Private Ordering and Intimate Spaces: Why the Ability to Negotiate is Non-Negotiable

19 Pages Posted: 12 Mar 2007

See all articles by Michele Goodwin

Michele Goodwin

University of California, Irvine School of Law


In this essay, I wish to push the thinking about the public/private distinction a bit further and to study both analytically and empirically the legitimacy of organ commodification. I unpack the notion that public regulation always benefits the disenfranchised. In particular, this essay seeks to add the concept of law and status to the public/private ordering debate. Further, it suggests that in the context of organ and tissue demand, private ordering maximizes participation and promotes more equitable participation among those of vulnerable status, including racial minorities and children. By contrast, current federal regulations that prohibit all forms of consideration and incentives with regard to body part exchanges undermines private ordering, exacerbates organ demand, increases waiting time, penalizes the poor, and results in thousands of unnecessary deaths per year. A market-based system that coexists with altruistic donation introduces greater reliability to the larger complex of organ procurement and distribution. Greater reliability is likely to inspire greater confidence in the organ procurement system.

This essay moves beyond a neoclassical economics theory to incorporate a radical new way of thinking about incentives for organ donation as a social justice issue. Part I provides a brief empirical overview of organ demand in the United States, offering an alternative perspective and introducing data ill-examined in commodification debates. Part II challenges the notion that private ordering abandons liberal and egalitarian values in favor of individualism over communitarianism. It also acknowledges the limitations of private ordering and addresses how its more problematic features, including the abuse of power, might be avoided. Part III argues for a hybrid system that reorders regulation of intimate spaces. It proposes a system that allows incentives to coincide with altruistic donation. Finally, Part IV contends that the discussion of commodification needs to change in order to incorporate all members of society. Only after we transform the discussion from whether or not to commodify to what degree of commodification is socially acceptable will this incorporation happen.

Keywords: private ordering, commodification, economics, organs, social justice

JEL Classification: I00, I1, I3, J1, K00, H00

Suggested Citation

Goodwin, Michele, Private Ordering and Intimate Spaces: Why the Ability to Negotiate is Non-Negotiable. Michigan Law Review, Vol. 105, Spring 2007. Available at SSRN:

Michele Goodwin (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

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