Barbara van Schewick, Assistant Professor at the Stanford Law School, introduced the current debate about net neutrality and explored the implications for diversity and freedom of expression online.

Network providers were at one time ‘application blind' - they were unable to see what was contained in the data packets that allow information to be transmitted online. Now that this is no longer the case, a debate has emerged about the role for regulation in controlling the ability of network providers to block or interfere with applications. What was drawn up as a voluntary policy statement is now being considered and revised by the FCC's Open Internet Proceeding.

Blocking of applications is problematic on several counts. First, there may be incentives for network providers to block applications that threaten their own profitability (for example, Skype). This leads to a situation where the success of applications is no longer decided on user criteria and the overall value created for society diminishes. Second, the great promise of the internet is that it removes traditional gatekeepers (such as mass media outlets) to speech. This is undermined if network providers have the ability to control what content users see. This is particularly problematic since users cannot easily switch to another provider as they could if a particular store did not carry a product they wanted. The cost of switching makes this impractical and in places without a choice of providers, this is not an option.

In drawing up regulation against blocking the FCC is debating a number of related issues:

Discrimination: Even if blocking is prohibited, discriminating between levels of service can still allow network providers to slow down an application to the extent that it becomes un-useable. This is actually a more effective tool than blocking since it is much harder to detect. Users may attribute slow speeds to poor design and potentially useful applications will fail to get traction.                                                                                                                                                                                                                                                                                                                                                                                                                              

Charges for different levels of service: Even if we agree network providers should not discriminate between the services they provide in an arbitrary way, could they offer improved service for payment? Opponents argue that this policy would be bad for competition since new developers would be unable to pay for the levels of service that established players could afford. And it would threaten the ability of poorly resourced minority voices - e.g. small NGOs and publications - to get heard.

Exceptions to discrimination: Network providers argue that there needs to be some discrimination to allow them to undertake reasonable network management. But it is difficult to determine what counts as reasonable management. One concern is that peer to peer networks - which allow those without many resources to exchange material cheaply - might be targeted in particular, since they can create a lot of congestion. This might also threaten the ability of new applications with high bandwidths to get funding, since the risk of being slowed down by the networks would be perceived to be too high by investors.

Many of the major benefits of the internet - the ease of publishing and coordinating, for example - are only possible through applications. Hence the outcome of this debate will have serious implications for the future social and political impact of the internet. 

Malpractice liability, along with medical technology and payment system distortions, regularly figures among the most-cited reasons for escalating health-care spending in the United States. On the one hand, Harvard economist Amitabh Chandra conservatively estimates that upwards of $60 billion, or 3 percent of total health care costs ($1.8 trillion), is spent annually as a result of direct litigation and indirect defensive medicine costs. On the other hand, tort reform advocates place the figure at $200 billion by extrapolating, to the entire U.S. population, the results of research conducted by Stanford professor Dan Kessler and Mark McClellan. Their 1996 study shows that tort reforms reduced provider liability costs for Medicare heart patients by 5 to 9 percent.

At the heart of these debates is the following question. Does medical malpractice liability achieve its dual goal of compensating victims of medical injuries and deterring medical errors, or does it merely encourage wasteful defensive medicine without improving patient health? Despite considerable empirical research, there is little evidence that malpractice litigation deters medical negligence. The evidence is much stronger—though still hotly debated—that malpractice fears actually encourage physicians to engage in defensive medicine. My work at Shorenstein APARC explores whether malpractice pressures affect physician behavior, patient health, and health care costs in Asia. Studying physicians’ response to legal changes in Taiwan, I find that greater malpractice liability may, under certain circumstances, prompt physicians to perform more services without necessarily improving patient health.

In particular, I focus on how increased medical malpractice liability affects physicians in Taiwan who provide treatment to pregnant women. I have studied how a series of court rulings as well as an amendment to Taiwanese law between 1997 and 2004 impacted physicians’ test-ordering behavior and decisions to perform Caesarian sections. Traditionally, Taiwanese doctors are held accountable for medical malpractice under two bodies of law: tort law in the Civil Code, and criminal law for harm resulting from negligent acts in the course of professional operations. The latter, prosecutorial approach is rare among industrialized nations.

In January 1998, a Taipei District Court decision in favor of plaintiffs in a civil suit for damages sent shockwaves through the medical community. The district court judge disregarded the traditional tort requirement of proving the defendant’s negligence (or fault), and applied the “strict liability” doctrine of the Consumer Protection Law to impose liability on a medical provider without any showing of wrongdoing. The court decision—subsequently affirmed by the Taipei High Court on September 1, 1999 and by the Supreme Court on May 10, 2001—sparked resentment among medical professionals. Passions flared in heated debates between medical and legal scholars about whether medical services should be considered a covered “service” under the Consumer Protection Law. Economists and legal academics questioned whether the traditional justifications for imposing strict liability apply in the highly unpredictable practice of medicine, especially in obstetrics. The saga concluded in April 2004, when the legislature amended the Medical Law to require negligence or fault in medical malpractice cases.

My research considers the effect of these court rulings and legal amendments on physicians’ test-ordering behavior and their propensity to perform Caesarean sections. I identify two sources of variation in perceived risks of malpractice liability: (1) the differences between the level of exposure to malpractice risks due to the ownership structure and size of the physicians’ place of practice; and (2) the differences in perceived risks based on the physicians’ geographical location.

My results are consistent with the existence of defensive medicine. First, with respect to their propensity to increase laboratory tests and reduce Caesarean sections, physicians who own their clinics (“physician-owners”) in Taiwan reacted more strongly to the legal changes than did physicians who are salaried employees at larger hospitals (“nonowners”). Physician-owners’ behavior did not change, however, in discretionary expenditures that were not associated with defensive medicine. Second, physician-owners working in areas under the jurisdiction of the Taipei District Court reacted more strongly to legal change than did those practicing in Kaohsiung, Taiwan’s second largest city, at the opposite end of the island.

The negative connection between the likelihood of Caesarean deliveries and increased malpractice liability deserves special mention, since most published studies find a positive association between malpractice liability risks and Caesarean rates. However, economists Janet Currie and Bentley MacLeod at Columbia University suggest that reforms in which liability is closely aligned with defendant’s actual levels of care may produce the opposite effect. In the Taiwan context, increased medical malpractice liability accrues directly to the physician-owners. Since Caesarean sections are generally riskier than natural deliveries, it seems logical that higher tort liability in Taiwan may actually decrease the likelihood of deliveries by Caesarean sections. In this sense, my study confirms Currie and MacLeod’s predictions and empirical results.

My work contributes to our understanding of health law and policy in several concrete ways. First, I add support to the existence of defensive medicine, even in a non-Common Law jurisdiction. Since I focus on Taiwan—an environment that lacks malpractice insurance, in which physicians are either owners or employees at providers of varying sizes—my research isolates the pure effect of malpractice liability to a greater extent than do many current studies. Second, I show that interaction between the payment and legal systems may either enhance or mitigate the hypothetical pure effects of legal policies. In a fee-for-service system, physicians subject to higher malpractice risks appear much more willing to increase laboratory tests than to reduce profitable Caesarean sections. Third, my research indicates that, by altering physicians’ exposure to risks, different organizational forms and ownership structures of health care provision may affect defensive medicine at differing rates.

In sum, the practice of “defensive medicine” appears not to be a uniquely American phenomenon. Indeed, it may also play a role in health care cost escalations in Asia, especially under heightened physician liability regimes.

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Shorenstein APARC Dispatches are regular bulletins designed exclusively for our friends and supporters. Written by center faculty and scholars, Shorenstein APARC Dispatches deliver timely, succinct analysis on current events and trends in Asia, often discussing their potential implications for business.

While Americans' appetite for seafood continues to grow, most of us know little about where our fish comes from or how it was produced. In California, more than half of our seafood comes from aquaculture, often imported from fish farms in other countries. Just as most chickens, pigs and cows are raised in tightly confined, intensive operations, so too are many farm-raised fish.

But raising fish in tight quarters carries some serious risks. Disease and parasites can be transmitted from farmed to wild fish. Effluents, antibiotics and other chemicals can be discharged into surrounding waters. Nonnative farmed fish can escape into wild fish habitat. And a reliance on wild-caught fish in aquaculture feed can deplete food supplies for other marine life.

These environmental impacts have been evident in many other countries with intensive marine fish farming. In Chile, where industry expansion was prioritized over environmental protection, salmon aquaculture has collapsed, causing a major blow to what had been one of Chile's leading exports. Tens of thousands of people are now jobless in southern Chile, where the salmon farming industry once boomed.

If aquaculture is to play a responsible role in the future of seafood here at home, we must ensure that the "blue revolution" in ocean fish farming does not cause harm to the oceans and the marine life they support.

In December, Rep. Lois Capps (D-Santa Barbara) introduced in the House the National Sustainable Offshore Aquaculture Act, a bill that addresses the potential threats of poorly regulated fish farming in U.S. ocean waters. Her bill shares many of the features of a California state law, the Sustainable Oceans Act, which was written by state Sen. Joe Simitian (D-Palo Alto) and signed by Gov. Arnold Schwarzenegger in 2006. That legislation regulates fish farming in state waters, which extend three miles off the California coast. At present, all aquaculture operations in California and the U.S. are located just a few miles offshore.

If the U.S. and other states follow California's lead, we may be able to reward innovation and responsibility in aquaculture and at the same time prevent the kind of boom-and-bust development that happened in Chile. Unlike previous attempts to legislate fish farming at the national level, the Capps bill would ensure that U.S. aquaculture in federal waters, which extend from three to 200 miles offshore, establishes as a priority the protection of wild fish and functional ecosystems. It would ensure that industry expansion occurs only under the oversight of strong, performance-based environmental, socioeconomic and liability standards.

The bill also would preempt ecologically risky, piecemeal regulation of ocean fish farming in different regions of the U.S. Indeed, regulation efforts are already underway in many states, with no consistent standards to govern the industry's environmental or social performance. If these piecemeal regional initiatives move forward, it will get much more difficult to create a sustainable national policy for open-ocean aquaculture.

Previous federal bills introduced in 2005 and 2007 were fundamentally flawed -- and ultimately did not pass -- because they put the goal of aquaculture expansion far above that of environmental protection. Now, for the first time, a bill has been introduced that would demonstrably protect marine ecosystems, fishing communities and seafood consumers from the risks of poorly regulated open-ocean aquaculture.

The Obama administration is currently developing a national policy to guide the development of U.S. aquaculture. The administration would do well to embrace the vision articulated by Capps and Simitian for a science-based and precautionary approach to help ensure a responsible future for U.S. ocean fish farming.

Rosamond L. Naylor is director of the program on food security and the environment at Stanford University. George H. Leonard is director of the aquaculture program at the Ocean Conservancy in Santa Cruz.

Copyright The Los Angeles Times