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Constructing Choices: Inference, Risk, and Power

Three news notes have more in common than meets the eye:

Back in November, the Pennsylvania Department of Agriculture drew attention (and criticism) for banning “hormone free” labels on milk sold in the Commonwealth.  The theory is that suppressing information prevents consumer confusion; Rebecca Tushnet has a good critique, and some good links, here.  Today brings related news:

The NYT includes an op-ed by the always-provocative Atul Gawande, reporting that the federal Office of Human Research Protections has decided to shut down a program that instituted a checklist procedure in certain intensive-care units that is designed to dramatically cut the rate of hospital infections – and that works.  Apparently, the government reasoned not only that the program failed to obtain necessary patient consent, but “the data gathered in testing it could put . . . the doctors at risk — by exposing how poorly some of them follow basic infection-prevention procedures.”  As with milk labeling, the question framed by the regulation isn’t the actual risk involved (risk of patient infection, risk of harm from drinking milk produced by cows treated with hormones).  The question is different, and it has two parts:  First, how does (and how should) the law construct awareness of risk, that is, construct choices; second, what model of inferential thinking does (should) the government use when it regulate.  Will permitting ICU professionals to follow a five-step pre-treatment checklist really lead non-checklist professionals to conclude that they are working in an unsafe environment? 

Of course, it’s entirely possible that both agencies aren’t engaging in sub silentio group psychology; instead, the choices they frame may be the products of politics and power.  That brings me to news item three, which has gotten a lot of attention in the sports pages but less attention elsewhere:  The NFL Network, the league’s own cable channel, agreed to share rights to last night’s Patriots/Giants showdown with both NBC and CBS.  As the Times summarizes today, the NFL wanted consumers to “choose” the NFL Network by pressuring their cable providers to carry it as part of basic cable service.  “Choosing” a cable provider is complicated business, however (not to mention “choosing” a premium cable sports channel), when the incumbent carriers and the incumbent cable sports channel (ESPN) have more economic clout and more political muscle than the NFL believed.  The NFL Network remains marginalized in the cable TV world.  But the network was scheduled to be the sole outlet for last night’s game — in which the Patriots tried to close out an undefeated, untied regular season, and ultimately succeeded — and that fact, and the presumption that an extraordinarily large viewing audience would be interested in the game,  drew Congressional attention, and pressure.  A deal was struck; fans of professional football got to watch the game of their choice via not one but two broadcast networks.  Many of those broadcast viewers were watching the NFL Network feed on NBC or CBS channels on their cable systems. 

As the Times notes, will that taste of “choice” lead football consumers to demand that the NFL Network be added to basic cable?  Will regulators infer that consumers would demand that “choice” but for some failure of market processes (incumbency or related factors, perhaps) — and regulate accordingly?  Or was this a one-shot event, an extraordinary game that produced an extraordinary deal, with no expected consumer fallout?  As with milk, the regulatory question is not “choice” or “no choice,” but which kind of choice, and what regulators expect of consumers and purchasers.