Category: Law

*Smashing the Liquor Machine: A Global History of Prohibition*

By Mark Lawrence Schrad. From the Amazon summary:

This is the history of temperance and prohibition as you’ve never read it before: redefining temperance as a progressive, global, pro-justice movement that affected virtually every significant world leader from the eighteenth through early twentieth centuries.

I have been reading the galleys, I will blurb it, it will be one of the best non-fiction books of 2021, more in due time you can pre-order here.

First Dose First

Writing on twitter Keith Klugman, world expert on infectious diseases and director of the Gates Foundation Pneumonia program, supports a policy I have argued for–First Doses First.

First doses of Pfizer/Moderna vaccines are 90%+ effective after 14 days. Most high risk lives will be saved by giving all these limited early supplies of vaccine as first doses – second doses can be given later if first dose effectiveness wanes or when supply improves

Here’s a way of thinking about this policy. Suppose you are scheduled for your second dose of the Pfizer or Moderna vaccine but you have the option of giving your second dose to your spouse as their first dose. Would you?

If the answer is yes then can you ethically deny this to someone else’s spouse?

Keep in mind that we have at least three more vaccines that could be available in as little as 12 weeks, Astra-Zeneca, Johnson & Jonson and Novavax. We are also pushing for more doses from Pfizer and we should be willing to pay top-dollar for those doses. As those vaccines come online we can deliver second doses.

Addendum: If you are 75 and your spouse is 25 then maybe you wouldn’t give your second dose to your spouse and that too ought to help us think about the larger questions of allocation.

The Tremendous Success of Operation Warp Speed

I am annoyed at Fauci for the second time, this time for dissing the AZ vaccine:

But even if the vaccine ends up being approved, it will probably only have an efficacy of 60 to 70 percent. “What are you going to do with the 70 percent when you’ve got two (vaccines) that are 95 percent? Who are you going to give a vaccine like that to?” Anthony Fauci, the leading American expert on vaccines, recently wondered.

This attitude is counter-productive. As I wrote earlier:

In the big picture, the efficacious of a vaccine doesn’t matter per se what matters is getting to herd immunity. If you have a less efficacious vaccine you need to vaccinate more people but herd immunity is herd immunity, i.e. vaccines mostly protect people not because they are efficacious but because we reach herd immunity.

As a result, it can be much better to start vaccinating now with a 70% efficacious vaccine than wait for a 95% efficacious vaccine–thus, we need to encourage early vaccination. Indeed the AZ vaccine ought to be approved immediately (I predict the UK will approve by next week) and be made available to anyone who doesn’t want to wait for another vaccine.

For the next year or two, we will be operating under conditions of scarcity and we need to use every tool at our disposal. A 70% effective vaccine is great, well above what the FDA required and better than the flu vaccine. If you live in a country in which everyone has been vaccinated you won’t give a damn whether they were vaccinated with a 95% effective vaccine or a 70% effective vaccine–both will give you nearly 100% safety and allow life to return to normal.

Les priorités

F.D.A. Wants to Stop Regulating French Dressing

The federal agency said it was seeking to revoke its definition for the carrot-colored dressing, effectively erasing a government-required list of ingredients at the request of an industry group…the federal government has shown great interest in the humble dressing, painstakingly regulating since 1950 the ingredients that it must contain and revising the rules at least five times since then…

The lengthy and legalistic regulations for French dressing require that it contain vegetable oil and an acid, like vinegar or lemon or lime juice. It also lists other ingredients that are acceptable but not required, such as salt, spices and tomato paste.

Ahem.  Here is the full NYT story.

p.s. It is disgusting, and it is not even French.

Double the Inoculated Population with One Dose

I’ve been arguing that we should delay the second dose (or at least not hold back first doses) in order to hit the virus hard and inoculate more people on the first dose. I wrote:

We should vaccinate 6 million people with first dose NOW. It is deadly cautious to hold second dose in *reserve*. Supply chain will be ok and the exact timing of the second dose is not magical and likely not critical. In the accidental low-dose, standard-dose regime for the AZ vaccine, people got the second dose 7 to 8 weeks after the first dose and that was the 90% efficacious regime. [A different vaccine obviously but ] Exact timing of the second-dose does not seem critical, although everyone should get a second dose.

Today epidemiologist Michael Mina and writer Zeynep Tufekci, who has been ahead of the curve on much of the discussion, make the case even more strongly in the NYTimes:

First, the science. While the vaccine trials were designed to evaluate a two-dose regimen, some immunity might be acquired before a second dose is administered. We know, for instance, that a Covid-19 infection appears to yield protection for at least six months. While infections are not vaccinations, and while we need more data on this, it’s plausible that the immunity gained from a vaccination may turn out to be even stronger than what comes from an infection. The reason we do a second — booster — vaccination is that these later doses help to solidify immune memory, in part by giving extra training to the cells that produce antibodies, a process called affinity maturation. But this process begins with the single dose, and the evidence collected between the time of the first and second doses in tens of thousands of people in the Phase 3 trials suggests that the level of affinity maturation may provide enough protection to meet the standards we have set for vaccine approval during this pandemic even without the second dose.

While we know that the single dose can protect against disease, we don’t yet know how long this immune protection will last, and at what level. However, there is no rule that says that vaccines must be boosted within weeks of each other. For measles, the booster dose is given years after the first dose. If the booster dose could be given six months or a year after the first dose, while maintaining high efficacy before the second dose, that would allow twice as many people to get vaccinated between now and later next year, accelerating herd immunity — greatly helping end the crisis phase of the pandemic in the United States.

… we should begin immediate single-dose trials, recruiting volunteers from low-risk populations who are first in line for the vaccinations. For example, among health care workers protective equipment works, rates of infection among this group have fallen sharply and severe disease is much more rare.Younger essential workers without risk factors are less likely to be severely affected if they are exposed since this disease’s impact rises steeply with age. Just as tens of thousands of people volunteered for the earlier vaccine trials, many may well volunteer to test a placebo against a second dose, allowing us to quickly ascertain questions of durability and effectiveness of the single dose.

Two additional points. First, mix and match, as I argued earlier, may be beneficial:

…we could mix and match vaccines. The UK will run a trial on this question. Mix and matching has two potentially good properties. First, mix and matching could make the immune system response stronger than either vaccine alone because different vaccines stimulate the immune system in different ways. Second, it could help with distribution. It’s going to be easier to scale up the AZ vaccine than the mRNA vaccines, so if we can use both widely we can get more bang for our shot.

Second, an economics issue. If we want Pfizer and Moderna on board we need to pay them not just to run the clinical trials but to be happy with potentially selling half as many doses. Incentives matter.

Can You Hear Me Now? No.

I know, I know, you are tired of me beating on the FDA. Too bad. The beatings will continue until mortality improves.

Today’s beating, however, concerns hearing aids rather than than vaccines. The current system, much like the optometry racket, requires that hearing aids be purchased through an audiologist:

WEBMD: A pair of hearing aids runs $5,600 on average — a cost that health insurance doesn’t typically pick up. In order to get the devices, people with hearing loss must have a medical exam to rule out the slim chance of a serious medical problem that is causing the hearing loss, or they must sign a waiver opting out of the exam. You can only buy hearing aids through an audiologist or a licensed hearing aid dispenser, who is authorized to test hearing and sell hearing aids.

…choosing a hearing professional limits a person’s hearing aid choices, and changing audiologists as a result of location or personal preference could require a person to change hearing aids, too.

Due in part to these hurdles, once a person starts to lose their hearing, they wait an average of 7 years before they seek help.

The NYTimes continues the story:

By now, we were supposed to be swiftly approaching the day when we could walk into a CVS or Walgreens, a Best Buy or Walmart, and walk out with a pair of quality, affordable hearing aids approved by the Food and Drug Administration….in 2017, Congress passed legislation allowing the devices to be sold directly to consumers, without a prescription from an audiologist. The next step was for the F.D.A. to issue draft regulations to establish safety and effectiveness benchmarks for these over-the-counter devices.

Of course, the FDA is likely to miss the deadline. But even I am willing to cut them some slack, given other more pressing concerns. The real issue, however, is one that the NYTimes doesn’t confront and that is why does the FDA regulate hearing aids at all?

Headphones and earbuds are not regulated as medical devices and hearing aid technology is similar to hearings buds with a sophisticated equalizer. Indeed, you can even buy “personal sound amplification products” that are not FDA regulated or approved. It’s only the somewhat arbitrary declaration that these products are “medical devices” that brought them under FDA regulation to the detriment of consumers. The National Academy of Sciences report agrees writing:

FDA has established regulations for hearing aids, including quality system regulation requirements, mandatory labeling, and pre-purchase medical evaluation (or a documented waiver). These regulations, along with a number of state regulations, have largely restricted the availability of hearing aids to being mainly dispensed through medical, audiology, or hearing instrument specialist venues.

…In examining the Food and Drug Administration’s (FDA’s) requirements for physician evaluation prior to obtaining hearing aids, the committee finds no evidence that the required medical evaluation or waiver of that evaluation provides any clinically meaningful benefit.

Addendum: In some positive news the FDA lifted its ban on the first non-prescription, at-home SARS-COV test and also on a prescription, paper-strip test. Now all we need is a non-prescription paper-strip test! Come on guys.

My Conversation with John O. Brennan

Here is the audio, video, and transcript — we are both Irish-Americans who were born in Hudson County, New Jersey, and who spent most of our lives working in northern Virginia, the CIA in his case.  Here is part of the CWT summary:

John joined Tyler to discuss what working in intelligence taught him about people’s motivations, how his Catholic upbringing prepared him for working in intelligence, the similarities between working at the CIA and entering the priesthood, his ability to synthetize information from disparate sources, his assessment on the possibility of alien life, the efficacy of personality tests and polygraphs, why CIA agents are so punctual, how the CIA plans to remain a competitive recruiter for top talent, the challenges that spouses and family members of intelligence workers face, the impact of modern technology on spycraft, why he doesn’t support the use of enhanced interrogation techniques, his favorite parts of Cairo, the pros and cons of the recent Middle Eastern peace deal brokered by Jared Kushner, the reasons he thinks we should leverage American culture more abroad, JFK conspiracy theories, why there seemed to be much less foreign interference in the 2020 election than experts predicted, what John le Carré got right about being a spy, why most spies aren’t like James Bond, what he would change about FISA courts, and more.

Here is one excerpt:

COWEN: Are CIA agents more punctual than average?

BRENNAN: Some certainly are. Many of them need to be if you’re going to have a rendezvous, a clandestine rendezvous with a spy from overseas, one of your assets or agents. You have worked for hours to get clean so that you make sure that the local security services are not onto you and surveilling you, and your agent has done the same thing so that when you meet at the designated place at a designated hour, you can quickly then have either a brush pass or a quick meeting or whatever.

If you’re not punctual, you can put that agent’s life in danger. I think it’s instilled in CIA, certainly case officers, that time is of the essence, and you need to be able to follow the clock.

Also, I remember when I was CIA director and I would go down to the White House for an executive council meeting or a principals committee meeting. Jim Clapper, the director of National Intelligence, and myself would always be the first ones there because we were always very punctual. I think sometimes the policymakers would look at the clock not as carefully as we would.

COWEN: If you’re hiring for punctuality, and obviously, you would expect employees to show an extreme degree of loyalty, do you worry that you’re not hiring for enough of what’s called disagreeability in the personality literature: people who will contradict their superiors, people who will pick fights? They’re a pain to work with, but at the end of the day, they bring up points that other people are afraid to say or won’t even see.

BRENNAN: We’re not looking to hire just a bunch of yes people. To me, I don’t think punctuality means that you’re looking to instill discipline in an organization. You’re trying to ensure that you’re taking advantage of —

COWEN: But that and loyalty — it would seem to select against disagreeability.

BRENNAN: There’s loyalty to the Constitution. There’s loyalty to the oath of office. To me, there shouldn’t be loyalty to any individuals, including inside the CIA. I would like to think that CIA recruiters would be looking for individuals who are intellectually curious, have critical thinking skills, and mainly have also, I think, some degree of contrariness because you don’t want people just to accept as gospel what it is that they are being told, especially if they’re going to be interacting with spies overseas.

Definitely recommended, fascinating throughout.  And here is John’s new book Undaunted: My Fight Against America’s Enemies, At Home and Abroad.

China fact of the day

The investigation by the BBC uncovered documents and satellite imagery that suggest large numbers of the persecuted Uighur Muslim minority are being forced by the Communist Party to pick cotton or work in textile factories linked to detention camps. About a fifth of the world’s cotton supply comes from Xinjiang and it is widely used in the fashion trade.

Here is the Times of London story, via TEKL.

Inelastic demand

Last Thursday, Dale Mclaughlan bought a Jet Ski.

On Monday, the 28-year-old Scotsman was sentenced to four weeks in jail.

What happened on the three days in between, according to court documents, may be one of the more unusual instances of rule-flouting during the coronavirus pandemic.

The day after purchasing the watercraft, Mr. Mclaughlan set off at 8 a.m. for what he thought would be a 40-minute trip from the southwestern coast of Scotland to his girlfriend’s home on the Isle of Man, between England and Ireland. He later told the authorities that he had never ridden a Jet Ski before and that bad weather on the Irish Sea caused the trip to stretch to four and a half hours.

Mr. Mclaughlan finally reached his girlfriend on Friday night, after walking 15 miles from the Isle of Man’s coast to her home in its capital, Douglas. The couple spent the weekend enjoying the city’s nightlife, but their reunion was cut short, when he was arrested and later charged with one count of violating the Isle of Man’s coronavirus restrictions.

On Monday, he received a four-week jail sentence.

Here is the full NYT story.  The Isle of Man keeps out visitors, and has managed to keep out the coronavirus as well.

Champerty on the Blockchain

One of the peculiarities of the law is that third party contracts to finance a lawsuit in exchange for a percentage of any recovery have long been unenforceable under the doctrine of champtery. As with contingent fees, the idea is that third party financing will generate frivolous lawsuits. In contrast, Helland and I found that contingent fees improve legal quality because lawyers won’t take cases that are likely to fail on a contingency basis but they will take them on an hourly-fee basis. Contingent fees and third-party funding also reduce credit constraints and extend the legal system to people who cannot finance their own cases. Third-party finance is reasonably common in Australia and doesn’t seem to have had major negative consequences. It’s also becoming more common in the United States even though the law is still unclear.

For someone who believes in markets, third party contracts are just contracts. As Helland and I said in our AEI monograph, Two Cheers for Contingent Fees, it’s one thing to think that the tort system is broken or out-of-control and quite another to think that the appropriate way to address this is to interfere in the right of tort victims and financiers to contract. In fact, Robert Cooter once likened tort claims to Arrow-Debreu securities and argued for a market in unmatured tort claims (UTCs). Today, we are somewhat closer to that market on the blockchain!

The Avalanche blockchain is hosting a new kind of token designed to allow retail investors to invest in the outcome of lawsuits.

The so-called ‘Initial Litigation Offering’ is the brainchild of Avalanche creator Ava Labs, US law-firm Roche Cyrulnik Freedman LLP and Republic Advisory Services, a consultancy.

Many individuals lack the funds to pursue legal action; litigation financing allows investors to cover the costs of a claim in return for a portion of the payout, should the claim prove successful. For the new ILO on Avalanche, the right to such a payout has been tokenised, and would be delivered as a digital asset.

As usual, it’s a little unclear what the blockchain is doing since the real issue is to measure the outcome of the cases and distribute the funds and that requires trust. Still, the blockchain will increase liquidity–potentially allowing anyone in the world to invest (again, assuming trust in the originator)–and it will also help with unenforceability. Ironically, one of the problems with these contracts has been that knowing that they are unenforceable the victims renege on the deal after winning their cases! If instead the money goes into a smart contract on the blockchain it will be much harder for the victims to renege. Innovations like this may also push the law to clarify the legality of third party financing.

Addendum: The first case they plan to tokenize looks appropriate. A farmer was growing approved hemp but the local sheriff razed his cropland causing a billion dollars in damages.

A reader emails me about Brexit

I will not do a further indentation, this is all from the reader, an EU national working for the UK government:

“…of course I am writing to disagree with you, because for once I think I understand an issue – Brexit – better than you do.  So against your changes that have made you more pro-Brexit, below are four ways in which Brexit is still as costly. or more costly, than we may have originally thought.

  1. Politics in the UK have changed and the UK is less likely to take advantage of the opportunities of Brexit/ The fact the UK government is happy to agree to non-regression on EU labour and environmental regulations, and is most interested in policy space on subsidies and fishing is a bad sign.
  2. Brexit has made the liberal bloc in the EU less powerful and will make EU regulations worse. For example, the Copyright Directive would not have passed the Council had the UK voted against (see here). That the UK voted for it (so it’s also UK law too) tells you something about how likely the UK is to resist bad ideas on internet regulation.
  3. EU free movement is an underrated source of labour market flexibility – the complete lack of paperwork is quite attractive. Post Brexit immigration policy won’t help, particularly since with a national wage threshold, the loss of EU migrants will affect areas outside of London more: nearly half of the non-EU migrants that come for work live in London, but only a third of EU work migrants do (see here).
  4. Being outside the EU makes it more costly for the UK to disengage from China, especially if it also wants some autonomy from the US. Attitudes to both China and the US have changed a lot since Brexit, so whatever its merits the UK government will be using industrial strategy to become more independent from the China and maybe also the US.”

TC again: here is my Brexit column he was responding to.

From the reckless oh so reckless Bundesminister für Gesundheit

Wir haben als EU die Impfstoffentwicklung erfolgreich unterstützt u uns gemeinsam Impfdosen gesichert. Alle nötigen Daten zu BioNTech liegen vor. UK + US haben bereits Zulassungen erteilt. Eine Prüfung der Daten u die Zulassung durch die EMA sollten schnellstmöglich erfolgen.

Es geht dabei auch um das Vertrauen der Bürgerinnen und Bürger in die Handlungsfähigkeit der Europäischen Union. Bund und Länder sind ab dem 15.12. in der Fläche einsatzbereit: Erste Impfdosen stehen quasi bereit und könnten direkt nach der Zulassung verimpft werden.

Jeder Tag, den wir früher beginnen können zu impfen, mindert Leid und schützt die besonders Verwundbaren.

In other words, he is pissed that the EU has not yet approved any vaccines.  Link here, via Andreas Backhaus.  Of course, if you are a good Bayesian this also should lead you to update your sense of the speediness of the FDA…

A Polite Request of the FDA

After the FDA advisory committee voted in favor of Pfizer’s EUA last Thursday–as almost everyone thought they would–the FDA had difficulty finishing the paperwork. The NYTimes reported:

People familiar with the F.D.A.’s situation say that regulators are now racing to complete a fact sheet, information for physicians and other required documents that go with the authorization.

The paperwork delay meant that the FDA was going to wait to issue the EUA until Monday. That’s when Trump called the FDA “a big, old, slow turtle” and yelled at Hahn to “Stop playing games and start saving lives!!!.” The FDA then sped up and issued the EUA on Friday. As a result, the first tranche of vaccines are being delivered today.

The advisory committee for the Moderna vaccine meets this coming Thursday. Here’s a polite request of the FDA–please have the fact sheet, information for physicians and other required documents ready to go. Thanks.

P.S. We would also be really grateful and, you know, it might save some lives if you allowed Moderna to start shipping now so the vaccine is on-site and ready to go on Friday. Please give it some thought and thanks again for your kind consideration. It’s been very stressful seeing thousands of people dying every day.

The rude people who comment on Derek Lowe’s blog

Gotta love the logic of bioethicists…

>> Hey guys, can we maybe run a vaccine challenge trial to help accelerate research? We’ve got 30k volunteers signed up already

Aw jeez, that would be horrible! Humans are unable to consent to taking a deadly risk! (though lets ignore doctors volunteering to work despite PPE shortages or soldiers volunteering to fight in remote countries) We might harm a few hundred people with this challenge trial so its best if we just run a Phase 3 trial and wait for months and months to get the results. Who cares if lives could be saved by accelerating the research?

>> Hey guys, we’ve got this vaccine candidate that’s only effective on young people. Can we just launch a Phase 3 trial for young people while we run a separate Phase 1/2 trial for older people?

Aw jeez, that would be bad! Old people are people too and we might hurt someone’s feelings if we declare that there’s a vaccine that’s only available for young folks. Lets just delay it by many months instead to the point where it becomes irrelevant, even if it could’ve saved tens of thousands of people in the meantime.

>> Folks, I’ve got this Oxford vaccine that’s 62% effective and has no major side effects. Can we start using it?

Aw jeez, absolutely not! Some people might get offended because they could’ve received the 90% effective vaccine instead, even if that 90% vaccine is in short supply and wouldn’t actually be available to them for many months to come. Rather than offending people, we should just let them die from COVID – that way we’re not to blame for anything. So lock that vaccine up until you run many more trials and ignore the fact that this causes tens of thousands of extra deaths. Bio ethics above all!

Here is the post link.  From myst_05.

How to build Haitian state capacity

Strengthening state capacity in low income countries requires raising tax revenue while maintaining political stability. The risk of inciting political unrest when attempting to increase taxes may trap governments in a low-tax equilibrium, but public goods provision may improve both tax compliance and political stability. To test these questions empirically, I partner with the national tax authority and a local mayor’s office in Haiti to cross-randomize both tax collection and public goods across one of the country’s largest cities. Effects are measured both via administrative data on tax revenue as well as through novel measures of political unrest. In the paper’s main result, I show that hand-delivering property tax invoices reduces individual tax compliance by 48%, and increases independently observed measures of localized political violence by 192%. In contrast, providing a valuable and visible public good (namely municipal garbage removal) increases tax compliance by 27%, and reduces localized political violence by 85%. Importantly, public goods provision significantly mitigates the adverse effects of tax collection in neighborhoods receiving both treatments. A cost accounting exercise suggests that providing the public good in this setting could pay for itself within the first year. These findings suggest that it may be possible to peacefully shift to a new equilibrium of higher tax compliance with a sufficient initial investment perhaps financed through foreign aid or other transfers.

That is a paper from Benjamin Krause, a job market candidate from UC Berkeley.  Here is his home page and CV.  He was also four years Chief of Staff to Sean Penn, check out the vita.