Author, professor and former state representative writing about politics, law, health care and culture

Asking the Right Question about Football

In his New York Times op-ed today, former Denver tight end Nate Jackson explains why the NFL should prefer that its players use marijuana to medicate their pain rather than to rely on prescription drugs that can have serious side effects and promote dangerous addictions. Jackson explains quite effectively why he needed marijuana during his six-year career:

I broke my tibia, dislocated my shoulder, separated both shoulders, tore my groin off the bone once and my hamstring off the bone twice, broke fingers and ribs, tore my medial collateral ligament, suffered brain trauma, etc. Most players have similar medical charts. And every one of them needs the medicine.

But to ask whether players should use marijuana or legal drugs to treat their pain is to ask the wrong question. As I write in a forthcoming symposium on concussion in sports in the Journal of Law, Medicine & Ethics,

It is one thing to assume risks to health when there are meaningful benefits to be gained. But there are many ways to exercise, develop teamwork skills, or gain the other benefits of competitive athletics without playing football or other sports that lead to concussion. Ultimately, the social value of violent sports seems to rest heavily on the entertainment they offer to spectators.

Rather than asking how to treat the inevitably serious injuries that players suffer, we need to ask whether there is any legitimate role for the levels of physical violence that we tolerate in football.

[cross-posted at HealthLawProf and Bill of Health]

Riskiest Drivers or Riskiest Traffic System?

According to a report on NPR and other media outlets about traffic accidents in the United States, Boston has the riskiest drivers, and Fort Collins, Colorado has the safest. The ranking is based on a study by Allstate Insurance, and while interesting to see such rankings, we should wonder whether the reporting represents another example of the tendency to worry too much about individual fault when mistakes occur and not enough about problems with the system within which people operate.

Maybe there are important differences between drivers in Boston and Fort Collins. More likely, however, is that other factors are more important (e.g., city size). In particular, there is good reason to think that there are important differences in traffic engineering and other measures taken by public officials in Boston and Fort Collins to compensate for the inevitability of human error. As the New York Times reported earlier this year, Sweden is considered to have the world’s safest roads, and it has gotten there because it “assumes human imperfection at every turn, and places the onus of mitigating its effects largely on traffic engineers.” Successful reforms for medical malpractice and other kinds of human error also have relied on engineering changes that limit the harm that a mistake can cause.

Instead of headlines that say Boston has the riskiest drivers, it may be more accurate to say that Boston has the riskiest traffic system.

(Allstate itself sends mixed messages. On one hand, it titles its study as a “Best Drivers Report;” on the other hand, Allstate refers to the ranking as a “Safest Driving City Ranking.”) 

Filibuster Reform and Consumer Protection

Everyone understood how much was at stake last year when Senate Democrats eliminated the filibuster for judicial nominations to the federal district courts and courts of appeal. And it didn’t take long for the new “Democratic” majority on the U.S. Court of Appeals for the D.C. Circuit to flex its muscles. In late July, the court reversed course on the balance between the public’s interest in regulation of business practices and the corporate interest in freedom of speech.

In earlier decisions, the court of appeals had struck down graphic warnings for cigarette packs and a requirement that manufacturers disclose whether they produce their goods with minerals mined in the Democratic Republic of Congo. But the en banc court, in rejecting a challenge to country-of-origin disclosure rules for meat products, concluded that the earlier decisions did not allow sufficient leeway for the government to mandate warnings or other informational disclosures to the public.

Perhaps the U.S. Supreme Court will restore the D.C. Circuit’s previous balance, but for now, the tide has turned in favor of consumer protection.

Hospital Design and Patient Welfare

Nice article in today’s New York Times describing a hospital redesign that was followed by marked improvements in patient satisfaction—and a 30 percent reduction in requests for pain medication. From my medical practice days, I remember the adage that hospitals are designed for doctors rather than patients. It’s heartening to see that priorities are changing.

Presidential Persuasion

Today’s New York Times provides an illuminating account of relationships between Barack Obama and his Democratic colleagues on Capitol Hill. While the president has not forged the kind of close personal relationships with members of Congress that some of his predecessors had developed, the article reminds us that there is a tendency to overemphasize the president’s ability to schmooze senators and representatives when judging a president’s legislative record.

Obama may lack the political skills of Bill Clinton, but he still got health care reform through Congress. Having a strong majority in the House and a filibuster-proof majority in the Senate provided Obama a level of congressional support that Clinton never had. Focusing on presidential personality can lead to insufficient attention to the size of the president’s majorities in Congress when assessing presidential effectiveness.

Plagiarism and Ghostwriting

Observers are right to criticize U.S. Senator John Walsh for the rampant plagiarism in his Army War College final paper. As the New York Times reported last week, Walsh appears to have committed academic fraud.

Generally, social mores treat plagiarism appropriately. We warn students not to pass off the writing of others as their own, and we censure scholars, journalists, and other authors who do the same. If you are going to use other people’s work, you need to acknowledge their contributions.

But there is a curious exception to the prohibition on plagiarism. Among his many violations, Senator Walsh lifted passages from an essay by Harvard scholar Sean Lynn-Jones without proper attribution. Suppose instead of using Lynn-Jones’ work in his War College paper, Walsh had hired Lynn-Jones as a speechwriter for his Senate office. Walsh could deliver remarks written by Lynn-Jones without any acknowledgment of Lynn-Jones’ contribution, and we would not accuse him of plagiarism. Or suppose that Walsh hired Lynn-Jones to ghostwrite his autobiography. Some prominent persons do not acknowledge their ghostwriters; other leaders bury the acknowledgment where most readers won’t see it. Yet we do not condemn the failure to recognize the contributions of speechwriters and other ghostwriters as a form of plagiarism. Is there a good reason for this double standard?

We cannot justify these arrangements because ghostwriters agree to them. Plagiarism is a fraud not only on the person whose ideas are misappropriated but also on other people, who are misled as to the authorship of the words they hear or read. Thus, it is still plagiarism when students pay for a paper written by someone else.

One might say that ghostwriting is permissible because the writers are guided by the ideas of the people for whom they work, that the writer is essentially a translator rather than an author. But the value of a speech or book lies just as much in how its ideas are conveyed as in the substance of those ideas. Indeed, speakers and writers often are judged more on their style than on their substance. President Kennedy’s inauguration speech might not be especially memorable if he had simply encouraged people to commit more time to public service. But we remember it well because he called on Americans to “ask not what your country can do for you — ask what you can do for your country.”

Defenders of ghostwriting observe that the public understands that elected officials and other leaders get help with their speeches and books. In this view, there is no real deception. But we could make the same argument about other authors. The public understands that all writers draw on the ideas of other writers. In any event, the public doesn’t always remember the ghostwriter’s role and often assumes that the elected official wrote the speech or book.

To be sure, prominent persons do not have the time or talent to author all of their speeches, articles, or books. They need help from others. But that doesn’t mean they cannot acknowledge those who help them convey their ideas.

So do we let elected officials and other leaders use the words of their ghostwriters without attribution because there is a good reason that I am overlooking, or is it more about the unfair privileges of power? 

[cross-posted at The Faculty Lounge]

Learning from Afghanistan

Ten years ago, American officials urged drafters of Afghanistan’s constitution to provide for a very strong president. Now, as the New York Times reports, our officials have agreed with Afghan officials that it is better for a political system to provide for the sharing of power across social divides. All persons deserve a voice in the policymaking halls of their governments—ensuring that public officials represent both sides of the political aisle makes for a fairer form of governance, thereby giving the government greater legitimacy in the eyes of the public.

Just as constitutional reform was important for Afghanistan, it is important for us. We also suffer from a political system that has too much in the way of winner-take-all powers. In particular, we give all of the immense power of the modern presidency to a single person from one political party. That does much to fuel the high levels of partisan conflict that plague Washington. Instead of creating strong incentives for conflict, we should create strong incentives for cooperation. We too should ensure that both sides of our political aisles have meaningful roles in our policymaking offices.

For more discussion of these themes, see my “Two Presidents” book (first chapter here) and David Fontana’s “Government in Opposition.”

Hobby Lobby and Overreaction

Undoubtedly, the Supreme Court has been too solicitous of corporate rights in recent years. And without doubt, reproductive rights are under siege from many state legislatures and federal judges. But these concerns do not justify the dramatic characterizations of yesterday’s Hobby Lobby decision.

According to Emily’s List, the Court’s decision to “restrict women’s health care” is a “devastating setback.” According to the Democratic Legislative Campaign Committee, “millions of women must have their bosses’ permission to access birth control.” And according to Planned Parenthood of Indiana and Kentucky, “countless women, already struggling to make ends meet, will not have the benefit of the family planning coverage provided to all others under the Affordable Care Act.”

In fact, the Court’s decision need not result in limits on women’s access to contraception. To be sure, the Court agreed with Hobby Lobby (and Conestoga Wood) that they should not have to pay for methods of birth control that violate their religious beliefs (morning after pills and IUDs in this case), But the Court also observed that the federal government could use other approaches to guarantee access for women to contraception.

Indeed, wrote the Court, the government can employ the same accommodation for companies such as Hobby Lobby that it employs for religiously-affiliated, non-profit institutions such as universities. Under that accommodation, the organization’s insurer provides a separate plan for contraceptive coverage and does not bill the organization or the employee. In other words, the female employees receive full coverage without imposing a burden on the employer’s religious practice.

There are plenty of reasons to criticize the erosion of reproductive rights in the United States. And it is possible that the narrow holding of Hobby Lobby will be expanded in the future. But the decision itself does not entail a compromise of reproductive health.

Registering for Organ Donation—How Much Does It Matter?

All of those efforts to persuade people to authorize postmortem organ donation seem to be paying off. Whether one gives consent when renewing a driver’s license or by signing up at Donate Life America, the results are impressive. In 2012, 45 percent of American adults were included in state organ donation registries, and 40 percent of organ donations after death came from these “designated donors.” That’s a more than doubling of the 19 percent rate of designated donors among posthumous organ donors in 2007.

But the increase in donor designation has not translated into a meaningful increase in organ transplantation. There were 22,053 transplants from 8,085 deceased donors in 2007 and 22,187 transplants from 8,143 deceased donors in 2012.

Why hasn’t donor designation translated into more organs? Is it because organ procurement organizations would have obtained consent from family members anyway for individuals who registered for donation? A survey of organ procurement organizations suggests strong agreement between registered donors and their families. Or maybe family wishes matter more than the decedent’s wishes despite legal rules that recognize the priority of the decedent’s wishes. Or perhaps other factors are hiding the effect of donor designation. Maybe it’s too soon to see an effect from donor designation. It will be interesting to see how the data play out over the next few years.

[cross-posted at HealthLawProfs and PrawfsBlawg]

Affirmative Action and Top Ten Percent Policies

With the Supreme Court’s blow to affirmative action last week, state universities may increasingly turn to the Texas model of automatic acceptance for applicants at the top of their high school class rank. When colleges draw from the top five or ten percent at all high schools, they may be able to recruit an entering class that mirrors the ethnic and racial diversity of high school graduates. While top class rank policies raise a number of concerns and their impact on diversity is mixed, there is a potentially more important benefit from a tweak of the policies.

Suppose that instead of looking just at GPA, admissions offices looked at a range of measures, including test scores, artistic talent, and athletic skills, and admitted the top students from each high school. Suppose further that all selective colleges—public and private—employed a top ten (or one) percent admissions policy. By whatever measures admissions offices used to rank applicants, the colleges would admit the top applicants from all high schools (of a minimum size). 

Parents would recognize that their children would do better in the application process by attending Urban High than by attending Suburban or Private High. Instead of concentrating their children in the highest performing schools, parents of means would have a strong incentive to spread their children across the full range of schools. 

There would be two important effects for cities. First, their property tax bases would grow, as more families chose to live in the cities than in the suburbs. Cities would be in a better position to invest in infrastructure and finance public services. Second, school quality would improve. Once their children were attending one of the lower performing schools, parents would push for improvements in the quality of the school, whether by seeking more public dollars or by raising more supplemental funding. The upper and middle socioeconomic classes might still focus their attention on the schools that their children attend, but the number of such schools would have increased. The gap in quality between the top schools and the bottom schools should narrow, and school quality should become more uniformly high. Rural areas also should benefit from top ten policies.

Would parents really send their children to lower performing schools to take advantage of high class rank admissions policies? They already have in Texas. After that state’s ten percent policy was adopted, a number of parents moved their children to schools with lower levels of achievement by the student body. The effects would be even greater if Ivy League and other elite universities followed the Texas model. The ten percent policy also has had a substantial impact on property values as families have moved into neighborhoods with lower-performing schools. Because parents adjust their choices of schools in response to high class rank policies, academic standards at selective universities needn’t suffer (except perhaps in the short-term).

We’ve known for a long time that we do better by the disadvantaged when we link their fortunes to the fortunes of the advantaged in society. Top class rank policies can provide that linkage. And they can do so without passing any laws. (For more discussion of this idea, see here).

[cross-posted at PrawfsBlawg]