Taboo Trades
Taboo Trades
Market Segregation (&Football!) with Christian Turner
Christian explains the rules of financial fair play in European football. Then we argue about why people have sex.
Christian Turner is an Associate Professor of Law at the University of Georgia. His areas of interest are legal theory, jurisprudence, the public-private distinction, legal institutions, law and cognition, property law, natural resources law, and the regulation of knowledge and information.
Christian Turner, The Segregation of Markets , 7 Tex. A&M L. Rev. 299 (2020),
Available at: https://digitalcommons.law.uga.edu/fac_artchop/1328
The Oral Argument Podcast
Walzer, Michael. Spheres of justice: A defense of pluralism and equality. Basic books, 2008.
Radin, Margaret Jane. Contested commodities. Harvard University Press, 1996.
You know, the basic question is, why should someone have sex with someone else? Right. There's a lot of disagreement. We don't have a uniform. We don't have uniform agreement.
SPEAKER_02:You're right. Even just leaving money out of it. We don't have uniform agreement about that. You're right. Yeah.
SPEAKER_00:Right.
SPEAKER_02: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. Okay. Hello, everybody. Welcome Christian Turner from the University of Georgia School of Law, who is here today to discuss, among other things, his recent and truly excellent paper, The Segregation of Markets, published in the Texas A&M Law Review. So welcome, Christian. And it's so nice to finally have you on the show, given that you were actually the first person I invited. And thanks to my screw up of the logistics, we're only a We're only just now getting on. So thank you.
SPEAKER_00:I think we had a series of emails, which is like, sorry for the delay, but like, that's just the sign of the times. There's nothing wrong with that.
SPEAKER_02:Well, the one, you know, this podcast only exists because of you though. Right. Because your podcast oral argument co-hosted with Joe Miller was the first and also the last podcast that I appeared on, I think. And
SPEAKER_01:that's
SPEAKER_02:right. Yep. And so, cause the first one I did, like I had actually no idea. like what even how pod yeah i just didn't even know how it worked but it kind of got me thinking like you know could i do something like that it seems really it seems like a lot of work but really fun so anyway here we are
SPEAKER_00:and of course you can As is obvious. This should have been obvious all along. Yeah, we got started with that podcast. I think it was back in like December 2013 or something like that.
SPEAKER_02:You guys were early movers for sure.
SPEAKER_00:We were pretty regular until about 2018 or 19. And we haven't recorded an episode since before spring break, before the pandemic. And I keep saying, we should just record another episode and just talk. Because Joe's fun. As you know, Joe is super fun to talk to.
SPEAKER_02:Yes. You guys are both good talkers. So it makes sense that you would be podcasters.
SPEAKER_01:It's fun. It's fun.
SPEAKER_02:Okay. So let's talk about this paper. And I wanted to talk to you first about how you got the idea for the paper. What is it that you were like, okay, other people are doing this wrong. Let me fix it.
SPEAKER_00:Yeah. I don't know that I... I don't have a great answer for this other than, you know, one way to get involved in a topic is to do a lot of reading in that topic and find a small way that it's wrong or find, you know, oh, I think this rather than that. And you start working on that or there's you read a number of cases or articles and there's some little feels OK, but like there's some little irritant kind of like the The pee under the bunch of mattresses, right? You know, the pee pod under the mattresses that cause it. And then you kind of scratch at that and you realize, oh, there's something to say here. And speaking of our podcast, I always told Joe that, you know, whether it was my prior life in mathematics or all the other things I've done, it's everything just been an effort to, you know, I read, but I also do a lot of thinking where I'm just trying to figure out, like, what's going on? What explains what's happening around this? Like, it feels like the journey of entire life to figure out, like, why do we why does the world look this way? And so I've kind of used all of my opportunities to answer that from different directions. And so, you know, I've read, you know, the Waldron stuff and your stuff and a wide range of things has seemed to me to raise kind of repeatedly the same sorts of questions.
SPEAKER_02:Without solving them.
SPEAKER_00:Well, I don't know about that. I mean, I think, you know, each, you know, Waldron has solutions in the sphere stuff. I mean, you've certainly got solutions with repugnant transactions and in related areas. And so what interests me is not that these are unsolved and people can't solve these problems, but like the solutions seem to follow kind of similar patterns. And maybe this goes back to my kind of training as a mathematician. I'm always on the lookout for particular situations that in fact are just different aspects of the same underlying thing. and to try to put my finger on what is that underlying thing? What is the most general level at which we can describe what's going on? And then figure out, okay, well, you know, there's this general statement, you know, like, you know, maybe there's something true about rectangles, which is not true of every shape, but it's true of all rectangles. And then how, you know, how specifically can you go? So with this, I think, like some work on the public-private distinction that I've done before, I have an interest in thinking about how human beings make sense of their world generally. This is kind of the problem of just consciousness and the human conceptual system. But in particular, how we make sense of social structures. How do we perceive our legal obligations, whether it's from from our family, from our local community, federally, internationally, like all of these seem like kind of different kinds of scenarios in which the same underlying kind of human processes of thinking about rules are occurring. Where do those rules come from? And so I wrote a paper much earlier on, which looked at institutions kind of from the public lens, like regular contract law between two people as a way of making a kind of statute. But instead of having people vote in a legislature over such things, we have a unanimous grouping of individuals who want some legal duties created for them. And so we subject to that private lawmaking process to certain procedural rules to confirm that it was procedurally sound. And then we have some ex-post rules governing that law to see whether it's kind of constitutional in a broad sense. And so one way of looking at contract is it's kind of the constitutional law of private law. And Indeed, you can compare that first year course of contracts to the public constitutional law course, and they're very similar. Well, you could. I could,
SPEAKER_02:since I don't know anything about constitutional law.
SPEAKER_00:I think we all know something about constitutional law, right? It's like we all know enough to be dangerous about constitutional law, especially these days.
SPEAKER_02:We know more than most of the people on our Twitter feed, but beyond that, yeah.
SPEAKER_00:Fair enough. So with this paper, I was thinking, you know, the one thing missing from that description and that way of perceiving like what's going on in human cooperation is an account of the internal power dynamics of in making law, whether it's in legislatures, in courtrooms, in families, in private organizations, or in business arrangements, or in campaigns, and the like. And so I finally paired this with this kind of desire to talk about things in those terms and to explore what are these internal dynamics that occur when we recognize currencies of power and redistribution rules and all these things. And I paired this with a I won't say like trivial, but like this, this kind of like puzzle like insight I had a while back that campaign finance and financial fair play in European soccer are kind of exploring the same problem. I love those
SPEAKER_02:examples, by the way. I mean, especially, you know, the campaign finance discussion was very interesting, but not one that was so unfamiliar to me. But the European football example, I loved, first of all, because I knew very little about it. But also, and we'll get to, I want to get more into this as we talk about, you know, your definitions and stuff. It to me really highlighted the diversity of market design um, rules and institutions and options that are available, right? Once we identify what the goals are that we want from these markets, there are multiple ways to do them. As you point out, you know, the European solution actually looks very different from the American solution. In sport, yeah. Yeah, in sport, exactly. I mean, and, you know, theirs is in some ways more market-like, but with this sort of strict, I'll let you explain it, currency exchange prohibition, I think is the the phrase that you use, whereas the U.S. instead, you know, seems to have more what I think you would classify as redistribution rules and, you know, rules about rookie drafts and salary caps and the like. You know, another way of getting to the same purpose, though, which I take it to be some sort of reasonably level playing field that is at least attractive enough that it doesn't kill the mark, the viewer market for, for these sports. Right. Is that, yeah.
SPEAKER_00:Yeah. No, I think based on a, uh, an assumption about what people want, a certain amount of competitiveness and, and, you know, one of the fun things about writing a paper like this is, um, you know, I did follow European football and I kind of, you know, I'm not a long time fan, but, but became a kind of big fan a few years ago because I felt I needed some kind of like harmless, um, um, um, tribalism in my life. And so I started to follow that. Actually, I'm wearing this Arsenal shirt now. It's a total coincidence. I just threw this on. It's the pandemic. So it's like whatever I threw on, right? But it just so happens I've got this on. And so, but what was fun was being able to do some reading in like the sports economics literature. And of course, some of those people probably think that my approach is kind of naive and they would say that, well, really what's going on is it's like the big clubs trying to consolidate power. But I think if you actually read what I write, like I'm totally conscious that that could be a goal, right? And so I'm just talking about dynamics more than any kind of norm. It's both not descriptive and not normative, right? It's like descriptive of a certain kind of dynamic. And if you read it as purely descriptive, you think it may be naive. And if you read it as purely normative, you're thinking, well, this doesn't tell me what to do.
SPEAKER_02:Yeah. No, I did not read like that to me. It read like actually exactly how you described it as trying to pick apart a very general pattern that one sees across what appeared to be perhaps upon first glance very different market phenomenon that actually have a lot of similarities that you point out. So, all right, let's talk about then market segregation and sort of what you mean by that.
SPEAKER_00:Well, so when you look at human cooperation overall, like you take any society, right? And part of the point of view here is that an individual human perceives their cooperation in a whole bunch of different ways. communities which operate according to rules, right? And these are heavily overlapping. Like you're a member of your law school's faculty, that occasions a certain amount of cooperation to produce certain kinds of decisions, right? I mean, you typically have faculty votes, there are other kinds, but you're also a participant in the larger university community, you're bound by rules, You live in a community, probably a county. I don't know if you live in an incorporated area or not. Maybe cities rules, state rules, federal rules. You have family dynamics. There are so many communities of which we're a part. And I think one of the basic units of the way that we as humans understand our place in the world is to have a certain model of institutions of which we're a part. And institutions just being kind of groups of people who decide things, right? And for whatever reason, we tend to divide, we tend to recognize that, hey, there's an institution over here of which I'm a part or of which I'm subject, which has certain kinds of decisions that it makes, right? And another kind of institution which decides other things. And as I say in the paper, there's no like absolute truth to like what the panoply of institutions is. There's just ways of kind of perceiving the world, right? At certain times, it's useful for me to think of, oh, I'm a member of a faculty and we're gonna vote on these particular things. And other times it may be useful to perceive the university in a broader structure or as embedded in a certain jurisdiction or as comprised of various, comprising various groups of people who make decisions on their own. So the first cut is, we belong to kind of a web of institutions, which are groups of cooperating people. And those groups of cooperating people necessarily have some purposes, right? They may not always agree on what those purposes are, but they decide things together in a cooperative way, which is described by philosophers who study like group agency and collective decision-making. And given that these things have purposes, We should recognize, if we take a point of view of these institutions as comprising people who contribute to those decisions in various ways, and therefore there must be some way of kind of aggregating the preferences, desires, points of view of the people who comprise them, we might then say, well, there's some kind of currency of power there. There's some ability of individuals to affect, to have some effect on the kind of agentic behavior of the group as a whole. And sometimes that's like really easy to model. Like it's really easy to understand because maybe we give people an actual vote. You know, every person has one vote or maybe we give them dollar bills and we say this is, you know, this group of people will produce this stuff in proportion to how they decide to spend those dollar bills. So sometimes it's obvious. Sometimes it's like, you know, there's more moral suasion or other things going on that are harder to state explicitly. So, you know, If I have one institution which is supposed to be making one set of decisions according to some power structure and another institution which is making kind of other decisions according to some other power structure, it can happen that the decisions of one we think should be guided by very different kinds of considerations than the decisions of the other. An easy example I give is like the decisions of a court system to produce justice, maybe even just a criminal court system, if we want to look at it that way. And we think that its decisions... Right. Which, again, it's an institution. One way of modeling that institution is to understand it as comprising judges who have all the power to make the decision, but whose decisions are rightly influenced by, say, lawyers who can speak with words. So that's one kind of decision. We think it should occur for certain reasons and people object if people use the wrong reasons like a judge who says you know you don't look so good to me so you have to go to jail like that would be a bad reason right we want them to have certain reasons and um uh but we also have markets in or institutions that decide other things like you know how many televisions to produce or how many cars to produce and those things are generally provided uh for through kind of what i call them like more hayekian means right this is every individual has units of power that they spend and kind of seamlessly connect um but we generally don't think that the reasons that we use to decide how many televisions to produce and who should get them should be the same as the reasons for the market for justice, right? Like we think that the judge should have one set of reasons that are really distinct from the reasons that we might decide someone deserves a television set. which may be, well, you have a certain amount of money, you decided that was important to you and individual decisions about importance are very, that's what's important to us in markets like that. And so this idea of segregation is that we will often find rules where it is the case that I have power in a market to produce, to decide certain things that are incompatible with the reasons in some other market. We'll have rules that prevent me from taking that power and moving it over to the incompatible market. And one way of thinking about this is like, maybe you have two countries with two different kinds of currencies. And one of those two countries is really concerned about the influence of some foreign country. And so what do you do to stop the wealthy and powerful from the foreign country from influencing your own internal economy or politics? You forbid the exchange of actual currency, whether it's rubles for dollars or something like that, right? And so one way of looking at this is that there's a kind of There are two different currencies going on in like the criminal justice market and the market for televisions. Like in the currency in the market for televisions is basically dollars. The currency in the market for justice is like the judge's decision. Like the judge has basically all the currency. And you can make it that more complicated by looking at appeals and modeling that more broadly. But the one thing we forbid is you can't just, you can't go to some kind of currency exchange counter at the courthouse and say, here are my dollars. Now give me your decision. Right,
SPEAKER_01:right, right.
SPEAKER_00:And so that's very much like the rules of dollars. I want to buy my decision.
SPEAKER_01:Yeah.
SPEAKER_00:Exactly.
SPEAKER_01:Right.
SPEAKER_00:So that's just an obvious example, but the campaign finance and soccer examples maybe are a little bit different.
SPEAKER_02:So... Before we talk, I want to talk more about the soccer example, because I just like it a lot. But I, you know, so what, I guess one question I had, and how much of this, it may be both, I mean, that may be, I suspect that's the answer, but you tell me, how much of this segregation that we observe using, say, the market for legislation or justice or something, right, the examples you just used, is it really or primarily or exclusively about power or equality, as I think somebody like Michael Walzer would suggest, and how much of it is really about incompatible purposes or goals of the different markets. I think that people often assume it's the former, but after reading your paper, I thought it was much more the latter. although both of them may be operating, right? So to use your example of the market for justice, right? If we assume a world in which everybody had equal wealth, we would still prohibit judicial bribery, I think, and the purchasing of outcomes because the purpose of those markets are different. And so when I look at it that way, equality in some ways has very little to do with it. Although of course, in the real world where we have wealth and equality, then, then both of them may be factors. I don't know. Does that, does that make any sense?
SPEAKER_00:Yeah, I, I think it, how do I describe it in the paper? I'd have to go back to the, you know, it's been a while since I've looked at the paper, but I think that the,
SPEAKER_02:I always have the advantage of, of, of knowing the author's paper better than they do at this point, because I just read it and you wrote it a long time ago.
SPEAKER_00:I always put my podcast guests at ease and say, you know, you know, you know this better than I do. but I realized that I have the same dynamic occurs. So I think it's that, so if I'm in a market and I wanna decide what would be kind of an interfering exchange of currency, You have to know the reasons in your, what reasons do you think should constitute the basis for decisions in your market, right? And we have a very strong sense of those and agreed upon sense of those in the market for justice. You know, there's a lot of disagreement about what the law should be, but the kind of the flavor of the reasons that can be decisive are pretty well agreed upon. Whereas in the market, say for televisions and other things, you have a very pluralistic understanding of like, what are a reasons for allocating televisions in a certain way or cars in a certain way. And so, you know, I think the question is, is currency exchange from the foreign market compatible with the sets of reasons that we have for decision in our market? Right. And so in the soccer market, like suppose that we decided that we want we want to have a competitive league where from year to year, you really can't tell who the best team is going to be. Now this is actually in sports economists. We'll tell you, this is not actually, you know, there's some, there's some like ideal mix depending on audience between like having dynasty teams and then upstarts, which can be fun. Right. And so if every year it's kind of random, it seems like, Hey, that's the most competitive, but actually maybe people don't prefer that as much. But that said, suppose we did, we, we, we did prefer that. So we kind of prefer kind of equal distribution. Then having people bring in, money from other markets um or um or um power from other markets can disrupt that because it disrupts the equality in other words like one reason hermetically to seal our market is because we can ensure proper redistribution right and if currency is going to come in it should only come in in a certain way so that it can be perfectly redistributed um so like i guess as your question the premise for your question was like you know it could be both and i think it It is both. Some markets have a strong egalitarian purpose behind them. The reasons are only compatible with egalitarianism. And so maybe any currency kind of flowing in that's not monitored and redistributed is going to be problematic. And sometimes it's that the reasons are just incompatible. And so you know, if our concern is like with efficiency, then, you know, even if you use like a Rawlsian formula, we're going to tolerate like lots of inequalities in ordinary markets for goods, precisely because that can maximize, even if you think all that does is maximize the benefit of the least well-off, right? You can have a kind of a better equality for the least well, better economy for the least well-off if you tolerate certain kinds of inequalities. And so that, you know, So your reasons for distributing are going to, you know, they're going to have some amount of like rewarding useful labor and rewarding certain kinds of talents or abilities that are kind of incompatible with like a purely egalitarian market, which is, you know, one of the reasons I think Rawls has a certain category of goods, which should be absolutely equal in their distribution. Right. I don't know. Did I get it? I'm not sure if I got it, the question.
SPEAKER_02:Yeah. Well, and so your answer also prompted me then to think about whether what I, and feel free to correct me if you think that I'm sort of misrepresenting these, these two types. So, you know, if we were to look at your European football example, which as you say, is mostly about segregation and per, per, and preventing this influx of this doping, right? This financial doping from other sources versus the US approach, which I guess I would characterize, I mean, and it's different from, you know, league to league and whatever, but I mean, in general, there's some amounts of redistribution. There's also redistribution of talent through various methods, right? Through salary caps and through the draft system. And so, I mean, might argue that the european system is um better suited or at least more directly suited to that sort of corruption as sandell would call it right um because it's right because it's bringing in this outside source of of money instead of the internal source that is supposed to reflect you know fan commitment and all of these things that you talk about in the paper, whereas the U.S. system appears to be less concerned, or at least less directly concerned, with that sort of outside influence and more concerned with the leveling the playing field. I don't know. That's what it... arguably looks like to me.
SPEAKER_00:Yeah, these are very broad generalizations and sports economists are going to like, you know, would kind of rip me apart for oversimplifying
SPEAKER_01:here.
SPEAKER_00:Which is why I think it's more, you know, we can talk about it in terms of examples of extremes rather than purely descriptive of any actual sport. But like one way of looking at it is that you could have a system where The league as a whole wants to be economically successful and it sees its competition as other leagues and other opportunities for entertainment. And it captures all that incoming money from various endeavors and then redistributes it equally, right? And so it doesn't allow people within the league, you know, decision makers within the league to kind of just have currency kind of come in from elsewhere and exchange it for more power within the league because it's always being redistributed. Yeah. And the interesting example of what I'm calling the European model, and again, this is a real simplification. There are lots of problems with financial fair play. I deal with a lot of them actually in the paper, I think, especially if you look at the footnotes. But it has the same– a lot of this is just history. Like the clubs themselves want to be successful, right? And they have– each club is kind of an ongoing– financial enterprise and wants to sell TV rights and gate receipts, although the leagues as a whole negotiate TV rights and then they redistribute them according to rules and it varies from league to league. But each team wants to be successful. And so they found, one way of looking at financial fair play is that they kind of found a way to allow the use of money For the market for players because the club makes more money and it enters what we would consider pretty free market exchanges for talent. Especially as compared
SPEAKER_02:to the U.S. system. Again, depending on what sport we're talking about. But still, it looked much more, quote, market-like to me.
SPEAKER_00:It's much more just, yeah, free market, just contract. If you want a player services, you offer that player money. And if you want to buy the player from another team, what that really means is that the player has a five-year contract with some other team. There are two years remaining on it. You enter an agreement with the other club to buy out the contract and then you contract with the player. So it's like very much like just kind of first year contract type analysis, right? Right. And so like, how do you, how can you achieve the goal of allowing clubs, which like have a lot of support, leverage that support into being able to like continue what fans seem to like about that club without having this problem of having people who were hugely successful in the oil industry coming over and just plowing all their money into the team and buying players. And that's not the only way it's not just doping. There's also this walking dead thing. scenario that I mentioned in the paper. Oh,
SPEAKER_02:yeah, the debt,
SPEAKER_00:right? The tragedy of the commons kind of thing, right? Just the nature of it. But we can just focus on the doping just as an example of a kind of tendency here. And so rather than saying, well, we're going to kind of hermetically seal the league, and then we're just going to use internal league currency for players, like everybody's got a pick or something like that, or we distribute player coupons, right? We allow... teams to use, to use money to buy players. But the financial fair play rules say that you, you have to run a profit, which, well, okay, well, that doesn't really stop anything. But what they mean by profit is like your allowable expenses have to be exceeded by your, your income, right? Your allowable incomes. And so you, which means that like when you're considering whether you make a profit, you can't consider the hundred million or$200 million that comes in from a gate receipts, advertiser income, that sort of thing, which is maybe a proxy for some kind of organic support. This is how much people love this club, right? So they kind of achieve both objectives.
SPEAKER_02:And I assume that the, I mean, both systems, I think, achieve both of those objectives to a lesser, a greater or lesser extent, but they come at it from different ways. And I do wonder whether that does tell us something about what the concerns and priorities are of the two different systems. You know, I mean, sports fandom in the U.S. is, of course, very different than sports fandom in Europe. And that presumably has an impact on the economics and on these segregation rules that we're talking about.
SPEAKER_00:Yeah. So this is the kind of thing, maybe at the time I was writing the paper, I had a more educated take on this. I have to think back. But, you know, one thing about European football is just the amount, there are a whole bunch of leagues that And there are leagues, you know, and each nation has a league. And then there's interleague play among the nations. And then each nation has a number of leagues. There's relegation promotion. But even just among the top leagues, like, you know, it's not uncommon that a player would leave Spain and go to England. And so there's, and they're not just one league, right? Where in the US, you've got Major League Baseball, you've got Major League Soccer, you have the National Football League. And occasionally you've had these upstarts, but it hasn't like worked very well.
SPEAKER_02:And we have competition from, from college sports and at least football and basketball, right?
SPEAKER_00:So,
SPEAKER_02:yeah.
SPEAKER_00:That's right, yeah, for the league. But between leagues, but there's not a, it's almost, there would have to be like an inter-league agreement if you were going to work it out other than with money for players to transfer between, say, the top league in Spain and the top league in England. And I don't know how much of this is, I'm not a historian of this, so I don't know how much of the kind of free market model of labor, I know there's a little bit, because there was an antitrust agreement This is all kind of coming back to me, thinking back. But, you know, how much of the history of it is just, well, these are just people providing their services, right? And you had a bunch of teams who kind of came together to form leagues
SPEAKER_01:as
SPEAKER_00:independent economic agencies rather than someone saying, we're going to form a national whatever league and start it from the beginning with a franchise model.
SPEAKER_02:Yeah, yeah. That makes sense. That makes sense. I mean, there's all, you know, We often, I think, tend to underestimate the path dependence that actually leads us to the structures that we're faced with.
SPEAKER_00:Yeah, so the structures can be really different because of that path dependence, right? But what's interesting is it's not like they're not facing the same sorts of problems. Right. They're trying to meet the same consumer demand, although that's also path dependent. The consumer taste for competitiveness in America might be different than in Europe precisely because they've become accustomed to different kinds of entertainment. But the same idea about what should a wealthy owner be able to create an instantly dynastic team, well, that's common to both.
SPEAKER_02:To both of them.
SPEAKER_00:To both of them. And they just use their existing structures to solve them in different ways.
SPEAKER_02:In different ways, yeah. Which is one of the things I liked about that example, again, to just, emphasize that, as you point out in the paper in a couple of places, we have this tendency to look at the way things are and think that that's the way it has to be instead of just recognizing that there may not be a one-size-fits-all answer to some of these problems, that they can be approached in different ways and are typically approached in different ways. So what about the downsides that you mentioned? Black markets and incumbent entrenchment especially incumbent entrenchment, which is, I think, less familiar than the potential loophole problem to most people, I would think.
SPEAKER_00:Yeah, and it's interesting because one way of describing the problem is that in order to protect your distinctive purposes of your enterprise, your market, right? You segregate from markets which have other kinds of purposes or where leakage or currency exchange would somehow disrupt your purposes, like the judicial bribe example. So that's, you know, one way of looking at things is, well, that's the upside. The downside, you know, is the protection of your internal rules, your internal purposes. And the downside is that once you have rules forbidding people, say, to pay judges or to inject all of their oil earnings into creating an instantly dynastic football team, or for giving a candidate$3 billion to mount the biggest campaign you've ever seen in the United States for public office. So once you have those rules, then it creates a large incentive to try to skirt them. Right. Because once people are limited in their ability to spend outside cash in a way that would be effective, it's obviously going to be really effective, maybe even more effective if you can find a way around those rules. And so anytime you forbid something, as you know from your work, you create a black market in that thing. You create incentives to try to avoid detection or to smuggle in what you're doing in ways that don't look like fraud. They don't look like what's being forbidden. So that looks like a downside. And another downside is that once you forbid money or resources from coming in from the outside, the only thing that operates, if you've done a good job of it, are the internal rules. And so you could have a critique of those internal rules saying, hey, this market or this institution actually works better if incumbents can be upset from time to time. And so forbidding currency exchange kind of protects incumbents, where incumbent is just defined as those people whose power is benefited by the existing internal rules. And so what's interesting to me is that you see both that characteristic advantage and those two characteristic disadvantages cited in campaign finance and in European soccer and in other examples.
SPEAKER_02:And in kidney shortage. Right. I mean, almost across the board. Yeah, right, right. Exactly. Yeah.
SPEAKER_00:and um
SPEAKER_02:i'm sorry go ahead
SPEAKER_00:but that incumbency thing is like you know people will hear about like white knights right like you know in political and incumbents it's well known have huge advantages in political campaigns um name recognition etc especially you know when you get away from like the top line races and you get to other races there's an incumbent people maybe know who that person is and so there's some research that takes like more resources more effort to kind of become known if you're a challenger um and so if you give and you restrict each candidate to an equal amount of resources, that actually favors the incumbent. And the system might be better if there were more resources given to a challenger who could maybe become more well-known. So that's just an example. And so one of the criticisms of maybe some sports economists of the description I've given here is, well, actually, the incumbency protection is the very reason that they enacted financial fair play. This bug, in fact, is a feature for the people who created it. And of course, my paper takes no position on that. It just observes that this is a market segregation technique. The putative end could be this one. Right. But in fact, like it has these effects and I'm not making any position on whether people actually had those reasons. Maybe somebody really did want to create, you know, maybe someone would benefit from a black market and that's why they make something illegal. Right. Right. Right. Maybe they want to, maybe it's incumbents who are like really worried about all of these oil barons who are getting involved in football. So all those things could be happening.
SPEAKER_02:Right. So one of the I want to talk about some of the applications to repugnant markets, because, of course, that's my favorite thing. And we should always talk about what I what I like. It's your show. It's my show. What's the point of having a show if you don't talk about what you like? But, you know, one of the things that you had to spend or chose to spend. I mean, I'd be interested to know which it was quite a bit of time on in the paper is actually just thinking about the definition of of a market. And was that, I mean, were you just interested in the various definitions and thought that they could help you in this sort of, I don't know, pattern-seeking generalization that you were doing? Or was part of it that people were like, yeah, but what do you mean when you say market?
SPEAKER_00:Well, I'll tell you. When I started talking about like early versions of this idea to people, right? A lot of pushback I got was just on the choice of word. the word market. Because I think people don't see things, many people in the legal academy don't see things in the way that I do. And so- I do, by the way. I mean, I
SPEAKER_02:hopefully do. And so I was like, oh, wow, this is, you know, like on the one hand, I was familiar with what you were doing in the sense that I get that question too. And so, and that's what I was like, you know, I wonder how much of this was just pure interest and how much of it was people saying, yeah, but what do you mean by market? Which is always a frustrating- Yeah.
SPEAKER_00:And I didn't just get like, what do you mean by market? But like, you're confusing people by calling these things markets. Like when you call like a judicial system, a market, like, yeah, there's some like economics literature on the market for this or the market for marriage and things like this. But like, you're just confusing people because market is all about exchange, right? Or it's all about this. And so you should use institutions or something. And it's just, ultimately it's just about words. So it doesn't matter. But of course the word market has a lot of power because it, it, I think by using market rather than just bear institution, it focuses on the fact that people have power, right? And the individuals are negotiating that power within the market to reach a decision, whether they're exchanging something or not. And exchange mediated markets are just one kind of decision-making institution within which there's kind of this exercise of individual power. So for me, it was important to like be provocative like that, but also important to make clear just how slippery a term market is, right? That how it doesn't have these kind of sharp, boundaries to it and in fact how there's just like i said there's the sea of institutions out there of which we are members of various overlapping ones and our lives are mediated by this sea of institutions which can be perceived at different scales and and um so seeing those things as more as all similar but with different power structures allows you to see oh there's just a bunch of like similar things going on and the purpose here in market a maybe really different from the one in market C, but they're both different from the one in market B and like, Oh, what's going on? And you have these like purpose driven vehicles, some of which are like connected together in very thick, almost direct ways. And some of which are like walled off from each other. And all of that is a matter of like, well, how do we want to work together here? You know, how do we want to create these things? And so, you know, so, so the answer is I wanted this kind of provocative label that I think gets at something true. about the similarity among these institutions, and also strikes directly at, I think, the impulse that a lot of people have, or many people may have, maybe many people don't, but maybe it's just something I perceive, that, well, if you're critical about something which is happening in a market, well, this isn't a market, and so that criticism doesn't apply anymore. uh you know the reason that we shouldn't allow um spending of this money over here is because this isn't a market and that should only happen in markets right and so it's like you know arguments based on words aren't anything at all right yeah they're just uh so the other thing i would say though is that like i'm pretty terrible at like um pitching and placing articles for second year law students in journals.
SPEAKER_01:Join the club.
SPEAKER_00:Since I had a really close call with like a really elite journal with one of my papers, like it was the closest I got. And then ever since then, it's been like, you know, if I get one or two journals who's interested in publishing it, it's like pretty amazing. And the truth is like, I have no one but myself to blame in a way, because as you point out, like if I took out this section on what is a market, I think the piece would be more instantly accessible. because I think the campaign finance soccer thing is like an intuitive thing that would kind of grab people sooner. And I think it does, you know, reading it again, it kind of slows people down a little bit. So like if I were more interested in placing it, well, I think I would have written it differently. But the truth is like my ultimate scholarly enterprise is really in that section, like advancing this idea of taking the institutional perspective, where the institutional perspective is not like there are these ontologically extant institutions, but that our social relationships are projections of our own mind. And to understand law is to understand how human beings and for what reasons human beings conceive of their projects together. And so it was really important for me to say, here's a way of looking at the world. It's different from attributing a strong ontology, which you would do if you had these particular reasons, like modeling very precisely in this one way. It's distinct from what Walzer did for these reasons. But like, it's a really important way of seeing things. And once you see it that way, then we can start talking about, well, how is like, you know, judging similar to European soccer, right? You know, what, what can we learn from, and how is it that I can talk about European soccer and have dynamics that I also see occurring with repugnant transactions? Like I've got stuff I can talk to Kim about that also have interested likes of interested, like some sports economists.
SPEAKER_02:Right. Right.
SPEAKER_00:And so I thought it was necessary to lay that groundwork, but you know, it's that kind of thing. Like if I were smarter, I would have written it in a different way. maybe that where the medicine goes down more easily. I
SPEAKER_02:don't know. It's not, I mean, I just think it's a very daunting enterprise really, because as you point out, economists tend to have a pretty expansive definition of, of market. I mean, you know, Gary Becker probably being the most famous example, but I mean, and then most other researchers seem to just adopt this sort of, I know it when I see it approach, that's a market, that's not a market. And, um, I'm okay with the former, with treating everything as a market and analyzing everything as a market. But the latter is problematic, I think. But I mean, I think you're pointing out quite persuasively that the former can be problematic too, because of the power that we associate and the assumptions that we make about what follows when we label something a market,
SPEAKER_00:right? Yeah, maybe if I were like going to, I'm trying to think if I were going to write it again, how would I say it? But one way of looking at it is the way I'm using market is not so much identifying things, but it's a way of describing what's there. So market is more of an adjective to describe an institution that can be attributed to any institution. It's a way of looking at institutions.
SPEAKER_02:Yeah, I agree with that.
SPEAKER_00:I
SPEAKER_02:guess I always thought that one benefit of, I mean, sometimes I purposely use market terminology in places where people don't like it. And I'm doing it on, and people have, you know, I've had commenters that, you know, they're like, I actually don't hate your conclusions in the paper, but what I hate is the language you're using. And the paper. I don't know why you have to refer to these people as sellers and these as buyers. And, you know, I'm doing it on purpose in part because for exactly what you said is because I want to highlight that what's going on here are different power relationships, right? And we tend to take that for granted when we assume that something, when something's labeled a market. But when we talk about things being cooperative enterprises or donative, like it gets lost. And I always think it's important to retain it. But your article did make me think about that because it's a loaded term, right? And so, you know, as I found out by people just yelling at me just because I'm using the word market, right, even when they agreed with the conclusion. And so it actually could be more productive to, I don't know. either explain what you mean or use something else rather than just trying to offend people.
SPEAKER_00:Yeah. Well in the, you know, hopefully in the book where I like bring together the public private stuff, the models of law stuff that I've done and this sort of thing, like the core, the core concept is, is institutions, which again are kind of projections of the mind about our relations with others. You know, it's, it's certain models of connections that we have and market is just It's just a way of seeing how that thing is happening that says, okay, well, there is some individual power. It's a little bit like we can talk about cells in the body or we can talk about all the organelles that make up these cells. They're just different ways of understanding what's going on depending on what we're trying to do, depending on what our question is. except, you know, I don't know, I don't know about cells, but at least with institutions, like there's no, there's no like ground truth. There's no like ultimate truth that's like interesting. What's interesting is like how our projections mesh together or not and what follows from, you know, how our behavior follows from those projections. So that's kind of the ultimate project, right? And then putting out these little pieces and trying to lead up to that. But what you say, I think is like really important. Like, why is it that people, react so strongly against describing this as a market. There's something interesting there. They say, no, this has to be reserved for this purpose and not for this other purpose. And I don't think that's right, but it's super interesting that people will respond that way.
SPEAKER_02:I agree with you. I don't think it's right, but I also think that it is interesting and worth figuring out why that is and working within it or trying to make sense of it in some way, right? Because I think that you're right. As you said, words are just words and disagreeing about that doesn't make any sense. But at the same time, because we start with a whole set of normative and descriptive premises from using those words, it can sometimes get your point across and it can sometimes completely obscure at the point that you're trying to make. So I appreciated the discussion, but you know, it's, it was also, I said, you know, I wonder whether people pushed him on this. What is a market thing? Oh,
SPEAKER_00:they did.
SPEAKER_02:Yeah.
SPEAKER_00:I'm sure lots of law review editors did too. And that's why, but I never heard from them, of course. Okay. So I
SPEAKER_02:want to, I want to talk about repugnant transactions, which you come to sort of at the end of the paper. And so I want to know kind of from your view, what you think this analysis can add, teach us about repugnant transactions. And I have some ideas of it, about it. From my perspective. Oh, I'm
SPEAKER_00:sorry. I was going to say, you can use, no, I want to hear your ideas before you just throw it to me. I want to hear what, like, cause I wrote this part thinking I would love to know what, what, what Kim thinks about how all of this work that I've done
SPEAKER_02:and
SPEAKER_00:just gesture at here. What would she do with this if she had it all? Well, if I
SPEAKER_02:were a nice person, first of all, we would have had that conversation before you published the piece rather than after. And so I'm sorry.
SPEAKER_00:But I was clear that this was just gesturing toward that, right? And so it was partly because I didn't want to do the whole thing until I had... The other part, I felt like I had some handle on it. At least talk about the soccer, this other thing, the general aspect of things. But then it also... appears to apply to the moral rights is I also do in this section. I
SPEAKER_02:liked that.
SPEAKER_00:Reconceptualization of Radin's theory and just repugnance more generally. But like, so what do you think? Listen, I'm dying to know.
SPEAKER_02:Well, I mean, so my, so what I, well, I guess what I wanted to know from you is, The repugnant transactions seemed to me to be very different from the examples that you used and ways I'm going to tell you about. And so I was interested in whether you disagree with me that those differences exist or potentially agree, but just contend that the method is still a useful means of analysis, which I would agree with. And so, I mean, one thing that's, so for example, I don't think that, this would alter, say, Michael Sandel's view about what sort of currency would be appropriate when it comes to buying sex or babies or kidneys or any of the things that he likes to talk about, right? And so one big difference, I thought, was, and I mean, you're clear about this in the paper, right, is that there needs to be some agreement about the purpose of the markets. which we have some broad agreement when it comes, you know, there's disagreement around the edges, right? But we have some basic agreement about what say the delivery of justice should be based on and it should be non-monetary criteria. You don't just buy a judgment, right? Whereas the repugnant transactions often strike me as at base being a disagreement about the purpose of the market. And so I don't know. What did you think? Or maybe I'm glossing over what are more disagreements than I think with respect to these other examples.
SPEAKER_00:Well, it's interesting, right? In the judicial example, I talk about, and this is just, I've got this little two-by-two box at the end about pluralistic understanding of values and comparing that with the rivalry point. But in the judicial market, it's not so much there's a unity of purpose as a kind of unity around what doesn't count as a purpose. Like our purpose is not to reward the rich, right? And almost everyone would agree with that, right? Maybe even everyone, at least out loud.
SPEAKER_01:Yeah, I think that's
SPEAKER_00:right. But what purpose criminal justice should serve, like, I think there may be several. So there may not be, maybe if I were more careful, and I'd have to go back and see if I did it this way, but there may not be unity of purpose, but there may be unity behind non-purposes.
SPEAKER_02:Yeah, that's what I took from your paper, yeah.
SPEAKER_00:Yeah, and so in Repugnance, like, I think... I don't know which ones you want to talk about because it may be more useful to kind of run it through various examples, but whether it's a surrogacy or baby selling or, or kidneys, um, I think there is, um, behind most of those, a, um, pretty broad agreement around what should not be purposes or not be rationales for distribution. Um, at least for kidneys, I think, um, When people talk about and support, I think I've come around anyway, but if you support people being able to pay cash money for kidneys without any kind of limit, I think that's not so much because you think that the rich should get all the kidneys. as like that would induce a more efficient, that would induce a better market in kidneys. It would save more lives because more people, it would compensate people who donate and all kinds of reasons you think that might be good. But there's still, I think, is a unity of purpose around like, you know, it shouldn't just be, this kind of life-saving stuff should not be distributed based on wealth. I think there's basic agreement that wealth alone should not do that. Rather, the exchanges are means to obtaining wealth. a better distribution. This is kind of like Posner's defense of surrogacy too, right? It's not so much like middlemen are important in that market for Posner, not because we want to make middlemen rich or we want to make childbirth available only to the rich. At least that's not what he says, but rather this is a way of kind of creating more supply and making more people happy. And so if So, you know, there's kind of a uniformity there, I think, around non-purposes, even if there's not a uniformity around purposes. I'm not sure how far that goes. I'm interested in your concern, though.
SPEAKER_02:Yeah. So I think I would say that in the case of kidneys, right, which is the example that you started with, that the answer to that question, would be, yeah.
SPEAKER_00:Only because I talk to you. Yeah,
SPEAKER_02:there is agreement about the non-purposes, but at the same time, agreement about that non-purposes does not mean that we cannot have, it doesn't tell us in and of itself what currency to have. And the reason for that is because the same redistribution rules that you discuss, a version of them that you discuss in connection with sports, are what we could and should use in the kidney market. In other words, we would pay... kidney donors in order to increase the number of donors that we have, or even just to make the donors whole, which we don't even do that now, right? But at the same time, we would distribute them according to medical need. In other words, we would separate the supply, right? We would separate the way in which we generate supply from the way in which we distribute. And so I think that you're right, that there is there is general agreement that that's not that, you know, sort of, we don't want all of the, we don't want all of the kidneys to go only to rich people. We want them to go based on medical need. And yet that is not, that's, that alone doesn't lead us to a ban on compensating donors through money or otherwise. Right.
SPEAKER_00:Yeah. And yeah, I think the point I try to make in the paper is that my reading of a lot of the repugnance literature and my hypothesis about what people object to is not from the fact of transaction simpliciter. It's not transaction itself, but it's from the idea that this isn't how we should distribute these things. In other words, when we're thinking about distributing and allocating kidneys, that's a collective decision. We should make it in this way for the medical reasons. Right. And allowing transaction connects it with this other kind of thing going on where people are, uh, you know, segregated according to, uh, or people are ordered according to the amount of money that they have. And those two things shouldn't go together. And I think what, what for me, like an interesting, I'm kind of just thinking out loud, but an interesting connection with, um, uh, with football and, and, um, and campaign finance is that, um, uh, you don't have to completely segregate the markets in a complete way to accomplish your goal, right? And so, you know, the football example shows us you can allow like interactions between football and the rest of the market through the sales of jerseys and other things, right? So long as like what you're disallowing are, exchanges which would conflict with the purposes that you have within your enterprise and so like with surrogacy like it's very common i think still although it's been a while since i've taught like the baby m case and the fallout from that so you would know this a lot better than i would kim um but uh but a lot of courts were favoring like the ability to compensate a surrogate uh for her efforts for the time right so it's almost like a salary cap right right yes on the surrogate yeah um and and you know i guess the the goal there is to is to make families or people who want to start families who are of little means equally competitive with very, very rich families, right? Because if there's a salary cap, then at least that could be a goal. And it shows that, yeah. What were you going to say?
SPEAKER_02:Well, so I actually agree with you that that is the effect of those rules. But I don't think, I think that very few people would agree that, that that should be what we're doing, right? In other words, right, if we bear in mind, I mean, that that's a wage, that's a price cap and therefore a wage cap, right?
SPEAKER_01:And
SPEAKER_02:what we're doing is redistributing wealth from surrogates who are lower income to intended parents who are higher income, right? When looked at in that way, I think that very few people support that particular objective, right? They may still think that we should limit surrogate payments, but I think very few of them would subscribe to that particular rationale, right? And so I guess, again, I would just say that, you know, it still seems, segregating the markets in this way seems to me to not be using the diversity of mechanisms at our disposal, right? Including that the government could provide for surrogacy services, right, as part of its menu of infertility services that it provides. Now, I realize that's asking a lot, right, you know, in this country. But nonetheless, so I just think, so to me, the conversation is always very confused. I actually, I don't think that that the reasons that people assert for why they want these rules are the real reasons i guess is my
SPEAKER_00:yeah that sounds very similar to people who um it sounds to me similar to the objections to this to the kind of the the stylized story i told about european soccer right where it's like you know you say that the reasons are to promote this kind of um competitiveness or like natural, quote unquote, natural level of support that these are the reasons. But in fact, they're doing it precisely to achieve what you say are some of the downsides of segregation, right?
SPEAKER_01:Right, right.
SPEAKER_00:And segregating in this way, the stylized story would be, well, if it's capped at merely compensatory levels, then what it does is it preserves surrogacy arrangements to surrogates who have donative intent And it equalizes the ability of people who want to start families to pay a surrogate. If it reduces the supply of surrogates to only those with donative intent and there aren't enough of those, then they're going to be allocated according to some other way and not through wealth unless there are black markets. Now, that's a stylized story, which I don't think is accurate, but it captures something about the dynamics. I mean, reducing the potential pay of surrogates to just compensatory levels is a kind of market segregation. And I don't take a position on whether it's good or not, right? I'm just saying, well, that would be the stylized story. Here are the kinds of ways that that could fail. And I'm not sure who the incumbents are. So I think the black market concern is probably one of the paramount concerns there. And then obviously exploitation of of surrogates, because I think it probably is a false story that the compensatory levels really only induce surrogates who are, who have donative intent.
SPEAKER_02:Unquestionably, it's people who, you know, have fewer, who have lower opportunity costs, right? I mean, and that's, so, I mean, and so... Well,
SPEAKER_00:it's the same in European soccer, right? If you, basically it's a way, you know, it suppresses the wages that footballers can
SPEAKER_02:earn. Well, so I think, so let's try... This is interesting. I can talk about this endlessly.
SPEAKER_00:It's 2020. I got nothing on my agenda, Kim.
UNKNOWN:Exactly.
SPEAKER_02:But I think that the two examples that you chose so far, surrogate motherhood and kidney donation, I think though that you are right about the sort of in some ways you were right about the general agreement about like sort of what the distribution should be, right? That it shouldn't be based on wealth. When we look at something like sex work, right? Prostitution, that to me is much more fraud because I don't think that we have general agreement on that point.
SPEAKER_00:Right.
SPEAKER_02:So
SPEAKER_00:my positive prediction there, right, is just that when you don't have agreement on purposes, the segregation arguments are not going to get much traction. Because where you get segregation arguments are when people generally agree, hey, we should decide this way. And so it's a problem. So you have a lot of unification around the idea that it's a problem when power comes in from outside. With sex work, a lot of people just can't agree on what reasons should people have to give away or sell sex. And at some societies, I think there's very strong agreement about that. At some times and places, there's been very strong agreement about that. And you see very strong segregation norms, like where there's a lot of... But where there's less uniformity around that, you see less support for segregation rules. And so it's not a surprise to me that when people think of sex differently and human agency around sexuality very differently, that there would be a lot of pushback against norms against sex work. And to the extent there are norms against sex work, they're for other reasons, right? Then that... then somehow like the market in general, the financial markets interfere with the agreed upon reasons why we think people should choose sex partners.
SPEAKER_02:Yeah.
SPEAKER_00:I don't know. I'm sorry to cut you off though. You were going to say
SPEAKER_02:something. No, no, no, you didn't. Well, it's good because it gave me a chance to think about where I was going with this. And so I'm not sure, but I mean, so here's what I find to be the complicating thing the complicating thing about the sort of no payment for sex, which is the norm that the law has settled on throughout most of the United States. But I mean, but we know that that's, but we know that it's not true, right? I mean, we, so, you know, there are missed, there are kept women. I don't, and I'm not talking about the black market, right? I'm talking about the wide variety of ways in which we exchange sex or companionship or all sorts of these things for reasons other than affection all the time in perfectly legal ways, right? And so it's not that we have decided that sex can't be exchanged for money, that that's not the proper mode of exchange. We've decided that a particular transactional form of it, right, is what we'll prohibit, right? But we don't attempt to stamp out sort of all the other ways in which sex is exchanged for money all the time, right? Everything from mistresses to, you know, to dates where something, an expensive date where something's expected. And so I just, I sort of, I struggle then with statements, which you're not making, by the way, but I struggle with the folks who do make them that sort of say, you know, we have a general agreement that this is not, you know, how we distribute this things that strikes me as, as being empirically wrong. And especially if we take a longer historical lens, right. And, and sort of think of dowry and bride price and, and sort of, you know, and so, I mean, so I guess that's where I come out on, on sort of, these are very, fraught things. And I think that you're right that there is more agreement on how we will allocate kidneys and babies, but much less about how we would allocate sex.
SPEAKER_00:Yeah. So it's not like, as you point out, it's not like there was this period where money had nothing to do with sex, right? Right.
SPEAKER_02:Never been the case. Right.
SPEAKER_00:Right. It's always been about power and who has the power to dictate, you know, who has... sexual priority over others. And, you know, uh, dowries involve like family power and perpetuating that family power by getting kind of first choice at, um, at, uh, sex and child rearing. Of course, those are together. Um, so I'm not making, I don't think I'm making a claim here about, um, uh, I just don't mean to be, um, that there is this kind of totally egalitarian, um, notion of what, um, what reasons we should give in allocating sex, right? I don't think that most, like, I think if most people, like, most people would not support laws saying that when you are attracting men or women in high school, you can't buy a fancy car or you can't show them your car, right? Or that you have to hide your head in a bag in order not to take advantage of kind of unearned attractiveness. Or even that
SPEAKER_02:you can't buy an attractive woman a car in exchange, you know, right? In exchange for... her affections.
SPEAKER_00:Right. So but so there's a lot of, I think disagreement about, you know, the basic question is why should someone have sex with someone else? Right. There's a lot of disagreement. We don't have a uniform. We don't have uniform agreement.
SPEAKER_02:You're right. Even just leaving money out of it. We don't have uniform agreement about that. You're right.
SPEAKER_00:Yeah. Right. So it's, it's, it's a very, you know, people have very diverse views about it. And so, but, but again, like with the other, maybe they have more uniform views about like what kinds of what kinds of reasons are bad reasons, right? And so because I'm bigger than someone else, should I be able to demand sex from them? There's pretty uniform agreement that that is not okay, obviously, right? And so there's also, there had been in many places, a lot of agreement that like simply being able to offer money, simpliciter, right? That that's not okay either. But as you point out, like that is, Maybe one of the reasons for pressure here is because, again, I don't think it's the transaction itself so much as what the effect of transactions is on the sets of reasons that we think are important for the allocation purposes we've decided on, right? And so it's no surprise that there would be pressure on money for sex where money is important for sex in all kinds of other ways, especially once because sex becomes part of romantic love rather than about just pure family power because you might have a view that like family power should be perpetuated and it's good but like people who make money in the trades and they want to use that to buy sex that's not so good like you can imagine like how that might might exist um i think one of the things that's interesting here though is that um so i do draw like you know raden's um uh um domino effect um argument in here because i think that as complicated as the market in sex has gotten, and it's put pressure on all of these things, there was this kind of view, at least in many states among many people, that just being able to use money as a raw inducement for sex is bad, and that we don't want people to acquire sex purely because they have the power to. That's problematic for all sorts of reasons, and I don't think I... But that suggests that one reason to ban prostitution in Raiden's language is because... like a pure money market for sex involves advertising, right? Or can involve advertising.
SPEAKER_02:Could, right. I mean, in most jurisdictions, it doesn't, but.
SPEAKER_00:Right, and well, so this is the key, right?
SPEAKER_02:I mean, legal jurisdictions, yeah.
SPEAKER_00:Right, and so one thing that you, her concern, of course, is with market rhetoric's kind of spilling over into domains of other values, right? So when we're choosing sex partners or romantic partners, maybe we shouldn't be swayed by the nice car and all these other things, but that becomes harder and harder to maintain when sex is advertised in particular ways in like purely market transactions. So the idea there, right, is that maybe I already said this, but that you can't have the non-commodified and commodified version of a thing at the same time when the commodified version comes with all kinds of rhetoric about why this is a more valuable thing than that. Cause people in their non commodified, the example I always give, at least when I taught this in property in class is that, you know, if there was a, if there were a market in buying and selling children and it was like a company by advertising and everything, it makes it harder to look at your own child without having a thought about what that advertising tells you about the worth of that child. Like even if you don't have the same beliefs, like, you know, if they're constantly advertising that a child with these attributes is worth more than a child with those attributes, it infects and somehow infests your relationship with your own child.
SPEAKER_02:So, I mean, maybe, right? And I mean...
SPEAKER_00:Well, that's a review. I'm just, yeah.
SPEAKER_02:No, no, right, right. So, I mean, I guess this goes again to me is sometimes it's hard for me to differentiate like what are moral claims and what are empirical claims within this literature. But this one strikes me as being empirical, right? The difficulty of maintaining commodified and non-commodified versions of a particular good at the same time. And so, you know, it just doesn't seem to me necessarily that europeans right who mostly permit the purchase of sex value non-commodified sex any less than americans do right i mean like we we have a comparison here and it doesn't seem to me that americans right where paid reproductive labor is mostly permitted um and when it comes to buying egg and sperm at least is advertised right right um and yet i don't and that is forbidden right in in most of europe and most other and really in many other countries. And it doesn't seem to me that Americans value their children more instrumentally or value them less or necessarily expect more perfection from them or any of the things that people claim might happen, right? And so, I mean, it seems to me that we have like actual test cases of both of these worlds and that, you know, a lot of the ills that are supposed to come from it, there's no evidence that they're coming from it. I don't know. This would be my-
SPEAKER_00:I totally agree that it's empirical, right? I think with all these questions, it's like, well, are there actually oil barons who are dumping a bunch of money into soccer teams? If there aren't, like, then this is not a problem, right? And the harms from segregation may be far worse than its benefits. And so to hear, like, if you have legalized prostitution living alongside quote unquote, non-commodified sex. you know, does that change? You know, are people affected by that or not? Like Posner is very doubtful along those lines. And one of the things that he wrote, and I, I'm also kind of doubtful, but, but what if there's a thriving secondary influence, as I call it a secondary influence market in that, like where, what you're trying to do is to get people to spend money on this like commodified sexual market. And so you advertise, Hey, here's all this great sex you can have. And you talk about like how this is better than that. And, and then suddenly people look at their spouse and maybe they are influenced by that. Now, I don't know what to think. I don't know. I'd want to study that. I'd be guided by the empirics. That is an
SPEAKER_02:argument people make about pornography, actually.
SPEAKER_00:Well, I was going to say that. Exactly. I think you go to porn and people advertise porn and they produce porn in order to make money. So there's a commodified market in sexuality that people consume. And I think there's a lot of evidence that it does shape people's expectations of sexuality. I'd say a lot. I don't know how much I've seen studies about this, but it's one of those things that because it's prurient, it seems probably that it's understudied. And, but I think really important because I think, you know, our sexuality is a, you know, it's one of the key domains of life and it certainly drives, you know, you know, ancient wars and, and, and, and modern strife and all kinds of things. Um, it would be nice to know. Yeah. Right. Uh, how this is, uh, how this is affecting things. Um, and, uh, so it, I think it does, uh, you know, it's possible that, um, this kind of commodified sexuality and pornography is affecting our theories of value and purposes in this non, what we expect from our partners and what we expect our partners to tolerate in terms of our finding other partners. Like all of this is, um, I think kind of fraught. So I think for my part, I think the segregation lens provide or the institutional models lens and then the segregation, the potential segregation type regulation maybe provide, I think it provides some clarity. At least it's the way that I see these things playing out, right? That we have this institution going on here that's commodified pornography or prostitution. We have this institution going on over here, which is the kind of market for the ordinary market for sexuality, where norms tell you, it would be like, you don't get, if you're in high school, like when I was in high school, you don't get a girlfriend by saying, I'll pay you a thousand dollars to be my girlfriend. Like, that's just like, you know, it's not the way that anybody thinks they should talk about being out. Now, maybe I could buy a fancy car or do, you know, there are other ways of doing that, but like, there's a very, there's a constrained set of reasons that we think that people should pair up. And
SPEAKER_02:anyway. But when you got a little bit older, you would in fact say that, and there would be plenty of places for you to do it, right?
SPEAKER_00:Don't you think that's kind of French though? I mean, unless you're talking about actual prostitution. No. Are you talking about like mail order brides?
SPEAKER_02:Well, from seeking arrangements and sugar baby. I mean, like there just seems to be like, you know, they're just new variations on an old theme, I think, of sort of a kept woman.
SPEAKER_01:Right.
SPEAKER_02:That the internet has allowed us to perfect and, you know, and sort of in some ways commodify even more because, you know, you can compare it to shop now.
SPEAKER_00:If there was someone who had made that arrangement in, say, on your faculty or in your social circles, like, they would be ashamed to say that, right? I mean, like there's a strong norm, I think against saying, Hey, I'm a, I'm a kept woman or I have a kept woman or something. Cause like, especially if we use the woman part of that, it hearkens to this idea that a woman is property that can be bought and sold. And the woman is happy to gain her power from the man that she's bought and sold. But you know, there's this, like, I can't imagine anybody in my circle of friends who would ever admit to like being with someone because of the power, you know, the financial power that it brought them. Although, you know, they, might be happy to have financial security, but they wouldn't say that was the reason. So in terms of, so this is why this institutional models lens is like, okay, how do I perceive the functioning market for pairing off, right? And even the word market, it sounds bad there because it's like, you know, we were all raised in the era of romantic love, right? And so there's something, but that is the... that idea that these complicated ideas about romantic love and how people should find one another or informing our ideas about the right way of doing things, the right, um, or at least if we can't agree on the right ones, at least what are some of the wrong ones? Um, now the fact that I just wonder
SPEAKER_02:if there's, um, I get the sense from my students, for example, and we'll ask them after this podcast. I can't wait to hear what they say. We talk about this all the time. They introduce me to a new market almost daily, right, in this. And, I mean, I get the sense that, I mean, these things are not free of continued judgment, but that it's a lot less than what we have for it, perhaps.
SPEAKER_00:Yeah, there's nothing– And that would just, I think the theory would be explanatory, right? Because it says that the extent to which you tolerate, so to what extent do you tolerate paid pornography or paid prostitution? Like, I think the prediction here would be you tolerate those things to the extent that you think they are either just as good as or should be represented in society as much as the romantic love idea, or when the what Graydon calls the non-commodified version of sexuality, has a list of acceptable reasons or acceptable principles in it that are not so distant from the other ones. And everyone perceives it's not so distant from the other ones. So there's no infection going on between the two, right? Again, I think the prostitution is made illegal when there's an agreed-upon need to segregate. And when banning it is the only effective way to segregate because of like market rhetoric language that Radin gives or for other reasons. But where sexuality is much more complicated and people realize, there's not a lot of, there's no orthodoxy on what the reasons are, then I would expect there to be a lot less of a consensus around segregation. And so a lot more saying, well, pornography is, prostitution is, acceptable, or at least, I don't know, like let people do what they want to do. And I mean, don't you think that's not, isn't that consistent like with these, whether it's Grindr or whatever else? Well,
SPEAKER_02:yes and no, right? But I mean, it does seem that we're assuming, right, that law and regulation sort of mirrors social norms and understandings. in a way that's ignoring other types of power structures and other reasons that the law might be the way it is, right? And so, I mean, surely there's a point where if law becomes too disconnected from reality, it has to give way and is a problem. But it seems to me that there could be quite a bit of slippage there for quite a long time, right? And that could be what we're seeing in many of these markets, actually, that we're discussing today. And so I guess one of the questions that I ask constantly have is, you know, is there a point where, and, you know, people will disagree, again, I guess about the empirics of this, but, you know, often it seems to me that the segregation does such a poor job of what it's supposed to be doing relative to other, especially relative to other things we have at our disposal, right? to address the concerns, right? Like bans on advertising or the public distribution of things like kidneys or the government provision of particular services. I mean, the list is almost endless, right? That it does cause me to say, are these the real reasons that we're banning this, right? If it works that poorly and if we have other things at our disposal, is that really what's driving the segregation that we see? I
SPEAKER_00:think that's great. Yeah, I think that's, I think that's great. And it, and because the like banning advertising is, is essentially segregating the financial markets from the secondary influence market, as I described in the paper. Right. And, and, and you would expect that to happen when you believe in the market and you think that the problem comes from ultimately comes from connection, but there's no problem with people like, giving reasons why you should do this or that. We see that in campaign markets. So in a way, the segregation, hopefully the segregation effort and basically the institutional models perspective shows that there are multiple ways of if the real concern is like, you know, the purposes that animate this market should be these things, perhaps which are in some conflict, but definitely not these things, right? Well, how do you achieve that? Well, one way is to take out the bad actor, the oil barons or whatever else that you know conflict, right? But another way, as you say, is like, well, just cut off the bad secondary influence. If that is effective, that's a way. Another way, though, is, well, let's look internal to the market and just make it not reliant on the things which are susceptible to currency exchange. And so if the government just pays for these things and distributes them, like, you know, like with votes in the legislature, everybody gets one vote. We confiscate it at the end of a decision and then we redistribute them like, you know, equally at the beginning of the next decision. So we're not gonna, you know, instead of relying on, I don't know, on people to make their own good decisions about not accepting money, but this is just how we're gonna do it, right? And public provision of healthcare is another one, right? Instead of, I don't know. I mean, so I think that, hopefully it illuminates that these are other possibilities. It also illuminates what you're saying. Like your sneaking suspicion is that when people do segregate, their real reasons are not to necessarily to preserve those internal workings. Right. But in fact, to achieve one of these quote unquote bad effects. Right. So, you know, either they want the black market or they want the, or they want the white Knights.
SPEAKER_02:Right. Right. Or it may not be conscious. Right. It may not be conscious, but, but there's, I mean, you know, and I think the, the reason that Al Roth uses a term like repugnance is for exactly this reason, right? Which is to, not to say that these things are, you know, some people have said, oh, you're just saying it's irrational. I don't think that's the purpose of the term. But it is to say that it's hard to pin down what it is exactly. And that as you, sometimes as you begin to peel, okay, peel away the layers, right? And say, this is your concern? Well, market design has an answer for that. but the segregation still remains, then there's a point at which we have to say, well, there's something left, right? There's something left that's driving this push to segregation that doesn't seem to really be related to the arguments that are put forward, whether it's concerns about equality or exploitation or coercion, because many of those things can be addressed through other mechanisms. And so, and yet there's a resistance.
SPEAKER_00:Yeah, and so it's like with other issues, you'd probably want to use some kind of deliberative polling to figure out like, How much of this is because once you say dollars, people automatically have a connection with, well, that means rich people get more. And so you'd have to figure out what do they think when they are really educated about how this
SPEAKER_02:market will work. Now I get to pitch the work of a prior guest because you should listen to the podcast with Nico Lecetra and Mario Machis and read some of the survey work that they've done on exactly this point, exactly this point, which is that most people... do in fact sort of shift once they learn. So, you know, especially kidney donation is one of the ones that they look at. And as people become both more educated about the need and reassured that there will not be inequality in the distribution, then many people become much more receptive to compensating donors. There is a fairly... you know, significant number of folks. I think they refer to them as hardliners who do not shift either way. I mean, there are people who want to market and they don't even care whether the market doesn't work very well. They just want to market. And then there are people who do not want to market and they actually don't care how many people would be helped or whether any of the concerns that they have about equality or whatever can be addressed. But most people do shift.
SPEAKER_00:Yeah, that's not surprising. I mean, because it's... Well, it's not surprising both that you would have dissenters because you take any, you know, legislature, look at public legislation and there are people who would say that like the rich should get their way. There are people who say that you can't like pass any legislation that imposes any equalities at all. There can't be any winners or losers, right? But like many people would like, if you could convince them that a lot of people would like, I think, agree to secondary rules of legislation, that preserve kind of a good principal agent relation that basically police for breaches of a principal agent relation. And then, expose like weed out like the worst possible consequences. Right. And, and so so it's not so dissimilar, like, you know, you have a design maybe that uses dollars and people like, whoa, not use. And then you explain to them, well, here's how we're using the dollars. Like here is the actual effect. And they say, okay, well that can, that now is is, is accords with my sense of what the goals of this particular decision-making structure should be. Right. That people who people who want to have children but can't biologically are now able to do that through this means. Right. And if you structure it this way. OK, I see. Now it's not that it no longer. And in both circumstances, it no longer serves this. I now I'm convinced that it's not serving a purpose of domination. Right. There's an anti domination principle. set of rules that are built into it. And now I'm okay with it in situations where I think anti-domination is important, which is legislatures and probably surrogacy and sexuality and a bunch of other repugnant transactions, right? So that's not surprising to me.
SPEAKER_02:Well, I've kept you for longer than I claimed I would keep you, but it was too much fun.
SPEAKER_00:Yeah, this is great. I'm so happy that you engaged with the paper and I hope that students have some have some fun with it and that it's not too much drudgery for them to work their way through it.
SPEAKER_02:No, not even close.
SPEAKER_00:I was gonna say, I got an email actually from and maybe this is something you talk about with the students. Yeah, because I know we're at the end now. But I got an email from someone at another school who read the paper, who wanted to know what they thought about the college admissions scandal. what I thought of that given in light of these things, because that's another
SPEAKER_02:strongly
SPEAKER_00:egalitarian market, right? And so I think, especially for your work like that, talk about repugnant transactions, right?
SPEAKER_01:And
SPEAKER_00:it's where, and your former colleague, Jed Purdy, I think had the perfect tweet on this, which is like, you know, we, let's see, how did he say this? We live in a society where we think that proficiency in sailing is should be, is a perfectly salient criteria for admission, criterion for admission to colleges, but we worry it might get corrupted.
SPEAKER_02:Right. Actually, that's brilliant. Yes. I mean, in some ways, you know, everybody was, of course, focused on the corruption, but at the same time, I kept asking myself, I do not understand why I understand why the coach of the basketball team gets a say in admissions. Like that at least, although we may think that it's corrupting, like it at least makes financial sense. I do not understand this, you know, the sailing team or even the tennis team for that matter. I found, yeah, I mean, the whole thing was very eye-opening.
SPEAKER_00:Yeah, it just puts a lot of pressure on what those, like, what are those? Do we really have shared purposes on college admissions? You dig into it. Maybe we don't. Maybe we
SPEAKER_02:don't, yeah.
SPEAKER_00:Yeah, anyway. I'd be interested to hear what you guys think about that.
SPEAKER_02:Well, thank you so much, Christian. It was great to see you.
SPEAKER_00:Thanks for having me.
