and Krawiec, Kimberly D., Kidney Donation and the Consent of the Poor (January 20, 2020). Loyola Law Review, New Orleans, Vol. 66, 2020, Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3687419
You know, putting silicone horns on my head versus putting silicone in my chest. Right. I mean, we look at I mean, I think the initial reaction of most people would be, why does somebody want horns on their head? That's weird. Hey, hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravick. Well, welcome, everybody. Today I have with me Nancy Kim, who is the Pro Flowers Distinguished Professor of Internet Studies at California Western School of Law and a visiting professor this term, and it sounds like many terms, at the Rady School of Management at UC San Diego, and importantly for our purposes, the author of a very interesting book called Consentability, Consent and Its Limits. I'm actually holding it up here to the camera for those who are watching, and I highly recommend it. So we're going to talk a little bit about the book. But first, Nancy, I wanted to talk a little bit about you because we've actually never met. I know you from your work. but we've never actually met, at least that I remember. Am I forgetting a meeting? I don't think so.
SPEAKER_01:I don't think so, no.
SPEAKER_00:No, right, okay. I would remember meeting you, so. Okay, I feel like I would remember meeting you too. And so as I was doing this, so you have a really interesting background that I was unaware of before I began researching this for today, because you're a professor of internet studies. And I looked at him like, okay, this must be a different Nancy Kim, because my Nancy Kim is a taboo trades gal, and this person is, It does all this other really cool stuff. But I mean, obviously, like so many law professors, you have a variety of identities and interests, and this is just one of them. So can you, I mean, tell us a little bit about yourself and sort of, you know, you were in practice for quite a while, I noticed. And so that is, you know, also an interesting aspect of you that I didn't know about. And then we'll talk about how you came to the book. Sure.
SPEAKER_01:Well, actually, when I first thought about becoming an academic, my interest was in the area of women's rights as human rights. And so I wrote my master's thesis on this topic, and I was volunteering at the Asian Pacific American Legal Center. And I was helping battered immigrant women get restraining orders. And then they would come back a month later, and I would... you know, why, why were they coming back? And it wasn't because, you know, there was this emotional attachment, it was financial. And so I realized I'm, I had to look at my situation. You know, I had student loans. I was living in a studio apartment. I had this very, you know, valuable law degree, but I thought, okay, I'm not exactly a great role model here for these women as far as empowerment. And so I thought I need to figure out, you know, fact is we live in this capitalist society. You know, it's driven by economic, you know, sort of the kind of economic situation. And I needed to have a better handle on that. the practical part of living in this society.
SPEAKER_02:And
SPEAKER_01:so I went and I got a job in Silicon Valley. I worked at a law firm. I went in-house. As you noted, I worked a number of years in Silicon Valley as an attorney, but also on the business side, on the business development and marketing side. And then I went back to like after like 10 years of practice into academia. And this is a variety of roles. I was, you know, in-house. My last position was as vice president of a software and services company.
SPEAKER_00:Wow. So, all right, you have a fascinating background, none of which I, none of which I knew. I mean, this has actually been one of the funnest things about doing this podcast is that I start researching guests, often people that I think I know really well and discover so much about them that I didn't know. But, okay, so let's talk about the book and sort of how you came to that and why you thought that there was a need for it. What was the void, I guess, that you thought that you needed to fill with this book?
SPEAKER_01:So when I got back into teaching the second time, my area was contracts. And I was writing a lot about click agreements because I came from Silicon Valley and a lot of this had to do with internet contracts and so forth. And the way that law professors talked about consent to contracts seemed to me very kind of strange, you know, and then that combined with my prior research in the area of women's rights and human rights and this idea of consent, they seem to be kind of at odds. Like, what are we talking about when we refer, when we use the term consent in the context of contracts versus when we talk about it in the context of sexual relations, for example, or human rights, like things like people that people have to do, like in the context of like labor exploitation, for example. And so I was just really fascinated with this kind of, the amorphous nature of this term that is so ubiquitous in the law, right? Consent. surgery, just completely for non-therapeutic reasons versus why do we prohibit other types of transactions where you could actually do something good for society like sell your kidney. You can donate your kidney, but you can't sell it And, you know, when you think about it, it really doesn't seem to make much sense because you're paying somebody to, let's say, cut your perfectly fine and functional face or a breast, but you cannot get paid to give somebody an important organ that will help them live and will help you live better. And so that seemed to be very strange. And, you know, in a lot of ways that... you know, a lot of other questions that sort of don't seem to make sense. If you've come from, you know, years of practice into the world of academia, you realize in academia, things are very sort of idealistic. And you realize that's not really the way I, you know, I saw the way, you know, women made a lot of compromises for financial reasons, especially if they had children to support. And you realize, hmm, is, you know, there are some things worse than selling children. your body for money. That sounds terrible to say to some people, but they've never been in those desperate situations, maybe. So this is a question I really wanted to look at, but I also didn't like that. I guess the traditional kind of market approach, which was everybody is in the same position and they have equal bargaining power and it's consent is like everybody is in the same strong position when it comes to consent. I didn't like that either. And that's the kind of rhetoric I heard from the free market folks on the contract side, right? Where, hey, you agreed to it, right? You consented. And I thought that's not exactly consent either. And so that's kind of how I got into the subject.
SPEAKER_00:Fascinating, and I wanna return to this thread that you alluded to about sort of the limited choices that the poor face, right? Especially poor women, right? And I agree with you that, you know, I sort of feel like that often gets lost in discussions about what we allow people to consent to and what we don't. There is sometimes, I think, a sort of idealism about what the choices are and how bad they are, right? And I mean, it comes up a lot in a lot of contexts, but, you know, certainly in connection with sex work where people are like, well, who would choose that? Well, people who have other really bad options. might choose that. But as you say, consent is a complicated and messy thing and it's not as if that would be sort of the first thing on the menu that some people might choose if they had an infinite number of good choices at their disposal, but they often don't. So I guess one thing I wanted to start with is the threshold question of the title, consentability, right? And so let's talk about what that is. It's different from consent. What is consentability and sort of how did you pick that as your overarching organizing principle?
SPEAKER_01:Well, because I was trying to explain this issue of Why is it that we're allowed to consent to some things and not others? And it was kind of hard to explain in just a word what I meant by that. You know, this issue of just not just... Is it allowed? Because that you could just say, is it legal? But also are you able to do it? Are you given what consent is and what it should be, what it means to a lot of people? Is this something you're capable of doing given the circumstances? So I want to capture both the legality as well as the sort of capability of consenting to
SPEAKER_00:something. Yeah. This is a, I mean, we're going to keep talking about this. This is a super hard question, I think. And I'm not sure that everybody appreciates how difficult it is. I mean, maybe they do, and I'm the only dummy who sort of came to it late. But I mean, at one point, Phil and I, Phil Cook and I, my co-author on a number of papers, you know, we sort of tried to take a deep dive into some of the questions that you raise in the book that I want to talk about. And we loved it, but we found it so difficult difficult, actually, that at one point we were sort of like, well, let's just write about football. That's easier. That's, you know, compared to some of the body modification cases and others that you talk about, that seemed really straightforward. So, I mean, let's talk about some of those cases. I mean, one of the things that I find fascinating is your categorization of these hard cases, right, which you have three types, which I'll get into in a minute, but they're self-directed activities, novel or experimental activities, and bodily integrity exchanges. And before we talk about any specific category, could you tell me a little bit about what makes them hard? Is there some unifying principle with these hard cases that renders them conceptually difficult?
SPEAKER_01:Well, that's what's interesting, is that intuitively, I think, if I were to mention any one of the examples I give that fall into one of these three categories, everyone would say, ooh, that's tough. But why? Because we get a sense that the consent wasn't either voluntary in the sense that if we were in an ideal situation, in an ideal world with all the choices in the world, we would not choose to do this thing, or we, for some reason, didn't know enough about it So we made the wrong choice in the sense that if we had known better at the time, we wouldn't have chosen the thing. So there's something and that gets the question of consent. There's something about the consent that we feel wasn't exactly robust. bust, right? And then I felt you can't really answer that question without getting to what do we mean when we talk about consent, right? What is that? What is that thing that we feel is not strong enough? And so it falls into one of these categories. And so what is consent? Consent is typically, we mean it's an absence of coercion, right? It's voluntary. But in some cases, we also mean that you knew all the important information. Okay. The question of course is how much voluntariness do you need and how much knowledge do you need? And a lot of times what we end up doing, especially in contract law is just looking at the third condition, which is the manifestation, right? The fact that you clicked or you signed your name, but that doesn't suffice when we're talking about surgery. And why is that? Well, because we intuitively know we need more robust consent in those situations. So why? What is it? So that's what I was trying to figure out with my framework.
SPEAKER_00:Okay, great. So can we start with self-directed activities? I was fascinated by this part of the book, I'm telling you. In fact, as I was rereading it over the weekend, I was just like, oh my goodness, you know, this is so, some of the examples which we're going to talk about are just so amazing. I mean, so can you first just talk about what is a self-directed activity, sort of how do you define that? And, you know, I want to talk about a couple of examples. The ones that you spend the most time on are suicide and body modifications, or at least those are the two that jumped out at me, you know, to me as being really interesting. But so what are self-directed activities? What sort of connects them?
SPEAKER_01:So self-directed activities are ones that, you know, one does to oneself, and those are often run up against this kind of, I want to call it sort of the ideal libertarian perspective, which is that it's your choice. You can do whatever you want. This idea that we live in this bubble unaffected by social pressures and cognitive biases and so forth. So those are the self-directed activities because nobody else is doing them to us. And so there are two types. One is where the act or the activity is intended, we intend, the person doing it intends to harm or hurt themselves or diminish their capabilities. And then the other it's because the activity that some might consider to be harmful other people, that individual is doing because they are intending to better themselves, improve themselves in some ways, even if their idea of improvement is at odds with what society considers to be an improvement or
SPEAKER_00:an
SPEAKER_01:enhancement.
SPEAKER_00:OK, great. And if I now correct me if I'm wrong, because I might be misremembering this part. Was there also another category? Like where did I remember you discussing things like smoking and alcohol consumption? Where did they fall? Were they under these self-directed activities?
SPEAKER_01:Yes. Yeah. OK. Those were self-directed because nobody is, you
SPEAKER_00:know. Right. But are they are they either of these self-harming or self-improving? I mean, I guess they're not self-improving. Are they self-harming? Right.
SPEAKER_01:Advertisers are a big, big part of that.
SPEAKER_00:Right, right. Okay, so let's talk a little bit about suicide. I mean, sort of one thing that interested me a lot about each of your examples is that, you know, one can start with an example that at some level seems clearly problematic or one that we need to think more carefully about, and then that immediately leads us to something else that is not as obvious or that, for me at least, that I had a different intuition about than the one I started with, if that makes any sense. But I mean, so suicide is an example, right? We start with suicide and, you know, leaving all else aside, might think, well, you know, this is a person who either, first of all, is having some sort of temporary problem, right? And sort of if they could foresee into the future and know that that problem would be relieved, they wouldn't make this choice, right? Or someone with mental health issues, and if we treat those mental health issues, again, they wouldn't make this that choice. But then as you say, that leads us very quickly to the case of assisted suicide, for example, people who are perhaps facing a terminal illness, perhaps a very painful terminal illness, where we might say, you know, doesn't honoring personal autonomy, isn't that a rational choice for many of those people? And sort of how do we address that? So can you talk a little bit about about sort of this range of suicide choices. I'm putting that in quotes.
SPEAKER_01:Yeah. And I think you're exactly right to think of it in terms of why is it that we feel one way when the same act is in one context and not in the other. And that's because there are And that's why I wanted to come up with a way to think about it. It has really to do with things like primarily about the issue of regret and your future self. A big part of consent has to do with, is this a decision that is going to cause regret? Is this something that you are depriving your future self of a certain capability or a certain potential? And in the case of assisted suicide, it may be– and I have a different framework that sort of– there's a hierarchy of autonomy interests at stake. And at the very top, I guess the most kind of vital is your bodily integrity. And it's by degrees, meaning that if it's a permanent deprivation of your bodily integrity– You pretty much can't get that level of consent that would be robust enough to justify it, like in the case of suicide. Unless, of course, the intent is to free you of incredible pain. If the pain is temporary, that's one thing. But if it's excruciating pain that is not going to end, it's a type of torture that we... know on the scale of sort of the hierarchy of autonomy interests and the potential for regret um is there there seems to be very little chance of regret if in fact we know there is no uh relief but if the pain is temporary then we're not going to let you do that or because you're going to regret it i mean or you know if you live to you know right to know better. And I think that's another thing. We need to be very careful about idealizing the sort of romantic, this sort of romantic side of death or sacrifices or things that we do and really look at it in terms of, are these things that stripping away, and what I'm referring to are things like a war, right? A signing up to serve in the military. you know, athletic heroes, right? We really need to look at it in terms of what are the costs to your future self when you engage in a certain activity.
SPEAKER_00:So and what about so and then the other example that of this, these self directed activities that really struck me were the body modifications. So, and again, I, you know, there's also there's this continuum of things that we sort of look at and think are It's not that we don't think they're problematic. You and I at least do consider them problematic. But society as a whole certainly thinks that adults should be allowed to consent to them, right? Things that we consider improving. All sorts of plastic surgery, which, as you note, is disproportionately used by women, although it's growing among men as well. But then there are these other less common body modifications that I want to get you to talk about as well, because many people might not be familiar with those at all. that people look at askance. And one of the most interesting parts of the book is that you actually say, you know, that's flipped on its head, right? You know, it's actually the unconventional ones that are in many ways less problematic. So I don't want to put words in your mouth. Can you just sort of explain a little bit about body modifications and sort of what the range of them is?
SPEAKER_01:Yeah, no, actually, I think you did a great job with that. So, you know, with body modification, we could be talking about some something as sort of ubiquitous or common as a tattoo. And then there are other types of much more, I guess, dramatic modifications like horns. Some people have implanted horns, silicone horns. Other ones that are becoming not exactly common, but you read about more often are chips, different types of chips that are implanted in people to make it easier for you to open doors and get a drink out of a vending machine.
SPEAKER_00:Because I'm watching Snowpiercer right now. I know this. Are you, are you watching it? I'm not actually. They have the chips embedded. It's a big part of the, it's a big part of the first few episodes at least.
UNKNOWN:Yeah.
SPEAKER_01:Well, you know, and these are things that we really should think about because as you know, society is, evolves. And as companies try to keep more control and track their employees' whereabouts, and we've seen it with the pandemic, we're going to want to think about what we allow and what we don't allow. Should we allow companies to embed chips in their employees so that they can keep track of them the way we now allow them to track their whereabouts with their phone or the computer or whatever it is? So these are all things that we really should think about.
SPEAKER_00:And then there
SPEAKER_01:are...
SPEAKER_00:So the chips, except for television and movies, this is the first I've learned about it. So Are people, so are they mostly now you, I mean, so it exists, right, in real life, not just on TV. And are people mostly, it's for work, so employers are doing it, or are people doing it to themselves just for some other purpose? I don't know, to track their exercise the way my, I don't know why a Fitbit won't just do for them, but whatever.
SPEAKER_01:Well, there was a company in, I think it was Sweden, I think there's one in the U.S. I mentioned it in my book. This is, you know, I wrote the book like three years ago, so I forget the Exactly. But there are at least two companies out there, and probably more by this point, where they asked their employees. And again, this goes back to the issue of consent. They asked their employees to do this, and they got a lot of publicity for it because it was in some of the papers. And they were sort of tech forward or tech companies. And so the idea, there was this kind of... peer pressure, right? There was a chip party and people were going to get implanted at the company chip party. And if you're the employee who didn't want to do it, well, nobody's forcing you exactly, but isn't there a kind of coercion that takes place? Are you actually doing it voluntarily if the CEO of the company is there first in line and knows who's at that chip party, right? We're not talking about thousands of employees. Yeah. And so that's what I was kind of, that's what I wanted to get at. What, you know, at what point does something that is self-directed become sort of, is there a consent to all self-directed? Should we say that any self-directed activity is the individual has consented to? And I don't think we should, because I think that's too simplistic. And I think that's not a very thoughtful definition of consent.
SPEAKER_00:Right, right. And so I can't remember what I wanted to ask you about the body modifications, but so can you explain why you ultimately come to the conclusion that the unconventional modifications are potentially less problem because, you know, those are the ones that we look at first and leaving aside, leaving aside for just a minute, I guess, the employer asking employees to do something because that has some, you know, definite concerns about coercion. But, you know, putting silicone horns on my head versus putting silicone in my chest, right? I mean, we look at, I mean, I think the the initial reaction of most people would be, why does somebody want horns on their head? That's weird. And you kind of, I think, turn it on its head in this very clever way. So can you explain that? Well, the
SPEAKER_01:idea is what is consent, right? What does it mean to consent? It means that you made this decision and it's something that you really deliberated on and you didn't feel pressure to do it. Nobody said, hey, I want you to implant horns in your head. And assuming that you don't have any sort of impairment, in which case that goes to the knowledge condition. But let's assume that you're mentally fit, able to make your own decisions about other aspects of your life, and you decide this is what you want. To me, that is a much more robust consent because you didn't have this peer pressure. Let's say that You feel bad about the way you look because you went to the beach and somebody made a comment about your chest. And so you are doing this not because you decided you wanted to, but because of societal pressures. And to me, that is a less robust form of consent. And one that is rife with sort of potential regret, because in the future, you know, society might change. You might find another group of friends, who knows what, but it wasn't something that came from within, right? It was your decision to get horns. That was yours. In fact, people try to dissuade you. Your parents, I'm sure, try to dissuade you, but you really wanted, you know, and as long as There is a sort of a process where it's done safely and there's enough time. It's not impulsive. That's one thing. Because the fact is it's very intrusive to your body. So that's the other thing. If it's intrusive and it's permanent, there has to be enough time and we have to be careful that the person has enough information. They might not have thought about how they're going to feel about this when they're 40. They may not really understand kind of how... the material might degrade or it might require certain maintenance. There are things that they may not have thought about. It's same with breast implants though. A lot of women who got them, they didn't realize they needed to get them replaced every 10 years. And that's a cost they didn't think about. That's an injury that they hadn't thought about. So to me, it's no different other than the person who got the horns, they weren't subject to peer pressure. That was something they, so the voluntariness condition is much more robust.
SPEAKER_00:Right,
SPEAKER_01:right. I just want to make sure that the knowledge condition is robust as well. It's robust as well, yeah. Because there's less information
SPEAKER_00:about it. About what life is like going, what it's like to go through life with horns that you've attached, yeah. And I mean, another, one of the parts of the book that I thought was incredibly powerful was sort of the gendered aspects of our views. And I mean, it's not only, it comes up most strongly with biopsy. modifications but not only right i mean as you point out um there you know um sort of cosmetic surgery is obviously something and sort of the the the need the the pressure to look younger or prettier or whatever it is right um is felt more keenly by women um and therefore affects um consent, the robustness of it as you're envisioning it, but also our concern about transactions that are degrading in some way. There are, as you point out, there's lots of degradation of the female body that we sort of take in stride. And so there are obvious sort of class issues with sort of all of these transactions that we'll come to, but there are very clear gender implications as well. Even more of them than I had considered, and I hadn't had considered them, but even still, you sort of opened my eyes to ways of looking at these transactions.
SPEAKER_01:Well, going back to the issue with the horn, the silicone in the horns versus in the chest, when you get, you know, as far as the effect on society, it has less of a negative effect. I think when, when somebody gets the horns, then when they get the, the, the, the, the chest implant, the breast implants, because you're not then putting pressure on, you're sort of contributing. I know that there's this, you know, a whole rhetoric of, we should allow, you know, we shouldn't shame people for getting cosmetic surgery at the same time. It's a, it's, it's not helping and it's actually contributing to the societal views about what women should look like in a very negative way. In a way that somebody getting horns does not, right? They're not adding pressure to others to get them because they're very unique, right? Whereas this is, they're conforming to stereotypes. So then the person who has kind of, not done anything, they start to stand out. And you see it in a lot of areas with women, right? You see it with hair color. That was the big one, right? And then you see it with breast implants. You see it with everything. And so the bar keeps rising, which means that everyone kind of has to do it. And who gets left out? The people who can't afford it, And also there's a whole race, in addition to sexism, there's a classism, but there's also racism, right? As far as the type of features that are promoted and sort of, you know, valued. And I think that in this talk of we should let people do whatever they want with their bodies, it's funny, we don't allow that in other aspects of life. sort of like, we don't say, well, let people litter if they want to, or, you know, let's people, let people be, you know, we don't, that same rhetoric doesn't apply when we're talking about other things, but somehow when it comes to let women do things that affect other women in this very profound and, you know, dangerous way, women have died for no reason other than to look better. That to me sounds like we're failing somehow as a society when we don't take a harder look at that in the same way that we're taking a harder look at, you know, let's say racism in our society, institutional racism and things that we've accepted for so long. We need to also take a look at this, you know, profound gender bias, sexism in our society.
SPEAKER_00:Right, right. Okay. So I'm going to, I'm going to come back to, to what you think we should do about all of these complicated activities until after we discuss, I guess, some more of the categories. And the next one that you have is novel or experimental activities. And you begin with the example of Elon Musk and his flights to Mars. This, to me, is a very timely topic. I mean, my guest last week was actually Josh Morrison, who is the founder of One Day Sooner, which advocates for COVID challenge trials, purposely infecting subjects with coronavirus in order to sort of, you know, speed up the development of a vaccine. And so, I mean, I was trying to figure out if this falls into this category. I think most people would put it in that category. I think Josh would insist that it doesn't belong there, certainly from a risk perspective, right? Because, I mean, his point entirely really is that the risk is in line with other activities that we permit people to do all the time, including childbirth and kidney donation and other things. But certainly it's, it must be novel, right? Because even though it's not the first challenge trial, we have had others. It certainly is something that most people have never considered until the current pandemic. At least neither Josh nor I, as we discussed last week, knew that there had been challenge trials for other things, actually, until the current pandemic. So tell me a little bit then about what you had in mind when you were coming, you know, drafting this category of Okay.
SPEAKER_01:So that category is different from the other two in the sense that, I mean, each of them are distinct in their own ways, right? But the concern there is with respect to the lack of knowledge, the knowledge condition, right? Not so much. I mean, of course, there are issues having to do with maybe voluntariness, but really it's more about knowledge. How much information do you have? And the counter to this and the way I look at consent is typically when most people talk about consent, they look at it in terms of lack of coercion. But I think it's more than that. You have to look at it not just as the person who is agreeing to do something, but the person who is benefiting from the consent or who's seeking the consent. The consent seeker, I refer to them. Because I don't think that we can say there's consent if, let's say, there's an absence of coercion, but the other person has put pressure somehow or has not given full information. Who's benefiting? Because the concern there is with what I refer to as the opportunism corollary or exploitation, right? And so... My concern would be who is going to volunteer. We don't want suckers, right? We don't want a system that preys upon suckers. And so that is something we need to really be careful about. Who, because traditionally they have been groups that have been, you know, subordinated groups. Like I, you know, in my book, I refer to a lot of, you know, really bad kind of medical experiments for greater good that we realized, okay, that was just another way to say exploitation for the benefit where fewer sacrifice and they tended to be, you know, the word, you know, mostly Black people, right? Right, right. Who were sort of either forced to or not, you know, maybe not physically, but were not given full information about what they were, like Tuskegee and so forth, you know, what the experiments entailed. So we need to be careful about how these are administered. And, you
SPEAKER_00:know... Does it matter to you... I'm sorry, I didn't mean to interrupt you. Does it matter to you... Would you look at, say, Elon Musk's attempt to recruit people to fly to Mars, presumably for his personal profit, I mean, and that of his investors, differently than, say, an attempt, I mean, assuming that we're not lying to people as we did with Tuskegee, right? Something, you know, for the development of a vaccine that would benefit society as a whole. Are those two things different or the same? Well, from the standpoint...
SPEAKER_01:Yeah, the standpoint of consent, which is just one part of consentability, they're the same. But from the other point, which is the societal benefit, which is the other part of it, which I don't spend a whole lot of time on in the book, that would be different. But if there is still not enough consent, then the societal benefit needs to be much greater. And we need to own up to that. Because I think what happens is we say, well, they consented. Right. Consent pretty much washes away any kind of guilt that we have as a society. And I don't think it should if it's not actually consent. So we call some things consent when they're really not. So if there is more social benefit, a greater societal benefit, we need to own up to that. Hey, this is what we did. You know, we can't say, well, they consented and therefore it was okay.
UNKNOWN:Right.
SPEAKER_01:You know, we owe, we owe people. And, you know, I talked about on the basis of like who are also the young, right? The young and those who are maybe not wealthy, let's say, who tend to join the military, for example. They volunteered, yes, but we still owe them because the consent conditions are not as robust because of the choices that, you know, that people sign up for. for the military have, you know, and they're very happy to do it and so forth, but that doesn't relieve us. It should not relieve us of our obligation. Okay. So yes, these people might be signing up for these trials, but that doesn't relieve us of our obligation to make sure that we're not giving them things that are not sort of, that we have not tested to the best, you know, to the point we feel comfortable with. that we would be willing to inject ourselves, we meaning the people who are administering the
SPEAKER_02:shots.
SPEAKER_01:And so that's another big test. Is the person who is doling this out, are they willing to join
SPEAKER_02:the
SPEAKER_01:first? Are they willing to be the first? And Elon Musk has made very clear he's not willing to get on that spaceship to Mars because he has people counting on him down here. So at least he's transparent about it. You're going to die. He says, you go, you're going to die. And I can't die. I have too many kids. He said that. And you think, well, that sounds terrible, but I appreciate the transparency. It only sounds terrible because he's saying what he should. And I actually think that's much better than just using this hero rhetoric.
SPEAKER_00:Yeah,
SPEAKER_01:yeah. Hero rhetoric, I think, is very misleading and manipulative.
SPEAKER_00:That is, I mean, we could have an entire episode probably about the role of hero rhetoric, right? And sort of where we use it and where we don't. And it is very powerful. And so on the one hand, it makes sense. us, me, for example, want to invoke it for things that I think there's currently a stigma attached to, right? You know, kidney donors, you know, there's sort of any challenge trial volunteers, there's any number of them, right? But at the same time, the power of it is so much, right, that we have to be careful about where we deploy it, I guess is maybe the best way to put it.
SPEAKER_01:Right. And I just want to make clear that I'm not saying that people should not be allowed to engage in these activities. No,
SPEAKER_00:you're actually, I was going to, I was going to come back to that, you know, despite your concerns, you're actually surprisingly pro- pro-consent, I guess, is that the word we would use? Pro-consentability. Pro-consentability, there you go. Yes, so that's, and I was going to ask you about that kind of at the end, but yeah, you're, despite your caution and your concerns about the way in which certain transactions are structured, you actually are surprisingly in some ways in favor of, as you say, consentability. So, Let's talk briefly about bodily integrity exchanges, a topic near and dear to my heart. And what sort of first drew me to your book, although, as I said, as I began reading these other examples, I became very interested with them. I mean, one of the things I really appreciate about your approach to, well, first of all, back up and tell us what a bodily integrity exchange is. What do you put in that category?
SPEAKER_01:It's a range of things where you agree to do something to or with or allow somebody to do something to your body in exchange for money. And that's the big difference between that and a lot of these others. It's in exchange for money. And I think that's where people say, oh, no, because somebody is a hero if they donate their kidney. But if they sell it, then society has to face up to the fact that, oh, oh, we're not so equal after all. You know, there are a lot of issues here in our society where somebody is willing to go through this procedure in exchange for money. And then we pause, which is interesting to me, you know.
SPEAKER_00:This is fascinating because I have long said, and you can see it not just in academic writing and popular writing, but, you know, television shows, movies. It seems to me that some of these bodily integrity exchanges are our repository for all of our discomfort about society's inequalities, right? I mean, so this is the place where we raise our concerns about sort of wealth inequality, inequality of opportunities, race inequality, gender inequality. I mean, it just all comes out. But of course, those things are everywhere in society. But this makes it very visible. And I agree with you is actually part of our discomfort with these types of transactions is that it makes it very difficult to pretend that we're not the type of society where people are so desperate that they have to sell body parts or whatever it is, right? And I guess maybe I should back that up. I don't like that. I don't think that people are necessarily desperate because they sell their eggs or their sperm or even their kidneys, or at least they don't have to be. But in some countries, I think they are, right? Well,
SPEAKER_01:and also that's the, I guess, the pop cultural kind of thing. picture that we have that we have that's the thing that we are afraid of as a society
SPEAKER_00:yeah
SPEAKER_01:one where you know the the worst like this horrible scenario where somebody is kind of standing on the corner all just starving and yeah so so i think that's the fear our social kind of nightmare right our society tonight that we are not that kind of society
SPEAKER_00:yeah yeah but i like your i like your framing much better than than my initial framing i want to retract mine and substitute
SPEAKER_01:yours yeah i mean because because that that um that sort of cultural you know, perspective is so overwhelming in the same way that, you know, I want us to take another look at the, the, the person with horns versus the person who is voluntarily agreeing to do something intrusive and dangerous to their body for no other reason than that. Somebody else that they don't even know is going to think they're more attractive.
SPEAKER_02:Yeah.
SPEAKER_01:Right. I mean, so I want us to really question, why do we do these things? Because I think we are, what is the cultural conditioning that's going on here? Yeah. I mean, if you, And I don't actually even like to use the word selling when we're talking about body parts. I sort of go through that in the book because it's not a sale. We're not talking about a situation. It's a very unique sort of transaction in the sense that You're not selling. There's no sort of market. People talk about the market and good and Oregon body parts. It just makes it sound so grotesque. It's very manipulative, I think. That's not what would happen. That's not what I think should happen, which is why I think a framework is necessary. And I think it's very important to guard against kind of the free market rhetoric because we don't want the free market to take over in this type of situation. I don't think that's what we want because that might... because I think what we really need to guard against is not so much the person who's making the decision, but the person who might manipulate and exploit the situation. Not that that's not already happening though. There are other types of exploitation and manipulation. So, you know, again, it's just a question of how to do this properly, you know, how to do this in a way that, there is going to be less regret and less exploitation.
SPEAKER_00:Right. Right. Interesting. Okay. So let's then come back to the point, which was, which is that you are pro-consentability on a wide variety of these transactions, despite your concerns. So can we, can you talk a little bit about that? So how then would you approach these types of transactions that we've been talking about?
UNKNOWN:Okay.
SPEAKER_01:I think with consent, there are two parts to it. I mean, consent is, you know, again, I think the way I think about consent and the way the law actually thinks about consent when you really sort of analyze it is different from the way maybe a lot of people talk about consent, which is Consent is often the person who's agreed to the action or supposedly agreed to the action. Consent to me is relational. And it really depends on both parties' interaction. It's the relationship between the two.
SPEAKER_02:So
SPEAKER_01:I can say yes to something, but there's a certain amount of trust. I'm saying yes to something that you're asking me to do. because you've told me what that entails, or I've brought some, my understanding of the world to what you're asking me to do, which might be very different from what you had in mind. Okay. And so it's when I find out that you mean something different than what I thought that we have a problem with consent. Right. And so the question is how, how do we balance that when we've got two different people, right? We've got two or more people at stake. And so consent to me has to do with, Both parties. And what we need to guard against when we're talking about both parties is when we're talking about the consentor, we need to guard against cognitive biases and societal pressure, right? Sort of make sure that the person has enough information, they're not diluting themselves and so forth. But we also need to put safeguards in place with respect to the consent seeker to make sure they are not engaging in exploitative or opportunistic behavior. And that's where the regulation comes in. Okay, so this idea of people should be allowed to consent to whatever they want. Yes, but people should not be able to extract that consent by whatever means possible. And I think that will also... help with this concern regarding paternalism. A lot of times when we're trying to protect disempowered groups, we take away their agency, right? And really, they're not the problem. It's the person who is preying upon them that's the problem. So let's focus our attention there. And who are these people? They're the marketers. They're advertisers. There are people who don't tell you all the information that you need to have, right? Let's talk about prostitution, for example. Is the issue really with the person, the sex worker, you know, agreeing to the activity? Or is it with the fact that there might be a pimp coercing or manipulating or, you know, in the same way that, but this can happen regardless of whether there is money exchanged or not. So to me, the money aspect, is the society's discomfort. And that's too bad. We don't let it stop us from other... We live in a free society. People should be allowed to make choices for themselves. But that doesn't mean we should not recognize that there are people out there who are willing to take advantage and manipulate and kind of not destroy the trust that is so vital for societal cooperation and coordination. So those are the people we need to sort of regulate.
SPEAKER_00:And so for the most part, then, I would think that would lead you to a conclusion that these types of, I'm going to call them markets for now, but I'm putting, because I have a very broad definition of market, that they should be legal but regulated. That's what, right? I mean, because it's very hard to, for example, regulate pimps or organ brokers or whatever if they're operating in the black market.
SPEAKER_01:I think that's right. And then if it turns out to be problematic, then we think about maybe we change the way we regulate, maybe we think about other things. With the caveat that unless it turns out that there is a societal harm that is independent of the parties involved in the transaction.
SPEAKER_02:If
SPEAKER_01:it turns out that because we are allowing a certain type of transaction, there arises a black market in something else or that there, you know, if there are like third parties who are affected, who had nothing to do with the transaction, then we need to think about that because, you know, with a contract, you can't contract. the world, right? It's just our affairs that we can enter into a contract.
SPEAKER_00:Right. So here, so let me ask you this, because this is, this is the response reaction I often get. So I often have to address this issue when I'm discussing this. I mean, somebody like, for example, Michael Sandel, right. Would say to you, but, but, But Nancy Kim, don't you know that all of these bodily integrity exchanges do, in fact, have negative externalities? They degrade our conception of personhood, right? So, I mean, how definite, I guess, is the question, does an externality need to be? And who has the burden of proving that it exists? How do you address that objection? So,
SPEAKER_01:you know, that, again, is a very... amorphous, fuzzy definition of personhood. My framework tries to be very concrete. I like that about you, by the way. Intentionally, because I don't want to have... You might have a different idea of personhood than I do. This has to do with the fact that we And again, I'm only talking about this society and societies like ours that value individual freedom. So the question is, when your transaction where you are sort of exercising your autonomy impinges upon somebody else's autonomy, to the same extent on the hierarchy. So your notion of personhood, well, you're saying that I cannot do something that which I feel is fundamental to my wellbeing
SPEAKER_02:because
SPEAKER_01:it offends your notion of personhood. Your notion of personhood is not anything concrete. Whereas if what we were doing caused other people to be kidnapped because then they were Or let's take the example of the virus, right? The fact that I have to wear a mask, it impinges upon my bodily integrity. But yours could be even greater because this could cause much greater damage to you than the small inconvenience to me, okay? So I'm talking about on the same level as far as the threat to the autonomy interest. And again, the hierarchy of autonomy interest goes from... relatively sort of temporary deprivations of rights to deprivations of, you know, and property up to permanent deprivations of bodily sort of functions and, you know, capabilities. And so the more, the higher up it is on the hierarchy of autonomy interests, the more robust the consent conditions have to be. And if my, if I'm doing some, want to do something that is relatively minor in as far as the promotion of my autonomy interests. And it's something that poses a much graver threat to you. Like, I want to drink while I'm driving, but I could kill you if I did that. I shouldn't be allowed to do it. So I don't, I mean, hopefully that, you know, I've kind of thought about this question a lot. And the personhood issue is one of those that is very, It's something to strive for, but we're so far from it right now. Because we're just not there yet. We're just not there. And these are ideals. Those are ideals. And they're ideals that we should remember, but they're ideals. And there's so much more that we could do to get us closer to that ideal. And one is more economic equality.
SPEAKER_00:Right, right. So what, tell me a little bit about where, gosh, time has flown for this podcast, by the way. So in our concluding minutes, tell me a little bit about the reaction to the book, because, again, you are very pro-consensibility. You're coming from a place that recognizes the dangers, but you're going to be more, I think, on the I hate to use the word libertarian in such a, you know, loose fashion. Loaded, yeah. Yeah. But, you know, I mean, these are, you know, sort of walking into the room and saying that people should be able to sort of sell their kidney or agree to die flying to Mars as long as we have these certain things in place. That's going to elicit a strong reaction, I assume, from some people. So what was the reaction to the book, either, you know, as you were sort of presumably workshopping it and talking to people about the ideas or after publication, either one. You get to pick.
SPEAKER_01:Well, you know, the funny thing is it's actually not a libertarian, at least in the way that we use the term in the world of contracts, because I do look at the responsibility of of the consent seeker. And I think that's what's been neglected so much when in this talk of free markets and so forth, what responsibility do we have to prevent exploitation? Because the traditional dialogue has always been between people should be allowed to do what they want to improve themselves versus, no, we should protect them, you know, or else, you know, it's a low paternalistic thing about protecting them from, you know, from things. But what about the other person, the other party, you know, the exploiter? And that's what I think we need to sort of pay a little more attention to when we talk about consent. Because I think the rhetoric gets kind of dangerous sometimes from both sides in terms of there's a possibility of taking away certain, rights that we might want to have in terms of what we do with ourselves, with our bodies, the choices we make. But at this other time, on the other hand, we've seen what an unrestrained market, the damage it can cause. And so I think a lot of times I get this just silence. And then the first time, I think with the talk about the bodily integrity exchanges, the first time I presented it, there was just outrage because I'm sure you, I can, I can, I can relate to that. Yeah. There was outrage that, well, what about these other situations? Would we allow this? And, you know, especially in a, in a contracts group, there's such a strong feeling of like with contracts also there's with bottling integrity exchanges. And I know that we probably don't, I don't know how much time we have, but one thing we didn't really talk about the, the, big question there is how to deal with the contractual aspect of it, because that is one thing that distinguishes bodily integrity exchanges from these other types of exchanges. Because with consent, you can withdraw consent at any time, unless you have a contract. And it's because of that, that these bodily integrity contracts become more complicated.
SPEAKER_00:Right.
SPEAKER_01:Yeah,
SPEAKER_00:certainly. I'm just looking at your list of them. And I mean, certainly that would be the case with something like commercial surrogacy, which is not just a contract, but a long-term contract. I mean, in the scheme of things, right? As distinguished from say sex work, which you still might want to withdraw consent, but at least it's a shorter time period, right? And so that seems to be, that has always struck me as being a complicated factor of the surrogacy contract is both that it's of a fairly long duration as far as these types of contracts go. And something that I think you alluded to in the book is that both, we tend to focus on the possibility of exploitation of the surrogate, but there is also a possibility of exploitation of the intended parents as well. And I mean, it's a contract where both parties are at risk, but at different times during the contract, right? Like, so, you know, there's a point at which the intended, usually later in the pregnancy, where the intended parents are very open to exploitation because they have invested so much by that point. And so, you know, Yeah, I think that you're right. The contractual aspect can be complicated, complicating in some of these. I
SPEAKER_01:think often what happens, going back to your question about what happened, the reaction at conferences is that at first there is this initial reaction, which is intuitive or emotional. But once you sort of flesh out the different aspects of it, They realized, oh, it is a lot more complicated. And really, you know, maybe rethink some of the assumptions that they were making about other people. other things, other choices, other decisions that they've just taken for granted.
SPEAKER_00:Right, right, right. Well, and one other thing that I especially appreciated about your treatment of bodily integrity exchanges was to dispense with the risk argument right away, which I think that that is something that's missed by a lot of people, even people who are fairly knowledgeable about some of these transactions, which is, you know, it's not the risk that makes these problematic to people because people are very happy when somebody wants to be a kidney donor or to be a surrogate for their sister or whatever, we think that this is all really nice and that they're behaving like altruists or even heroes. But once we insert payment into, I mean, that doesn't change the risk. It doesn't change the physical risk. It introduces other risks, right? And so I was happy to see that you sort of immediately set that aside as being, this is not about the risk. It's about the other, it's about other fears that we have with these transactions.
SPEAKER_01:Right. And that risk, I mean, and that goes back to the question about the, with the novel experiments and, you know, the other side of the story, which is that payment or no payment, we should make these procedures Right. Right. the monetary payment changes our perception of it. As far as people tend to think there's more coercion involved, but that ignores the fact that we live in a society where you need money and you can, you know, that's people do things for money, whether it's a commercial exchange or not. In fact, I think a lot of times people will do things for money, but because it's not legal, they're in a worse position.
SPEAKER_00:Sure.
SPEAKER_01:So there are compromises people make. Like I mentioned my experience when I was volunteering, where people stay in relationships that are maybe more physically damaging for financial reasons and for less money than they could if they were able to negotiate up front. So there is a certain power that you can get through contract. But again, we have to be careful about how we negotiate permit these things.
SPEAKER_00:Right.
SPEAKER_01:So I think regulation is key, how to regulate. We can't sort of go with the free market. And I do think there should be minimum payment terms because otherwise the value of things will decrease depending on, you know, supply and demand and so forth. So I would be afraid of that kind of exploitation. There should be certain, it was, you know, you wrote this, a great article about the, the, the egg, the, you know, transfers where they were trying to put a ceiling on how much you could get paid. And I thought, that's just, it's just backwards. What? That made no sense to me at all. I think if anything, there should be a minimum. I'm okay with a minimum. I am right. At least this much, because we don't want then people, then we get to the desk, then we get desperate. Then we get the nightmare scenario where somebody is selling their kidney or their egg. But if we're talking about much higher prices, then there's more power. And I just, you know, I think that's just ignoring the reality of, you know, of economics, the fact that we live in a capitalist society.
SPEAKER_00:Right, right. And that And that people engage in risky transactions all the time that we permit. Riskier than these, right? For money that we permit. Much riskier. And I
SPEAKER_01:think it's kind of like the, in a sense, it's sort of like the boiling frog in that, you know, the risk is, it's not as, you know, one day you do this and the next day you have a surgery. It's you make these choices and little by little you keep, doing these things that impede your health and your wellbeing much more than this decision to undergo a surgery where at the end of it, you'll have some money and somebody else will have your kidney. I think that we don't look at it that way because when we're talking about sort of the slow degradation We don't see it as visible, right? I think that's the slow degradation is something we should really be careful about.
SPEAKER_00:Especially in our profession. I mean, lawyers are well known to have, you know, high job dissatisfaction and high stress, right? Which no doubt plays on their mental health issues.
SPEAKER_01:Right.
SPEAKER_00:Yeah.
SPEAKER_01:Well, I think that's right. But, you know, and even people in more kind of like a... with more of a sort of need to make ends meet, they'll make these, you know, decisions little by little that with huge consequences for their health, right? There are huge consequences for their health and their well-being. And, you know, I think the pandemic has really kind of underscored that. Yeah. Some people are every day kind of exposing themselves to much greater risk than if they were paid, you know, some money that they could not have to work maybe for
SPEAKER_00:a year. Yeah, yeah. No, I do think you're absolutely right. The pandemic, you know, as we're sitting here working on Zoom, right, it has brought to the fore the people who don't have that luxury, for sure. Right. Yeah.
SPEAKER_01:Yeah. And now at this point, I think society's at a point where we're stepping back and we're like, oh, wow, this is where we are now. The slow kind of this sort of almost invisible changes that have taken place over the past few decades, we realize, ugh, not really working. So that's what I was trying to do in the book, is have us look at where we are as a society, these things that we do to ourselves, and really start to question why we frame things the way we do.
SPEAKER_00:Yeah. Well, okay. I'm going to let you go because I have occupied more time than I told you I would take, but it's been so interesting. So thank you so much for doing this.
SPEAKER_01:No, this has been really great. Thank you so much for having me. It's been a real pleasure.
UNKNOWN:Thank you.
