gene doping

first off, sorry for the long delay! i've had finals and graduation, and i had to be dragged, kicking and screaming, to beautiful southern california for a week, to see my sister graduate -- summa cum laude and phi beta kappa!

anyway, the bulk of this was taken from a paper i wrote for a biotech ethics class, so please excuse me if it sounds like i'm on quaaludes.

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Gene doping adds another layer of controversy to a world of sports already hounded by steroid scandals. What’s more, it only adds fuel to the controversial fire, since gene doping is not only nearly untraceable but safer than steroids. But is there really cause to be up in arms?

First, let me make it clear that cheating is not the issue. The real question is, “Should a sports league allow gene doping?” Before weighing the pros and cons of gene doping, there is the question of whether law should trump private ordering. This is especially relevant in the United States, where some sports leagues have been granted antitrust immunity. But the primary impetus for such legal intervention is a matter of antitrust and labor law, not of ethics. (A related question is whether leagues that choose to disallow gene doping should be audited to make sure they live up to their promises, and here there is a very strong case for some sort of third-party or regulatory oversight.)

Another preliminary question necessary to frame the debate is whether athletic competition is zero-sum, meaning that people are more interested in who wins than how good they are (from an absolute perspective). If this is the case, and if all athletes engage in gene doping, their overall athletic prowess would improve but their rewards would improve only slightly, or not at all. And the prisoner’s dilemma informs us that, without regulation, all athletes will be stuck engaging in this costly activity, which would be inefficient, on the whole. This is the position taken up by Chicago Law Professor Gary Becker, and his post on doping, along with its comments, can be dismantled to show why the argument does not hold.

There is good reason to question the underlying assumption of the zero-sum argument, which is that relative performance trumps absolute performance. As one commenter pointed out, in part, there are countless examples of two leagues with the same amount and distribution of wins and losses, yet one of them is more popular because its athleticism is greater. For example, male sports are more popular than their female counterparts, across the board. Another example is minor versus major leagues, or simply age groups.

The zero-sum argument also fails to explain why world records are more noteworthy than competitive wins. In fact, Becker’s own example of the four minute mile is contradictory. He claims that its notoriety exemplified a “crucial relative aspect,” which is that “no one had done that before.” But if relativism is comparing to everyone who came before, then what is not relative? It can’t be comparison to all athletes, past, present, and future!

The bottom line is that people do want to see athletes run faster, jump higher, etc. These are absolutes, and fans demand their achievement. Although this is a conjecture, it seems natural that there be some causative link between sports’ increasing popularity and the accelerating achievements of participants therein.

Becker also points to other costly enhancers that are regulated supposedly because they are costly but do not improve relative performance, such as equipment specifications or squad size limits. But these rules are in place not because they do nothing to change relative performance, but because they would make games impossible to play.

First, Becker points to equipment limitations, such as the size of golf clubs that can be used in competition, “corked” baseball bats, and the types of tennis rackets permitted. Note that these rules have a common denominator – they limit the distance that a ball can travel, or they limit its velocity, or the velocity of, say, a stock car. These rules are in place because, without them, there are environmental or human constraints that would skew the game and render it dull. If every hit were a home run, or if every volley had the speed of a serve, or if every stroke carried 300 yards, the games would be boring. Moreover, it would be inordinately expensive to correct for these changes. We would have to not only increase the size of every ballpark, golf green, and race track, we would have to make defensive players faster in order for them to cover these increased distances. (Ironically, doping could allow just such changes and, if you believe in the “absolute” argument, the value of sports.)

Other costly enhancers pointed out by Becker are number limits, for example, of players or of golf clubs. Here, allowing unlimited numbers would increase athletic achievements, but the changes would be slight in comparison to, first, their costs (salary and equipment purchases), and second, to other, more productive, enhancements. It may very well be that people would pay more to see sports change these rules, but fans may not be willing to pay enough to cover the huge expense of keeping things interesting. By contrast, gene doping could increase athletic performance by orders of magnitude at very low cost.

Even if we assume the relative position, there is still a strong argument that gene doping should be allowed. We can compare gene doping to other costly enhancers that are not regulated, despite the fact that they lead to the competitive stalemate outlined, above. Examples of these would be exercise, training, and nutrition. The common characteristic among these unregulated enhancers is that they are supposedly beneficial to the athlete. (For the sake of argument, we ignore the fact that these enhancers are just as subject to “pecuniary abuse” as steroids or other “harmful” enhancers. Athletes and their organizations spend millions of dollars on improving their training, technique, nutrition, and equipment.) And while gene doping could be subject to abuse, its proper administration would be no less beneficial than advantages garnered from exercise and nutrition. In fact, it is most likely more beneficial because it is a low-cost solution and increases the effectiveness of the athlete’s other enhancements. And any danger currently inherent in gene doping would be certain to decrease if it were allowed.

Another consideration in this debate is a fairness issue, which is closely tied to the definition of what is “natural.” Many people would think gene doping is “unfair” because it gives recipients an “unnatural” advantage over competitors. But we have good reason to question the contrapositive of this position and ask whether it is “fair” that some people should be prevented from participating in athletics because they do not have an athletic phenotype.

We would also be amiss if we did not discuss the potential scientific benefits. Many enhancements currently in development began as therapies, and there is no reason to think this is a one-way street. This being the case, athletes and organizations could potentially invest billions of dollars into research and development that could benefit society at large.

maryland smoking ban

let me begin by making it perfectly clear that i hate cigarettes only slightly less than the people who smoke them. they disgust me so much that i can almost see the logic in the maryland legislature’s proposed smoking ban. almost, but not quite.

the bill’s legislative backers will tell you they’re protecting the innocent from the dangers of second-hand smoke. now, i’m fairly certain they’d accept the praises of voters who want unabashed paternalism and are out to ban smoking in all its forms, but let’s take them at face value.

the problem with their argument is that non-smokers do have a choice. it’s a tough choice, but you can always just not hang out in bars. i’m actually selling it a bit short, because there are some bars that don’t allow smoking (even some nice ones like our local “red maple” on charles).

there are clearly benefits to the ban, but i seriously doubt they’d outweigh the costs of trying to legislate it. this law’s impact on overall smoking will most likely be negligible. smokers will smoke outside, at home, in their cars, and pretty much anywhere they want to besides public buildings, bars, and restaurants. at the same time, smokers will spend less money at bars and tip less, which will hurt those business owners. and though smokers will save a little money, they are denied one of their pleasures, making them less well-off.

but perhaps the biggest problem is that after all the sound and fury, things probably won’t change that much. there will inevitably be some exception to the rule, into which all bars and restaurants will crowd.

just look at what happened when virginia tried to shut down all its bars. their law excepted establishments who derived a certain percentage of revenue from food sales, so guess what happened? for every bar that shut down there was a restaurant that added a bar, and the bars that survived just added a restaurant. in fact, some of them run their food operations at a loss, just so that they can meet the revenue requirements and keep their bar running. obviously, the profit on alcohol (which is inflated due to regulation) more than makes up for that loss.

so, the best we can expect to get out of all this hoopla is that every bar will start selling discount tobacco products, and every tobacco shop will open a bar.

well, at least we know that our legislature's trying to nanny us to death, even if they fail at it. and maybe that's not so bad. after all, it's the thought that counts.

backdating: hype, not harm

the latest scandal du jour is options backdating. judging by the media coverage, you’d think it was enron take two, and leading the charge are the usual suspects: plaintiff’s lawyers, the s.e.c., and the i.r.s. unfortunately, only one of them has good reason to sue. doubly unfortunately, it’s the i.r.s.

plaintiffs’ lawyers and the s.e.c. both claim to represent shareholder interest, but a little help from our old friend economics shows us that shareholders aren’t the least bit affected by options backdating. in fact, they want backdating because it saves them tax money.

let’s start, as per usual, with the basics. companies like to grant options rather than giving stock outright because their value is tied more closely to the future than the past. an option only has value only if the stock value goes up, whereas granting stock outright would reward the employee even if the stock price goes down. backdating occurs when the company gives employees the right to purchase stock at a price from the past that is lower than the current market price. for example, an option grant that allows you to buy ten shares of stock for $10 when the shares are trading for $10 would be worth nothing. however, if we chose a past price, say $5, the options would immediately be worth $50, since the employee could buy them for $50 and instantly sell them for $100. such options are called “in the money,” for obvious reasons.

but we all know that money doesn’t grow on trees, so where does it come from? two out of three plaintiffs answer “shareholders,” but is this really true?

back to basics. a stock’s value comes from two parts, present and future assets and dividends, which are simply what the company owns and earns. when an in-the-money option issues, two economically relevant things happen.

first, the pool of assets and dividends gets split more ways. for example, let’s say there are 100 shares of that $10 stock outstanding, so that the company is worth $1,000. when the employee exercises his $5 options, the company gets $50, but there are now 10 more shares, so each one is worth $1,050 ÷ 110, which is about $9.55, for a loss of 45 cents. now, before you scream bloody murder, think about the fact that this is public information. shareholders knew full well that the company could hand out authorized shares at any time, and they fully expected it to do so in order to reward its employees. so, whatever price they paid for their stock included a tiny discount to reflect this possibility. so much for that supposed rip-off.

second, we have to “account” for the fact that the company is forgoing the full market price for its shares. again, though, you have to ask whether this really matters to shareholders. sure, the company could have gotten another $50 from its employee, which would have kept things even-stevens at $10 a share. but in reality, forgoing $50 is exactly the same as paying $50 in salary.

some people are all riled up over the fact that companies are restating earnings to reflect these options grants as salary expenses, but any savvy investor knows that those entries are just for bookkeeping purposes. without getting into the merits of options expensing, leave it to say that your money managers get paid to weed out those entries from what really matters.

once you cut through all the hype, options turn out to be an investor’s best friend, since they’re taxed as capital gains at 15%, rather than income at an undoubtedly higher price. this means that the company can save on payroll and create extra shareholder value.

so, in the end, the only one getting bilked here is the tax man. no wonder they’re getting persecuted.

by the numbers: the “wal-mart law”

the day before governor o’malley’s inauguration, the fourth circuit struck down the “fair share act,” which would have forced all employers with 10,000 or more maryland employees to spend at least 8% of their payroll on health insurance.

the act is also known, affectionately, as the “wal-mart law,” because its namesake comprises one-half of the companies it covers (which – if you didn’t catch that – number all of two). that, and everyone hates wal-mart.

our new governor has taken up a firm “waffle” position, his spokesman going only so far as to say, “we continue to believe that fairness is critical to making health care more affordable.” attorney general doug gansler has until april to appeal the decision, and my bet is that he’ll ride it for all its worth.

the act’s momentum owes itself to the popular sentiment that wal-mart is in some sense “at fault” for swelling medicaid rolls, because it “forces” employees onto subsidized health insurance, foisting insurance costs onto taxpayers.

but consider this: if our legislature suddenly decided to give everyone $100,000 a year, would you really blame employers for cutting salaries across the board? of course you wouldn’t – but that’s precisely what’s happening, here. our government is giving away health care, and yet it’s somehow the employer’s fault for not buying something that’s free.

you have to understand that benefits like health insurance are just a slice of the compensation pie that employees could cash out, if given the option. let’s say wal-mart is willing to pay someone $20,000 annually. it would then be equally willing to foot the bill for $5,000 of insurance and pay $15,000 in cash. but when paying that much for insurance, it would be crazy to pay anything more than $15,000 in cash, since that would bust the $20,000 cap. wal-mart’s only decision is how to divide the $20,000 pie, and if it can get a good deal on insurance, it will offer it because it can cut labor costs and increase profits.

the underlying problem at work, here, is that medicaid is a good deal, even when a better healthcare plan is available. let’s say wal-mart offers a plan worth $5,000, whereas medicaid is only worth $3,000. the employee will nevertheless want to take medicaid’s $3,000 and pocket the $5,000 in healthcare “savings.” and since the cost is no longer coming out of wal-mart’s pocket, it can pay out the full $20,000, bringing the employee’s total compensation to $23,000 of cash plus medicaid, rather than the $20,000 salary that includes private healthcare. the same holds true even if the group policy has cheaper rates – which it probably would – simply because it has rates, whereas medicaid is always free.

things work the same way when we zoom out. wal-mart may be willing to spend $1 million on payroll for all employees, who will then receive $150,000 in medicaid. all the “fair share act” would do – by forcing healthcare spending up to 8% – is reduce wages to $926,000 and benefits to $74,000. and even if there is a minimum wage, the act would just cause wal-mart to switch away from investments in labor, to investments that replace labor with robots.

leaving its employees on medicaid is just wal-mart doing what it does best – finding a cheaper product and passing on the savings.

so what’s really great about the “fair share act” is that it actually makes poor people poorer, by putting tax dollars back in your pockets and forcing them to buy health insurance they don’t want.

who saw that one coming?

myth & property

last summer, i went to hawai’i to visit my girlfriend, who was there to study law and surfing (but not the law of surfing). to kill time before her meeting with a state senator, we took a tour of the state capitol.

usually i hate tours, but a hawai’i boasts one of the most interesting public buildings i’ve ever seen. also making it easier was the fact that our guide was a very nice local woman who served double-duty as some sort of secretary. she told us all about the island and the building, and local customs and culture.

not surprisingly, the locals are still a bit peeved that the doles and various other dead, white people came and brought with them their western concept of “property.” now, without delving into the history and politics of the bayonet constitution, i will say that somewhere along the line, someone got a raw deal.

but what amazed me was her concept of hawai’ian society before westernization. “you see,” she explained, “before the europeans came, no one ‘owned’ the land. the islanders were custodians of the land, and it belonged to the gods. we just took care of it.”

and all i could think was, whoever came up with that lie was effing brilliant.

so, to commemorate this shining moment in history, i composed this one-act play.

i’m now proud to present :

“talk to the gods”
by: afuturehead

hawai’i, circa a really long time ago. a peon farmer cowers before his mighty king.

“hey, king?”

“yes, peon farmer?”

“let’s say there’s this guy, right? we’ll call him… leon. yeah, leon farmer. and he – for some crazy reason that i literally cannot even grasp with my tiny, not-royal mind – he questions your legitimacy and doesn’t see why all the land should be yours and why we can’t own it. what would you say to this person who is obviously insane and definitely not me?”

“ummm… lemme think. because… uh… oh wait, i know! you see, peon farmer, we all know that you don't own the land. you're much too stupid and smelly for that. but you see, neither do i -- this land belongs to the gods! we’re just taking care of it for them. and in order for us to take care of it, i have to tell you what to do, and you have to give me half of your food in return.”

“ahhhh! ok. good to know. i thought that was all just because your dedication to violence afforded you the most power. gosh, thanks for clearing all that up! well, i better get back to doing what you tell me to, then giving you half of my stuff. thanks, king!”

“no problem.”

[exit peon]

(king, to guard) “have that peon farmer burned alive. also, find leon farmer and have him burned alive.”

and then, the monarch sold everyone’s land to the europeans and got really, really rich.

fin.

euthanasia

activists -- especially students -- are drawn to anything caught between a rock and a hard place. how could one not be moved to act when healthcare and pharmaceutical costs are now so high that senior citizens are forced to choose between food and medicine?

and so we join, in throngs, the battle against evil healthcare corporations.

alas, we are all too quick to blame industry and the spectre of capitalism for driving costs through the roof and robbing us of our “right” to healthcare. for few who point to the aforementioned hobson’s choice seem to have considered the fact that thirty years ago, this decision was not so difficult for our octogenarians: they ate their food, and they died.

we didn’t even have a treatment for parkinson’s, much less a bevy of erectile dysfunction medication, until within the last decade.

what has changed between then and now is not that healthcare costs so much today, it is that we now have the ability to purchase, and thus spend, so much more on curing our various ailments. high prices are simply a byproduct of dedicating to medicine an amount of resources unparalleled in history.

this notion rarely elicits a meaningful reply. the typical, bewildered response is to ask how we could possibly question our legal and ethical obligations to care for our own. unwavering proponents of natural rights declare that the value of human life transcends all other considerations and unites americans with even a shred of moral fabric, left and right, blue- and red-state.

besides the question of our practical abilities, do-gooders have overlooked what is really at stake in this controversy over physician-assisted suicide: our freedom to choose.

we have yet to come to an understanding as to precisely what sort of life we seek to protect, so doctors are stuck in the default position of being ethically bound to protect all life. in doing so, we force our society to spend exorbitant amounts of money prolonging the part of life that many find the least fulfilling.

these obligations have led us to some quite irrational legal results. a physician may withhold “heroic” measures if they are already being administered, but cannot otherwise bring life to an end. any act that brings peace is deemed criminal unless the life is wholly dependent upon medical wizardry.

now, there is good reason to prohibit assisted suicide in certain problematic situations, but the existing distinction turns solely on the physician’s actions and utterly ignores the patient’s needs and desires.

meanwhile, we hinder any and all actions that might shorten one’s life but bring greater overall happiness (except alcohol, the boorish drug for the boorish nation).

some of this obstruction is accounted for by what i would call “torts of regret” -- lawsuits that blame others for deliberate tradeoffs made earlier in one’s life. (“surgeon general? never heard of him. *cough* *hack*”) but these efforts should not surprise us, given our society’s unhealthy fixation on benchmarks, be they stock prices, income, or our average life expectancy.

the baby boom is retiring, and laws designed to protect life are set to become manacles on our generation. social security and medicare/medicaid reform will not be enough. what we need, in order to free our future generations from a crushing burden, is to establish the individual right to terminate his or her own life.

of course, many will see this as an impossible proposition, one that debases life.

but might we not also see it as a tribute? our forefathers risked, and many sacrificed, their lives so that we could live – and die – in peace.

perhaps, instead of forcing our doctors’ blind adherence to the hippocratic oath, we should allow individuals to improve their quality of life as seen fit. for some people, this will mean bringing it to a peaceful and deliberate conclusion.

my father likes to quote garrison keillor, who might have said it best:

“the death of an old man is not a tragedy.”

treatise envy

originally published in the april 2005 copy of the u.m.d. law student paper, "the raven"

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This April 1st, I was reminded of a 1994 Michigan Law Review article that would have been the best – and probably only – April fool’s joke in law review history. “Chix Nix Bundle-o-ticks: A Feminist Critique of the Disaggregation of Property,” by Professor Jeanne L. Schroeder, was an incisive commentary on the fatuous and ethereal subject matter of much modern legal theory. In it, she undertook a neofeminist deconstructionist critique of the phallocentric implications of the “bundle of sticks” metaphor, familiar to students of property. The article cut to the core of post-modern legal studies, laying bare their rather perverse foundations and often ridiculous products.

But there were two problems. First, it was November. Second, she wasn’t joking.

No, the good professor was completely serious when she suggested that all of us unwittingly perpetuate this undercurrent of sexism. If you think I’m exaggerating, here it is from the horse’s mouth: “I argue that property as both thing and right is described, not in terms of just any physicalist imagery, but in terms of phallic imagery. That is, property is metaphorically identified with seeing, holding, and wielding the male organ or controlling, protecting, and entering the female body.”

You may ask yourself, “Self, how could such academic prattle wind its way into a journal published by one of the top law schools in the nation?” And you should explain to yourself that it does so in the same fashion that it enters courts through law clerks, and into legislation through legislative aids. It’s because of us – the MTV generation.

Publication can make or break a professor’s career. And who better to decide whether an article will make a meaningful contribution to the legal profession than a bunch of kids? At respected institutions across the nation, students just like you and me, and that dude that spent Friday night trying take two Tri-delts home with him, are rolling out of bed, heating up last week’s pad thai and poring over law review submissions.

To be fair, it does take some work to get onto a law review board. Applicants are screened for mechanics and style. But making bluebook skills the paramount criterion does little to help the board make informed decisions about what articles will help the evolution of legal theory.

You may be surprised to see this article lambasting legal academia, yet supporting the evolution of legal theory. But even a hardened pragmatist or utilitarian will admit that legal theory should not be insulated from outside influence. The law cannot be self-contained, and academic incest can only cause problems for our profession. But there must be some lines drawn between, say, sociology or economics on the one hand and pseudo-Freudian and Derridian psychoanalytic deconstructionism on the other.

Maybe it would help if we sought the help of professionals when selecting articles. But that would appear antithetical to the very nature of journals. Ours, like many others, proudly announces on our school’s website: “No longer is there an Advisory Editorial Board. Rather, faculty exercise virtually no control over the Law Review, and cooperation with the local bar associations ended in 1972.”

In today’s market for teachers, publication can mean the difference between tenure track at Harvard and an adjunct slot at a non-ABA school, and we’ve made students responsible for the primary indicator of a professor’s worth. Tell academicians in any other profession that our journals are edited by students and I guarantee they’ll laugh.

The inmates are running the asylum. So in the end, it might not be such a bad thing that only professors read law reviews.

An Astounding Crime: He Didn't Get a Permit (wsj letter)

this is a letter of mine that the wsj published, both in response to an earlier letter from a Senior Policy Adviser of the Michigan Department of Environmental Quality.

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Mr. Richards's letter encapsulates the regulatory mess we've made. Although disregard for the law should not be excused, neither should we condone the law's mindless expansion. Mr. Richards offers no real answer to the crucial question: Why should the Army Corps of Engineers regulate wetlands in the first place?

That the words "commerce clause" would enter the purview of the court deciding this case gives good reason to be skeptical of even the best regulatory intentions. When the courts refuse to draw a sensible line that limits the corps' power, what's to stop it from regulating everything, including the kitchen sink?

The idea that political institutions will necessarily safeguard our natural resources goes hand-in-hand with the belief that we could not benefit from a market economy's influence thereupon. Neither has proved true. What we new environmentalists propose is that our federal and local governments recognize the limited benefits of regulation and create a system of private water rights, enabling free-market, least-cost resource preservation.

Fred Smalkin
Baltimore