Kidney markets and the black market
In a discussion of Iranian kidney markets, Bob Zadek raised the objection that sellers in the third world—naming Manila, Indonesia and Pakistan—would be exploited and driven by desperation, and asked whether the fear of exploitation is a sufficient policy reason not to save lives. He compared the argument to the case for legalizing abortion, saying the same arguments about being done in the open and supervised had been used then. A Vital Issue: Sigrid Fry-Revere on Iranian Kidney Markets (2014)
Sigrid Fry-Revere responded that exploitation has to do with the black market, which she said accounts for 99% of what is seen in the world, and that the black market is exploitative. She said Iran closed its borders so that only Iranians could help Iranians, because otherwise Saudis or people from rich countries would outbid the local population, and because poor people coming in to sell kidneys could not be assured post-operative care once they returned home. She argued that there is no exploitation if the system is done right, and that exploitation exists in countries where there is a black market. She contrasted the poor donor, who in the United States may be in a cheap motel paying for it himself while the recipient’s family gets free lodging through something like Ronald McDonald House, and noted that it is against the law to help the donor cover those expenses while they happen. A Vital Issue: Sigrid Fry-Revere on Iranian Kidney Markets (2014)
Zadek closed the segment with the lesson that free markets save lives. A Vital Issue: Sigrid Fry-Revere on Iranian Kidney Markets (2014)
Lochner and the rhetoric of exploitation
Damon Root described the historical research showing that bakery unions pushed for the law at issue in Lochner and helped get it on the books, and that the owners of the large corporate bakeries supported it because it drove their competitors out of business. Small immigrant-run bakeshops, he said, relied on older baking processes that needed people on premises longer, and once the 10-hour day became law they began getting driven out of business. He said law students today hear the case presented as evil employers trying to exploit poor workers, when it was basically a question of different types of bakeries against each other, with the large bakeries having the state lawmakers and the force of law on their side. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Zadek said he perks up whenever the word “exploit” enters a conversation, classing it with “greed,” and said he never understands exactly how the word can be used in labor relations. He argued that hiring somebody at a wage they are willing to work for is doing the worker a favor, and that it is simply freedom of contract; one party may need the deal more than the other, but the counterpart is not exploiting it. He compared it to someone who desperately needs money selling their car inexpensively because of a medical emergency—the buyer is taking advantage of an opportunity caused by the distress of somebody else. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Root agreed that the term is used a lot in reference to Lochner, and said that when you dig deeper the story is much more complicated than a simplistic morality tale of big evil bosses versus poor workers. He said it is the story of one aspect of the industry capturing the law to use it on its behalf and hurting another type, with poor workers at the bakeshops at risk of losing their jobs because of the regulation, and the court finding that the regulation did not protect them from unsafe working conditions. Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014)
Epstein: exploitation as theft
Richard Epstein began from the observation that two people come together, one to sell and one to buy, and that if the transaction were a zero-sum game neither side would be better off and there would be no reason to expend resources putting the trade together. He said the gain comes from the buyer valuing the goods more than the price paid and the seller preferring the money to the goods surrendered, and cited Adam Smith on the enormous gains from trade through specialization. Trump Vs. Free Trade with Richard Epstein (2017)
Epstein then said that the Marxist definition of exploitation through market exchanges is an Orwellian-type situation, and that exploitation is appropriately used for theft, where something is taken without consent, leaving one party a little better off and the other a lot worse off. He said exploitation is not the correct term to use here, and that what is at issue is mutual gains through beneficial transactions. Trump Vs. Free Trade with Richard Epstein (2017)
He went on to describe the case of a single sovereign binding both buyer and seller, noting that transactions are often sequential—goods paid for before delivery, or delivered before payment—and that government enforcement of contracts increases the possibility of gains for the party. Trump Vs. Free Trade with Richard Epstein (2017)
Sex work and the exploitation charge
In a discussion of Backpage, Zadek described the site as a for-profit alt-media with fairly high-quality journalism that carried personal ads, as Craigslist did, and asked what publishing a service connecting males and females had to do with violating federal law. Elizabeth Nolan Brown on the War on Sex Workers (2019)
Elizabeth Nolan Brown explained that on open internet platforms any user can sign up and post, and that if people post prohibited content the website generally cannot be held responsible—if you make a credible threat on Twitter you can be in trouble, but Twitter cannot. She said people wanted to say prostitution was happening on Backpage and Craigslist even though those sites said you could not advertise anything illegal, and that when police found underage posters the government wanted to hold the websites themselves responsible. She said various attorneys general sued Backpage and judges kept saying federal law prohibits it, and that the law has now been changed. Elizabeth Nolan Brown on the War on Sex Workers (2019)
Zadek said the founders and former leaders of Backpage had been arrested and were charged with money laundering for allegedly allowing prostitution ads to run, not with charges related to sex trafficking, and that the federal crime is a felony even though the act being promoted is a misdemeanor. He said prostitution, if it is a crime, is a misdemeanor, and in some states it is legal—in Nevada it is legal but regulated—and that there has never been a federal referendum on whether the country should criminalize it. Elizabeth Nolan Brown on the War on Sex Workers (2019)
Zadek said that in almost the entire history of civilization the sale of sex has not been a crime and has been an honorable, recognized activity, and that it is only in a couple of hundred years of the American social experiment that sex has become a crime at all. He said that when the show uses the word prostitution it excludes fraud, force, coercion and threats, and that the fact somebody really needs the money is not in and of itself exploitation. Elizabeth Nolan Brown on the War on Sex Workers (2019)
Nolan Brown said she does not think sexual activity between consenting adults should be criminalized at all, whether or not money is involved, and that you do not have to like prostitution to want it not to be a crime. She compared it to the drug war, saying that policing people smoking pot ended up making it a black market, creating more violence and putting innocent people in jail. She said that by making paid sex between consenting adults a crime you get raids, women thrown in jail, criminal records, and that in the legal brothels in Nevada you hardly see any violence against sex workers because they can screen clients. She said that even people who do not want to be doing the work deserve to do it in the safest way, and that people who say they want to stop exploitation are actually making all of those things worse by making it a crime. Elizabeth Nolan Brown on the War on Sex Workers (2019)
Across episodes
The topic is touched in four episodes spanning 2014 to 2019: Sigrid Fry-Revere on Iranian kidney markets, Damon Root on Lochner and the libertarian legal movement, Richard Epstein on free trade, and Elizabeth Nolan Brown on the war on sex workers. The excerpts show no development of a single argument across them; each speaker disputes the application of “exploitation” within a different domain—organ markets, labor regulation, trade theory, and sex work—and the treatments do not build on one another.
What the sources do not cover
The excerpts do not supply a definition of exploitation that all the speakers share, nor do they indicate whether any of them was responding to another. The legal citations and holdings of the cases discussed are not stated beyond what the speakers say, and the fate of the Backpage trial is left open. No episode in the excerpts addresses exploitation in the context of the others’ subject matter.