My L.A. Times Op-Ed: In Defense of the Evidence-Based Nudge

By Michelle Meyer

The op-ed, which will appear in tomorrow’s print edition, is online here. It’s co-authored with Christopher Chabris (who happens to be my husband). Here—where I’m writing only for myself—I thought I’d say a bit about what motivated us and elaborate on a few points whose force may have been blunted by the process of condensing our thougts into our allottted 1,000 words.

The news hook for the article was an August memo leaked to Fox News in which the Obama administration announced that it is looking to hire behavioral scientists to help shape policy. Notwithstanding that the explicit model for this initiative is the U.K.’s “Behavioral Insights Team,” formed in 2010 by Conservative Prime Minister David Cameron, in the U.S., some on the right went completely off the rails about the Obama announcement.

A typical reaction was from Fox News’s Monica Crowley, who described the initiative as “really frightening,” “insane,” “outrageous,” “unconstitutional,” “an Orwellian horror show”—and all of the aforementioned mostly because, so far as I can tell, she believes that nudges constitute a form of “psychological warfare” akin to “what our military does to our enemies.” There are certainly legitimate criticisms of nudges to be made by both the right and the left, but that they are a form of Communist mind control is not among them. (For starters, even if nudges did rely on something like subliminal messages, those messages have been shown to have no effect on consumer behavior, much to the chagrin of marketers.)

The impetus for our piece, then, was to disabuse the Crowleys of the world (or at least that portion of them who are open to persuasion on this matter) of that notion, and then to offer some affirmative reasons why conservatives and libertarians should embrace the nudge (its preservation of all options in the choice set; its ability to incentivize personal responsibility; its efficiency), especially relative to its often perfectly viable alternative: the shove. (To that end, the piece was originally intended for a periodical with a right-of-center audience but wound up in the L.A. Times, where some of it may admittedly amount to preaching to the choir.)

In making our case…

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Video Now Available: “Gene Patenting, the Supreme Court’s Myriad Decision, and the Future of Biotechnology”

In case you missed it live on Monday evening, video from the Petrie-Flom Center’s event “Gene Patenting, the Supreme Court’s Myriad Decision, and the Future of Biotechnology” (co-sponsored by the Broad Institute) is now available here.

09/27/13 UPDATE: Our intern Fatima Mirza also wrote up this summary:

At this event, a distinguished panel of law and biotechnology experts convened to discuss the landmark Supreme Court Myriad decision and its implications on the future of scientific innovation and development.

The discourse began with an introduction of the high-profile case that extended beyond simply the scientific, political, or legal spheres.

“A broad coalition of people came to file this case,” said Tania Simoncelli, former Science Advisor to the ACLU. “Everyone from clinical geneticists, genetic counselors, individual women who could not access testing, the American Medical Association, the American Association of Human Genetics, and the March of Dimes were involved.”

In order to provide context for the case, Glenn Cohen, Professor at Harvard Law School and Faculty Co-Director of the Petrie-Flom Center, offered a brief history of biotechnology and patent law.  He highlighted developments from as early as 1911 when adrenaline, a naturally occurring compound, could be patented and distributed commercially based on the principle of purification. Emphasizing paradigm shifts in a rapidly advancing society, Cohen further outlined the role of the Patent and Trademark Office. “At the heart of patent law is whether we will have a pro-innovation or anti-innovation effects,” said Cohen.

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Live Blogging: The Globalization of Health Care, Legal and Ethical Issues

By Holly Fernandez Lynch

This afternoon the Petrie-Flom Center co-hosted a panel discussion (with the HLS Library and the Harvard Global Health Institute) of Glenn Cohen‘s new edited volume out from Oxford University Press, The Globalization of Health Care: Legal and Ethical Issues.  Panelists were Professor Cohen, Sue Goldie, and Neel Shah; Einer Elhauge served as moderator.  This isn’t quite *live* blogging because the event just finished, but here were some of the highlights:

  • Professor Cohen began by describing the book and its contents, noting the theme that health care is becoming global – just like everything else.  The book is broken up into five sections:
    1. Medical Tourism: This is the phenomenon of patients traveling abroad for the primary purpose of getting care, in order to save on costs or to access procedures and technologies that are not available in their home country. The number of medical tourists is high (for example in 2010, nearly a million Californian’s traveled to Mexico for care), as are the profits (it’s been estimated that India’s revenues from medical tourism are around $2.2B annually).  This section of the book addresses a variety of related issues, including lessons about accreditation and safety for medical tourists, insurance coverage and encouragement for services abroad (and travel costs), media coverage of medical tourism, distributional justice issues in terms of diverting access to care for local patients, and legal questions related to tourism for services that may be illegal in a patient’s home country. Read More

The Whitehall Studies and Human Rights

By Nathaniel Counts

Professor M. G. Marmot et al. conducted two studies, Whitehall I and Whitehall II, in which they studied morbidity and mortality in the British civil service sector in the 1960s and the 1980s.  British civil servants are under the same plan with the National Health Service, so the studies controlled for access to healthcare.  But what these famous studies found was that morbidity and mortality still correlated with income.  Further research and analysis has concluded that it is job satisfaction and social status more so than income that determines health outcomes.  Does an individual feel like she has control over the work she does?  Is she stressed out a lot?  How does she feel about herself in relationship to those around her?  Does she feel healthy?  Does she like her life?  Those who feel in control of their lives, feel valued by society, and feel good about their health actually end up living longer and healthier lives on average compared to those who don’t share these beliefs.

Deep structural inequalities exist in every society, and social justice groups work toward greater social equality everywhere.  Does the notion that social inequalities are hurting people in a physiological way change the way we feel about the mission of equality?  Is health so fundamentally different that individuals who accept economic inequality might mobilize over health inequality?  It is certainly implicated in the right to a dignified life, a concept underpinning the human rights movement as whole.  It may be though that the social inequalities on their own terms are an equal evil, because the limitations on one’s abilities to pursue her interests are as inimical to human rights as worse health.

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“Mountain Dew Mouth:” A Critical Opportunity for Public Health Law

By Scott Burris

Last week, the American Journal of Public Health published a PHLR paper by Michelle Mello and colleagues calling for our field to identfy “critical opportunities” for public health law. Critical Opportunities are legal interventions that target important public health problems.  They may have a strong evidence base but be underutilized (like alcohol taxes that keep up with inflation). They may be ideas that appear to be working in practice, and have a plausible mechanism of effect, even if our evidence base still consists of early studies or reports from practice (like distributing naloxone to opioid users and their friends to reduce overdose death). And they may be innovations that are plausible because of how they appear to relate to the problem or because they are similar in mechanism to other legal interventions that have been proven to work (like restricting sales of single cigars).  The bottom line is that we can do a better job spreading the word about legal interventions that work and that policy makers and the public can get behind in states and localities around the country.

The Robert Wood Johnson Foundation has helped get the idea moving by supporting a series of videos in which public health lawyers, practitioners and researchers pitch their ideas for critical opportunities.  These are often done, like a Ted Talk, at meetings, and one of the audience favorites is Dana Singer’s pitch for action to deal with “Mountain Dew Mouth,” a term gaining in traction to name the devastating consequences of heavy consumption of sugary beverages, especially those with critic acid.  The issue is on the federal agenda as part of the debate about food stamps.  It’s a hard one: public health people see the terrible consequences of these products and think that ending the federal “subsidy” for them might reduce harm; SNAP advocates don’t like the idea of anyone telling poor people what to eat and drink; industry, well, you can guess. State and local beverage taxes are another option, and we know that taxes can reduce consumption of even addictive products.

NPR has a story on the problem and some of the solutions this week.  I’m glad to see more attention to this problem, because poor dental health can send anyone’s life on a harder course, and is a very big problem in Appalachia. If you don’t believe me, or even NPR, read Priscilla Harris’s paper and watch Dana’s critical ops video.

Food Safety Regulatory Cooperation in the US-EU Free Trade Pact

By Ching-Fu Lin

In a congressional letter last month, 76 House Members urged United States (US) Trade Representative Michael Froman to push for strong and enforceable sanitary and phytosanitary (SPS) measures in the proposed Transatlantic Trade and Investment Partnership (TTIP).  SPS measures – which have been viewed as an area with very little room for convergence between the two sides – cover animal health, plant health, and food safety law and regulation.  The differences are evidenced by previous politically salient disputes over hormone-treated beef, genetically modified organisms (GMOs), and more recently, ractopamine in pork.  Indeed, given the cultural and institutional divergences between the US and the European Union (EU) food safety regulatory systems, many doubt the possibility that TTIP can come up with an SPS chapter (or an SPS-Plus chapter) that strikes a proper balance between public health and international trade.

As noted by some commentators, given the relatively low tariffs between the EU and US, the chief focus will center upon reducing non-tariff barriers to trade in numerous sectors, including agricultural products, biotechnology, and food safety regulation.  The Food and Drug Administration (FDA) has also established a special public health and trade team within its Office of International Programs to take a more active role in the negotiation.  Yet the negotiation over such a “sensitive” area has been considered unpromising—transatlantic deadlock, cooperation failure, and several deal breakers (especially regarding GMOs)—because the differences in food safety regulation between the US and EU seem not only significant but also persistent.

However, the outlook may not be as pessimistic as the common understanding.

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Art Caplan: Prayer no substitute for vaccination

Art Caplan has a new opinion piece up at on a recent outbreak of measles centered around a church in Newark, Texas. From the piece:

The congregation of Eagle Mountain International Church in Newark, Texas, recently discovered that prayer is no substitute for vaccination.

After visiting Indonesia, an unidentified visitor to the megachurch 50 miles outside Dallas — where ministers have long favored faith-healing over vaccinations — infected at least 21 people in the church and neighboring towns with measles. One victim was a 4-month old baby too young to receive a vaccination and thus totally dependent on others to do so.

Confronted with the measles outbreak, church leaders changed their tune, launched a vaccination drive, hosted vaccination clinics and encouraged the entire congregation to get immunized. The Old Testament is “full of precautionary measures,” senior pastor Terri Pearsons said after the mini-epidemic.

Theological revelation aside, Pearsons and other church leaders should have thought about this sooner. They and other vaccine resisters — from wealthy suburbanites who worry about the dangers they’ve heard from celebrities to conspiracy theorists who see only corporate profits driving a push to cover-up risks — are directly to blame for spreading unwarranted fear of vaccines.

Read the full article here.

Faculty Fellowships in Public Health Law – Call for Applications

Applications are invited for 10 faculty fellowships in public health law education.


Georgia State University College of Law and its Center for Law, Health & Society are leading an initiative funded by the Robert Wood Johnson Foundation for a faculty fellowship program to promote public health law education. Ten faculty members from law schools or schools/programs of public health will be selected to participate in a yearlong fellowship program designed to foster innovations in educational programming (including clinical, externship, and other experiential learning) and to build a strong learning community among faculty who teach in the public health law field.

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Good News for HIV Prevention Policy: Syringe Access Update

By Scott Burris

In documenting how often public health law research does influence legislation, I’ve used syringe exchange programs as an example of evidence NOT guiding policy.  Despite the consensus in health research that increasing access to sterile syringes has helped reduce HIV, state drug paraphernalia laws, and pharmacy regulations remain a barrier, as does the lack of strong and stable funding for the programs that are working.  The case was just made again in an article in the Annals of Health Law. Rachel Hulkower and Leslie Wolf retell the story of the federal funding ban, going over the evidence yet again, and argue that state inaction would best be overcome with money: replacing the federal ban with a positive endorsement and real funding.  (As long as we are in an optimistic mood, I would add strings – no HIV funding for states that don’t remove legal barriers to syringe access.  This would balance the scales a bit for Congress’ past sin in requiring state recipients of HIV funds to provide for criminalization of exposure and transmission.)

But today I type to tell a happier story. This summer, the state of Nevada passed a statute authorizing syringe exchange and pharmacy sales.  There are now 16 jurisdictions whose laws explicitly authorize syringe exchange programs (CA, CO, CT, DC, DE, HI, MA, MD, ME, NJ, NM, NV, NY, RI, VT, WA) and the number of states that require a prescription for retail purchase without exception has dwindled to ONE (Chris Christie’s New Jersey – Delaware, the other hold out, changed its law this year.)  But the important thing is not the next halting steps in this slow trend, but the quality of Nevada’s legal contribution.  This is going to get a little bit wonky in parts, but let me just take you on a quick tour of this marvelous statute, which drew from a model created several years ago by the Canadian HIV/AIDS Legal Network.

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