Taboo Trades
Taboo Trades
Paintings & Prostitutes with Stephen Clowney
My guest today is the always interesting and funny Steve Clowney, a professor of law at the University of Arkansas. He has also worked as a legal consultant in Hawaii, a college admissions officer, and a gravedigger. His main areas of research include zoning regulations, monuments, the history of cities, handwritten wills, and the presence of violence in informal property systems. He joins us today to discuss a paper that I’ve long admired, Does Commodification Corrupt: Lessons From Paintings And Prostitutes, published in the Seton Hall Law Review.
Reading list:
Clowney Bio https://law.uark.edu/directory/directory-faculty/uid/sclowney/name/Steve+Clowney/
Clowney, Nationalize Zoning, 72 Kan. L. Rev. (forthcoming) (symposium essay).
Clowney, Do Rural Places Matter?, 57 Conn. L. Rev. 1 (forthcoming).
Clowney, Anonymous Statues: An Empirical Study of Monuments in One American Neighborhood, 71 Wash. U. J.L. & Pol'y 35 (2023) (symposium essay).
Clowney, The White Houses? An Empirical Study of Segregation in the Greek System, 41 Yale L. & Pol'y Rev. 151 (2023).
Clowney, Sororities as Confederate Monuments, 105 Ky. L.J. 617 (2020) (symposium essay).
Clowney, Does Commodification Corrupt: Lessons From Paintings and Prostitutes, 50 Seton Hal L. Rev. 1005 (2020).
Clowney, Should We Buy Selling Sovereignty, 66 Duke L.J. Online 19 (2017).
Krawiec Bio https://www.law.virginia.edu/faculty/profile/kdk4q/1181653
Krawiec, Markets, repugnance, and externalities, Journal of Institutional Economics 1–12 (2023).
Krawiec, No Money Allowed, 2022 University of Chicago Legal Forum 221–240 (2022).
And I was emailing these men through mail escort websites, and they weren't using their real names. So some of the emails I had to turn up were literally, dear Mr. Chocolate Thunder, my name is Steve Clowney. I'm a researcher at the University of Arkansas. So it's probably the wildest FOIA request that you could ever imagine.
SPEAKER_10: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. My guest today is the always interesting and funny Steve Clowney, a professor of law at the University of Arkansas. He has also worked as a legal consultant in Hawaii, a college admissions officer, and a gravedigger. His main areas of research include zoning regulations, monuments, the histories of cities, handwritten wills, and the presence of violence in informal property systems. He joins us today to discuss a paper that I've long admired, Does Commodification Corrupt? Lessons from Paintings and Prostitutes, published in the Seton Hall Law Review. Hi guys, thanks for joining me today. Thanks for having us.
SPEAKER_06:Yeah, thank you for having us.
SPEAKER_10:Well, why don't we start by having you both introduce yourselves to our listeners?
SPEAKER_03:Yeah, so I'm Lauren. I'm a 3L here at UVA Law. My main points of interest are actually towards the horse meat trade and those kind of topics. So this is very new for me. I'm really excited to dig into a new topic. And I also think this commodification framework is very interesting for it. sacred goods, kind of any good. So I'm really excited to talk to Steve about that.
SPEAKER_06:Yeah. My name's John Henry. I am a 3L as well. I'm actually also a fourth year dual degree student with the public policy school. I'm going into labor and employment law, specifically worker side. And so I was really interested in this paper because of its focus on workers' perspectives from art appraisers to male escorts. And I think diving into the paper, I really appreciated its focus on the paternalistic element of the corruption argument. And especially from my perspective of labor, it's like how should workers navigate these spaces where the trades are shoved out of the realm of legality and therefore out of the realm of regulation and ensuring that people who engage in these trades are making a fair deal and should be getting the services that they provide. It ranges from college athletes to sex workers. So happy to join Lauren on this episode.
SPEAKER_10:All right. Well, this is the podcast for both of you then. So both of you specifically volunteered to be co-hosts for this particular episode. What was it about the topic or the author or the paper that made you want to engage a little bit more deeply with this one?
SPEAKER_03:I think for me, it was similar to what John Henry was talking about, that labor side. But I think it was really interesting that Steve juxtaposed art appraisers, which are completely legal and normalized and part of a functioning fine arts society with prostitution and male escorts, which are excluded from this realm of business. And so I thought it was really interesting to see those put together and interviewed as one to really get that point of commodification and corruption of the sacred and how that's not the case.
SPEAKER_10:Yeah, I think it's a super creative paper. When I first saw it, and I first saw it in draft form before it was published, and I thought, oh my gosh, like, why has nobody really thought to do this before? It seemed so interesting. And I think he was quite junior at the time. And I was just like, this is just a really creative intervention into this space. What about you, John Henry? Yeah.
SPEAKER_06:Yeah, looking at this paper, I've been really seeing it as kind of the culmination of this season, of course, dives into the broader themes that this season and probably and also past seasons as well, of looking at the commodification thesis and these broader arguments that run through all the papers we've been looking at. But also on the season, we've talked a lot about sex and gender, we've talked about labor, about everything from college athletes to sex workers talking about how are folks treated when they engage in these trades. And And how does that repugnance that consumers or policymakers assign to trades, how can that impact the folks who are trying to make money from engaging these trades? Because that's what they want to do or that's what they need to do. And so I think for the listener, like myself, this is a really great piece to kind of pull together the entire season of what we've been talking about throughout this year when it comes to the broader arguments about commodification and corruption, but also the specific practices that are impacted by this.
SPEAKER_10:Yeah, I agree. This is actually a really nice, in some ways, recap of everything we've done up to this point. Okay, so we've talked about why you chose this episode. Let's talk a little bit more about what you hope to learn from Steve and want to ask him more about. I know that you guys both have questions. Your classmates have some questions. Lauren, where do you hope the conversation goes once he joins us?
SPEAKER_03:I'm interested in learning exactly how he defines a sacred activity because I think we've got this assumed notion of the universality of sacredness across all demographics of certain activities and how you pick what activities are sacred, first of all. But also I'm really interested in his argument about education and how education is a really great force alongside compartmentalization on behalf of the workers for fighting corruption of sacred goods. And I think that is a really interesting point. about how to get these goods into a market.
SPEAKER_10:Yeah, I think those are both really good points. And by the way, I assume that he's going to tell us that he doesn't actually believe that any goods are necessarily sacred, that he's just actually adopting definitions that these other people have used so that he can critique it. But like you, I was really struck by the education point here. It's one I haven't really seen in other papers, and I thought it was really interesting. John Henry, what about you?
SPEAKER_06:Yeah, I was really struck by the education point as well, but I want to touch on some of our classmates will be asking you kind of about how do you generalize these findings from a very specific ethnographic study. And what I appreciate about this paper is the structure of it, how it's crafted to make a very specific point about specific elements of the anti-commodification thesis and scholarship. And perhaps it can't be a generalized to other contexts as much, but I do think that by diving into specific points, I think, for example, his caveat where he distinguishes fairness, I think it's a really great example of how he tailors his paper to make a very narrow but effective critique. Because I think there are a lot of listeners who are probably proponents of decriminalizing sex work who also happen to be more skeptics. I'm thinking of the leftist listeners who we may have. Maybe. Who knows? Who knows? I don't want to tip my hand this early, but... But their skepticism, though, is coming from a much, much more, in my opinion, more thorough critique of the economic system. And it's not a critique of commodification. It's the alienation that occurs when one produces a product that is under the control of someone else and not yours. And I think that critique is not in the Sandell literature. It's not in the anti-commodification critique that Steve is examining again through New Lens. So I think that fairness caveat that he draws... really shows how narrow his paper is and how that specificity really makes for a convincing argument. But I'm very curious to see how that specificity is then kind of re-examined when our classmates are asking, okay, but how do you generalize this? So curious to see what happens from that tension and seeing what is drawn out.
SPEAKER_10:Yeah. So just to emphasize, and I'm sure we're going to talk about this more once Steve joins us, is that there are numerous critiques that have been raised against the commodification of these activities, such as exploitation and coercion and others. And he's just focused on one very specific critique and in particular is focused on what one might call the Sandelian version of that critique, right? John Henry mentioned leftist critiques. And I do think there was a time when some of these critiques were originally were emanating more from people who might be described as sort of further left people like Peggy Radin, for example. But I think you're right, John Henry, that the current flavor of those critiques is more along the line of what Steve talks about in this paper, and in particular, have taken on an empirical component, which is part of what he's getting at.
SPEAKER_06:Yeah, absolutely. So I'm really excited to see how that comes out, how that very specific focus comes out and see how that holds up when all of our classmates begin asking questions.
SPEAKER_10:Lauren, anything else that you are
SPEAKER_03:hoping to get out of the discussion today? Like John Henry, I think his critiques of the existing commodification literature were very interesting and very well crafted. It's nice to see that new perspective on some of those conclusions about the traditional studies, like the daycare study or blood donation. And so I'm excited to see how that comes out as well throughout this podcast.
SPEAKER_10:I'm with you. I really liked that part of the paper. And I agree with his assessment that those people are very sloppy in their invocation of those studies and don't recognize the various caveats and limitations, including the ones that the authors themselves have put out there, right? So I definitely thought that that was a really nice review and critique of some of the literature. John Henry, anything else?
SPEAKER_06:Let's dive into the episode. I'm really excited to hear what he has to say.
SPEAKER_10:Me too. So let's join the others.
SPEAKER_08:Hello out there.
SPEAKER_10:Hi, welcome. It's great to see you. Great. It's great to be here. I'm really thrilled to be doing this. So I think, Steve, what we should do is just begin by saying, having you tell us a little bit about the background behind the paper, what motivated it, and how the idea came to you. I mean, the first time I saw it, when you sent it to me in draft form, the first thing I said was, my God, this is so creative. How did he think to combine these two paintings and prostitutes in the same paper? And, you know, how did he get the idea? Well,
SPEAKER_08:I got the idea to write this paper when I was a student in law school. You're kidding! Oh, absolutely. So to all year, we were assigned to read an article by Margaret Radin, Peggy Radin, called Market Inalienability, which I'm sure you guys are familiar with. It's one of the most cited and influential law review articles of all time. I found the piece, it's very, very smart. It's nuanced. It's thoughtful. It also struck me as deeply wrong or at least incomplete. So as you guys know, at the heart of market inalienability is an argument that sacred things are tarnished or corrupted when they're bought or sold for money, right? that can change the way that we think about it and make it difficult to appreciate the things higher order values. I
SPEAKER_10:think this is an important point. I don't mean to interrupt you, but I just want to emphasize for our listeners as well as for the students who are on the podcast today that Peggy's critique is a very strong one. An actual market is not required for corruption to take place. Merely using market terminology to describe things or thinking of sacred things in market terms is sufficient to be corrupting.
SPEAKER_08:Now, the piece is so powerful and smart, it deserves the citations that it's gotten. And again, her argument is just that the commodification, even just talking about it, corrupts. An example would be, if you pay kids to read, to encourage them to read, that the money defiles the educational process and teaches the child to regard reading as a chore rather than as an inherent source of wonder. So... I think this is super important because the corruption argument is really at the heart of a lot of our justifications for things like banning organ sales, making surrogacy illegal, making sex work a shameful thing. So the point of my paper is just to test this theory. Does commodification corrupt? Is it true that the market changes how we think about sacred things? Again, that's an intuitive argument. It's a powerful argument. But does it have any empirical legs, right? I mean, that's, I think, the one big weakness of market paper is that it's all theory. So what I did was I interviewed people who work in markets for goods that we think of as priceless. Specifically, I talked to high-end artipricers. These are people who are putting actual prices on unique goods And I also talked to male escorts, a group of people who commodify sex and their bodies. Now, I just want to say upfront, this is a very small-scale study. I don't think it provides a definitive answer just because the numbers are so small. But what I found suggests that the anti-commodification argument isn't as strong as some theorists would have us believe. Art appraisers and escorts both said that the commodification that they experience in their workdays doesn't corrode their appreciation for the more transcendent joys of art and sex. Escorts still enjoy having physical intimacy in their private lives, and appraisers find a ton of pleasure in visiting museums and collecting art in their free time. So that's sort of the nut of the article.
SPEAKER_10:Did you consider other sacred activities before you landed on art appraisers and male escorts? And what made these attractive to you to study specifically?
SPEAKER_08:So, yes, there was some other things that I thought about. The thing I really wanted to do, I really wanted to title this Paintings, Prostitutes, and Popes. And I really wanted to look at the commodification of religious objects. So, for example— Religious vestments, like the robes and the hats religious figures wear, there's a market for those. Also, communion wafers. Those are bought and sold. And there's really one company in the United States that makes the overwhelming number of them. I tried sort of reaching out to those folks. It's not
SPEAKER_10:only a commodity, but a monopoly.
SPEAKER_08:Correct. And it was hard to get them to talk for fear of offending their customers. And I will say, it was difficult... The art appraisers were easy. You email them, I'm interested in what you're doing, immediate emails back. The sex workers were tough. Everything about that was sort of difficult. They were lovely and thoughtful, but there was a lot of university bureaucracy around that. And frankly, I was a little bit naive about how difficult that would be. I'll tell you sort of a quick story. I started trying to talk to just local female sex workers, and I thought it would be as easy as talking to the art appraisers. So I was just Finding phone numbers on Craigslist and calling them and being like, hi, I'm Steve Clowney. I'm a nerd. And I'd like to talk to you about your sex life. That went very, very poorly, as you can imagine. So I quickly figured out that I would have to pay them a little bit for their time, which is totally fine. But then I ran into problems with the university. So I got a little bit of funding to do this. But the university was like, you want us to give you a public school? You want us to give you money to pay sex workers? I said, yeah, that's exactly what I would like you to do. So that had to be appealed up to the dean of research. He said yes. Then they were like, I said, okay, well, they're like, you have to fill out a form, social security numbers, because they're going to be official university employees. I said, I can't do that because this is an illegal activity. So they said, you want cash so that you can pay sex workers. And the best part was at the end, to prove that I had used this money to do the study rather than on myself, I had to turn over all of my emails. And I was emailing these men through mail escort websites, and they weren't using their real names. So some of the emails I had to turn over were literally, Dear Mr. Chocolate Thunder, my name is Steve Clowney. I'm a researcher at the University of Arkansas. So it's probably the wildest FOIA request that you could ever imagine.
SPEAKER_10:Thank you for this setup. It's been really helpful. And I'm now going to turn it over to John Henry and Lauren. They're going to take it from here and sort of direct the conversation.
SPEAKER_08:Great. I'm thrilled.
SPEAKER_06:Thank you so much, Kim, for kicking us off. And thank you, Steve, so much for joining us. I don't have an alliteration, but my first question is on your analysis of information and education in these transnational spaces. So whether it's a parent learning the consequences of arriving late to pick up their child from daycare, an art appraiser learning what distinguishes a piece of art from others, or a sex worker honing their skills and boosting their competence, an underlining theme throughout your study that you call out is that markets can serve as an instrument for sharing information about a good with both the consumer and the worker who produces that good. You argue that for art appraisers, quote, putting an accurate price on sacred objects demands education, rigorous training, and cultivation of the eye. And for male escorts, you argue that, quote, a majority of escorts confided that their market work positively impacted their private lives. Commercial sex honed their sexual skills, boosted their confidence, and deepened their understanding of other men. So my questions are, if commodification produces information and knowledge, what does that say about the anti-commodification thesis? How much does, quote, perhaps like a fear of the unknown animate anti-commodification concerns?
SPEAKER_08:Right. That's a... Super powerful question. Let me break it down quickly. I'll give you a couple examples of what I found, and then we can talk about the questions there at the end. So one of the things I found is that the anti-commodification folks have missed how markets can promote learning. Quick example, one from this week. I've got two daughters, and they are both... enormous Chapel Roan fans. So we're driving home from their dance competition recently, and we decided, or at least I proposed, that we rank her songs, that we assign an ordered numerical value to each of the big hits. Now, this was super fun, but it's difficult to compare disparate things. Now, how do you compare one sort of slower song to more of a bop? But it's not impossible, right? You have to defend your reasonings. So we start off and my younger daughter proposes that the best Chapel Rowan song is Hot To Go. She says it has the best beat. The lyrics are fun to sing. There's an easy dance that you can do. My older daughter then hops in and encounters that Good Luck Baby is obviously the best song. The lyrics are richer. There's a better, more poignant story. The vocals are stronger. We go back and forth. You know, I'm seeing some things that I missed in the songs. People are changing their minds. I'm arguing about some of the lyrics that I love. And we also have to have a digression about what counts as best. So through this debate, through this discussion, through assigning the values, I at least learned a ton about the music, about what my daughters sort of value. Similarly, like in my research, when I was talking to the art appraisers, if you want to put a price on a piece of art, you need to know so many things. So say that you're trying to appraise... one of Van Gogh's olive field paintings. You need to know about Van Gogh's career. You need to know about the provenance of the piece. You need to know about the context of the work. You need to know how it fits into the larger ethos of the post-impressionist movement. Then you need to explain if the painting itself is a good, better, or best example of Van Gogh's work. Is the brushwork energetic? Is it capturing the light? Is the composition distinctive? To get an accurate price, you've got to learn a ton about Van Gogh. So that was one of the things I found again and again, is that people who do market work end up knowing a lot. Remind us of the questions again.
SPEAKER_06:Yeah, so with that in mind, if commodification produces information and knowledge, what does that say then about the anti-commodification thesis? And what happens when you prevent these market transactions from happening?
SPEAKER_08:Yeah, so what I think that shows is that the anti-commodificationist theory is incomplete at best. Why? Because they don't account for the educational power of markets. Elizabeth Anderson has famously said that someone who tries ranking the greatest works of art, that they amount to Philistine snobs and pigs precisely because those least open to free exploration and development of their aesthetic sensibilities. That seems quite wrong to me. In fact, that seems to be the opposite. The people who have to put prices on unique goods, they have to know more than anybody else. You also asked, does this show a fear of the unknown?
SPEAKER_06:Yeah, I think your argument lays out clearly. It's in line with economic theory of like how transactions promote information gathering. And that's not a radical concept. That's a standard economic theory about market transactions. So assuming that anti-commodification proponents understand that point, how much do you think there's just a fear of the unknown that pervades anti-commodification concerns about these trades? Is there a fear of this information, of the information that could emerge
SPEAKER_08:from this? I think probably it's true that we don't know exactly what would happen if we had a market for organs, right? There are often unintentional consequences to even the best intended policy changes. I think I might wager, though, that the larger problem is that we sometimes know what would happen, but we don't like the results. Markets, for better or worse, reveal truths about what we value. So I'll give you a dramatic example. Let's say that we had a market for babies. Now, I'm not advocating for that, but if we have a notion that babies, all babies, all human life is priceless. It
SPEAKER_10:would be okay if you did on this podcast, though, Steve. That's
SPEAKER_08:true. This is a safe space, right? Yeah, I mean, we have this notion that all babies are priceless, right? That they are all infinitely valuable. If we had a market for babies, we would quickly see that that's not what we actually believe. Right. We talk a good game, but some babies, healthy, whiter babies would be worth more than sort of sicker, darker skin babies. And like, I think that's the bigger fear is that the market reveals things that we sort of know, but don't want to acknowledge.
SPEAKER_06:Thank you. That's a really fascinating point. And before I turn it over to Lauren, I just also want to make a quick plug for Pink Pony Club and the family debate. So not to entreat on that, but that's a bop.
SPEAKER_08:I think that might be the right answer. Yeah.
SPEAKER_03:Thank you so much for being here today. I'm also going to make a plug for California, but I do have to know what ended up being the number one in the car argument.
SPEAKER_08:Okay, well, the argument for good luck, babe, was the one that ultimately sort of triumphed. But we're going to call you guys in the next time we do this.
SPEAKER_03:Sounds good. Yeah, put us on speaker. I wanted to follow up with John Henry's conversation on education, because you discussed market work as being this powerful educational agent against, quote, the stale cake of ignorance, which I love that wording, by the way, and that this market work facilitates a deeper understanding and insights about the sacred. And I think the example you brought up of paying children to read is actually really salient here, because the I'm sure a bunch of us as kids participated in readathons growing up where you read a certain amount of books, you get a prize for that. And so conceptually, paying kids to read sounds a little iffy. But in practice, when you actually get comfortable with that behavior, you go, oh, it's not so bad. So I'm curious about, especially with activities like sex work, that are traditionally frowned upon, how do you get people to become comfortable enough with behaviors perceived as corrupting to begin participating in that market work and start that educational process?
SPEAKER_08:Oh yeah, that's good. I'm not a person who believes that markets are the answer to every problem, but... If you want people to participate in behaviors that are currently viewed as corrupting, I think we have a pretty easy start. And that's just to legalize those behaviors. You could think about the market for marijuana. Until very recently, there were people across the political spectrum who felt that weed shouldn't be a commodity that was subject to sale. On one hand, you had old hippies who sort of put out this notion that weed is something that should be shared and not really run by multinational corporations. For-profit weed could be corrupting. And then you have people on the right just saying, this is really, really bad for you. So they stigmatized sort of marijuana. They racialized and stigmatized sort of drug dealing. And then we can think about, well, what happened when a few states legalized recreational marijuana? You know, it took about six months and maybe a year for a lot of that to flip. You can now go into a dispensary that looks like an IKEA. You can be served by a bud tender named Madison. And there's just very little social stigma to any of this. And I would guess something similar would happen if we set up a market for kidneys. If you allow the sale of kidneys, it wouldn't be very long before there were online guides about how the process works. There would be reviews of the best surgeons and the best recovery spas. Markets do a I know in this particular historical moment that President Trump is threatening these mass deportations, and there are a lot of people worried that Americans simply won't do agricultural work. That's wrong. I'll do agricultural work. You're just going to have to pay me a lot more money than I make now. But yeah, I'll pick cotton, I'll pick strawberries, but you're just going to have to pay. So I think that's a start. To start to destigmatize some of this stuff, we just need to legalize it.
SPEAKER_03:Thank you. And I think the marijuana example is a great one to illustrate that, especially with Western states. So I'm going to kick it to Nia now, who's going to ask about the assumed universality of sacredness in anti-modification argument.
SPEAKER_09:Yeah, good morning. And thank you so much for coming to speak with us. My question is, based on your research, have you found that a lot of anti-modification arguments assume that the value people put on different activities is the same across varying backgrounds? For example, while one person may think child rearing is especially sacred, the sentiment may not be the same for all people. If that's right, what does this suggest about the theoretical foundation of the commodification critique?
SPEAKER_08:Yeah, I think you've touched on a perfect example of child rearing. I'm not exactly sure how closely you follow Instagram tradwives, but there are definitely people who believe that child raising has like a sacral quality. And if you turn over your children to a paid caregiver or even to a public school, you have undermined your sacred duty as a woman and as a caregiver to bring the child up in the world of darkness. Now, I don't agree with that, right? I love my children, but... I will tell you, between us, I did not enjoy at all being a caregiver to very young kids. I found it incredibly boring and also gross. They are constantly shooting bodily fluids at you. It's just an enormous amount of drudgery for very little reward. So what's that mean? My kids went to daycare. And I think this difference is really important, though. And I think what it shows is that we need to be really careful about banning transactions because we fear that they corrode the sacred. How sure are we about what counts as sacred? And there's a ton of examples from history, too. I think the one that sticks out the most for me is the early Christian prohibition on usury, the sale of money for interest. That was banned for a long time. And not only was it banned, selling money was seen as worse than selling actual people. So these differences through history and even these differences within the same historical moment show us that if we're thinking of banning something because we want to preserve its sacral quality, we really need to make sure that what we're doing has widespread buy-in because people are going to differ on this stuff. a lot.
SPEAKER_06:Great. And thank you so much. I'm going to turn it over now to Tanner, who has a question on the application of your findings to consumers.
SPEAKER_07:Hi. Yes. So your study focuses on the servicers of these transactions. And I was curious if there was any unique aspects of these servicer roles that might provide an alternative explanation to the finding that their view of art and sex is not corrupted, despite constantly assigning monetary value to each. For instance, does the high frequency of exposure that comes with these jobs enable the ability to compartmentalize and create psychological boundaries between their personal and professional spheres? And I was wondering if you think you would find any material differences in your results if you had interviewed consumers or casual buyers of these transactions who might not be so well-equipped to distinguish.
SPEAKER_08:Oh, that's such a good question. Yeah, I only talked to high-volume art appraisers and sex workers. So... Is it possible that they have a superpower or compartmentalization? It's certainly possible, right? And I think talking to the sex workers, I did see that they had a lot of rituals to demarcate their work sex from their private sex. And this is pretty consistent with a lot of stuff that's been written about sex workers. So for example, when they're doing their sex work, they often use a different name. That's like incredibly common. They'll have sex in different places. The presence of a condom, right, is often sort of a big demarcation for a lot of sex workers. Art appraisers too, talks a lot about how they compartmentalize their work from their private life. So in their work, they are assigning a number to a piece of art, either for an auction or for an insurance reason. But they said again and again that when they went to a museum, that they could turn off that part of their brains or the number part of their brain. So you're asking, what about a more casual consumer? Would that be the same? Let's try to puzzle through this. So we can think about sex work. There are millions and millions of American men who are casual consumers of pornography. Has it changed how they think about sex? I mean, I think it's a really interesting question. I don't know that we have great data. I'm certainly open to the fact that it has. But again, for these millions and millions of American men, do we think that the casual consumption of pornography has... corroded sex in their long-term personal relationship? Has it undermined the sacral quality of sex for them? I don't get that sense, right? I mean, like, talk to your friends. I think there is certainly more room for research here. But so far, I haven't seen it. And certainly not to the degree where I think it would necessitate a ban on these kind of things. In fact, I think you can actually take this sort of farther. I think sometimes... a price, and especially a high price, can reaffirm the sacred, especially for a casual consumer. So I live in Northwest Arkansas. We have a nice museum here of American art called Crystal Bridges. If you're ever in Arkansas, look me up. I'll walk you through. So there's a Georgia O'Keeffe. There's a Marth Rothko. But I remember I was sort of zipping through, and I saw a landscape painting. It didn't stick out to me. I kind of zoomed right past it, and my buddy grabbed me, and he said, That painting, that's called Kindred Spirits. It's by this artist called Asher Brown Durd. And Alice Walton paid... Inflation adjusted about$60 million for that painting. At the time, it was the highest price ever paid for a piece of art by an American painter. And that sort of stopped me in my tracks.$60 million, that's a big, big number. So instead of just walking by, I turned around and stared at that painting for a good two, three minutes trying to figure out what it was about this thing that cost so much money. So yeah. So it's a good question. It's not something that I studied super closely, these sort of casual consumers. I don't have any reason to believe that it would be super different. And in fact, sometimes I think if the number is big enough, that tells us, hey, stop, take a second look. There's more to see here.
SPEAKER_10:Steve, I just want to follow up on the sex work slash pornography point, which I think is an interesting one. As you probably are aware, there are a lot of arguments out there today, and I'm not sure of the empirical basis for them either, that pornography is does in fact alter the perception of sex, at least certain types of pornography. And you might or might not have read The Right to Sex. That's one of the central arguments that easy access to pornography, especially at a young age, has sort of altered the way that many men, young men especially, think of sex and what it's supposed to be like and all of that stuff. And so I find all that interesting. We In the United States, sex work is broadly illegal, legal in a few jurisdictions, but that's not the case in much of the rest of the world, right? And so I do think that we have a number of data points on the effect of the legalization of sex work. And I'm not convinced that I don't know New Zealanders think about sex so much differently than we do in the United States. I do think we have more empirics on this than some people sort of want to consider. So
SPEAKER_08:I think that's a good point that, again, I'm open to the fact that The widespread availability of pornography is changing the way that we sort of view and consume sex. I do think we have to ask, is that the pornography or is that the fact that it's completely decontextualized and we have, in many states, no real sex education, right? Yes, agreed. I also think that there are some really good educational things about sex. pornography. So I live in a pretty conservative state where it is sometimes hard to talk about being a sexual minority. I do think that there is something important for like a young gay man in like Southwest Arkansas in a town of 500 to see on the internet, like two guys just like going at it. And guess what? Neither of them turns into a pillar of salt, right? They're having a nice time. And at the end of the day, everyone is happy. I think that can be a powerful learning experience that Yeah, good
SPEAKER_10:point. I should emphasize that I think that these complaints are largely about a particular type of pornography and not really about pornography more generally, although some people adopt the argument opportunistically, probably, to encompass all types of pornography.
UNKNOWN:Yeah.
SPEAKER_08:Sure, yeah, I mean, we're sent a message that there's a certain kind of sex that is the right kind of sex, and it's largely heterosexual, it's largely male-dominated, and that is a problem.
SPEAKER_06:Thank you, and I believe Cyrus has a follow-up as well to Tanner's
SPEAKER_01:question, so I'll kick it over to Cyrus. I do have a bit of a follow-up for Tanner's question. So, in your paper, you argue that commodification doesn't necessarily corrupt the sellers of the art and the sex, but could it corrupt the market itself? So if a market becomes overly focused on monetary value, could that lead to a decline in the quality or diversity of the art or sexual experience being offered? And are we concerned that markets for sacred things could become shallow? And I'm thinking specifically about about this through the lens of social media and how that's reduced market variance and how people spend their attentional resources. It turns out that most of the time, the immediate payment of getting the dopamine from the next TikTok thing is enough for most people most of the time. And that's now how they just spend their attentional resources.
SPEAKER_08:You guys are asking such profound questions. You guys are pushing me here. Okay, so last week I got into a debate with a friend about ugly sweater parties. So her argument was that ugly sweater parties have been corrupted by the market. Those aren't the words she used. But her argument was that... 10, 20 years ago, if you got invited to an ugly sweater party, you had to do one of two things. One, you had to go to your mom or grandma and find an old sweater that they wore, or you had to go to the thrift store and work to find something that was sort of funny and expressed who you were. Today, you can just walk into Target or TJ Maxx or whatever, and there are dozens of ugly sweaters. Right. And so her argument was that the ugly sweater party means less now because it's so easy to, to, to access through the market, these ugly sweaters. And I thought that was, that was interesting. Right. And I had a, a sort of a similar thought recently about when I was in high school, I was really into this nerdy car game called magic, the gathering, right. It's sort of like a dungeons and dragons kind of thing. And like, When I was just starting out in the Magic world, it was just a group of nerds getting together, having a nice social time, trying to use their creativity to make the most powerful deck. There is now a huge market surrounding Magic the Gathering cards and stuff, and it doesn't feel the same as it did then. So I think a couple of things to unpack here, and we can talk about social media. I think one thing is that The market has responded to a demand. I don't know that the market is shallower. There is, however, there's a lot of junk. There are a lot of bad, ugly Christmas sweaters. There's also some really good ones. You can buy a cashmere ugly Christmas sweater if that's what you want to do. So I think the market is not shallower. I think it's richer, but I think it is much more full of crap. And I think social media is the same way. I think social media, we have sort of commodified this sort of production of news and entertainment in a way that there is a lot of it. Most of it is not very valuable. But there is a ton of really, really good stuff. I love clothes. And like my favorite sort of Twitter X account to follow is the menswear guy, sort of dye workwear. You know, social media has made it so that that guy can earn a living talking about the difference between forward and reverse pleats. So the market just responds to what we want and who we are. And it turns out that who we are are like just trash monsters who want to consume a lot of bad stuff. So I think markets... Give us more good stuff and more bad stuff. And I think a lot of times, I guess I'll also say that when we're complaining about the commodification of Christmas sweaters or Magic the Gathering, I don't know that we're complaining about so much the commodification or about the fact that I'll never be 16 again. finding a new hobby or going to a thrift store with my friends thinking about a Christmas party. I think some of this is just middle-aged people looking back with rose-tinted glasses about what it was like when they were younger.
SPEAKER_03:Yeah, thank you for your response. It makes me wish that I could pull my very ugly Christmas sweater with Santa inner tubing down the river out and show it to everybody, but it is unfortunately still in storage. So I'm going to get to Alexa, who's going to follow up on the same conversation we've been having with Tanner and Cyrus's questions.
SPEAKER_02:Hi. In your paper, you study the effects of commodification on sellers of sacred goods. But isn't the core issue more about the repugnance of average citizens and observers, most of whom will never participate in these markets as either buyers or sellers, rather than the intentions or experiences of the participants? For example, in the case of surrogacy, no surrogate is likely to view the baby as a mere object for sale. But the controversy often stems from how others interpret the practice. If you were to design a study to explore this public perception, how would you approach it?
SPEAKER_08:Well, I think the best way to study this I think there is more empirical work to be done. One way to study this would just be to randomly decommodify things that are sacred in sort of different places and see how people's attitudes change. We could randomly assign states to have baby markets or not, and then we could interview people, like get a nice random sample and see how a market for babies or surrogacy would have changed how they think about children or motherhood or whatever it is that we're worried about. I do think there is some work that we could be doing here. We do have drastically different laws about surrogacy. So in the U.S. and California, we're pretty permissive of surrogacy. In Europe, sort of the United Kingdom, much different approach, much more critical of surrogacy, much more willing to ban surrogacy. We should interview people in England. I mean, it's hard to get rid of all the variables, but I think there are some broad things that we could learn as legal surrogacy changed how people think about motherhood and babies. So I don't know that we could get a best study, but I think there are a lot of good studies that we could do with the information that we currently have.
SPEAKER_03:Thank you for that. Now we're going to move to Liv's question, which is a little bit of a follow-up on my earlier question, a little bit of a follow-up on the discussion about social media.
SPEAKER_13:Thanks so much, Lauren, and thanks so much again, Steve, for being with us today. So again, following up on Lauren's question about market work as this educational agent, and also on Alexa's question about who the relevant actors are, so the observers versus the participants. Another powerful educational agent, as we all know, is the media and the way the media portrays sex work. And I've found that, you know, in watching like crime and procedural dramas, these portrayals are almost always negative. So for example, sex work is often portrayed as being involuntary or degrading or even linked to greater evils like human trafficking. And similarly, organ sellers are nearly always depicted as victims of trafficking as well. Presumably, anti-commodification is views on these activities are formed more by these impressions than by actual experiences with the commodification of sacred activities or even by conversations and interactions with actual sex workers, art appraisers, or kidney sellers. So short of changing media representations, which seems somewhat unlikely, are there other avenues that you've identified for education that might offset or counteract these media influence perceptions?
SPEAKER_08:Goodness. One, I'm not willing to give up totally on changing media representation. And I do think this is one thing that social media is decent at. It allows people like sex workers or people who have sold their organs to talk directly to the public. And I do think that we could do more to promote those voices. If we're thinking about banning sex workers, we should probably talk to some sex workers. I also think that we need to acknowledge that here we're all lawyers, are going to be lawyers. We need to think carefully about how law structures and gives meaning to different acts. Sex work is a perfect example. The law plays a real role in how people think about sex work and how easy or hard it is to do sex work. Right now, because of the law, it's very difficult for sex workers to use banks. There's this... huge moral panic around human trafficking. Most human trafficking is labor trafficking. But when we think of human trafficking, we are thinking, as you said, of some young white girl who gets coerced into going cross-state and is sort of pushed into sex work. It happens, right? And we should push back against it when it happens, but that's very comparatively rare. And as we've talked about, there is a regulation of pornography, right? Like in Arkansas, you can't get on to Pornhub here. It's just like we have said that we have used the law to limit people's access to information. So I think as lawyers, this is the first place that we could start. If we want sort of better information, let's make it lawful for there to be better information. Let's push back against the sort of the misinformation that we have. I think that's a good place to start.
SPEAKER_06:Thank you for that response. I'm going to turn it over to Kimberly who's going to shift gears a bit and ask about procedural challenges and potential tweaks to your study.
SPEAKER_04:Yeah, good morning. Thank you so much for joining us. In your paper, you address the serious limitation you face in your study regarding male escorts, such as the average years of experience in the business and the average age, ultimately resulting in what you describe as a small sample of unrepresentative sex workers and noting that the finding may not be generalizable to a larger population. In an ideal world, how would you have adjusted the study to make it more representative and how do you think such changes might have influenced finding I don't know that
SPEAKER_08:it's possible to ever get a representative sample of sex workers, but I think you have correctly identified the biggest weakness in the paper. It's very small numbers. And in particular, I talked to very successful art appraisers, people at the pinnacle of their careers. I also talked to sex workers who continued to do sex work. The thing that I really needed and that would have made the study stronger was to talk to people who had washed out of sex work or appraising because they didn't like it. It's totally possible that there is a decent number of folks who started in sex work, realized that it was corrupting their private sex life, and then stopped. I couldn't find those people because I was looking at you know, the male escort websites, people who are sort of currently doing sex work. So if that number was really big of people who stopped because they felt some kind of corruption, then it absolutely would weaken the study. All I can tell you is that of the people that I talked to, the finding was strong that the commodification of bodies or art didn't seem to be affecting sex. Thank you. Laura has a bit of a
SPEAKER_06:follow-up to Kimberly's question on your respondents, specifically their compartmentalization skills. Another question about your sample population.
SPEAKER_12:Hi, Steve. Like John Henry said, you've touched on this a little bit, but I'm just curious if you're concerned that your respondents were particularly adept at compartmentalization just in a way that's not true for most people. In other words, you know, it seems plausible that those willing to enter and especially those willing to stay, like you mentioned, as providers in this market have a more open mind to these sorts of transactions and are more prone to not letting it ruin their enjoyment of the non-commodified version.
SPEAKER_08:Yes, absolutely worried about that. I do think that as humans, we are pretty adept at compartmentalization. I don't think that's a skill that just art appraisers or sex workers have. I remember being in law school and I was really good at not thinking about my student loans when I was like going out to dinner or getting a drink, right? Those were like two different parts of my brain. So yes, I would love to run this study with more funding, talking to more people and different kinds of folks in different industries. We only have sort of two industries here, but the human mind's ability to compartmentalize, it never ceases to amaze me. So I don't think that that's going to be true of just the folks that I talked to.
SPEAKER_10:Steve, I wanted to ask you one thing I've long wondered about your study. I would classify the sex workers that you interviewed as reasonably high-end sex workers, which is how I would typically categorize anybody who's advertising and meeting people. And so I wonder whether we would find something different from sex workers who are perhaps not at that end of the spectrum.
SPEAKER_08:Yeah, there's definitely a variety of different levels of doing sex work where you have sort of street sex workers at the bottom. The folks I was talking to are probably high middle. High middle, okay. And then you have sort of above that an elite group who
SPEAKER_10:don't need to advertise. Who don't advertise in Craigslist or wherever,
SPEAKER_08:yeah. And I will say that I also selected for people that I thought looked reasonably thoughtful about sex. their lives and what they were doing. So just reading the profiles, it was pretty easy to tell. If someone could compose a sentence, a nice sort of paragraph seemed engaged in what they were doing. So yeah, no, this is not a representative sample. I also think when you're talking about that lower end of sort of sex workers, there's a ton more violence at that end of the spectrum. And so I worried about that. So if you're saying, no, I don't like the sex work. It is affecting my personal relationship. Is that the Or is that the violence and the fear of violence? But almost it would be different.
SPEAKER_10:Just to clarify, I wasn't asking it as a criticism of the study so much as I wanted to know whether I was correctly categorizing your respondents as higher end.
SPEAKER_08:I also think it would be different if I talked to women. That is also a thing that I didn't do. And I made that decision because I wanted to remove some of the gender dynamics. I thought if I'm talking to male sex workers, it would be easier. Again, is it the violence? Is it that men are creepy? I wanted to push some
SPEAKER_10:of that to the side. I didn't think that your results seemed that inconsistent with higher-end female sex workers in a lot of ways.
SPEAKER_08:It's impossible to know what's going on in someone's life. But just based on our 40-minute conversations or hour-long conversations that I have with these men, these did not sound like these folks were coerced into the work as a result of economic necessity or for some other reason. These are folks who, by and large, liked a little bit of extra money, right, and didn't hate the work.
SPEAKER_03:Thank you for answering those questions. And I will say the student loan analogy is very real. So from here, we're going to shift to Alyssa Lawrence's question about the applicability of your findings in this study to a broader range of activities.
SPEAKER_05:Hi again, thank you for being here with us today. So my question is, how will you respond to critics who might argue that the experiences of art appraisers or male escorts don't generalize to other forms of sacred goods that might be subject to commodification, such as organ sales and blood slash plasma sales? In other words, most people have an independent appreciation or even passion for art and sex, but presumably few people enjoy the act of blood draws or an operation to to remove a kidney or eggs beyond just helping other people.
SPEAKER_08:Yeah, great. I guess first I would say, again, I like markets as a general matter. I don't think they're the answer for everything. I like clothes. I like having choices when I go to the store. I like all that. Markets are not going to be appropriate in every single scenario, right? So let's think of an example. Let's imagine that I invite you over to my house for dinner. And you come over and you bring a bottle of Yellowtail Shiraz. I know y'all are cheap, but whatever. You come with this nice little gift. I think well of you. I was like, yeah, that was really thoughtful to do. And the Yellowtail Shiraz costs, let's say,$12.99. Again, I'm like, I welcome you in. We have a nice dinner. Let's say, same scenario. I invite you over to my house. And this time you are running late and you don't have time to stop at the liquor store. So instead of buying the$12.99 yellowtail Shiraz, you put$12.99 in an envelope. And when you come to my house, you hand me$12.99, right? Like, I would think that you were a lunatic, right? Even though an economist would say those two things are equivalent, right? The sort of the$12.99 yellow-tailed giraffes and the$12.99 in cash. I obviously think differently about you, right? So I do think it's true, right, that markets aren't always appropriate. And I do think this is one thing that... how your rating gets absolutely correct is that the more intimate the setting, probably the less appropriate markets are. Now, that's a different question from whether something should be illegal or not, right? For whether we should ban there from being a market. You're allowed to bring me$12.99 in cash, right? Like, I think the meaning is different, but you're allowed to do that. So, do I think that there's a difference between things like art... and sex and things like blood and organ donation? Probably, but I'm actually more worried about art and sex, right? These are the things that people enjoy and that they consume sort of regularly in their lives. So is it possible those two things are different? Yeah, but I think we should be more worried about the things that are more common and that we maybe care more about.
SPEAKER_06:Thank you for that answer. I'm going to kick it to Anthony because I think Anthony's question follows nicely from this differentiating between goods and the differentiation between whether something should be legalized and whether something should be constructed into a market. I think specifically you're getting at class-based divisions in sacred goods subject to market forces. So take it away.
SPEAKER_00:Yes. I think a lot of the discussion we've had so far centers around the corruption concern. And I was kind of more interested to discuss the fairness concern. And obviously the fairness concern takes a few different forms, whether that be concern over lower income status, people being taken advantage of in certain markets. What I'm really interested in is how market forces can establish prices for goods and services that create class-based divisions regarding the access to those goods and services. Put simply, while Americans might be okay with market forces determining that fine art belongs to the ultra-rich, they may not be okay with market forces determining that the organ market is similarly reserved. Obviously, many people see economic inequality as corruptive in and of itself. So all that being laid out, strategically, how should we analyze the fairness concern in conjunction with the corruption concern?
SPEAKER_08:Mm-hmm. Okay, just for folks who are listening at home and may not be as familiar with sort of the literature as you guys are, when we're talking about putting sacred things, things like sex, things like organs or babies on a market, two big objections. One is the corruption concern, which we've mainly been focused on, which is that markets change the way we think about sacred objects. They flatten them. The other objection is the fairness objection, which Anthony is getting at here, which is if you put sacred things on a market, Poor people won't be able to afford them, and we're going to have some problems with distributive justice. These are both concerns. These are both things that we need to sort of grapple with. I think the difference is there are solutions, there are policy solutions to getting at the fairness concern. If we are worried, if we have a market for organs and poor people aren't going to be able to afford organs, We can provide subsidies. So you can think of an example, housing. So a lot of people think of housing as a human right. When you put housing on a market, there are going to be some very poor people who can't afford housing. So what we do there is we either build some government housing or we provide people of low means with a voucher where they can spend their housing dollars. We could do a similar thing with the market for organs. We could provide vouchers or we could just say if you are below a certain income level or The government will pay for you. The difficulty with the corruption argument is there's no real policy fix for that. There's no way around it. So I think that the fairness concern is very real. I think you have to consider that if you are going to have a market for these sacred things. But I do think the problem is fixable through policy in a way that we're pretty familiar with.
SPEAKER_06:I just wanted to hop in and thank you for highlighting that distinction between the fairness and corruption concerns, because I think that was a very important caveat you drew in your paper that really resonated with me. And I think with a lot of other readers who are skeptical of markets, but not from a corruption lens, but from how will these markets function in our late capitalist society where workers could get an unfair deal or there's insufficient bargaining power, not just unfair for the consumers, but really unfair for the workers that you're highlighting. And so in your paper, Throughout that distinction, you talk about bargaining power, and I thought that would resonate with a lot of folks who have different concerns than the corruption concerns. So I appreciate you talking about that here.
SPEAKER_08:Yeah, these are very real concerns. We need to think about the least well-off. And if you really feel that the least well-off will be disadvantaged by the a system of selling organs, for example, then I think it's okay to have objections. But what you also need to keep in mind is not just that that system might be bad. You also need to keep in mind that the system we have right now might be worse. There are always trade-offs for any policy. And sometimes a change that isn't perfect is better than an awful current system.
SPEAKER_06:Great. Thank you.
SPEAKER_03:Yeah, thank you for that. I'm going to turn it over to Alyssa Marshall, who's going to bring us home with a broader question about how to address and potentially change anti-commodificationist views on this whole subject.
SPEAKER_11:Thank you, Steve, for being here and kind of going off of what you just said about the system that we currently are in. I have a similar question in regards to that. In your opinion, what would change anti-commodificationist views and how can that be done? Specifically, in your conclusion, you expressly state that we should not sacrifice anyone's life and certainly not thousands of lives on the altar of a policy built atop such a rickety empirical foundation. As we know, and as you point out, many individuals die due to needing an organ transplant. Even this does not seem to alter anti-commodificationist views. What do you think it will take to alter their viewpoints? And do we truly live in a world that cares more about emotional diminishment value and norms rather than helping others and the greater good?
SPEAKER_08:A big question to end with. Well, I just wanted to start by thanking you guys again for having me here. This has been a delight. I think what I would say is that First, I would just point out that the people who believe in markets, and I count myself among those folks, should recognize that we're probably winning. There's been a spectacular expansion of the availability of things for sale. I think what we need to do going forward is just show that this kind of commercialization or commodification, however you want to call it, that it is freedom promoting and welfare enhancing. We need to ensure that the government rounds off the worst excesses of the market and then explain loudly why markets are good. So if you run into a person who is nervous about a market for organs, it's nice if you can point to other markets that have made life better for people, especially people on the lower end of the socioeconomic spectrum. If you believe in this kind of thing, you should... be willing to defend that belief loudly and proudly and make sure that government works. A lot of times what happens is that government does something, government doesn't devote any resources to it, and then people point to it as an example to say that government can't do anything. Same with markets. If you want to defend markets, you need to make sure that markets work and not just for a certain tranche of people. Great. Thank you so much. This was, I will just say that how much I appreciate having so many readers of this piece. I think what you guys are doing is incredibly important. And I know it's not always easy to talk about. And so I really applaud the way that you seem to relate to one another in here, treating each other with sort of kindness and respect, and just for the thoughtfulness of your questions.
SPEAKER_10:Thank you for doing this. This was really fun to have you on. And I finally got to ask you some specific questions that I had had about the paper. So it's really helpful to have
SPEAKER_08:this. You guys just asked all of the hardest questions and sniffed out the biggest weaknesses of the paper, right? I mean, when you're writing these things, there's always some stuff that you're trying to cover up. You know, don't look here. And you guys pulled the curtain up immediately. So the question, I'll say this, the questions I got here were better than any of the questions that I got at any faculty presentation.
SPEAKER_10:Oh, that's so nice. Thank you for saying that. We appreciate it.
SPEAKER_08:I hope some of you are thinking about being legal academics because you have the juice. Well, thank you again. And if any of you ever happen to be in Northwest Arkansas, please reach out and I'll take you to see that painting at Crystal Bridges.
SPEAKER_10:Thank you so much, Steve. Thanks, you guys. This was tons of
SPEAKER_08:fun. Happy Thanksgiving. Thank you all again. What a pleasure.
