Corporate law and regulatory capture

My friend Secher Nbiw has written an interesting review of the film Capitalism Hits the Fan, on the current economic crisis and the likelihood that it can be fixed through regulation alone. The review (and my comment) is here.

False choices on health care

The current debate over health care reform has sparked another round of debate over whether, and how, disability should be taken into account when making health care decisions.

Since it would be unreasonable to expect the government to pay for every medical intervention that could conceivably improve a patient’s health, most serious proposals involve some metric for determining when an intervention is sufficiently ‘worth it’ to justify the expenditure (an aside: I find it rather irksome that this gets referred to as “rationing.” Unlike true cases of rationing, no serious proposals involve giving the government exclusive control over the supply of medical care. Moreover, people already don’t always have access to the medical care they would like to have; if federal health “rationing” is undesirable, then, it can’t simply be because the government makes decisions on which treatments to pay for, but rather whether people will in fact have fewer options after the federal health plan is passed).

There’s no end of debate, though, over what criteria the government should use in deciding which treatments to fund. We may agree that lifesaving treatments are more important than more minor interventions, but even then there seems to be a hierarchy among the types of lifesaving treatment: an intervention that extends someone’s life for three weeks is not as “worth it” as one that extends another person’s life for eight years. Extending a person’s life for eight years may, in turn, be less “worth it” if that person is unconscious for almost all of that time.

Enter ethicist Peter Singer and his proposal to revive the QALY, or Quality Adjusted Life Year. It’s a simple concept: take the number of years a treatment is likely to add to someone’s life, and multiply it by their expected “quality of life” during that additional time. But, as the disability community has pointed out, when disability is factored into the quality of a patient’s life for QALY purposes, you get a system in which a treatment that’s near the cutoff – say, a new, expensive form of heart surgery – may be offered to able-bodied patients but denied to patients with serious disabilities. This is why the Bush administration declined an Oregon Medicaid waiver proposal that incorporated QALY system, arguing that it violated the Americans with Disabilities Act.

This time around, Singer at least acknowledges that determining the extent to which a disability decreases one’s quality of life is pretty difficult, especially considering that able-bodied people consistently overestimate how unhappy they would be if they became chronically disabled. So this time, he’s got a brilliant solution guaranteed to endear him to the disability rights crowd: just ask disabled people how many years of their life they’d give in order to be nondisabled! He even acknowledges that maybe – just maybe – people with quadriplegia wouldn’t want to give up a single year of their life in order to become non-quadriplegic, in which case quadriplegia should not be taken into account for QALY calculation purposes. But then again, he warns, in that case, nobody would fund any medical interventions to prevent or cure such disabilities, because clearly they don’t have much of an effect on patients’ quality of life. Quite the dilemma. But a false one.

First off, Stephen Drake of Not Dead Yet has already pointed out that, in fact, people with disabilities aren’t as interested in funding for ‘cures’ for disability as Singer seems to assume they are in this article. That point alone, though, doesn’t fully expose the flaw in Singer’s reasoning. If we were to buy Singer’s implicit assumption – that we should spend money on prevention or cure of a physical condition if, and to the extent that, people with that condition would be willing to give up some amount of their future life in order to be free of it – then saying “yeah, people are overly obsessed with prevention and cure of disability” would imply that people with disabilities would be willing to give up a little of their future lives to cure their disability, just not as much as most nondisabled people would expect. Clearly that’s not what Drake would want us to conclude  (in fact, he points out right afterward that the whole framework is problematic).

So what is wrong with this argument, other than its apparent overestimation of how much it actually sucks to have a disability?

First, let’s note that only a philosopher (that is, someone unaccustomed to actually implementing social plans) could have come up with as impractical a proposal as “let’s just ask the disabled people how much worse their lives are.” Suppose such a plan is in fact adopted. The first thing the Department of Health and Human Services would have to do, then, in order to make a useful QALY guide is solicit information from people with disabilities on how much worse off they are. My guess is that even if a significant number of people with quadriplegia would be willing to give a year or so of future life in order to be able to walk, not many of them are going to think to themselves “hey, let me volunteer that information to HHS so that they can take that into account when deciding whether it’s worth it to pay for my health care.”

Singer could counter that this perverse incentive will be offset by the fact that, if people say that the quality of their lives isn’t changed at all by their quadriplegia, then HHS won’t spend money for prevention or cure of it either. This, of course, ignores the fact that, like many disabilities, quadriplegia itself lowers life expectancy, so an intervention that prevented a healthy person from becoming quadriplegic would still be potentially worth it under a QALY analysis.

Even if it didn’t, though, it would not be the only physical condition that people might consider as having some bearing on quality of life despite the fact that people with the condition don’t think their lives are worth less to them as a result of it. Suppose Amy contracts breast cancer, and due to late detection, needs a double mastectomy. This makes her unhappy, so she dedicates herself to volunteering and fundraising, not only for early screening programs, but also for better medical research to find safe alternatives tototal mastectomies. This seems like a perfectly rational, and common, response. But it would be nonsensical to infer from Amy’s belief that such screenings are worth the money that she would give up any appreciable portion of her life in order to have her breasts back. In fact, the very fact that she consented to a mastectomy in order to extend her life seems to negate that inference.

In fact, there are plenty of things that we consider important enough to spend significant money and resources on, that we nevertheless wouldn’t take into account when determining whether it’s worth it to extend someone’s life. To use an obvious example, look at poverty: people in poverty clearly have a diminished quality of life, and many people justifiably spend a lot of time campaigning against it. But most people, I imagine, would not give up years of their life in order to not live in poverty (or at least wouldn’t say they would in response to a direct question about it), and clearly Singer doesn’t think that poverty should be taken into account when deciding who gets health care treatment: in fact, the whole point of his health care rationing plan seems to be an attempt to take people’s economic resources out of the health care decisionmaking process. Similarly, we all may agree that having been abused as a child tends to make one’s adult life less pleasant and that preventing child abuse is a good idea, but would we really take that into consideration when deciding whether an abuse survivor gets heart medication?

What is it about disability, then, that makes life so qualitatively less pleasant that it’s worth considering when deciding who gets medical treatment even though other disadvantages aren’t? Perhaps it’s because Singer sees disability as a medical issue, and therefore as the same “type” of problem as the medical conditions for which a patient is seeking treatment. Even then, though, I could think of plenty of physical conditions that would make my life less pleasant but that Singer probably wouldn’t want to consider in determining whether I get lifesaving treatment. Infertility, for example. Or migraines. Or chronic acne. Or an allergy to soybeans. Or a crooked nose. I could even prove that some people would voluntarily shorten their lives in order to not have to deal with them – people may opt, for example, for infertility treatment that involves general anesthesia, which has a small chance of causing death. What is the qualitative difference, in Singer’s mind, between a person with one of these conditions and a person with a disability? It can’t just be a matter of degree, or else these things would be considered in Singer’s hypothetical system, just not to a very great extent.

My guess is that there is none – that Singer’s theory is, in fact, simply internally inconsistent. Sadly, even rather smart people seem overly willing to consider discriminatory policies “rational” so long as the groups that are disadvantaged are the ones we’re trained to expect not too fare too well in the first place.

Fraud against the elderly

Hello world -

I’ve spent the last several months graduating from law school and moving instead of posting to Whoselaw. I hope to start posting regularly here again soon.

My first “welcome back” post is going to be this link to this lovely piece on fraud against the elderly, recently published in the Elder Law Journal (link to SSRN) and featured in the Situationist Blog. The article examines many of the cognitive biases that financial scammers exploit when they target elderly individuals and argues that education-based interventions against financial crime will be ineffective because they fail to address these biases.

This has become a personal issue for me because scammers (and also telemarketers) have been recently targeting my grandmother. Like the individuals discussed in Barnard’s piece, she is financially savvy and fiercely independent – not the type to want to listen to an educational program (“what, do you think I’m an idiot?”). Still, she talks at length to telemarketers and has been repeatedly baffled by lottery fraud letters she receives, telling her that she has won some well-known sweepstakes but must first pay “taxes” before receiving her prize.

Aside from increased enforcement, I wonder if education-based interventions would work better if senior citizens like my grandmother could envision themselves as not potential victims but rather potential law enforcers. Few people targeted by scams are the only ones at risk from those scams, so alerting the police even when you receive a solicitation for a fraudulent scheme is likely to protect other people (as long as the police actually act on this information, which I’ll discuss in a bit). My grandmother (like a lot of people) does not like to see herself as someone who needs to be protected, but will respond well if she thinks she’s protecting others less competent than herself. Framing educational programs, at least in part, as about catching criminals and protecting others is likely to attract a lot more of the independent, financially savvy types who, ironically, are the most likely to themselves be the victims of fraud. And, of course, vigilant and engaged citizens make law enforcement easier.

That said, such a program would have to be backed up with serious resources toward enforcing laws against fraud.  An enforcement system that relied primarily on fines, or that only prosecuted cases of completed, big-dollar fraud, would give senior citizens an inadequate incentive to report attempted fraud. Would-be crimefighters need to believe that the police will act on their tips, and that as a result, a criminal will be “taken off the street” or otherwise prevented from victimizing others in the future.

The lottery scammers who targeted my grandmother are a good example of this: these people were conducting their scheme through the mails (from Canada, it turns out), and had indicated a return address to which “taxes” should be sent. It would not be too difficult for police to simply stake out the post office box indicated in the letter and arrest anyone who came to check it. This type of technique is routinely used for drug traffickers; why not use it on people who try to steal from our parents and grandparents? Is it simply because we think that with all the educational programs there are out there, anyone who falls for this type of thing is “stupid” enough to deserve it?

Stimulus package

AAPD is calling for people to write their congresspeople in support of keeping funding for independent living centers in the stimulus package.

Here’s what I wrote:

Dear Senator/Representative,

I am writing to you to express my support for the Independent Living provisions in the proposed economic stimulus package.

These provisions will create thousands of jobs for caregivers. Creating caregiving jobs is particularly important because these jobs are most often taken by women. While I support greater efforts to encourage women to take jobs traditionally occupied by men, it is nevertheless important to acknowledge that the other, more construction-related jobs created by the stimulus package will primarily primarily benefit men, leaving women’s unemployment relatively unaffected. Women, particularly mothers, suffer disproportionately from economic distress and will need jobs too.

Second, Independent Living Centers will improve the standard of living for America’s disabled population. Not only will they help help many people with disabilities reenter the work force, but also they will enable many family members of people with disabilities return to work, as they will no longer be forced to stay at home with loved ones who need full-time care.

Finally, Centers for Independent Living save state budgets hundreds of millions of dollars a year by helping people stay out of institutions and in the community.

Thank you for your attention, and I hope that a satisfactory stimulus bill can be passed as soon as possible.

Speaking of independent living and the AAPD blog, there’s also a good article here on Hillary Clinton’s approach to disability rights as part of US foreign policy. Clinton compares her approach to disability rights as part of foreign policy to her feelings on women’s rights, “not as an afterthought, not as an adjunct, but in recognition of the fact that we know from a myriad of studies and research that the role of women is directly related to democracy and human rights.”

RIP Barry Baker

UK paramedics were recently caught on tape discussing their decision to simply let a disabled, overweight man die and claim that he was dead when they arrived, instead of rescuing him. They apparently based their decision on the man’s weight, disability, and the relatively unkempt state of his house.

Fortunately in this case the offending emergency workers were caught on tape; however, there is no telling how often this type of incident occurs without anyone ever finding out.

Economic stimulus and people with disabilities

AAPD’s JFActivist blog has posted a set of suggestions for making the stimulus package more stimulating for people with disabilities, which cites and builds on truthout.org’s more general list.

Obama and Biden have warned that there should be no earmarks in the stimulus package, but when the economy is made up of diverse people with diverse economic needs, what will be considered an “earmark”? Some of AAPD’s members’ suggestions, like “fund a massive nationwide disability awareness campaign,” may well be seen as interest-group jockeying for earmarks, but others, like “build accessible housing to put the housing industry back to work,” have more direct economy-stimulating applications. Will politicians take the “no earmarks” message and avoid all programs that are aimed at helping distinct minority groups, thus “stimulating” only those with “mainstream” economic needs and behaviors? How can we effectively stimulate the economy while leaving minority groups, such as people with disabilities behind (especially given the sheer number of people in the US who either have a disability or are caring for someone with a disability)?

Why do we recognize human rights?

There’s an interesting post and discussion on What Sorts of People Should There Be? on he philosophical basis for according rights to severely cognitively disabled humans while denying them to intelligent animals such as dolphins and apes. Joseph Singer has argued that such a distinction is a speciesist one, and that in order to avoid speciesism we must simultaneously lessen legal protections for people with very low IQ scores while heightening them for intelligent animals. There are a number of potential objections to Singer’s argument, as the original poster points out, but it is somewhat more difficult to come up with an alternate one.

Here’s my take, which I originally posted as a comment on WSOP (since-added thoughts in italics):

I actually struggled with this question since I identified as an animal rights advocate before I identified as a disability rights advocate, but still believe that it is less horrifying for people to eat cows than for people to eat cognitively disabled infants. My reasoning has gone as follows:

I consider myself a being worthy of moral consideration and good treatment. I know that at some point in my life, I may lose many cognitive functions, potentially even to the point where I am listed as “profoundly” cognitively disabled by Singer’s terms. The thought of losing moral rights at this same time horrifies me. The reason it horrifies me is because my sense of continuous personhood is not based on my ability to do complex tasks but on subjectivity. If someone hurts me, I rarely think to myself “it is so wrong that this person is hurting me. Does this person know the kind of higher-order reasoning I am capable of?” I think “ow.” Higher-order thought, like “use of tools,” “advanced technology,” and “ability to form abstract moral judgments,” seems to me to be only relevant as one of those post-hoc rationalizations for privileging an already-privileged group that appears to have a monopoly on a particular trait.

I am assuming (for lack of proof to the contrary) that people who become cognitively disabled continue to have emotions and feel pain in the same way they had before. There is also no reason to make a distinction between people who become disabled and people who were born disabled, since what matters is not that there *was* ability in the past but whether there *is* subjectivity in the present, and it would be odd to assume that people who were always disabled have no subjectivity while people who became disabled have no subjectivity.

Of course then we come to the question of whether this subjectivity is shared with animals. The answer, though, is that since people do not become animals and then transform back into people as frequently as people gain (and sometimes recover from) a cognitive disability, it is harder to say exactly what it feels like to be an animal. Many animals clearly have some subjectivity and therefore deserve protection from cruel treatment, but we as a society are able to at least feign ignorance on animals’ inner lives in order to keep up the assumption that animals are somehow different from humans.

This is somewhat of an unsatisfying answer, and its grounds for according rights to people with cognitive disabilities may be troublingly derivative from the rights of people without disabilities, but I’m aiming to be descriptive, and I don’t that a dominant group has ever ended up believing another group has rights without comparing the groups to each other and finding a relevant similarity. The best we can do is look for similarities that seem actually relevant.

New Milgram research

The Situationist Blog recently posted about an interesting new study on the human ability to inflict pain on others.

Dominic J. Packer, of Ohio State University, performed a statistical meta-analysis on several of the original Milgram experiments, in which experimental participants were asked to administer progressively severe electric shocks to another individual (the other person was in reality an actor who was not in fact receiving shocks). Despite the victim’s expressions of severe pain, pleas to be released, and, eventually, silence, over two-thirds of participants continued “shocking” the victim up to 450 volts. These participants were not sadistic or callous – in fact they usually showed signs of extreme distress – but were unable to resist the persistent directions of the researcher that the experiment “must” continue.Ethical concerns prevent psychologists from conducting this type of study again, at least not in the same exact form. However, Packer was able to statistically analyze eight studies that Milgram performed several years ago.

The meta-analysis indicated that of the participants who disobeyed, about 37% did so at 150 volts, which is when the “victim” first asked to end the study. Considering that there were 28 other potential moments where the participants could have stopped, this size of a cluster around 150 volts is very significant.

The other most common points of disobedience were at 315 volts, 300 volts, and 180 volts. However, although the overall level of disobedience varied across the eight studies, most of this variation happened at 150 volts, while the rate of disobeying at other points stayed largely the same across the different studies. Thus, a variation in the experiment that made people more likely to disobey, did so by making people more likely to disobey when the learner first asks to leave, not at some other point.

But wait, there’s more: psychologist Jerry Burger, of Santa Clara University, has recently replicated Milgram’s experiment. As I pointed out above, ethical rules prohibit psychologists from performing experiments identical to Milgram’s, so Burger’s experiment ended after the 150-volt mark. As in the original experiments, a great majority of the subjects administered the 150-volt shock – despite the victim’s request to leave – and would have been willing to continue had the experiment not been stopped.

Packer calls attention in his study to its potential implications in situations where potential victims have no recognized right to leave a particular situation, such as treatment of prisoners. Since participants did not seem to respond to escalating expressions of pain, it is not reasonable to expect interrogators to stop an interrogation practice when it appears to be too painful. But the study may be even more relevant to the treatment of people (especially children) with disabilities, whose protests to abusive treatment are frequently ignored and dismissed.

It could, for example, shed light on an incident where a prank phone call lead caretakers of children with disabilities to shock them dozens of times within a few hours. In that particular group home, electric shock was used as an “aversive therapy” for those children, authorized through a “substituted judgment” proceeding through which a judge decides that the child “would have consented” to the treatment were they competent to make such a choice. This is even worse than an interrogation situation, where victims’ requests to end interrogation are simply not respected; in the case of these children, at no point are the child’s protests and attempts to avoid the shock even considered the child’s own choice.

Alternately, we can imagine (rather optimistically) that in situations where people aren’t paying attention to requests to stop, they may compensate by paying attention to other factors. For example, the people who ended the experiment at 150 volts may have reasoned until that point that their victim was implicitly consenting to the shocks by not asking to be let free; these people may have been more attentive to other signals that it’s “time to stop” if they know the victim is unable to make such a request or have been told to disregard such requests as illegitimate or inauthentic. It may seem hard to imagine such a result given the widespread level of abuse against people with cognitive disabilities, but remember that even the Milgram experiments, the majority of participants ignored the requests of an apparently competent adult to end the experiment. Thus, even if people do begin focusing on other factors when their victims are unable (or have no right) to ask them to stop, we wouldn’t necessarily expect most people to actually stop. That said, I don’t if any studies have been done that would support or refute this theory.

Overall these two studies emphasize the vulnerability of people whose choices, even choices to avoid pain, are disregarded or seen as not really their own. Although the choices of even perceived “competent” choice-makers are often disregarded in the face of authoritarian pressure, it is respect for those people’s choices that seems most important in causing people to resist those pressures. Take away that respect, and hope of humane treatment could grow incresingly dim.

FDA lists concept for handgun for people with disabilities

Discovery.com discusses the recent FDA listing of a handgun for people with disabilities.

I’m not particularly concerned about this new invention from a gun control standpoint; people with physical disabilities come in all political stripes, and many may feel that they need firearms in order to avoid becoming easy targets for violence. But why, again, does the FDA need to list it as a medical device? According to an FDA employee:

“This allows someone to do something that a normal person can do. It allows them to overcome some disability to act in a more normal way.”

The FDA’s definition of “medical device” includes instruments “intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in man or other animals.” This is the only part of the definition that could conceivably cover this handgun.

In some sense, the gun does “mitigate” a disease that causes disability, as could any everyday tool that’s adapted to be used by people with disabilities. But the same is true of large-print textbooks, Kurzweil machines, segways, and my voice recognition software. At what point does a product that is usable by people with disabilities become a “medical device”?

If the FDA begins to assert broader authority to regulate everyday products that have adaptive features, it could have a deterrent effect on companies interested in developing them. Why take the time to make a handgun that is regulated by both the FDA and the Bureau of Alcohol, Tobacco, and Firearms and that has a very limited target market, when you can just continue focusing on handguns that are only regulated by ATF?

Prioirites and Proposition 8

On November 4th, voters in California approved Proposition 8, an amendment to the state Constitution that bans same-sex marriage. Since then, more has been written about the Proposition than in the months before it passed. Before the election, political writers more or less assumed that their readers had made up their minds about same-sex marriage, so there was little to write except perhaps to encourage their readership to donate campaign funds to either the “Yes on 8″ campaign or the “No on 8″ campaign. People were also distracted by the upcoming presidential elections, which was more complex and was seen as more important.

Now that Proposition 8 has passed, however, it’s become interesting. Writers still appear relatively uninterested in arguing over whether the new amendment is a good addition to California’s constitution, as readers still aren’t likely to be interested in changing their opinions about the issue. The question of why the proposition passed, however, is much more interesting, if only because everybody seems to have a different opinion. People have blamed the mismanagement of the “No” campaign, the Church of Jesus Christ of Latter-Day Saints, which funded much of the “Yes” campaign and may even have planned the campaign for several years. Some blamed homophobia in the African-American community, while others blamed the racial bias of the white gay community and the Proposition 8 campaign. Some have also argued that support for same-sex marriage is itself racially biased, since marriage is not a priority for gay, lesbian and bisexual people of color. Rather than focus on marriage, the argument goes, the queer community should focus on more pressing issues such as health care, HIV prevention, and economic justice.

This is not the first time that people have argued that same sex marriage is primarily a white issue. Interestingly, though, while earlier articles such as this one from 2004 had dealt with efforts to gain recognition for same sex marriage or efforts to block legislation that preemptively outlawed same sex marriage, Proposition 8 took away marriage rights that people already enjoyed. Should this fact alone change how we judge the priorities of people who campaigned against Proposition 8?

At first glance, campaigning against a constitutional amendment banning same sex marriage may seem relatively equivalent to campaigning for a referendum approving same sex marriage. Because California’s constitution may be amended by a simple majority of voters, it would only take a couple more votes to pass a referendum approving gay marriage than it would have taken to block Proposition 8.

However, taking away a previously held right is widely perceived as different from granting a new one. It is difficult for many to swallow the idea of taking away the rights of minorities through a simple majority vote, as Kermit Roosevelt of UPenn Law has pointed out. But if same-sex marriage advocates in California had put same-sex marriage on a statewide referendum three years ago, and it had lost by the same margin by which Proposition 8 has passed, few would be arguing that it should take a supermajority to defeat the referendum because the referendum concerned minorities’ rights.

The loss of rights is also perceived differently by the individuals whose rights are at stake. As Judith Warner writes in her blog for the New York Times:

It’s easy, if you’re straight, to file away the gay marriage issue in a little folder in your mind, to render it, essentially, inessential. It can fall into the category of “bones you throw the religious right because things could be so much worse.” Or “things that would be great in a perfect world.” Or “what’s the big deal?” because you don’t actually get what a big deal it is to be able to get married when you’ve never had to consider the alternative.

Many of the gay men and lesbians I spoke or e-mailed with this week didn’t fully realize what a big deal it was to be married either. Until they were.

“I don’t think I had realized until then what it felt like to be equal,” Swanson told me. “Paul and I went on a honeymoon in Santa Fe. People would ask and we’d say we’re on our honeymoon; we just got married. We could say it not because it was a political statement but because it was a fact.

“I don’t feel equal anymore. It was a great feeling, while it lasted.”

Because humans are fundamentally loss-averse: we tend not to feel as strongly about gaining new rights or privileges as we do about losing ones that we had, even for a short period of time. Even some gays and lesbians in California who had no plans to marry may not have felt as strongly about Proposition 8 as those who had already gotten married or engaged. Loss aversion explains why opponents of Proposition 8 donated millions of dollars more to the No on 8 campaign than it most likely cost the attorneys for the plaintiffs in the California Supreme Court decision to pursue their legal case. Conversely, it explains why proponents of Proposition 8, even if they had been planning such an effort for years, put the proposition on the ballot only after the California Supreme Court issued its decision: opponents of same-sex marriage were motivated to canvass donate money to the campaign by their fear of “losing” the traditional family and various religious freedoms.

This loss aversion may also explain some of the disconnect between those who felt strongly about Proposition 8 and those who saw the issue as a pointless diversion from more pressing issues. When evaluated side by side, issues such as poverty, lack of health care, HIV, or housing may overshadow the effort to have the state recognize same-sex couples as spouses and not merely domestic partners. As Jasmyne Cannick, the author of the article I linked above, asked, “Does someone who is homeless or suffering from HIV but has no healthcare, or newly out of prison and unemployed, really benefit from the right to marry someone of the same sex?” But even those who consider health care, economic and justice, and corrections reform higher priorities than marriage in the grand scheme of things may expend more effort to preserve a right that they have – especially one that is relevant to their lives – than to change the status quo.