Author Archive for glenn-cohen
posted by Glenn Cohen
I am pleased to announce that in a collaboration between the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, and Concurring Opinions, Frank Pasquale and I are organizing an online symposium on this blog (beginning on Monday) on the new book The Fragmentation of U.S. Health Care System: Causes and Solutions. This book, which grew out of a conference the Petrie-Flom center hosted in 2008 was edited by Einer Elhauge and featurs a stellar list of contributors from law, economics, medicine, management, and other disciplines.
Here is a description of the symposium on the book and the list of participants:
Why is our health care system so fragmented in the care it gives patients? Why is there little coordination amongst the many doctors who treat individual patients, who often even lack access to a common set of medical records? Why is fragmentation a problem even within a single hospital, where errors or miscommunications often seem to result from poor coordination amongst the myriad of professionals treating any one individual patient? Why is health care fragmented both over time, so that too little is spent on preventive care, and across patients, so that resources are often misallocated to the patients who need it least? This book approaches these broad questions with a highly interdisciplinary approach, including chapters by the nation’s leading professors in law, medicine, economics, health, business, and political science.
Professor Elhauge and the contributors provide a multifaceted approach to these multi-dimensional problems. The divergent perspectives and approaches of the contributors provide the reader with an understanding of the intricacies of the system and proposed solutions. The articles address possible causes of fragmentation, including laws that mandate separate payments for each provider, restrict hospitals or others from controlling or rewarding the set of providers treating a patient to assure coordinated care, and provide affirmative disincentives for coordinating care by paying more for uncoordinated care that requires more services. The authors examine and propose reforms that could make our health care system less fragmented, more efficient, and more effective.
This symposium examines the themes and claims of the book, and in particular examines their relevance in the post health care reform world.
The participants will be
Check in Monday for the launch of the symposium.
posted by Glenn Cohen
One part of my currently scholarly project (the other focuses on reproduction) concerns medical tourism — the travel of patients from one country (the “home country”) to another (“the destination country”) for the primary purpose of receiving medical care.
As I detail in this just-published paper in the Iowa Law Review, Protecting Patients with Passports: Medical Tourism and the Patient Protective-Argument (the final version is now up on SSRN), the motivations and demographics of medical tourists (or less colloquially “cross-border care consumers”) are heterogenous: Some are uninsured or underinsured patients seeking cost savings (in some cases upwards of 80% savings compared to U.S. prices) on procedures like hip replacements or cardiac bypass by seeking them in countries like India or Thailand. Some are part of a growing industry of what I call “insurer-prompted medical tourism” — individuals who have insurance but whose insurers incentive (or at least theoretically require as a condition of coverage) travel abroad. There have even been attempts (a bill that died in the West Virginia legislature, proposals for Medicare/Medicaid) to have what I call “government-prompted medical tourism” where state health insurance schemes incentive (or much less plausibly require) travel abroad for health care.
As I discuss in the Protecting Patients with Passports, these types of medical tourism raise significant legal and ethical issues. Domestically we treat advance contractual waivers of medical malpractice rights as unenforceable, such that you can’t bargain for a better price with your doctor by waiving those rights, even in the extreme case where you might not be able to afford the surgery without that price discount. How should we feel about the way in which medical tourists will (due to several interlocking facets of American civil procedure, and sharply less remunerative foreign law) essentially de facto waive medical malpractice recovery rights by seeking care abroad in order to achieve costs savings? How should we regulate the insurer-prompted medical tourism market? Does the existing state insurance architecture of PPO and HMO regulation suffice? What about self-insured plans? What are the dynamic effects on U.S. health care markets of competition from medical tourism centers? What are the effects of medical tourism on health care access in the destination country and should they matter to us? How will the recent Obama health care reform initiatives change the playing field. I try to take up many of those questions in this paper. I’ve also discussed some of these issues on PBS, and you can find the clip here.
All of this concerns medical tourism for services that are legal in both the home and destination countries. There is also medical tourism for services illegal in the home country but legal in the destination country (e.g., abortion tourism, reproductive technology tourism, euthanasia ‘tourism’, stem cell therapy tourism) and for services illegal in both places but with grey or black markets in the destination country (e.g., organ tourism). Here we face questions of whether the home country should extend its domestic criminal prohibition extraterritorially in the model of the Protect Act (child sex tourism) and other examples. There are also hard questions about the obligations of doctors in the home country as to patients who have returned with illegally purchased organs, as well as their obligations to inform or not inform patients about the option of going abroad. I’ve briefly touched on some of these issues in this short paper Medical Tourism: The View from 10,000 Feet, in the Hastings Center Report (a leading bioethics journal). I am just starting to write a longer piece that looks at normative justifications for extending a state’s criminal law extraterritorially, and what they can tell us about medical tourism for services legal in the destination country but not the home country of the patient. Perhaps the next time I blog I can tell you what I have learned.
Thanks to the crew at Concurring Opinions for having me the last few weeks. And thanks to all the commentators for their great engagement and suggestions.
posted by Glenn Cohen
I’ve been thinking a lot this week about workshops. I regularly participate in three. One I co-run with Einer Elhauge on Health Law, Bioethics and Biotechnology as a class that students can enroll in which also attracts a number of faculty and fellows from Harvard Law School, other faculties, and the greater Boston area. I also regularly attend and sometimes present at our general faculty workshop, which also occasionally involves presentations from scholars outside of the law school. Finally, the Harvard Juniors get together about once every two to three weeks to workshop one of our papers in a small and informal group.
Each of the workshops have a different rhythm, format, and purpose. Our school is large enough that we can sustain both the general workshop and more specialized ones. Lately, though, I have been thinking about how workshop formats facilitate some kinds of discussions or developments but not others. If, as I constantly tell my students in Civ Pro, procedure often shapes substance, why should that be any less true when it comes to workshops? So I’ve started asking around to hear how others run their workshops and here are some variations I have heard of:
The first dimension is the presence/form of a “presentation”.
- Let the presenter present the paper for the usual 15 minutes.
- Let the present present for only 5 minutes.
- No presentation at all, right into the Q & A.
- Have another individual present the paper instead of the presenter.
- Have both the presenter but also a separate commentator.
A second dimension goes to how questions are handled including questions of how to manage a queue.
- Have “protected” time for presentation versus allow questions immediately.
- Have a strict queue that people get on in sequence by raising hands and the moderator writing their names down.
- Have a queue but allow follow-ups from the questioner or others on that line outside the queue.
- Take raised hands each time without a queue.
A third dimension goes to attempts to mold the type of questions.
- Require anyone who asks a question to also suggest something they liked about the paper.
- Have the presenter spell out precisely what they want feedback on in advance.
Finally, for workshops that mix students and faculty, there are further questions about whether to keep separate queues for the two groups, begin with faculty, begin with students, etc.
I’d be curious to hear about the results from experiments with workshop format along these and other dimensions. Did the quality or type of interaction change significantly? Are there best practices we should be thinking about?
posted by Glenn Cohen
A Hispanic teenager listening to music through headphones, a masturbating man, 3 young caucasian women (probably American), two young middle eastern men dressed in army fatigues and a child with a kafiah covering his face shouting something in Arabic and smiling, another masturbating man, 3 japanese young women.
This was what I saw in ten minutes of Chatroulette, an intriguing web site that anyone with a webcam can try. I wanted to try it and blog about it after reading an interesting article in the New Yorker on its teenage Russian founder. You turn on your webcam and are randomly paired with someone else on the site with their webcam on, to whom you can chat vocally or by typing. Either party can push a button that spins the wheel again at any time to be connected with a new partner, and there is no penalty for doing so.
Perhaps 31-year-old law professors are not the favored species in this realm, but I was “nexted” almost immediately in each of the cases except the middle eastern men at whom I started laughing and they laughed back as well. At some point, though, I felt uncomfortable enough myself that I ended the interaction.
Chatroulette is only the newest and strangest instantiation of a phenomenon I’ve been thinking about – virtual friendship. Can one be friends with someone that one has never met, and what kinds of benefits do this form of friendship offer over or to compliment non-virtual friendship? In recently watching Julie and Julia, I was struck by a scene where Julia meets up with the woman, Avis, she has been writing throughout the film. We discover that the two women have never actually met in person despite being extremely close; they have just been pen pals for years.
The disadvantages of virtual friendship are pretty straightforward, but what might the advantages be? Total honesty if it retains an air of anonymity or removal from one’s social circle? The ability to compose oneself (like a piece of music), that is present a very specific slice of oneself? Many people I’ve talked to of a certain age (usually under 35, those who have had socializing technologies for some period of their youth) have had a virtual friend or two at some point. These relationships, however, do not seem very long-lived, certainly not like the decade long correspondence of Avid and Julia. Is that just because our social circles are thicker or there is more competing stimuli than in earlier periods?
To add a legal angle on chatroulette, after seeing Robin Wilson present her paper on Sex Play In Virtual Worlds at a conference this summer, I wondered whether the masturbating men on the site might be subject to criminal liability in some jurisdictions if some of their viewers turned out to be children. Robin (she’ll correct me if I have this wrong) was of the view that on Second Life or other virtual environments that don’t even involve actual images of actual people, under existing doctrine in some states adults can be criminally liable for sexually suggestive remarks and virtual activities. Under existing doctrine this is true even if those minors represent themselves as adults, the perpetrator has a good faith belief they are adults, and even if the service has an 18+ policy (even if enforced by something like requiring a credit card). If that’s right, the comparably less virtual and less regulated domain of chatroulette would seem to be full of potential criminal liability. I am neither a criminal law nor a cyberlaw scholar so I will be curious what those with more expertise think….
Trading-Off Reproductive Technology and Adoption: Does Subsidizing in Vitro Fertilization Decrease Adoption Rates and Should it Matter?
posted by Glenn Cohen
I’ve just posted a new draft on SSRN of a paper I co-authored with Daniel Chen (Duke Law School), Trading-Off Reproductive Technology and Adoption: Does Subsidizing In Vitro Fertilization Decrease Adoption Rates and Should it Matter?, forthcoming in the Minnesota Law Review. The paper is the first to examine a frequent claim in both the adoption and reproductive technology literatures that increased access to reproductive technologies will decrease domestic and international child adoptions, and that this counts as a good reason to oppose expanding reproductive technology access. Using both econometric and normative methods, we find reason to be skeptical about both parts of the claim. We still have a little time to make changes before it goes to print, so feedback is very much welcome.
Here is the full abstract:
For those facing infertility, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, to produce a live birth through in vitro fertilization (IVF) will cost an individual (on average) between $66,667 and $114,286 in the U.S. If forced to pay these prices out of pocket, many would be unable to afford this technology. Given this reality, a number of states have attempted to improve access to reproductive technology through state-level insurance mandates that cover IVF. Several scholars, however, have worried that increasing access in this way will cause a diminution in adoptions and have argued against enactment of state mandates for that reason.
In this paper, which was selected for presentation at the 2010 Stanford-Yale Junior Faculty Forum, we push against that conclusion on two fronts.
First, we interrogate the normative premises of the argument and expose its contestable implicit assumptions about how the state should balance the interests of existing children waiting for adoption and those seeking access to reproductive technology in order to have genetically related children.
Second, we investigate the unexamined empirical question behind the conclusion: does state subsidization of reproductive technologies through insurance mandates actually reduce adoption; that is, is there a trade-off between helping individuals conceive and helping children waiting to be adopted? We call the claim that there is such an effect the “substitution theory.” Using the differential timing of introduction of state-level insurance mandates relating to IVF in some states and differences in the forms these mandates take, we employ several different econometric techniques (differences-in-differences, ordinary least squares, two-stage least squares) to examine the effect of these mandates on IVF utilization and adoption. Contrary to the assumption of the substitution theory, we find no strong evidence that state support of IVF through these mandates crowds out either domestic or international adoption.
posted by Glenn Cohen
[Preface: As anyone who has ever taught material relating to rape in class well knows, this is among the most sensitive of subjects to discuss. Add to this the way in which typed words lose the inflections and other subtleties of spoken language, and any post on rape threatens to come off as insensitive by accident. With that in mind I have tried to write this post in as sensitive a way as I can, but I also ask the reader to bear with me if their first instinct is to take something I have said the wrong way. Instead please give it the most charitable of readings]
I have been fascinated on two levels by the recent blogospheric discussion of an Israeli Supreme Court case holding that an individual could be prosecuted for rape when he engaged in sex with a woman that was not the product of sex or coercion because he deceived her as to his religion/ethnicity (he was an Arab not a Jew) and his relationship intentions (to ‘hookup’ instead of looking for a serious relationship leading to marriage).
On the first level, I was intrigued as to why the case got so much interest (and the holding largely hostility) in the blogosphere. I think there are many reasons, but I want to put out two (related but distinct) provocative hypotheses for reaction from readers: (1) The case taps in to some long-suppressed doubts held by some reader on whether non-forced or non-coerced sex counts as rape. (2) The case disturbs because it implies that men can be raped during sex that is not forced or otherwise coerced, and while there are contexts in which many are prepared to believe in male rape (e.g., the prison context) they harbor gender-asymmetrical views of rape outside those contexts.
One level down, into the actual holding of the case, one thing I find fascinating about this area of law (rape by deception) is that it requires constructing a concept of “essential facts” for which deception vitiates consent. To try and think about this, consider the following cases:
1. Ahmed deceives Beatrice about his religion and ethnicity claiming that he was an orthodox Jew when in fact he was a Muslim Arab. (The most recent Israeli case)
2. Jon convinces Daphne he is his identical twin, Jack, whom Daphne is dating, and Daphne sleeps with him inebriated after a long night of partying. A real case along these lines in Canada had facts like these.
3. Dil deceives Fergus into believing Dil is a woman when they engage in anal sex. In fact, Dil is actually a man (inspired by this film).
4. Bree is an M to F transgender person who now passes as a woman. She leads David to believe she was biologically born as a woman when they have sex.
posted by Glenn Cohen
I am going to continue a thread of conversation started by Bennett Capers while blogging on Prawfsblaw. In a wonderful riff on Rupaul’s Drag Race, Capers discussed the performative aspect of being the classroom.
One way of thinking about what we do is “covering” in the sense used by Erving Goffman and Kenji Yoshino. Yoshino and Goffman use the term in the sense of toning down “disfavored” identities. Yoshino’s primary example is covering sexuality — roughly it is not the pressure to stop being gay (assimilate) or don’t let people know you are gay (closet, pass), instead it is the pressure on openly gay people not to act too stereotypically gay.
I want to examine a slightly different idea of covering in this post, not the toning down of disfavored identities, but instead about how we cover elements of our viewpoints and identities in the classroom.
The place where my own covering in this sense is most obvious to me (and perhaps to my students) has to do with my political views and the ways in which they related to cases we tackle (for example, the pairing of Goldberg v. Kelly and Matthews v. Eldridge in Civ Pro). Very often I think I adopt what Socrates identified as a vice of the Sophists, to try and make the weaker argument the better, and merely play with the ideas and reasoning, rather than take sides.
What I have begun to wonder is, as a pedagogical matter, to what extent is this healthy. On the one hand, it models a skill our students will need: to make arguments in cases where they fundamentally disagree with the position of their clients. It also avoids having students who disagree with me politically tune out or treat my class as a “resistant read.”
On the other hand, I wonder if this form of covering causes us to come off as holding a pre-realist view of the law that few of us actually do. If I do not think the two cases can be reconciled but instead that they represent particular views of how the world should be, or pure politics, should I instead say that? And if I do (as I often do), should I take the further step and express a preference as to which world view I prefer?
In what other ways do we cover? Here is one that came to mind: In attempting to capture some of the aura of Kingsfield, the level of attachment, do we talk too little about ourselves as whole people basically hiding things like our families or interests? I tell my 1L students at the beginning of the year two things as a warning: (1) They were very interesting people before they came to law school with diverse interests, don’t let law school beat it out of them. (2) Law school is likely much more difficult for those close to them, in particular spouses and children, who are both the victims of the workload and also shut out of the intellectual engagement, and to try and bring those people in.
To the extent the professor does not discuss his interests or family in the classroom, is he thereby reinforcing these problematic vectors and expressing the view that the students should also strive to ‘cover’ in this way? When I switch the pronoun in the prior sentence of this post to “she” and “her” does this issue become still more fraught?
I’d also be curious about whether there are other domains where people feel they cover in the classroom?
posted by Glenn Cohen
On Monday, Judge Royce Lamberth of the D.D.C. issued a preliminary injunction holding that NIH’s funding of embryonic stem cell research violated an act of Congress. Our story begins in 1996, with The Balanced Budget Downpayment Act that contained a rider, known as the Dickey-Wicker Amendment, which prohibited the use of federal funds for “(1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under” applicable federal regulations. Pub. L. No. 104-99, § 128, 110 Stat. 26, 34 (1996). That rider has been included unchanged in every HHS appropriations bill since.
Under BOTH President Bush and Obama, NIH has used federal funds to fund Embryonic Stem Cell (ESC) research. The Bush approach allowed for federal funds to be used for ESC research for ESCs created before his policy was announced (August 9, 2001). In 2009, President Obama changed that policy: on the one hand expanding the ESC lines for which researchers could receive federal funds beyond the 2001 cut-off of the Bush policy, but on the other hand restricting the available lines through NIH draft guidelines that speak to inter alia the provenance of the ESCs, including the conditions of consent from embryo donors. These guidelines have proven controversial, but for present purposes my larger point is that BOTH the Obama and Bush administration approaches assumed that some ESC research was consistent with the Dickey-Wicker Amendment (thus what Judge Lamberth does would apply equally to both).
This lawsuit was brought by Drs. James L. Sherley and Theresa Deisher, Nightlight Christian Adoptions, Embryos, Shayne and Tina Nelson, William and Patricia Flynn, and Christian Medical Association.
The relevant paragraph of Judge Lamberth’s order (speaking to likelihood of success on the merits) is as follows:
Congress has spoken to the precise question at issue—whether federal funds may be used for research in which an embryo is destroyed. The Dickey-Wicker Amendment provides that no federal funds shall be used for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under 45 C.F.R. § 46.204(b) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)).” Pub. L. No. 111-8, § 509(a)(2). Thus, as demonstrated by the plain language of the statute, the unambiguous intent of Congress is to prohibit the expenditure of federal funds on “research in which a human embryo or embryos are destroyed.” Id.
Contrary to defendants’ argument, the term “research” as used in the Dickey-Wicker Amendment has only one meaning, i.e., “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 45 C.F.R. § 46.102(d); see also Random House Dict. (listing the first definition of research as “diligent and systematic inquiry or investigation into a subject in order to discover or revise facts, theories, applications, etc.”). This is the most common definition of research, and no other definition of research is supported by the language of the statute. The language of the statute does not support defendants’ alternative definition of research as “a piece of research.” (Def.’s Opp’n  at 31 (citing RANDOM HOUSE DICT. (2009).) Indeed, the Dickey-Wicker Amendment does not contain any language to support such a limited definition of research. Rather, the language of the statute reflects the unambiguous intent of Congress to enact a broad prohibition of funding research in which a human embryo is destroyed.
This prohibition encompasses all “research in which” an embryo is destroyed, not just the “piece of research” in which the embryo is destroyed. Had Congress intended to limit the Dickey- Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way. Congress, however, has not written the statute that way, and this Court is bound to apply the law as it is written. Accordingly, this Court must “give effect to the unambiguously expressed intent of Congress” to prohibit federal funding of research in which a human embryo is destroyed. Chevron, 467 U.S. at 843.
Lamberth then rejects the government’s argument “that the ESC research is not research in which a human embryo is destroyed because ESC research does not involve embryos nor result in their destruction,” more specifically that the Amendment defines “ESC research and the derivation of ESCs from embryos as separate and distinct ‘pieces of research’” from the destruction of embryos. Lamberth finds that the statute unambiguously (in Chevron terms) precludes that reading, arguing that “[s]imply because ESC research involves multiple steps does not mean that each step is a separate “piece of research” that may be federally funded, provided the step does not result in the destruction of an embryo. If one step or “piece of research” of an ESC research project results in the destruction of an embryo, the entire project is precluded from receiving federal funding by the Dickey-Wicker Amendment.” He then finds the other requirements of a preliminary injunction satisfied.
Reactions after the jump….
posted by Glenn Cohen
A few months back Jessie Hill had a blog post entitled “My so-called right to procreate” asking about the scope of procreative liberty protected by the Constitution. I wrote about this issue in passing in a paper devoted to the opposite question, whether the constitution protect a right NOT to procreate (or what I prefer to think of as rights not to procreate, separable sticks in a bundle encompassing the right not to be a legal, gestational, or genetic parent – indeed as I pointed out there, I think the right to procreate should be similarly unbundled). In a new paper entitled Well, What About the Children?: Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction, as part of a larger project on the justifications for the regulation of reproduction I briefly address a slightly narrower issue than the one in Jessie’s post, whether there is a negative liberty fundamental right to non-interference with reproductive technology use. I thought I would set out and expand on that discussion here and see what other readers thought.
My own view is that the constitutional status of state interventions preventing access to reproductive technologies (either directly, e.g., prohibitions on access to reproductive technology for women over age 50 or through regulation, or indirectly, e.g., parental fitness screening for surrogacy users) is deeply under-determined by the existing doctrine. The only U.S. Supreme Court decision to consider whether there is a fundamental right to become a genetic parent, Skinner v. Oklahoma, 316 U.S. 535, 536-39 (1942) (finding a fundamental right that was violated by physical sterilization of individuals convicted three or more times of crimes of moral turpitude but not embezzlement) is subject to a myriad of possible interpretations especially as applied to reproductive technologies.
Here are a few:
Skinner protects as a fundamental right any use of reproductive technologies that simulates that which would be achievable by coital reproduction in the fertile individual (not, therefore, something like genetic engineering). John Robertson is the person I most closely associate with this view (although his view has considerably more nuance that I can get across here).
On the other extreme, one might argue that because Skinner itself was premised on an Equal Protection claim not a substantive Due Process one and thus there is no substantive Due Process right to Procreate at all. Cf. VICTORIA F. NOURSE, IN RECKLESS HANDS: SKINNER V. OKLAHOMA AND THE NEAR-TRIUMPH OF AMERICAN EUGENICS 165 (2008) (concluding that “both liberals and conservatives have made a mistake” in their reading of Skinner because the case was “neither argued nor decided as a case about rights in the sense that we use the term ‘fundamental right’ today).” That said, over the years the Court has lumped Skinner in with its substantive Due Process jurisprudence so often that the time may have passed for hewing to this distinction.
In between there are several other positions:
posted by Glenn Cohen
While Perry and the Prop 8 litigation has been getting most of the attention in the media and blogosphere, the Massachusetts District court decisions in Gill v OPM and Massachusetts v. Dep’t of Health & Human Services striking down parts of the Defense of Marriage Act are in some ways the more interesting (and if upheld more meaningful) decisions. Today, though, I noticed reporting that Gay & Lesbian Advocates & Defenders (GLAD) the Massachusetts-based gay rights group that ligated Gill among many other major LGBT rights cases (including the MA gay marriage case, Goodrich) had agreed to stay the ruling while the DOJ decided whether to take an appeal. I thought this was an interesting contrast to Boies and Olson’s decision to fight the stay of Perry at each stage. Of course there are a number of legal differences between the cases — in the press release GLAD points to not wanting to have to pay back benefits if the decision is overturned and there is a possibility that the Obama administration may relent in its opposition to the suit — but I find the strategic/political perspective even more intriguing here. Would Olson and Boies have been perceived to have let down their backers if they did not fight the stay, whereas as more institutional repeat player like GLAD has already built up significant goodwill? Are there good strategic reasons why the Perry litigators want to try and accelerate their litigation while the Gill ones want to maintain the typical pace, or is this instead a matter of the litigators’ own interests? Are Boies and Olson more confident of a good reception than the Gill lawyers at the Supreme Court now, and are they right to be? Which case is the one someone supportive of these efforts should want to see get to the cert stage first? How does the standing to appeal issue in Perry fit in to the calculation? Part of it may also just be a reflection of the slowness of the 9th Circuit’s typical docket as compared to the lithe 1st Circuit, such that even with the stay acceleration in Perry the Gill case gets resolved first. Lots of questions and few answers, but I thought others might have interesting thoughts…
posted by Glenn Cohen
You will be forgiven if you did not pay attention to the Supreme Court’s decision in Hertz Corp v. Friend last year — indeed unless you are a Civ Pro junkie, paying attention might be the less foregivable act. The case resolved a piece of perennial low-hanging fruit on Civ Pro exams as to what is the test under diversity subject matter jurisdiction for the citizenship of a corporation, which turns on where it has its principal place of business. The Court resolved that the “Nerve Center” is the test, ending a circuit split where the “corporate activities/operating assets” and “hybrid” tests were also contenders.
What I am more curious about, though, is whether after the decision any attorneys used the following sneaky trick : If they had lost the case in district court, and diversity jurisdiction was proper on one of the other tests that governed in the Circuit pre-Hertz, but not the nerve center test, did they on appeal ask the Circuit court to vacate the decision for lack of subject matter jurisdiction? If not, were Circuit courts making independent subject matter jurisdiction assessments in light of Hertz and dismissing cases with district court decisions in these circumstances? After all, as that old 1804 chestnut Capron v. Van Noorden, 6 U.S. (2 Cranch) 126 (the case that Arthur Miller, who it appears still retains a larger than life grip on his students’ imaginations now that he is at NYU, terrorized us with on Day 1 one of Civ Pro) suggests, Subject Matter Jurisdiction objections can be raised at any time, and the Court has an independent obligation to determine if it has jurisdiction over the case.
Did these post-Hertz dismissals actually materialize? I don’t see why they shouldn’t have. After all the court did not suggest it was making a new rule for subject matter jurisdiction (it claims this was always the right reading of the statute), nor did it suggest the rule was non-retroactive. I have not seen any discussion of such dismissals, but that just may mean they are off the law professoriate radar, or maybe I am missing something preventing litigators or courts from behaving in the way I suggested? I am curious if others have seen anything like this or have thoughts, I thought this might be a nice way to teach the otherwise somewhat rote rules of diversity jurisdiction to my first-year Civ Pro class this year….
posted by Glenn Cohen
I’ve found both in published work and in classroom and workshop discourse that people often mean different things when they talk about commodification concerns as an argument for blocked exchanges – e.g., forbidding the sale of kidneys from live donors, prostitution, the sale of surrogacy services, etc.
I thought it might be useful to try and sort out some of these different meanings (for those looking for a more formal discussion with citations, this old paper of mine may be useful). This is my own classification (though it builds off work by my colleague Michael Sandel among others). I will be interested to see if others think one should add to or reformulate the taxonomy. It is also worth emphasizing at the threshold that while money is the focus of most anti-commodificationist arguments that for each version barter can also give rise to the same objections.
At the top-level we can divide commodification into three large categories (the 3 C’s if you will): Coercion, Corruption, and Crowding-Out. For the purposes of this post my goal is not to evaluate these arguments, just to parse them better.
(a) Voluntariness. This concern, also known as exploitation, is framed as concern about the voluntariness of the transaction in a way that demands more than minimal notions of consent. It is the fear that only the poor will sell organs or that only destitute women will consent to act as commercial surrogates, and argues for blocking the exchange to protect those populations. It thus depends on some empirical facts about the population the argument seeks to protect; one occasionally seeks proposals to limit organ or surrogacy services sales to people above a certain income bracket to blunt the concern. It also depends on views about the validity of blocking an exchange due to these somewhat paternalistic concerns. Thus, sometimes it is argued that it is hypocritical to block an exchange preventing a badly-off person from improving their station in life unless we are also committed to a redistributive plan that makes them as well-off as they would be if the exchange was permitted. It is important to understand that this objection is not focused on a claim that the buyer and seller are giving up unequally (in amount, see below regarding mismatches of type) valued things, the “raw deal” problem that parallels one strand of substantive unconscionability doctrine in contracts; instead, it is about the seller’s poverty and their susceptibility towards “an offer you can’t refuse” even if the good is valued fairly. While one solution to some forms of unconscionability may be to re-write the terms to be more favorable to the seller, adding extra compensation here would worsen not improve the exchange from the point of view of this objection.
(b) Access: Somewhat less frequently the objection is made almost in reverse. While the voluntariness version treats the exchange as representing a “bad” that the poorer party in the exchange suffers in one respect involuntarily, the access variant instead views the exchange as representing a “good” that only the better-off party has access to because of the existence of the market. For example, the sale of “premium” eggs is something only the wealthy will have access to, or the during Civil War the practice of commutation where one could pay three hundred dollars to avoid serving in the draft was only available to wealthier stratas of society. This objection also depends on notions of background unjust inequalities in resource distribution to get going.
Price caps may be a partial solution to either form of the coercion objection because they will lower the price to make it not-so-attractive as to make us question voluntariness (the “offer you can’t refuse”) and also move the purchase of the good into the range of access for more of the population. It is only a partial solution because it usually results in shortages. One could also imagine “mixed” systems that do better at addressing one concern than the other — so the state could be the only permitted buyer of organs and then distribute them through the current transplant system rather than willingness to pay — this would go a long way to blunting the access concern, but not necessarily the voluntariness one (and indeed might make the corruption objection below even worse).
(2) Corruption: A second version of the objection is that a market exchange “corrupts,” “taints,” or “denigrates” the things being exchanged — for instance, the argument that prostitution devalues women’s bodies by attaching a price tag to their sexuality. Cass Sunstein offers a good starting formulation of the corruption argument: an exchange is corrupting when “the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.” Incommensurability and Kinds of Valuation: Some Applications in Law, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 234, 238 (Ruth Chang ed., 1997). More specifically, one might suggest that there are various “spheres” (sometimes called “modes”) of valuation, and an exchange is corrupting when it ignores the differences between these spheres of valuation and forces us to value all goods in the same way. For example, exchanging children for money corrupts the value of children because money and children belong in different spheres of valuation.
As I have described in depth, that requires both a theory of sphere differentiation and a theory of what it is about exchanges that “does violence,” neither of which are that easy to articulate. For present purposes, though, I want to merely distinguish versions of the argument along two dimensions.
August 17, 2010 at 8:53 am Posted in: Bioethics, Culture, Family Law, Feminism and Gender, Health Law, Jurisprudence, Law and Humanities, Law and Inequality, Legal Theory, Uncategorized Print This Post 6 Comments
posted by Glenn Cohen
Hypotheticals are a ubiquitous pedagogical tool in both the law and philosophy classrooms. I have recently been thinking about the different functions they serve and whether they are well-suited for the weight we give them. These reflections were prompted by a conference on “Moral Biology,” hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School (which I co-direct), in cooperation with The Project on Law and Mind Sciences at Harvard Law School, the Gruter Institute, the Harvard Program on Ethics and Health, and the MacArthur Law and Neuroscience Project.
I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some thoughts that stemmed from a public portion of the conference that can be seen here, involving Josh Greene from Harvard’s Psychology Department, William Fitzpatrick from the University of Rochester’s Philosophy Department, Adina Roskies from Dartmouth’s Philosophy Department, Walter Sinnott-Armstrong from Duke’s Philosophy Department, and Tim Scanlon, from Harvard’s philosophy department.
At around the 43 to 50 minute mark in the video, Josh discusses Trolley Problems (which ask participants a thought experiment about whether to divert a trolley from one track to another with many versions of the hypothetical) and an experiment done on them by Fiery Cushman (and a collaborator, Switzgable I believe, I could not find the actual paper) in Josh’s lab. In the experiment, before being asked whether they would endorse the principle of double effect, ethicists with PhDs were asked to reason about variants of the Trolley problem (switch vs. footbridge) presented in different orders. The experiment found that if one varied the order in which the versions were presented (but always presented all of them,) ethicists reached different conclusions about whether they would endorse the principle. [This is Josh's description in the video, again if anyone can find the paper he is discussing I will try and like to that]. The result is surprising in that it appears even those with PhD training in ethics are susceptible to order effects in reasoning about a very fundamental issue.
As Josh concedes, and others (in the panel and in written pieces discussing his work emphasize) the fact that these ordering effects occur is not itself fatal to the enterprise of philosophical analysis using intuitions. It depends on further views about how one uses these kinds of intuitions in the analysis. For present purposes, though, I want to partially side-step that question in favor of thinking about the law classroom, and how this experiment might should us a little more careful about the way we use hypotheticals.
August 13, 2010 at 8:22 am Posted in: Bright Ideas, Empirical Analysis of Law, Jurisprudence, Law and Humanities, Law and Psychology, Law School, Law School (Teaching), Legal Theory, Teaching, Uncategorized Print This Post One Comment
posted by Glenn Cohen
People often find my educational background unusual. I went to a school from K to 11 that taught four languages a day—English, French, Hebrew and most pertinent for this post, Yiddish. I grew up in Montreal, one of what I am now told is 3 pockets of Yiddish speaking still left (New York City and Antwerp being the other two).
This post was prompted by having recently finished Michael Chabon’s wonderful The Yiddish Policemen’s Union, and an interview with him about discovering a book called “Say it In Yiddish” from the 1950s which partially inspired the novel. Chabon’s book is a hard-boiled detective novel set in a fictional Jewish homeland created in part of Alaska, a possibility it turns out in the real world until scuttled by then-Interior Secretary Harold Ickes.
Reading the book made me wonder if I should mourn the inevitable creeping death of the Yiddish language. I speak Yiddish quite imperfectly, and with the dying of my parents’ generation (my parents themselves only spoke it in drips and drabs), so will most other speakers left alive 30 years from now. There may be some like me who speak it on the side, but outside of some religious communities, it seems unlikely that there will continue to be many conversations in the language going forward.
Is something lost? The death of a language is sad, and the loss of the ability to enjoy Sholem-Aliechem, Peretz and other authors’ work as they were meant to be read is of course some kind of loss. But given how much there is to learn in the universe, and the utility of translation, how much of a loss is it, really? I will always fondly remember reading “Tevye der Milcheker” — Tevye the Milkman — the inspiration for “Fiddler on the Roof” in Yiddish in school, but are the millions who enjoyed the musical or even read the original text in translation missing out on so much to lead me to mourning?
Had you asked me a few months ago, I would have dismissed my misgivings about the slow death of Yiddish as somewhat bourgeois. But reading Chabon’s book, and its historical counterfactual where Yiddish and not Hebrew becomes the language of the resettled Jewish nation, laughing to myself at his witty Yiddish slang neologisms and use of phrases I remember from my childhood, I have started to feel much more truly mournful. I wonder if others have similar attachments to Yiddish or other languages? Does the state have a legitimate role to play in trying to help preserve languages as living? I am curious what others think, but ultimately what keeps coming to mind is a yiddish aphorism I have always liked from my parents — Mentschn Tracht, Un Got Lacht (“Men think/plan, and G-d laughs.”)
posted by Glenn Cohen
I have been very luck to have a wonderful group of student RAs working for me over the years. I am curious to know, however, whether I am using or selecting them as well as I could. Let me address use first and selection thereafter.
Use: I primarily use my RAs for five kinds of tasks:
(1) Search and Record: Before I write on a subject I’ll task an RA (usually two working separately) to find out what has been written on the subject in legal, medical or philosophical literatures and summarize it in a memo. I’ll usually make these constrained in one way or another to avoid making it like that dreaded law firm memo assignment of find out the law in every state on broad topic X. I will tell them to start by finding what has been written in the last _ years, or what gets cited the most, and/or limiting them to 10 hrs of work.
(2) Footnote follow-up: There may be a smaller point I make in a paper that I want to chase down and ask an RA to find out what is out there. For example, update estimates I have from 1995 about the cost of including coverage for In Vitro Fertilization in health insurance, by seeing if there are more recent estimates.
(3) Typo and grammar check: I am a believer that the more eyes the better in getting out the last few glitches in an article, so I will assign several RAs to pore over the paper at the sentence level when I am close to ready to sending it out.
(4) Shortening: At some point I am so close to my own work that I have trouble cutting out the last two or three thousand words to get it to the right size. I usually have the students try and cut a larger set of words through track changes and then I’ll go back and take only some of them their changes. I’ve had mixed results with this particular task, but that may just be because I am verbose and find cutting so hard.
(5) Course materials prep: When moving to a new edition of my textbook or otherwise changing my course materials I’ll often have an RA take a first crack at updating my syllabus and giving me a report on anything that’s been cut out that I usually teach, as well as altering page numbers.
posted by Glenn Cohen
Ok that’s actually a rip-off of the gimmicky slogan of “Lending Tree,” but I have been thinking recently (as many do at this time of year) about the law review submission process. In particular, I have been thinking about the expedite element, and why it happens. One answer is that we are all prestige-whores (er..lovers) and that the only thing we value is the rank of the school where the law review is housed.
That may be true, but here is a somewhat more charitable reading: from the point of view of the submitting authors Law Reviews offer authors a relatively undifferentiated product and thus we gravitate to the main axis of differentiation – law school/journal rank. I say “from the point of view of the submitting authors” advisedly, because there are many axes on which law reviews differ. Even in my short time as an academic, the reviews I have worked with have varied significantly as to the quality of substantive comments, the likelihood they would stick on timeline, whether they use track changes to make it easy to review their alterations, etc. The problem is that these are all things I have only discovered AFTER working with them.
This is in some ways similar to health care purchasing by an individual consumer – quality is opaque, and gathering the necessary information would be too costly to do on my own (there is a further problem with health care that even when information is available such as report cards for hospitals created by state agencies, as I discuss here, many patients tend to ignore them and/or privilege word of mouth appraisals). Further, there is an additional inter-temporal problem in that each law review’s board (and thus quality) and policies changes on a regular basis such that information becomes stale quite quickly. Even in an institutional-memory-obsessed journal like the Harvard Law Review with a long tradition, there is a period called “transition” when the 2Ls take the reigns and as a body can change many of the facets of the reviews process, including things like the number of stages of editing, etc.
Is this problem intractable? Yes, and no. Law reviews could advertise and contractually commit themselves to particular types of terms as soon as the submission season starts – for example, issues will come out within one month of issue date, to give one example. (I put to one side other kinds of differentiation – for example accepting longer articles when other journals do not, since that will change at most to whom one submits, and even then most of us are risk-averse enough to be likely to shorten our papers to fall within the guidelines of the larger number of journals). True, it is very very unlikely that any of us would sue a law review over the failure to meet that term of publication date, but even the promise itself might be enough to satisfy us and set up a more desirable norm. Are there enough of these kinds of terms on which journals could compete that would counterbalance the incentive to merely pick the best ranked journals? I am not sure, it seems plausible it might matter within rough journal peer groups, but I would be curious if others have ideas of what kinds of terms they would like to see law reviews compete or converge on? Indeed perhaps some enterprising law review editors may be reading this very blog…
posted by Glenn Cohen
Over the summer at the annual health law professors’ conference organized by ASLME, I saw a wonderful presentation on Flynn v. Holder from John Robertson, which I think John will be publishing soon. The case is a challenge to the National Organ Transplant Act (NOTA) of 1984’s ban on selling bone marrow filed in the U.S. District Court, Central District of California, and you can view the complaint here.
My main interest in the case is how it will compare to Abigail Alliance v. Eschenbach, a case I helped litigate at the D.C. Circuit en banc stage when I was at the DOJ. Abigail Alliance involved a challenge by terminally ill patients to have access to drugs that had cleared Phase 1 Clinical Testing but had not gone further in the testing process. There, the plaintiffs succeeded in getting a panel of the D.C. Circuit to to hold that a fundamental right of theirs was being violated by the FDA policy, with a remand for consideration of whether the government could make its showing on strict scrutiny. On rehearing en banc, however, the full D.C. Circuit reversed gears finding no fundamental right (there was no serious argument in the case that the government would not prevail on rational basis review).
In many ways, Flynn is a beautifully set up test case. The primary plaintiff is very sympathetic — a “single mother of five with three daughters who suffer from a deadly bone marrow disease.” Because bone marrow is renewable, and many other renewable “organs” (think sperm and egg) explicitly fall outside of NOTA’s prohibition, there is an air of arbitrariness here. The plaintiffs do not want to buy bone marrow in crass commercial terms, but instead to “create a pilot program that would encourage more bone marrow donations by offering nominal compensation—such as a scholarship or housing allowance.” While I do not think this fact actually allows us to avoid the the corruption form of the anti-commodificationist argument (I may blog more on that topic soon), on a superficial level it does seem to reduce the strength of at least one talking point. The fact that we already tolerate altruistic bone marrow donation suggests that the risk-prevention rationale that was central in Abigail Alliance faces some problems here. Indeed as I , Lori Andrews, and others have argued in the context of reproductive services, in some ways the “coercion” or “exploitation” concerns that are sometimes raised in anti-commodificationist arguments may be more worrisome in the altruistic and familial setting than in arm’s length market arrangements. The case also seems to compare favorably on crowding-out concerns. Although the Abigail Alliance court did not reach the issue (because whether a fundamental right was present dominated the analysis) the government offered a somewhat attenuated crowding out argument: that the availability of experimental drugs outside of clinical trials would reduce the enrollment in clinical trials, and therefore slow either approval of these drugs (and widespread availability) or a demonstration that they were unsafe or ineffective. Though attenuated, this was a concern that many took quite seriously in the run-up and aftermath of the case. Here, by contrast, I think the crowding out argument is more straightforward and is similar to one that people associate with Richard Titmuss’ work as to blood sale, that adding commercial elements will drive altruistic donation out of the market. To be sure that is an empirical claim, but one that seems less plausible to me than the parallel claim in Abigail Alliance, and I think here again the charitable/foundation approach may blunt some concerns about the transformation of the social meaning of bone marrow donation.
posted by Glenn Cohen
Like many, I was glued to the blogosphere waiting for the decision in Perry v. Schwarzenegger yesterday, the Prop 8 decision. One seemingly superficial issue I have been interested in is how the court would refer to the class to which the plaintiffs belonged: as “gay” men and women or homosexuals?
I actually first started thinking about this a few months ago. A wonderful midwest law school in a smaller city invited me to a conference and arranged to have a student pick me up at the airport. This was unusually gracious, and I appreciated it, but a funny thing happened on the ride. I asked the student about the city, and what it was like to live there, etc. The student at one point said to me: “Oh, and we have a really vibrant homosexual community.”
I was a little amused that he focused on this element of the city, though perhaps something I said had primed him, or this was just a testament to the perceived role of gays in the rise of the creative classes and a city’s hipness factor. What surprised me the most, though, was actually his language — his use of the term “homosexual” in a positive way. My own anecdotal experience is that people use the term “homosexual” when they want to ascribe negative connotations, and “gay” when they want a more neutral or positive ones. A quick (and very unscientific) google search of the terms “homosexual marriage” and “gay marriage” this morning seems to confirm this.
On this view it is unsurprising, then, that Judge Walker in the Perry opinion repeatedly refers to the plaintiffs and their group as “gays and lesbians”. What is more surprising is that I expected I would find a split in usage between Justice Kennedy and Scalia’s majority and dissenting opinions in Lawrence v. Texas, with “homosexual” being dominant in the Scalia’s opinion. Interestingly, both opinions use “homosexual.”
So here are a few questions I am thinking about: Was my initial instinct that which term to use reflects a political valence correct? Does it instead reflect something else? Geography (think of the student driving me)? Age? A change in time over which term is more acceptable, a little bit like the way the term “handicapped” has given way to “disabled” to “people with disabilities”? Is the usage of “homosexual” by people who do not want to expand rights for the group a subtle attempt to bring the “sex” (in the intercourse sense) back into people’s minds? Which word do you use in the classroom? Would Lesbian, Gay, and Bisexual students be offended by the term “homosexual,” and if so, is that a good reason not to use it?
August 5, 2010 at 11:26 am Posted in: Civil Rights, Constitutional Law, Current Events, Feminism and Gender, Law and Humanities, Law School, Law School (Teaching), Law Talk, Supreme Court, Uncategorized Print This Post 5 Comments
posted by Glenn Cohen
I have a great assistant at Harvard Law School, and I get 1/3 of his time for support. I suspect, however, that I am not using him as effectively as I might, so I want to find out for what tasks other readers use their assistants. I use mine primarily for the following tasks: processing receipts and payments, help with the course website, accepting and returning course papers (which I grade blindly), getting permissions and otherwise producing coursepacks, managing clerkship and other recommendation letters, culling addresses and otherwise arranging the sending out of reprints.
What am I missing? I also would welcome any orthogonal advice or cautionary tales regarding using assistants from the readership….
posted by Glenn Cohen
A recent faculty workshop by my witty and brilliant colleague Jonathan Zittrain on “ubiquitous human computing,” (this youtube video captures in a different form what he was talking about ), prompted me to thinking about some ways in which platforms like Amazon’s Mechanical Turk, interface with university research and research ethics in interesting ways.
For those unfamiliar, Mechanical Turk allows you to farm out a variety of small tasks (label this image, enter date of this .pdf to a spreadsheet, take a photo of yourself with the sign “will turk for food,” etc) at a price per unit you set. Millions of anonymous users can then do the task for you and collect the bounty, a form of microwork.
As Jonathan detailed, this raises a host of fascinating issues, but I want to focus on two that are closer to bioethics.
First, I have begun to see some legal academics recruiting populations for experimental work using Mechanical Turk, and there is an emerging literature on the pros and cons of subject recruitment from these populations. Are Mechanical Turkers “research subjects” within the legal (primarily the Common Rule if one receives federal funding) or broader ethical sense of the term? Should they be? Take as a tangible example the implicit bias research of the kind Mahzarin R. Banarji has made famous, and imagine it was done over something like Mechanical Turk. How (if at all) should the anonymity of the subject, the lack of subject-experimenter relationship of any sort, the piecemeal nature of the task, etc, change the way an institutional review board reviews the research? It is a mantra in the research ethics community that informed consent is supposed to be a “process” not a document, but how can that process take place in this anonymous static cyberspace environment?
Second, consider research assistance.
August 3, 2010 at 9:49 am Posted in: Amazon, Anonymity, Bioethics, Bright Ideas, Google & Search Engines, Law and Psychology, Law School, Law School (Scholarship), Technology, Web 2.0 Print This Post 5 Comments