#BELHP2014 Plenary 2, Russell Korobkin

[Ed. Note: On Friday, May 2 and Saturday, May 3, 2014, the Petrie-Flom Center hosted its 2014 annual conference: “Behavioral Economics, Law, and Health Policy.”  This is an installment in our series of live blog posts from the event; video will be available later in the summer on our website.]

Today opened with a plenary talk by Russell Korobkin, who is the Richard C. Maxwell Professor of Law at UCLA School of Law.   His talk was titled “The Choice Architecture Problem and Health Care Decisions.”

He began by suggesting that the fundamental problem that unites the conference is that efficient health care decisions are often too difficult for boundedly rational individual to make optimally.   Classical economics suggests that revealed preferences match predicted hedonic experience.  Behavioral economics shows us that this is not true, and provides insights into why.  The million dollar question is what should policy makers do with these insights.

Yesterday, most of discussion oriented around the solution of libertarian paternalism.   But as Korobkin notes, that is just one approach and it has several drawbacks that keep it from providing a complete solution.  First, policy makers don’t always know what is best, so we don’t know which way to nudge.   Second, the best choice is often heterogeneous.   Third, the best choice for individuals is not necessarily socially optimal.  With these limits in mind, Korokin’s central claim is that the menu of non-coercive responses to bounded rationality should be expanded.  He proposes two additional choice architecture options: (1) simplification, and (2) libertarian welfarism.

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Animals are Already Legal Persons: On Steven Wise, the Nonhuman Rights Project, and Misguided Personhood Debates

The New York Times Magazine has just published an interesting piece on the Nonhuman Rights Project and Steven Wise, whose mission is to change the common law status of at least some nonhuman animals from “mere things” to “legal persons.”  (I have previously written on their work here).  It is widely agreed, among both advocates and opponents of Wise’s work, that granting legal personhood to animals would be revolutionary.  I think that this view is mistaken.  To understand why, it is helpful to clarify and differentiate between three possible conceptions of what it might mean to be a “legal person”—a term that is often used in imprecise ways.  Doing so reveals that animals are already legal persons, and that personhood does not itself count for very much. Read More

Killing for Species Health

In the past few months, the Copenhagen Zoo has killed a giraffe and four lions in order to protect the genetic health of their breeding populations, generating significant international backlash and highlighting difficult questions about the value of species preservation.

The international controversy surrounding the zoo’s actions began in February, when it killed a healthy 18-month old giraffe with a bolt pistol, performed a public autopsy on his body (video), and then fed his remains to the zoo’s lions and other big cats in front of the public (video).  A bolt pistol was used, rather than an injection, so that his meat would be safe to eat.  A statement from the zoo explained that it had decided to kill this giraffe because his genes were “well represented in the breeding programme,” such that allowing him to grow into an adult and breed was “unwanted.”  Zoo officials turned down adoption offers from other zoos on the grounds that this would have left open the door to inbreeding and potentially removed a place for a giraffe whose genetic makeup was more valuable in terms of future offspring in captive breeding programs.  (The statement also addresses a variety of other interesting “health law” questions, such as “Why are the giraffes not given contraceptives?”).

The controversy gained further momentum two weeks ago, when the zoo announced that it had killed four lions—a 16 year-old male lion, a 14 year-old lioness, and their cubs—to clear the path for a newly arrived young male lion.  (It is unclear whether these specific lions were among those who had previously eaten the giraffe).   A statement from the zoo explained that it had decided to kill these lions based on several population-level concerns, including that the 16 year-old male might have someday mated with his female offspring creating a problem of inbreeding, or that the new young male might have mated with the 14 year-old lioness instead of younger females with greater reproductive fitness.

While the idea that these types of killings can be justified on the grounds that they protect the health of the genetic populations of which the individual animals are a part is fairly common, it is unclear whether “health” is actually an appropriate concept to apply to an entity such as an animal’s species.    Read More

Japanese Whaling and the International Court of Justice

Yesterday, the International Court of Justice ruled that the Japanese government must halt its whaling program in the Antarctic pursuant to its obligations under the International Convention for the Regulation of Whaling.

At issue in this case was Article VIII of the Convention, which allows a member state to issue permits authorizing the killing of whales when it is done “for purposes of scientific research.”   (Commercial whaling has been prohibited since the International Whaling Commission, which implements the Convention, adopted a moratorium in 1982).

Under the Article VIII exception, Japan had established a research program that issued permits for the lethal sampling of Antarctic minke whales, fin whales, and humpback whales.  The program was meant to serve four research objectives: monitoring of the Antarctic ecosystem, modeling competition among whale species and future management objectives, elucidating temporal and spatial changes in stock structure, and improving the management procedure for Antarctic minke whale stocks.   Under the program, Japan had set a kill target of 850 minke whales, 50 humpback whales, and 50 fin whales.   Most of the whale meat from the hunts was sold in Japan, where it is considered a delicacy.

Australia brought suit against Japan in the International Court of Justice, alleging that its program simply cloaked commercial whaling in the veil of science, and the Court agreed.  It is worth noting, however, the Court did not base its decision on a rejection of the scientific merit of the program’s objectives or methods.  (On this score, it held that the program could “broadly be characterized as ‘scientific research” and that lethal methods of sampling could be justified).  Rather, the Court based its decision on its determination that the permits were not issued “for purposes” of scientific research. Read More

Antibiotics, Farm Animals, and the FDA

On Wednesday, the Food and Drug Administration announced that 25 pharmaceutical companies that manufacture animal drugs will participate in voluntarily phasing-out the use of antibiotics for growth promotion purposes in farm animals.

The companies are acting in response to voluntary guidelines that the FDA issued in December, requesting that the companies change their labeling of “medically important” antibiotics in two ways: (1) removing production uses (e.g., animal growth promotion) from the approved indications for the drugs; and (2) requiring veterinary oversight, rather than allowing over-the-counter distribution, for the remaining therapeutic uses.

Of the 26 companies targeted by these guidelines, 25 have agreed to comply by either revising their labels or withdrawing the drugs from animal use completely.   The FDA did not name the one company that has not agreed to comply.

While this is undoubtedly an important step forward in the FDA’s efforts to reduce non-necessary uses of antibiotics in livestock production—and hopefully slow the evolution of drug-resistant bacteria—it is important to note that there are potential loopholes in the FDA’s approach, as I have previously discussed. Read More


A few weeks ago, the New York Times Magazine ran a fascinating piece titled “The Mammoth Cometh,” which tells the story of a growing number of scientists around the world who are working on projects of “de-extinction.”   Significant progress has been made, and some scientists estimate that we will be able to revive certain species, such as the dodo or the passenger pigeon, within 10-15 years.

But is reviving species from extinction a good thing to do?  The way in which this normative question is treated in the NYT article is interesting.   While some of the key dangers of reviving extinct species are identified and discussed, the underlying narrative seems to accept that if these dangers could be avoided, de-extinction would be a good thing.   What its value is, however, is never spelled out in particularly clear terms.

The primary value identified by many advocates of de-extinction is the environmental value of “conservation.”   Steward Brand, for example, states that de-extinction could provide “a beacon of hope for conservation.”  But two different conceptions of conservation appear to be at work in the entangled arguments about the value of reviving extinct species. Read More

Hard Paternalism

Is hard paternalism in medicine ever justified?   In a recent NYT op-ed titled “When Doctors Need to Lie,” cardiologist and author Sandeep Jauhar provides a thought-provoking perspective on this question.

Dr. Jauhar begins with a description of a case in which the father of a 22-year-old patient requested that Jauhar temporarily lie and tell the patient that was going to be fine, even thought he was suffering from severe heart failure.  Jauhar agreed on grounds that the patient was not yet psychologically ready to hear the news and that withholding the information was therefore justified by the central principle that “physicians must do no harm.”

This example of temporary lying provides an avenue into a general discussion of the role of paternalism in medicine, which Jauhar argues should not be wholly displaced by respect for patient autonomy.   He argues that “when a doctor believes that a paternalistic approach is justified, he should aim to keep it as ‘soft’ as possible,” but that “there may be a place in medicine for hard paternalism, too.”

In support of hard paternalism, Jauhar describes a case in which one of his patients was bleeding into his lungs and was going to die without a breathing tube.   Jauhar knew that the patient had previously told other doctors that he never wanted to be intubated, but he did not know the quality of their discussion and could not find out because the patient was nearly unconscious.   So he intubated the patient, thereby saving his life.  And in the end, the patient thanked him.

But does this story actually offer support for hard paternalism? Read More

Patient Empowerment and 23andMe

For those interested in the FDA’s decision to regulate 23andMe’s direct-to-consumer genetic testing service, it is worth reading a recent comment in Nature by Robert Green and Nita Farahany.  The piece raises two core objections to the FDA’s decision that deserve further attention.

One objection is that the FDA’s decision runs contrary to “the historical trend of patient empowerment that brought informed-consent laws, access to medical records and now direct access to electronic personal health data.”  Green and Farahany suggest that 23andMe and manufacturers of other consumer medical products (such as mobile health apps) “democratize health care by enabling individuals to make choices that maximize their own health,” and that we must not “stifle all innovations that do not fit into the traditional model of physician-driven health care.”

While I agree with Green and Farahany that we should not be locked into physician-driven health care, I am not sure that the information provided by 23andMe and medical apps is unambiguously “patient-empowering” and “democratizing” (a framing of personalized medicine that pervades both marketing materials and academic journals). Read More

Genetically Modified Crops

The USDA’s Animal and Plant Health Inspection Service (APHIS) has released a Draft Environmental Impact Statement associated with its deregulation of a new generation of genetically modified herbicide-resistant crops.   While many in the agricultural industry hail this as a much-needed step in the development of new weed-control technologies, critics worry that it will accelerate an “herbicide treadmill” at the cost of more sustainable management strategies.

As a bit of background, the development of the first generation of genetically modified (GM) herbicide-resistant crops revolutionized agricultural weed management in the mid 1990s.  Prior to this development, weed management required significant skill and knowledge.  Farmers had to not only carefully manage the timing of various herbicide applications, but also integrate other nonchemical control practices.  Herbicide-resistant crops, by contrast, were effective and easy to use.

During the initial phase of development, a variety of GM options came to market, but Monsanto’s “RoundupReady” varieties (which are resistant to a broad-spectrum herbicide known as “glyphosate”) quickly became dominant.   By 2008, 63% of corn fields and 92% of soybean fields in the US were being planted with RoundupReady seeds.  The outcome of this single-track approach to weed management has been a dramatic increase in the number of weed species that are resistant to the herbicide glyphosate.

In response to the evolution of these “super weeds,” Congress has held hearings to assess whether additional government oversight is needed to address the problem.  The response of the seed and agrichemical industries, by contrast, has been to develop new GM seeds that are resistant to other broad-spectrum herbicides for which weeds have not yet developed resistance.  Read More

Antibiotics in Livestock

Last week, the Food and Drug Administration finalized a long-awaited guidance document that aims to reduce non-therapeutic uses of antibiotics in livestock production and thereby limit the evolution of drug-resistant bacteria.

As I discussed in a previous post, the use of antibiotics in livestock production is often not for the therapeutic purpose of curing disease, but rather for the purpose of speeding growth or increasing feed efficiency.   Current estimates are that livestock production consumes 30 million pounds of antibiotics per year, representing 80 percent of the total volume of antibiotics sold in the United States for any purpose.  The FDA policy that allows non-therapeutic uses of antibiotics in livestock has in recent years been subject to intense scrutiny by outside advocates, former FDA officials, government investigators, and judges.

The FDA has now taken action to address these concerns by finalizing industry guidelines that it first proposed over a year ago.   Under the guidelines, animal pharmaceutical companies would change the labeling of “medically important” antibiotics in two ways.  First, the labeling would no longer list production uses (i.e., growth enhancement and feed efficiency) in the approved uses for the drugs.  Second, the labeling would require veterinary oversight for therapeutic uses (i.e., the prevention, control, or treatment of a disease), rather than allowing over-the-counter distribution.  These changes in labeling would in turn require changes in agricultural use by virtue of other FDA regulations that prohibit off-label use for production purposes.

While the FDA’s action is a step in the right direction toward eliminating non-therapeutic uses of antibiotics in food animals, there are a few features of its strategy that are worth highlighting as they might significantly limit its impact.     Read More