Wednesday, December 31, 2003

Tort Reform Distortions

The poorly reasoned editorial of the day is unquestionably "Some things I wonder about" by Walter E. Williams. First he expresses that it only makes sense to buy at the lowest price, and thus that it is perfectly reasonable for CEO's to seek lower cost workers overseas.
How many times have we heard the accusation that a corporation moved overseas to take advantage of lower-priced labor or hired cheaper-priced Indians with HB-1 visas to replace higher-priced American high-tech workers? You'd think that a desire for lower prices is somehow immoral. Why should a preference for low prices be OK for you and me, and not so for CEOs?
Needless to say, the debate is not over the merits of bargain-hunting, and Mr. Williams presents a classic example of failing to see the forest for the trees. Not so poorly reasoned yet? Don't worry - it gets better. Williams next complains that homosexuals die at much younger ages than heterosexuals, yet insurance companies don't hike up premiums for homosexuals:
After all, life insurance companies do ask applicants about other forms of behavior that have an impact on life expectancy, such as: Are you a pilot? Do you abuse alcohol and drugs? And do you have DUI arrests? Why not also: Are you a homosexual? I think I know the answer. Life insurance companies would be charged with lifestyle discrimination.
Um... perhaps it is because the "death" statistic he cites - to the extent that it is valid - is not the result of homosexuality, but is in fact the result of a certain medical condition known as AIDS, and life insurance companies most certainly do inquire about that condition before issuing policies? You would think he would know that, as he cites a source, "'The Longevity of Homosexuals,' in the Omega Journal of Death and Dying in 1994" - but somehow forgets to mention that the full name of the article is "The Longevity of Homosexuals: Before and After the AIDS Epidemic". He somehow also forgets to mention that the statistic at issue comes not from a credible source, but from a seriously flawed 'study' of selected obituaries by Paul Cameron. His other source is a reference to a study in "Psychological Reports" - coincidentally, also by Mr. Cameron. I wonder why he didn't direct his readers to even more, um, supporting material from Mr. Cameron's website, where we learn that homosexual desire is often caused by dominant mothers, rejecting fathers, excessive masturbation, and sex with animals. Yep, Cameron wrote that - and more.

And Williams isn't even done. He concludes by arguing,
I also wonder about judges. Merv Grazinski of Oklahoma City purchased a brand new 32-foot Winnebago motor home. On his first trip, he set the cruise control at 70 mph and calmly left the driver's seat to go into the back and make himself a cup of coffee. The R.V. left the freeway, crashed and overturned. Grazinski sued Winnebago for not advising him in the owner's manual that he couldn't actually do this. The jury awarded him $1,750,000 plus a new motor home. Winnebago changed its manuals. I wonder why. Anyone so stupid as to leave the driver's seat is probably also too stupid to read a manual.
Presumably he's never heard of Snopes?

He gets paid for this?


Happy New Year

Some stories from England to let you know that although your New Years activities may not be the best or funniest in history, they also probably won't be the worst....


Tuesday, December 30, 2003

At this price? A bargain!

Looking for an investment property?


Words I Never Thought I'd Hear

The other day, a long-time friend of mine and self-described classic conservative, told me, "I had to admit this, but I've been thinking about it and I have to admit that Bill Clinton had the potential to be a great President - if he'd only kept his damn zipper up." He then expressed what he detested most about Clinton - his worldview was completely at odds with that my friend had developed through years as a military officer, but was coming to recognize as pervasive in government - in GW's government - since entering the civilian world.

Which brings me to a couple of weirditorials. Not idiotorials, but not entirely sensible, either. First, we have Robert Samuelson arguing,
The political story of 2003 was, in some ways, the fashionableness of "hate." It became respectable not simply to disagree with George W. Bush or to dislike him and criticize him -- but to go further and declare your everlasting hate for the man. People bragged about how much they hated Bush. This loathing of Bush from the left does not, as yet, seem any more vicious (and perhaps less so) than the loathing of Bill Clinton from the right. But what is different is the willingness to call it "hatred" and to have the label blessed by much of the press, which has concluded that Bush is different from other modern presidents.
Perhaps it is just me, but I don't recall any shortage of people willing to describe their sentiment toward Bill Clinton as "hatred". To the extent that the press covered the hatred differently, perhaps it was out of a misguided sense of "fairness" and "balance" - to those criticizing Clinton. Outlets like Fox News, which have no particular interest in fairness or balance beyond sloganeering, don't much care if their treatment of "Bush Haters" is dismissive of the reasons for that hatred.

From his comfy chair, Samuelson hypothesizes,
In the end, Bush hating says more about the haters than the hated -- and here, too, the parallels with Clinton are strong. This hatred embodies much fear and insecurity. The anti-Clinton fanatics hated him not simply because he occasionally lied, committed adultery or exhibited an air of intellectual superiority. What really infuriated them was that he kept succeeding -- he won reelection, his approval ratings stayed high -- and that diminished their standing. If Clinton was approved, they must be disapproved.

Ditto for Bush. If he succeeded less, he'd be hated less. His fiercest detractors don't loathe him merely because they think he's mediocre, hypocritical and simplistic. What they truly resent is that his popularity suggests that the country might be more like him than it is like them. They fear he's exiling them politically. On one level, their embrace of hatred aims to make others share their outrage; but on another level, it's a self-indulgent declaration of moral superiority -- something that makes them feel better about themselves. Either way, it represents another dreary chapter in the continuing coarsening of public discourse.
I don't know about that. The people to whom I have spoken who most "hate" Bush, whether at home, in England, or in Canada, seem to have formed that opinion early in his Presidency, prior to 9/11 when his approval rating was anything but high. While it may be that some resent the fact that a large percentage of the population supports Bush, that development came after their contempt was fully formed. Also, obviously, those in Canada and England also don't fear being politically exiled or marginalized - they have no vote, and no direct stake in U.S. popular sentiments.

Also I am not sure that any of his detractors see much "success" in Bush's record - other than, that is, his amazing ability to slash taxes for the wealthy and to raise taxes for his reelection campaign. The jury's still out on Afghanistan and Iraq - although I certainly hope that the ultimate verdict is delivered as quickly as possible in our favor. I personally think that if Bush had achieved rapid democratization and redevelopment in Iraq, with the "candy and flowers" welcome we were implicitly promised following the invasion, a lot fewer people would be in the "haters" camp.

And then we have Bill Safire.... Bill talks about his lack of "cognitive dissonance" in distrusting the Clintons, and applauds his own "consistency" for insisting that Cheney, whom he trusts implicitly, disclose the facts and circumstances of his energy task force. (This created in poor Bill some "cognitive dissonance" because it meant that he "chose to stray off the Bush reservation" - and no, I'm not making that up. But that was okay, because he claims it would have been even more dissonant had he approved the inappropriate secrecy.)

As you might expect, he ends up taking pot shots at Howard Dean, for imposing a full decade of "executive privilege" on the records from when he governed Vermont. He suggests that this must create "cognitive dissonance" ("C.D.") in Dean's supporters:
They could deal with C.D. by (1) suppressing their cognition about executive-branch secrecy, or (2) changing their cognition about Dean or (3) calling on their hero to tear down that stonewall. There is also the choice of emulating the shrewd action of Aesop's fox: deciding that the grapes of wrath are sour.
Now, I'm all for transparency in government, so given those three choices I would say "tear down the wall". But... if Safire wanted to be honest, and to avoid another bout of cognitive dissonance in himself, perhaps he should have mentioned that President Bush has placed his own gubernatorial records under a reported fifty year seal in his father's presidential library. Even Fox News seems to think that a relevant fact when criticizing Dean.


Monday, December 29, 2003

The Import of Pakistan

A couple of years ago I read Shame by Salman Rushdie - a tale set in a "fictional" nation which obviously represented Pakistan. I was left with a greater understanding of Pakistan, and the firm conviction that Salman Rushdie absolutely detests that nation. President Musharref seems, in many ways, like he stepped off the pages of that book.

Prior to 9/11, the United States was not exactly in Pakistan's cheering corner. In fact, there was considerable strain and concern, relating to Pakistan's rumored trade of weapons technology (including nuclear technology), its development of its own nuclear arsenal, and its conflict with India over Kashmir (with at best indifference and at worst support for cross-border terrorism). There was also the fact that the Taliban was largely a Pakistani movement that had found a home in neighboring Afghanistan, but the significance of that had not yet sunk completely in - the Bush Administration, in fact, was at that time happy to reward the Taliban for its role in suppressing heroin production.

After 9/11, Pakistan became an important but vexing ally in the war against Afghanistan, and it remains crucial to our fighting that war. Musharref seems to recognize that his future is most assured if he has the backing of the United States, and (given his circumstances) has made a considerable effort to do what the Bush Administration asks of him. It was obvious from the outset that this was putting him into greater conflict with Pakistan's religious extremists. Over the past two weeks, that conflict has produced two significant assassination attempts, which were obviously made on the basis of inside information. Musharref escaped in both cases by a matter of seconds. Unless a highly placed mole (or perhaps more than one highly placed mole) is identified, and the flow of information ended, it is unlikely that Musharref's luck will hold.

In today's London Guardian, Peter Preston examines some of the issues surrounding Musharref, his importance in the continuing war effort in Afghanistan, and the improbability that a successor will be as accomodating of the United States.
Pervez Musharraf, for all his evasions, is a pretty determined man. He has India's prime minister coming to town for talks about peace. He has chosen a necessary course and, by and large, sticks to it. But Washington and London, applauding benignly, can take absolutely nothing for granted. Here is a teeming country boasting its own brand new weapons of mass destruction. Knock one piece off the board (or blow up one bridge on time) and everything, including the nature of the finger on the button, changes.

Another 9/11 attack on the White House lawn - or the back side of Downing Street? Maybe. The awful warnings of homeland security are always, rather hysterically, with us. But a calculating, canny Osama has a much easier and more tempting place to strike: and is doing just that. Pakistan is the frontline of 2004, with only one lonely (almost) ex-soldier guarding the gate. When the WMD go off there, then the connections engulf us all.
It's an unpleasant possibility for those of us who have long been concerned that Pakistan's nuclear arsenal might end up in the hands of an extremist government not far removed from the Taliban, or be funneled by a successor government (or during the chaotic period between governments) into the hands of a terrorist group that would like to plant a megaton or two in Los Angeles, London, New York, or Tel Aviv.

Of course, there's also the possiblity that following the assassination of Musharref, Bush might roll in some troops to maintain order, producing yet another occupation of yet another nation that is largely ungovernable. So I guess we should all be rooting for the survival of a self-serving, corrupt, non-elected third world despot "because the alternative is worse". Happy New Year.


Sunday, December 28, 2003

But Who Will Be Responsible....

A few weeks ago a very nice AP reporter called me to ask some questions about an Ohio case, where a woman who had murdered her newborn child was being considered for parole. We had a long discussion about the parole system, in general terms, and I suggested that one of the leading factors in parole decisions, particularly where there is media attention, is fear of being held responsible if a parolee commits a subsequent horrible crime. I then referred him to another attorney who is a true expert on parole issues, for a more detailed analysis.

Recall 1998, when George H.W. Bush attacked Michael Dukakis for having granted a weekend furlough to convicted murderer Willie Horton, who committed another homicide during his unsupervised vacation from prison. While it is, to put it mildly, a bit shaky to try to hold Dukakis directly responsible for the conduct of every fuloughed inmate, Bush also glossed over the fact that the prior governor of Massachusetts, a Republican, had signed the furlough bill into law.

And there, perhaps, we have the "Nixon goes to China" angle to the story. It is okay for a Republican governor to create a lax furlough program because Republicans are "tough on crime". A democrat who signed a similar law - or, in Dukakis's case, failed to somehow repeal it - can be skewered by that same law due to the stereotype that Dems are somehow "soft on crime". (The ultimate send-up of this stereotype was, perhaps, the Simpsons episode where Sideshow Bob ran against Mayor Quimby, and ran an attack ad regarding Quimby: - "Mayor Quimby supports revolving door prisons. Mayor Quimby even released Sideshow Bob -- a man twice convicted of attempted murder. Can you trust a man like Mayor Quimby? Vote Sideshow Bob for mayor.")

Moving to the present, following many years of "getting tough on crime", many states are finding that the result is not safer streets, but an enormous part of the state's budget devoted to sustaining enormous prison populations. And, given the financial straitjacket many states are in, a large number of states are considering ways to reduce that prison population.

In California, The Governator (and how can a Governator possibly be soft on crime) has suggested that there should be changes in the parole system to reduce the prison population. Needless to say, The Governator would prefer that somebody other than he be responsible for the release decisions. I suggest that he be more brave - like he was in Commando - and simply do the job himself with his powers to pardon prisoners and commute sentences. Surely, when the inevitable happens and there is an ugly incident of recidivism, The Governator doesn't want to look like he's hiding behind the skirt of an anonymous bureaucrat....

Why is it that so few Republicans are willing to adopt Truman's sentiment, "The Buck Stops Here"?


Friday, December 26, 2003

Most Frivolous Lawsuit of the Year

As the year draws to a close, it appears that the most frivolous lawsuit of the year award goes (unsurprisingly) to Fox News and Bill O'Reilly for their absurd lawsuit over Al Franken's use of "Fair and Balanced" in the title of his latest satirical work. Granted, Fox News almost topped itself - it threatened to sue The Simpsons and Matt Groening for presenting a parody of Fox News on an episode of The Simpsons. But, as Groening pointed out, he thought it was worth the risk because he didn't think that Rupert Murdoch would bankroll what would amount to Fox suing itself.

Where are the tort reform advocates when you need them? Isn't Fox News supposedly crawling with "conservatives" who detest frivolous lawsuits? Isn't Bill O'Reilly supposedly such a creature? Why is it that they instead focus their news efforts on capping and limiting meritorious suits, even as they waste the time and resources of our court system with the most frivolous of lawsuits imaginable?

Oh - and if you don't want to take my word for it that the lawsuit was frivolous, let's see what Bill O'Reilly had to say about it.... ""we never thought we were going to win the lawsuit." Oh, really? And did you volunteer to pay the defense costs associated with fighting the frivolous lawsuit you knew you weren't going to win, Bill? (I guess the word for the day is "hypocrite".)

I guess it is possible that a more frivolous lawsuit will be filed within the next few days and I'll have to amend this award, but.... more likely, six years from now this will be the most frivolous lawsuit of the decade.


Thursday, December 25, 2003

The Christmas Spirit

In a pre-Christmas conversation, a relative presented an observation about the United States: "We're a very generous nation. If anybody's going hungry, it's their own damn fault." I pointed out that there was something of a tension between those two assertions.

When I was practicing criminal defense law, I was exposed to a world of people I wouldn't otherwise know existed. People you probably will neither encounter nor notice if you live a standard U.S. middle class lifestyle. It is eye-opening to see the effects of multigenerational poverty, alcoholism, abuse, neglect, and drug addiction. It is rather appalling to see families who, like the proverbial crabs in a bucket, do their utmost to claw and pull any relative who attempts to escape the cycle back down into the bucket. It is sad to see people who are trying hard to improve their lot in life, but lack the requisite grounding in basic job skills to hold a decent job - what most of us consider to be "common sense" practices, such as getting to work on time, or the manner in which we address a supervisor or boss (even, or perhaps especially, when treated unfairly).

This is coupled with government policies which work to discourage marriage among the poor, by slashing benefits for many poor women who admit cohabitation or enter into marriage with the fathers of their children. If you want full benefits, you stay single - but, at least in part as a consequence, family units are far less stable, and many poor kids tend to grow up without a consistent father figure, or with siblings from several different fathers.

I do not mean to indict the entire social welfare system, as on the whole it works. The majority of welfare recipients use the aid to recover from a personal or financial crisis, and after about three years on average are back to self-sufficiency. The problem is that the system has both helped create a population which is completely dependent upon welfare, and despite the "reforms" of recent years continues to be structured in a manner which perpetuates dependency among that population.

When I read Jennifer Nicholson's "Christmas" column, Ebenezer Was Right, in the National Review Online, I was impressed with how a minor exposure to the world I saw on a daily basis as a criminal defense attorney had inspired an incredibly hostile reaction in Ms. Nicholson. While I was impressed with the need to find ways to break the cycle of poverty, Ms. Nicholson's reaction was of anger, spite, and on the whole a desire to ignore the problem - not because ignoring it will make it go away, but because she is at heart a selfish person.

Oh no, she would surely protest - she attended to the poor lady's kids, generously giving them food, support, and attention that they lacked at home. But what was her conclusion - that we need to find a way to help those kids escape the cycle despite poor parental role modeling? That we need to find a way to teach their mother greater job and parenting skills? No. It was to dismiss them all as human refuse - throw away the mother as a useless person, and let the kids go down with her - whether to jail or to the poor house. Merry Christmas.

Ms. Nicholson's column also reflects an inherent weakness of thinking - she (and the NRO editors who approved her column) are deeply in the grip of the "hasty generalization". It is easier for them to look at one individual, whether it be Ms. Nicholson's neighbor or the mythic "welfare queen in a Cadillac" who featured so prominently in Ronald Reagan's campaigning, than it is to look at the whole. And it is easier for them to argue that an entire population should be thrown away, than it is to suggest viable solutions.

Ms. Nicholson didn't focus on the efforts her neighbor was trying to make, but instead focused on her failings. The neighbor managed to obtain jobs, and was obviously trying to provide a better life for her family - but Ms. Nicholson focuses on the woman's difficulty holding a job, difficulty providing appropriate child care while working in menial jobs, and literally laments that she cannot give truth to Ebenezer Scrooge's desire for prisons and poorhouses for that type of person. Oh yes - and the neighbor she openly despised was not sufficiently grateful for the kindness Ms. Nicholson showed to her children. (Let's overlook the fact that she couldn't have avoided noticing the degree of antipathy held for her by Ms. Nicholson.)

The "hasty generalization" is used by people like Ms. Nicholson to justify no end of prejudice, anger, and even hatred. It becomes okay to hate poor people, because of the "ingratitude" of one poor neighbor. It becomes okay to hate black people "because my cousin was mugged by a black guy". It becomes okay to hate Arabs because there are a few Palestinian suicide bombers. Ad infinitum. Ad nauseum.

Ms. Nicholson's final sentiment,
Maybe, with the help of a jail and a poorhouse, the little family will get it together, discover the value of work. It's a long shot, but, as the magnet on my refrigerator says, "Dreams come true at Christmas."
is about as far from the Christmas spirit, and about as far from a Christian spirit, as one can get. It is no small wonder that she and her editors idolize Ebenezer Scrooge - who was similarly trapped in small-mindedness, greed, prejudice, and anger.

If you are a believer, your prayers this season no doubt include those less fortunate than you. You might want to add a word for those like Ms. Nicholson who have lost their way.


Wednesday, December 24, 2003

Wages Fall... For The Masses

In today's Washington Post, Harold Meyerson observes:
Since July the average hourly wage increase for the 85 million Americans who work in non-supervisory jobs in offices and factories is a flat 3 cents. Wages are up just 2.1 percent since November 2002 -- the slowest wage growth we've experienced in 40 years. Economists at the Economic Policy Institute have been comparing recoveries of late, looking into the growth in corporate-sector income in each of the nine recoveries the United States has gone through since the end of World War II. In the preceding eight, the share of the corporate income growth going to profits averaged 26 percent, and never exceeded 32 percent. In the current recovery, however, profits come to 46 percent of the corporations' additional income.

Conversely, labor compensation averaged 61 percent of the total income growth in the preceding recoveries, and was never lower than 55 percent. In the Bush recovery, it's just 29 percent of the new income coming in to the corporations.
So who is doing extraordinarily well in this recession? As you might expect, corporate executives. Whether in the United States, Australia, or Britain, corporate executives behave pretty much like third world tyrants who treat their national treasuries like a personal cookie jar. (Which is, no doubt, why they are so much more deserving of tax relief than the working classes who have suffered terribly in this recession and continue to suffer in the jobless recovery.)


Tuesday, December 23, 2003

The Sky Is Falling?

Let's take two entirely hypothetical federal court decisions:

1. Congress passes a law which inserts language into a pledge which is recited daily by many schoolchildren. The new language, "under God", is inserted as a reaction against "godless" communism, with statements both by Congress and the President which reflect an intention to insert religiosity into the otherwise secular pledge. Critics claim that this flies in the face of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." Ultimately, a federal court holds the insertion of the language to have been unconstitutional. With near unanimity, "conservative" pundits condemn this as an example of a federal judiciary run amok, defying the will of the people, Congress and the President.

2. Congress passes a law which restricts the manner in which certain groups can endorse candidates for federal office within thirty or sixty days of an election - the groups may still run issue ads which do not endorse a candidate, but if they wish to actually endorse a candidate they must do so through a PAC (which could also result in the identification of those who donate $1,000 or more to any such ad campaign). This law is passed by Congress and signed by the President on the basis of a perceived need for "campaign finance reform." Critics claim that this flies in the face fo the First Amendment: "Congress shall make no law ... abridging the freedom of speech, or of the press". Ultimately a federal court holds the law to be constitutional. With near unanimity, "conservative" pundits condemn this as an example of a federal judiciary run amok, even though the court acted in accord with the will of the people, Congress and the President. References are made to this being a "sad day for freedom of speech", or even as the "death" of the First Amendment.

Can the reason for the different reaction be boiled down to pure hypocrisy? Courts are evil and activist when they overturn unconstutional laws which don't accord with the values these pundits wish to impose on society? Yet courts are also evil and activist when they sustain laws which sit on the fence - good arguments can be made both for upholding and overturning the campaign finance reform provision - if the decision doesn't accord with the immediate short-term goals of the pundits (or their constituencies)?

I don't recall even one "conservative" pundit who complained when Scalia authored an opinion which increased "sovereign immunity" to unprecedented levels - even though there is absolutely no constitutional basis for "sovereign immunity". (Is this the same Scalia who routinely complains that courts don't follow the text and original intent of the constitution, and instead impose their own values? It sure is.)

In contrast, "conservative" pundits routinely complain that "there is no constitutional right to privacy", usually in the context of attacks on abortion rights or the overturning of state sodomy laws. (If we turn to original intent, weren't the federalists expressly concerned about this possibility - that various factions would try to undermine any right not specifically enumerated in a "Bill of Rights" - when arguing against such a Bill of Rights? Wasn't this supposedly resolved by the Ninth Amendment?)

Let's face it - modern "conservatives" love judicial activism, and the new breed of "conservative" judges seems to enjoy smashing decades or centuries of precedent in order to achieve a particular political end.


Sunday, December 21, 2003

Why Let A Few CW's Spoil A Friendship?

Harry's Place posted a link to a memorandum [PDF format] from then-Secretary of State George Shultz to Donald Rumsfeld, with instruction on how to handle his 1984 meeting with Hussein. Included in the advice (emphasis added):
Setting: Two events have worsened the atmosphere in Baghdad since your last stop there in December: ... (2) Bilateral relations were sharply set back by our March 5 condemnation of Iraq for CW use, despite our repeated warnings that this issue would emerge sooner or later. Given its wartime preoccupations and its distress at our CW statement, the Iraqi leadership probably will have little interest in discussing Lebanon, the Arab-Israeli conflict, or other matters except as they may impinge upon Iraq's increasingly desperate struggle for survival. If Saddam or Tariq Aziz receives you against this background, it will be a noteworthy gesture of the GOI's interest in keeping our relations on track -- and perhaps a measure of how much they think we may ultimately have to offer to their war effort.

"CW", of course, stands for "chemical weapons".


Saturday, December 20, 2003

Fixing Democracy in the U.S.A.

In "Third parties don't have a chance", Bruce Bartlett provides some interesting thoughts on the (non)viability of third parties for U.S. federal elections - and a suggestion as to how to give them life:
One reform I have long favored that is more doable would be to allow third party votes to be aggregated with those on major party lines. This can be done in 10 states, according to the New Majority Education Fund ( Most prominent is New York, which has long had an influential Conservative Party, Liberal Party and Right to Life Party. When a major party candidate is endorsed by one of these third parties, votes on their line are added to his vote total. This makes their endorsement valuable and gives third parties more influence without upsetting the basic electoral system.

There are, of course, other means to the same end, but Bartlett's suggestion has the benefits pretty simple, understandable, and has proved itself to at least some degree in the states Bartlett described.

And, while whining about the fact that the Supreme Court upheld campaign finance reform, Jonah Goldberg presents the suggestion that redistricting problems can be fixed by enlarging Congress:
I don't know if we should have districts of 30,000 these days. That would create a Congress of more than 8,000 representatives. But a couple thousand wouldn't be a bad way to start.

I'm all for a larger Congress, having enjoyed a much closer relationship to and understanding of my provincial and federal legislators when living in Canada. However, larger isn't always better - and any change in the number of Members of Congress should be associated with a long-overdue federal reform of redistricting - as otherwise a map of Congressional districts for the new, larger Congress is likely to look like a spilled bowl of spaghetti. I think the present emphasis should be on redistricting reform.

A side note - I like Jonah's introductory line, "everyone who understands the First Amendment was rightly having conniptions...." I don't like it because it is fair or accurate, but because it is quite the opposite. It is a little trick I have sometimes used myself - but only in debates where my opponent is not sufficiently intelligent to pick up on the underlying logical fallacy. It's a preemptive version of "when did you stop beating your wife". Within this context, whatever the merit of the campaign finance reform decision, I would venture that the five Supreme Court justices who voted for reform understand the Constitution far better than Goldberg ever will.

[Update - Dec. 21, 2003 - Lawrence Kestenbaum has provided a highly relevant caution about Bartlett's idea, and how it can result in a significant loss of choice for voters, in the comments section.]



A few weeks ago I wrote about a career criminal who received an inordinately light sentence. Today, an update:
Remember my Nov. 22 column about Gregory Scarborough, the drug-addicted serial burglar who was caught, convicted and sentenced by D.C. Superior Court Judge Susan Winfield to 18 years in jail, only to have the sentence suspended and replaced with a 120-day drug treatment program? Last week, Scarborough tested positive for drugs he acquired while in jail and used while in his treatment program. Yesterday Judge Winfield imposed her original sentence of 18 years incarceration

I am reminded of the days when I practiced criminal defense, and I would obtain an astonishing break for a defendant, only to find that within a few weeks or months the defendant had blown it.

A client on a work pass called me to inform me that he had tested positive for marijana only once, but that his probation officer had scheduled a hearing over that probation violation. I obtained the probation officer's report - which showed three positive tests, and indicated that after the second test the officer had told the defendant that one more time would mean going back to jail. When I pointed this out to the defendant, he asserted "But it was only one time after that."

A client who was going to be sentenced to delayed probation on a felony, such that he would not even have a record (for a first adult offense) if he completed 18 months of probation was picked up the night before sentencing with a bag of marijuana. That was between the time I phoned him to tell him the good news about the sentence recommendation, and his actual sentencing the following afternoon. He didn't tell me about it until after the sentencing, at which time he also told me a story, later recanted, that the office who arrested him had planted the marijuana on him.

To most people, getting through a year or two without committing a stupid crime and getting arrested isn't difficult - it's the way they live their lives. And, like the criminal in Colbert's piece, no matter how big the break or how serious the consequences, some simply can't help themselves from screwing up within weeks of getting the biggest breaks of their lives.


Friday, December 19, 2003

Civilian Deaths in Iraq

In today's Guardian, John Sloboda argues, "We must honour the dead", specifically by maintaining a civilian death toll. As you know, although by historical standards the civilian death toll is very low for a conflict of this magnitude, the Bush Administration obviously wishes to suppress that information for fear of negative publicity. Would publication of this information, with historical context so as to show how the civilian death toll compares to prior wars, hurt the military effort? Or would it hurt Bush, while actually helping the military document that it has exercised considerable restraint and care (particularly by historical standards)?


Thursday, December 18, 2003

Criminal Conduct by Adolescents

In the New York Times today, there is an editorial by Joan Jacobs Brumberg, "Separating the Killers From the Boys", which attempts to address some of the problems with juvenile justice, particularly in relation to violent offenders.
Lee Malvo, the teenager charged in the Washington-area sniper attacks, is on trial for his life in an adult court in Chesapeake, Va. Although "kids who kill" seem like a modern phenomenon, we've actually been struggling for more than a century with how to regard and treat them. Are they men or merely boys? Should it make a difference in the way we think about their punishment?
There, of course, is no easy answer to this - once the boy has been turned into a killer.

After describing the 1892 execution of an adolescent, Brumberg notes,
There were Americans who considered the execution of an adolescent to be barbaric while others hailed it as an act of justice.

More than 100 years later, both sentiments are being repeated as Lee Malvo's trial continues. One side predictably argues that he deserves special protection from capital punishment because of his dysfunctional beginnings, his vulnerability to psychological coercion and his age. The other side responds with their mantra: "A kid who kills like an adult should be punished as one." It's a rhetorical groove we've been stuck in despite the passage of a century.
Brumberg is entirely correct that the notion of "if you're old enough to do the crime, you're old enough to do the time" reflects an incomplete understanding of cognitive development. As children and adolescents fact that children lack the perspective and experience of adults, particulary at younger ages may not fully appreciate the concept of "death", and particularly in adolescence may have a false sense of immortality, give the right circumstances you can turn a child or adolescent into a soldier who will bravely advance where adults would fear to go, and who will kill more easily than a typical adult. Whatever you think of Malvo's "indoctrination" defense, the use of "child soldiers" around the world evidences quite well that pretty much any child can be turned into a killer, in many cases willing to perform atrocities that would make most adults blanche.

Brumberg comments, "boys well into their late teens have difficulty curbing their impulses, thinking through long-term consequences and — most relevant to Lee Malvo — resisting the influence of others." I would venture that most teens who manage to curb their impulses and think through their actions would find this assertion to be patronizing. While acknowledging that there are times in your life when various impulses are more difficult to control, it remains possible to obey the law - and I personally do not care for the "they can't help it" defense, based upon global observations as opposed to individual choices. Whatever the overal tendency, individuals, including adolescent boys, should be held responsible for the choices they make.

The best solution in one sense would be to try to identify children who are likely to end up in prison at the earliest possible age, and to intervene at that time. Of course, this would take political will - the will to invest resources, the will to stand up to accusations of "racism" when implementing this type of program in inner city regions, and the will to stand up to those who decry such programs as stigmatizing. Further, as there is some truth to the problem of stigmatism, and as perceptions of racism may undermine a program, and great care would have to be taken in designing and implementing such a program.

If you speak to school teachers, and they are willing to speak candidly, they will inform you that even in their lay experience they can pick out the children in their classes who are likely to become criminals no later than second or third grade, and usually in kindergarten or first grade. And they will tell you that the identifications have a high degree of accuracy. It makes sense to utilize that information, and to try to get these kids' lives turned around before they become criminals or killers. An ounce of prevention....

Until that happens (and don't hold your breath), we should recognize that it is difficult to classify adolescent offenders like children or like adults, because they aren't like either children or adults. Once we acknowledge that reality, perhaps we can stop trying to cram them into one system or the other (sometimes with slight modification of the sentencing options for adolescents tried as adults), and recognize that we should be designing from the ground up a justice system that appropriately addresses adolescent crime and potential for rehabilitation.


Wednesday, December 17, 2003

... But Is It Fiscally Responsible?

Obviously, by now anybody who even occasionally reads a newspaper is familiar with the now-controvercial deal between Boeing and the USAF for the Air Force to "lease" a fleet of 100 new refueling tankers, at a cost of between $26 billion to $37 billion. As an editorial in USA Today states,
Proponents of the lease deal concluded it had a better chance of winning congressional approval than a standard purchase of tankers for at least $150 million apiece because the initial costs would be less. But the eventual price could be as much as $5.7 billion more than a purchase, according to Congress' own budget experts. That's the cost of running all federal courts for a year.

The editorial notes that, despite the costs and questions about whether new tankers are actually needed, legislation to lease them "flew through Congress" and included a provision which "specifically awarded the contract to Boeing, short-circuiting the normal bidding process"

A revised deal, after the scandal broke, called for purchasing eighty tankers and leasing twenty. Boeing fired the executive and former Pentagon employee who exercised (to put it nicely) questionable ethics when they negotiated the deal.

Rep. Norm Dicks, D-Washington, "a senior member of the House Defense Appropriations Subcommittee and co-chairman of the Congressional Airpower Caucus", argues in favor of the deal. (Not mentioned in his comments: the tankers are to be built in Washington in Dicks' district, and that he has received significant campaign contributions from Boeing.) Dicks argues:
Third, although the chairman of the Joint Chiefs of Staff says we need an additional $30 billion to $40 billion annually to modernize military equipment, neither the Bush administration nor the Clinton administration provided adequate levels of procurement funding. So Congress - not Boeing - developed the creative tanker-lease arrangement, now structured as a plan to lease 20 planes and purchase 80.

What has not been emphasized enough is that this is a very good deal for the government: The Air Force will pay less than any other customer for the 767 airframes. It's a guaranteed price, millions less than other nations are paying for the same planes.

The easy retorts to this are that, if the tankers truly are needed, Congress would authorize the money to purchase all 100 of the new tankers. First, it can't be that much cheaper even in the short-term to purchase 80 and lease 20. Second, it is not a good long-term deal to lease the tankers - it costs the taxpayer a lot more. In terms of Boeing providing "a good deal", when was the last time it had a customer who wanted to make an outright purchase of even 20 jets of this size, let alone 80 or 100. The government should get an excellent deal - and if the price is so great, it seems that it wouldn't have been necessary to award Boeing a "no bid" contract.

But, leaving aside issues of pork, unethical backroom deals, and even of corruption, what bothers me the most about this deal is its fiscal irresponsibility. Leasing is great if you can't afford to buy, and can even present significant tax advantages for business. Major airlines typically lease their entire fleets for a variety of reasons, including the tax deductions and their ability to shift the massive debt they would otherwise have to directly float off of their books. But when you can afford to buy, particularly when you are the tax collecter and not a taxpayer, it really makes no sense to lease.

The purpose of a lease such as this is to hide the true cost of the planes, and to shift the cost onto future budgets (and Presidents). It's a bad precedent, as if this one lease deal is followed by an increasing number of similar deals, a President can effectively float a massive invisible budget deficit - burdening future administrations with the cost of future lease payments. While such budget trickery may serve airlines well, as they hide massive debt that might otherwise deflate the value of their stock, investors are aware of this trick so nobody is really fooled. But even now, the U.S. government intentionally confuses its budget picture so as to hide the true magnitude of its present and future debts - and there are no shares of stock or class of professional investors who can give the budget even the limited "reality check" offered by the stock market.

What it boils down to for me is this: I like fiscal responsibility. I like balanced budgets. While I recognize that running a deficit is not always a bad thing - and sometimes it is the only way to afford important new infrastructure - I am not a fan of incurring debt "for the sake of incurring debt" or worse, in order to hide the debt from those who ultimately will be called upon to pay it back. From my perspective, tying the hands of future administrations by burdening them with obligations that should be paid in the present is worse than simply running an oversized deficit. If Bush and Congress are afraid of admitting the true size of the budget deficit, perhaps they should step aside and let some fiscally responsible individuals take over the financial management of our country.


Tuesday, December 16, 2003

Fair Trials?

In "Justice for Hussein", Debra Saunders writes:
I would trust the producers of "Survivor" to put together a fitting trial for Saddam Hussein before I would trust the United Nations.

To start, any solon who worries about giving Hussein a "fair" trial should not be allowed near the tribunal. For such people, Hussein's trial is an opportunity to establish how fair-minded they are as jurists, rather than a chance to redress the rivers of red blood spilled in this thug's name.

Ah yes - there's no room, after all, for due process for people we already know to be guilty. And nothing could possibly be gained by demonstrating to the Arab world that we are actually interested in advancing justice and fairness, even when handling the most odious of offenders.

After yammering on for a bit about the evils of those who oppose the death penalty or favor international organizations (and along the way, admittedly, making some decent points about the bizarre trial of Milosevic), she concludes,
I want Hussein to get a fair trial -- but it won't be fair to Iraq if Hussein is allowed to turn his trial into a circus.

I see.... So while she will condemn a "solon" - that is, a "wise lawgiver" - who calls for a fair trial, apparently she does not believe it to be hypocritical when she expresses the very desire she previously condemned.


The Problem With Outsourcing

Simply put, you can't court martial civilians. We've had some previous discussion of the problems with Bechtel - and now Halliburton is reportedly falling short in its performance of duties historically performed by members of the active service:
The Pentagon repeatedly warned contractor Halliburton-KBR that the food it served to US troops in Iraq was "dirty," as were as the kitchens it was served in, NBC News reported on Friday.

Halliburton-Kellogg Brown and Root's promises to improve "have not been followed through," according to a Pentagon report that warned "serious repercussions may result" if the contractor did not clean up.

The Pentagon reported finding "blood all over the floor," "dirty pans," "dirty grills," "dirty salad bars" and "rotting meats ... and vegetables" in four of the military messes the company operates in Iraq, NBC said, citing Pentagon documents.

Our troops deserve better - and if the kitchens were being operated by the military instead of by a private company they would already have it.


Monday, December 15, 2003

A Fair Trial - Before He's Convicted

There is a growing buzz over the trial of Saddam Hussein - particularly where it should be held, and how to ensure that it is fair. But let's be blunt - the record is patent, and no matter how fair the trial Hussein is not going to be acquitted.

If Hussein were from this country, I would want to try him here under this nation's laws - or, if necessary, under the laws that existed prior to his rule (and the associated imposition by his regime of self-serving laws). If no relevant body of law could be found, due to my nation's unfortunate history, I would suggest adopting the rules of a prior international war crimes court or tribumal and applying international humanitarian law. And if somebody from another country were to suggest that he couldn't get a fair trial here, I would likely see that as condescension.

Still, I would understand the calls for a public international trial, held in a neutral setting before an independent judge (or panel of judges), where Hussein would be able to present in full his theory of the case. But, human nature being what it is, the advocates of such a trial would be well-served to avoid suggesting that my nation would be unfair, or had prejudged the case, if they wanted to actually convince me to turn Hussein over to such a court. And I would want some degree of assurance that the "trial" wouldn't end up looking like a theater of the absurd following years of delay, like that of Milosevic.

As an outsider, for many reasons, the idea of holding Hussein's trial before a neutral international tribunal "makes sense". But if the reasons presented for such a trial condescend to the Iraqi people, I expect there to be fierce Iraqi opposition to turning Hussein over to an outside court.

Thus, to no small degree, international efforts should be focused on ensuring that Hussein's trial is fair, no matter where it is held and no matter who presides over it. It would be best if this were not a redux of the trial of Ceausescu.


The "Great Insider" Speaks....

In today's column, Bill Safire writes:
Another useful bit of information is the origin of "spider hole," a phrase used by Lt. Gen. Ricardo Sanchez to describe the dugout hiding place in which the fugitive Saddam was cowering.

This is Army lingo from the Vietnam era. The Vietcong guerrillas dug "Cu Chi tunnels" often connected to what the G.I.'s called "spider holes" — space dug deep enough for the placement of a clay pot large enough to hold a crouching man, covered by a wooden plank and concealed with leaves. When an American patrol passed, the Vietcong would spring out, shooting. But the hole had its dangers; if the pot broke or cracked, the guerrilla could be attacked by poisonous spiders or snakes. Hence, "spider hole."

This is an interesting anedote, but it doesn't quite accord with my understanding. Granted, Safire was around and writing speeches for Spiro Agnew during the war years, whereas I was mostly... not born yet. But nonetheless... Let's take a look at Vietnam "Military Jargon":
Spider Hole - A descriptive and realistic expression for a soldier's foxhole.

And let's take a look at how an actual veteran uses the term:
The second most threatening area on the drop zone was the impact point, the point from which we controlled the drops, and the ideal arrival point for each drop. We had to rapidly dig out and crawl into a spider hole from which to work relatively protected from the Vietnamese who were shooting at us constantly -- snipers, mortars, artillery, rockets. We were proud of the speed with which we could dig these little holes out of that clay with our military-issue entrenching tools.

Beyond that, the "Cu Chi tunnels" were not, as Safire seemingly suggests, short tunnels connected to foxholes. They were an intricate series of tunnels, bunkers, kitchens, store rooms, dormitories, and traps, built on three underground levels starting during the resistance against the French. There were about seventy-five miles of interconnecting tunnels, which were dug into the clay earth of the region as opposed to being lined, in Safire's fanciful interpretation, with clay pottery.

But, in rattling out his editorial, Bill was probably more concerned with letting us know that he had attended a party thrown by Donald Rumsfeld than with spending a few minutes on Google to confirm that he got is lingo right.... (In case you are wondering, Safire "stuffed" himself "on lamb chops and potato pancakes".)


Sunday, December 14, 2003

A Manufacturer's Christmas Wish List

Yesterday I took on Bruce Bartlett's inane views on "tort reform" which were largely based upon a recent report from the National Association of Manufacturers and the Manufacturers Alliance. In reading the report, it is interesting to see what the manufacturers desire:
  1. Lower corporate taxes;
  2. Lower employee benefits costs (particularly health care costs);
  3. Lower litigation costs (particularly asbestos-related litigation);
  4. Lower costs for pollution abatement; and
  5. Lower natural gas prices,

While I have sympathy for the manufacturers' arguments on health care costs, it should be (and isn't) noted in their report that the primary reason these costs are borne by employers in the United States is that, unlike every other western nation, we have no national health plan. Apparently, it would be heresy to suggest such a thing, so intead they propose "greater individual responsibility for coverage costs and health status" - which sounds a lot like the desire to terminate or reduce health care as an employee benefit. They also desire (in addition to a set of massive corporate tax cuts) subsidies for providing health care benefits to employees. Either way, it's a shift of cost from the employer to the individual taxpayer (or to the nation's astonishing deficit.)

It is also interesting to note that they choose to use projected data, as convenient, in order to further their arguments. (e.g., "Currently, [China] operates a parallel rate structure consisting of a 33 percent rate for state-owned domestic enterprises and an 18 percent rate for foreign-funded enterprises. However, observers are expecting the National Peoples Congress to merge the two systems under a single statutory rate of 25 percent—a figure used in this analysis." They apparently see no need to even present alternative figures - one based on reality, and one based upon their educated guesswork. They later argue, "Comparable international data do not exist to make meaningful quantitative comparisons [for double taxation of dividend income or tax treatment of foreign-source income" - and then argue that those factors magnify the U.S. tax disadvantage. Now there's some objective analysis)

In terms of tort litigation, unlike Mr. Bartlett, the manufacturers' concerns are focused primarily on asbsestos liability, although more generally they advocate elimination of joint and several liability, additional statutes of repose, and caps for punitive damages. There are good arguments for retaining or eliminating "joint and several liability", but it is not my impression from what I have seen in Michigan that such a change will have a profound impact on tort liability or the size of settlements - and unfortunately the report presents no data. The other two proposals, unsuprisingly, are aimed at reducing liability for the cases where manufacturers face the most exposure for wrongful conduct - working to the expense of the most injured plaintiffs. None of these proposals would have any effect on "frivolous litigation".

They propose federalizing class actions - it is not presently clear what effect that would have on class action litigation. It may backfire, if the federal judges who get assigned to hearing hundreds of class action lawsuits start requiring the plaintiff's lawyers and manufacturers to end their sweetheart deals, and to start delivering adequate compensation to the injured class. (Sorry - I don't think that a typical "$2 coupon off your next purchase from the defendant"-type settlement serves the injured class - even if it allows for a cheap settlement (as the defendants know most coupons will go unused) and huge attorney fees - payable, of course, in cash and not in coupons.)

For regulatory reform, they propose what sounds like a new regulatory agency (perhaps private in nature) to regulate regulations, and to provide cost-benefit reviews. There is, of course, no reason why manufacturers cannot set up such an independent body right now.

In terms of natural gas cost, beyond arguing for increased drilling of new gas reserves, they seem to be advocating government subsidy of other forms of energy.

In short, the report seems to be less a valid analysis of manufacturing costs, and more a "wish list" to President Bush for the next round of tax cuts and subsidies to be handed out to the wealthy.


A Step Forward

Saddam Hussein is in U.S. custody, and that's a very good thing. I don't think the so-called "resistance" will fold, but I wouldn't complain at all if they were weakened and demoralized by this capture. And I hope that Hussein is quickly and publicly brought to task for his sins. (That is, no Milosovic-style multi-year delay before a year-long trial; and no secret confinements with or without a secret trial.)


Saturday, December 13, 2003

Tort Deform

One of the pet issues of certain faux-conservatives is "tort reform". They announce that there is a big problem with "frivolous lawsuits", and then typically tell us that the remedies we should impose are:
  1. Damages caps;
  2. Shorter limitations periods; and
  3. More statutes of repose.

The problem is, none of those "remedies" are aimed at "frivolous" litigation - in fact, those particular "reforms" are directed at meritorious litigation. They're the equivalent of the "technical defenses" some people like to complain about in the field of criminal law - where a guilty criminal "gets away with it" because of an evil "loophole" in the law. Statutes of limitation and repose prevent the litigation of meritorious cases based on the passage of time. Often, the lobbying is for limitations periods which are shorter than the time in which the negligence which might give rise to litigation could reasonably be discovered. Damages caps have no effect on "frivolous" litigation, but can have catastrophic effects on people who suffer serious personal injury and are unable to recover reasonable compensation from those who caused them harm.

Yesterday, Bruce Bartlett of the National Center for Policy Analysis published "The cost of the legal system", which is perhaps typical of the mushy-headed nonsense put forth by advocates of "tort reform". He complains that a new report from the National Association of Manufacturers and the Manufacturers Alliance indicates that U.S. manufacturing costs are the highest in the world, due to "corporate taxes, employee benefits, pollution abatement expenses and tort liability costs." This will, of course, come as a surprise to those who recognize that other nations have higher corporate taxes, offer greater employee benefits, and are intolerant of pollution - and even have similar tort laws. But let's leave that aside for a moment and assume that this industry report paints a fair and balanced picture. Bruce focuses his editorial on the following contention:
Our tort liability system is 3.2 percent more expensive. No country has a system more expensive than ours.

Actually, I'm a bit surprised that our tort liability system is only 3.2 percent more expensive on average. A principal reason that our tort liability system is so costly is that, in our system, the cost of future medical care is paid by the defendant whose negligence injured the plaintiff, whereas in other nations those costs are either non-compensible (note that Bruce includes China in this calculus - a nation not known for offering due process) or are covered by national health plans. Remove future medical costs from personal injury tort verdicts, and many will plummet in size.

Bruce next presents a classic misrepresentation of "tort reform" advocates:
This last point is reinforced by a recent study from Tillinghast-Towers Perrin, a consulting group. Last week, it estimated that U.S. tort costs climbed to $233 billion in 2002, or 2.23 percent of the gross domestic product. This is like an $809 per year tax on every American, paid in the form of higher prices for goods and services, higher insurance costs and a deterioration in living standards.

Stuff and nonsense. The tort system shifts responsibility for damages from those who suffer injury to those who caused the injury. Eliminating the tort system does not mean the elimination of a "$809 per year tax" - it means that every American will, on average, absorb $809 in damages caused by somebody else, while the person responsible for their injuries pays absolutely no price. That is, absent the tort system, there would be an additional subsidy of $809 per American per year, payable to those whose negligence or deliberate wrongful conduct injures other Americans. (The fact that "tort reform" advocates pretend otherwise serves to highlight who they actually are - business and insurance company lobbyists.)

I am reminded of Walmart's decision from a number of years back that it was more "cost-effective" to stock its high shelves in a manner that posed a risk to customers, paying off lawsuit settlements to customers who were injured or killed by falling boxes, than to improve the manner in which it secured merchandise on high shelves. Upon being presented with a memorandum documenting that this was an official company policy, an angry jury punished Walmart with a large verdict for an injured plaintiff. And, at least to some degree, Walmart improved its policy. No doubt, Bruce would find much more fault in the jury's "excessive" verdict than in the fact that Walmart was choosing to put its customers at unnecessary risk.

What's worse, even at $809 per person, the tort system grossly undercompensates injury victims. According to the Tillinghast-Towers Perrin report Bruce cites (but obviously hasn't read), the tort system returns less than 50 cents on the dollar to people it is designed to help and returning only 22 cents on the dollar to compensate for actual economic loss. Those are real costs, and are borne by tort victims. In other words, the public continues to provide a huge de facto subsidy to tort feasors.

Bruce continues,
Of course, legitimate personal injuries deserve compensation. But, less and less of each dollar awarded in tort suits actually compensates for injury. According to the Tillighast study, only 22 cents on the dollar compensate for actual economic loss. The rest went to lawyers or involved punitive damages or those for "pain and suffering" that went far beyond compensating actual loss.

So in Bruce's mind, "pain and suffering" is not a "legitimate" injury. That is, if I cut off your leg or poke out your child's eye, I should pay for the doctor bill and a prosthesis, but as you don't suffer any "legitimate" damages beyond your out-of-pocket expenses, that's where my liability should end. Am I wrong in asserting that no thinking person would agree with Bruce on that point - and that if Bruce himself were thinking, he wouldn't have presented such an absurd argument?

And I love this part - according to Bruce, we know that "tort reform" is necessary because industry-sponsored public opinion polls, driven in no small-part by nonsense such as Bruce's editorial, suggests that people "believe" it is necessary:
A poll earlier this year for the American Tort Reform Association found that 76 percent of Americans believe that their health costs are higher because of excessive medical liability lawsuits. By a two-to-one margin, people believe that lawsuits are hurting the economy and discouraging the creation of jobs.

(Bruce likes to present thoughts instead of facts - "For example, it is thought that $50 billion to $100 billion is wasted each year on unnecessary medical tests that doctors order just to protect themselves from a lawsuit". No citation, no statistics, just a "thought". When it comes to Bruce, the old saying "A penny for your thoughts" seems like a bad deal....)

Bruce, of course, makes no mention of the 1999 Institute of Medicine report which, after examining available data, estimated that between 44,000 and 98,000 people die each year from medical errors in hospitals alone, making medical errors the eighth leading cause of death in the United States. The direct and indirect cost of preventablemedical error was estimated at $17 billion per year. The Tillinghast-Towers Perrin report states that medical malpractice verdicts in 2001 totaled $24.6 billion - which seems to be a significantly lower "administrative markup" over the actual cost than that the U.S. pays for gas in Iraq.

This is not an argument that there is no room for reform or improvement in the tort system. There are reforms which could be made to make the system more efficient and more affordable, as well as to improve the odds of just and reasonable verdicts. But, unfortunately, it is the rare "tort reform" advocate who has any interest in those goals, as opposed to placing additional hurdles in front of genuinely injured plaintiffs, and limiting the compensation available to those most severely injured by their patrons' wrongful conduct. And the arguments presented by "tort reform" advocates are frequently at significant odds with the facts.


Friday, December 12, 2003


Some guy from across the pond, who no doubt has a funny accent, is daring to argue that "higher taxes work"....
Because of the Blair government's tax increases over the past six and a half years, British people are less poor and more healthy. In the past fortnight, two authoritative studies by independent bodies have shown that higher taxes have yielded amazing success in two key policy areas - but where were the headlines?

Should we invade?


Niceness in Politics?

A relative once told me about his sixth grade campaign to become class president. He and another student were in close competition. When voting, my relative decided that it would not be gracious to vote for himself, and thus voted for his opponent. His opponent did not share that sentiment, and voted for himself. The opponent won - by one vote.

There's no room for graciousness in politics, it seems, if your opponent doesn't share your sensitivities. Even in junior high. (And if I were to guess at the candidates' eventual party affiliations....)

The other day I met with some political types of the Democratic persuasion who were expressing that, in today's political climate, there's no room for being "Mr. Nice Guy" - you need to back your party's candidates and go for the win, even if your party's candidate is running against a "nice person" or a personal friend. It was noted that the Republicans have been following that strategy for quite some time, while Democrats sometimes abstain from endorsing opponents to Republican incumbents - or even endorse the Republican incumbent - to the detriment of their own party's candidate.

I guess some things never change, save perhaps that after sixth grade you can only write so much off to naivete.


Thursday, December 11, 2003

You Don't Have To Be Smart To Write Editorials....

A few really, really dumb editorials:

First, we have Trevor Bothwell writing "Jennings stumps for socialism". How does Jennings evidence his socialist values?
In a nutshell, the ABC program blamed the federal government for "contributing to obesity by giving subsidies (to farmers) to create fattening food."

Now granting that Bothwell is trying to suggest that Jennings is arguing for greater government control over what we eat - a claim not evidenced in his essay - he might argue that such control would be "socialist" in nature. However, what Jennings is unquestionably doing (at least according to Bothwell) is arguing against government subsidies of the farm industry. Some people would call that an argument for capitalism - with farmers growing crops which will fetch them the best prices on the market, as opposed to those which fetch the highest subsidies. You know, with prices determined by the free market. But I guess Bothwell uses a different definition of "capitalism" than the rest of us....

But the idiotorial of the week may well be that of Rich Lowry and "The amazing American job machine". Apparently it's a good thing that good, middle class jobs are being permanently lost, and that new jobs are being created mostly with much lower wages and benefits (or no benefits at all) - because that improves our standard of living! What can you really say, beyond "They must have exceptionally low hiring standards for editors at the National Review".

(Honorable mention is given to Ann Coulter for Vegan Computer Geeks for Dean. At least Lowry was coherent....)


IQ Tests For College?

Britain has a long history of administering standardized tests to its grammar school students (what we would call "public school"). Testing is administered at 7, 11 and 14 in maths, science and English. At age 16, students take the "O-Level" test, now officially called the "General Certificate of Seconary Education Examination" (GCSE). Over the next two years, students who are on an academic track study toward their "A Level" examinations, which play a significant role in determining which college they may attend.

In what is likely to be a controvercial suggestion, researchers suggest that it would be more accurate, and more fair, to base university admissions on IQ test results instead of A-levels. The researchers argue that IQ tests will be more fair for working class students "whose A-level results may have suffered because of poor schooling - an even chance of entering university", and that a 90-minute IQ-style test administered to a set of students two years ago "were a better predictor of success than A-levels or interviews".

Obviously, Britain has advantages for implementing such a system, including the fact that its universities enjoy enormous public funding, the history of national exams for college entry, and its relative ethnic homogeneity as compared to the United States, where a "one size fits all" national IQ test would be challenged on the basis of geographic and ethnic biases. Arguably, the United States already uses the IQ test scheme, given that portions of college aptitude tests often closely resemble portions of IQ tests - not full-spectrum IQ tests, but those portions believed most relevant to the course of study.

It is worth noting that you study for intelligence and aptitude tests, just as you can study for the "A-levels". The difference, perhaps, is that it is easier to study for the aptitude test. As companies in the U.S. have demonstrated, a focused course of study can significantly improve an applicant's scores on tests like the SAT, ACT, GMAT, GRE, and other such tests. And there remains an economic advantage - the "working class" students who would be the intended beneficiaries of a change in the British system would be less likely to be able to afford such test preparation.

But perhaps the more interesting questions are more philosophical. For most, "success" in college means first the successful completion of a degree program, and second the achievement of good grades. Presumably the children of the wealthy, who ostensibly have an advantage on the A-levels, are completing their degree programs, so it seems reasonable to assume that the IQ test is better associated with good grades than with degree completion.

I recently spoke with a college professor about issues of intelligence and college. His experience suggested to him that college can change the way you think, and can provide you with a much greater base of information upon which to make your decisions, but it doesn't make you smarter. (That is in no way a suggestion that the "less smart" can't derive significant benefits from a college education.) He also suggested that the researchers were missing the mark - that perhaps the question they should be asking is not "how well do the students do in college", but "how well do the students do after college, and how does their performance in college correlate to real-world success?" Many of the most successful people, it seems, didn't fare all that well in college (and, in many cases, probably would score in the "average" range on IQ tests.) Many people with high IQ's and great college grades perform in a manner that some would say is "below their potential", or which others might say is more in accord with their interests than with maximizing financial or career success.

Also, while those advocating reform of the British system could benefit from looking at what works (and doesn't work) in our university system, we could benefit from examining what the British have done. Our high schools underserve a great many students - both granting diplomas to students whose skill sets are considerably below what should justify a high school diploma, and in some cases failing to offer an environment conducive to learning. The typical "reform" is to institute standardized test after standardized test in a seemingly futile quest to "raise school quality". While music and art programs are slashed, expensive sports programs are justified on the claim that they entice certain kids to stay in school (when they would otherwise drop out). In our culture of "everybody passes", it appears to be virtually impossible for a high school student who attends class on a reasonably consistent basis and takes the required examinations to fail a class.

When we hear politicians complaining that high school students are being issued "meaningless" diplomas, perhaps the problem is less with the diploma and more with our fear of being "elitist". Perhaps the kids who supposedly can only be enticed to sit through classes for the reward of being on the football team would be better served by an education which focuses on practical, vocational skills. Is it more "elitist" to pretend that everybody is college material and that everybody should go to a university - or to recognize that not everybody is university material, that not everybody wants to go to a university, and that by incorporating a significant vocational element into the last two years of high school for those who want it, we can do a great deal both to improve their preparedness for the job market upon graduation, and provide a better learning environment for the kids who anticipate pursuing higher education.

The unfortunate trend in this nation seems to be to transform the senior year of high school into a joke - something you attend because you have to, but which has no real academic significance. Perhaps tracking college-bound kids into a more academic track could reverse that unfortunate trend. It is painful to learn that the "it's cool to be dumb" culture of many high schools is now affecting colleges. Is that really the direction we want our nation's public education system to head?


Wednesday, December 10, 2003

Lowering the Voting Age?

There is some discussion in Britain of lowering the voting age to sixteen. Ostensibly, this will give "young people" rights which accord with their responsibilities, and may invigorate youth interest in the political process. The cynic in me believes that, rightly or wrongly, those who back the initiative expect the younger demographic to support them in future elections.

A British commentator, Zoe Williams aptly notes:
Voting is like sex, ultimately: some people are ready at 14, some really should wait till they're 21, some people will spend their whole lives unready, and just mess everything up for all of us whenever they go near it.

She then notes the condescending language used by a proponent of the initiative, Lord Falconer - "If we want to both engage young people and make them discharge their responsibilities, there's got to be a quid pro quo of letting them see more influence in the political process."
It would be an outrage to use this language about adults in a democratic state - that our votes were in some way a reward for the responsible discharge of our, erm, responsibilities. For a government that has placed such a premium on the nebulous concept of "citizenship" to misunderstand democracy so radically - to describe voting as a privilege they bestow upon us, rather than seeing their position as a privilege we bestow upon them - is beyond appalling. And if this is indeed a register in which it's acceptable to address 16-year-olds, then how can they conceivably be old enough to vote?

(She then notes that Lord Falconer is hardly alone in treating voters as if they are stupid.)

When I lived in Canada, although the city where I lived at the time wasn't exactly a hotbed of national political activity, I attended high school with the son of a prominent politician. (His father went on to be the Governor General). When he was fifteen or sixteen I asked him once what party he supported. His response was, "What do you think? You know who my dad is."

I hungered to vote when I was a teenager, and was very surprised when I finally received that right by how disinterested my peers were in voting. I do think that, in the U.S., allowing sixteen-year-old kids to vote would significantly increase the youth vote, but perhaps not in a positive manner. That is, I can see various ideological and religious groups lobbying and organizing their young members, attempting to indoctrinate them into voting in a particular way. As polling places are often in schools, I can see entire high school classes being marched down to the gymansium to cast their votes, regardless of their level of interest or knowledge.

If somebody is going to experiment with this, I'm perfectly fine with allowing our friends on the other side of the pond to go first. If in fact it is ultimately implemented and it works for Britain, we should consider following their lead.


Tuesday, December 09, 2003

Pharmaceutical Policy

As Bush signs his much ballyhooed (and much lamented) "Medicaid prescription benefit bill" into law, the cynics among us note that, like everything controvercial Bush does or proposes, it isn't scheduled to take effect until after the upcoming election, with some measures put off until 2010.

There is no question but that the bill is loaded with pork, and it contains provisions which seem designed to force up the cost of drugs, such as bans on imports, and the prohibition against Medicare using its massive buying power to negotiate favorable prices from pharmaceutical companies. Any genuine free trader would be offended by that first provision, and any fiscal conservative would be appalled by the second.

But leaving all of that aside for a moment, there are some poorly kept secrets about the pharmaceutical industry which should have been addressed as part of this Medicare bill.

First, prescription drugs - even new "wonder drugs" - aren't always all they're cracked up to be. As The Independent notes:
A senior executive with Britain's biggest drugs company has admitted that most prescription medicines do not work on most people who take them.

Allen Roses, worldwide vice-president of genetics at GlaxoSmithKline (GSK), said fewer than half of the patients prescribed some of the most expensive drugs actually derived any benefit from them.

The article also presents some related statistics:
Therapeutic area: drug efficacy rate in per cent
  • Alzheimer's: 30
  • Analgesics (Cox-2): 80
  • Asthma: 60
  • Cardiac Arrythmias: 60
  • Depression (SSRI): 62
  • Diabetes: 57
  • Hepatits C (HCV): 47
  • Incontinence: 40
  • Migraine (acute): 52
  • Migraine (prophylaxis): 50
  • Oncology: 25
  • Rheumatoid arthritis: 50
  • Schizophrenia: 60

Also, much drug research and marketing is focused not on bringing patients the best and most cost-effective treatments, but is instead aimed at convincing doctors and patients to try expensive new patented medicines instead of cheap generics - or instead of somebody else's analogous medication. An appalling amount of the "drug research" investment which supposedly justifies the sky-high prices we pay for medicine is directed not at conditions for which no effective treatment is available - but instead, the lion's share of new drug research is directed at finding drugs to compete with other pharmaceutical companies' most profitable products. This can have a benefit for the consumer, as evidenced by the proliferation of antidepressants on the market, but that choice comes with a high price tag. (And the choice is diluted by the fact that pharmaceutical ads mislead customers into thinking that these "wonder drugs" will work for everybody.)

Thus, as turns out to be the case with blood pressure medications, patients have paid a small fortune for new "wonder drugs" which, as it turns out, are no more effetive than diuretics - generic medications available for pennies per dose.

There is a relatively simple solution to these problems - requiring pharmaceutical companies to test drugs not only against a particular disease or disorder, but also against competing medications. A recent Washington Post editorial suggests the following:
Two easy reforms would rectify this information deficit.

First, the government could empower NIH or an independent agency to conduct systematic comparative trials on all classes of medicines with multiple entries. The results of those trials would provide physicians with authoritative clinical practice guides to the best and most cost-effective medicines.

Second, the FDA's drug approval process could be amended to include comparative clinical trials for any new drug that a company wants to bring to the market.

The industry will complain that the additional clinical testing would drive up the cost of approving new drugs and choke off innovation.

But just the opposite would occur. The pharmaceutical industry currently spends more than 60 percent of its $34 billion research and development budget on clinical trials.

But much of that money is wasted on trials designed to benefit the marketing arms of the companies and winds up generating more noise than useful information for practicing physicians.

A new requirement that drug companies test their latest offerings against existing medicines would force them to focus their R&D budgets on truly innovative medicines and help identify the best uses for existing drugs.

That approach makes more sense than most of what Bush just signed into law.