Category: Law

The price of eternal vigilance

I am just back from Philadelphia where for the first time I visited Independence Hall, birthplace of the Declaration of Independence and the Constitution. I was shocked by how small and modest is the main room in which it all occurred – there is barely space enough for thirteen simple desks set side-by-side. The constitutional convention could have fit in my living room!

Independence Hall is remarkable but I could not enjoy it fully because I was disconcerted by the circumstances of my arrival. I flew into Philadelphia and of course was scanned, wanded, and de-shoed before boarding the plane – this I was prepared for – but it was depressing to walk from the Liberty Bell to Independence Hall and be subjected again and again to gates, armed guards, scanning, searching and surveillance. What is next? Will we be asked to show ID before entering the birthplace of liberty? The experience was upsetting.

It seems to me that the price of eternal vigilance is liberty.

When Affirmative Action Kills

The United Network for Organ Sharing says that “justice refers to allocation of organs to those patients in the most immediate need.” As such, skin color should be irrelevant in deciding who gets a transplant. But although proponents are loath to make race an explicit factor in transplant policy they are surreptitiously redesigning the organ allocation system in order to increase the number of blacks who receive transplants. The system is being redesigned to meet the ideals of the social planners despite the fact that such “affirmative action” will result in more deaths overall. As a proponent of financial incentives for organ donors I have often been accused of being immoral. But my conscience is clear – I have never advocated killing people to serve my idea of social justice.

From the Wall Street Journal (Friday, Feb. 6).

New rules for allocating scarce kidneys will result in 6.4% more blacks getting transplants, while slightly increasing the number of unsuccessful transplants, a study finds.

Blacks and other minorities have long been disadvantaged on transplant waiting lists — in part because the scoring system gave strong priority to compatibility between a recipient and the donated organ. Although blacks donate organs as often as whites, they have an extremely wide variety of protein markers on the outside of their cells — making an exact match much harder to find than for whites.

Making matters more acute, kidney disease in blacks is very common, owing to their higher rates of high blood pressure, which takes a toll on the urine-filtering organs. Blacks make up 12% of the U.S. population, but account for 36% of the 56,544 people in the U.S. waiting for a kidney. Prior to the scoring system overhaul, they were 33% less likely to get a kidney than whites.

The new rules, implemented in May by the United Network for Organ Sharing, stop giving priority for a certain type of immunological match known as HLA-B.

The report on the new system, in Thursday’s New England Journal of Medicine, used a statistical method to predict what will happen under the new rules. It finds that, had the new rule been in effect in the year 2000, 2,292 blacks would have gotten kidneys, up 6.4% from the actual number of 2,154 blacks. Meanwhile, 3,954 whites would have gotten the organs, a decrease of 4%. Hispanics would have seen a 4.2% increase. Asians would have seen a 5.9% increase.

Critics feared the new rule could reduce the success rate of transplants, effectively wasting precious organs on people whose bodies were likely to reject them. About 2% more organs will be rejected in people of all races, resulting in the need for another transplant, the study predicts.

Is the breast offense a good defense?

A Tennesse woman has sued Janet Jackson, Justin Timberlake, CBS, MTV and Viacom because viewers of the Superbowl half-time show suffered “outrage, anger, embarrassment and serious injury” when they saw Janet Jackson’s right breast. Naturally, this is a class action suit on “behalf of all Americans.” I dunno, I kinda enjoyed it.

Here is another class action that I was dragged into.

John Edwards on Trial

Very good article in the NYTimes on the larger implications of John Edwards’s career as a trial attorney. In Edwards’s first big case he artfully channeled the words of an unborn baby girl to convince the jurors that an obstetrician’s decision not to perform a Caesarean section resulted in the girl being born with cerebral palsy. The smoking gun in the case, according to Edwards, was the record from the fetal hearbeart monitor. As a result of this and other similar cases doctors “have responded by changing the way they deliver babies, often seeing a relatively minor anomaly on a fetal heart monitor as justification for an immediate Caesarean.”

[But] studies have found that the electronic fetal monitors now widely used during delivery often incorrectly signal fetal distress, prompting many needless Caesarean deliveries, which carry the risks of major surgery…[Moreover] the vast majority of children who developed cerebral palsy were damaged long before labor…[and] a series of randomized trials challenged the notion that faster delivery could prevent cerebral palsy. Reviewing data from nine countries, two researchers reported last year that the rate of the disorder had remained stable despite a fivefold increase in Caesarean deliveries.

Edwards can’t be blamed for being a good attorney, even if the science rejects his claims, but his front of caring for the victims does not stand scrutiny. Edwards, along with his fellow attorneys in the North Carolina plaintiff’s bar, argued against a compensation plan that would insure everyone with a child born with cerebral palsy.

My take: A tort system should deter and insure. But our tort system does neither well, especially when it comes to product liability and medical malpractice cases. Winning claims often have little connection with true negligence so the system does not deter and instead of insurance the tort system offers those with injuries a lottery ticket, handing large payouts to some and nothing to others with equal difficulties. To top it off, the system is expensive as more dollars are spent on litigation than flow to plaintiffs.

Why can’t you find your favorite song?

… fans who venture onto any of the pay music sites will not find the most popular band ever, the Beatles. They will not find other top-selling acts, such as the Dave Mathews Band, Garth Brooks, the Grateful Dead, AC/DC and the Cars.

They will find that top-selling acts Madonna and Red Hot Chili Peppers sell their songs by the album, but not as singles.

They will find some musicians on one service, but not on others. They will find puzzling choices: Led Zeppelin fans can buy a 47-minute spoken-word biography of the band online, but no Zeppelin songs because the band has not licensed them for sale on the Internet.

Why are these potential gains from trade not being exploited?

1. Some artists are holding out for a higher price or better terms. This can mean either a better cut for the artist, or the artist does not like the “all songs for 99 cents” model of iTunes.

2. Many artists feel that selling songs on an individual basis takes them out of proper context or cannibalizes sales for the album.

3. Pre-1998 contracts do not specify Internet rights to the songs. Assignment of Internet rights can require the underlying contract to be renegotiated.

4. Renegotiations must involve both the performer and the songwriter.

5. Often the relevant parties cannot be found or are otherwise difficult to deal with. One executive said: “You can be sure the heirs are a son and daughter who aren’t talking to each other and one of those two is getting divorced.”

Here is the full account. You will find stories of high transaction costs, poorly defined property rights, and stubborn holdouts, all the classic predictions of institutional failure theories.

The bottom line: Selection, not just price, remains a big advantage for non-legal downloading. If iTunes and related services are to make it in the long run, they will need to offer near-universal choice of music.

Crime, cocaine, and marijuana

Serious and violent crimes dropped more than forty percent during the 1990s, more than can be explained by demographic shifts. One reason for the crime drop has been the shrinking trade in crack cocaine, here is one account and a more detailed treatment. For whatever reasons, crack has turned out to be a one-generation drug. As crack fell in popularity, crime rates have fallen in turn.

Richard Rosenfeld, writing in the February Scientific American, raises but does not answer the question why crack markets have bred so much violence compared, say, to marijuana markets. I have thought of several possible and related hypotheses:

1. Cocaine supply, which requires processing in Colombia labs, is more centralized in nature. Centralization leads to monopoly profits and thus a greater incentive for violence to protect territory. There will be mobs and mafias at the top of the supply chain. They will feel threatened if anyone invades their turf, and the tendencies for violence work their way down to the retail level.

2. Marijuana is closer to a constant cost supply drug. You can always grow some in your backyard. The power of mobs is limited correspondingly and the incentive to invest in marketing and addicting your customers is weaker.

3. Marijuana is more of a depressant than is crack. Users are less likely to turn violent when deprived of the drug. Marijuana is less addictive in the sense of inducing total desperation.

4. Crack, which was essentially a new drug, required greater marketing than did marijuana. Marketing led to fights over turf and to violence.

5. Marijuana is used by many members of the middle and upper middle classes. Crack has been more popular in ghettos and with lower income groups, in part because it is potent and cheap. The reasons for the violence differential are found in the nature of the respective clienteles, rather than in the nature of the drugs per se. For instance, when drug carriers walk through a ghetto to supply their customers, they are at greater risk, more likely to carry a gun, more likely to meet with a gang, and so on.

Further ideas from readers are welcome.

The bottom line: When it comes to crime, it matters a great deal which drugs people are taking. Furthermore, if we are able to legalize some but not all drugs, we should consider legalizing the most objectionable drugs, not the tamest ones. Legalizing marijuana, whatever its merits and demerits, would not make a huge dent in the crime rate.

Addendum: Ed Lopez adds the following:

1. Crack is split up a lot more than marijuana so it has (had) far higher markup once it hit the street.

2. The early profiteers were the street distributors who discovered how to multiply the number of doses from the uncut cocaine. That gave suppliers higher up the chain something to grab at.

I think a lot of the violence question boils down to risk-takers competing for rents that weren’t protected by contract.

3. Crack is more ephemeral than pot and used with greater frequency, so users are more prone to commit crimes to acquire additioanl doses.

SUV safety debate

A theme in writings about SUV’s (see here for a recent New Yorker article) is that consumers tend to overestimate SUV safety and grossly misunderstand the factors behind auto safety. The basic point is that safety comes from avoiding risky situations and quickly responding to danger. It turns out SUV’s tend to lull drivers into a false sense of safety and they respond more slowly to danger (e.g., SUV’s come to a complete stop much more slowly than many other popular types of cars). Because SUV’s are cosmetically altered trucks, they don’t have many basic safety features now standard in small cars or minivans, so you are more likely to die in an SUV accident than in another car (an anti-SUV site collects some Insurance industry reports). Consumer Reports has for many years argued that SUV’s are quite likely to tip over.

One response I’ve seen is to avidly defend consumer choice (see here for Car and Driver’s Brock Yate’s defense, or here for Peter Klein’s comment), or to minimize the SUV’s dangerous design. I think this misses a basic point. When events are infrequent (like fatal auto crashes), or when cause and effect are hard to link, people can opt to believe anything they want. All economics tells us is that markets are extremely good at responding to possibly erroneous consumer beliefs.

My take on this entire issue is that the central issue is liability. In general, you can’t hold someone accountable for the fatalities created by the use of a car with less then optimal safety features, any more than you can hold somebody accountable for the extra risk created by using a less than best bicycle, motorcycle or other device. In short, there is not much people can do about SUV safety because some people will always want to make the trade-off between safety and other product features.

Since the insurance industry is still willing to insure SUV’s, I wonder if the risk associated with them is tolerable given our current legal and economic standards. I invite knowledgable readers to email me information about how much more it costs to insure SUV vs. other vehicles.

Wacky Warnings

The Michigan Lawsuit Abuse Watch has posted the winners from their Wacky Warning Labels contest. First prize was for a warning on a bottle of drain cleaner which says: “If you do not understand, or cannot read, all directions, cautions and warnings, do not use this product.” Fifth prize went for a fishing lure which warns, “Harmful if swallowed.” Check out who won second prize.

Against Broken Windows

James Q. Wilson’s broken windows theory is simple: broken windows, or other symbols of public disorder, invite crime. Thus, if you clean up the neighborhood, crime should go away. The NY Times discusses research conducted by Felton Earls, Rob Samson, Steve Raudenbush and Jeanne Brooks-Gunn testing this theory. They drove an SUV through *thousands* of Chicago streets and recorded with a video camera just about everything that was visible on the street – garbage, loitering, grafitti, etc. They also had data on crime and the attitudes and behavior of residents. Analysis of data showed that public signs of disorder such as garbage were not linked to crime. Instead, concentrated poverty and the willingness of residents to self-police (“collective efficacy”) explained the incidence of crime. The Times quotes Earls:

“If you got a crew to clean up the mess,” Dr. Earls said, “it would last for two weeks and go back to where it was. The point of intervention is not to clean up the neighborhood, but to work on its collective efficacy. If you organized a community meeting in a local church or school, it’s a chance for people to meet and solve problems.

“If one of the ideas that comes out of the meeting is for them to clean up the graffiti in the neighborhood, the benefit will be much longer lasting, and will probably impact the development of kids in that area. But it would be based on this community action – not on a work crew coming in from the outside.”

This point should be taken to heart by all students of crime. Yes, of course, police are necessary for public order and safety. But the police are finite resource – they can’t possibly monitor every street and corner. Thus, on a fundamental level, public safety comes from a community’s ability to regulate itself. The next time you hear a call for more police, or more prisons, or more public works, think about this insight.

Marriage Brokers

An article in the current issue of Legal Affairs focuses on professional match makers and the difficulties inherent in the business. It’s been estimated that there at least 6000 matches each year and the fee can be about $2000.

How good are the matches? According to the article, a preliminary study conducted by the Department of Justice suggests that mail order brides might suffer less abuse than other wives. However, match makers sometimes fail to inform prospective wives of a future husband’s history of abusive behavior, which has resulted in some cases of abuse and state regulation of the industry.

Of course, regulation of the industry seems plausible – mail order brides don’t have the social networks that enable home-grown brides to learn about their future partner, and they might be susceptible to abuse because they don’t know their new country as well. But there are other ways of dealing with this. Like job applicants, match makers could perform basic screening of candidates – a check of the person’s criminal record might be useful. Match makers who failed to do some basic screening could be held liable for some damages, a proposal to be debated by the legal bloggers. A match maker subject to these professional norms might find better matches than the old fashioned match makers.

Liability and flu vaccine

Liability law appears to be a critical factor behind the vaccine shortage:

As legal liabilities have chased many vaccine-makers out of the market, there are fewer manufacturers. This means less overall ability to produce additional doses, and less investment on new, faster ways to make vaccines.

In the US about 185m people risk serious flu-related illness each year.

At one time the US had 20 flu vaccine manufacturers. Today there are just four: Aventis, GlaxoSmithKline, Merck and Wyeth.

After the second world war the science of cell cultures led a boom in vaccine production. But gradually profit margins thinned on vaccines, as the government became a big buyer of them. Increasing legal liability drove many makers out of the vaccine business.

Today smaller biotech companies have entered the game. But they lack the capacity and the distribution to solve near-term shortages, experts say.

“One of the problems with vaccines is you put them in healthy people,” says Louis Galambos, history professor at Johns Hopkins University and an expert on vaccine manufacturing. “Now we’re in a situation where we have too few producers.”

Congress passed a law in 1986 to limit liability on vaccines for children. There are no such liability limits for adults, however.

Pharmaceuticals companies are inhibited by the particular structure of the US vaccine market, experts say. The US government is a large buyer of vaccines, leaving relatively poor profit margins on vaccines.

Here is the full story from The Financial Times.

Regulation by Litigation

Elliot Spitzer, New York’s Attorney General, apparently misunderstands so let me make it clear – it’s the rule of law not the rule of lawyers. As I feared, a real but relatively minor scandal in the mutual fund industry, is becoming the excuse for grandstanders promoting their own agendas that have little do with the original issues. Professor Bainbridge lays it out here (I recommend following up on his links but of course ignore any criticism you might find of my arguments! :)).

A Romanian liability crisis?

A Romanian pensioner has lodged a complaint against a TV station claiming their horoscope is unreliable.

The woman, from Maramures, says the horoscope repeatedly predicted she would receive a big sum of money but it never arrived although she waited for three months.

Thanks to cronaca.com for the link to Ananova. Here is the clincher:

Officials said they will analyse the complaint and take a decision.

But they advised the broadcasters to include an announcement that the horoscope may not be 100% accurate and that they cannot warrant for the truth of astral predictions.

Perhaps they will consult their horoscope before rendering a final verdict.