Author Archive for frank-pasquale
The Hippocratic Math
posted by Frank Pasquale
Here’s an abstract of my review of Gregg Bloche’s fascinating book, The Hippocratic Myth:
Not many policymakers or scholars can write with the authority of Gregg Bloche. Bloche is not only a law professor, but a physician, who knows his way around a hospital. Throughout The Hippocratic Myth, Bloche cements his authority in the mind of the reader by relating stories of his experience as a clinician. In each of these stories, his humane and insightful approach as psychiatrist shines through. These fluently-written passages strike one as the work of one of those rare practitioners who manages to care deeply about the patient at hand while simultaneously contextualizing the encounter in a larger framework. Thus The Hippocratic Myth should take its place among other well-received books by physicians with a sense of the big picture, including Atul Gawande’s The Checklist Manifesto and Better and Jerome Groopman’s How Doctors Think.
In The Hippocratic Myth, Bloche leverages this authority to advocate for a more cost sensitive health care system, where individuals frankly acknowledge that they should expect trade-offs between cost and access to certain forms of care. My concern in this review is that Bloche the caring and expert physician would have a tough time in a health care world too deeply influenced by Bloche the cost-conscious author.
Bloche’s book is one of those rare volumes that merits a careful read by scholars, classroom reading by students, and a broad popular audience.
X-Posted: Health Reform Watch.
February 1, 2012 at 8:38 am
Posted in: Health Law
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On Social Policy, A Growing Divide Between Conservative Policy Elites and the Base
posted by Frank Pasquale
Mike Konczal has an interesting interpretation of the recent rise of Gingrich in GOP polling:
A common trope for conservative policy intellectuals is that they want to “means test” the welfare state – reduce its availability for those with high wealth and income and focus it on those with the least wealth and income. But the Tea Party base wants the opposite – they are opposed to a welfare state for the poor, young people, undocumented workers and other groups they think are undeserving. The welfare state is ok for people like themselves, but for people they think that don’t make the cut it should be a nonexistent or a burdensome affair.
From the latest research on the Tea Party we learn that “Tea Partiers judge entitlement programs not in terms of abstract free-market orthodoxy, but according to the perceived deservingness of recipients…The fundamental distinction for them is not state vs. individual, it is the division of the United States into ‘workers’ vs. ‘people who don’t work.’” This is welfare as private charity, charity conditional on fitting certain expectations, not as an unconditional right. . . .
[T]he conservative mind doesn’t see the economy as something that is defective when involuntary unemployment shoots up or something that should work to the advantage of those who have the least. To them, the threat of people going hungry for failing in the market is what creates the ability to thrive in that market. The market doesn’t just reward the successful, it punishes those who fall behind. Food stamps deny people of that experience[.]
So, too, might burial money intended for the poor. Gingrich has not yet elaborated on the bracing effects of dying without enough money for a funeral. But he does have hard-edged answers for those near the beginning of life, repeatedly urging a repeal of “outdated” child labor laws. Remember, you heard it on this blog first.
January 23, 2012 at 2:36 pm
Posted in: Law and Inequality
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Lombardo on Legal Archaeology
posted by Frank Pasquale
Paul A. Lombardo published an essay “Legal Archaeology: Recovering the Stories behind the Cases” in the Fall 2008 issue of the Journal of Law, Medicine, and Ethics. It reminded me of the wonderful chapters in this volume of “health law stories.” Here are some excerpts that may be of interest:
Every lawsuit is a potential drama: a story of conflict, often with victims and villains, leading to justice done or denied. Yet a great deal, if not all, that we learn about the most noteworthy of lawsuits — the truly great cases — comes from reading the opinion of an appellate court, written by a judge who never saw the parties of the case, who worked at a time and a place far removed from the events that gave rise to litigation.
Rarely do we admit that the official factual account contained in an appellate opinion may have only the most tenuous relationship to the events that actually led the parties to court. The complex stories — turning on small facts, seemingly trivial circumstances, and inter-contingent events — fade away as the “case” takes on a life of its own as it leaves the court of appeals.
How can a law professor correct this bias? Here are some of Lombardo’s suggestions:
January 21, 2012 at 1:51 pm
Posted in: Health Law, Philosophy of Social Science, Teaching
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“The Workers are Animals. Let’s Replace Them with Robots.”
posted by Frank Pasquale
Among the billionaires at the vanguard of global capital, Terry Gou of Hon Hai (also known as Foxconn) deserves special recognition for his honesty. “Hon Hai has a workforce of over one million worldwide and as human beings are also animals, to manage one million animals gives me a headache,” said the chairman. His company has also begun building “an empire of robots” to replace a whining workforce.
To get a better sense of why the “animals” may be complaining, be sure to listen to Mike Daisey’s extraordinary report on his trip to Shenzhen, home of a massive Foxconn factory. Here’s one excerpt:
N-hexane is an iPhone screen cleaner. It’s great because it evaporates a little bit faster than alcohol does, which means you can run the production line even faster and try to keep up with the quotas. The problem is that n-hexane is a potent neurotoxin, and all these people have been exposed. Their hands shake uncontrollably. Most of them can’t even pick up a glass.
I talk to people whose joints in their hands have disintegrated from working on the line, doing the same motion hundreds and hundreds of thousands of times. It’s like carpal tunnel on a scale we can scarcely imagine. And you need to know that this is eminently avoidable. If these people were rotated monthly on their jobs, this would not happen.
But that would require someone to care. That would require someone at Foxconn and the other suppliers to care. That would require someone at Apple and Dell and the other customers to care. Currently no one in the ecosystem cares enough to even enforce that. And so when you start working at 15 or 16, by the time you are 26, 27, your hands are ruined. And when they are truly ruined, once they will not do anything further, you know what we do with a defective part in a machine that makes machine. We throw it away.
When workers are already treated as machines, perhaps their replacement by robots should be a cause for celebration. But the question then becomes: what do the displaced do for a living? Is there an alternative to exploitation?
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January 20, 2012 at 8:58 am
Posted in: Law and Inequality, Science Fiction, Technology
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The Problem of IP Overenforcement: Jason Mazzone’s Copyfraud
posted by Frank Pasquale
In my Boston Review piece on SOPA, I mentioned a sad story about a drawn-out copyright lawsuit’s effect on an entrepreneur. I should have also brought up a whole book on the problem of IP overenforcement, Jason Mazzone’s Copyfraud. Important on the day it was published, it’s particularly salient now that Congress is considering expanding the powers of copyright and trademark owners.
Mazzone argues that overenforcement of copyright is rampant:
False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.
Mazzone’s book highlights an underappreciated problem of rights fabrication that threatens to become a form of private legislation. If the intellectual property system is to genuinely promote innovation and creativity, it will need to address the issues he describes. It should certainly do so before adopting the types of intrusive remedies proposed under SOPA/PIPA. Mazzone’s policy recommendations are wise and often original, both recognizing and building on a large law review literature on IP reform. As Mazzone has argued:
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January 18, 2012 at 7:40 pm
Posted in: Intellectual Property
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SOPA and the Fight for Control of Online Content
posted by Frank Pasquale
I have an essay on the SOPA controversy at the Boston Review. My main point: SOPA and its ilk are terrible, but its opponents should rally behind a constructive alternative to promote funding for arts and culture. As I argue there:
SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.
For other Co-Op commentary, here’s Danielle Citron, Gerard Magliocca, and Derek Bambauer.
January 18, 2012 at 2:10 pm
Posted in: Criminal Law, Current Events, Cyberlaw, Intellectual Property, Technology
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Positive Rights
posted by Frank Pasquale
I’ve always been a big fan of Charles Taylor’s essay “What’s Wrong with Negative Liberty,” but I haven’t done much to advance the idea of economic, social and cultural rights. Here are two efforts to rectify the situation:
1) An opinion piece in the Bergen Record, A Constitutional Right to Health Care.
2) A post at Madisonian, Internet Access as a Human Right.
I don’t think I have much to add to the already well-developed philosophical literature on positive rights, but I’d like to do more to bring this concept to an American audience.
January 16, 2012 at 2:00 pm
Posted in: Constitutional Law, Cyberlaw, Health Law, Technology
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Martin Luther King Day Links
posted by Frank Pasquale
To mark the day, a few reflections:
1) Nicholas K. Peart, Why is the NYPD After Me?
Less than two years later, in the spring of 2008, N.Y.P.D. officers stopped and frisked me, again. And for no apparent reason. This time I was leaving my grandmother’s home in Flatbush, Brooklyn; a squad car passed me as I walked down East 49th Street to the bus stop. The car backed up. Three officers jumped out. Not again. The officers ordered me to stand, hands against a garage door, fished my wallet out of my pocket and looked at my ID. Then they let me go. I was stopped again in September of 2010. This time I was just walking home from the gym. It was the same routine: I was stopped, frisked, searched, ID’d and let go. . . .
[L]ast year, the N.Y.P.D. recorded more than 600,000 stops; 84 percent of those stopped were blacks or Latinos. Police are far more likely to use force when stopping blacks or Latinos than whites. In half the stops police cite the vague “furtive movements” as the reason for the stop. Maybe black and brown people just look more furtive, whatever that means. These stops are part of a larger, more widespread problem — a racially discriminatory system of stop-and-frisk in the N.Y.P.D.
2) MLK’s Legacy: The Charleston Hospital Workers’ Strike of 1969:
During the year after her husband’s assassination, Coretta Scott King made several visits to Charleston, S.C., where hospital aides at what was then the Medical College of South Carolina were involved in a protracted fight for decent wages. After a 113-day strike, the union won an agreement that led to wage increases and new grievance procedures.
The campaign was led by Mary Moultrie, a South Carolina native . . . In Moultrie’s telling, the gains that the union won lasted only for a few years. Because South Carolina is a right-to-work state, the union couldn’t manage to maintain much strength. But Moultrie didn’t give up: She was still organizing as recently as 2008.
3) Adam Kotsko, On the commemoration of Martin Luther King
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January 16, 2012 at 1:11 pm
Posted in: Civil Rights, Law and Inequality
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HealthLawProfs on Experiential Learning, Summer Teaching
posted by Frank Pasquale
Just a quick note on two posts on the Health Law Profs blog that might interest regular readers. First, Katharine van Tassel and Jennifer Bard are developing a clearinghouse of summer law teaching opportunities. Details appear here. Second, the AALS Health Law section focused on experiential learning; some notes here.
January 14, 2012 at 9:35 pm
Posted in: Health Law, Teaching
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posted by Frank Pasquale
Tortured to death for trespassing. (fp)
January 11, 2012 at 9:47 pm
Posted in: Asides
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Secure Identities on the Internet
posted by Frank Pasquale
Katharine Gelber offers a thoughtful review of The Offensive Internet in the Australian Review. (David Levine conducted an interview with the book’s editors, Martha Nussbaum and Saul Levmore, available here.) I contributed an essay to this volume, and I found both the other essays in it and the conference it was based on very illuminating. As Gelber notes,
Anyone who believes the Internet to be exclusively, or even primarily, a site for the democratisation of the media or a mechanism to enhance participation in public discourse needs to read this book. This outstanding collection tackles the dark side of the Internet, its use by ‘cyber mobs’, liars, aggressive misogynists and purveyors of hate to distribute their views largely with impunity, while their targets suffer the consequences of this predominantly unregulated arena for speech. . . .
January 2, 2012 at 11:36 am
Posted in: Civil Rights, Culture, Current Events, Privacy, Technology
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Pascal on Power and Justice (A Thought for the New Year)
posted by Frank Pasquale
The past few years I’ve tried to find an inspiring quote for the New Year for the blog. There’s a rich vein of insight to be mined from the Carnegie Council podcasts, which I recently discovered on iTunes. One speaker I particularly enjoyed was Krishen Mehta, a former partner with PricewaterhouseCoopers who is now the co-chairman of Global Financial Integrity’s advisory board. Asked about what motivated him to try to stop the shocking abuse of tax havens and mispriced trade by oligarchs, he said the following:
It really is a war against the poor. The inequity that has existed in the past is going to continue unless civil society is informed, asks the right questions of its government, of its business leadership, and asks for more responsibility. One of my favorite writers is Blaise Pascal, who said that “justice and power must be brought together so that whatever is just may be powerful and whatever is powerful may be just.”
A recent study concluded that, “For a salary of between £75,000 and £200,000, tax accountants destroy £47 in value, for every pound they generate.” Mehta, by contrast, is not only creating value, but doing so for the most vulnerable people. How appropriate that a thinker admired by both mathematicians and philosophers would inspire him.
Image Credit: Augustin Pajou. As described on Wikimedia Commons: “Blaise Pascal (1623–1662) studying the cycloid, engraved on the tablet he is holding in his left hand; the scattered papers at his feet are his Pensées, the open book his Lettres provinciales.”
December 31, 2011 at 7:58 pm
Posted in: Accounting, Law and Inequality, Tax
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The Poor Get One Strike; Banks Get Thousands
posted by Frank Pasquale
Most readers of this blog are already familiar with draconian treatment of the poor by various law enforcers and state bureaucracies. Here’s yet another example:
[A] one-strike clause . . . allows the public housing authority to evict [the tenant] if any member of her household or any guest engages in certain kinds of criminal activity. . . . Stories abound about the one-strike policy being wielded in seemingly egregious ways to evict “innocent tenants,” such as a disabled elderly man in California whose caretaker was caught with crack. . . .The Chicago Reporter wrote in September that 86 percent of Chicago’s one-strike evictions last year did not arise from criminal activity by the person named on the lease.
“These policies, the effect of them on children, families, women, families of color, were not thought through. And I think now a national conversation is beginning to rethink that,” said Ariela Migdal, a senior staff attorney with the Women’s Rights Project of the American Civil Liberties Union. Migdal pointed to a June 2011 letter from HUD Secretary Shaun Donovan to public housing directors, encouraging the directors to use their “broad discretion” to create a flexible set of standards for who will be admitted to and allowed to stay in public housing.
Certainly the Obama administration has ample experience deploying “discretion” and “mercy” in other areas. For example, consider Barry Ritholtz’s summary of a shocking Reuters report by Scott Paltrow on foreclosure fraud:
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December 26, 2011 at 12:26 pm
Posted in: Corruption, Criminal Law, Financial Institutions, Law and Inequality, Tax
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Pope Benedict’s Message on Peace, Justice, and Wealth Redistribution
posted by Frank Pasquale
Pope Benedict’s interpretations of Catholic Social Thought have been consistently inspiring. His recent message on the World Day of Justice and Peace focused on the material foundations of a just and well-ordered society.
“Blessed are the peacemakers, for they shall be called sons of God”, as Jesus says in the Sermon on the Mount (Mt 5:9). Peace for all is the fruit of justice for all, and no one can shirk this essential task of promoting justice, according to one’s particular areas of competence and responsibility. . . .
Peace . . . is not merely a gift to be received: it is also a task to be undertaken. In order to be true peacemakers, we must educate ourselves in compassion, solidarity, working together, fraternity, in being active within the community and concerned to raise awareness about national and international issues and the importance of seeking adequate mechanisms for the redistribution of wealth, the promotion of growth, cooperation for development and conflict resolution.
This position confirms a long line of encyclicals urging the fair distribution of global resources. As Pope Benedict earlier stated in Caritas in Veritate, “Without internal forms of solidarity and mutual trust, the market cannot completely fulfil its proper economic function.”
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December 23, 2011 at 3:44 pm
Posted in: Financial Institutions, Religion, Tax
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posted by Frank Pasquale
Drones of contention. (fp)
December 22, 2011 at 3:24 pm
Posted in: Asides
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posted by Frank Pasquale
DOJ still coddling banks. (fp)
December 22, 2011 at 3:21 pm
Posted in: Asides
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posted by Frank Pasquale
Creative destruction? Thank banks. (fp)
December 22, 2011 at 3:19 pm
Posted in: Asides
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The Roberts Court’s Bad Romance
posted by Frank Pasquale
Recently a coalition of Missouri payday lenders implied “that standing up for high-interest-rate lenders is somehow analagous to the acts of the ‘poor people who followed Dr. King and walked with him hundreds of miles because they believed in civil rights that much.’” Because we all know that liberty means little if you’re not free to take a loan out at 444% APR.
In The Irony of Free Speech, Owen Fiss warned that the language of the First Amendment would lose its emancipatory potential as courts used it to gut progressive legislation. In a recent essay in Democracy Journal, Jedediah Purdy confirms those fears. His thoughts on last term’s Sorrell v. IMS Health are particularly incisive on the topic of commercial speech, which the Court appears ready to radically rethink:
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December 21, 2011 at 11:01 pm
Posted in: First Amendment, Privacy
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Gamifying Control of the Scored Self
posted by Frank Pasquale
Social sorting is big business. Bosses and bankers crave “predictive analytics:” ways of deciding who will be the best worker, borrower, or customer. Our economy is less likely to reward someone who “builds a better mousetrap” than it is to fund a startup which will identify those most likely to buy a mousetrap. The critical resource here is data, the fossil fuel of the digital economy. Privacy advocates are digital environmentalists, worried that rapid exploitation of data either violates moral principles or sets in motion destructive processes we only vaguely understand now.*
Start-up fever fuels these concerns as new services debut and others grow in importance. For example, a leader at Lenddo, “the first credit scoring service that uses your online social network to assess credit,” has called for “thousands of engineers [to work] to assess creditworthiness.” We all know how well the “quants” have run Wall Street—but maybe this time will be different. His company aims to mine data derived from digital monitoring of relationships. ITWorld headlined the development: “How Facebook Can Hurt Your Credit Rating”–”It’s time to ditch those deadbeat friends.” It also brought up the disturbing prospect of redlined portions of the “social graph.”
There’s a lot of value in such “news you can use” reporting. However, I think it misses some problematic aspects of a pervasively evaluated and scored digital world. Big data’s fans will always counter that, for every person hurt by surveillance, there’s someone else who is helped by it. Let’s leave aside, for the moment, whether the game of reputation-building is truly zero-sum, and the far more important question of whether these judgments are fair. The data-meisters’ analytics deserve scrutiny on other grounds.
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December 19, 2011 at 3:21 pm
Posted in: Political Economy, Privacy, Social Network Websites, Sociology of Law
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Complexity, Opacity, and Permanent Crisis
posted by Frank Pasquale
Finance crises have baffled recently. Jon Corzine says he has no idea where hundreds of millions of dollars in MF Global money went. Judge Rakoff says the proposed SEC-Citi settlement would whitewash the megabank’s wrongdoing:
An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous . . . . In any case like this that touches on the transparency of financial markets whose gyrations have so depressed our economy and debilitated our lives, there is an overriding public interest in knowing the truth.
And Sheila Bair suggests that we are still in the dark about critical aspects of the financial system:
Credit exposure reports are essential to make sure regulators understand crucial inter-relationships between distress at one institution and its potential to cause major losses at other institutions. This type of information was missing during the crisis. I know that many members of [Congress] heard the same arguments that I heard during the crisis — that bailouts were necessary or the “entire system” would come down.
December 12, 2011 at 2:15 pm
Posted in: Financial Institutions, First Amendment
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