Monthly Archives: January 2015

Never Let Me Go With Duke Science & Society

If you’re in the Durham area, feel free to drop by the Duke campus on Feb. 17 for a screening of Never Let Me Go, followed by a discussion of the film with me and Professor William Hurd, M.D., M.P.H.  We”ll discuss the concept of humanity, the source of personhood, and how it does, and how it should, change with science.

Tuesday, February 17, 6:30 – 8:45 p.m.

Science & Society Classroom, North Building 232

RSVP scienceandsociety.duke.edu

Never Let Me Go S&S S&S-Film Series-Never Let Me Go-021715

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Web Commentary on Perez v. Commissioner (the Taxing Eggs decision)

From Joe Miller and Christian Turner here

And from Dov Fox here

I hope to find time later this week to talk some more about some of the issues that Joe and Christian raise in their podcast. As they note, the case is interesting not only for the tax doctrine, but because of what it says about societal conceptions of egg “donation.”

Related Posts:

Taxing Eggs: A Mini-Symposium

Taxing Eggs: Introduction to Perez v. Commissioner

Taxing Eggs: Paul Stephan

Taxing Eggs: Lisa Milot

Taxing Eggs: Lawrence A. Zelenak

Taxing Eggs: Bridget Crawford and Crawford, Part II

Taxing Eggs: What Have We Learned?

Taxing Eggs: Bridget Crawford III

Taxing Eggs: Lisa Milot Responds

Taxing Eggs: About That Other Case

Taxing Eggs: The Wrap-up

Taxing Eggs: The Decision

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Court Nearing Certification of Egg Donor Antitrust Class Action

From Law360 (subscription or Lexis access required):

Human Egg Donors Near Cert. Of Antitrust Class In Pay Row

By Beth Winegarner

Law360, San Francisco (January 23, 2015, 7:26 PM ET) — A California federal judge said Friday he would likely certify a class of human egg donors on the issue of whether an agreement among members of the American Society for Reproductive Medicine to cap compensation to those donors violated the Sherman Act.

I’ve blogged about this suit (and, prior to the suit, argued that there should be one) on numerous occasions. Related links are below.

 

Related posts:

HT: Barak Richman

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Taxing Eggs: The Decision

Some readers may recall the Taxing Eggs Mini-Symposium held at the Faculty Lounge last February, which gathered a number of tax experts to discuss Perez v. Commissioner, No. 9103-12 (Feb. 14, 2014) (Holmes, J.), the first case addressing the inclusion in taxable income (and perhaps the proper characterization) of compensation received for the sale or donation of human eggs and related services.

The decision was filed today and, as predicted by our panel of experts, held that the money received by Perez was not “damages” under I.R.C. section 104(a)(2) and must be included in gross income. Because both parties agreed that the payment was for services, however, the case doesn’t address any capital gains issues.

From the case, which is available here:

We see no limit on the mischief that ruling in Perez’s favor might cause: A professional boxer could argue that some part of the payments he received for his latest fight is excludable because they are payments for his bruises, cuts, and nosebleeds. A hockey player could argue that a portion of his million-dollar salary is allocable to the chipped teeth he invariably suffers during his career. And the same would go for the brain injuries suffered by football players and the less-noticed bodily damage daily endured by working men and women on farms and ranches, in mines, or on fishing boats. We don’t doubt that some portion of the compensation paid all these people reflects the risk that they will feel pain and suffering, but it’s a risk of pain and suffering that they agree to before they begin their work. And that makes it taxable compensation and not excludable damages.

I note that the case includes citations to articles by three of our Taxing Eggs participants: Bridget Crawford, Lisa Milot, and me.

(HT: Lisa Milot)

Related Posts:

Taxing Eggs: A Mini-Symposium

Taxing Eggs: Introduction to Perez v. Commissioner

Taxing Eggs: Paul Stephan

Taxing Eggs: Lisa Milot

Taxing Eggs: Lawrence A. Zelenak

Taxing Eggs: Bridget Crawford and Crawford, Part II

Taxing Eggs: What Have We Learned?

Taxing Eggs: Bridget Crawford III

Taxing Eggs: Lisa Milot Responds

Taxing Eggs: About That Other Case

Taxing Eggs: The Wrap-up

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A New Student Debt Ranking

US Colleges With the Highest Number of "Babies"

US Colleges With the Highest Number of “Babies”

Colleges With The Highest "Babies" Growth (2014)

Colleges With The Highest “Babies” Growth (2014)

By now, most readers are likely already familiar with SeekingArrangement, a website that connects sugar “babies” and “daddies.” For those that aren’t, SeekingArrangement claims 3.6 million active members, 2.6 million of them babies and 1 million daddies (and, supposedly, mommas, though other references on the site are exclusively to daddies).

According to the website, sugar daddies receive no strings attached relationships with attractive women. In exchange, sugar babies receive “shopping sprees, expensive dinners, and exotic travels,” a “mentor” who can provide “valuable guidance,” and the freedom to no longer worry about unpaid bills.

But that’s all old news.

What is new news, according to the Atlantic, is the impact that the rising cost of student debt has had at SeekingArrangement. Apparently, sugar daddies are rushing to the rescue at campuses across the country, volunteering to subsidize tuition costs:

What might have been little more than a nuisance in the past has turned into an outright hindrance to many students’ financial security: It takes about 14 years on average to pay off the debt. As a result, young women across the country are turning to sugar daddies in droves. Many of them use SeekingArrangement, which describes itself as “the world’s largest Sugar Daddy dating site.” More than 1.4 million students have signed up as members, including nearly 1 million in the U.S., according to the company. The website claims that 42 percent of its members are students. . .

Georgia State, Arizona State and Kent State are all sugar baby hot spots. But it is NYU, which charges $46,170 a student for tuition and fees, that this year became the first college ever to cross the “1000 sugar babies” threshold.

(HT: Joan MacLeod Hemingway)

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RTT, Conclusion

Figure 2In my last two posts, I introduced a new form of cross border kidney paired donation – Reverse Transplant Tourism (or “RTT”) — that Mike Rees and I propose in a recently published article. To recap, under RTT a biologically incompatible US pair, Amanda and Bob, engages in a kidney swap with a compatible Mexican pair, Carlos and Diana, who have no practical access to transplantation because the Mexican public health care system pays for transplantation but not immunosuppression. RTT leverages the substantial cost savings of transplantation over dialysis to pay for immunosuppressant drugs for Diana, in exchange for an agreement by Carlos and Diana to enter into a kidney swap with Amanda and Bob.

Bob has a new kidney, Diana has a new kidney, Bob’s insurance company saves money, and the Mexican government is on the hook for no more than its usual expenses. But NOTA (The National Organ Transplant Act), which prohibits “valuable consideration” for the acquisition, receipt, or transfer of any human organ lurks in the background. Why does RTT not violate NOTA? We argue that RTT passes muster under NOTA due to a combination of three unusual characteristics of the exchange: (1) Carlos’s perfect-world donative intent, (2) Carlos’s altruistic motivation, and (3) the medical necessity of the benefit received in the swap (Diana’s immunosuppression).

First, let me explain the concept of “perfect world donative intent,” which we think is very important to an analysis of the legality of RTT or any other transplant transaction. RTT differs in one important respect from other inducement schemes that arguably qualify as valuable consideration under NOTA: RTT does not provide an inducement to donate an organ. Rather, RTT provides an inducement for someone who, in a perfect world free of financial and immunological barriers, would altruistically donate an organ to a friend or family member, to instead donate that same organ to someone else. Once this is recognized, it becomes clear how and why RTT does not run afoul of standard objections to inducements to donate.

Second, Carlos’s motivation for the exchange is altruistic: He wants to benefit Diana rather than himself. These two factors distinguish RTT from other common proposals to increase the organ supply through inducements, such as financial incentives that accrue directly to the donor.

Finally, the benefit in question—Diana’s immunosuppression—is incidental to and medically necessary for the transplant to succeed. For all of these reasons and others, we believe that RTT is sufficiently similar to currently accepted practices, such as kidney-paired donation and NEAD (non-simultaneous, altruistic donor) chains, that it does not violate NOTA.

In sum, the need for transplantable kidneys far exceeds supply. In the face of NOTA’s restrictions on valuable consideration, creative solutions to the organ shortage are needed. It is even better when those solutions also reduce the costs associated with end stage renal disease.

RTT accomplishes both of those goals. Instead of non-U.S. kidney donors being offered money through a black-market middleman in exchange for one of their kidneys, we believe that RTT would provide a legal and ethical exchange of living-donor kidneys through kidney-paired donation. In this way, the donors will not receive money for their kidneys, but rather will receive a transplant for someone they love.

You can read the full paper here.

Related Posts:

Reverse Transplant Tourism Goes Live!!

RTT Conclusion

Reverse Transplant Tourism (cont.)

Reverse Transplant Tourism

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Reverse Transplant Tourism (cont.)

In my last post, I began discussing a new form of cross border kidney exchange, Reverse Transplant Tourism (or “RTT”), that Mike Rees and I propose in a recently published paper. To recap, RTT envisions a kidney swap between a biologically incompatible US pair and a foreign compatible pair who nonetheless have no practical access to transplantation for economic reasons. In the example chosen, Mexico, the state health care system pays for dialysis and transplantation, but not the immunosuppression necessary to prevent the body’s rejection of a transplanted kidney. As a result, transplantation is realistically available only to Mexican citizens with independent access to such drugs – i.e. they are wealthy enough to pay for it themselves or have access to philanthropic aid.

Figure 2RTT proposes to leverage the substantial cost savings of transplantation over dialysis to pay for immunosuppressant drugs for Diana, in exchange for an agreement by Carlos and Diana to enter into a kidney swap with Amanda and Bob. Thus, as shown in the accompanying figure, Amanda transplants to Diana, Carlos transplants to Bob, and the money saved from Bob’s ongoing dialysis is used to pay for the immunosuppressant drugs that Diana otherwise could not get.

Bob has a new kidney, Diana has a new kidney, Bob’s insurance company saves money, and the Mexican government is on the hook for no more than its usual expenses. Everyone is happy. Who could possibly object to such a welfare-improving transaction?

Arguably, someone familiar with the National Organ Transplant Act (“NOTA”), though as we detail at great length in the paper, neither the statute’s text, legislative history, nor underlying policy goals suggest that NOTA was meant to apply to RTT. NOTA prohibits the knowing acquisition, receipt, or transfer of “any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.” NOTA does not define the term valuable consideration and, as we detail in the paper and I have discussed in previous posts, the Act’s legislative history provides almost no guidance regarding the meaning of the term beyond the obvious legislative concerns of “buying,” “selling,” and “commerce” in human organs. Indeed, a careful reading of the legislative history of NOTA (which I undertake in the paper) suggests that Congress paid little, if any, attention to the possible meanings of and ambiguities in the phrase “valuable consideration.”

That leaves an analysis of the possible public policy goals animating NOTA’s ban against valuable consideration. In our paper, Mike and I analyze those public policy goals and demonstrate that RTT does not run afoul of any of them. In fact, RTT actually minimizes some public policy concerns better than current transplant practices do.

In my next post, I’ll discuss the public policy goals that might have animated NOTA in more detail, and demonstrate why those public policies suggest that RTT does not violate NOTA.

Related Posts:

Reverse Transplant Tourism Goes Live!!

RTT Conclusion

Reverse Transplant Tourism (cont.)

Reverse Transplant Tourism

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Reverse Transplant Tourism

I promised that I would talk some more about the articles in the Law & Contemporary Problems volume, Organs & Inducements, that was just published. So today I’d like to talk about my article with Mike Rees, Reverse Transplant Tourism.Figure 1Figure 2

The short version is that Reverse Transplant Tourism (“RTT”) is a new form of cross-border kidney paired donation. Such kidney exchanges, in which patients with willing but incompatible living kidney donors exchange their donors’ kidneys, have already become common in the United States. But RTT takes the standard kidney exchange a step further, by expanding it to poor patients outside of the United States who have a willing donor, but who are not able to afford a transplant.

We label the procedure “reverse transplant tourism” for a few reasons, intending a play on words. One meaning is literal – in transplant tourism, patients from rich countries typically travel to poorer ones seeking a donor willing to trade a kidney for cash payments. Under RTT, patients from poor countries travel to rich ones, in order to obtain a transplant that could not be performed in their home country, due to their poverty and the limitations of their national healthcare system. In addition, RTT could “reverse” many of the negative effects of illegal transplant tourism by avoiding its organ-deficit problem (rather than a net outflow of kidneys from the developing to developed world, RTT matches kidney inflows to outflows) and by building on the system of protections for donors and recipients already present in the U.S transplant system. In the process, RTT helps an ailing American patient whose willing donor is biologically incompatible.

To illustrate, let’s begin with the common kidney swap. Suppose that Amanda wants to donate a kidney to Bob but is unable to do so, either because their blood types do not match or because there is some other incompatibility. Another pair, Carlos and Diana, faces the same problem. However, Carlos is compatible with Bob, and Amanda is compatible with Diana. By swapping, as illustrated in figure 1, the kidney swap enables two transplants, providing both Bob and Diana with a compatible kidney. Although kidney exchange began with this type of two-pair exchange, longer exchanges and chains of transplants have recently come to dominate.

Imagine now, however, that Carlos and Diana, rather than facing biological incompatibility, face a different problem: They are poor and live in a country where poverty is a barrier to transplantation – let’s assume Mexico, which does not pay for all of the necessary costs of transplantation. As illustrated in figure 2, RTT can help both Bob and Diana, allowing each to receive a kidney that they otherwise could not—in Bob’s case because of his biological incompatibility with Amanda, and in Diana’s case because of her poverty and lack of adequate health care coverage.

Because transplantation is much less expensive than dialysis, RTT both saves money and transplants two patients who otherwise could not obtain one – in one case because of biological incompatibility and, in the other, due to lack of access to health care coverage.

In my next post, I’ll provide some more details regarding RTT, explain why it ultimately saves money, and discuss the applicability of NOTA. In the meantime, you can read the full paper here.

Related Posts:

Reverse Transplant Tourism Goes Live!!

RTT Conclusion

Reverse Transplant Tourism (cont.)

Reverse Transplant Tourism

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15th Annual Workshop on Conducting Empirical Legal Scholarship

The 15th annual workshop on Conducting Empirical Legal Scholarship, co-taught by Lee Epstein and Andrew D. Martin, will run from June 15-June 17 at Washington University in St. Louis. The workshop is for law school faculty, lawyers, political science faculty, and graduate students interested in learning about empirical research and how to evaluate empirical work. It provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data.

Participants need no background or knowledge of statistics to enroll in the workshop. Registration is here. For more information, please contact Lee Epstein.

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Diversity and the Professions at AEA Tomorrow

Having just finished up the Business Associations program on The Future of the Corporate Board this morning, I’m now off to Boston for a panel tomorrow at the American Economics Association Annual Meeting. If any other law profs happen to be wandering the halls, definitely stop in to say “hello.” I’ll be discussing my research on board diversity, and whatever lessons it may hold for diversity in the professions. Other panelists will discuss the single woman penalty and diversity and the innovation economy. Fellow law prof Laura Beny (Michigan) is moderating and will also discuss diversity and law firms.

Unfortunately, the timing of the two conferences was such that I’m only able to attend the last day of AEA. That’s too bad, as there were a number of sessions that I really wanted to attend. Ah well. Can’t be everywhere at once.

Jan 05, 2015 8:00 am, Boston Marriott Copley, New Hampshire

National Economic Association

Diversity and the Professions (J4)

Presiding: LAURA N. BENY (University of Michigan)

Diversity and the Innovation Economy

LISA D. COOK (Michigan State University)

Diversity and Performance of Elite United States Law Firms

LAURA N. BENY (University of Michigan)

Diversity and Talent at the Top: Lessons from the Boardroom

KIMBERLY KRAWIEC (Duke University)

Leadership and the Single Woman Penalty: A Role Expectations Account of Early Career Barriers to Promotion for Female MBAs

JENNIFER MERLUZZI (Tulane University)

DAMON PHILLIPS (Columbia University)

Discussants:

TERRY-ANN CRAIGIE (Connecticut College)

ROBYNN COX (Spelman College)

 

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