On February 17, 2010 the Program on Good Governance and Political Reform in the Arab World at CDDRL held its inaugural seminar with Prof. Philippe C. Schmitter, Professor Emeritus, European University Institute, Florence and Visiting Scholar at CDDRL and Dr. Sean Yom, Hewlett Postdoctoral Fellow at CDDRL.

The seminar was titled Exploring the missing link between liberalization and democratization in the Middle East. The seminar aimed to start a public discussion on one of the routine assumptions of students of democratization, which is that there is a close, causal relationship between liberalization and democratization. The former is said to drive those who concede it toward convoking credible elections and, eventually, tolerating ruler accountability to citizens. The link between those processes of regime transformation is alleged to be the mobilization of civil society. It has been argued that the weakness or absence of this linkage is one (among many) of the conditions which make the polities of the Middle East and North Africa resistant to democratization.

In his response to this argument, Philippe Schmitter began by saying that in the work that he started on Southern Europe and Latin America, there was a distinction between democratization and liberalization. Once an autocratic regime enters a process of liberalization, it faces unexpected consequences. Thus, the most vulnerable time for a regime is when it starts to reform itself. Some of the consequences of this process are the resurrection of civil society, more freedom of expression and movement, the release of political prisoners and the freer operation of political parties. Such consequences are what liberalization means.

Schmitter argued that all autocratic regimes have tried this process, and that this process is normally triggered by divisions within the regimes or succession struggles, where regimes feel the need to open up. The kind of liberalization that takes place depends on the type of autocracy present. But the objective of liberalization, Schmitter said, is to coopt and produce a large social basis for autocracy, for example, through cultivating political parties that agree not to be too oppositional.

Schmitter added that many autocracies are under pressure from external regimes. Most of the countries in the Middle East have some kind of agreement with the EU for example, which carries clauses on issues like the rule of law. Another factor is that liberalization is selective in its inclusion, focusing on the urban middle class. It is thus "voluntary", conceded from above by the regime, and not based on any form of mobilization from below. In other words, Schmitter argued that regimes choose to liberalize and are not forced to do so. Thus, regimes are limited in their scope of liberalization (elections for example are not always genuinely free). He then presented a scale of measures of autocracy liberalization, saying that the most difficult measure in the Middle East is that of releasing political prisoners, while the easiest measure is concessions on the level of human rights.

He presented the hypothesis is that almost all efforts at democratization are preceded by liberalization. This is triggered by the resurrection of civil society, which itself is triggered when the costs of repression increase quite significantly and a regime is faced with the question of is it "better" to repress or tolerate? Often, in this case, regimes choose to tolerate the self organization of groups that are not tolerated otherwise. But mobilization of such groups, like lawyer groups, may lead to mobilization on the street. Schmitter said that although Arab regimes liberalize, this kind of process does not normally happen in the Middle East. Liberalization occurs then declines without the regimes suffering many consequences. He finished by stating that there seems to be something in the Middle East region that encourages liberalization, but that leads this liberalization to decline.

Sean Yom responded by saying that for the last 10 years, scholars of democratization literature have made ethnocentric assumptions about this issue. He argued that it is almost assumed that democracy is easy, but what actually happens at the end stage of liberalization is complex. He said that if we take a historical view of the Middle East, the literature says that regimes are durable. But countries like Iran, Iraq, Libya and Syria have all witnessed regime termination. The dictators today in the Arab world are merely the winners of the state-building process.  So why is liberalization not followed by democratization for these survivors?

Yom argued that distinctive regimes have distinctive ways through which they liberalize but not democratize. He related the lack of democratization following on from liberalization to two key questions: Why are there no elite splits in the public arena during times of crisis? And why has the middle class not staked any sacrifice to demand more of a democratic and revolutionary change?

He presented two reasons: the first is that many current regimes have well institutionalized methods of dealing with elite splits before they hit the public domain. Hegemonic ruling provide one such mechanism. The National Democratic Party in Egypt, the Neo-Destur of Tunisia, and the Baath parties in Syria and Iraq for example were able to coopt/isolate softline elites well before their conflict became rebellion.  Yom argued that in monarchical autocracies, incumbents have just as well-institutionalized mechanisms of co-optation that revolve around the palace; such networks were developed shortly after colonial rule, and were designed to effectively enshrine a certain distribution of power.

The second reason, Yom argued, lays in the nature of social opposition.  No dictator liberalizes because they want to give up power.  That is, they do not liberalize to achieve democracy; they liberalize in order to survive in the face of burgeoning social unrest.  The problem is that in the MENA context, the so-called "middle-sector"-labor, professionals, intellectuals, and other urban forces-have not staked out sacrifice to their demands for greater freedom, when push comes to shove.  One reason is that they were incorporated into ruling coalitions early on in the state-building process, and that such early coalitional bargains that traded loyalty for prosperity have proven durable even during economic crises in the 1980s and 1990s.  For instance, large-scale employment in the public sector to certain groups is a common side-payment.  Countries like Jordan and Bahrain exploit population cleavages (the Palestinians and the Shiites, respectively, being the key factors), where the regimes operate an optimal mix of loyalty and oppression/coercion.  In these cases, leaders strategically choose to incorporate different constituents into different networks of patronage.

The presentations were followed by a question and answer sessions where additional factors were discussed and others elaborated on, such as the role of Islamists; authoritarian pacts with the West especially in the cases of "countries that are too important to be politically conditioned" as Schmitter put it, or in the case of illegal Western dealings with Middle East states which makes it difficult for the West to present them with reform conditions; the absence of independent middle classes; and the issue of political prisoners, who are the hardest to coopt by any given regime, and hence tend to be kept inside prisons.

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.

Global Voices was inspired by an incident in 2004, when a friend reading a New York Times article about Cameroon's elections posed the question: is there anyone in Cameroon blogging about this? Along with his colleague, former CNN Beijing journalist Rebecca MacKinnon, Ethan convened a group of bloggers from the developing world at Harvard. What came out strongly from these discussions was a desire for participants to be able to read each others' blogs. What started as Rebecca and Ethan each summarizing a couple of hundred blogs daily has grown into the Global Voices website, which uses a network of 400 editors to filter, translate and provide context to global blogs, making them accessible to readers around the world.

Since 2004, there have been some major changes to the context in which Global Voices operates. The organization has tried to respond to each of these:

• There has been massive expansion in internet access across the developing world, but rarely beyond the middle class and educated. Rising Voices allows media organizations from developing countries to apply for small grants to help them use digital media in their communities. A number of great success stories coming out of this initiative have demonstrated that it is possible to get traction for citizen media, even in very low resource communities.
• The digital space has emerged as a political space. This has prompted far greater levels of censorship. Global Voices Advocacy works to highlight cases of individuals arrested for involvement in citizen journalism and attempts to keep these stories live. It also works to document censorship of publishing platforms and to provide spaces where people can blog anonymously.
• In 2004, almost all blogging was in English. Now the majority of people are blogging in their own languages, about local issues. Translation therefore becomes a greater challenge. ProjectLinguauses volunteer translators to amplifyGlobal Voicesin many languages other than English.

Ethan suggested three possible theories about what we are seeing in the growth of social media:

• Social media will be the natural organizing tool for a new generation.
• Social media is an asymmetric tool - it is what you use when the tools of more effective mainstream media are not available to you.
• Social media is a story in itself - it can draw attention to a story that might otherwise not be picked up.

Crisis situations such as the protests in Iran and the Haitian earthquake have started to legitimize the use of social media by mainstream media outlets, blurring the boundaries between professional and citizen reporting. And some of the key challenges associated with access and language barriers are beginning to be addressed. But the problem of global attention span will be hardest to solve. So many situations never receive coverage and for those that do, the media cycle rarely allows them to stay in the spotlight beyond a few weeks. We have developed long standing bad habits in our understanding of what constitutes news. Social media has dramatically changed who is able to speak; but will it change how we choose to listen? This remains a major challenge.