Author: Glenn Cohen


Online Symposium: The Fragmentation of the U.S. Health Care System: Causes and Solutions, Next Week

I am pleased to announce that in a collaboration between the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, and Concurring Opinions, Frank Pasquale and I are organizing an online symposium on this blog (beginning on Monday) on the new book The Fragmentation of U.S. Health Care System: Causes and Solutions.  This book, which grew out of a conference the Petrie-Flom center hosted in 2008 was edited by Einer Elhauge and featurs a stellar list of contributors from law, economics, medicine, management, and other disciplines.

Here is a description of the symposium on the book and the list of participants:

Why is our health care system so fragmented in the care it gives patients? Why is there little coordination amongst the many doctors who treat individual patients, who often even lack access to a common set of medical records? Why is fragmentation a problem even within a single hospital, where errors or miscommunications often seem to result from poor coordination amongst the myriad of professionals treating any one individual patient? Why is health care fragmented both over time, so that too little is spent on preventive care, and across patients, so that resources are often misallocated to the patients who need it least? This book approaches these broad questions with a highly interdisciplinary approach, including chapters by the nation’s leading professors in law, medicine, economics, health, business, and political science.

Professor Elhauge and the contributors provide a multifaceted approach to these multi-dimensional problems. The divergent perspectives and approaches of the contributors provide the reader with an understanding of the intricacies of the system and proposed solutions. The articles address possible causes of fragmentation, including laws that mandate separate payments for each provider, restrict hospitals or others from controlling or rewarding the set of providers treating a patient to assure coordinated care, and provide affirmative disincentives for coordinating care by paying more for uncoordinated care that requires more services. The authors examine and propose reforms that could make our health care system less fragmented, more efficient, and more effective.

This symposium examines the themes and claims of the book, and in particular examines their relevance in the post health care reform world.

The participants will be

John Jacobi

Anup Malani

Abigail Moncrieff

Gwendolyn Roberts Majette

Ani Satz

Richard Saver

Elizabeth Weeks

Vickie J. Williams

Check in Monday for the launch of the symposium.


Medical Tourism and Goodbye

One part of my currently scholarly project (the other focuses on reproduction) concerns medical tourism — the travel of patients from one country (the “home country”) to another (“the destination country”) for the primary purpose of receiving medical care.

As I detail in this just-published paper in the Iowa Law Review, Protecting Patients with Passports: Medical Tourism and the Patient Protective-Argument (the final version is now up on SSRN),  the motivations and demographics of medical tourists (or less colloquially “cross-border care consumers”) are heterogenous:  Some are uninsured or underinsured patients seeking cost savings (in some cases upwards of 80% savings compared to U.S. prices) on procedures like hip replacements or cardiac bypass by seeking them in countries like India or Thailand.  Some are part of a growing industry of what I call “insurer-prompted medical tourism” — individuals who have insurance but whose insurers incentive (or at least theoretically require as a condition of coverage) travel abroad.  There have even been attempts (a bill that died in the West Virginia legislature, proposals for Medicare/Medicaid) to have what I call “government-prompted medical tourism” where state health insurance schemes incentive (or much less plausibly require) travel abroad for health care.

As I discuss in the Protecting Patients with Passports, these types of medical tourism raise significant legal and ethical issues.  Domestically we treat advance contractual waivers of medical malpractice rights as unenforceable, such that you can’t bargain for a better price with your doctor by waiving those rights, even in the extreme case where you might not be able to afford the surgery without that price discount.  How should we feel about the way in which medical tourists will (due to several interlocking facets of American civil procedure, and sharply less remunerative foreign law) essentially de facto waive medical malpractice recovery rights by seeking care abroad in order to achieve costs savings?  How should we regulate the insurer-prompted medical tourism market?  Does the existing state insurance architecture of PPO and HMO regulation suffice?  What about self-insured plans?  What are the dynamic effects on U.S. health care markets of competition from medical tourism centers?  What are the effects of medical tourism on health care access in the destination country and should they matter to us? How will the recent Obama health care reform initiatives change the playing field. I try to take up many of those questions in this paper.  I’ve also discussed some of these issues on PBS, and you can find the clip here.

All of this concerns medical tourism for services that are legal in both the home and destination countries.  There is also medical tourism for services illegal in the home country but legal in the destination country (e.g., abortion tourism, reproductive technology tourism, euthanasia ‘tourism’, stem cell therapy tourism) and for services illegal in both places but with grey or black markets in the destination country (e.g., organ tourism).  Here we face questions of whether the home country should extend its domestic criminal prohibition extraterritorially in the model of the Protect Act (child sex tourism) and other examples.  There are also hard questions about the obligations of doctors in the home country as to patients who have returned with illegally purchased organs, as well as their obligations to inform or not inform patients about the option of going abroad.  I’ve briefly touched on some of these issues in this short paper Medical Tourism: The View from 10,000 Feet, in the Hastings Center Report (a leading bioethics journal).  I am just starting to write a longer piece that looks at normative justifications for extending a state’s criminal law extraterritorially, and what they can tell us about medical tourism for services legal in the destination country but not the home country of the patient.  Perhaps the next time I blog I can tell you what I have learned.

Thanks to the crew at Concurring Opinions for having me the last few weeks.  And thanks to all the commentators for their great engagement and suggestions.


What Makes a Good Workshop Tick? Reflections and Questions on Procedure

I’ve been thinking a lot this week about workshops. I regularly participate in three. One I co-run with Einer Elhauge on Health Law, Bioethics and Biotechnology as a class that students can enroll in which also attracts a number of faculty and fellows from Harvard Law School, other faculties, and the greater Boston area. I also regularly attend and sometimes present at our general faculty workshop, which also occasionally involves presentations from scholars outside of the law school. Finally, the Harvard Juniors get together about once every two to three weeks to workshop one of our papers in a small and informal group.

Each of the workshops have a different rhythm, format, and purpose. Our school is large enough that we can sustain both the general workshop and more specialized ones. Lately, though, I have been thinking about how workshop formats facilitate some kinds of discussions or developments but not others.  If, as I constantly tell my students in Civ Pro, procedure often shapes substance, why should that be any less true when it comes to workshops?  So I’ve started asking around to hear how others run their workshops and here are some variations I have heard of:

The first dimension is the presence/form of a “presentation”.

– Let the presenter present the paper for the usual 15 minutes.

– Let the present present for only 5 minutes.

– No presentation at all, right into the Q & A.

– Have another individual present the paper instead of the presenter.

– Have both the presenter but also a separate commentator.

A second dimension goes to how questions are handled including questions of how to manage a queue.

– Have “protected” time for presentation versus allow questions immediately.

– Have a strict queue that people get on in sequence by raising hands and the moderator writing their names down.

– Have a queue but allow follow-ups from the questioner or others on that line outside the queue.

– Take raised hands each time without a queue.

A third dimension goes to attempts to mold the type of questions.

– Require anyone who asks a question to also suggest something they liked about the paper.

– Have the presenter spell out precisely what they want feedback on in advance.

Finally, for workshops that mix students and faculty, there are further questions about whether to keep separate queues for the two groups, begin with faculty, begin with students, etc.

I’d be curious to hear about the results from experiments with workshop format along these and other dimensions. Did the quality or type of interaction change significantly?  Are there best practices we should be thinking about?


Chatroulette, Julia Child, and the Virtues of Virtual Friendship

A Hispanic teenager listening to music through headphones, a masturbating man, 3 young caucasian women (probably American), two young middle eastern men dressed in army fatigues and a child with a kafiah covering his face shouting something in Arabic and smiling, another masturbating man, 3 japanese young women.

This was what I saw in ten minutes of Chatroulette, an intriguing web site that anyone with a webcam can try. I wanted to try it and blog about it after reading an interesting article in the New Yorker on its teenage Russian founder. You turn on your webcam and are randomly paired with someone else on the site with their webcam on, to whom you can chat vocally or by typing. Either party can push a button that spins the wheel again at any time to be connected with a new partner, and there is no penalty for doing so.

Perhaps 31-year-old law professors are not the favored species in this realm, but I was “nexted” almost immediately in each of the cases except the middle eastern men at whom I started laughing and they laughed back as well. At some point, though, I felt uncomfortable enough myself that I ended the interaction.

Chatroulette is only the newest and strangest instantiation of a phenomenon I’ve been thinking about – virtual friendship. Can one be friends with someone that one has never met, and what kinds of benefits do this form of friendship offer over or to compliment non-virtual friendship? In recently watching Julie and Julia, I was struck by a scene where Julia meets up with the woman, Avis, she has been writing throughout the film.  We discover that the two women have never actually met in person despite being extremely close; they have just been pen pals for years.

The disadvantages of virtual friendship are pretty straightforward, but what might the advantages be? Total honesty if it retains an air of anonymity or removal from one’s social circle? The ability to compose oneself (like a piece of music), that is present a very specific slice of oneself? Many people I’ve talked to of a certain age (usually under 35, those who have had socializing technologies for some period of their youth) have had a virtual friend or two at some point.  These relationships, however, do not seem very long-lived, certainly not like the decade long correspondence of Avid and Julia. Is that just because our social circles are thicker or there is more competing stimuli than in earlier periods?

To add a legal angle on chatroulette, after seeing Robin Wilson present her paper on Sex Play In Virtual Worlds at a conference this summer, I wondered whether the masturbating men on the site might be subject to criminal liability in some jurisdictions if some of their viewers turned out to be children.  Robin (she’ll correct me if I have this wrong) was of the view that on Second Life or other virtual environments that don’t even involve actual images of actual people, under existing doctrine in some states adults can be criminally liable for sexually suggestive remarks and virtual activities.  Under existing doctrine this is true even if those minors represent themselves as adults, the perpetrator has a good faith belief they are adults, and even if the service has an 18+ policy (even if enforced by something like requiring a credit card).  If that’s right, the comparably less virtual and less regulated domain of chatroulette would seem to be full of potential criminal liability.  I am neither a criminal law nor a cyberlaw scholar so I will be curious what those with more expertise think….


Trading-Off Reproductive Technology and Adoption: Does Subsidizing in Vitro Fertilization Decrease Adoption Rates and Should it Matter?

I’ve just posted a new draft on SSRN of a paper I co-authored with Daniel Chen (Duke Law School), Trading-Off Reproductive Technology and Adoption: Does Subsidizing In Vitro Fertilization Decrease Adoption Rates and Should it Matter?, forthcoming in the Minnesota Law Review.  The paper is the first to examine a frequent claim in both the adoption and reproductive technology literatures that increased access to reproductive technologies will decrease domestic and international child adoptions, and that this counts as a good reason to oppose expanding reproductive technology access.  Using both econometric and normative methods, we find reason to be skeptical about both parts of the claim.  We still have a little time to make changes before it goes to print, so feedback is very much welcome.

Here is the full abstract:

For those facing infertility, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, to produce a live birth through in vitro fertilization (IVF) will cost an individual (on average) between $66,667 and $114,286 in the U.S. If forced to pay these prices out of pocket, many would be unable to afford this technology. Given this reality, a number of states have attempted to improve access to reproductive technology through state-level insurance mandates that cover IVF. Several scholars, however, have worried that increasing access in this way will cause a diminution in adoptions and have argued against enactment of state mandates for that reason.

In this paper, which was selected for presentation at the 2010 Stanford-Yale Junior Faculty Forum, we push against that conclusion on two fronts.

First, we interrogate the normative premises of the argument and expose its contestable implicit assumptions about how the state should balance the interests of existing children waiting for adoption and those seeking access to reproductive technology in order to have genetically related children.

Second, we investigate the unexamined empirical question behind the conclusion: does state subsidization of reproductive technologies through insurance mandates actually reduce adoption; that is, is there a trade-off between helping individuals conceive and helping children waiting to be adopted? We call the claim that there is such an effect the “substitution theory.” Using the differential timing of introduction of state-level insurance mandates relating to IVF in some states and differences in the forms these mandates take, we employ several different econometric techniques (differences-in-differences, ordinary least squares, two-stage least squares) to examine the effect of these mandates on IVF utilization and adoption. Contrary to the assumption of the substitution theory, we find no strong evidence that state support of IVF through these mandates crowds out either domestic or international adoption.


Rape, Consent, Deception, and the Blogosphere

[Preface: As anyone who has ever taught material relating to rape in class well knows, this is among the most sensitive of subjects to discuss. Add to this the way in which typed words lose the inflections and other subtleties of spoken language, and any post on rape threatens to come off as insensitive by accident. With that in mind I have tried to write this post in as sensitive a way as I can, but I also ask the reader to bear with me if their first instinct is to take something I have said the wrong way.  Instead please give it the most charitable of readings]

I have been fascinated on two levels by the recent blogospheric discussion of an Israeli Supreme Court case holding that an individual could be prosecuted for rape when he engaged in sex with a woman that was not the product of sex or coercion because he deceived her as to his religion/ethnicity (he was an Arab not a Jew) and his relationship intentions (to ‘hookup’ instead of looking for a serious relationship leading to marriage).

On the first level, I was intrigued as to why the case got so much interest (and the holding largely hostility) in the blogosphere. I think there are many reasons, but I want to put out two (related but distinct) provocative hypotheses for reaction from readers: (1) The case taps in to some long-suppressed doubts held by some reader on whether non-forced or non-coerced sex counts as rape. (2) The case disturbs because it implies that men can be raped during sex that is not forced or otherwise coerced, and while there are contexts in which many are prepared to believe in male rape (e.g., the prison context) they harbor gender-asymmetrical views of rape  outside those contexts.

One level down, into the actual holding of the case, one thing I find fascinating about this area of law (rape by deception) is that it requires constructing a concept of “essential facts” for which deception vitiates consent. To try and think about this, consider the following cases:

1. Ahmed deceives Beatrice about his religion and ethnicity claiming that he was an orthodox Jew when in fact he was a Muslim Arab. (The most recent Israeli case)

2. Jon convinces Daphne he is his identical twin, Jack, whom Daphne is dating, and Daphne sleeps with him inebriated after a long night of partying.  A real case along these lines in Canada had facts like these.

3. Dil deceives Fergus into believing Dil is a woman when they engage in anal sex.  In fact, Dil is actually a man (inspired by this film).

4. Bree is an M to F transgender person who now passes as a woman. She leads David to believe she was biologically born as a woman when they have sex.

Read More


Covering and the Classroom

I am going to continue a thread of conversation started by Bennett Capers while blogging on Prawfsblaw.  In a wonderful riff on Rupaul’s Drag Race, Capers discussed the performative aspect of being the classroom.

One way of thinking about what we do is “covering” in the sense used by Erving Goffman and Kenji Yoshino. Yoshino and Goffman use the term in the sense of toning down “disfavored” identities.  Yoshino’s primary example is covering sexuality — roughly it is not the pressure to stop being gay (assimilate) or don’t let people know you are gay (closet, pass), instead it is the pressure on openly gay people not to act too stereotypically gay.

I want to examine a slightly different idea of covering in this post, not the toning down of disfavored identities, but instead about how we cover elements of our viewpoints and identities in the classroom.

The place where my own covering in this sense is most obvious to me (and perhaps to my students) has to do with my political views and the ways in which they related to cases we tackle (for example, the pairing of Goldberg v. Kelly and Matthews v. Eldridge in Civ Pro). Very often I think I adopt what Socrates identified as a vice of the Sophists, to try and make the weaker argument the better, and merely play with the ideas and reasoning, rather than take sides.

What I have begun to wonder is, as a pedagogical matter, to what extent is this healthy. On the one hand, it models a skill our students will need: to make arguments in cases where they fundamentally disagree with the position of their clients. It also avoids having students who disagree with me politically tune out or treat my class as a “resistant read.”

On the other hand, I wonder if this form of covering causes us to come off as holding a pre-realist view of the law that few of us actually do. If I do not think the two cases can be reconciled but instead that they represent particular views of how the world should be, or pure politics, should I instead say that? And if I do (as I often do), should I take the further step and express a preference as to which world view I prefer?

In what other ways do we cover? Here is one that came to mind: In attempting to capture some of the aura of Kingsfield, the level of attachment, do we talk too little about ourselves as whole people basically hiding things like our families or interests? I tell my 1L students at the beginning of the year two things as a warning: (1) They were very interesting people before they came to law school with diverse interests, don’t let law school beat it out of them. (2) Law school is likely much more difficult for those close to them, in particular spouses and children, who are both the victims of the workload and also shut out of the intellectual engagement, and to try and bring those people in.

To the extent the professor does not discuss his interests or family in the classroom, is he thereby reinforcing these problematic vectors and expressing the view that the students should also strive to ‘cover’ in this way? When I switch the pronoun in the prior sentence of this post to “she” and “her” does this issue become still more fraught?

I’d also be curious about whether there are other domains where people feel they cover in the classroom?


On the Stem Cell Injunction

On Monday, Judge Royce Lamberth of the D.D.C. issued a preliminary injunction holding that NIH’s funding of embryonic stem cell research violated an act of Congress.   Our story begins in 1996, with The Balanced Budget Downpayment Act that contained a rider, known as the Dickey-Wicker Amendment, which prohibited the use of federal funds for “(1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under” applicable federal regulations.  Pub. L. No. 104-99, § 128, 110 Stat. 26, 34 (1996).  That rider has been included unchanged in every HHS appropriations bill since.

Under BOTH President Bush and Obama, NIH has used federal funds to fund Embryonic Stem Cell (ESC) research.  The Bush approach allowed for federal funds to be used for ESC research for ESCs created before his policy was announced (August 9, 2001).  In 2009, President Obama changed that policy: on the one hand expanding the ESC lines for which researchers could receive federal funds beyond the 2001 cut-off of the Bush policy, but on the other hand restricting the available lines through NIH draft guidelines that speak to inter alia the provenance of the ESCs, including the conditions of consent from embryo donors.  These guidelines have proven controversial, but for present purposes my larger point is that BOTH the Obama and Bush administration approaches assumed that some ESC research was consistent with the Dickey-Wicker Amendment (thus what Judge Lamberth does would apply equally to both).

This lawsuit was brought by Drs. James L. Sherley and Theresa Deisher, Nightlight Christian Adoptions, Embryos, Shayne and Tina Nelson, William and Patricia Flynn, and Christian Medical Association.

The relevant paragraph of Judge Lamberth’s order (speaking to likelihood of success on the merits) is as follows:

Congress has spoken to the precise question at issue—whether federal funds may be used for research in which an embryo is destroyed. The Dickey-Wicker Amendment provides that no federal funds shall be used for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under 45 C.F.R. § 46.204(b) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)).” Pub. L. No. 111-8, § 509(a)(2). Thus, as demonstrated by the plain language of the statute, the unambiguous intent of Congress is to prohibit the expenditure of federal funds on “research in which a human embryo or embryos are destroyed.” Id.

Contrary to defendants’ argument, the term “research” as used in the Dickey-Wicker Amendment has only one meaning, i.e., “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 45 C.F.R. § 46.102(d); see also Random House Dict. (listing the first definition of research as “diligent and systematic inquiry or investigation into a subject in order to discover or revise facts, theories, applications, etc.”). This is the most common definition of research, and no other definition of research is supported by the language of the statute. The language of the statute does not support defendants’ alternative definition of research as “a piece of research.” (Def.’s Opp’n [22] at 31 (citing RANDOM HOUSE DICT. (2009).) Indeed, the Dickey-Wicker Amendment does not contain any language to support such a limited definition of research. Rather, the language of the statute reflects the unambiguous intent of Congress to enact a broad prohibition of funding research in which a human embryo is destroyed.

This prohibition encompasses all “research in which” an embryo is destroyed, not just the “piece of research” in which the embryo is destroyed. Had Congress intended to limit the Dickey- Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way. Congress, however, has not written the statute that way, and this Court is bound to apply the law as it is written. Accordingly, this Court must “give effect to the unambiguously expressed intent of Congress” to prohibit federal funding of research in which a human embryo is destroyed. Chevron, 467 U.S. at 843.

Lamberth then rejects the government’s argument “that the ESC research is not research in which a human embryo is destroyed because ESC research does not involve embryos nor result in their destruction,” more specifically that the Amendment defines “ESC research and the derivation of ESCs from embryos as separate and distinct ‘pieces of research'” from the destruction of embryos.  Lamberth finds that the statute unambiguously (in Chevron terms) precludes that reading, arguing that “[s]imply because ESC research involves multiple steps does not mean that each step is a separate “piece of research” that may be federally funded, provided the step does not result in the destruction of an embryo. If one step or “piece of research” of an ESC research project results in the destruction of an embryo, the entire project is precluded from receiving federal funding by the Dickey-Wicker Amendment.”  He then finds the other requirements of a preliminary injunction satisfied.

Reactions after the jump….

Read More


Is There a Constitutionally Protected Right to Use Reproductive Technologies?

A few months back Jessie Hill had a blog post entitled “My so-called right to procreate” asking about the scope of procreative liberty protected by the Constitution.  I wrote about this issue in passing in a paper devoted to the opposite question, whether the constitution protect a right NOT to procreate (or what I prefer to think of as rights not to procreate, separable sticks in a bundle encompassing the right not to be a legal, gestational, or genetic parent – indeed as I pointed out there, I think the right to procreate should be similarly unbundled).  In a new paper entitled Well, What About the Children?: Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction, as part of a larger project on the justifications for the regulation of reproduction I briefly address a slightly narrower issue than the one in Jessie’s post, whether there is a negative liberty fundamental right to non-interference with reproductive technology use.  I thought I would set out and expand on that discussion here and see what other readers thought.

My own view is that the constitutional status of state interventions preventing access to reproductive technologies (either directly, e.g., prohibitions on access to reproductive technology for women over age 50 or through regulation, or indirectly, e.g., parental fitness screening for surrogacy users) is deeply under-determined by the existing doctrine.  The only U.S. Supreme Court decision to consider whether there is a fundamental right to become a genetic parent, Skinner v. Oklahoma, 316 U.S. 535, 536-39 (1942) (finding a fundamental right that was violated by physical sterilization of individuals convicted three or more times of crimes of moral turpitude but not embezzlement) is subject to a myriad of possible interpretations especially as applied to reproductive technologies.

Here are a few:

Skinner protects as a fundamental right any use of reproductive technologies that simulates that which would be achievable by coital reproduction in the fertile individual (not, therefore, something like genetic engineering). John Robertson is the person I most closely associate with this view (although his view has considerably more nuance that I can get across here).

On the other extreme, one might argue that because Skinner itself was premised on an Equal Protection claim not a substantive Due Process one and thus there is no substantive Due Process right to Procreate at all. Cf. VICTORIA F. NOURSE, IN RECKLESS HANDS: SKINNER V. OKLAHOMA AND THE NEAR-TRIUMPH OF AMERICAN EUGENICS 165 (2008) (concluding that “both liberals and conservatives have made a mistake” in their reading of Skinner because the case was “neither argued nor decided as a case about rights in the sense that we use the term ‘fundamental right’ today).” That said, over the years the Court has lumped Skinner in with its substantive Due Process jurisprudence so often that the time may have passed for hewing to this distinction.

In between there are several other positions:

Read More


A Tale of Two Gay Marriage Litigations: To Stay or Not to Stay?

While Perry and the Prop 8 litigation has been getting most of the attention in the media and blogosphere, the Massachusetts District court decisions in Gill v OPM and Massachusetts v. Dep’t of Health & Human Services striking down parts of the Defense of Marriage Act  are in some ways the more interesting (and if upheld more meaningful) decisions.  Today, though, I noticed reporting that Gay & Lesbian Advocates & Defenders (GLAD) the Massachusetts-based gay rights group that ligated Gill among many other major LGBT rights cases (including the MA gay marriage case, Goodrich) had agreed to stay the ruling while the DOJ decided whether to take an appeal.  I thought this was an interesting contrast to Boies and Olson’s decision to fight the stay of Perry at each stage.  Of course there are a number of legal differences between the cases — in the press release GLAD points to not wanting to have to pay back benefits if the decision is overturned and  there is a possibility that the Obama administration may relent in its opposition to the suit — but I find the strategic/political perspective even more intriguing here.  Would Olson and Boies have been perceived to have let down their backers if they did not fight the stay, whereas as more institutional repeat player like GLAD has already built up significant goodwill?  Are there good strategic reasons why the Perry litigators want to try and accelerate their litigation while the Gill ones want to maintain the typical pace, or is this instead a matter of the litigators’ own interests?  Are Boies and Olson more confident of a good reception than the Gill lawyers at the Supreme Court now, and are they right to be?  Which case is the one someone supportive of these efforts should want to see get to the cert stage first?  How does the standing to appeal issue in Perry fit in to the calculation?  Part of it may also just be a reflection of the slowness of the 9th Circuit’s typical docket as compared to the lithe 1st Circuit, such that even with the stay acceleration in Perry the Gill case gets resolved first.  Lots of questions and few answers, but I thought others might have interesting thoughts…