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Erik Malmqvist defends the prohibition on kidney sales as a justifiable measure to protect individuals from harms they have not autonomously chosen. This appeal to 'group soft paternalism' requires that three conditions be met. It must be shown that some vendors will be harmed, that some will be subject to undue pressure to vend, and that we cannot feasibly distinguish between the autonomous and the non-autonomous. I argue that Malmqvist fails to demonstrate that any of these conditions are likely to obtain. His argument involves two common errors. First, he, like many, proceeds on a mistaken understanding of how to assess harm. What matters is not the balance of costs and benefits of vending, but a comparison of potential vendors' welfare across two possible courses of action. Second, Malmqvist's concerns about third-party pressure are predicated on an empirically unrealistic understanding of the operation of a regulated market. A widely underappreciated fact is that kidney sales will be relatively rare, and most who try to vend will be unable to. Because pressure on another to vend will not result in the desired outcome, few will exert it.

ABSTRACT:A significant debate has developed around the question: What are the moral limits of the market? This paper argues that this debate proceeds on a mistake. Both those who oppose specific markets and those who defend them, adopt the same deficient approach. Participants illicitly proceed from an assessment of the transactions making up a market to a judgment of that market's permissibility. This inference is unlicensed. We may know everything there is to know about the transactions in a specific market—they might all be absolutely bad—but we will not yet know whether that market should be prohibited. To discern this, to establish that intervention into some specific market is justifiable, one must supply a rather different assessment. One must compare the outcome in which that market is permitted with the best outcome available in its absence. None in this debate has offered such a judgment.