Social Signaling and the Undoing of the Harm Principle

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By Nathaniel Counts

In On Liberty, John Stuart Mill asserted that “[t]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”  This has since become known as the harm principle and is foundational for much of American political discourse, especially for libertarianism and civil rights.  At the time of Mills’ writing, On Liberty having been published in 1859, this logic could protect a lot of conduct that involved consenting adults or did not appear to directly impact others.  If the harm principle was controlling, we could never have a soda ban.  Today however, with our advances in social science, clear lines of harm and no harm have become fuzzy.

Few people buy cigarettes in a vacuum.  Someone offers you cigarettes or you see other people smoking and then you buy cigarettes.  This phenomenon, in which we make decisions based on the decisions of others in relationship to our esteem for them (if we see someone we respect smoking, we will be more likely to smoke; if we see someone we do not respect smoking, we will be less likely to smoke) is called social signaling (The Origin, Development, and Regulation of Norms is a great article on a related topic, the generation of norms, which explains this phenomenon quite well).

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Dov Fox quoted on pre-natal DNA testing

Dov Fox Leave a comment

Dov Fox is quoted in a story in this morning’s Boston Globe on a new study recommending pre-natal DNA testing as a superior method for detecting chromosomal abnormalities in a fetus. 

“This technology is certainly only in its infancy as the range of testable conditions expands, physical conditions, cognitive conditions, even behavioral ones,” said Dov Fox, an assistant professor of law at the University of San Diego School of Law. “That will only further complicate how parents decide what counts as healthy or acceptable in the children that they have.”

Read the full article.

 

FSMA Conference Part 4: Benefits, Challenges, and Gaps in FSMA’s Approach

The Petrie-Flom Center Staff Leave a comment

[Ed. Note: On Friday, the Petrie-Flom Center, the Food Law and Policy Clinic (a division of the Center for Health Law and Policy Innovation), the Food Law Lab, and the Harvard Food Law Society (with support from the Top University Strategic Alliance and the Dean’s Office at Harvard Law School) co-sponsored a conference at HLS called “New Directions for Food Safety: The Food Safety Modernization Act and Beyond.”  This week, we will be sharing a series of blog posts from the event, and video will follow shortly.]

By Jeffrey Skopek

Lewis Grossman, Washington College of Law, American University – New Governance, New Challenges

Professor Grossman opened the panel by locating FSMA in the context of the “new governance” movement that has arisen in response to the limits of command and control regulation.   Read More

3/11: Evaluating the Revised Diagnostic and Statistical Manual of Mental Disorders (DSM-5)

The Petrie-Flom Center Staff Leave a comment

Evaluating the Revised Diagnostic and Statistical Manual of Mental Disorders (DSM-5)

Tuesday, March 11, 2014, 12:00pm

Wasserstein Hall 3018, Harvard Law School, 1585 Massachusetts Ave.

The DSM is the reference used by clinicians, researchers, and insurers to diagnose and classify mental disorders, with the intent to provide specific, objective criteria by which to assess symptoms and determine whether to pay for treatment.  The American Psychiatric Association released the manual’s fifth edition in May 2013, nearly twenty years after the fourth edition, to substantial public and professional criticism.  Please join us for a discussion of the new revisions and their implications for patients, medical practice, research, and the law.

Panelists:

  • Steven E. Hyman, Director of the Stanley Center for Psychiatric Research at the Broad Institute and Harvard University Distinguished Service Professor of Stem Cell and Regenerative Biology
  • Anne Becker, Maude and Lillian Presley Professor of Global Health and Medicine, Harvard Medical School
  • Nita Farahany, Professor of Law, Professor of Genome Sciences & Policy, and Professor of Philosophy at Duke University
  • Moderator: I. Glenn Cohen, Professor of Law, Harvard Law School; Faculty Co-Director, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

This event is free and open to the public. Lunch will be provided. For questions, contact petrie-flom@law.harvard.edu or 617-496-4662.

This event is supported by the Oswald DeN. Cammann Fund.

Global Health Governance: Call for Submissions

The Petrie-Flom Center Staff Leave a comment

Global Health Governance will be publishing a special issue on a proposed Framework Convention on Global Health (FCGH) in December 2014. The proposal for an FCGH would create a new international framework, grounded in the international human right to health, that would support health at the national and global levels.

For this FCGH special issue, Global Health Governance invites submission of theoretical and empirical policy research articles that examine and analyze how the FCGH could improve health through improved governance and realization of the right to health. We have particular interest in articles on: Read More

Twitter Round Up

The Petrie-Flom Center Staff Leave a comment

This week’s twitter round up features a variety of topics from our contributors, from the correlations between cancer survival rates and funding to blog posts about possible criminalization of drinking while pregnant.

Frank Pasquale tweeted that “there’s a direct correlation between funding and survival rates” regarding cancer from an entry of the blog “Every Breath I Take: A Blog about my Journey with Lung Cancer.”

Art Caplan tweeted about flu vaccinations again this week in order to bring the Rhode Island ACLU’s attention to the CDC’s determination that “getting the flu vaccine this season reduced risk of flu-related doctor’s visits by 61 percent.”

Amitabh Chandra tweeted an article from the Annals of Internal Medicine discussing bariatric surgery and its greater effects on weight loss and diabetes remission than nonsurgical measures to combat obesity.

Stephen Latham tweeted a link to his blog post about the “Criminalization of Drinking While Pregnant in the UK?” which discusses current “plans to bring legal action to establish liability for criminal damages by women who drink while pregnant, with resultant damage to their newborns.”

Professional Licensing Boards and Antitrust Liability

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[Blogger’s Note: I am very pleased to share this post by my colleague at Seton Hall Law, Tara Adams Ragone, in which she discusses North Carolina Board of Dental Examiners v. FTC, drawing on both her scholarly work on the intersection of health care and antitrust law and on her deep experience prosecuting medical licensing actions for the state of New Jersey.]

By Tara Adams Ragone

Cross-Posted at Health Reform Watch

Should state professional boards, which regulate a growing and diverse array of professions and often are composed of professionals from the regulated community, be immune from federal antitrust liability if they engage in anticompetitive conduct?  The Federal Trade Commission thinks not in all cases, the Fourth Circuit agreed, and the North Carolina Board of Dental Examiners has asked the United States Supreme Court to review this decision.

Sasha Volokh recently devoted a 5-part series of blog posts to the major legal issues in play in this case.  He provides an overview of the antitrust state action immunity doctrine here, summarizes the facts underlying the case, North Carolina Board of Dental Examiners v. FTC, here, outlines the differing tests used in the circuits when applying the state action immunity doctrine to professional boards here, offers his opinion on how the Supreme Court ought to resolve these conflicts here (he leans towards the Fourth Circuit’s analysis), and suggests a possible way for the Board to work around the FTC’s injunction (by simply rephrasing its letters to threaten litigation) here.  Sasha’s posts provide an accessible and helpful primer on the case and relevant antitrust case law and are worth a read.

While we wait to learn if the Supreme Court will review this case, Professors Aaron Edlin and Rebecca Haw tackle the question of whether the actions of state professional licensing boards should be subject to antitrust scrutiny in their article, “Cartels by Another Name: Should Licensed Occupations Face Antitrust Scrutiny?” (available on SSRN and forthcoming in the University of Pennsylvania Law Review).  Although they use a question mark in their title, their characterization of licensing boards as cartels is a powerful tipoff to their ultimate conclusion – that licensing boards composed primarily of competitors regulating their own profession should not escape antitrust review: Read More

Hard Paternalism

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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

FSMA Conference Part 3: Regulating Farm Production: From Zero to Sixty

The Petrie-Flom Center Staff Leave a comment

[Ed. Note: On Friday, the Petrie-Flom Center, the Food Law and Policy Clinic (a division of the Center for Health Law and Policy Innovation), the Food Law Lab, and the Harvard Food Law Society (with support from the Top University Strategic Alliance and the Dean’s Office at Harvard Law School) co-sponsored a conference at HLS called “New Directions for Food Safety: The Food Safety Modernization Act and Beyond.”  This week, we will be sharing a series of blog posts from the event, and video will follow shortly.]

By Jason St. John, JD candidate, Harvard Law School

The third conference session, “Regulating Farm Production: From 0 to 60,” was moderated by Robert Greenwald, Director of the Center for Health Law Policy and Innovation at Harvard Law School. To make the presentations more cohesive, the presenters divided each of their fifteen-minute presentations into two seven-minute presentations. The panel discussed the FDA’s proposed Produce Safety rule under the Food Safety and Modernization Act (FSMA), the rule’s focus on produce and growing of food, and the large question of whether FSMA makes our food safer.

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