Over on Volokh, there’s a much better forecast on what the actual results will be of the DOJ’s policy change regarding the state secrets privilege.
By voluntarily checking its own assertion of the privilege, the Administration may have slowed the momentum by these other two branches to establish greater restrictions on executive use of the privilege. For those, like myself, who are concerned about the privilege’s abuse in the hands of any executive, the new policy is a mixed blessing. Yes, I am happy to see the Administration voluntarily establish constraints on its use of the privilege, but I am hesitant to leave the privilege completely to the executive’s discretion. Ironically, then, the very policy shift that limits the privilege today may be the one that prevents courts and Congress from limiting abuse of the privilege in the future.
This seems very right to me. I do think the ultimate effect will be just this, that the Executive branch gave up a little ground today in order to fortify its position for tomorrow — and ultimately, it will retain a state secrets privilege of greater scope than it would if have had it not been publicly seen to retreat a few steps now.
Via language log, the internet has claimed another victim — the Wisconsin Tourism Federation. Compare the old and new logos below.
It’s really a pity that the Southern Tenant Farmers Union no longer exists. Otherwise we’d get more great lines like the one from this book, “Communist efforts to capture the STFU,” or this one, “Without the STFU, these people may not have dared to exercise these rights of citizenship.”
• It’s better to beg forgiveness than offer money: “You might think that if the apology is costless then customers would ignore it as nothing but cheap talk – which is what it is. But this research shows apologies really do influence customers’ behaviour – surprisingly, much more so than a cash sweetener.” However, I doubt these results would carry over to businesses outside of the eBay sales that this study followed. On eBay, most transactions involve no human interaction at all, but rather merely clicking a series of buttons. When things go wrong, receiving an apology from a real live person can do a lot to make you feel as if you weren’t deliberately ripped off by a computer scam, but rather were the victim of a common human screw up.
And saying sorry apparently doesn’t have any sort of magical effect if you happen to be a doctor: “Apologizing for a medical error in full and accepting responsibility may boost patients’ perceptions of physicians but may not stop them from suing[.]”
• The rent-seeking behaviors of law schools and law professors: Law schools are notorious for their attempts to climb up the US News rankings by gaming the system — “Aside from hiring their own graduates to up the employment level, they all employ squads of people whose jobs are to create social costs (of course, most lawyers do the same thing), produce huge glossy magazines that go straight to the trash, weasel around with who is a first year student as opposed to a transfer student or a part time student, [and] select students with an eye to increasing one rating or another.”
This sort of rent seeking behavior occurs in all industries, but there’s something even more disquieting about it when all that effort is wasted pursuing the nebulous goals of legal academia. “Very little of [law school rent seeking] seems designed to produce new wealth. If fact, think of the actual welfare-producing activities that could be undertaken with the same levels of energy — smaller classes, more sections of needed courses, possibly even research into areas that are risky in terms of self promotion but could pay off big if something new or insightful were discovered or said. But this is the part that puzzles me. Whether the thief in Tullock’s case or monopolist in Posner’s, the prize is clear. What is the prize for law professors? Are these social costs expended to acquire rents that really do not exist or are only imagined? What are the rents law professors seek?”
Why do we rely so much on doctors? A good friend of mine is currently in med school up here in D.C. (hi there, Travis), and we frequently get into fights enthusiastic discussions about whether or not the U.S. health care system could be improved by expanding the practice areas of health care providers who are not MDs. My view: Of course we should. It doesn’t take seven years of schooling to diagnose simple ailments or put in stitches. His view: Having procedures be performed by non-doctors will result in subpar quality of care and therefore is not ultimately more efficient.
And to some extent we’re obviously both right. Non-doctors — such as nurse practitioners and physicians’ assistants — are cheaper to train and are more than adequate for most common health complaints that turn up in primary care. But in some patients, health problems that appear on the surface to be routine will in fact turn out to be more complicated issues, and having a doctor involved from the start would result in a better outcome. But I still think that for a lot primary care and urgent care situations — and particularly for the uninsured — being forced to see a doctor when a nurse would do just as adequately is a waste of resources. And while a good majority of doctors appear to be against the idea of allowing greater involvement by NP’s, I do wonder how much of this is due to a protectionist sentiment at play.
There is empirical evidence supporting the idea that the quality of care provided by both nurses and doctors is equivalent. Studies have found that “[i]n an ambulatory care situation in which patients were randomly assigned to either nurse practitioners or physicians, and where nurse practitioners had the same authority, responsibilities, productivity and administrative requirements, and patient population as primary care physicians, patients’ outcomes were comparable”, as well as that “[p]atients are more satisfied with care from a nurse practitioner than from a doctor, with no difference in health outcomes”. I’d caution that this doesn’t necessarily translate to cheaper in all cases; some studies find that even though patients experience increased satisfaction with their results when they receive care from mid-levels, they might not gain an additional benefit in the form of reduced costs, as “Even though using nurses may save salary costs, nurses may order more tests and use other services which may decrease the cost savings of using nurses instead of doctors.”
But even if mid-level health-care providers offered slightly lower quality of care, why are they banned from providing it all together? For those who are confident they have only a minor health issue, why not let them choose to pay less and go see a nurse rather than a doctor? It’s both a little paternalistic and a little suggestive of anti-competitive business practices for doctors to continue to lobby the government to set a floor on the supply of health care services in this way.
Still, even if we allow non-MDs to oversee more patients with routine problems or in need of only primary care services, this may do little to counteract the growing shortage of primary care physicians:
Mid-level [practitioners] are not immune to the vast incentives favoring practicing in a specialty environment. As Val Jones reported, when nurses were asked why more are not entering generalist practice, the reply was blunt: “We’re not suckers.”
Already, 42 percent of mid-level providers practice in specialty fields, and I fully expect this number to rise if the primary care environment continues to deteriorate, especially when contrasted to the salary and lifestyle offered to specialists.
Suggestions that we fill the primary care practitioner shortage with foreign medical graduates are equally lacking — many foreign doctors act as general practitioners in rural areas to fulfill visa requirements, and then switch to more lucrative positions as specialists in urban areas.
One small step towards increasing the number of GP’s might be a
re-branding effort:
By the way, I hate the term primary care. It makes it sound cheap. It makes it sound dumb. It makes it sound so superficial. What we do as internists, pediatricians and family medicine doctors is far more than the connotation of primary screening and evaluation. We manage many complicated patients with mulitorgan failure. And many doctors in rural America do it all alone. With no help at all. Some of the best doctors in the world are rural primary care physicians who must treat highly complex medical issues by themselves. Not because they want to but because they have to.
The name primary care has got to go. Perception is 4/5th of the equation.
Another blogger used the word comprehensive care once. I think that is perfect. And I use it often in my blogging.
So everyone knows by now that Colonel Qaddafi had a train wreck of speech before the General Assembly (“everyone” includes, disturbingly enough, Stormfront — a google search earlier on ‘Qaddafi’s speech’ had them in the top ten returns!), but while reading about Qaddafi’s ramblings, I learned some other nifty facts about UN Assembly procedure I thought I’d share here:
1) By tradition dating to the 4th GA, Brazil is always the first country to speak. The second speaker is the host country. After that, it’s first come first serve, with a 15 minute time limit.
2) Despite the 15 minute limit, Qaddafi Ranty McRantypants went off for an hour and a half. Then again, who would shut him up? Under UN procedure, speakers are supposed to be cut off by the President of the General Assembly. “Though originally largely a ceremonial position, the president of the General Assembly does have considerable say during the annual session, ruling on matters of procedure, time limitations for speakers, and making decisions on extending, curtailing or adjourning debates.” So who’s the current president? Dr. Ali Abdussalam Treki, a Libyan Diplomat. Maybe that’s why Qaddafi chose now to make his first speech before the GA in his 40 years as the leader of Libya.
(Then again– Obama went on for 38 minutes. So Qaddafi’s hardly alone in going overtime.)
3) Heads of state trump heads of government, at least in UN speech order. (Princes lose to both.) Although PM Gordon Brown did go ahead of President Jintao, this year, so it’s not strictly followed.
4) Much like failed plans for introducing prayer into U.S. public schools, under Rule 62 of the GA Rules of Procedure, at the beginning of plenary General Assembly meetings, “the President shall invite the representatives to observe one minute of silence dedicated to prayer or meditation.”
5) There are five regional groupings of UN members: Asian Group, African Group, GRULAC (Latin America + Caribbean), Eastern European Group, and WEOG (the Western states). Q: Which two member nations of the UN do not belong to any regional group? A: Kiribati and the United States.
“I don’t think anybody has ever done a real study of General Assembly speeches because nobody listens to them,” said Stephen Schlesinger, a historian of the body.
From the Questions for Public Comment [PDF], the agencies list two goals for Horizontal Merger Guidelines reform: “First, updated guidelines could more accurately and clearly describe current Agency practice. Second, updated guidelines could reflect and incorporate learning and experience gained since 1992.” This sounds innocuous enough, right? We’re just going to change the merger guidelines so they actually describe what we’re really doing anyway, and adding in some new things we learned. No biggie.
Well, I’ll save my snark until after the ‘series of public workshops’ has been completed and new guidelines have proposed or adopted. And I’m being somewhat more disingenuous than is called for, as the questions the FTC and DOJ have put out to solicit public input on are actually very thoughtful and unbiased, and bring up issues of antitrust law that very much ought to be addressed. But I’ll admit it: the prospect of a change in merger guidelines under a Democratic Administration doesn’t exactly have my heart leaping for joy.
“I believe that the business community and merger practitioners understand current enforcement policy on horizontal mergers quite well. This is true with respect to general policies and also with respect to fine points on market delineation, competitive effects analysis, and evaluation of efficiencies claims. Therefore, I perceive no significant uncertainty that should be addressed through revising the Horizontal Merger Guidelines.”
Some of the changes are vaguely worded and do not appear to be likely to impose all that much of a constraining effect. Announcements that the DOJ “commits not to invoke the privilege for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials” and “commits to provide periodic reports on all cases in which the privilege is asserted to the appropriate oversight Committees in Congress” sound good, but are pretty hollow of content.
But two of the changes do appear to be significant. First is the shift to a “significant harm” standard. Under United States v. Reynolds, the Supreme Court found that the federal government was entitled to invoke the state secrets privilege if, “from all circumstances of the case, […] there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” 345 U.S. 1, 10 (1953). Under the new DOJ policy, which will go into effect October 1, 2009, “the Department will now defend the assertion of the privilege only to the extent necessary to protect against the risk of significant harm to national security.”
The second important policy change is that any invocation of the privilege will have to be made at the highest level of the DOJ, by the Attorney General himself. This is a good move. Any “state secret privilege” should only be brought into play in extreme circumstances, and should not be entered into casually. The AG is one step removed from the President himself, and hopefully this will lead to a greater degree of accountability in the process.
Then again, if I were going to be extremely cynical, I would suggest to you that the Executive Branch is only adopting this new policy — which is modest in scope — as a preemptive measure, to ensure that the Legislative Branch does not usurp control over reforming the state secrets privilege. But this is Washington, D.C., why would anyone be cynical here?
According to reputable sources, Beyoncé had one of the best videos of all time. It’s also been well publicized that parts of the dance routine used in Beyoncé’s video were, shall we say, heavily influenced by a 1960’s dance routine choreographed by Bob Fosse and performed by Gwen Verdon, called “Mexican Breakfast.”
Below is the original Fosse routine, set to Single Ladies:
But I realized after seeing some articles on Beyonce’s rip off that I had no idea if there would even be anything legally actionable about it. I got curious enough to take a look, and it turns out choreography can in fact be copyrighted, under the Copyright Act of 1976, which provides, in part:
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: … (4) pantomimes and choreographic works … .
17 U.S.C.A. 102(a)(4).
Dance routines are most commonly “fixed in any tangible medium” via video recording or labanotation. Mexican Breakfast does have a fixed video recording, but it could also be recorded in written form through the extremely complicated method of recording choreography known as labanotation, that marks the positions of the body through each move of a dance routine. So by today’s standards, a copyright could easily be obtained here.
That would not have been the case when Mexican Breakfast was first performed. In 1909, dance was not copyrightable, as it did not qualify as “useful” by Congress’ definition. In 1947, this changed, slightly, but only dances that conveyed a narrative qualified. It was only with the 1976 act that abstract moves — like Mexican Breakfast — obtained any protection all. Even with the expanded protection, however, actions for infringement of choreography remain extremely rare, and there are only a small handful of previous cases to go by.
Beyoncé is nostranger to infringement suits, but despite diligent googling, I was unable to come up with any information on whether there’s been any legal wrangling over Single Ladies. It doesn’t look as if there are any suits underway, and in any event its not clear that Beyoncé’s routine was an infringement of Mexican Breakfast — while there are obvious influences in Single Ladies, it might not rise to the level of substantial similarity. I don’t have any background in dance, and so won’t even try to speak to the number and nature of the similarities between the two routines; it’s hard for me to say if Single Ladies appropriates the heart of the Bob Fosse routine, or if it’s more of a reference than a rip off.
Anyway, it looks like someone cares enough about the copyright in the Mexican Breakfast to be protecting their interest in the video, even if not the routine itself– I tried and failed to find a copy of the original dance from The Ed Sullivan Show, as someone’s been yanking copies of it off the ‘nets.
And while I’m not convinced there are any net economic gains to be had from allowing copyright protection for dance moves — and the dearth of suits in this area would suggest there’s not much profit to be had in it even for choreographers — at least its not nearly as silly as allowing IP protection for yoga and sports moves.
-Susan
UPDATE: I wish I’d found this blog post sooner. On how and why copyright is not heavily utilized for dance:
Only 1,115 registered dramatic works, choreography, and pantomimes were transferred to the Library.
This very low figure corresponds to the legal literature on copyright and choreography, which repeatedly notes choreographers’ decision not to rely on copyright and to instead develop their own “community” system of protection, protection believed to be better suited to choreography and providing better protection. The community system works in large part because of the concentration of choreographers in New York City, the tight-knit nature of dance companies, and the reputation within the community enjoyed by choreographers.
The View From LL2 