An Economic Analysis of Property Rights in Information: Justifications and Problems of Exclusive Rights, Incentives to Generate Information, and the Alternative of a Government-Run Reward System

This article examines and questions the traditional justifications for intellectual property (I.P.) rights in America (focusing on copyright and patent law), and explores incentives necessary to induce the creation of these works of information. I conclude that changes are needed to I.P. law in order to best foster society\u27s dual goals of 1) promoting incentives to create I.P. works (such as currently patented drugs), while also 2) maximizing distribution of those products to all consumers who would stand to gain (and not merely those who can afford the monopoly price charged). Hence, I suggest the creation of a Government-Run Reward System to best serve both of society\u27s goals: incentives distribution. Under the reward system, innovators would be paid directly by the government for their intellectual property creations. In turn, their works would pass immediately into the public domain so that they are freely reproducible and distributable at their marginal cost of production (rather than the monopoly price which prevails under patent and copyright law today). In its ideal form, the reward system thereby allows for both socially optimal creation and distribution of intellectual property works, eliminating the deadweight social loss that plagues us today

Corralling Kevorkian: Regulating Physician-Assisted Suicide in America

This article examines the evolution and history of the development of the right-to-die in America, the ethical considerations surrounding physician-assisted suicide (P.A.S.), and the dangers posed by the rise of managed care. I then explore and analyze efforts to legalize and regulate assisted suicide (Netherlands, Oregon, The Model State Act), and suggest the criteria I believe are essential to include in any P.A.S. regulatory scheme

Responsible Regulation: A Sensible Cost-Benefit, Risk Versus Risk Approach to Federal Health and Safety Regulation

Federal health and safety regulations have saved or improved the lives of thousands of Americans, but protecting our citizens from risk entails significant costs. In a world of limited resources, we must spend our regulatory dollars responsibly in order to do the most we can with the money we have. Given the infeasibility of creating a risk-free society, this paper argues that a sensible cost-benefit, risk versus risk approach be taken in the design of U.S. regulatory oversight policy. The goal should always be to further the best interests of the nation, rather than to satisfy the narrow agenda of powerful industry or political forces. This entails designing safety regulations efficiently to maximize society\u27s welfare, choosing the point where their marginal benefits equal their marginal costs - rather than simply asking whether total benefits exceed total costs in the aggregate. Federal regulatory oversight policy should also ask that proposed regulations compare the risks they reduce to the new risks they unintentionally create (substitution risks). Additionally, our citizens should be educated regarding systematic risk misperceptions, and regulatory agencies should make their risk assessments objectively. Moreover, most-likely scenarios must be addressed by responsible regulatory solutions, rather than the current practice of focusing on worst-case estimates. Finally, agencies should publish and justify their regulatory triggers and perform ex-post evaluations of their programs in an attempt to continuously improve the quality of regulatory design. Efforts by the executive branch, from Presidents Ford, Carter, Reagan and Clinton, have attempted to inject similar common sense into the regulatory oversight process. Unfortunately, the Congressional mandates given to government agencies are often silent on the subject of cost-benefit analysis, and recent Supreme Court cases have held that regulatory agencies are not obligated to even consider the costs of their proposals. I will explore several legislative reform bills that are aimed at overriding Congressional mandates, but to date, none have been successful. Finally, this paper will address certain common criticisms to which a marginal cost benefit, risk-risk approach to responsible regulatory reform would be subject. Most notably, the measurement of costs and benefits is not an exact science, and using willingness to pay as a marker of individual and social utility has its limitations. Regulatory reform also faces challenges on moral grounds, as scholars openly decry the explicit tradeoff between human lives and financial resources. While these criticisms contain merit, this paper concludes that to ignore a sensible cost-benefit analysis of federal safety regulations is to divert resources from their most beneficial uses and to settle for second best. In a world of scarcity, we must make regulatory tradeoffs as efficiently as possible in order to do the greatest good for the greatest number, and to save the most lives we can. It would be unethical to do anything less

An Economic Analysis of Intellectual Property Rights: Justifications and Problems of Exclusive Rights, Incentives to Generate Information, and the Alternative of a Government Run Reward System

This article examines and questions the traditional justifications for intellectual property (I.P.) rights in America (focusing on copyright and patent law), and explores incentives necessary to induce the creation of these works of information. I conclude that changes are needed to I.P. law in order to best foster society\u27s dual goals of 1) promoting incentives to create I.P. works (such as currently patented drugs), while also 2) maximizing distribution of those products to all consumers who would stand to gain (and not merely those who can afford the monopoly price charged). Hence, I suggest the creation of a Government-Run Reward System to best serve both of society\u27s goals: incentives distribution. Under the reward system, innovators would be paid directly by the government for their intellectual property creations. In turn, their works would pass immediately into the public domain so that they are freely reproducible and distributable at their marginal cost of production (rather than the monopoly price which prevails under patent and copyright law today). In its ideal form, the reward system thereby allows for both socially optimal creation and distribution of intellectual property works, eliminating the deadweight social loss that plagues us today

Cash for Kidneys? Utilizing Incentives to End America\u27s Organ Shortage

This article addresses the growing organ shortage in America, analyzes current donation and procurement law, and explores both monetary and nonmonetary incentives aimed at eliminating the worsening crisis. Part I details the law governing human organ donation. Under both the Uniform Anatomical Gift Act (“UAGA”) and the National Organ Transplant Act (“NOTA”), no donor of a human organ may receive “valuable consideration” for providing it. Congress’ intention was simply that the organ recipient be given the “gift” of life—not one which she had to purchase on the market. In reality, the consequences of the Act bear little resemblance to its initial intent. Organ scarcity has been the unintended result, leading to a thriving global black market in human organ sales. Part II explores the traditional arguments that scholars and legislators have raised against legalizing the sale of human organs. Notions of morality, distributive justice, imperfect information, and negative externalities are routinely offered to justify the current law prohibiting sales. Part III explores some of the limitations of the above rationales, offering reasons why properly regulated organ sales may not be as far-fetched or offensive as some initially think. I will offer suggestions for responsible regulation of sales to guard against the abuses and exploitation rampant on the black market, and to ensure that a seller’s decision is truly voluntary, fully informed, competent, and enduring. Part IV proposes and analyzes incentive-based solutions to cure the organ crisis in America. Monetary incentives short of outright sale by living donors would go far towards boosting organ supply while reducing the concerns raised by open markets in organs. Some scholars have suggested “futures markets,” allowing individuals to receive remuneration today in exchange for agreeing to have their organs donated at death. A few states have considered tax deductions for donors, and some even offer nominal amounts of money to individuals who opt in to donation when renewing their driver’s licenses. By modifying and combining some of these ideas, I will propose ways that we could dramatically raise organ donor participation rates while staying within the confines of NOTA and UAGA

Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?

Vaccinations against life-threatening diseases are one of the greatest public health achievements in history. Literally millions of premature deaths have been prevented, and countless more children have been saved from disfiguring illness. While vaccinations carry unavoidable risks, the medical, social and economic benefits they confer have led all fifty states to enact compulsory childhood vaccination laws to stop the spread of preventable diseases. Today, however, vaccines are becoming a victim of their success-many individuals have never witnessed the debilitating diseases that vaccines protect against, allowing complacency toward immunization requirements to build. Antivaccination sentiment is growing fast in the United States, in large part due to the controversial and hotly disputed link between immunizations and autism. The internet worsens fears regarding vaccination safety, as at least a dozen websites publish alarming information about the risks of vaccines. Increasing numbers of parents are refusing immunizations for their children and seeking legally sanctioned exemptions instead, apparently fearing vaccines more than the underlying diseases that they protect against. A variety of factors are at play: religious and philosophical beliefs, freedom and individualism, misinformation about risk, and overperception of risk. State legislatures and health departments now face a difficult challenge: respecting individual rights and freedoms while also safeguarding the public welfare. Nearly all states allow vaccination exemptions for religious reasons and a growing number provide philosophical opt-outs as well. However, in all but a handful of jurisdictions, neither objection is seriously documented or verified. Often, the law requires a parent to do no more than simply check a box indicating she does not wish her child to receive immunizations. The problem is exacerbated by financial incentives schools have to encourage students to opt out of vaccinations. The rise in parents opting out has caused the AMA grave concern, with many experts decrying the rise of so-called exemptions of convenience. In some areas, nearly one out of five children have not received their recommended vaccines. The consequences are serious not only for those unprotected children, but for the rest of society as well. Herd immunity is threatened as more and more parents free ride off of the community\u27s dwindling immunity, and outbreaks of diseases thought to have been conquered have already occurred. Lawsuits against vaccine manufacturers threaten them with bankruptcy, costs are being externalized onto the healthcare and legal systems, and vulnerable populations are suffering harm or even death. In the interests of social welfare, state legislatures and health departments should consider methods to ensure that the exemption process is carefully tailored to prevent check-thebox opt-outs of convenience, while still allowing exemptions for those with earnest and informed convictions or medical reasons

Penalizing Punitive Damages: Why the Supreme Court Needs a Lesson in Law and Economics

The recent landmark Supreme Court decision addressing punitive damages in the infamous Exxon Valdez oil spill case has brought the issue of punitive awards back into the legal limelight. Modern Supreme Court jurisprudence, most notably BMW of North America, Inc. [517 U.S. 559 (1996)], State Farm [538 U.S. 408 (2003)], Philip Morris [549 U.S. 346 (2007)], and now Exxon Shipping Co. [128 S.Ct. 2605 (2008)] in 2008, has concluded that such judgments are justified to punish morally reprehensible behavior and to send a message to evildoers. The Court, however, has increasingly emphasized that the U.S. Constitution\u27s Due Process Clause presumptively limits punitive awards, drawing an arbitrary line in the sand of no more than ten times actual damages. This Article critically examines modern punitive damages jurisprudence using a law and economics lens. From that standpoint, there is no justifiable basis for tort law\u27s requirement of morally reprehensible or intentional conduct before punitive damages may be awarded. Indeed, punitives should be imposed—must for deterrence purposes—even in the absence of egregious behavior, when a defendant has escaped liability previously, either intentionally or serendipitously. In this manner, the punitive award makes up for the occasions in which the defendant avoided liability and failed to compensate victims for harm caused. On the other hand, sound economic analysis dictates that imposing enormous punitive damages simply because a tortfeasor\u27s behavior was morally offensive can inadvertently lead to overdeterrence, price inflation beyond optimum, quantity of goods purchased below optimum, and a significant reduction in overall social welfare. In sum, the Supreme Court must drastically revise its approach to punitive damages jurisprudence: such awards should not be arbitrarily based on a gut reaction to how reprehensibly we feel a defendant acted. Rather, punitive damages should be granted only where tortfeasors have the potential to escape liability for their actions, and they should be awarded in that case even if the defendant in no way meets the modern requirement of egregious behavior. Moreover, the Supreme Court\u27s arbitrary due process litmus test of ten times compensatory damages as a ceiling on punitive damages makes zero sense from an economic analysis point of view, and needs to be summarily abolished

Testimony, 5 Ways Life Would Be Better with Year-Round Daylight Saving Time

In my research on daylight saving time (DST), I have found that Americans don’t like it when Congress messes with their clocks. In an effort to avoid the biannual clock switch in spring and fall, some well-intended critics of DST have made the mistake of suggesting that the abolition of DST (and a return to permanent standard time) would benefit society. They are wrong. DST saves lives and energy, and prevents crime. Congress should move the country to year-round DST, and if it did so, here are five ways our lives would immediately improve

Sports Medicine Conflicts: Team Physicians vs. Athlete-Patients

Team physicians for professional sports franchises face a conflict of interest created by the competing loyalties they owe to the team that employs them and to the athlete-patient they must treat. Marketing agreements under which physicians pay significant sums of money to be designated as the team\u27s official healthcare provider exacerbate this conflict. These marketing arrangements call into question the independent judgment of team physicians and cause players to question the quality of care they receive. This paper explores several solutions to the growing conflicts between athletes and team doctors with the goal of enhancing players\u27 trust in the medical care they receive. First, to remove the dual loyalty problem faced by team physicians, professional sports leagues or players\u27 unions should hire medical providers directly—as opposed to having individual teams employ and provide them. If this fundamental employment change proves impossible, physician groups should enter into explicit agreements with sports franchises that assert the groups\u27 independence, and professional sports leagues should mandate that physicians disclose all potential conflicts of interest to the players they treat. In addition, sports leagues could ban physicians from advertising their affiliation with teams to alleviate the problem of doctors engaging in bidding wars to service athletes at below-market rates in order to gain a PR edge on their competition. Finally, states might consider exceptions to the exclusive remedy provisions of workers\u27 compensation laws to ensure that professional athletes have legal recourse when they suffer the deleterious effects of these conflicts. This conflict of interest between team physicians and the athlete-patients they treat must be remedied by aggressively implementing policies and procedures that change the current relationship between healthcare providers, teams, and their players. Part I of this Paper examines the various duties that a team physician owes her athlete-patient. Part II details the nature of the relationship between teams, physicians, and players, and Part III explains how these relationships cause conflicts of interest to arise. Finally, Part IV outlines policy solutions that would remedy the diverging interests that team doctors face. Contributed to a symposium on Sports Medicine: Doping, Disability Health Quality