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Covid-19 Crisis Triage — Optimizing Health Outcomes and Disability Rights
No full textOn March 28, 2020, the Office of Civil Rights at the Department of Health and Human Services (HHS) opened investigations into recently released critical care crisis triage protocols. Disability rights advocates are urging Congress to prohibit crisis triage based on “anticipated or demonstrated resource-intensity needs, the relative survival probabilities of patients deemed likely to benefit from medical treatment, and assessments of pre- or post-treatment quality of life.
Illusory Conflicts: Post-Employment Clearance Procedures and the FTC’s Technological Expertise
Get PDFThe federal government restricts what former employees can work on after they leave the government, and for good reason. These post-employment conflict restrictions attempt to address the “revolving door” problem, where employees take information learned from their position in government to unfairly advantage industry. But an unintended consequence of overbroad conflict rules is that they impede well-meaning, former federal employees from providing their knowledge and general expertise to other enforcement agencies with similar missions, such as those at the state level. This is playing out right now with FTC technologists, at a time when the agency—and, indeed, consumer protection agencies more broadly— desperately needs greater technical expertise. Three problems result: (1) former FTC technologists find themselves unable to contribute to the enforcement efforts of other agencies and plaintiffs’ attorneys aligned with the mission of the FTC, (2) some current FTC technologists are unwilling to work on important issues before the agency out of fear that doing so will limit their ability to work on related matters in the future, and (3) would-be technologists may be unwilling to take a position at the agency due to these concerns.
We explore the impact of federal conflict rules on technologists working with the FTC, consider how this impact has changed alongside changing circumstances and enforcement practices, and discuss policy implications. We conclude that unless the FTC reforms the way it administers its conflict rules, it risks losing the assistance of technological expertise— expertise of which it badly needs more, rather than less
The Cost of Legal Restrictions on Experience Rating
Get PDFWe investigate the cost of legal restrictions on experience rating in auto and home insurance. The cost is an opportunity cost as experience rating can mitigate the problems associated with unobserved heterogeneity in claim risk, including mispriced coverage and resulting demand distortions. We assess this cost through a counterfactual analysis in which we explore how risk predictions, premiums, and demand in home insurance and two lines of auto insurance would respond to unrestricted multiline experience rating. Using claims data from a large sample of households, we first estimate the variance-covariance matrix of unobserved heterogeneity in claim risk. We then show that conditioning on claims experience leads to material refinements of predicted claim rates. Lastly, we assess how the households’ demand for coverage would respond to multiline experience rating. We find that the demand response would be large
Platforms and the Fall of the Fourth Estate: Looking Beyond the First Amendment to Protect Watchdog Journalism
Get PDFJournalists see the First Amendment as an amulet, and with good reason. It has long protected the Fourth Estate—an independent institutional press—in its exercise of editorial discretion to check government power. This protection helped the Fourth Estate flourish in the second half of the twentieth century and ably perform its constitutional watchdog role.
But in the last two decades, the media ecology has changed. The Fourth Estate has been subsumed by a Networked Press in which journalists are joined by engineers, algorithms, audience, and other human and non-human actors in creating and distributing news. The Networked Press’s most powerful members are platforms. These platforms—companies like Facebook, Google, and Twitter—shun the media label even as they function as information gatekeepers and news editors. Their norms and values, including personalization and speed, stymie watchdog reporting.
The Networked Press regime significantly threatens watchdog journalism, speech that is at the core of the press’s constitutional role. Yet, limited by the state action doctrine, the First Amendment cannot shield this speech from a threat by private actors like platforms. Today, the First Amendment is insufficient to protect a free press that can serve as a check on government tyranny.
This article argues that we must look beyond the First Amendment to protect watchdog journalism from the corrosive power of platforms. It describes the limits of the First Amendment and precisely how platforms threaten watchdog journalism. It also proposes a menu of extra-constitutional options for bolstering this essential brand of speech
How Well Does Societal Mobility Restriction Help Control the COVID-19 Pandemic? Evidence from Real-Time Evaluation
Get PDFOne of the most widely implemented policy response to the novel coronavirus (SARS-CoV-2) pandemic has been the imposition of restrictions on mobility (1). These restrictions have included both incentives, encouraging working from home, supported by a wide range of online activities such as meetings, lessons, and shopping, and sanctions, such as stay at home orders, restrictions on travel, and closure of shops, offices, and public transport (2-5). The measures constitute a major component of efforts to control the COVID-19 pandemic. Compared to previous epidemic responses, they are unprecedented in both scale and scope (6).
The rationale underpinning these public health measures is that restricting normal activities decreases the number, duration, and proximity of interpersonal contacts and thus the potential for viral transmission. Transmission simulations using complex mathematical modelling have built on past experience such as the 1918 influenza epidemic (7), as well as assumptions about the contemporary scale and nature of contact in populations (8). However, the initial models were not always founded on empirical evidence from behavioral scientists on the feasibility or sustainability of mass social and behavior change in contemporary society. While reductions in interpersonal contact and increases in physical distancing are known to decrease respiratory infection spread (9), the paucity of recent examples of large-scale restrictions on mobility has limited the scope for research on their impact on transmission. Where restrictions have been imposed, as with Ebola, they have involved diseases with a different mode of transmission. Nonetheless, the rapidity of progression of this pandemic has forced many governments into trialing various approaches to containment with limited evidence of effectiveness (10).
More conventional public health prevention measures (such as quarantine of contacts, isolation of infected individuals and contact tracing) and control measures in health systems (such as patient flow segregation, negative pressure ventilation, and use of personal protective equipment) (11-14), have been applied widely to control the epidemic in many countries as part of a portfolio of policy responses. However, mobility restriction as a new large-scale mass behavioral and social prescription has incurred considerable costs (15, 16). Estimates suggest global GDP growth has fallen by as much as 10% (17), at least in part due to mobility restriction policies. Although views differ, not least because of the lack of information of what would happen if the disease was unchecked and the emerging evidence of persisting disability in survivors, some have argued that this is greater than would be accounted for by the economic impact of direct illness and deaths from COVID-19 (18, 19).
To inform decisions on large scale restrictions of mobility, there is an urgent need to assess their effectiveness in limiting pandemic spread. To this end, we examined the association of mobility with COVID-19 incidence in Organization of Economic Cooperation and Development (OECD) countries and equivalent economies such as Singapore and Taiwan
Pandemic as Opportunity for Competence Restoration Decarceration
Get PDFBefore the pandemic, a defendant found incompetent to stand trial was often stranded in jail for weeks or months as she waited for an inpatient bed to open at a psychiatric facility. While there, she usually received no treatment, her mental health deteriorated, and she was astonishingly likely to be abused and neglected. She almost certainly came out of jail in a worse state than she was when she went in.
The pandemic has made this desperate situation even worse. Now that wait in jail is both longer, as many psychiatric facilities stopped accepting new patients as they dealt with outbreaks or imposed social distancing measures, and more dangerous. Jails have been the sites of some of the worst virus outbreaks in the country.
The solution to this problem is simple: release defendants. There is no inherent magic to inpatient treatment that renders it superior to community treatment. Even if community treatment is unavailable—a common problem in many jurisdictions—it is far worse to keep a person found incompetent in jail, where she will likely decompensate, suffer abuse or neglect, and, now, be exposed to a pandemic, than to release her.
Pre-pandemic, judges rarely released defendants found incompetent to stand trial for two reasons. First, many competence restoration statutes default to the inpatient option; some even require it. Second, judges, like most people, harbor deep-seated fears of individuals with mental illness, and they are reluctant to release individuals who they suspect may be dangerous, even if that suspicion is founded on stigma instead of fact.
But the pandemic has forced judges’ hands, and some are opting to release individuals who would have been slated for inpatient care and extended jail waits pre-COVID-19. In the District of Columbia, thirty-five people in competence proceedings were released. In Washington, a man charged with robbery was ordered to inpatient treatment; after he waited over three months in jail for a transfer, a judge dismissed the charge. While these are certainly small numbers, they indicate an opportunity to experiment with the decarceration of individuals found incompetent to stand trial. As the pandemic drags on, and defendants found incompetent remain stuck in limbo, pressure to decarcerate may continue to mount.
Thus, while the pandemic has made the already egregious lag times for competence restoration treatment worse, it might also contain the seeds of a solution to this intractable problem. A crisis of this proportion might be the one thing that could shake the criminal justice system out of its assumption that defendants should be detained while they wait for an inpatient bed to open
International Law and Theories of Global Justice
Get PDFInternational law informs, and is informed by, concerns for global justice. Yet the two fields that engage most with prescribing the normative structure of the world order – international law and the philosophy of global justice – have tended to work on parallel tracks. Many international lawyers, with their commitment to formal sources, regard considerations of substantive (and not merely procedural) justice as ultra vires for much of their work. Philosophers of global justice, in turn, tend to explore the moral commitments of international actors without grappling with the international legal doctrine or institutions. In recent years, however, both disciplines have begun to engage with one another more. This discussion among international lawyers and philosophers addresses the promises of and challenges to interdisciplinary approaches to global justice. The contributors consider the added value of philosophical inquiry to issues facing international law practitioners or scholars, the salience of of international law for political philosophy, and the methodological distinctions between the two fields. The contributors also identify promising lines and examples of interdisciplinary scholarship
Vertical Merger Enforcement Actions: 1994–April 2020
Get PDFWe have revised our earlier listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 66 vertical matters beginning in 1994 through April 2020. It includes challenges and certain proposed transactions that were abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 JOURNAL OF ANTITRUST ENFORCEMENT 1 (2016)
Has Global Health Law Risen to Meet the COVID-19 Challenge? Revisiting the International Health Regulations to Prepare for Future Threats
Get PDFGlobal health law is essential in responding to the infectious disease threats of a globalizing world, where no single country, or border, can wall off disease. Yet, the Coronavirus Disease (COVID-19) pandemic has tested the essential legal foundations of the global health system. Within weeks, the SARS-CoV-2 coronavirus has circumnavigated the globe, bringing the world to a halt and exposing the fragility of the international legal order. Reflecting on how global health law will emerge in the aftermath of the COVID-19 pandemic, it will be crucial to examine the lessons learned in the COVID-19 response and the reforms required to rebuild global health institutions while maintaining core values of human rights, rule of law, and global solidarity in the face of unprecedented threats
Global Health with Justice: Controlling the Floodgates of the Upstream Determinants of Health through Evidence-Based Law
Get PDFThis article introduces a special issue on the legal determinants of health, following the publication of the Lancet–O’Neill Institute of Georgetown University Commission’s report on the subject. We contextualize legal determinants as a significant and vital aspect of the social determinants of health, explain the work of the Lancet–O’Neill Commission and outline where consequent research will usefully be directed. We also introduce the papers that follow in the special issue, which together set out in greater detail the work of the Commission and critically engage with different aspects of the report and the application of its findings and recommendations