Alvin E. Roth is the Craig and Susan McCaw Professor of Economics at Stanford University and the George Gund Professor of Economics and Business Administration Emeritus at Harvard University. He was awarded the Nobel Prize in Economics in 2012. His latest book is Moral Economics: From Prostitution to Organ Sales, What Controversial Transactions Reveal About How Markets Work.
In this week’s conversation, Yascha Mounk and Al Roth discuss the impact of moral disgust on solving economic problems, whether we should allow financial payments for organ donation, and what the rise of OnlyFans tells us about changing attitudes towards the self and economic transactions.
This transcript has been condensed and lightly edited for clarity.
Yascha Mounk: Economists have a lot of influence on our lives, but a lot of the time that influence is less direct. As we’re recording this, there was a decision by the Federal Reserve to keep interest rates constant—and that’s going to influence the lives of people listening to this podcast in all kinds of complicated ways. But you have had influence on the world in a much more direct way. If some of the people listening to this are doctors in the United States, where they went to residency was probably decided by a procedure that you helped to put in place. If you have children who go to public school, there’s a good chance that which public school your children ended up in was decided by a mechanism that you helped to put in place. Tell us about the class of problems that you started to tackle in your academic work, and that then had this huge influence on the world—how to allocate scarce goods to people under particular kinds of circumstances.
Al Roth: Economists study marketplaces, broadly defined, and game theory gave us a way to study the rules by which marketplaces are organized. That opened up the possibility that economists could start studying the design of markets—and I’m using the word “design” there as a noun. Markets have designs, and you can study them. After I’d studied some market designs, I started to get asked to help design and redesign some markets. Now “design” is a verb. That’s part of a pretty new movement in economics called market design.
Of course, market design itself is an ancient human activity. People have been creating markets of various sorts, with or without money, for a long time. Stone tools distributed in the archaeological record, far from where they were quarried, tell us that our prehistoric ancestors knew something about trade. They knew something about markets. They could move goods far across the world. Markets are a little bit like languages—they’re tools that human beings build to cooperate and coordinate and communicate and compete with each other. Often we treat markets as if we just received them, but of course markets are built, and they can be fixed when they’re broken.
Mounk: Tell us about some of these examples. How should we think about what good or bad design looks like? Even when we’re not thinking about designing markets, you’re saying that laws, rules, cultural expectations and habits effectively design a market. But when you’re going about trying to design them in a more conscious, more explicit way, what kind of criteria should we apply? How should we assess whether they are doing a good job or a bad job?
Roth: Sometimes markets are broken in a very obvious way. That is, the people trying to transact with each other are having trouble making connections. That’s often where market designers get called in.
Mounk: Give me an example of that.
Roth: A lot of labor markets—like the market for new doctors—once had all sorts of problems with the timing of offers. People would get offers that they had to answer very quickly, exploding offers, before they knew what other opportunities they had. That market, in the first half of the last century, had unraveled to the point where doctors were getting offers of their post-graduation jobs very early in their education—too early for them to really know what kind of jobs they wanted, and too early for the institutions hiring them to be able to tell who was going to be a good doctor and who was not. That was a problem that the medical establishment tried to solve in various ways.
Today, there’s a centralized clearinghouse for how new doctors get their first jobs. I was involved in redesigning that when it ran into some problems. Sometimes there are operational difficulties in a market that make it clear it needs some help and redesign. Also—and this is part of the subject of my current book—markets need social support to work well. When you design a marketplace to operate in some big economic environment, people have other options. They could make their transactions outside the marketplace. So you have to attract people to participate and come to the marketplace. That starts to involve questions of equity and transparency—making the market work well so that people want to support it and participate in it.
Mounk: This speaks to a broader confusion about the relationship between economics and ethics, economics and morality. Since its inception, economics has sometimes been known as the dismal science—the science that is amoral, perhaps even immoral. There was a time in which economists claimed that the principles they followed were in some sense free of moral choices. I don’t think that is how most sophisticated economists think about these questions today. But your disciplinary hat is that of an economist, not that of a political theorist or a moral philosopher. To what extent are you making normative choices? Where do those normative choices come in? How explicit are they?
Perhaps you can tell us about a concrete system you were involved in designing or advising on, in which there was a moral fork in the road—where you had to explicitly choose one kind of market design that would serve one set of moral goods, or another kind that might serve a different set of moral goods, and it wasn’t obvious which was preferable on purely economic grounds.
Roth: One way to answer that is to say that this book on moral economics that’s just about to come out is my second book aimed at a general audience. The first one was called Who Gets What and Why?—a somewhat cheerful book about designing marketplaces where the questions were relatively straightforward, where they were technical, where it was about helping people make transactions that they wanted to make. This book is about markets that are also broken, but that are harder to fix because we can’t agree on what we want. These are morally contested markets where people have very different visions of how the market should work.
One thread that connects them is my work on kidney transplantation. Right now there are about 130,000 cases of kidney failure a year in the United States, but we only do fewer than 30,000 transplants a year. Transplantation is the treatment of choice for kidney failure. So most people who could benefit from a transplant—whose lives could be saved and whose healthy lives could be made much longer—are going to die without getting one. One of the questions was how to help people get more transplants.
A topic I talk about a lot in the current book, Moral Economics, is the widespread feeling around the world—codified in many laws—that it is illegal to pay a living donor to donate a kidney. Kidneys are a little bit special because healthy people have two and can remain healthy with one. So it’s possible, if you love someone who has kidney failure, that you might be able to save their life by donating a kidney to them. That happens about 7,000 times a year in the United States. But if someone wanted to pay you for a kidney, the two of you would be involved in a felony. It’s against the law to be paid for a kidney, although you’re allowed to give one.
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What I’ve done with my economist colleagues—and how we’ve helped our surgical colleagues—is make more efficient the idea of kidney exchange. Perhaps you want to give a kidney to someone you love and you’re healthy enough to do so, but you can’t give it to the person you love because kidneys have to be well matched and yours is incompatible with your intended recipient. Perhaps I’m in the same situation. It used to be that the two of us, as potential donors, would be sent home—sorry, but no thank you—and that would deprive our loved ones of living donor transplants. But now it might be that I can give a kidney to your patient and you can give a kidney to my patient. That’s a way in which each patient can get a compatible kidney from another patient’s intended donor. That’s called kidney exchange, and it has blossomed in many ways. A lot of transplants are now done that way that couldn’t be done before. An essential part of this, when you’re talking about morally contested markets, is that the donors are not paid. That avoids the repugnance that much of the world feels towards the idea of paying for kidneys.
Mounk: This is obviously an amazing win-win solution. It means that a lot more kidney transplants are facilitated every year through this process. By and large, people who have moral objections about the buying and selling of kidneys are perfectly fine with it because it still operates as part of a kind of gift economy—people saying they want to donate a kidney without a financial reward. There’s just a more complicated chain of transactions, which means that a donor can thereby assure that their loved one survives even if they are not directly giving them the kidney.
What about the underlying question? Should we in fact allow the buying and selling of kidneys? This mechanism that you were involved with is saving thousands of lives in the United States every year—a fantastic thing. I don’t often have a distinguished podcast guest of whom I can say with some confidence that they helped save thousands of lives in the United States and around the world every year. But as you’re saying, a lot of people still die from kidney disease without having received a transplant. Many of these people would be able to pay for a kidney. Perhaps if we collectively decided that buying and selling kidneys should be allowed, and health insurance covered that, even people without significant means who now die would be able to survive. How should we think about that moral question?
Roth: That’s a question I have a chapter devoted to in my current book, because although we’ve had some good achievements in increasing the number of kidney transplants, these are victories in a war that we’re losing. There are more people who need kidney transplants today, and the gap between how many transplants we can produce and how many people need them is growing.
A natural thing to think about is whether we can increase the supply of kidneys so that there won’t be almost 100,000 people on the waiting list for a deceased donor kidney, as there are today. When economists see a long queue of people waiting for a scarce resource, they wonder if prices could increase the supply so it wouldn’t be so scarce anymore. Kidney exchange increased the supply, but not enough to solve the problem. We still have this terrible shortage.
One of the things that people worry about is that we might not want, or be able to get support for, a market in which only rich people could get transplants by buying kidneys from poor people. A lot of the designs that have been proposed get around that by, for instance, proposing that only the federal government could pay for kidneys, and that we’d continue to allocate kidneys based on need—the way we now allocate deceased donor kidneys, not that that’s a perfect process either.
There is legislation being proposed in Congress that would allow at least a small experiment in that direction. The particular legislation currently seeking a hearing is called the End Kidney Deaths Act. It proposes simply to give a tax credit, over a period of time, to non-directed donors—people who donate a kidney anonymously to someone they don’t know, rather than having a particular patient in mind. Those donors help facilitate a lot of kidney exchange transplants because, as you alluded to, they allow long chains of transplants to be effectuated. There are about 500 such donors a year in the United States at the moment.
Mounk: To be clear, the much more common case is that a parent, child, or spouse needs a kidney, and a loved one happens to be a match—or, as part of a kidney exchange, is willing to give somebody else a kidney if it causally results in their loved one receiving one. The rarer case is that of a healthy person with two functioning kidneys who decides to save the life of a stranger by going to the hospital and having one removed. That is obviously a very altruistic act, and the number of people willing to do that is about 500 a year.
Roth: There is a proposal to experiment with whether that number might be increased if we were more generous to those donors through the tax system—a more grateful nation, so to speak. It’s an incremental proposal. On the other hand, if it substantially increased the number of non-directed donors, it would not only increase transplants, but would serve as an indicator that we might start to think more generally about being more generous to donors than we are now.
Mounk: Should we do that? I think this kind of proposal is interesting, but it’s quite limited. The broader question remains very urgent. Even if this proposal means that 700 rather than 500 people a year give a non-directed kidney, that doesn’t seem to actually grapple with the most fundamental problem—the tens of thousands of people who don’t get a kidney every year. Should we abolish any limit? Obviously it needs to be regulated, but should we in principle allow the buying and selling of kidneys?
Roth: If an experiment like the one proposed by the current legislation works well, then we’ll be able to garner support for broader programs of generosity to donors. As a practical matter, even small legislative steps like this have failed in the past. So I think it’s probably necessary, as a matter of practical public policy, to start small—with these very generous non-directed donors—to see if we can express our gratitude to them for all they do. Opponents of paying for kidneys worry that it will lead to the exploitation of poor people in ways that we would regret. But if that doesn’t happen, then I would certainly be in favor of pursuing a much broader program.
Mounk: Let me go through some of the obvious objections to this scheme. One you just mentioned is the exploitation of the poor. Presumably you could also imagine terrible cases of exploitation in a system where you can’t buy and sell kidneys. One of the things a free market often does is alleviate scarcity. At the moment we have an artificial scarcity in kidneys because it is impossible to pay people for them. Presumably, if we had a liquid market in kidneys, it would also be much less dangerous to donate one. One concern is: what if I donate a kidney and my remaining kidney later becomes diseased? In a world where buying and selling kidneys is allowed—and where, if you’re poor, the state steps in to ensure you can get access to a kidney—that danger would be much lower, because I could in that circumstance receive a kidney myself. You could also imagine cases of exploitation arising precisely because of the current scarcity. If you have a loved one who says they will die unless you donate your kidney, there can be enormous pressure exerted on people—in a life-or-death situation—over whom they might have some power or influence. That danger too would be mitigated if you had a liquid market in those organs.
Roth: The whole point of making kidney transplants more available is to make kidney disease less deadly and therefore reduce the danger of this life-or-death decision. Given that paying a donor for a kidney is illegal almost everywhere in the world—with the single exception of the Islamic Republic of Iran—there are black markets. Because it’s illegal to be paid for a kidney, these black markets often operate outside of the traditional medical establishment, with surgeries being done outside of hospitals. That means very low quality medicine and very serious dangers both to donors and recipients.
One of the ways to fight black markets is with legal markets. One of the examples I use in Moral Economics is prohibition. When we had prohibition of selling alcohol in the United States, there were lots of black markets and organized crime grew up to mediate them. When we ended prohibition in the early 1930s, alcohol remained problematic—there’s still alcoholism and drunk driving—but you can no longer buy moonshine whiskey from gangsters. We eliminated the organized crime component that prohibition had produced.
If we want to fight black markets and make kidneys more available, those two goals go together. Many opponents mistakenly, I think, believe otherwise. They look at the black markets and say these markets are very bad because donors are being paid for their kidneys. But really they are very bad because they deliver very low quality medicine in very inequitable ways. If we could design an acceptable market in which we could pay donors for kidneys, kidney disease would be much less a cause of death and criminality.
Mounk: What about another objection that people might make, which comes downstream from a book that I think is fun, interesting, and insightful, but that has perhaps overly influenced people’s understanding of economics—Freakonomics? A Freakonomics-style argument that you could make about this, and I’ve heard moral philosophers make similar arguments, is that sometimes when you pay people for something, they stop giving it for free. If there are 500 people who think of themselves as moral actors and want to give a kidney to save somebody’s life out of altruism, giving them minor tax incentives—or perhaps even paying them a significant amount—might cause some of them to say: I’m not the kind of person who sells a part of my own body for money. That seems like a very different kind of moral act than donating a part of my body so that somebody else may live. How sure can we be that compensation would actually help alleviate this shortage?
Roth: That’s an empirical question. There is vast evidence from the world’s economies over centuries that while paying for things might stop people giving them away for free, that effect is more than compensated for by the fact that if you pay enough, people are willing to be paid providers. There’s a famous passage in Adam Smith that says it’s not through the generosity of the butcher and the baker that you get your food—that’s how they earn their living. They sell food. By and large, we are not short of food.
Blood plasma is a good example. I was an early adopter of COVID, and when I recovered I went to Stanford Blood Center, where you can donate blood plasma without being paid, because there was a demand for convalescent plasma. Once my antibody levels fell below a certain threshold, they let me go. I still give whole blood, because we do that for free in the United States and that’s how we get whole blood. But I no longer donate plasma, because there’s plenty of plasma in the United States—we pay plasma donors, and there’s no shortage. In fact, the United States exports about 70% of the world’s plasma, because it’s in short supply in the many countries that consider it immoral to pay plasma donors. Those countries can always buy plasma from the United States. So yes, I’ve been crowded out of the plasma market. It’s awkward and not particularly enjoyable to donate plasma, and I don’t need the $70. I also don’t want to take that option away from people who are supplementing their income by donating plasma, which is plentiful here.
Mounk: There is another kind of argument that a number of moral philosophers have made: that there is a way we should value our bodies and our organs, and that making them the kinds of things that can be bought and sold is to dishonor what our bodies are. It is simply valuing them in the wrong kind of way. My doctoral advisor made this argument, among others. How would you respond to that?
Roth: Millions of people are dying of kidney disease. I would want to at least weigh that idea against the cost of all these deaths. You would have to be very sure that this aesthetic judgment was more important than millions of deaths a year around the world. In most places, kidney disease is among the top ten causes of death, and it’s growing—as we beat back infectious disease as a cause of death, kidney disease becomes relatively more prominent. You have to be very sure that you find the idea of people selling their kidneys objectionable before you condemn so many people to death.
Mounk: To show my hand: I want to make sure I run through the devil’s advocate arguments in a fair way, and I think those are some of the main ones people make against these kinds of transactions. I agree that there is something queasy about the buying and selling of organs, and I absolutely understand why a lot of people—probably many listeners—have a deeper objection to it. But one of the fundamental things in politics is that you always have to think in trade-offs and understand what’s on the other side. In cases like this, the trade-off—not in some theoretical or distant way, but in a very immediate, everyday sense—is people needlessly dying. You need to be really sure that the moral arguments you make against a practice that could alleviate untold suffering are sufficiently weighty to justify persisting in that position.
To make a meta-ethical point, which I try to refrain from on this podcast: I think this is actually an instructive way of thinking about utilitarianism. In the broader debate in moral philosophy between consequentialist outlooks—which evaluate actions and rules by their consequences, of which utilitarianism is the most prominent, measuring policy in terms of whether it increases the balance of happiness over pain—and more deontological notions, which hold that certain things are in themselves wrong and that rights obtain irrespective of consequences, I am not a straightforward consequentialist. I don’t think it is obviously true that in every realm of our lives we should simply look at what increases the balance of happiness over pain. But I do think that when the consequences of a rule or an action are very obviously very bad—as they obviously are in the case of prohibiting the buying and selling of organs, leading to tens of thousands of people needlessly dying in the United States and many more around the world—you had better have really weighty arguments on the other side. Consequentialism is not necessarily the right philosophy in every context, but it makes a sensible default in policy situations when the consequences of a rule are as disastrous as I believe the consequences of not allowing the buying and selling of kidneys to be.
Roth: I agree. The market design question also requires us to be very careful to make sure that bad things don’t happen to paid donors. That is a matter of high importance in the design of any eventual market that might relieve the shortage of kidneys.
Mounk: That leads to my next question. Let’s imagine that Congress finally changes its mind and decides to allow the buying and selling of kidneys—and asks you to come in and help design this market. How would you go about doing that?
Roth: Any market you design would have to be constantly monitored, and if bad things were happening you would want to change the rules to try to avoid them. A good way to start would be to say: we’re not going to have a laissez-faire market for kidneys. Rather, we’re simply going to amend the law so that the federal government can pay for kidneys. The kidneys obtained in this way would be regarded as the same kind of national resource that we now regard deceased donor kidneys, and would be allocated according to need. Medicare would pay for the costs so that the rich and the poor alike would be able to get the suddenly more abundant kidneys.
Some of the payment to donors might involve coming back for annual checkups for the next ten years, because we would want to be really sure that donors are doing well, and if there’s something that can be fixed about the way we’re dealing with them, we should fix it. One of the problems now is that it’s a little bit hard to keep track of donors because they’re healthy—they’re off skiing somewhere. The goal would be to incentivize donors not just as an expression of gratitude for providing a kidney, but to make sure that they continue to allow their health to be monitored, so that donating a kidney becomes a very well-understood and desirable thing to do.
Mounk: Kidneys are a fascinating case that has allowed us to make concrete a lot of these broader questions. Let me ask a different one. What should we do about kidneys today, while they remain scarce? And setting kidneys aside, even if we solved that problem, there will still likely be a scarcity of livers, hearts, and other organs that might be transplanted. How should we think about the best algorithms and decision-making procedures for determining which patients get those organs and in which order? Obviously, we likely don’t want the richest person to get priority, or for allocation to be based on discriminatory criteria such as race. But how should we think, beyond those baseline assumptions, about designing systems to distribute these very scarce goods?
Roth: That gets squarely into the area of technical difficulties in allocating deceased donor organs, because you can’t do living donation of hearts. Livers are different—you can donate a lobe of a liver—but hearts will always involve deceased donation.
With deceased donation, you first have to decide when the donor is dead. That’s a little controversial because we have two criteria that in ancient times were the same: brain death and circulatory death. The reason those used to coincide is that once your heart stops beating, your brain very quickly dies. The special thing about transplantation is that death isn’t exactly binary. A donor can be dead while some of their organs are still viable enough to be transplanted—but you have to work very quickly, and an organ doesn’t stay viable for long outside the body. So organs have to be allocated quite quickly.
There are many more people who need a heart transplant than there are hearts, and similarly for other organs. Some of the questions involve efficiency and how it relates to equity. Consider a waiting list for hearts that depends either on how long you’ve been waiting or on how sick you are—those are different ways to prioritize patients. In the United States, the idea is that a deceased donor organ should be offered first to the highest priority person on the list, then to the next highest, and so forth, with priorities depending on many things including location. But the problem is that it takes a little while for an offer to be considered and accepted or rejected. If it’s rejected, the heart has a little less chance of reaching someone who will accept it while it’s still transplantable.
Sometimes you have to reckon with the fact that a particular organ is hard to place. It’s a marginal organ—it will save somebody’s life, but many high-priority patients may choose to wait for a better one. Can you skip over people with higher priority and offer it to someone you think will accept it now? Some organs are offered too many times, rejected repeatedly, and then are no longer usable. Among the things we have to think about is how to balance efficiency and equity: how strictly must you follow a predetermined priority list, or can you expedite an organ through a different process? That is a matter of current debate.
Mounk: There is obviously a black market for organs, and it is significant. But transporting an organ requires a lot of attention—many people involved, a great deal of infrastructure. The prohibition on buying and selling organs has not been perfectly enforced, but it has had a very real effect in suppressing those transactions.
There are other areas where the state’s ability to suppress transactions is much more in doubt. Drugs and other illegal substances are probably the prime example. There must be many, many transactions every year involving the buying and selling of methamphetamine, cocaine, or heroin in the United States—many more than there are of people buying and selling organs. The harms from drug prohibition are straightforward and obvious: people going to jail, enormous resources spent on enforcement, users being criminalized and potentially unable to access help. But the dangers of completely opening up those markets—of potentially having very sophisticated corporations advertise and sell drugs in ways that could have hugely damaging consequences for individuals—are also very real.
From my philosophical perspective as a philosophical liberal, this case pushes harder against my usual framework than organs do. With organs, you can invoke the harm principle and argue that nobody is clearly harmed by allowing buying and selling, as long as certain side conditions are met—that people can’t be coerced, and that no one is so destitute that selling an organ is their only alternative to starvation. In the case of drugs, a strict harm principle reading might say: if an adult chooses to use heroin, the person being harmed is themselves—why should we intervene? But drug use can lead to significant rises in crime in neighborhoods and imposes real costs on society at large.
Yesterday, walking back from dinner with conference participants here in Boston, we came past a gentleman who was crying for help and appeared to be in the grip of addiction. We stayed and called 911. When the EMTs arrived, they recognized him immediately by his first name—he was clearly a frequent user of that service. I’m very glad he got help, and he seemed to be a decent person in a very desperate situation. But it is also obvious that that imposes costs on the broader community. You can try to argue that even on the harm principle, drug prohibition is justified. But it’s not clear to me how clean that argument is, because the primary harm is to the individual. This is a topic on which I am genuinely torn. How do we puzzle through it with more clarity?
Roth: One thing I say in the conclusion to my book is that when we think about the things we are morally obligated to do, they have to be things that we can actually do. Even if we feel morally obligated to prevent heroin use, we have to recognize that there is still a great deal of heroin, fentanyl, and crystal meth in circulation. Our prisons are full of drug offenders, and yet the drugs remain. One of the thought experiments I discuss in the book is why it is so easy to buy drugs and so hard to hire a hitman. I think it has to do with the social attitude towards drugs on the one hand, and towards killing for hire on the other.
Mounk: A more obvious explanation may be this: every time someone uses a drug, they may be breaking the law, but there is no immediate external victim—which is the point I was making about the harm principle—and the state has no immediate way of knowing it has happened. Every time a hitman kills somebody, they are harming another person, and it is likely that someone will notice the victim is missing and the state will begin an investigation. Part of why drug crime is so prevalent is that it is quite easy to get away with, at least at a low level or as a user. You can violate a drug law and the state has little way of knowing. It is quite difficult to violate the prohibition on murder without the perpetrator eventually going to jail.
Roth: That is largely true. But there have been years in which there were more than 100,000 opioid overdose deaths, which vastly exceeds the number of homicides from any cause in the United States—I believe fewer than 20,000. Drugs kill far more people than murder does. And yet murder for hire is so rare in the United States that it doesn’t even appear in the national crime statistics.
Mounk: If you think that you’ve successfully hired a hitman, 99 out of a 100 times, it’s an FBI agent who’s about to arrest you.
Roth: If someone told me they wanted to hire a hitman, I might call the police, and they would say, why don’t you go back to Professor Roth and tell him there’s a bar where he can find one—and that’s where I’d end up trying to hire an FBI agent. Whereas if someone called the police and said Professor Roth is thinking about trying heroin and wants advice on where to get it, the response would be: why are you calling us? We’re a busy police department.
Part of the conclusion I draw in the book is that not only do markets need social support to work well, but so do bans on markets. The ban on drugs doesn’t have enough social support to work well—we have a great deal of drugs even though they’re against the law. We are losing the war on drugs. But it also turns out it’s not so easy to accept our surrender. In places like Portland, where they’ve tried decriminalizing use, the result has been open-air drug use that is also very distressing and makes cities difficult to live in. That is a real cost to citizens, and Portland has walked that back.
Drugs are the market about which I have the least ability to make helpful suggestions, except that we should continue to experiment. In many places we allow clean needle exchange, and at least we’re not seeing as much HIV transmission alongside drug use as we used to. That seems to help a little. We may find that incarceration remains among the options available for dealing with addiction, but it will certainly have to be combined with more medical approaches to help people deal with it. We don’t know the answer yet, but that calls for more experimentation and more search for solutions, not less.
Mounk: What does success actually look like in this case? Laws against jaywalking, which I think are largely silly, presumably succeed if fewer pedestrians die in car accidents—that’s the actual ultimate goal. You wouldn’t say the goal of the prohibition on jaywalking is that nobody ever jaywalks. Perhaps the prohibition actually does lead to fewer pedestrian deaths, in which case it’s a sensible law. I suspect that it doesn’t, though I haven’t seen empirical studies on it, and if it doesn’t, I think we should abolish it.
When you think about the success of a prohibition on theft, part of that is allowing a thriving economy with economic exchange and sparing the costs of extremely elaborate safety procedures. Part of it is reducing the number of thefts, because it is upsetting to have something stolen from you. We can consider the law against theft in the United States broadly successful even though things are obviously stolen every day. We don’t need perfect compliance for a law to be successful.
When we think about the prohibition on heroin or methamphetamine, what is the criterion of success, and how are the laws doing relative to that criterion?
Roth: Jaywalking isn’t a bad example, because I believe that in New York City, jaywalking has been decriminalized. One reason it was decriminalized is that it gave too much discretion on enforcement and was enforced inequitably against people of lower socioeconomic status. Part of having laws is asking whether we support the way they are enforced.
To come back to drugs: part of the reason it’s hard to move forward is that we have deep disagreement about what our goals are. There are people who think it is simply wrong to allow sales of drugs like heroin or fentanyl for private use—though fentanyl, of course, is an essential drug in medicine. I’ve been given fentanyl during surgeries. It’s a quick-acting anesthetic.
Mounk: I was astonished when I had a wisdom tooth out—which turned out to involve relatively minor pain, perhaps I was lucky—and my dentist prescribed me an opioid without telling me it was one. When she handed me the prescription, I Googled it and asked whether it was an opioid. She said yes. I asked if I needed it, and she said I could just try some Advil instead. So I never filled the opioid prescription, partly out of caution. If I had been in terrible pain, I would have. But the ease with which opioids were being prescribed in those circumstances—and this was only a couple of years ago—is astonishing.
Roth: Consider alcohol. We ended prohibition because it turned the United States into a nation of lawbreakers—whenever you had a drink, you were aiding and abetting whoever sold it to you. Prohibition didn’t have a big effect on alcohol consumption, but it did have a big effect on creating organized crime. Ending prohibition didn’t solve the problem of alcohol, though. There are still alcoholics, organizations like Alcoholics Anonymous that try to help people with addiction, and people who drive drunk and kill others. The problems that caused people to support prohibition didn’t go away—prohibition just didn’t solve them.
That’s essentially where we are with drugs. The problem of addictive, lethal drugs is very large. It’s not even entirely clear, from the libertarian point of view, that people are choosing to take these addictive drugs freely—you may choose to take one initially and then find yourself enslaved by it. So there’s also a distinction worth drawing between what I call repugnance and what’s called paternalism. Sometimes we’re trying to protect people from mistakes that will harm themselves. We have many laws that do that, like prescription drug laws. Before you got that opioid prescription, it would have been more difficult to obtain opioids without one, but your dentist judged that you might need them, and on that advice you were legally allowed to buy them. We require prescriptions for a vast array of drugs because we believe you need expert advice before consuming them safely. Going forward on drug use, we may move in the direction of treating addicts more like patients than like criminals—but it’s not simple, because addiction is complicated and enslaving.
Nicotine is a useful drug to think about in this context, because tobacco causes a lot more deaths than opioids do, and even more than legal alcohol does—though some of those deaths are delayed. Cirrhosis of the liver is not quite as dramatic as someone collapsing on the sidewalk. Tobacco is legal, but heavily and increasingly regulated. Americans smoke much less than they used to. There were large advertising campaigns—you mentioned not wanting heroin advertised by some corporate equivalent, but Big Tobacco ran extensive ads. The Virginia Slims campaign told women “you’ve come a long way, baby,” and tried to convince more women to smoke. It was, I think, largely successful at the time, at least among those women who didn’t mind being referred to as “baby.”
Mounk: We tend to think in terms of fully open markets or fully prohibited markets, but there are many regulatory arrangements in between. One strange irony is that in many contexts now, smoking a cigarette is very poorly viewed—at the very least a breach of a taboo, and often against the rules. Meanwhile, in many places, smoking a joint has become far more morally acceptable. In Brooklyn, you probably see more people smoking joints on the street than smoking cigarettes, which is rather astonishing. There is very little open advertising of cigarettes because of extensive regulation, but in my neighborhood there are three or four shops very aggressively advertising marijuana.
Marijuana is an important case. It is the drug where the war on drugs clearly went too far and was most damaging, because it is less immediately dangerous and deadly than many other drugs, and yet many people went to prison for selling it—and sometimes for consuming it, though that was rarer. The case for overturning prohibition on marijuana was very strong.
At the same time, we are seeing some of the damaging mechanisms you might have feared. Marijuana is much stronger now than it was even twenty years ago—the nature of the drug has actually changed. There are some suggestive findings that heavy use is very bad for users and may be bad for those around them. One recent study suggests that if you are a significant user of marijuana in the months before a pregnancy—even as a man—the likelihood that your offspring has autism or another serious developmental challenge is significantly increased. The mechanism by which organized commercial interests are now spreading this product, marketing it, perfecting it, and making it more powerful—in ways that also make it more addictive and more dangerous—is fully in motion. We are in the middle of an experiment whose results aren’t yet clear. How do you feel about how marijuana legalization has gone? What are the positive elements, and where are you concerned?
Roth: Marijuana is becoming more like tobacco—legal, with companies perhaps perfecting its addictive qualities, as tobacco companies apparently did quite consciously. They understood the addictive properties of nicotine. But the laws against consuming marijuana were not effective. If the point of those laws was to make marijuana unavailable, they failed. They also had the consequence of sending people to jail, forcing them to deal with criminals, and turning them into criminals themselves—producing widespread law breaking. Recent surveys suggest that the number of Americans who use marijuana every day now exceeds the number who have a drink of an alcoholic beverage every day. What you’re observing in New York is easy to verify with your nose when you’re near a cannabis user.
Cannabis is now much more potent. There was an organization called the California Growers Association—and California has many organizations with similar names, though normally they have a vegetable in the title, like the California Artichoke Growers Association. The California Growers Association was ambivalent about legalizing marijuana. People who grew marijuana illegally talked about how many plants they had—hundreds or thousands of plants. But farmers talk about yield per acre. The artisanal growers who were hiding their crops in national forests to avoid raids by the Drug Enforcement Agency have been largely put out of business.
We haven’t reached equilibrium yet. It’s not a crime to smoke marijuana or consume edibles, but we don’t yet know how cannabis will compare to alcohol, tobacco, sugar, or other things we consume. It remains to be seen. We shouldn’t regret that marijuana is now more available, because it was also available when it was a crime. The question is how to manage it—and leaving the management of these difficult questions in the hands of criminals is not the best way to do so.
In the rest of this conversation, Yascha and Al discuss the ethics of surrogacy, if sex work should be legal, and whether the rise of OnlyFans is concerning or empowering. This part of the conversation is reserved for paying subscribers…
