Category: Law

Department of Unintended Consequences, American health care edition

In 2010, the federal agency that oversees Medicare, the Centers for Medicare and Medicaid Services, established the Hospital Readmissions Reduction Program under the Affordable Care Act. Two years later, the program began imposing financial penalties on hospitals with high rates of readmission within 30 days of a hospitalization for pneumonia, heart attack or heart failure, a chronic condition in which the heart has difficulty pumping blood to the body.

At first, the reduction program seemed like the win-win that policymakers had hoped for. Readmission rates declined nationwide for target conditions. Medicare saved an estimated $10 billion because of the reduction in hospital admissions. Based on those results, many policymakers have called for expanding the program.

But a deeper look at the Hospital Readmissions Reduction Program reveals a few troubling trends. First, since the policy has been in place, patients returning to a hospital are more likely to be cared for in emergency rooms and observation units. This has raised concern that some hospitals may be avoiding readmissions, even for patients who would benefit most from inpatient care.

Second, safety-net hospitals with limited resources have been disproportionately punished by the program because they tend to care for more low-income patients who are at much higher risk of readmission. Financially penalizing these resource-poor hospitals may impede their ability to deliver good care.

Finally, and most concerning, there is growing evidence that while readmission rates are falling, death rates may be rising.

In a new study of approximately eight million Medicare patients hospitalized between 2005 and 2015 that we conducted with other colleagues, we found that the Hospital Readmissions Reduction Program was associated with an increase in deaths within 30 days of discharge among patients hospitalized for heart failure or pneumonia, though not for a heart attack.

That is by Rishi K. WadheraKaren E. Joynt Maddox and Robert W. Yeh in The New York Times.

Why Doesn’t the FBI Videotape Interviews?

Michael Rappaport at Law and Liberty:

…if the FBI believes that an interviewee has lied during the interview, he or she can be prosecuted for false statements to the government. The penalty for this is quite serious. Under 18 U.S.C. 1001, making a false statement to the federal government in any matter within its jurisdiction is subject to a penalty of 5 years imprisonment. That is a long time.

How does the FBI prove the false statement? One might think that they would make a videotape of the interview, which would provide the best evidence of whether the interviewee made a false statement. But if one thought this, one would be wrong, very wrong.

The FBI does not make videotapes of interviews. Apparently, there are FBI guidelines that prohibit recordings of interviews. Instead, the FBI has a second agent listen to the interview and take notes on it. Then, the agent files a form—a 302 form—with his or her notes from the interview.

What is going on here? Why would the FBI prohibit videotaping the interviews and instead rely on summaries? The most obvious explanations do not cast a favorable light on the Bureau. If they don’t tape the interview, then the FBI agents can provide their own interpretation of what was said to argue that the interviewee made a false statement. Since the FBI agent is likely to be believed more than the defendant (assuming he even testifies), this provides an advantage to the FBI. By contrast, if there is a videotape, the judge and jury can decide for themselves.

…One might even argue this is unconstitutional under existing law. Under the Mathews v. Eldridge interpretation of the Due Process Clause, a procedure is unconstitutional if another procedure would yield more accurate decisions and is worth the added costs. Given the low costs of videotaping, it seems obvious that the benefits of such videotaping for accuracy outweigh the costs.

See also this excellent piece by Harvey Silverglate.

The New Cold War heats up, and it’s not mainly about the tariffs

The new American law, enacted on Wednesday and called the Reciprocal Access to Tibet Act, says the secretary of state, who is now Mike Pompeo, must within 90 days give Congress a report that lays out the level of access to Tibetan areas that Chinese officials grant Americans.

The secretary is then supposed to determine which Chinese officials are responsible for placing limits on foreigners traveling to Tibet and bar them from getting visas to the United States or revoke any active visas they have. The secretary must make this assessment annually for five years.

The goal of the law is to force Chinese officials to relent on the limits they impose on travel to Tibetan areas.

Here is more from Edward Wong at the NYT.  It is unlikely that this is a good idea.

Police in Philadelphia Stealing Houses

The Supreme Court is considering whether the Constitution’s ban on excessive fines applies to the states as well as to the federal government. If the SC needs more motivation to curb the abusive process of civil asset forfeiture they need look no further than Philadelphia. In a field filled with outrageous stories of injustice, the situation in Philadelphia where houses have been forfeit stands out.

A forfeiture petition for one property lists one gram of marijuana, a half gram of cocaine and some over-the-counter pills as justification for taking. In one case recently settled in a $3 million class-action lawsuit, Norys Hernandez nearly lost the rowhouse she and her sister owned after police arrested her nephew on drug dealing charges and seized the house. Another family named in the suit fought to save their house from the grip of law enforcement after their son was arrested for selling $40 worth of drugs outside of it. Of the lawsuit’s four named plaintiffs, three had their houses targeted for seizure after police accused relatives dealing drugs on the property. None of the homeowners were themselves accused of committing a crime.

As families fought to keep homes targeted by the DA, the revenues from the forfeiture sales became a big moneymaker for local law enforcement – netting some $6 million annually in the best years. The proceeds turned into an unregulated budget split between the police and DA. The money made off of the seized homes went to buy wish list items ranging from new submachine guns to custom uniform embroidery.

As if that weren’t enough, sometimes police officers were the buyers of the foreclosed properties! How’s that for demand creates its own supply?

“I am genuinely distressed to learn that the DA’s office permitted police officers to acquire forfeited homes of Philadelphians at public auction,” said University of Pennsylvania Law School professor Lou Rulli. “This disturbing revelation underscores one of many serious flaws in civil forfeiture — law enforcement is able to directly benefit from the actions they take to seize private property, often from lawful homeowners who have done no wrong.”

This story takes the cake:

Biddle recalled an instance, in 2007, when he purchased a property on the 5700 block of Chester Avenue for $21,000. To his surprise, he found a buyer just a few days later who was willing to pay nearly double that amount. He inked the sale.

At the next forfeiture open house, an incensed DA staffer, who by now knew Biddle on sight from his repeat visits to forfeiture auctions, approached him.

“They said, ‘That guy we took the house from? You just sold that to the guy’s mom,’” Biddle recalled. “They were pissed, but they knew I couldn’t do anything about it.”

Records show that it took the District Attorney’s Office three years to seize the property back, through a second forfeiture action filed against the pair.

This is from an excellent investigative report by Ryan Briggs.

Addendum: See also my piece with Makowsky and Stratmann forthcoming in the JLS, To Serve and Collect: The Fiscal and Racial Determinants of Law Enforcement.

Rational self-medication

We develop a theory of rational self-medication. The idea is that forward-looking individuals, lacking access to better treatment options, attempt to manage the symptoms of mental and physical pain outside of formal medical care. They use substances that relieve symptoms in the short run but that may be harmful in the long run. For example, heavy drinking could alleviate current symptoms of depression but could also exacerbate future depression or lead to alcoholism. Rational self-medication suggests that, when presented with a safer, more effective treatment, individuals will substitute towards it. To investigate, we use forty years of longitudinal data from the Framingham Heart Study and leverage the exogenous introduction of selective serotonin reuptake inhibitors (SSRIs). We demonstrate an economically meaningful reduction in heavy alcohol consumption for men when SSRIs became available. Additionally, we show that addiction to alcohol inhibits substitution. Our results suggest a role for rational self-medication in understanding the origin of substance abuse. Furthermore, our work suggests that punitive policies targeting substance abuse may backfire, leading to substitution towards even more harmful substances to self-medicate. In contrast, policies promoting medical innovation that provide safer treatment options could obviate the need to self-medicate with dangerous or addictive substances.

That is a new NBER working paper by Michael E. Darden and Nicholas W. Papageorgge.

The actuarial code of conduct, with David Wright

David posts:

While my interview guests are getting settled in I occasionally ask them to read out some of the actuarial code of conduct and we discuss it. I’m assembling those clips into some content for my paid actuarial continuing education channel which all actuaries should check out (and get those CE credits before year-end!).

When I did this with Tyler my little warmup act turned into an impromptu Conversations with Tyler where we explore what it means to be an actuary and whether he and I might start a competitor organization! We end with a discussion of fronting and I missed an opportunity to talk about fronting can enable competition among insurers but that will have to wait for another day!
Listen to the (10 min) clip here!

There is also a transcript at the link.  For some time now I’ve believed that the best podcasts would be the pre-podcast discussions held right before the podcast proper starts.

A social credit system for scientists?

Researchers in China who commit scientific misconduct could soon be prevented from getting a bank loan, running a company or applying for a public-service job. The government has announced an extensive punishment system that could have significant consequences for offenders — far beyond their academic careers.

Under the new policy, dozens of government agencies will have the power to hand out penalties to those caught committing major scientific misconduct, a role previously performed by the science ministry or universities. Errant researchers could also face punishments that have nothing to do with research, such as restrictions on jobs outside academia, as well as existing misconduct penalties, such as losing grants and awards.

“Almost all aspects of daily life for the guilty scientists could be affected,” says Chen Bikun, who studies scientific evaluation systems at Nanjing University of Science and Technology.

The policy, announced last month, is an extension of the country’s controversial ‘social credit system’, where failure to comply with the rules of one government agency can mean facing restrictions or penalties from other agencies.

The punishment overhaul is the government’s latest measure to crack down on misconduct. But the nature and extent of the policy has surprised many researchers. “I have never seen such a comprehensive list of penalties for research misconduct elsewhere in the world,” says Chien Chou, a scientific integrity education researcher at Chiao Tung University in Taiwan.

By David Cyranoski in Nature, via Michelle Dawson.

The Brexit equilibrium

Theresa May has survived, but enough Tories have credibly indicated they won’t support her Brexit plan at least not yet.  She doesn’t want Hard Brexit and doesn’t hate Remain, if the latter can be done sustainably.  She could threaten those Tories with a new election or with a second referendum.  If I were her, I would prefer the latter, as who would want to bring Jeremy Corbyn into the picture?  Nonetheless I don’t think she favors a second referendum per se (too hard to control and manage, no matter what the result).  The threat of a second referendum will be brought to the table, and that means some chance it will happen.  Right now the second referendum contract is selling at 36 cents on the dollar.  That seems correctly priced to me, with the more likely outcome being that enough Conservative MPs fall into line and Theresa May gets her way, more or less.

Why I disagree with Scott Sumner on China

U.S. government investigators increasingly believe that Chinese state hackers were most likely responsible for the massive intrusion reported last month into Marriott’s Starwood chain hotel reservation system, a breach that exposed the private information and travel details of as many as 500 million people

Story here.  And:

Armed with a rich array of personal data, an intelligence agency can also tailor an approach to a person to see whether the individual can be recruited as a spy or blackmailed for information. The passport data, which is not often collected in data breaches, probably was a particularly valuable find for the hackers.

You will note that no one is trying to sell the data.  And this:

The report, citing two people briefed on the investigation, reported China had launched an intelligence-gathering campaign which included hacking into health insurance companies and hacking security clearance files of millions of people living in the U.S. The New York Times reported the hackers are believed to be employed by the Ministry of State Security, which is China’s spy agency. The paper noted that the revelation that China was behind the Marriott hack comes as the U.S. government is gearing up to launch actions against China’s trade that include indicting Chinese hackers that work for the government. The New York Times noted the Marriott hacking isn’t expected to be part of the indictments but does add a sense of urgency to the moves the White House was mulling.

The Trump administration is also planning on declassifying intelligence reports that show China had been trying to create a database of American executives and government officials that have security clearances, reported The New York Times.

I could go on.  I am genuinely unsure what are the economic costs of these mischievous activities, but would note simply that it is sometimes necessary to punch back.  The choice is not free trade vs. protectionism (I strongly suspect Scott and I agree on the economics of trade), but rather a partial return punch now vs. a worse situation much later on.

Sorry people, but I will always be an independent…

Senate Democrats are pushing back against attempts to pass a compromise bill in the lame-duck session that could speed the introduction of driverless cars onto U.S. roadways, saying it lacks safeguards that would protect drivers.

Link here, and I’m sure you know the House Democrats don’t want to pass the new NAFTA.

Elsewhere, in Chicago, the war on democracy continues:

To get on the ballot, Krupa was required to file 473 valid signatures of ward residents with the Chicago Board of Elections. Krupa filed 1,703 signatures.

But before he filed his signatures with the elections board, an amazing thing happened along the Chicago Way.

An organized crew of political workers — or maybe just civic-minded individuals who care about reform — went door to door with official legal papers. They asked residents to sign an affadavit revoking their signature on Krupa’s petition.

And the background?:

The David is David Krupa, 19, a freshman at DePaul University who drives a forklift part time. He’s not a political powerhouse. He’s just a conservative Southwest Side teenager studying political science and economics who got it in his head to run for alderman in a race that pits him against the most powerful [Democratic] ward organization in Chicago.

Here is the story, it’s not just North Carolina where electoral law is treated with less than the utmost respect.

p.s. if you think or write “false equivalency” in response to this post, you fail the Intellectual Turing test.

Don’t arrest Chinese CFOs and CEOs

That is the topic of my latest Bloomberg column, here is just one short excerpt:

In the longer run, bringing charges against Meng is likely to accelerate the division of the world into two competing systems of law, technology and commerce — namely those of China and the U.S. That will encourage international relations to develop along the dimension of power — what can you get away with? — rather than law or orderly cooperation. The West’s dirty little secret is that the rule of law works well only when tempered with a high degree of discretion.

And:

At the margin, the legal reach and police power of the U.S. can always be invoked to fight another crime or resolve another corruption problem. Don’t like how FIFA — the international soccer federation — is being run? Get the U.S. in on the act. There are in fact laws that gave the U.S. jurisdiction over bad FIFA practices (wire fraud, racketeering, and money laundering), and the Department of Justice led a successful anti-corruption case starting in 2015.

That enforcement action seems to have gone fine, but where to stop? There a lot of wrongdoers who are connected, in one way or another, to the U.S. financial system. But America has more credibility as global policeman when it focuses on only the most pressing cases, such as when innocent victims are being killed.

Best yet, I offer remarks on Brexit as well.

*The Horn of Africa: State Formation and Decay*, by Christopher Clapham

A splendid book, why can’t the rest of you ****ers write books this good?  Here is one bit:

…the dynamics of clan works in a significantly different way in Somaliland from the way it does in south-central Somalia.  A single clan-family, the Isaaq, occupy the central areas of the territory, and account for by far the greater part of its population.  Though the Isaaq clans, inevitably, are divided both between and within themselves, they provide a reasonably solid ethnic core, that contrasts with the far more mixed and complex composition of southern Somalia, with its two major clan-families, Darood and Hawiye, and the further problems created by the presence of the Digil-Mirifle and other minority groups.  Somaliland is by no means entirely Isaaq…but its demographic structure means that other clans must either accept Isaaq hegemony and work within it, or else reject the Somaliland state altogether.  They cannot expect to control it.  At the same time, the fact that the Isaaq clans — characteristically of Somali clan politics — do not form a single united bloc provides other clans with the opportunity to build alliances with one or another group of the Isaaq.

Have you ever wanted to read about how ethnic groups in Ethiopia, Eritrea, and Djibouti fit into this same broad picture?  Just exactly how Somalian and Ethiopian history intersect, from the 1970s onwards?  This here is your book.  I’m running to Amazon right now to buy more from this wonderful author.  You can buy it here.

My Conversation with Paul Romer

Here is the audio and transcript, Paul was in top form and open throughout.  Yes economic growth, blah blah blah, but we covered many related topics too:

COWEN: And you also think we should simplify the English language. Right?

ROMER: [laughs] Well, there’s two parts to that. One is, in writing and communication, there should be a very high priority on clarity. It’s hard to know what’s the mechanism that enforces that. There are variants on English, like the English used to write the manuals people use to service airplanes, where there’s a very restricted vocabulary. The words are chosen so that you can’t have any ambiguity because you don’t want somebody servicing a plane to get confused. So there are some things you could do on writing, word choice, vocabulary, exposition.

There’s a separate issue, which is that amongst the modern languages, English has the worst orthography, the worst mapping between spelling and sounds of any of the existing languages. And it’s a tragedy because English is becoming the universal second language.

The incidence of people who don’t learn to read is substantially higher in English than in other languages. People have known for a long time, it takes longer to learn to read in English because of the bad orthography. But what hasn’t gotten enough attention is that there’s an effect on the variance as well. There are more people who never get over this hurdle to actually learning to read.

If there were a way to do in English what they’ve done in other languages, which is to clean up the orthography, that could make a huge difference in the variation associated with whether or not people can learn to read English.

And:

COWEN: Can a charter city work if we import good laws from the outside world but not the appropriate matching culture?

ROMER: You’ve zeroed right in on the connection. The real motivation that I had for charter cities was exactly this one that you can see in the US versus New Zealand. You can think of a charter city exercise . . .

This is actually the story of Maryland: We’re going to create laws, and we’re going to guarantee freedom of religion in Maryland, and it’s in the laws; it’s in the institution somehow. That didn’t turn out very well. Maryland had a Catholic elite but then large numbers of Protestant indentured servants or workers. And this kind of commitment to freedom of religion was not stable in Maryland at all.

The case that’s worth trying to copy is Pennsylvania, where William Penn recruited large numbers of people who actually believed in freedom of religion. The word charter comes from the charter that Penn wrote for Pennsylvania, but it wasn’t the document that mattered. What mattered was that there were a bunch of people in the founding population who were committed to this idea of a separation of church and state and religious freedom. And that’s what made it durable in Pennsylvania in a way it wasn’t in Maryland.

And this:

ROMER: …Moses was of this generation that was too enamored of the car, and this is where I think Jacobs had a better intuition. But the challenge, the dichotomy I would pose would be Jane Jacobs versus Gouverneur Morris.

Morris was the guy who drew the grid that laid out the rectangular street map for Manhattan.

We also discussed music, including Hot Tuna, Clarence White, and Paul’s favorite novel, dyslexia, what Paul has learned about management, and much more.  Self-recommending, if there ever was such a thing.

Scott Sumner on China and trade and me, and why it really is all about geopolitics

The first bit is mine, the second is his commentary, link here:

[TC] This [China] is an issue that predates Trump, and he deserves some credit for doing something to help solve it.

[SS] Everything in that paragraph is completely correct–except the last portion of the final sentence, which is wrong.

Scott’s is a common view in free market circles, so it’s worth outlining why I see things differently.  Like it or not, the United States is the global hegemon.  In my view this is an overall positive, but for our purposes today let’s just take it as given.

If you are the global hegemon, and another country, largely hostile to your political values and geopolitical desires, engages in widespread subversion of your power and influence, you must in some way hit back.  Otherwise you will not be global hegemon for much longer.  And unlike India or the EU, China desires to build an international political and economic order which would destroy liberalism as we know it.  Imagine a world where autocracy is a much more widespread norm, the Xinjiang detentions and North Korean nuclear weapons are considered entirely appropriate behavior, Taiwan is a vassal state, and few Asian countries could allow their media to print criticism of the Chinese government, for fear of retaliation.  Institutions such as the WTO would persist only insofar as they created loopholes which gave China the benefits of membership without most of the obligations.

Did I mention that politics in Australia and New Zealand are subverted regularly and blatantly by Chinese influence and money?  Very likely the same is underway in the United States (and other countries) right now.

You can put aside trade practices altogether, and simply look at the extreme and still under-reported degree of espionage and spying conducted by China, aimed at major U.S. corporations.  It’s not quite an act of war, but it is not the classical model of trade either (“Mercantilism is bad…what’s wrong if they send us goods and we just send them back paper dollars?”).  China is violating U.S. laws on a massive scale, and yes, I am sorry to say, trade is our main way of “reaching” them and sending a message.

Some kind of push back is needed, and I find it striking how much Westerners — and this includes free market types — who have lived in China full-time tend to agree with this conclusion.  It is also striking how many market-oriented economists, usually from the outside, don’t talk much about this issue at all.

That said, I fully agree that Trump has a poor understanding of economics, he is incapable of building the proper alliances, the benefits from Trump’s actions are likely to be marginal, and perhaps the best case scenario is simply that his provocations cause the Chinese to think twice before proceeding further along their current path.

Scott’s comparisons are with the EU and India, neither real rivals of the United States nor intended subverters of the Western economic order.  His p.s. is the part of his post that comes closest to my view:

PS.  There may be a few national security issues with China where sanctions are appropriate. I’m no certainly expert on high-tech espionage.  But that’s only a tiny faction of the trade dispute, and if it is a problem is better addressed through sanctions targeted at specific high-tech companies like Huawei.

I would have written “PS: For China, everything is a national security issue.  It is neither stable nor desirable for the world’s other major power to take exactly the opposite view.”

The Ethics of Resistance to State Injustice

The excellent Jason Brennan with a short introduction to his new book, When All Else Fails: The Ethics of Resistance to State Injustice:

Imagine a situation in which a civilian commits an injustice, the kind against which you believe it is permissible to use deception, subterfuge or violence to defend yourself or others. For instance, imagine your friend makes an improper stop at a red light, and his dad, in anger, yanks him out of the car, beats the hell out of him, and continues to strike the back of his skull even after your friend lies subdued and prostrate. May you use violence, if it’s necessary to stop the father? Now imagine the same scene, except this time the attacker is a police officer in Ohio, and the victim is Richard Hubbard III, who in 2017 experienced just such an attack as described. Does that change things? Must you let the police officer possibly kill Hubbard rather than intervene?

Most people answer yes, believing that we are forbidden from stopping government agents who violate our rights. I find this puzzling. On this view, my neighbours can eliminate our right of self-defence and our rights to defend others by granting someone an office or passing a bad law. On this view, our rights to life, liberty, due process and security of person can disappear by political fiat – or even when a cop has a bad day. In When All Else Fails: The Ethics of Resistance to State Injustice (2019), I argue instead that we may act defensively against government agents under the same conditions in which we may act defensively against civilians. In my view, civilian and government agents are on a par, and we have identical rights of self-defence (and defence of others) against both. We should presume, by default, that government agents have no special immunity against self-defence, unless we can discover good reason to think otherwise.

I think it helps in answering this question to think of other countries say South Africa under Apartheid or China today among the Uighur in Xinjiang province…then be consistent. Note that resistance to state injustice may be unwise even when it is ethical.