Category: Law

The three ideas you all are writing me the most about

1. Segregating old people, and letting others go about their regular business.  Given how many older people now work (and vote), and how many employees in nursing homes are young, I’ve yet to see a good version of this plan, but if you favor it please do try to write one up.  One of you suggested taking everyone over the age of 65 and encasing them in bubble wrap, or something.

2. Tracking and surveillance by smart phones.  Here is one story, here is another.  Here is an Oxford project.  Singapore is using related ideas, China has too.

3. Testing as many Americans as possible, or at least a representative sample, to get data.

I hope to analyze these more in the future.

The Coronavirus Killed the Progressive Left

That is the topic of my latest Bloomberg column.  Yes trolling, but trolling with the truth.  Here are scattered excerpts:

— The egalitarianism of the progressive left also will seem like a faint memory. Elites are most likely to support wealth redistribution when they feel comfortable themselves, and indeed well-off coastal elites in California and the Northeast are a backbone of the progressive movement. But when these people feel threatened in their lives or occupations, or when the futures of their children suddenly seem less secure, redistribution will not be such a compelling ideal…

— The case for mass transit also will seem weaker, because subways and buses will be associated with the fear of Covid-19 transmission. In a similar fashion, the forces of NIMBY will become stronger, relative to those of YIMBY, because people secure in their isolated suburban homes will feel less stressed than those in densely packed urban apartment buildings.

— There is likely to be much more government intervention in some parts of the health-care sector, but it will focus on scarce hospital beds and ventilators, and enforce nasty triage, rather than being a benevolent move toward universal coverage. If anything, it will drive home the message that supply constraints are binding and America can’t have everything — hardly the traditional progressive message.

— — The climate change movement is likely to be another victim. How much have you heard about Greta Thunberg lately? Concern over the climate will seem like another luxury from safer and more normal times. In addition, the course of anti-Covid-19 efforts may not prove propitious for the climate change movement. If the fight against Covid-19 suddenly improves (perhaps a vaccine working very quickly?), Americans may come to expect the same in the fight against climate change.

There is much more at the link, of course some of you will hate it.  And of course Sanders and Warren did not exactly dominate voter sentiment, and that was largely pre-Covid.

My Coronavirus Conversation with Russ Roberts

We recorded this two days ago on the spur of the moment, the discussion is still current, here is the transcript and audio, here is the CWT summary:

Tyler and Russ Roberts joined forces for a special livestreamed conversation on COVID-19, including how both are adjusting to social isolation, private versus public responses to the pandemic, the challenge of reforming scrambled organization capital, the implications for Trump’s reelection, appropriate fiscal and monetary responses, bailouts, innovation prizes, and more.

Russ is more optimistic than I am, here is one excerpt on the economic side:

COWEN: Well, two to four weeks [of shutdown], those are easy cases. If you think of many service sectors as having to shut down say until August, which is quite a possible scenario in some cases even later. That to me is greatly concerning and it may vary across sectors. So if you think about the NBA, whenever the NBA is ready to play games again, I mean the players will show up the next day and there’ll be ready, right? That will come back very quickly. But if you think of small businesses, say restaurants, the big chains aside, they’re typically thinly capitalized.

Let’s say a significant portion of those are gone forever. And then when things are somewhat normal again, how does the economy re-scramble and re-constitute the organizational capital that was in those ongoing enterprises? That to me is a hugely difficult problem and whatever you think the government should or should not do, just spending a lot on fiscal stimulus will not ease that problem. That’s the actual destruction going on is the relationships, the organizational capital, the intangibles that will decay. Not over two weeks, probably not over four weeks but over four or five months or longer. Then I think that’s a matter really of great concern…

But even in China where the number of new cases is really in most parts of the country, genuinely very low, they are not returning with live sporting events. Keep in mind we will have a pool of never infected people, which will be fairly large in absolute numbers and what risks we will be willing to take. Insurance companies would allow, our liability system and corporate lawyers would be willing to allow. When you think through all of that stickiness, I think we’re really not so close to resuming many of these shutdown activities.

There is much more at the link, we start off on the personal side and then move into the larger issues.

FDA senior scientists

“The White House considered issuing an executive order greatly expanding the use of investigational drugs against the new coronavirus, but met with objections from Food and Drug Administration scientists who warned it could pose unneeded risks to patients, according to a senior government official.

The idea to expand testing of drugs and other medical therapies was strongly opposed by the FDA’s senior scientists this week, the official said, and represented the most notable conflict between the FDA and the White House in recent memory.”

Ahem.  Here is the full WSJ piece.

Bullshit Patents

I wrote last year:

Despite never having built a working product, Theranos accumulated hundreds of patents. These patents are now the only thing of value left but the patents aren’t valuable because of breakthrough science, the patents are valuable because they can be used to force people who do breakthrough science to cough up part of their return.

Now, just as I predicted, some of these bullshit patents are being used to prevent a company that is working on Covid-19 tests. The logic is evil but impeccable. Sue a firm when time is of the essence. Moreover, you won’t be surprised that just about everyone involved is scraped from the bottom of the barrel. Theranos sold the patents which were bought by a patent troll owned by Softbank, the firm bankrolling the notorious WeWork disaster, and the law firm involved, Irell & Manella, once took a monkey for a client (literally, although PETA paid) in an infamously stupid copyright infringement dispute.

Mike Masnick who broke the story names the guilty and writes:

Honestly, I’m used to all sorts of awfulness, but this one piles awfulness upon awfulness, and takes it to a level of pure evil….I wonder how they sleep at night.

….I understand the need for zealous representation of a client in court, but this seems even more despicable than your every day patent trolling, and people should associate these lawyers names with the truly despicable behavior on display here. Similarly, it should be a reminder of why its a good thing that the Supreme Court decided a decade and a half ago that injunctions are often inappropriate in patent cases.

I do hope a sensible judge punishes this abuse.

Hat tip; Michael Pettengill.

What US Government should do regarding Covid-19

This is (by far) the best document I have seen on what to do on the medical side.  It is about 3 pp. long and I believe it will be updated periodically.  Excerpt:

  • Consider guaranteeing top tier treatment and ICU beds for people directly working on treatments or vaccines. We need to keep relevant science labs open. (They’re likely to be closed as things stand.)
    • No doubt logistically challenging but may be necessary. Can you get scientists to keep going without this?
  • Announce $10B prizes for first vaccine and for first cure.
    • Think about mechanics. Should there be awards for second place, too? How should collaboration be factored in?
  • Issue $1B of research grants to all competent labs and organizations that could plausibly use them. They just have to report on progress every 30 days and require that they actively share all progress with other labs.
    • Proposed structure: $100M to each of 5 companies.
    • $10M to each of 40 labs.
      • Remainder based on discretion.
    • Take what’s required for treatment cases and make an “open source” version whose bill of materials costs less than $1,000. Commit to purchasing at least 100k. Even if US turns out not to need them, donate to other countries.

The author is anonymous, but I know that he/she has followed the issue very closely from the beginning, and his/her predictions have been largely on the mark.  If you are in USG I am happy to put you in touch, just write me.

Again, here is the document, highly recommended.

A new proposal for coronavirus rebound

The $8 billion emergency spending bill to deal with coronavirus includes $3 billion that can be used for the research and development of a coronavirus vaccine or treatment. There’s a better way: The U.S. government should take advantage of the recent stock market plunge to incentivize firms to develop a coronavirus cure, vaccine, or other approaches.

We call this proposal the Epidemic Market Solution or EMS. The government should offer each of 10 firms stock options worth ten billion dollars if the Dow Jones increases by 15 percent over the next six months, and maintains that average increase over a month.

A coronavirus cure or vaccine would generate such an increase. For example, if a firm has $10 billion in options based on index funds, and a new cure or progress towards a cure causes the stock market to rise by 15 percent, the firm would make a profit of $1.5 billion. An even better response might be an increase in the market by 20 percent; in this case, the firm would make a profit of $2 billion.

That is from my old colleagues Linda Cohen and Ami Glazer at UC Irvine, and yes that is the Ami Glazer of Glazer’s Law.  Here is the full proposal.

Massive US Government Failure

NPR: Ashish Jha, who runs the Harvard Global Health Institute, says the response to the coronavirus has varied dramatically around the world.

…So how has the United States’ response been?

“Our response is much, much worse than almost any other country that’s been affected,” Jha says.

He uses the words “stunning,” “fiasco” and “mind-blowing” to describe how bad it is.

“And I don’t understand it,” he says incredulously. “I still don’t understand why we don’t have extensive testing. Vietnam! Vietnam has tested more people than America has.” (He’s citing data from earlier this week. The U.S. has since started testing more widely, although exact figures still aren’t available at a national level.)

…Jha believes that the weekslong delay in deploying tests — at a time when numerous other tests were available around the world — has completely hampered the U.S. response to this crisis.

“Without testing, you have no idea how extensive the infection is. You can’t isolate people. You can’t do anything,” he says. “And so then we’re left with a completely different set of choices. We have to shut schools, events and everything down, because that’s the only tool available to us until we get testing back up. It’s been stunning to me how bad the federal response has been.”

I too am stunned .

Michael Strain and Scott Gottlieb have policy proposals for coronavirus

Congress should make direct cash payments—mailed checks or direct deposits—to low-income households in places with severe outbreaks. Hourly wage workers should not feel compelled to show up to work sick because they need to pay bills. Congress can help these Americans recover and keep other people healthy by financing their time away from work.

In states experiencing severe outbreaks, Congress should waive the requirement that people receiving unemployment insurance payments look for work. Better that such unemployed workers receive financial assistance for rent, mortgages and groceries than to risk spreading the virus by applying and interviewing for jobs. Congress should also waive work requirements in the food-stamp program.

Children in low-income families will miss subsidized meals if schools are closed. Federal subsidies to those households should be increased to account for lost breakfasts and lunches. This might help relieve some of the pressure on low-income parents, who might otherwise feel the need to go to work even if ill.

Cash-strapped states may be reluctant to divert spending from other priorities toward health care, especially as more people use services. States that experience outbreaks may also lose tax revenue. Congress should increase the share of Medicaid spending financed by the federal government to alleviate the budget pressure.

So far the best proposals I have seen, here is more from the WSJ.  Note that paid sick leave can place a high burden on small and medium-sized businesses, here is a Yelowitz and Saltsman critique of paid sick leave, also WSJ.

The FDA and Coronavirus

The failure of the FDA/CDC to adequately prepare for coronavirus, despite weeks of advance notice from China is one of the most shocking and serious examples of government failure that I have seen in my lifetime. After being prevented from doing so, private laboratories are now allowed to offer coronavirus tests and Bill and Melinda Gates’s Foundation is working on an at home swab and test.

But what happens when people get sick? What drugs will patients be allowed to try given that there is no standard treatment available? One experimental antiviral, Remdesivir, was given to the first US patient who was on a downward spiral but seemed to recover after receiving the drug. Gilead, the manufacturer says:

Remdesivir is not yet licensed or approved anywhere globally and has not been demonstrated to be safe or effective for any use. At the request of treating physicians, and with the support of local regulatory agencies, who have weighed the risks and benefits of providing an experimental drug with no data in 2019-nCoV, Gilead has provided remdesivir for use in a small number of patients with 2019-nCoV for emergency treatment in the absence of any approved treatment options.

If Gilead is willing to supply, should patients have a right to try? This seems like a good case for the dual tracking approach proposed by Bartley Madden–let patients try unapproved drugs but collect all information in a public database for analysis. Clinical trials for Remdesivir and other potential drugs are currently underway in China.

Chloroquine, might also be useful against Covid-19. Chloroquine was approved long ago to treat malaria and physicians are allowed to prescribe old drugs for new uses. New uses for old drugs are discovered all the time and they do not have to go through long and costly FDA approval procedures before being prescribed for the new uses. Since chloroquine has never been tested for efficacy against coronovirus, allowing physicians to prescribe it is similar to allowing physicians to prescribe an unapproved drug like Remdesivir. The difference in how new drugs and old drugs for new uses are treated is something of a regulatory anomaly but a fortunate one as I argue in my paper on off-label prescribing.

I suspect that my arguments for less FDA regulation will be relatively well received during the current climate of fear. Bear in mind, however, that for the patient who is dying it’s always an emergency.

Hat tip: Balaji Srinivasan, who really would make a great FDA commissioner.

My avian flu blog days

Circa 2004 or so, it seemed to me that America was grossly underprepared for a possible pandemic.  I started reading up on the topic, and I produced a very basic, simple Mercatus policy paper on avian flu.  For obvious reasons, much of it is out of date and some of the recommendations have been adopted, but here is the first part of the Executive Summary:

1. The single most important thing we can do for a pandemic—whether avian flu or not—is to have well-prepared local health care systems. We should prepare for pandemics in ways that are politically sustainable and remain useful even if an avian flu pandemic does not occur.

2. Prepare social norms and emergency procedures which would limit or delay the spread of a pandemic. Regular hand washing, and other beneficial public customs, may save more lives than a Tamiflu stockpile.

3. Decentralize our supplies of anti-virals and treat timely distribution as more important than simply creating a stockpile.

4. Institute prizes for effective vaccines and relax liability laws for vaccine makers. Our government has been discouraging what it should be encouraging.

5. Respect intellectual property by buying the relevant drugs and vaccines at fair prices. Confiscating property rights would reduce the incentive for innovation the next time around.

6. Make economic preparations to ensure the continuity of food and power supplies. The relevant “choke points” may include the check clearing system and the use of mass transit to deliver food supply workers to their jobs.

7. Realize that the federal government will be largely powerless in the worst stages of a pandemic and make appropriate local plans.

8. Encourage the formation of prediction markets in an avian flu pandemic. This will give us a better idea of the probability of widespread human-to-human transmission.

9. Provide incentives for Asian countries to improve their surveillance. Tie foreign aid to the receipt of useful information about the progress of avian flu.

10. Reform the World Health Organization and give it greater autonomy from its government funders.

And also from later on:

4. We should not expect to choke off a pandemic in its country of origin. Once a pandemic has started abroad, we should shut schools and many public places immediately.

5. We should not obsess over avian flu at the expense of other medical issues. The next pandemic or public health crisis could come from any number of sources. By focusing on local preparedness and decentralized responses, this plan is robust to surprise and will also prove useful for responding to terrorism or natural catastrophes.

Still relevant today.  For a while I also wrote an avian flu blog with Silviu Dochia, archived here.

What Worked in 1918-1919?

The influenza pandemic of 1918 was the most contagious calamity in human history. Approximately 40 million individuals died worldwide, including 550 000 individuals in the United States...[C]an lessons from the 1918-1919 pandemic be applied to contemporary pandemic planning efforts to maximize public health benefit while minimizing the disruptive social consequences of the pandemic as well as those accompanying public health response measures?

That’s the question Markel et al. analyzed in 2007 by gathering historical data on outcomes and what 43 US cities, covering about 20% of the US population, did to combat influenza in 1918-1919.

Nonpharmaceutical interventions were considered either activated (“on”) or deactivated (“off”), according to data culled from the historical record and daily newspaper accounts. Specifically, these nonpharmaceutical interventions were legally enforced and affected large segments of the city’s population. [1] Isolation of ill persons and quarantine of those suspected of having contact with ill persons refers only to mandatory orders as opposed to voluntary quarantines being discussed in our present era. [2] School closure was considered activated when the city officials closed public schools (grade school through high school); in most, but not all cases, private and parochial schools followed suit. [3] Public gathering bans typically meant the closure of saloons, public entertainment venues, sporting events, and indoor gatherings were banned or moved outdoors; outdoor gatherings were not always canceled during this period (eg, Liberty bond parades); there were no recorded bans on shopping in grocery and drug stores.

The authors define “public health response time” as the number of days from the day the excess death rate was double baseline to the day that at least one of their three key public health measures was implemented. Cities that responded very early have a negative public health response time. The basic result is shown in the figure below. The longer the public health response time the greater the total excess deaths (the arrow is my least squares eyeball).

Moreover, although it’s difficult to control for other factors, cities that combined school closures, isolation and quarantining, and public gathering bans tended to do better. Some cities let up on their public health interventions and these cities seem to correlate well with bi-modal distributions in excess death rates, i.e. the death rate increased. Denver was an example where the public gathering ban was dropped and the school ban was lifted temporarily and the excess death rate rose after having fallen.

The authors conclude:

…the US urban experience with nonpharmaceutical interventions during the 1918-1919 pandemic constitutes one of the largest data sets of its kind ever assembled in the modern, post germ theory era.

…Although these urban communities had neither effective vaccines nor antivirals, cities that were able to organize and execute a suite of classic public health interventions before the pandemic swept fully through the city appeared to have an associated mitigated epidemic experience. Our study suggests that nonpharmaceutical interventions can play a critical role in mitigating the consequences of future severe influenza pandemics (category 4 and 5) and should be considered for inclusion in contemporary planning efforts as companion measures to developing effective vaccines and medications for prophylaxis and treatment. The history of US epidemics also cautions that the public’s acceptance of these health measures is enhanced when guided by ethical and humane principles.

Addendum: Another way of putting this is that China has largely followed the US model. Can the US do the same?