Author Archive for Frank Pasquale

posted by Frank Pasquale

First they came for the birthday card . . . (fp)

  July 29, 2010 at 8:37 am   Posted in: Asides   Print This Post   No Comments

Dystopian Fiction Intersects with the Academy

posted by Frank Pasquale

Gary Shteyngart’s new novel, Super Sad True Love Story, looks to be every bit as good as Absurdistan. It’s a dystopian, futuristic work. In a radio show, Shteyngart was asked how far in the future the novel was set, and (without missing a beat) he replied “next Tuesday.” Consider the following from Michiko Kakutani’s glowing review of the book (and the links to various legal and policy thinkers), and judge for yourself:

It’s a novel that gives us a cutting comic portrait of a futuristic America, nearly ungovernable and perched on the abyss of fiscal collapse. . . .“Super Sad” takes place in the near future, and Mr. Shteyngart has extrapolated every toxic development already at large in America to farcical extremes. . . . Books are regarded as a distasteful, papery-smelling anachronism by young people who know only how to text-scan for data, and privacy has become a relic of the past.

Everyone carries around a device called an äppärät, which can live-stream its owner’s thoughts and conversations, and broadcast their “hotness” quotient to others. People are obsessed with their health — Lenny works as a Life Lovers Outreach Coordinator (Grade G) for a firm that specializes in life extension — and shopping is the favorite pastime of anyone with money. . . .

The United States is at war in Venezuela, and its national debt has soared to the point where the Chinese are threatening to pull the plug. There are National Guard checkpoints around New York, and riots in the city’s parks.

Shteyngart mentioned Ray Kurzweil and Aubrey de Grey in an interview as influences on the book’s futurism. I hope some of the ideas in the links above percolated in as well.

  July 27, 2010 at 7:30 pm   Posted in: Health Law, Humor, Politics, Privacy, Privacy (Gossip & Shaming), Technology, Uncategorized, Weird   Print This Post   One Comment

posted by Frank Pasquale

For the Niall denial files. (fp)

  July 27, 2010 at 9:28 am   Posted in: Asides, Uncategorized   Print This Post   No Comments

Global Inequality & Access to Health Care

posted by Frank Pasquale

According to a recent study in The Lancet, “The world’s wealthiest two billion people get 75 percent of all the surgery done each year, while the poorest two billion get only 4 percent and often die or live in misery as a result.” It’s a striking fact; how are we to interpret it?

There are two metanarrative accounts of the relationship between inequality and health care. On a Whiggish, optimistic view, vast inequality can generate the capital necessary to fund investment in innovative health care technologies. Scholars like Richard Epstein have celebrated both general economic inequality and unequal access to health care particularly because, they claim, buying power at the top promotes investment in medical advances. On this view, innovations in the wealthy world can diffuse throughout lesser developed regions. Moreover, the rich can also subsidize the poor locally, paying for infrastructure that serves a broader community.

Interpreted less charitably, inequality enables the well-off to bid away resources and opportunities from the poor. Richer nations and persons may snap up limited resources; for instance, in 2009, Jeanne Whalen at the Wall Street Journal wrote an article entitled Rich Nations Lock In Flu Vaccine as Poor Ones Fret:

A scramble among wealthy nations to guard against a swine-flu pandemic is raising concerns that billions of people in poorer countries could be left without adequate supplies of vaccine. . . . The emerging battle between the haves and have-nots underscores a major weakness in the global health system: Pharmaceutical companies have severely limited capacity to produce flu vaccines in emergencies.

Inequalities can be even more stark at the R&D phase. If an anti-baldness cure can generate billions of dollars in revenue while a new therapy for tuberculosis only generates hundreds of millions, for-profit pharmaceutical companies may well have a fiduciary duty to invest scarce research dollars in the unhirsute rather than the truly unhealthy.

Lawrence Gostin’s recent article “Redressing the Unconscionable Global Health Gap” offers some practical ways of addressing these disparities:
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  July 27, 2010 at 9:23 am   Posted in: Uncategorized   Print This Post   3 Comments

posted by Frank Pasquale

Professors as processors. (fp)

  July 26, 2010 at 7:10 pm   Posted in: Asides   Print This Post   No Comments

posted by Frank Pasquale

Great Moderation hits Great Mortification. (fp)

  July 26, 2010 at 7:09 pm   Posted in: Asides   Print This Post   No Comments

posted by Frank Pasquale

Understanding the Shirley Sherrod story. (fp)

  July 25, 2010 at 11:05 pm   Posted in: Asides   Print This Post   No Comments

Anti-Business? Or Anti-The Worst Businesses?

posted by Frank Pasquale

A good, socially responsible business can’t make a profit if its competitors are free to trash the environment, impoverish and injure their workers, and evade the law. Don Blankenship knows that, and that’s why he’s on the warpath against the Obama Administration:

As CEO of Massey Energy, [Blankenship] has presided over a coal company that had thousands of violations in recent years, leading up to the April explosion that killed 29 of his miners. . . . [At the National Press Club, the] CEO was asked what he could have done to prevent the deadly explosion. “I probably should’ve sued MSHA” — that’s the federal Mine Safety and Health Administration — “rather than waiting” until now, he said. In the future, he added, “you’ll see not only coal companies but many companies resist the efforts of EPA and others that are impeding their ability to pursue their careers, or their happiness.” . . . .”There’s 42,000 people killed a year on the highways,” the coal boss offered as a way to put his miners’ deaths in perspective.

As James K. Galbraith noted in his book, The Predator State, there are too many members of our political class who want to help Mr. Blankenship pursue his law of the jungle vision of capitalism. Promoters of carte blanche deregulation are not “pro-business;” rather, they’re helping one, irresponsible part of the private sector outcompete other parts of it. As Galbraith argues,

Imposing standards, and enforcing them, is . . . the general policy response to . . . the reactionary forces within business who see to maintain competitiveness without technological improvement, without environmental control, without attending to product or workplace safety. They are the forces behind deregulation.

The business community is diverse; some companies care a great deal about their workers, whereas other treat them as little more than an expendable human resource. For example, in one time period, BP had over 700 “egregious, willful” OSHA violations, and Exxon had only one. A civilized society does not allow companies like BP and Massey to gain a competitive edge by endangering workers and the environment. Only a kakistocracy accepts a kakisteconomy.

Image Credit: Poster for the film The Corporation, which includes an interview with an inspirational figure for sustainable business, Ray Anderson (the CEO of Interface, the world’s largest carpet manufacturer).

  July 25, 2010 at 9:43 am   Posted in: Administrative Law, Economic Analysis of Law, Technology, Uncategorized   Print This Post   9 Comments

More on the New Neutralities

posted by Frank Pasquale

As more bottlenecks emerge online, we’re going to hear about “new neutralities” beyond net neutrality. For a state of the art discussion of the issue, check out Mark Patterson’s article in the Fordham L. Rev. (“Non-Network Barriers to Network Neutrality”):

Even though search engines are presumably outside the jurisdiction of the FCC, if we do indeed have a national Internet policy that makes it impermissible to “significantly impede[] consumers’ ability to access the content and use the applications of their choice,” it is hard to see why both requirements of neutrality and disclosures of non-neutrality would not apply just as strongly, and perhaps even more strongly, to search engines as to access providers. . . .

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  July 23, 2010 at 9:17 pm   Posted in: Cyberlaw, Google & Search Engines, Intellectual Property, Privacy   Print This Post   2 Comments

The Importance of a Graduated Inheritance Tax

posted by Frank Pasquale

Bernie Sanders makes some valuable points in The Nation this week:

The 400 richest families in America, who saw their wealth increase by some $400 billion during the Bush years, have now accumulated $1.27 trillion in wealth. . . . During the last fifteen years, while these enormously rich people became much richer their effective tax rates were slashed almost in half. While the highest-paid 400 Americans had an average income of $345 million in 2007. . . they now pay an effective tax rate of 16.6 percent, the lowest on record.

Last year, the top twenty-five hedge fund managers made a combined $25 billion but because of tax policy their lobbyists helped write, they pay a lower effective tax rate than many teachers, nurses and police officers. As a result of tax havens in the Cayman Islands, Bermuda and elsewhere, the wealthy and large corporations are evading some $100 billion a year in U.S. taxes.

Whatever our nation’s tax future, these are vital facts to consider during the debate. Sanders has proposed the “Responsible Estate Tax Act (S.3533),” which would “raise $318 billion over the next decade by establishing a graduated inheritance tax on estates over $3.5 million.” Deficit hawks should applaud his approach.

  July 23, 2010 at 6:48 pm   Posted in: Economic Analysis of Law, Tax   Print This Post   6 Comments

posted by Frank Pasquale

Credit score cruelty. (fp)

  July 23, 2010 at 4:03 pm   Posted in: Asides   Print This Post   No Comments

posted by Frank Pasquale

Slowing Interior’s revolving door. (fp)

  July 23, 2010 at 9:47 am   Posted in: Asides   Print This Post   No Comments

posted by Frank Pasquale

Great risk shift: Americans more insecure; BC/BS enjoying a surplus. (fp)

  July 23, 2010 at 9:44 am   Posted in: Asides   Print This Post   No Comments

War-Gaming CyberStruggle, Circa 1999

posted by Frank Pasquale

Given recent debates over the size of the threat posed by cyberwar, I thought I’d mention the following simulation that was done by the RAND Corporation in 1999. The excerpt is from Brian Persico’s article Under Siege: The Jurisdictional And Interagency Problems Of Protecting The National Information Infrastructure, in the CommLaw Conspectus:

The object of the study was to assess the decision making process during a major hypothetical “information warfare” attack launched against the United States during a crisis in the Persian Gulf region. Based upon the RAND Corporation’s projected trends in the world’s geopolitical balance of power, the exercise’s scenario was based upon a fictitious split between members of the Organization of Petroleum Exporting Countries (“OPEC”) over levels of oil production. Simultaneous with the study’s fictitious disruption in relations, simulated infrastructure break-downs occurred in Saudi Arabia, Egypt, and the United States.

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  July 22, 2010 at 9:39 pm   Posted in: Military Law, Uncategorized   Print This Post   No Comments

Inequality and the Great Recession

posted by Frank Pasquale

Over at Religious Left Law, Steve Shiffrin has blogged on Robert Reich’s recent analysis of the relationship between inequality and the recession. As Shiffrin explains, “when wealth is concentrated at the top, the rest do not have enough purchasing power to support the economy.” I wanted to elaborate on that point; I’ll try to address some challenges to it in future posts.

1) Paul Krugman appears to disagree with Reich’s (and others’) “underconsumption theory.” For Krugman, inequality’s negative impact on macroeconomic stability (if it exists at all) is mediated by the political system. Politics gets more polarized during times of inequality, and that polarization may be preventing constructive, cooperative approaches to developing the infrastructure that a thriving market needs.

2) Robert Brenner predicted a “crisis of overproduction” years ago, and we may well be in it now. We know that “businesses are only producing 3 percent fewer goods and services than when the recession started, but Americans are working 10 percent fewer hours.” Economic theory might predict that more productive employers will hire more workers. But when unemployment is as high as it is now, employers can also choose to force the “survivors” at their firms into working longer hours for the same amount of pay.
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  July 22, 2010 at 8:31 pm   Posted in: Economic Analysis of Law, Law and Inequality, Philosophy of Social Science, Politics   Print This Post   2 Comments

posted by Frank Pasquale

Leamer: Economic theory is fiction; econometrics is journalism. (fp)

  July 21, 2010 at 8:49 pm   Posted in: Asides   Print This Post   No Comments

posted by Frank Pasquale

Dreaming of derivatives in Inception (and cinema generally). (fp)

  July 21, 2010 at 5:35 pm   Posted in: Asides   Print This Post   No Comments

Louisiana as Petro-State

posted by Frank Pasquale

Here is an interesting take on the role of oil companies in Louisiana:

Long before the oil spill, [Louisiana]’s embrace of the petroleum industry cast it under what economists call “the resource curse”: the paradox that countries rich in minerals or petroleum tend to grow more slowly and have lower living standards than other nations. Simply put, Louisiana is the closest thing America has to a petro-state.

Instead of blessing Louisiana with prosperity, the oil industry fostered dependency, corruption and an indifference to environmental damage. Our Cajun sheikdom’s oil and gas riches — like those of the Niger Delta, the Orinoco belt in Venezuela and the Iraqi marshes — also stunted its development, leaving it far behind states with fewer natural resources. . . . “We’ve always been a plantation state,” said Oliver Houck, an environmental law professor at Tulane University. “What oil and gas did is replace the agricultural plantation culture with an oil and gas plantation culture.”

Just as plantation culture had an impact in Texas, it appears to leave a lingering legacy in Louisiana as well. When many judges and scientists appear to be dependent on an industry, accountability is a long way off.

  July 21, 2010 at 5:17 pm   Posted in: Corruption, Economic Analysis of Law   Print This Post   No Comments

In the Venal Colony

posted by Frank Pasquale

Paul Romer is an accomplished man; as he puts it, “I revived growth theory. I made technology work in higher ed. I am two for two, and I think the impossible can be done.” His new idea is to promote economic growth in poor countries by establishing zones within them that are administered by business-friendly foreign governments:

Romer is peddling a radical vision: that dysfunctional nations can kick-start their own development by creating new cities with new rules—. . . centers of progress that Romer calls “charter cities.” By building urban oases of technocratic sanity, struggling nations could attract investment and jobs; private capital would flood in and foreign aid would not be needed. . . . [To run the cities,] Romer looks to the chief source of legitimate coercion that exists today—the governments that preside over the world’s more successful countries. To launch new charter cities, he says, poor countries should lease chunks of territory to enlightened foreign powers, which would take charge as though presiding over some imperial protectorate. Romer’s prescription is not merely neo-medieval, in other words. It is also neo-colonial. . . .

When Romer explains charter cities, he likes to invoke Hong Kong. For much of the 20th century, Hong Kong’s economy left mainland China’s in the dust, proving that enlightened rules can make a world of difference. By an accident of history, Hong Kong essentially had its own charter—a set of laws and institutions imposed by its British colonial overseers—and the charter served as a magnet for go-getters. At a time when much of East Asia was ruled by nationalist or Communist strongmen, Hong Kong’s colonial authorities put in place low taxes, minimal regulation, and legal protections for property rights and contracts; between 1913 and 1980, the city’s inflation-adjusted output per person jumped more than eightfold, making the average Hong Kong resident 10 times as rich as the average mainland Chinese, and about four-fifths as rich as the average Briton.

The idea of a “charter city” brings to mind some of Diane Ravitch’s critiques of charter schools:

The media like to focus on a star charter school, as though one extraordinary school is typical. The teachers are young and enthusiastic; the children are in uniforms and well behaved, and they all plan to go to college. But such stories often overlook important factors about charters: one, the good charters select students by lottery, and thus attract motivated students and families; two, charters tend to enroll a smaller proportion of students who are limited–English proficient, students with disabilities and homeless students, which gives them an edge over neighborhood public schools; and three, charters can remove students who are “not a good fit” and send them back to the neighborhood school. These factors give charters an edge, which makes it surprising that their performance is not any better than it is.

It would likely be very difficult to prove that a “charter city” succeeded on the basis of its “better laws,” rather than its attractiveness to the most ambitious workers. The questions of legitimacy raised by Romer’s proposal are difficult, too. US landlords may attempt to contract into their own “private Idahos” in Greenwich Village, but will international law smile on charter city arrangements? What happens when there is a regime change in the country that originally controlled the city space, and the new regime wants it back?

In any event, for further discussion of the idea, check out Russ Roberts’s interview with Romer, which is very substantive.

  July 21, 2010 at 5:03 pm   Posted in: Corruption, International & Comparative Law, Politics   Print This Post   3 Comments

Top Secret America

posted by Frank Pasquale

The new WaPo series Top Secret America is making waves on both left and right, and for good reason. It’s a strikingly comprehensive look at an ever-expanding national security state. As the authors write,

The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.

Yet Dana Priest and William Arkin do give us an idea of the striking number of agencies, contractors, and buildings devoted to counterterrorism, homeland security and intelligence:

An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances. . . Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States. . . .In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings – about 17 million square feet of space.

I highly recommend the series, which helps answers some of the questions posed at the New School conference “Limiting Knowledge in a Democracy:”

[W]here is America today with respect to the limits on our access to information, limits on what we can keep confidential and what the government and other institutions can keep secret? How can the public gain access to information and how do we decide what information is a citizen’s right to know? What information endangers individuals’ or the country’s wellbeing and safety? Are the ever-increasing number of technological innovations fundamentally transforming what we can know and what we cannot? What can remain confidential and what cannot?

I have often heard the possible futures arising out of information technology advance characterized as “info-anarchy” (anyone can have access to anything) or “perfect control” (where technology makes it easier to monitor and manage exactly how knowledge is disseminated). Top Secret America suggests a dystopian intelligence network where anarchy and control combine in strange and unpredictable ways.

  July 21, 2010 at 4:57 pm   Posted in: Politics, Privacy, Privacy (National Security)   Print This Post   No Comments

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