Black Metropolis Research Consortium
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Epstein on Health Law and Policy
No full textRichard Epstein is not known for his work on health law and policy. But in over 50 years in academics, he has written two books, 63 articles and book chapters, and a staggering number of op-eds and blog postings on a diverse array of health law and policy topics, ranging from medical malpractice and pharmaceuticals to obesity, organ sales, patient dumping, and privacy. This article focuses on Epstein’s contribution to three areas of health law and policy: medical malpractice, pharmaceuticals, and health reform. It shows that Epstein’s take on all three issues flows directly from his general worldview about the superiority of private judgment and voluntary transactions compared with coercive top-down command and control schemes.
Medicine is much too important to be left to doctors. It’s ok to let them treat patients on an individual basis, but when you are trying to put together systems and to develop incentive structures to deal with problems and moral hazard, adverse selection, trying to figure out on the margin how much you invest in specialists, how much you invest in generalists, how you put the whole ball of wax together, what you do with immigration policy and so forth, what is so clear to me is that the standard form of medical education today does not give doctors the tools to handle these questions. But it often gives them the confidence to believe that they can. And the overconfidence coupled with the lack of information is, I think, an extremely dangerous and potent thing. (Epstein , 11:38
The Future of Liberal Democracy in the International Legal Order
Get PDFLiberal democracy is a feature of national political order that can be promoted, defended, or undermined by international legal institutions. It is not a feature of international legal order itself, nor can it be, given the inherent pluralism about ways of organizing government that is constitutive of the international legal system. But neither is it the case that any particular liberal democracy is an island; liberalism is itself a transnational ideology, and both the expansion and recession of democracy around the world have been the result of interdependent decisions made by states and other transnational actors.
Of particular importance has been the role of hegemons in the system, promoting particular kinds of governance, notably the United States in the post-World War II period. The liberal international order whose death has become a matter of conventional wisdom was largely a product of US empire. For this reason, the single biggest factor affecting the future of liberal democracy going forward will be the role of hegemons and large powers. For the near term, those are the United States, China, Russia and the EU, with India obviously a relevant player as well. As these powers interact, they will create conditions that will advance or retard liberal democracy.
We already see some trends under way that seem likely to continue, and they are not pretty. Liberal democracies have had their confidence challenged in recent years, and bureaucrats in Brussels and Geneva are favored targets. Liberal democracies are perceived to have delegated too much power upward, rendering them unable to deliver policies that people want. This has led some to turn away from the liberal brand. Certainly, the United States under President Trump gave up its role as chief promoter of democracy, ceding that role to the European Union and the United Nations. Whether Biden is able to reverse that course, or is instead, as Philip Cunliffe described him, a kind of “Brezhnev-like figure” for the liberal order, remains to be seen.1 But authoritarian regimes have become skillful mimics of democratic forms at the national level, contributing to what some have called a democratic recession.
This chapter asks the question: what will the international law of democratic governance look like in 2050? The question reflects the fact that notwithstanding pluralism, there is much normative architecture supporting liberal democratic norms on the international plane. This architecture is not matched by equally expansive enforcement, but weak mechanisms do exist. This chapter speculates on alternative scenarios and what they might mean for the persistence of liberal democracy as a going concern, through the lens of international law
The Effects of Land Redistribution: Evidence from the French Revolution
No full textThis study exploits the confiscation and auctioning off of Catholic Church property that occurred during the French Revolution to assess the role played by transaction costs in delaying the reallocation of property rights in the aftermath of fundamental institutional reform. French districts with a greater proportion of land redistributed during the Revolution experienced higher levels of agricultural productivity in 1841 and 1852, more investment in irrigation, and more efficient land use. We trace these increases in productivity to an increase in land inequality associated with the Revolution-era auction process. We also show how the benefits associated with the head start given to districts with more church land initially, and thus greater land redistribution by auction during the Revolution, dissipated over the course of the 19th century as other districts gradually overcame the transaction costs associated with reallocating feudal system property rights
Equalizing the Tax Treatment of Stock Buybacks and Dividends
Get PDFThis policy brief highlights flaws in the current federal tax treatment of stock buybacks and proposes to address those flaws by equalizing the tax treatment of buybacks and dividends. (We explore the proposal in greater detail in Hemel & Polsky, Taxing Buybacks, 38 Yale J. on Reg. 246 (2021), https://ssrn.com/abstract=3764112.) Stock buybacks allow foreign shareholders to avoid U.S. withholding tax on corporate cash distributions. Stock buybacks also allow U.S. taxable investors to reduce or eliminate shareholder-level tax on corporate cash distributions through a combination of deferral, loss harvesting, and stepped-up basis at death. Our proposal—based on an idea first suggested by Marvin Chirelstein a half century ago— would plug these gaps in the tax base by treating stock buybacks as imputed dividends. We explain the mechanics of the proposal and the principal design choices facing policymakers. We also estimate—conservatively—that the proposal would raise more than $500 billion over the 10-year budget window
The Public Trust in Data
Get PDFPersonal data is no longer just personal. Social networks and pervasive environmental surveillance via cellphones and the ‘internet of things’ extract minute-by-minute details of our behavior and cognition. This information accumulates into a valuable asset. It then circulates among data brokers, targeted advertisers, political campaigns, and even foreign states as fuel for predictive interventions. Rich gains flow to firms well positioned to leverage these new information aggregates. The privacy losses, economic exploitation, structural inequalities, and democratic backsliding produced by personal data economies, however, fall upon society at large.
This Article proposes a novel regulatory intervention to mitigate the harms from transforming personal data into an asset. States and municipalities should create “public trusts” as governance vehicles for their residents’ locational and personal data. An asset in “public trust” is owed and managed by the state. The state can permit its use, and even allow limited alienation, if doing so benefits a broad public rather than a handful of firms. Unique among the legal interventions proposed for new data economies, a public trust for data allows a democratic polity to durably commit to public-regarding management of its informational resources, coupled to judicially enforceable limits on private exploitation and public allocation decisions. The public trust itself is a common-law doctrine of ancient roots. It was revived in the Progressive Era as an instrument to protect public assets against private exploitation. Both federal and state courts, including the U.S. Supreme Court, have since endorsed a variety of doctrinal formulations. The result today is a rich repertoire of rules and remedies for the management of common property. Personal data, usefully, has many similarities to assets long managed by public trust. And familiar justifications for creation of a public trust logically extend to personal data. Indeed, municipalities in the United States, Europe, and Canada have started to experiment with limited forms of a public trust in data. Generalizing from those experiences, this Article offers a ‘proof of concept’ for how personal data economies can be leashed through the public trust
