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Custom, Contract, and Kidney Exchange

26 Pages Posted: 16 Nov 2012 Last revised: 26 Dec 2014

Kieran Healy

Duke University

Kimberly D. Krawiec

Duke University School of Law

Date Written: November 8, 2012

Abstract

In this Essay, we examine a case in which the organizational and logistical demands of a novel form of organ exchange (the nonsimultaneous, extended, altruistic donor (NEAD) chain) do not map cleanly onto standard cultural schemas for either market or gift exchange, resulting in sociological ambiguity and legal uncertainty. In some ways, a NEAD chain resembles a form of generalized exchange, an ancient and widespread instance of the norm of reciprocity that can be thought of simply as the obligation to “pay it forward” rather than the obligation to reciprocate directly with the original giver. At the same time, a NEAD chain resembles a string of promises and commitments to deliver something in exchange for some valuable consideration — that is, a series of contracts.

Neither of these salient “social imaginaries” of exchange — gift giving or formal contract — perfectly meets the practical demands of the NEAD system. As a result, neither contract nor generalized exchange drives the practice of NEAD chains. Rather, the majority of actual exchanges still resemble a simpler form of exchange: direct, simultaneous exchange between parties with no time delay or opportunity to back out. If NEAD chains are to reach their full promise for large-scale, nonsimultaneous organ transfer, legal uncertainties and sociological ambiguities must be finessed, both in the practices of the coordinating agencies and in the minds of NEAD-chain participants. This might happen either through the further elaboration of gift-like language and practices, or through a creative use of the cultural form and motivational vocabulary, but not necessarily the legal and institutional machinery, of contract.

Keywords: organ donation, NEAD chains, contract, custom, enforcement

JEL Classification: K00, K12, K40

Suggested Citation

Healy, Kieran and Krawiec, Kimberly D., Custom, Contract, and Kidney Exchange (November 8, 2012). Duke Law Journal, Vol. 62, 2012. Available at SSRN: https://ssrn.com/abstract=2176410

Kieran Healy

Duke University ( email )

Durham, NC 27708
United States

Kimberly D. Krawiec (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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