The University of Chicago Law School Faculty Blog

The Puzzling Consensus in Favor of the Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act, which bans certain types of genetic discrimination by employers and insurers, passed the House by a vote of 414 to one, and the Senate by a vote of 95 to zero. That means it's a good idea, right? Wrong.

Suppose an insurance company wants to offer a policy capped at $10,000 over a year. It has two types of potential clients: high-risk types who have a 0.05 risk of suffering a $10,000 injury and low-risk types who have a 0.01 risk of suffering a $10,000 injury.  In expected terms, the high-risk types cost the insurer $500 each, and the low-risk types cost the insurer $100 each.

Consider the following question. If the insurance company can distinguish potential clients on the basis of easily visible markers (such as age), do you think it should be able to offer an expensive policy for high-risk types ($500) and a cheap policy for low-risk types ($100)?

If the insurer can do this, then everyone gets insurance who wants it. If the insurer can't do this, then fewer people will. The insurer can't offer policies for $100, for then the high-risk types will snatch them up, and the insurer, receiving $100 and paying $500 per person, will go out of business. If it offers policies for, say, $250—the average cost for the two types—the business will still probably not be sustainable. All or nearly all the high-risk types will buy the policy, while many low-risk types will be reluctant to pay so much for insurance against a low risk. The average cost will thus rise above $250, while receipts will continue to be $250 per person. Perhaps the insurer will offer only $500 policies, in which case half the population—the low-risk types—must go without insurance that they desire.

Most people agree that insurers should be able to discriminate on the basis of risk. We don't expect a 25-year-old to pay the same premium for life insurance that a 90-year-old must pay.

Suppose, then, that the types cannot be distinguished on the basis of a visible marker, but a simple checkup with a doctor will determine which type a person belongs to, perhaps based on a blood test that determines whether the person currently has a dangerous disease. Should the insurance company be permitted to offer the cheap $100 insurance policy only to people who obtain a doctor's certification that they belong to the low-risk group? If you think that insurance companies should be able to discriminate on the basis of visible markers such as age, you ought to think that they should be able to discriminate on the basis of doctors' certifications. If the insurance company should be able to deny insurance to a person visibly dying from a disease, then it should be able to deny insurance to a nonvisibly dying person on the basis of a blood test. There is no morally relevant distinction between looking at the person's outer shell and looking at his blood under a microscope.

Suppose, now, that a person's risk type is based not on a simple blood test that determines whether he is infected with a particular disease, but on a genetic test that determines whether he has a greater than normal susceptibility to a particular disease. Should the insurance company be permitted to offer the cheap insurance policy only to people who obtain a doctor's certification that a genetic test shows that they belong to the low-risk group? If you think that insurers should be able to discriminate on the basis of visible markers and on the basis of simple doctors' tests for the presence of dangerous diseases, then you should think they should be able to discriminate on the basis of genetic tests. There is no morally relevant distinction between looking at a person's blood for the evidence of infection and looking at his DNA for evidence of susceptibility to a disease.

Or, at least, none that I can find.  The only argument in favor of banning genetic discrimination is that employers and others "misuse" genetic information. If this is true, then misuse of genetic information should be banned, not the proper use of genetic information for the purpose of assigning people to different risk pools. And if genetic information can help determine whether a person is suitable for a particular job, perhaps one that is dangerous for some types of people but not others, then it should not be considered misuse for employers to make hiring and job-assignment decisions on the basis of that information—no more than taking into account that person's visible physical abilities such as strength.

Another concern is that Americans are refusing to take genetic tests because they fear that their test results will be used against them by insurance companies and employers. But this is like saying that we shouldn't let insurers condition insurance on a visit to the doctor's office because then Americans would refuse to see the doctor, lest health information be used against them. The opposite is more likely. As genetic tests improve, insurers would require customers to take the tests if they want to purchase the cheap, low-risk-type policies.  People would have to undergo genetic tests, just as today they have to visit the doctor if they want insurance.

The only explanation for the enthusiasm for GINA is that there is an inchoate feeling among people that there is something wrong with the way the insurance market operates. After all, as long as insurance is permitted, insurers will offer cheaper rates to lower-risk people, which seems unfair to higher-risk people, especially those who are high-risk because of bad luck in the genetic lottery rather than because of a choice to pursue high-risk activities like motorcycle riding.

But this is like saying that it is unfair for employers to offer higher salaries to people who are talented, and whose talent can be traced, as it almost always can, to a lucky outcome in the genetic lottery. After GINA, employers can still discriminate against a person whose genes have bestowed him with a bad smell, awkward social skills, or a weak grasp of arithmetic. GINA does not ban discrimination on the basis of genetic information. GINA bans only discrimination on the basis of genetic information that has not yet manifested itself in observable characteristics or behaviors but that is likely to in the future. There is no sense in this distinction.

Cross-posted here.

Conference: "Torture, Law, and War"

On February 29 and March 1, the Law School hosted an extraordinary conference devoted to the topic “Torture, Law, and War: What are the moral and legal boundaries on the use of coercion in interrogation?” The conference, which was sponsored by the Law and Philosophy Workshop with assistance from the Center for Comparative Constitutionalism, showcased the interdisciplinarity for which a Chicago law education is renowned. Participants looked at the central question from the perspective of a wide range of fields, from law and public policy to psychology and history. Speakers included scholars from a dozen universities as well as the Law School's own Adam Samaha, Susan Bandes, Richard McAdams, Martha Nussbaum, Geoffrey Stone, Scott Anderson, and Eric Posner.

The conference keynote speaker was Justice Albie Sachs of the Constitutional Court of South Africa (pictured above). His talk, “Four tales of terrorism,” gave a first-hand account of his own torture by South African security forces and his brush with death when they attempted to assassinate him with a car bomb. It also described the principles behind the rejection of torture and capital punishment by the ANC, both before and after coming to power in South Africa. His talk discussed at some length four instances of terrorism, and the responses that courts and political leaders in South Africa made to them. Through these, he argued for the importance of adhering to the rule of law, including a refusal to resort to capital punishment, and also for the possibility of reconciliation with those who have previously used torture and terrorism against oneself and one’s own side in political struggles.

Audio and video of the keynote address, along with the  other panels of the conference, are now available on the conference web page.

Video: Eric Posner Discusses "America's Rocky Relationship With The World"

Last Sunday, a discussion between Eric Posner and Heather Hurlburt (Executive Director at the National Security Network and contributor to Democracy Arsenal)was posted on Bloggingheads.tv. You can watch the video and/or download audio here.

Podcast: Eric Posner and Cass Sunstein on "Climate Change Justice"

Greenhouse gas reductions would cost some nations much more than others, and benefit some nations far less than others. Significant reductions would impose especially large costs on the United States, and recent projections suggest that the U.S. has relatively less to lose from climate change. In these circumstances, what does justice require the U.S. to do?

This is the question that the University of Chicago Environmental Law Society and International Law Society invited professors Cass Sunstein and Eric Posner to discuss during a lunchtime talk yesterday. You can listen to their talk here.

Harvard's New Tuition-Waiver Plan

Phillip Carter of Slate's Convictions has asked about Harvard's new tuition-waiver program, which he thinks will encourage students to take public service jobs.  Maybe, but I'm not so sure.

Suppose that the third year of Harvard Law School costs $40,000.  Under plan (1), you borrow $40,000 from a bank and give the money to Harvard in return for your education; you owe $40,000 but Harvard pays it, so that you pay $0 back per month as long as you are employed in a sufficiently low-paying public service job.  If you stay in that job long enough, you pay back $0 and the debt is retired.  Under plan (2), you don't borrow anything and don't pay Harvard anything, nor do you have a debt.  But you have a contractual obligation to pay Harvard $40,000 (actually more) if you never take the public service job, and the amount you are required to pay if you breach your pledge gradually declines to $0 as you stay longer in the job.  In short, under plan (1) and plan (2) you pay nothing for your third year at Harvard if you take a public service job for a sufficiently long period time, and you pay something up to $40,000 if you do not.  Incidentally, because the two plans are identical (except for their names and for trivial details, and for the fact that the loan-forgiveness plan may cover more than one year of tuition), the new plan will not have any special incentive effects, for women or anyone else, that the old plan lacked.

Is the Supreme Court Pro-Business?

[Slate has started a new law blog called Convictions. Part of my first post is reproduced below.]

Jeffrey Rosen argued that it is, in a Sunday NYT magazine article, but he supplies little evidence:

"Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting voices."

-- But how many of them were decided in favor of businesses?  Weirdly, we're not told.  What if businesses won only half the time?  Or less?  Even if businesses won more often than other parties, we wouldn't be able to establish bias without knowing whether their cases were strong or weak.

"Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years."

-- Another meaningless statistic.  Suppose that the additional cases involve disputes between businesses and workers and that the workers always win.  We can't tell whether bias exists unless we know whether the Court rules in favor or against those business interests.  (For one case where the employee wins, go here.)

Should Greenhouse Gas Permits Be Allocated On a Per Capita Basis?

 

Suppose that a climate treaty is negotiated and that (as is expected) the treaty provides for a cap-and-trade system: every state will be allocated permits that can be auctioned off or given to firms. Only firms that have permits may emit greenhouse gases. If the correct quantity of permits is created, then (in principle) the socially optimal level of greenhouse gas emissions can be ensured.

One question that has received a great deal of attention is, if this system is put into place, how should permits be allocated? Under the Kyoto model (very roughly), countries that currently emit the most greenhouse gases would receive the most permits; in other words, current emissions are used as the baseline, and states are required to reduce their emissions by a constant amount or not increase them beyond a fixed year. For many people, especially those living in the developing world, this system seems unfair. Why should the richest countries receive the most permits? If poor countries like India receive a small number of permits, then they will have to pay a lot of money to receive permits necessary to develop to rich-country levels, while people in the rich countries do not.

Out of Commission

On Monday, the U.S. military announced it had charged Khalid Sheikh Mohammed and five co-conspirators with murder and other crimes in connection with the 9/11 attacks. It further announced that the defendants would be tried by a military commission at the Guantanamo Bay naval base, rather than a regular civilian court, and that they would be eligible for the death penalty. The defendants have committed horrific crimes and will almost certainly lose at trial. Unfortunately, the military commissions will themselves be on trial as much as the al-Qaida six. And in this trial, the United States runs a serious risk of losing, even if it wins.

Video: Eric Posner v. Jack Balkin: "Executive Function Disorder"

Last week, Eric Posner and Yale's Jack Balkin squared off in a video debate at Bloggingheads.tv, discussing whether the Bush Administration respects the rule of law. You can watch the video below, but we also recommend you visit the Bloggingheads page to read the interesting comments that follow.

Some highlights of the discussion [caveat: the end of the discussion was cut off by technical problems]:

• Has Bush permanently damaged the presidency? (03:46)
• Jack argues that Bush hasn’t respected rule of law (11:14)
• Eric argues that legally wrong can be morally correct (04:01)
• Is Bush against checks and balances, or just really good at them? (04:04)
• Designing democracy to head off dictatorship (05:54)
• Was the Iraq War democratically approved? (03:59)

Political Bias in the Judiciary: Does It Matter?

Do judges allow their political views to affect how they decide cases?  The answer seems to be “yes.”  Empirical studies show that Republican judges favor employers against employees and unions, businesses against regulatory agencies, and prosecutors against criminal defendants, while Democratic judges do the opposite.  The federal system seems to invite such behavior, with its partisan appointments process and lifetime tenure that protects judges from retaliation.  State electoral systems would also seem to reward partisan judicial candidates.  Scholars worried about judicial bias have proposed numerous reforms, including:

• More serious Senate involvement in federal appointments, and abolition of judicial elections in states
• Term limits in place of lifetime tenure
• Greater judicial deference to the judgments of legislatures and agencies
• Mandatory bipartisan appellate panels

All of these proposals assume that more “neutral” judges are better or that if reducing the political bias of judges is impossible, then their role should be limited.  But there is an alternative view.  Judges have legislative power in our system, and, like legislators, ought to make political judgments.  If the judiciary is ideologically diverse, the ex ante effect of biased judging on legislation should be politically neutral; and even if it is not, the main effect should be to ensure that legislation is socially beneficial, as legislators will need to be careful about enacting laws that injure the constituency of opposite-party judges.  This is not the whole story, of course, and there are cross-cutting considerations.  But the case for reform turns out to be more complicated than it first appears.  For the whole story, go here.