Nefarious and subtle

From last week's LA Times

The maker of [free] health-records software used by tens of thousands of doctors’ offices was in on a scheme to get doctors to prescribe opioids to patients. 

To doctors opening patients’ electronic records across the U.S., the alert would have looked innocuous enough. A pop-up would appear, asking about a patient’s level of pain. Then, a drop-down menu would list treatments ranging from a referral to a pain specialist to a prescription for an opioid painkiller. 

Click a button, and the program would create a treatment plan. From 2016 to spring 2019, the alert went off about 230 million times. 

The tool existed thanks to a secret deal. Its maker, a software company called Practice Fusion, was paid by a major opioid manufacturer to design it in an effort to boost prescriptions for addictive pain pills — even though overdose deaths had almost tripled during the previous 15 years, creating a public-health disaster. The software was used by tens of thousands of doctors’ offices. 

Its existence was revealed this week thanks to a government investigation. Practice Fusion agreed to pay $145 million to resolve civil and criminal cases, according to documents filed in a federal court in Vermont. Practice Fusion admitted to the scheme. The opioid maker was not named, though the details of the government case closely match a public research partnership between Practice Fusion and Purdue Pharma Inc., which makes OxyContin. ... 

The Practice Fusion case shows a more subtle method of reaching drug consumers. Employees estimated internally that the drug company could add almost 3,000 patients and bolster opioid sales by as much as $11.3 million through the partnership. Under the contract, the drugmaker paid Practice Fusion almost $1 million. 

“The pharmaceutical industry was egregious in advancing and propelling the access of opioids to a wider and wider population,” said Bertha Madras, a professor at Harvard Medical School who served on the President’s Commission on Combating Drug Addiction and the Opioid Crisis. She described the Practice Fusion arrangement as “nefarious and subtle.” 

Big tech companies have large-scale plans to reinvent healthcare, promising to revolutionize areas such as electronic records, which are a crucial source of data about consumer health. But the Practice Fusion case shows how such plans can be exploited and even provide a new avenue for financial interests to influence treatment. 

The San Francisco company was founded in 2005 and became known for its unique model of providing free, ad-supported health-records software to independent doctors. The company says its cloud-based platform has grown to be used in roughly 30,000 practices. Groundwork for the deal between the companies began in 2013, according to the statement of facts agreed to by Practice Fusion under a deferred prosecution agreement. The idea was to get the opioid maker’s pain drugs to certain kinds of patients: ones who weren’t taking opioids or those being prescribed the company’s less profitable products. It also aimed to secure longer prescriptions, according to the court papers.

Trans Fats Regulation

'The Regulation of Trans Fats in Food Products in the US and the EU' by Suzanne Bloks in (2019) 15(3) Utrecht Law Review 57-77 comments

 The regulation of trans fats sets an interesting precedent for the regulation of other legal but harmful food ingredients, such as salt, sugar and saturated fat. In this paper, we distinguish three regulatory measures to reduce such ingredients in food and population intakes: the labelling of an ingredient, a limit on the amount of the ingredient in food products and a ban on the production technology that creates the ingredient. We will compare the regulations promulgated in the US and in the EU to reduce trans fats in food and population intakes. This comparison will identify a common focus on scientific risk assessment and precautionary action but a different orientation towards regulating the internal market and towards producer interests. The comparison also lays bare differences in the regulatory systems of the US and the EU that may inspire US and EU regulators to reflect on possible improvements for future fights against legal but harmful food ingredients.

Power

'Mobilizing Market Power: Jurisdictional Expansion as Economic Statecraft' by Nikhil Kalyanpur and Abraham L. Newman in (2019) 73(1) International Organisation 1-34 comments

States with large markets routinely compete with one another to shield domestic regulatory policies from global pressure, export their rules to other jurisdictions, and provide their firms with competitive advantages. Most arguments about market power tend to operationalize the concept in economic terms. In this paper, we argue that a state's ability to leverage or block these adjustment pressures is not only conditioned by their relative economic position but also by the political institutions that govern their markets. Specifically, we expect that where a state chooses to draw jurisdictional boundaries over markets directly shapes its global influence. When a state expands its jurisdiction, harmonizing rules across otherwise distinct subnational or national markets, for example, it can curtail a rival's authority. We test the theory by assessing how changes in internal governance within the European Union altered firm behavior in response to US extraterritorial pressure. Empirically, we examine foreign firm delisting decisions from US stock markets after the adoption of the Sarbanes–Oxley accounting legislation. The act, which included an exogenous compliance shock, follows the harmonization of stock market governance across various European jurisdictions. Econometric analysis of firm-level data illustrates that EU-based companies, which benefited from jurisdictional expansion, were substantially more likely to leave the American market and avoid adjustment pressures. Our findings contribute to debates on the role of political institutions in economic statecraft and suggest the conditions under which future regulatory conflicts will arise between status quo and rising economic powers.

Attention Markets and Edumetrics

'Attention Markets and the Law' by John Newman comments

 Human attention has become one of the most scarce—and therefore most valuable—assets in modern economies. Yet current legal doctrine and discourse have almost entirely overlooked this development. As a result, different bodies of law have evolved inconsistent rules for dealing with the same subject matter. Moreover, a number of fields exhibit internal contradictions and coverage gaps. Thus, for example, antitrust and contract law have taken directly opposing views on the very existence of attention exchange. Property law has failed to consider whether attention is property, despite its similarities to information and labor—both asset categories that have prompted robust debates among property analysts. Contract-law cases have employed internally illogical reasoning, as has a leading privacy-law decision. Regulatory agencies have neglected their congressionally mandated duties and allowed massive societal-welfare harms to go unchecked. 

This Article describes these various crises and demonstrates the urgent need for reform. Toward that end, it undertakes the foundational task of constructing a robust model of attention expenditure, depletion, and exchange. Building on these insights, the Article proposes four policy changes: increased antitrust oversight of attention markets, “price” caps and Pigouvian taxes on attention consumption, and the development of property-law discourse on attention rights. It concludes with a broad call to action: legal analysts across a wide variety of disciplines must begin paying more attention to attention.

Opening the black box of data-based school monitoring: Data infrastructures, flows and practices in state education agencies' by Sigrid Hartong and Annina Förschler in (2019) Big Data and Society comments

Contributing to a rising number of Critical Data Studies which seek to understand and critically reflect on the increasing datafication and digitalisation of governance, this paper focuses on the field of school monitoring, in particular on digital data infrastructures, flows and practices in state education agencies. Our goal is to examine selected features of the enactment of datafication and, hence, to open up what has widely remained a black box for most education researchers. Our findings are based on interviews conducted in three state education agencies in two different national contexts (the US and Germany), thus addressing the question of how the datafication and digitalisation of school governance has not only manifested within but also across educational contexts and systems. As our findings illustrate, the implementation of data-based school monitoring and leadership in state education agencies appears as a complex entanglement of very different logics, practices and problems, producing both new capabilities and powers. Nonetheless, by identifying different types of ‘doing data discrepancies’ reported by our interviewees, we suggest an analytical heuristic to better understand at least some features of the multifaceted enactment of data-based, increasingly digitalised governance, within and beyond the field of education.

The authors state

 This paper seeks to contribute to the fast-growing body of Critical Data Studies by providing empirical insights into the pursuit of data, measurement and commensuration in the field of public education. As in many other governmental spheres (for a recent overview see Smith, 2018: 3), the growing development of digital data infrastructures in education raises numerous questions ‘[…] about the nature of data, how they are being produced, organized, analyzed and employed, and how best to make sense of them and the work they do. Critical data studies endeavours to answer such questions’ (Kitchin and Lauriault, 2014: 1; see also Iliadis and Russo, 2016), while explicitly challenging the idea of data as being neutral or simply technical. In fact, there is a visibly growing body of work that describes the expanding datafication and digitalisation of education policy and practice, enhanced by the promotion of the so-called evidence-based governance (e.g. Bellmann, 2015; Grek and Ozga, 2010), including research that has explicitly focused on the production and processing of international student assessments (Bloem, 2016; Gorur, 2014; Lewis, 2017; Villani, 2018). Nonetheless, the increasingly digital and automated formation, recoding, storage, manipulation and distribution of data, all of which have become integral features of education governance (Hartong, 2016, 2018a; Landri, 2018; Sellar, 2015; Selwyn, 2014: 1; Williamson, 2017), have not yet been extensively examined (see West, 2017 for an important exception), representing a ‘black box’ for most education researchers and practitioners. In other words, as described by Selwyn (2014: 13–14), there remains a pressing need to better understand ‘[…] how various forms of digital data are [specifically] set to work within educational contexts, including what data is used, what the uses and consequences are, and how data has become embedded within different organisational cultures’. 

With this paper, we seek to respond to this need by examining selected features of expanding data infrastructures, flows and practices of school monitoring in three state education agencies in two different national contexts, the Massachusetts Department of Elementary and Secondary Education (DESE) in the US and the Hamburg Department for Schools and Vocational Education (BSB) as well as the Institute for Educational Monitoring and Quality Improvement (IfBQ), an institution attached to the BSB, in Germany. In both (federally organised) countries, the past two decades have witnessed either a tremendous turn towards (Germany) or a significant expansion (US) of datafication in education, promoted by a strong national coalition for evidence-based policy, which resulted in an extensive implementation and transformation of data infrastructures and flows (Anagnostopoulos et al., 2013; Hartong, 2016, 2018a). Simultaneously, state education agencies in both countries have been urged to produce growing amounts of data and to use that data for more effective and efficient school leadership and monitoring, particularly but not limited to holding schools accountable for digital data production (González-Sancho and Vincent-Lancrin, 2016; Piattoeva, 2016). As a result, state education agencies have increasingly focused on and restructured themselves around data production, analysis, management and reporting, thus illustrating what Smith (2018: 3) recently described as the ‘dataism’ paradigm reshaping the everyday business of multiple actors and agencies. 

While the main goal of our study is to unpack for school monitoring what Kitchin and Lauriault (2014) describe as ‘data assemblages at work’, we also seek to contribute to a growing number of studies that focus on how the datafication and digitalisation of educational governance has manifested across educational contexts and systems. Notwithstanding a clear globalness in terms of ongoing transformations and thus broad commonalities between datafication policies in various countries (e.g. Lingard et al., 2015; Williamson et al., 2018), such examinations have also identified the significant influence of local contexts – including cultural, social or institutional settings – resulting in a significantly different ‘re/territorialisation’ of data infrastructures, flows and practices (Hartong, 2018a). Two of many examples are Schildkamp and Teddlie’s (2008) analysis of School Performance Feedback Systems in the US and the Netherlands, and a comparative study on educational data production, availability and use in China, Russia and Brazil by Centeno et al. (2018). The study presented here complements such analyses of digital technologies sitting ‘alongside pre-existing cultures and structures of educational settings’ (Selwyn, 2013: 209), while simultaneously filling a gap by focusing on a key, yet widely under-researched actor in the digitalisation of education governance so far, namely state education agencies and their role as ‘data hubs’ between global, national and local data infrastructures and flows. 

The following section is devoted to further, yet brief, conceptual and methodological explanations before we explore the results of the study, principally drawing on 16 interviews with 20 state agency experts conducted in Hamburg and Massachusetts between December 2017 and April 2018. Our particular emphasis hereby lies in documenting how the implementation of data-based school monitoring and leadership appears less as a purely technical procedure, but instead as a complex entanglement of very different (technical and social) logics, practices and problems. Specifically, we identify different types of ‘doing data discrepancies’, which, as we discuss in our conclusion, illustrate and conceptualise typical challenges associated with the pursuit of data, measurement and commensuration across many other domains of governmental or state activity, thus also offering important implications for the wider field of critical data studies.

AI Professional Advising

'Governing AI's Professional Advice' by Claudia E. Haupt in (2020) McGill Law Journal (Forthcoming) comments

 How should we govern professional advice given by artificial intelligence (AI)? The traditional professional-client or doctor-patient relationship is governed by a specific set of legal rules that constitute the legal framework of professional advice-giving. The goal of this legal framework is to ensure the client or patient receives reliable, comprehensive, and accurate advice in order to make important life decisions. But such a regime does not exist when AI gives professional advice. This article suggests that the first step in regulating professional AI should be to turn to the existing framework that regulates professional advice-giving. In focusing on the professional-client relationship, it foregrounds the regulatory access points at which the law can achieve the goal of ensuring good advice, whether rendered by humans or AI.

Honours, Rights and Identity Politics

Amid brouhaha about this year's Australia Day honours awards it was interesting to recall 'A Voice for the Injured: Bettina Arndt and Australian Family Law' by Kate Gleeson in (2013) 28(78) Australian Feminist Studies 375.

It deserves to be read carefully rather than with the applause/anger that is evident in social media today.

Gleeson comments

This article analyses the nature and effect of the campaign against the Family Court led by social commentator Bettina Arndt from 1995 to 2006, in the context of the men's rights agenda and the politics of anti-feminist backlash. It documents the changes to Australian family law and the workings of the Family Court under the Howard government, as a result of this campaign, in order to understand the politics of backlash in the context of Wendy Brown's States of Injury theory of 1995. In this analysis, the conservative men's rights agenda is understood as a reaction to structural and economic adjustments associated with neoliberal reforms, especially labour market regulation. But this context, of structural adjustment, is distorted in the rhetoric and focus of campaigns characterised by anti-feminist backlash, such as that directed at the Family Court in Australia. The example of Arndt and her championing of men's rights in this arena is presented as a means by which to compare the different experiences and traditions of feminism in Australia and America, and the associated politics of backlash in each nation, all of which have had a profound influence on Arndt's outlook and work. 

Bettina Arndt is a remarkably understudied figure in Australian law and politics. Capitalising on her prolific media career over three decades including editing the 1970s sex advice magazine Forum, Arndt was brought into the fold of the conservative Howard government as an advisor on issues such as assisted reproduction, education and child support. Her persistent criticism of matters of family law proved most influential, and saw Arndt serve on the 2001 Family Law Pathways Advisory Group, which was instrumental in redrafting family law in 2006. Nonetheless, Arndt has received scant academic attention, albeit with acknowledgements made of her status as a leading advocate of the Australian men's rights movement (e.g., see Flood 2004; Kaye and Tolmi 1998). Arndt once described herself as a feminist inspired by Germaine Greer, and feminism as ‘the most significant social movement of the second half of the 20th century’, but still she blames the women's movement for naively expecting men to change in line with a revolution in personal relationships ‘sought by women and imposed on men’ (Arndt 1995a, 2). Arndt advocates a men's movement, unrelated to feminism, through which ‘men are changing in response to their own needs rather than simply acquiescing to remove obstacles to women's progress’ (Arndt 1995a, 7). It is men in marriages with whom she is most concerned. On the appointment of Australia's first female Prime Minister Julia Gillard, Arndt criticised Gillard for setting a negative example by living in a de facto relationship, or ‘marriage lite’ as she described it (Arndt 2010b, 11). 

In the past, the occasional question was raised about Arndt's relationship to feminism, along the lines of ‘Bettina Arndt: Friend or Foe?’ (Young 1994). But it has been a long time now since Arndt was considered a possible friend to feminism. Since the mid-1990s, the answer has been a resounding ‘foe!’, much to Arndt's apparent satisfaction. Arndt's extolling of men's rights, as well as her critique of feminist analyses of domestic violence, sexual assault, sexual harassment and sex within marriage, has provoked feminist ire in the press (e.g., see Bastow 2012), leading her to write of a ‘Bettina Arndt hate campaign’ staged by women (www.bettinaarndt.com.au). A typical appraisal of Arndt has her reading early the winds of change following the libertarian moment of the 1970s to presciently embody the New Right conservatism of Thatcherism and Reaganism, in time for their Australian counterpart brought to bear under Howard from 1996. Some commentators, including Arndt's ‘friends’, suggest there is a ‘good chance’ Arndt made the calculated choice to champion men's rights ‘because no-one else was’ (Pascoe, quoted in Cadzow 2010). At the same time, Arndt has been described as part of an effective male ‘backlash’ against feminism (Young 1994, 10), a phrase that should prompt consideration of Susan Faludi's 1991 treatise Backlash: The Undeclared War Against American Women. Curiously though, at the time of Faludi's book there was significant doubt about its relevance to Australia, when femocrats still reigned federally, feminist rape law and other reforms were implemented and women's departments flourished within state governments and academia. Indeed, Arndt's concerted reinvention of herself as a men's rights champion in Australia from 1991 benefited significantly from her time spent living in New York in the late 1980s, and mostly pre-empted the Australian experience of feminist backlash both within the movement (such the 1995 First Stone controversy) and outside it, such as the ‘revenge of the mainstream’ performed by Howard on feminist bureaucracies and women's services and programmes from 1996 (Johnson 2000). 

In this article, I am interested in examining the nature and effects of Arndt's ideas and campaigns in the area of family law to document their effect, and as a way of exploring the differences between Australian and American feminist traditions and the related politics of ‘backlash’ in each nation. Although she has been a prolific commentator on many aspects of interpersonal relationships, especially in the Murdoch press, from 1995 to 2006 Arndt was preoccupied with family law. While a minority of conservatives, such as current Prime Minister Tony Abbott, argue for the reintroduction of fault-based divorce, or ‘covenant marriages’ (Abbott 2009), most controversy surrounding the Family Court (hereafter ‘the Court’) concerns not conditions for divorce, but arrangements for children after divorce. While most couples establish their children's living arrangements at the time they separate without recourse to law, for those who cannot come to agreement the Court will mandate living and contact arrangements. It has been observed for some time that as no-fault divorce came to be generally accepted in Australia, a gendered ‘war’ over parenting emerged, coinciding with the displacement of marriage as the ‘pivotal regulatory concept’ in family law and the development of a ‘research-informed’ approach to deciding disputes about children's living arrangements (Rhoades 2010, 164). With the demise of divorce as a source of contest between spouses, and between progressive and conservative ideologies, battles over children grew in prominence (Rhoades 2010, 164), with men's rights lobbies increasingly arguing for a form of what they call ‘joint custody’ to be mandated by the Court. The question of domestic violence has been central to this contest. For some men aggrieved by Court decisions and the related issue of child support payments, the entire family law system has acted as a lightning rod for greater feelings of displacement in a post-feminist world. This is a position Arndt has been keen to champion. In particular, during a period coinciding mostly with the Howard years (1996–2007), a populist discourse of men being systematically disadvantaged by the Court came to prevail, while the Court's function and budget were transformed and undermined. Former Chief Justice of the Family Court, Alastair Nicholson, described this as a time when, fuelled by Arndt's commentary, many politicians and members of the public came to believe that ‘fathers [were] in fact victimised by the system’ (2004). This discourse culminated in family law reforms of 2006, which diluted feminist understandings of the role and nature of domestic violence in family breakdowns and enshrined the new legal paradigm of the ‘rebuttable presumption of shared parental responsibility’ of children in Court ordered decisions. Undeniably, the men's rights campaign has been effective. 

To expand the backlash thesis of Faludi and others, the work of Wendy Brown on States of Injury (1995) is useful, and I suggest it may help explain the peculiar nature of Arndt's outlook, which is informed by a persistent Australian libertarian streak nourished in her time with Forum, as well as the perceived ‘injuries’ of American men suffering from economic and cultural displacement under neoliberalism, especially Reaganomics. Brown uses Nietzsche's concept of ressentiment — the moralising revenge of the powerless, the ‘triumph of the weak as weak’ (Brown 1995, 67) — to represent the psychological state experienced by groups and individuals who, on finding their expression of the good life frustrated and marginalised in liberal democratic political regimes, seek solace in politicised identities. This is particularly the case for women who, in order to participate in patriarchal public life, must embody identities of ‘embittered but consuming ressentiment over their exclusion’ (Brown, quoted in Genovese 2007, 186). Ann Genovese has shown the limitations of understanding men's experiences of ressentiment in response to feminist orthodoxy in politics and policy, because despite the rise of feminism men still remain ‘the normative subject’ (2007, 187). Nonetheless, Margaret Thornton notes that when the political and cultural ‘pendulum swings to the Left’ conservative men (and women) do tend to assume an identity of having been ‘injured’ (Thornton 2006, 154). 

The focus and rage of men directed at the Court, as enunciated by Arndt, represents a none-too-subtle rage at feminism, an easy target for men seeking a qualitative social change to identify as implicated in their fate of displacement. But this discourse promoted by Arndt of conservative/progressive culture wars and associated psychic injuries serves to mask the material conditions that contribute to men's lived experiences and identities of powerlessness, even those who constitute the normative subject. Contemporary identity politics emerged in response to the neoliberal transformation of society and economy, ‘rooted in disciplinary productions but oriented by liberal discourse towards protest against exclusion from a discursive formation of universal justice’ (Brown 1995, 58). In Brown's analysis, the identity of injury is heightened by the individualising conditions of modern society that have seen traditional forms of association disintegrate alongside an unprecedented expansion of domination by ‘capital and bureaucratic state and social networks’, leaving the citizen to feel an ‘unparalleled individual powerlessness over the fate and direction of one's own life’ (1995, 68). But still feminism remains a primary target for ‘angry white men’ (Sawer 1999, 1). Identities of a ‘state of injury’ continue to inform contemporary conservative agendas in today's atomised society, manifesting frequently as ‘the politics of reproach, rancour, moralism and guilt’ (Brown 1995, 68) directed at feminism. 

Hence, while mostly overlooking the changing economic and structural positions of men, Bettina Arndt links men's alienation and feelings of powerlessness in regard to their families almost exclusively to a feminist success, whereby traditional fatherhood and other masculine roles have been devalued in a feminist-affected society in which ‘men are losing’ (ABC TV 2007). Angela McRobbie (2010) notes that one of the central truisms of post-feminism is that of a feminist success in politics, culture and society that has ‘gone too far’. The Australian experience of state feminism and the work of femocrats make this country's feminism especially vulnerable to these claims. In particular, Arndt depicts the Court as having been captured by feminism to the detriment of men, providing an arena in which: vile accusations are made against men with impunity, where perjury has no consequences. A court where men have to pay and pay to try to persuade the Court to enforce its own orders. A court which even allows a woman to rename her child if it suits her. (2005, 92) 

In contrast, Genovese writes that the idea of a feminist success in the Court is ‘simply not empirically or legally correct’ (2007, 179). 

Understanding Arndt and the Australian men's rights campaign against the Court in terms of a ‘state of injury’ helps expose the strategic use and effect of the grievances of those men who despite their ‘normative subject’ position identify as injured, particularly and paradoxically at times of conservative rule, when their claims have the greatest capacity for influence. In the first half of this article, I introduce Arndt and the cultural and political traditions in which she resided before the time of the Howard government to emphasise the national idiosyncrasies of American and Australian feminism. In the second half, I provide a detailed exposition of the effects of the men's rights agenda on family law under Howard to illustrate the paradoxical power and success of a conservative agenda that perpetuates an identity of powerlessness and ‘injury’ as a crucial element of its campaign, which is encouraged by ‘sympathetic’ regimes such as the Howard government. Each focus deserves detailed attention. Despite her one-eyed view of family law, Arndt provides a more complex example than a caricature of conservative backlash, or a simple disagreement over who benefits from the workings of the Court. For, although she has proved a phenomenal ally and champion of aggrieved conservative men, Arndt's Australian libertarianism has left her out in the cold with many conservatives in power, including, ultimately, the Howard government. But this characteristic outlook of Arndt's has forged no relationships with Australian feminists either, who have long since moved on from their libertarian heritage. Arndt may well be one of a kind.