Lost Potential

(Part 1 of 2) Back when I was a teenager, I used to play Dungeons & Dragons with a group of friends. D&D, for those who have never played it, is essentially a pen-and-paper version of World of Warcraft. Instead of a computer running the game, that role in D&D was served by a person—the “Dungeon Master,” or DM—whose job it was to map out a location in advance and fill it with monsters, traps, and other characters and events, and keep that material hidden from the players until they reached certain points in the game. Whereas computer games display information visually to the players as they wander through the game world, in D&D the DM simply describes what happens, according to his or her pre-established plan and a set of fixed rules governing things like combat.

One of my friends was a particularly good DM. He would create settings full of portentous omens, intrigue, and mysterious characters. Seemingly random encounters would lead to unexpected coincidences. The world he created seemed richly populated with deeper meaning, and my friends and I loved exploring it.

But we ultimately discovered that there was no deeper meaning; there was no there there. He was making it all up on the fly, and when we started scratching beyond the surface, improbable barriers such as invulnerable gods and invincible monsters began to block our path. The narrative structure of the world collapsed under its own weight.

I’m reminded of all that by the final season of Lost. Lost, I think, illustrates a trap that the creators of D&D dungeons and network television series alike are apt to fall prey to: it is much, much more tempting to build suspense than to resolve it.

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Health Reform and Racial and Ethnic Health Disparities

One of the most troubling aspects of the U.S. health care system is the existence, and extent, of racial and ethnic health disparities. Research has amply documented that members of racial and ethnic minority groups receive fewer health care services and lower quality health care than non-minority patients (see, for example, the rather damning portrait drawn by the Institute of Medicine’s 2003 study titled “Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care”). These disparities remain even when insurance status, socioeconomic status, and other important factors are controlled for in scientific studies.

There are many likely causes of race- and ethnicity-based health disparities. Among them: patient-level variables such as cultural preferences, mistrust of health care providers, and degrees of knowledge; system-level factors such as the geographic availability of health care providers, the use of managed care in publicly sponsored health care programs, and a general lack of institutional funding for language interpretation and translation services; and provider-level variables such as prejudice, stereotyping, and clinical uncertainty when treating minority patients.

Yet for all the evidence showing the existence of racial and ethnic health disparities, government agencies, health care providers, and health plans and insurers do not routinely collect data pertaining to patients’ race, ethnicity, and primary language.

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Does the Threat of Future Copyright Infringement Amount to Irreparable Harm?

Chief among the bundle of rights one obtains in property ownership is the right to exclude others from the use and enjoyment of that property.  This “sole and despotic dominion” that an individual commands over their property is placed in danger, of course, when the property becomes subject to the wants and needs of others.  Absent the owner’s consent (as in the case of licensing) or operation of law (as with adverse possession), a property owner would be able to bring an action for trespass for such intrusions.

A judge holding a defendant liable for trespass perhaps carries the vision of plaintiffs having their rights vindicated, but cases do not end at liability.  The judge must also determine whether further remedies beyond damages are appropriate, including whether a permanent injunction should issue.  Such is a weighty decision touches upon an extraordinary remedy: a court order that a defendant must cease and desist its illegal activity or face punishment for contempt.   That being said, in many property cases, a court order only issuing damages would effectuate a judicial licensing of the behavior.  With that result, the incentives are adjusted such that the right to exclude does not rest with the plaintiff; instead, it is determined only by the extent to which the defendant is willing and able to engage in the trespassing behavior.  As such, the courts have presumptively treated infringement of property rights as worthy of injunctive relief.

That has also been the rule in copyright infringement cases for the last few decades. 

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