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.52In New York, the state attorney general, Andrew Cuomo, launched an in-vestigation of insurers physician ratings that culminated in settlement agree-ments in 2007.Cuomo claimed that the evaluation programs were confus-ing and unfair to both physicians and consumers.53 After negotiating withhis office, insurance companies eventually agreed to follow the rankingguidelines in a national model provided by the Office of the Attorney Gen-eral (OAG) (in cooperation and consultation with the American MedicalAssociation and other provider trade organizations).The model agreementsrequire insurers to fully disclose to consumers and physicians all aspects oftheir ranking system. 54 Since there is mandatory disclosure of all data andmethodologies, the problem of the black-box evaluation system is reducedunder the model agreements.Attorney General Cuomo has advocated thecodification of the model based on his written agreements with insurancecompanies, and several prominent members of the New York legislaturehave agreed to support the bill.55 The proposed bill suggests a trend towardtransparent, quality-based rankings.CIGNA has agreed to make its ratingmethodologies public.56 A Patient Charter for Physician Performance Mea-surement has also emerged as a project of the Consumer-Purchaser Disclo-sure Project (CPDP).The specific terms of the charter call for evaluationsthat are meaningful to consumers and bar decontextualized ratings basedsolely on cost.Comparing Lawyers Failures and Doctors Successesin Regulating Reputation ScoringProfessional ranking programs are here to stay, and may play a vital role inpay-for-performance programs designed to rationalize compensation forphysicians and lawyers.The CPDP s approach suggests some principles thatcould govern reputation regulation more generally.However, the failure ofthe Avvo lawsuit shows that First Amendment defenses can pose a formi-dable challenge to accountability here.Why have lawyers so far failedwhere doctors have succeeded?Reputation Regulation 121Some nonlegal differences in the two cases spring to mind.Avvo.com isfar smaller than the settling health insurance companies.There is an obvi-ous conflict of interest in the latter situation: insurance companies haveafinancial incentive to rank doctors based on their cost to the insurancecompany, not the quality of care they offer.An insurance company mightprofitably purport to evaluate and rank doctors by quality, but then put thephysicians who cost the company the least money at the top of its rank-ings.On the other hand, more subtle and dispersed conflicts of interest per-meate Avvo s business model.It has no direct financial interest in the costsof lawyers work, but it does have an interest in spurring attorneys to claimtheir profiles and supply the site with more information.Frequently blamed for making heartless coverage decisions, insurancecompanies are eager to avoid additional bad press.Avvo.com is a new com-pany without the image problems of the private health insurance industry.Moreover, Avvo s prime business model is to rate attorneys, while the in-surers core profit centers lie elsewhere.Though both attorneys and physi-cians have successfully protected their economic interests, more compressedincome distribution among the bulk of physicians may make the logic ofcollective action more compelling to them.Finally, while attorneys ignoretheir Avvo profile at their peril, and cannot directly deny Avvo business,physicians can pull out of offending insurers networks.Yet there are also significant legal rationales for the divergent results ofthe two lines of litigation.Insurers are part of a heavily regulated industrywhere government decisions are crucial to their ongoing profitability.ManySupreme Court decisions have permitted agencies to shape the speech ofrecipients of governmental largesse.In its 9 0 decision in Rumsfeld v.Fo-rum for Academic and Institutional Rights, Inc., the Court allowed thegovernment to condition certain benefits on beneficiaries compliance withgovernmental standards.Had the insurers failed to settle, they would likelyhave seen the doctors merely shift their case from the courts to state insur-ance commissioners.Avvo, by contrast, is a mere web start-up, with verylittle contact with or (apparent) reliance on governmental largesse.But as acloser examination of the complex web of laws that govern cyberspace inter-mediaries reveals, they may well be as vulnerable as insurers to govern-mental pressure designed to ensure basic protections for the individualsthey rank and rate.122 ReputationFree Speech and the Regulatory StateInternet service providers and search engines have mapped the web, ac-celerated e-commerce, and empowered new communities.They also posenew challenges for law
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