Law's second angle of vision

The July 2009 Scientific American Magazine* includes an article by Michael Tennesen examining the possible legal issues of virtual realities:

...as online communities conduct actual financial transactions and draw in more participants, some legal experts think that it may be time to extend brick-and-mortar jurisprudence into the virtual realm.

Examples of fraud, marital alienation, character and attributes theft, even murder are cited to have overflowed into the real world demanding courtroom adjudication. Tennesen supposes:

Courts could set precedents as cases arise from the virtual world. South Korean courts, for instance, have done so a number of times in dealing with virtual property; in contrast, U.S. courts have shied away from the issue. The scope of the online realm suggests that legislation may be desirable. Virtual commerce is worth about $1 billion annually and is set to get bigger...

Avatar Acts: Why Online Realities Need Regulation by Michael Tennesen
(July 2009 Scientific American Magazine, html)

*Scientific American Magazine is made available online over the course of each month.

Health insurance exchange

Earlier this month the Employee Benefit Research Institute (EBRI) issued a study that examines managed competition and using a health insurance exchange to address cost, quality, and access to health care services. From the press release:

A key element being discussed as part of health reform—the creation of a health insurance exchange that would offer new forms of insurance pooling, combined with an individual mandate and guaranteed issue—would restructure the health insurance market and has major implications for the existing employment-based benefits system....

Relating to the exchange, the paper discusses risk vs. price competition, adverse selection and affordability, the public plan option, and the future of employment-based coverage.


Addressing Health Care Market Reform Through an Insurance Exchange: Essential Policy Components, the Public Plan Option, and Other Issues to Consider, Issue Brief #330 (pdf, 24pp/204kB), June 2009

Press release, June 9, 2009

Recent GAO reports

From the Government Accountability Office (GAO):

TROUBLED ASSET RELIEF PROGRAM: June 2009 Status of Efforts to Address Transparency and Accountability Issues, GAO-09-658 (pdf, 117pp/1.3MB), June 17, 2009

This is GAO's fifth report on TARP. Here GAO reviews:

1. activities that had been initiated or completed under TARP as of June 12, 2009
2. the Dept. of the Treasury's Office of Financial Stability's (OFS) hiring efforts and use of contractors
3. TARP performance indicators

It makes 5 recommendations, including that Treasury improve disclosure of the warrant repurchase process, fully implement a communication strategy that ensures all key congressional stakeholders are kept up to date about TARP, and ensure consideration of generally consistent criteria to evaluate repurchase requests.

TROUBLED ASSET RELIEF PROGRAM: Capital Purchase Program Transactions for October 28, 2008, through May 29, 2009, and Information on Financial Agency Agreements, Contracts, Blanket Purchase Agreements, and Interagency Agreements Awarded as of June 1, 2009 (an e-supplement to GAO-09-658), (GAO-09-707SP), June 17, 2009


AVIATION AND CLIMATE CHANGE: Aircraft Emissions Expected to Grow, but Technological and Operational Improvements and Government Policies Can Help Control Emissions, GAO-09-554 (pdf, 100pp/1.25 MB), June 8, 2009

According to the Intergovernmental Panel on Climate Change (IPCC), aviation emissions account for 2 percent of CO2 emissions and 3 percent of global warming. While fuel-efficient engines and other technological, operational, and alternative fuel improvements are expected to help reduce emissions, some technologies are in the distant future and likely to be costly. GAO presents policy options for governments that can address emissions from many sources including aircraft - market-based policies such as a cap-and-trade program, an emissions tax, or subsidies; mandating certain technologies or placing emissions limits; and increasing government R&D.


INFLUENZA PANDEMIC: Continued Focus on the Nation's Planning and Preparedness Efforts Remains Essential, GAO-09-760T (pdf, 28pp/300kB), June 3, 2009

This testimony was presented prior to the World Health Organization (WHO) declaring a global pandemic of the H1N1 (swine) flu on June 11. The testimony was based on a report GAO issued in Feb. 2009, which synthesized its earlier 11 reports and two testimonies on influenza pandemic planning. GAO found that federal agencies have acted on 13 of its 23 recommendations. "With the possibility that the H1N1 virus could return in a more virulent form in a second wave in the fall or winter, the administration and federal agencies should turn their attention to filling in the planning and preparedness gaps GAO's work has pointed out."


REAL ESTATE TAX DEDUCTION: Taxpayers Face Challenges in Determining What Qualifies; Better Information Could Improve Compliance, GAO-09-521 May 13, 2009

Every year there is a gap between federal taxes owed and paid. Real estate taxes in the U.S. are levied primarily by local governments, and taxpayers deduct those taxes on their federal income tax returns. The problem is determining what is deductible, as neither local-government tax bills nor mortgage-servicer documents identify what qualifies as deductible. The Joint Committee on Taxation has identified improved taxpayer compliance with real-estate tax deductions as a means to reduce the tax gap. To do this, GAO recommends that the Internal Revenue Service (IRS) change its guidance to taxpayers, revise its auditing of the deduction, identify a cost-effective means of obtaining information on tax bill charges, and conduct outreach to local governments and others on options for helping taxpayers comply.


TELECOMMUNICATIONS: Broadband Deployment Plan Should Include Performance Goals and Measures to Guide Federal Investment, GAO-09-494 May 12, 2009

Of the 30 nations in the Organisation for Economic Co-operation and Development (OECD), the U.S. ranks 15th in broadband subscribership, slipping from 4th in 2001. Universal broadband access is "a critical economic engine, a vehicle for enhanced learning and services, and a central component of 21st-century news and entertainment." Some type of broadband access reaches 90 percent of U.S. households, but to reach the remaining unserved or underserved regions is estimated to cost tens of billions of dollars and likely require federal funds because of low profit potential. GAO discusses

1. the federal broadband deployment policy, principal federal programs, and stakeholders' views
2. how the policies of OECD nations with higher subscribership rates compared with U.S. policy
3. actions states have taken to encourage broadband deployment.

Climate decisions

National Academies created the Panel on Strategies and Methods for Climate Related Decision Support "to provide a framework and a set of strategies and methods for organizing and evaluating decision support activities related to climate change." In evaluating the growing need for climate-related decision support, the Panel offers:

Both conceptually and practically, people and organizations will have to adjust what may be life-long assumptions to meet the potential consequences of climate change. How and where should bridges be built? What zoning rules may need to be changed? How can targets for reduced carbon emissions be met? These and myriad other questions will need to be answered in the coming years and decades.

The published study "drawing on evidence from past efforts to organize science for improved decision making, develops guidance for government agencies and other institutions that will provide or use information for coping with climate change."

Informing Decisions in a Changing Climate, National Academies Press (available online as an Open Text Document)
2009, 200 pages

Substance use and workplace injuries

The RAND Center for Health and Safety in the Workplace published a paper on the effect of substance use on occupational injuries. In examining the literature, the authors found these emergent themes:

• The impact of substance use on occupational injuries varies by age and gender, which may reflect differing rates of substance use and job hazards across these groups.
• There is also variation in substance use, occupational injuries, and the association between the two across different industries.
• Other factors related to alcohol and substance use, such as social structures and level of risk aversion, may better explain injury than alcohol and substance use do.
• Even where correlations between alcohol and drug use and injury are significant, only a small proportion of occupational injuries can be attributed to alcohol and drug use.
• Few studies look at the cost to industry of off-the-job worker injuries through disability and absenteeism. This may, in fact, be a bigger concern.

The authors conclude that there is an association between substance use and occupational injury, and this association is stronger for males and in certain industries, and may also be stronger for younger workers.

The proportion of injuries caused by substance use, however, is relatively small. Instead, there is mounting evidence that harmful substance use is one of a constellation of behaviors exhibited by certain individuals who may avoid work-related safety precautions and take greater work-related risks. Thus, we suspect that it is more likely that risk-taking dispositions, often termed deviance proneness, and other omitted factors can explain most empirical associations between substance use and injuries at work.

The Effects of Substance Use on Workplace Injuries, June 5, 2009
      Report (pdf, 55pp/345kB)
      Overview

Blogging and the supreme court

The 2009 Stanford Law Review Symposium, "Media, Justice, and the Law," was covered in its April 2009 issue. Rachel C. Lee authored a Note on "the power of blogs to rapidly reach large audiences--possibly including Justices or their clerks--with persuasive arguments on pending cases."

The Note focuses on the Court's 2008 decision in Kennedy v. Louisiana, 128 S.Ct. 2641, 554 U.S. ___ (pdf, 37pp/164kB), which held that the Eighth Amendment prohibited the death penalty for child rape. On June 28, 2008, three days after the opinion was published, a military attorney noted on his blog of a possible error in the decision. Another attorney saw the post and told his wife, a New York Times writer, who wrote a July 2 front-page article on it. On July 21, the state of Louisiana petitioned the Court for a rehearing. According to the Note, the Court rarely grants a rehearing but did invite briefs from Kennedy, Louisiana, and the Solicitor General of the U.S. on the matter. On Oct. 1, the Court declined to rehear the case but issued a modification of its earlier decision.

The Note concludes:

...the phenomenon of ex parte blogging raises serious ethical issues that must be considered by the legal community. This Note offers a starting point for the necessary conversation about how best to respond to the challenges and opportunities created by this distinctive new mode of communication.

Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era (pdf, 39pp/436kB), 61 Stan. L. Rev. 1535 (2009).

Health insurance in Congress

Congress is considering major changes in the health insurance system. The Congressional Budget Office (CBO) released a brief on how it will judge budgetary treatments of the various proposals. The proposals share some or all of the following features:

• Mandatory insurance with specified minimum benefits
• "Play-or-pay" requirement for employers
• New subsidies and expanded eligibility for Medicaid
• New "exchanges" for individuals and some small employers to purchase insurance
• Establishment of a "public plan" alongside private plans
• A federal health board for oversight

In CBO’s view, the key consideration is whether a proposal would be making health insurance an essentially governmental program...(or)...a largely private-sector system.

The Budgetary Treatment of Proposals to Change the Nation's Health Insurance System
      Issue brief (pdf, 7pp/108kB), May 27, 2009
      Blog, May 27, 2009