Friday, December 24, 2004

Merry Christmas

Because If You Oppose the Death Penalty....

Okay... somebody explain this to me:
TEGUCIGALPA, Honduras (AP) - Gunmen opened fire on a public bus in northern Honduras late Thursday, killing at least 23 passengers and wounding 16 others, police said. Many aboard were women and children.

* * *

It wasn't immediately clear who carried out the attack. But Torres said the assailants left a note saying they represented a revolutionary group that opposes the death penalty and which contained vulgar comments about congressional President Porfirio Lobo Sosa, who has suggested instituting the death penalty for severe crimes.
Okay... you don't really have to explain it. It makes a crude sort of sense if you assume that this group opposes the death penalty on purely practical grounds - it doesn't want its thugs and murderers to face possible execution when they are caught.

Thursday, December 23, 2004

Eclectic Merchandise, Certainly....

I am not sure quite how I ended up at the Crazy Ape site, but I bought a few unusual gifts there. There was an error in fulfillment (i.e., one of the items they shipped was the wrong item), which permitted me to test their customer service - which proved to be among the best I've encountered for online stores.

A surprising level of honesty....

In George Will's latest rant on global warming, he is surprisingly up front about the fact that the bulk of his argument is based upon a work of fiction. Granted, that's par for the course, but usually the knee-jerk "it doens't exist" types choose fictional works that are at least disguised as science. Next stop, Jurassic Park? Congo?

"Readers Digest Reasoning"

On another blog, I found myself in an amusing discussion over a "tort reform" advocacy site. One of the site's authors was defending the site's approach to the subject - which boils down to lifting sensational headlines from the news, and "reacting" to them, usually without delving any deeper to see if the news story contains factual error. The site's ideology means that this presentation is entirely one-sided. That is, the only type of litigation described on the site are cases the authors deem worthy of ridicule. (The author claims that there is balance on the site, for example because it has a letters section where the proponents may choose to print contrary opinions, and they occasionally link to other resources which take contrary positions.) Needless to say, this type of one-sided, bad analysis is anything but unique in the world of "tort reform".

Although more formally known as the "Hasty Generalization", I think of that type of fallacious logic as "Readers Digest reasoning" because, with no offense intended to that publication, that is where I first encountered this particular rhetorical tool, and it is one that publication has historically used with significant frequency. The proponent of a position collects a set of sensational anecdotes, and strings them together to advance a political position. If you look past the surface such an argument usually falls apart pretty quickly - the "examples" are found to be completely unrelated and isolated, and the "trend" ostensibly shown by stringing them together simply doesn't exist.

Yesterday, CJR Daily brought us an example of this type of flawed reasoning, as applied by Conservative pundits to the supposed demise of Christmas:
Stories about banned Christmas carols and employers forbidding the use of "Merry Christmas" in favor of "Happy Holidays" seem to pop up each December. Over the past few days, however, the issue has been moved front and center by a hungry press, with stories popping up in the national media almost daily, and conservative television host Bill O'Reilly running a daily segment titled "Christmas Under Siege."

But wade through the wall-to-wall coverage of the story, and it becomes apparent that there are only a handful of examples -- three, to be exact -- being recycled in article after article. Many of these pieces use the same incidents in almost the same way. Some even hit for the cycle, as USA Today did today, referencing all three stories in one shot.

* * *

When not flogging the same three stories -- two of which are essentially false -- to create the appearance of a genuine national trend, the media is busy interviewing the same outraged representatives of a few conservative family groups trying to put the Christ back in Christmas. The Alliance Defense Fund, for example, has been cited in numerous stories in the past week, as has the Rutherford Institute, another conservative group.
This is also how we ended up with the notion of the juvenile "superpredator", and ended up as a nation spending hundreds of millions of dollars on "punk prisons" in an era of declining juvenile crime. This type of nonsense frequently gets repeated, without any apparent level of thought, by our nation's media. Because it is so sensational?

Tuesday, December 21, 2004

Who said anything about throwing books away?

Beyond copyright (which isn't an issue for the initial focus of the scanning, public domain works), and speculation about possible damage to books from the scanning process, the biggest criticism of Google's proposal to scan hundreds of thousands of books from several major university libraries seems to be that the files Google creates may become obsolete.
Another crucial concern is the well-being of the books themselves. Google has developed a scanning technology that the company claims is not destructive. Clearly, Google will need to work closely with libraries to ensure that no books are damaged. It is an illusion to think that the digital versions of scanned books can replace the books themselves.

A participating library will get a free digital copy of every book scanned in its collection. In other words, each library will essentially get a digital backup of a significant portion of its holdings, but it will be critical to remember that printed books are a stable medium, one that has persisted for hundreds of years.

Digital technology is only a few years old, and even in that brief time, the digital world has produced dozens of incompatible, and often unreadable, media formats. The Google project will enhance the usefulness of the books it encompasses, but it in no way will render them obsolete.
Because, as the Detroit Public Library proved, no self-respecting librarian would dispose of thousands upon thousands of books, discarding them (including some rare books, scavenged by collectors) unceremoniously into dumpsters, to free up shelf space. Couldn't happen. Books are forever.

Sunday, December 19, 2004

Perhaps I don't read enough celebrity news....

After prior discussions of wacky searches by the TSA, I came across an interesting case - where a wacky search of a celebrity (of sorts) produced evidence of possession of illicit drugs:
They claimed to have discovered this contraband in the bottom of a bottle of Ibuprofen, still three quarters full of its original contents. This bottle had been discovered in the depths of my bag by an employee of Covenant Security, a subcontractor of the TSA, while she was searching it for explosives. They had opened my bag after detecting wires in one of its external pockets. The wires in question were part of my laser gloves, a bit of Burning Man finery, and were far removed from the Ibufrofen bottle in question. What they found in the bottom of that bottle was not an incidental discovery during the course of a mandated search for something else. They had dug deep and purposefully. This was no joint in the ashtray casually spotted by the officer while writing a speeding ticket. A closer analogy would be the joint discovered on the floorboards of your car after the officer removed its carpeting while writing a speeding ticket.
Let's start by conceding that in this day and age, taking contraband through security at a public airport is probably not wise. Perhaps particularly if you have a publicly known association with, say, the Grateful Dead. Perhaps, also, if you are catching a flight home from "Burning Man". But the issue should not be the wisdom of John Barlow's actions, but the legality of the TSA's actions. And, as Seth David Schoen outlines, the Federal Government and TSA are doing their best to avoid having that issue properly reviewed by a court - in the name, of course, of "national security".
The Federal government lawyer sat right behind the People's lawyer and objected every single time that the defense asked anything about screeners' training or procedures, or about statistics, history, trends, equipment, techniques, or anything substantive about the roles of different law enforcement agencies. And the judge essentially always granted the objections on "relevance" even when they were made on "privilege". For example, the defense asked things like whether x-ray machines beep and whether they have two-dimensional displays, and the United States objected. The United States does not want you to know whether x-ray machines beep, or whether they have two-dimensional displays.

Intermittently, I found this hilarious, because much of the alleged "SSI" could be discovered immediately by a passenger or a journalist. (I am still working on a piece that will describe vulnerabilities in vastly more detail than almost all of the information the United States objected to at the People v. Barlow hearing. I intend to describe not only the security procedures used by specific airports and airlines, but a good deal of detail about how they can be circumvented, in the hope of showing that many of these measures cause privacy harm for no benefit. All of those descriptions derive solely from my experiences as a passenger on a single recent commercial aviation trip. That does not prove that the government is legally wrong to say that people within the system are forbidden to talk about equivalent things, but it suggests that there's not much true security benefit at stake in forbidding them.)
Mr. Schoen recounts testimony by an expert describing that the TSA agent's search "shake, open and sniff" techniques which led to the discovery of the drugs, ostensibly on the basis that they might be an explosive, would have been both absurd and dangerous had she actually believed the pill bottle to contain an explosive. He also suggests that the judge was surprised that the defense was even bothering with such trivial issues as the constitutionality of the search:
The judge mentioned that the penalty Barlow would face, if convicted, would not be particularly severe, and seemed to express slightly obliquely the view that it would be in Barlow's best interest to plead guilty -- and that it was surprising that he hadn't done so, or would be surprising if he didn't do so. (I think there's also a class issue at work here. Most defendants can't afford to fight for principle and can at the very best afford to look out for themselves, not for the abstract rules by which the fourth amendment is brought to bear on a class of cases.)
The judge ultimately denied the suppression motion.

Thursday, December 16, 2004

A Note From The Archives

Back when I was in law school and enrolled in a clinical class on appellate practice, one of my classmates found a case which he believed would be helpful to his client. It was a surprisingly old Michigan case, from 1928, which seemed to endorse the notion of "battered woman syndrome", even though that concept wasn't formalized until the 1970's.
Defendant shot and killed her husband in their home in Flint on February 13, 1927. She defended on the sole ground that the shooting was in self-defense. Early in the trial the court indicated that the defense would not be entertained, for the reason that there was "no overt act on the part of the deceased toward her at that particular time," and that deceased was not at that moment engaged in an assault upon her. To support the defense, evidence was offered of threats made by deceased to defendant shortly before the shooting, of assaults made by him upon her, of her physical injuries, and of his brutal and violent treatment of her for some time prior to the event in question, which offer was refused in part at least.
In essence, her defense was that earlier in the evening, without provocation, her husband had become enraged with her, striking her, choking her, and threatening to kill her. He reportedly cleaned and loaded a pistol (one of three firearms he kept in the bedroom), held it to her, and said "I got to kill you", indicating that he would do so before the morning. They went to bed around 9:00, and she stayed awake. Two or three hours later she got up, took the pistol, and started to leave to go to a neighbor's house. She claimed that as she was leaving she heard a noise which she believed to be her husband waking up, that she couldn't run because the house was locked up and there were other guns in the bedroom, so she shot and killed her husband. The autopsy report lent credence to her claim that her husband was getting up when she shot him. The Michigan Supreme Court held that the woman should have been permitted to introduce evidence of justifiable homicide, expressing
After beating defendant deceased said he would kill her before morning. It was not yet morning. He had hung the loaded pistol within reach. He had other guns and ammunition near and in the room. Defendant had suffered his violence and brutality. She knew him. Her fear would not be lessened by her apprehension of being discovered in her attempt to leave the home. Viewed from her standpoint of the time, or from any standpoint, it cannot be said as a matter of law that he had abandoned his declared purpose to kill her, nor that the circumstances were not sufficient to induce in defendant an honest and reasonable belief that she was in danger of great bodily harm or loss of life.
The professor, after first asking with a slight tone of incredulity if my classmate had noticed anything about the name of the defendant (People v Giacalone, 242 Mich 16; 217 NW 758 (1928)), which might have lent to the outcome. When my classmate looked a bit bewildered, the professor indicated that this was the Giacalone crime family, and that the reversal was not based upon an early judicial recognition of the pressures a battered spouse might take, but upon the fact that the woman was married to a leading mobster at the height of prohibition. The instructor's point was that the Court was silent as to the facts which drove its decision, and the case was viewed as an anomaly.

You've got the cutest little....

Wednesday, December 15, 2004

Slashing Social Security

A visitor to the blog sent a note to remind me that, in any Republican proposal for Social Security "reform", the core of the reform effort has been at a minimum to reduce benefits, if not to undermine or eliminate the program (and that he's old enough to remember all of them). He observes, "Socially the program has made a lot of potential homeless old people into occupants in senior citizen’s housing." He agrees that there are relatively simple cures to the present system, for example, by raising or eliminating the cap on payroll taxes, and applying the tax to all income and not just wages.

He describes the Republican efforts, at their core, as "class warfare" tactics. He observes that Social Security "was and is, essentially, a redistribution of income", noting, "There is no attempt to use wealth or capital for this program, yet." (And, in my opinion, there won't be - but it does seem fair to point out that the exclusion of wealth from the Social Security formula and the cap on payroll taxes largely transforms it into a subsidization of the poor by the working classes - one might infer that if Bush could effect a wealth transfer to Wall Street and further reduce Social Security taxes on the rich without private accounts, he might not be so 'hot and bothered' about 'reform'.)

Within that context, today's Times reports, despite Bush's talk about private accounts,
nearly every leading Republican proposal on Capitol Hill acknowledges that private accounts by themselves do little to solve the system's projected shortfall of at least $3.5 trillion. Instead, those proposals rely on deep cuts in benefits to future retirees.
And, as might be expected,
Mr. Bush, who is likely to step up his call for private accounts when he acts as host of a two-day conference on the economy this week, has steadfastly avoided any reference to cutting future benefits.
One might cynically suggest that, if you assume that the goal is to detroy the program and not to save it, balancing the books becomes irrelevant to Bush's equation. (Actually, he may be looking to create a windfall: destroy the program and the treasury notes that form the so-called "trust fund" suddenly need not be repaid.)

Monday, December 13, 2004

More on "Private" Social Security Accounts

Today, Sebastian Mallaby adds to the debate on "private" Social Security accounts, noting,
The contributions will be mandatory; the investment options will be restricted; and retiring account holders may be required to spend their savings on annuities.
If they truly are going to force retirees to buy annuities, it sounds like a disastrous idea. After extracting year after year of "management fees" for handling the account, the companies approved to manage these "privatized" retirement accounts will also be permitted to extract the huge commissions typically associated with annuities? If retirees are going to be forced to purchase annunities, why not have them purchase them from the outset? The system Mallably describes sounds like a recipe for legalized churning.

Saturday, December 11, 2004

Brooks on Privatizing Social Security

Perhaps as an attempt to challenge Paul Krugman, who actually does have an understanding of economics, Babbling Brooks decided to take on Social Security privatization.
Before we get lost in the policy details, let's be clear about what this Social Security reform debate is really about. It's about the market. People who instinctively trust the markets support the Bush reform ideas, and people who are suspicious oppose them.
Um... some of us had thought that this debate was supposed to, somewhere along the lines, involve actual facts, but apparently Brooks is perfectly satisfied to support or oppose major public policy changes based upon the reflexive jerking of his knee - and assumes everybody else is, as well.

Brooks, of course, doesn't mention even one of the legitimate concerns about Social Security privatization....

1. Some people will lose out, big time. Investing in the markets is a "zero sum game" - for everybody who makes a dollar, somebody else loses a dollar.

2. Nobody is going to manage these accounts 'for free'. To further diminish returns, particulary for small investers (who most workers forced into this program would certainly be), the management companies which handle the "private" accounts would extract fees for their services. And just as the interest on a small savings account can be more than consumed by bank fees, the profits on a small investment account can be more than consumed by the management company's fees. We're talking billions of dollars in fees here - and some skeptics among us believe that the short-term windfall to investment companies and corporate executives (who will compensate themselves handsomely for "raising the value of their company's stock" as new monies pour into the market, even though they didn't actually do a thing) are what is really driving the Bush Administration's desire for "reform". (Paul Krugman has noted the inevitability of fees.)

3. Some people who invest successfully will want to borrow "their money". Just as now, people may make an early withdrawal from an IRA or borrow against a retirement account or whole life insurance policy, some people will want to make a purchase and will see no reason why the government shouldn't let them borrow "their money" to do so. Assuming the government permits this, many of those people will not have the money available when they retire.

4. Those who lose will want to be bailed out. Retirees who play the system by the rules but whose "private" accounts prove inadequate to provide any real support during retirement will complain that it is "not fair", and demand a subsidy beyond whatever is left of Social Security. This is likely to inspire retirees whose accounts did "just fine, thank you very much" to demand the same payment, complaining that it's "not fair" that somebody else should get a subsidy for bad investment decisions. Since retirees vote in serious numbers, which is part of the reason they have Social Security and Medicare, a "bail out" would likely follow... which could in aggregate be more costly than having skipped over "privatization" to begin with.

5. Who says we'll even cut benefits? The Bush Administration is promising a benefits cut thirty or forty years from now, to counterbalance present "savings". It may well be that... the cuts are never implemented. Which would mean that we get a much larger deficit in the short-term, with no long-term payoff.

6. As Paul Krugman points out, projections of high, sustained growth in stock market value probably are not realistic.

7. It would be easy to adjust the tax rate, for example by increasing the cap on payroll taxes for Social Security contributions, to "fix" the Social Security budget for at least a century. And even the "bankruptcy" projected for about forty years from now has Social Security able to meet 80% of its financial obligations - a type of "bankruptcy" most seriously indebted people would happily exchange for their bona fide financial plight.

I'm not at all against investment in the market, nor in government support for retirement investment - to the maximum extent possible I take full advantage of my ability to save through IRA's. And despite the market's woes over the past few years, I continue to do so. So obviously I'm not one of Brooks' mythic people who opposes this faux "reform" because I am "instinctively" suspicious of the market. It is because I am sufficiently knowledgeable of the market, and of pork barrel politics, government budgeting and long-term financial projections, to be inherently skeptical of this type of "privatization".

If the Bush Administration wants more working people to invest in the market, create a sweeter deal for the working poor to invest or save through regular and Roth IRA's, while working to maintain Social Security as a safety net for retirement. As previously noted, an adjustment to payroll taxes (applying them to higher income brackets while maintaining present rates) is an easy fix. If you don't want to "save" Social Security by raising taxes, implement a meaningful reform, such as by moving away from the nonsensical suggestion that it is a savings program and acknowledging it as a social welfare program with proceeds that should be distributed on a means-tested basis. Oh... but either one of those reforms would mean either raising taxes on the rich right now, or reducing their (unneeded) Social Security benefits in the future. So why would the Bush Administration choose such an option, when it can instead put the fiscal thumbscrews to the working classes.

Friday, December 10, 2004


A few days ago, Crime and Federalism recommended Bloglines as a way to keep on top of your favorite blogs. I'm sold.

Thursday, December 09, 2004

Remember, folks, he's an 'expert'

In 1983, the Iranian backed Hezbollah committed a suicide truck bombing in Lebanon, which devastated a U.S. Marine Barracks and precipitated Ronald Reagan's decision to withdraw U.S. troops from that country. Suicide bombings continued to be at the forefront of Hezbollah's subsequent guerrilla war against Israel, until it withdrew its forces from Lebanon in 1985. It is that model that may believe has been followed by Palestinian terrorist groups in their suicide attacks on Israeli military and civilian targets. At around the same time, in Afghanistan, Russia was confronting tactics which included the kidnapping and videotaped beheadings of hostages by guerrillas who opposed their occupation. Saudi and Egyptian terrorists were responsible for the suicide attacks on the World Trade Center. And today, Thomas Friedman tells us that the reason for our difficulties in Iraq is that, in the midst of a sea of terrorist factions which use similar tactics, we simply didn't imagine that Iraqis might use them in opposing a U.S. occupation:
Let me explain: America's greatest intelligence failure in Iraq was not the W.M.D. we thought were there, but weren't. It was the P.M.D. we thought weren't there, but were. P.M.D., in my lexicon, stands for "people of mass destruction." And there were far more of them in Iraq than anyone realized.

* * *

You know all those masked Iraqi youth you see in the Al Jazeera videos, brandishing weapons and standing over some foreigner whose head they are about saw off? They are the product of the last decade of Saddamism and sanctions. Those youth were 10 years old when the U.N. sanctions began. They are the mushrooms that Saddam and the sanctions were growing in the dark. The Bush team had no clue they were there.
Take note of the accusation implicit in that statement - that the Bush Administration was lying when it said that part of the justification for invading Iraq was its support for terrorism, and that we were "fighting them over there so we won't have to fight them over here". After all, if either assertion is true, Friedman's thesis falls apart.

Now, granted, Friedman suggests that this inclination toward long-used terrorist tactics and suicide bombings was imported to Iraq as a result of Saddam Hussein's policies under a decade of sanctions. Was the Bush Administration really as oblivious to the realities on the ground as Friedman suggests? Or is Friedman describing his own incredulity, his having endorsed the war in Iraq as a "war of liberation" long before the Bush Administration grasped onto that particular excuse for invasion. I do think that the Bush Administration significantly overestimated the gratitude and reception the U.S. could expect for deposing Hussein, as did Friedman, but I don't think that the Bush Administration shared Friedman's expectation that Iraq's insurgents would not embrace the techniques which much of the Arab world credits with driving both the U.S. Marines and Israel out of Lebanon, nor the horrific tactics used against the Russians during their clumsy and brutal occupation of Afghanistan.

Willard and His Rats

Having recently seen the film "Willard, memorable principally for Crispin Glover's ability to make the lead character believable and for a grotesquely oversized rat, let me now proceed to overanalyze it.

For those not familiar with the story, Willard is a social misfit living in a huge Victorian home with his mother, and suffering severe psychological scars from his years in her tender care. He works for what used to be his family's company, now owned by his late father's tyrannical former partner, under the terms of a buy-out agreement which provides that he can never be fired. His mother asks him to exterminate a growing population of rats in his basement, but he instead befriends the rats, training them to do his (destructive) bidding. Only two rats are identified by name, a white rat named "Socrates" who quickly becomes Willard's favorite, and the oversized "Ben" - who seems to have an agenda of his own, and who Willard believes resents his relationship with Socrates. (Willard comes to hate Ben, and they ultimately attempt to turn their destructive power upon each other.)

Sometimes it seems that large segments of our society have more in common with Willard's rats than with Willard. That is to say, even though if they had sufficient interest or perspective to notice, they would realize that they are following the instruction of a severely flawed personality, as long as that personality is taking charge and telling them what to do... they do it. I'm not trying to draw sweeping allegories to business and industry - I think the better analogy is on a smaller scale, for example, with media advocacy organizations which enlist large numbers of people to send out letters attacking newspapers and columnists who dare to endorse a particular viewpoint or perspective. Or even on a personal scale as, for example, a spurned lover surrounds himself or herself with new "friends" who accept their account of the break-up without question, and who are then dispersed to spread ill-will about the ex. Heck - you even see this effect (seemingly magnified by the lack of direct personal involvement) in online communities.

Of course, nobody is going to take this perspective on their own life, or their own "friends", and they (and their "friends") would be deeply offended by the analogy between their conduct and that of a psychotic loner and his attack rats. But at the same time, the very same people could read this and think, "I know somebody exactly like that". And, of course, that lack of perspective is endemic to being human - something that can be overcome, at least in part, through concerted self-evaluation and reflection, but is largely a part of the human condition.

I could put a gentler spin on this, I suppose, by instead comparing people to sheep who are easily led astray. But I've never particularly cared for that analogy, even when plucked from theology and put to song. But I guess it is more lyrical than, "All we like rats are in some ways predisposed to doing the evil bidding of others, without reflection." (Besides, in reality, rats aren't actually inclined to behave as depicted in Willard - their depicted conduct reflects personification - so that would effectively be analogizing human conduct to human conduct, which would be horribly circular.)

In truth, I think people choose to become sheep (or "attack rats") because they want to further their relationship with their friend or leader. I guess within that context being compared to a sheep - a mindless follower, lost without a leader - is significantly more flattering than being compared to an attack rat - a destructive, unthinking embodiment of somebody else's aggression. But perhaps the best part is how many people, once the allegory is about people and not rats, would happily - even eagerly - choose to play the part of Willard. That, after all, is power.

Wednesday, December 08, 2004

Military Recruiters & Law Schools

The Washington Post has shared two opinions on military recruiters at law school. First, E. J. Dionne Jr. declared "Let The Military On Campus", asserting,
The best way to change the military and to create greater fairness in sharing the burdens of defending our country is to embrace the call to service, not reject it. By opening their doors to recruiters, our universities can strengthen our democracy.
My memory of military recruitment at my law school was seeing an occasional uniformed officer of the armed services in the hall during interview week, and a fellow student's pleasure at getting a summer job that, although not his first choice, he seemed to enjoy.

The true representatives of the military in my law school class were a friend who was going into active duty service after graduation - and paying his own freight for law school - and a Marine reservist who, having recently concluded his active duty, missed a semester after he was called back into the service for the first Gulf War. And let's not forget the retired Lt. Colonel who was one of the most formidable and exacting law professors in the school. The arguable institutional anti-military sentiment (although it came in the form of "anti-war" sentiment) came from a different law professor, mentioned in the comments a few days ago, who announced to the class that her mandatory attendance policy did not apply to students who skipped class to protest the war. And the students who carried anti-military attitudes seemed unaffacted by all of this.

Today, in an unsigned editorial, the Post adds that while universities should feel free to treat the military in the same manner as private employers who discriminate,
But banning military recruiters from campuses or limiting cooperation with them contributes to a cultural gulf that already divides elite universities from the armed services. Particularly now, as military lawyers -- both civilian and uniformed -- are taking on so many of the cutting-edge issues in the war on terrorism, we would want to see more law school graduates enlisting. A fruitful engagement between the military and these law schools seems essential, and an open recruiting environment should be part of that.[1]
This is an interesting idea - the notion that more law students should enlist in the military - but it is strangely divorced from the question of need. That is, I was not aware that, even with the dubious exclusions from various law schools over their policies toward gays, any branch of the Armed Forces was having difficulty meeting its recruiting goals for lawyers. And last I checked, it was the law professors and law students with military backgrounds who provided the true engagement, not the almost invisible recruiters, holed up in cubicles in the recruiting office for at most a few days per year. Whatever the merits of permitting or excluding military recruitment, if you want to build relationships and reduce a "cultural gulf" the best place to start is with the students and faculty.

[1] I'll resist wordplay over the Post's choice of adjective in that last sentence. But I do wonder if the author assigned to the piece was having some fun slipping something past his bosses.

"The Madison County Shill"

CJR Daily brings us a story from the world of "tort reform":
The Washington Post reports today that the U.S. Chamber of Commerce has created a newspaper, the Madison County [Ill.] Record, that bills itself as a legal journal, and focuses on the unusually large number of class-action lawsuits filed in the county. Nowhere in its pages does the paper disclose that it was created, and is in part owned, by the Chamber.
Do you suppose that they added the associated cost to their budget because Edwardsville look so pretty and they want to help out the economy of small town America?

Tuesday, December 07, 2004

David Brooks and the Natalists

An idiotorial of epic proportion. Anybody want to take a stab at finding any merit in this piece? (And no, "He appears to have spell-checked pretty well" doesn't count.)

Sunday, December 05, 2004

... But It Will Be More Fair, Right?

With little regard for the facts, the mechanics of the legal system, or how their own "tort reform" lobbying efforts have contributed to the situation, it is not unusual to hear doctors complain that malpractice cases should be taken out of the court system and shifted into a non-adversary, fact-finding system where lawyers play a smaller role.

The actual deficits of the tort system should be acknowledged, and to the extent possible we should work to rectify them. But as the L.A. Times indicates in its discussion of various travesties of justice which have occurred under the federal Vaccine Injury Compensation Program, in some situations the type of "cure" demanded by these doctors is significantly worse than the disease.

(Thanks to mythago for bringing my attention to the article.)

Cognitive Dissonance

These headlines describe the same meeting, right?

From the Post:
Noting two failed assassination attempts on Musharraf, Bush added "there is nobody more dedicated" to tracking down bin Laden or other extremists.
Nobody is more dedicated? Then, I guess, we're doomed - here's Musharraf's take on the hunt for bin Laden:
"He is alive but more than that, where he is, no, it'll be just a guess . . . " Musharraf said in an interview with Washington Post editors and reporters. Pressed on whether the trail had gone cold, he said, "Yes, if you mean we don't know, from that point of view, we don't know where he is."
(No wonder some wags have taken to referencing the world's #1 most wanted fugitive as "Osama bin Forgotten".)

Saturday, December 04, 2004

Case Law, The Constitution, and "Suicide Pacts"

Quite a few years ago, as online legal research was starting to displace research from printed case reporters, I heard a judge complain about the downside of online research. While the ability to bring up a case based upon a keyword search is a powerful tool, the judge found that some attorneys didn't seem to understand the difference between dictum and holding, and sometimes between the majority and dissenting opinion. They would search until they found a passage that said what they wanted to hear, and then quote it to the court without providing the context. Sometimes these lawyers would be surprised when the judge told them that they were misrepresenting the case they were quoting.

So I guess there should be no suprise when individuals without legal training make a similar error. Perhaps they aren't even reading the case law - perhaps they are skimming through a quote site or a weblog and see a legal quote that "sounds cool", so they present it as if it is gospel. Yet sometimes, if they took the time to find the context of the quote, they might hesitate before relying upon it as an authority.

Today, Josh Marshall expresses his defense of many of the Bush Administration's actions after 9-11 by expressing,
Like Andrew [Sullivan] (at least I suspect this is so, though he can speak for himself), I'm a good deal less doctrinaire on civil liberties issues than, I suspect, many of the readers of this site. As Justice Jackson put it, the constitution is not a suicide pact. And a lot of the things that were done in the immediate aftermath of 9/11 were, I think, justifiable in theory, if not always in execution.
Now, it is true that Justice Powell, dissenting in the case of Terminiello v Chicago stated,
This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
But that's somewhat different from the statement attributed by Marshall. While Powell is arguing for a limitation on First Amendment freedoms, the implications of his statement are not so one-sided. It could at least as easily be asserted that, "if the Court does not temper its doctrinaire logic with a little practical wisdom" a disregard for certain Constitutional protections could "convert the constitutional Bill of Rights into a suicide pact."

But it is also important to consider the subject of Powell's statement, which was an ordinance in Chicago which regulated speech. The Supreme Court noted the effect of the ordinance, as applied by the Chicago courts:
The vitality of civil and political institutions in our society depends on free discussion. ... The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.
And Jackson was less concerned with the Supreme Court's ruling in general than he was with the specific case before the Court - Rev. Terminiello's racist, anti-Semitic, and anti-communist expressions:
The Court reverses this conviction by reiterating generalized approbations of freedom of speech with which, in the abstract, no one will disagree. Doubts as to their applicability are lulled by avoidance of more than passing reference to the circumstances of Terminiello's speech and judging it as if he had spoken to persons as dispassionate as empty benches, or like a modern Demosthenes practicing his Philippics on a lonely seashore.

But the local court that tried Terminiello was not indulging in theory. It was dealing with a riot and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two.
In arguing for affirming the criminalization of Terminiello's speech, he relies heavily upon content he quotes from that speech, and the fact that a huge crowd had argued in the street to protest Terminiello. He quotes crowd reactions to suggest that the speech was more than an expression of thoughts, but inspired strong reactions among members of the crowd. He advances the position that "cities and states sould be sustained in the power to keep their streets from becoming the battleground for [] hostile ideologies to the destruction and detriment of public order", and should be able to criminalize public speech which gives rise to mob violence.

The majority focused not on the content of the speech, but upon the law which was applied to that speech. It remains possible that the majority in Terminiello might have reached a different conclusion had the Chicago ordinance not been so wildly overbroad, and had they instead viewed it as a reasonable "time, place and manner" restriction. (And such a different decision could have had an interesting ripple effect through subsequent First Amendment jurisprudence, and probably not in a direction Marshall would deem positive.)

Thursday, December 02, 2004

When Average Isn't Good Enough

The New Yorker offers a very interesting piece on some of the factors which distinguish average doctors and medical centers from the exceptional. And it's not just devotion to science and sound methodology.

Wednesday, December 01, 2004

"Saving" Social Security

The New York Times brings us an editorial today, ostensibly about "saving" Social Security. The author, John Kasich, a retired Republican Member of Congress, states,
To repair Social Security, we have to be clear about what's destroying it. We'll soon be taking more money out of the system than we're putting into it, which means that one day it will go broke.
Um... last I checked, we took out all of the money that we put it, and used it to float current expenses, be they the present costs of Social Security or the other costs of government. Unless Mr. Kasich has found the keys to Al Gore's mythic lockbox, that's going to continue to happen for the indefinite future.

Under the Bush Administration's version of budget management, we can "afford" massive tax cuts for the richest Americans because we can "afford" to float a huge budget deficit. Why do different principles apply to Social Security? Could it be, perhaps, because the Bush Administration cares about tax cuts for the rich, whatever their cost, but doesn't really care about Social Security?

After explaining that tax revenues are not likely to grow quickly enough to keep pace with Social Security benefits, Kasich states,
We should also create Social Security savings accounts for those under 55. Workers could invest some of their payroll taxes in their own savings account in a mixture of conservative stocks and bonds, much as members of Congress and federal employees do. In exchange for investing a part of their payroll taxes, workers would give up some of their future Social Security benefit - probably about 25 cents for every dollar invested.
So workers "invest" in "their own savings account" - what workers can presently do on their own, if they choose, through IRA's? And these savings accounts will be guaranteed to appreciate in value at the same or greater pace than the rate of inflation, such that the workers will at least break even when they withdraw some of "their" money? If not, workers are supposed to be pleased when they retire to a net loss in the value of their accounts - a result not outside the realm of possibility, given the vagaries of the market and the management fees likely to be paid to the private companies managing these accounts.

And we are going to balance the Social Security budget by reducing benefits by $0.25 for every dollar we withdraw from the system, says the guy who also says that we're destroying Social Security because "We'll soon be taking more money out of the system than we're putting into it, which means that one day it will go broke"? That's some fancy accounting.

And I like this:
Older Americans would be exempt from both changes for a simple reason: our country's greatest legacy is that one generation sacrifices for the next. These people have already made their sacrifices on behalf of the baby boom generation. Now it's our turn. While this sacrifice is small compared to the sacrifices made by those who came before us, it's one that will safeguard Social Security for years to come.
Let me understand this... one generation sacrifices for the benefit of the next. Which means that the current population of retired Americans can't be asked to sacrifice for the benefit of working Americans (whom some might even call "the next generation"), or even for their own grandchildren, because... um... because they changed their own kids' diapers, or something? I guess I wasn't aware that it was a central tenet of American life that only the working masses should sacrifice for the good of the nation, and once you retired you were exempted from contributing to the nation's welfare, regardless of your means, or that there was some sort of quota system when it comes to "sacrificing for the next generation".

Oh, the dishonesty....

In order to further an argument that some opponents of U.S. policy "hate freedom", Anne Applebaum presents the following "quote" which she attributes to the London Guardian:
In an article titled "US campaign behind the turmoil in Kiev," the newspaper described the events of the past 10 days as "an American creation, a sophisticated and brilliantly conceived exercise in western branding and mass marketing."
Well yes, that's true, but... um, what about including the rest of the passage, Anne?
But while the gains of the orange-bedecked "chestnut revolution" are Ukraine's, the campaign is an American creation, a sophisticated and brilliantly conceived exercise in western branding and mass marketing that, in four countries in four years, has been used to try to salvage rigged elections and topple unsavoury regimes.
So yes, the article recognizes an American hand in the sophisticated campaigns behind these democracy movements - and then states that the technique has been used to advance freedom and democracy. The article concludes:
If the events in Kiev vindicate the US in its strategies for helping other people win elections and take power from anti-democratic regimes, it is certain to try to repeat the exercise elsewhere in the post-Soviet world.
So is Anne grousing that the author "hates freedom" because the author suggests an American role in democratic campaings which "salvage rigged elections and topple unsavoury regimes"? He "hates freedom" because he acknowledges that these campaigns have helped advance freedom? He "hates freedom" because he believes that as events unfold the U.S. techniques may be "vindicated" and emulated to advance democracy in other nations with anti-democratic leaders? Um... whatever, Anne.

And her other "supportive" quote is this
In a separate article, the same paper described the whole episode as a "postmodern coup d'etat" and a "CIA-sponsored third world uprising of cold war days, adapted to post-Soviet conditions."
Well, first it was an editorial, not a news article - a difference that should not be lost on Anne, given that she writes editorials. And second, she again omits very relevant content:
Intervening in foreign elections, under the guise of an impartial interest in helping civil society, has become the run-up to the postmodern coup d'etat, the CIA-sponsored third world uprising of cold war days adapted to post-Soviet conditions. Instruments of democracy are used selectively to topple unpopular dictators, once a successor candidate or regime has been groomed.
Is Anne claiming that this is untrue? That the United States backs opposition candidates against dictators "just because", and without concern for whether the opposition candidate will be an improvement over the "unpopular dictator" the U.S. hopes he will replace? Does she believe that the CIA doesn't involve itself in foreign election campaigns, particularly when it has the opportunity to topple an "unpopular dictator" in favor of a candidate preferred by the United States?

Perhaps, even though Anne was unable to quote any, there is some mainstream evidence of the horrible "we hate freedom" attitudes she falsely attributes to those articles. Perhaps she thought that a more honest editorial addressing that some foreign columnists are skeptical of U.S. tactics, even while acknowledging that they can and have advanced democracy and freedom, would have been "too boring". But, one way or another, had she been honest enough to fully or accurately quote her pretended sources, her editorial would have collapsed before the end of its first paragraph.

Tuesday, November 30, 2004

Differing Philosophies

The Michigan Supreme Court has, in recent years, been paring back the ability of lower courts to interpret statutes beyond constructing their plain text. Following Scalia's writings, for example, the Michigan Supreme Court has all but eliminated the ability of state trial and appellate courts to interpret statutes to avoid absurd results.
Our Supreme Court has since criticized and substantially limited, if not eviscerated, the "absurd result" rule, agreeing "with Justice Scalia's description of such attempts to divine unexpressed and nontextual legislative intent as 'nothing but an invitation to judicial lawmaking.'" People v McIntire, 461 Mich. 147, 156 n 2; 599 N.W.2d 102 (1999), quoting Scalia, A Matter of Interpretation: Federal Courts and the Law (New Jersey: Princeton University Press, 1997), p 21. Thus, whether the plain meaning of a statute may be avoided because its literal application results in an absurdity remains an open question in Michigan.
McGhee v Helsel, 262 Mich App 221, 226; 686 NW2d 6, (2004).

But while Scalia rules the day in Michigan, his philosophies are finding a less receptive audience among his peers. Today in Koons Buick Pontiac GMC, Inc. v. Nigh, the majority rejected the notion that the Court has no role in providing a reasonable interpretation to a carelessly drafted statute, leaving Scalia as a sole dissenter arguing for strict construction divorced from Congressional intent and predecessor statutes.

Some might view this as hair-splitting, with the majority of Justices arguing that where the language is unambiguous, it is inappropriate to correct a drafting error by Congress, but it was nonetheless appropriate to look to extrajudicial sources in the instant case because the statute was ambiguous. Scalia is much more textual in his legal interpretations, statutory or Constitutional - except... well, when he isn't. Like in his preference for the expansion of sovereign immunity, a concept strangely absent from the Constitution. But I guess "that's different". [Insert Emerson Quote Here?]

In any event, should Scalia ever tire of his brethren, I'm sure he can get a job clerking for Chief Justice Corrigan. ;-)

Sunday, November 28, 2004

Oh No.... We Must Save The Children

Yesterday, Nicholas Kristof brought us a peculiar editorial in which he argued:
Iraqis are paying a horrendous price for the good intentions of well-meaning conservatives who wanted to liberate them. And now some fuzzy little kittens, who want nothing more from life than lapping milk and having their ears scratched, are seeking a troop withdrawal that would make matters even worse.
Well, not quite. He actually said that it was "some well-meaning liberals", not fuzzy little kittens. But the logic is about the same - some undefined group with no discernible power base is alleged to want something that is not going to happen. And this is a problem because... what? Kristof needed a hook for his columns, and bashing "well-meaning liberals" is easy? (And what would he say of those conservatives who are arguing that we should cut our losses and get out? Well-meaning, or no?)

But the weakness of his analysis doesn't end there. He claims an enormous loss of life among Iraqi civilians as a result of the invasion, arguing,
That's apparently because of insecurity. A doctor in Basra told me last year how physicians and patients alike had had to run for cover when bandits attacked the infectious diseases unit, firing machine guns and throwing hand grenades, so they could steal the air-conditioners. Given those conditions, women are now more likely to give birth at home, so babies and mothers are both more likely to die of "natural" causes.
I haven't read the Lancet article, but let's take Kristof's spin that the deaths are effectively all the result of a security void, and not a direct consequence of warfare. Kristof suggests to us that the solution for a security void is to "stay the course" and... well, at a minimum keep the country from falling apart. Beyond that, Kristof has no apparent notion of what "staying the course" means - he simply predicts a humanitarian disaster with even greater loss of civilian life if we don't stay the proverbial course.

Perhaps Kristof needs to take a harder look at Islamic countries and their internal security situation. There is no question but that prior to the invastion Afghanistan was a failed state, for example, but the Taliban kept order in the streets. (Disagree with its techniques, certainly, but there was order.) That is to say, it is possible that a fragmented Iraq which falls into the hands of various factions of Islamic extremists would be far more secure for the people than the situation we have presently provided. That security would of course come at an enormous price in personal freedom, but if the goal is security police states and totalitarian governments usually have an edge over democracies.

Kristof understandably doesn't want that outcome, but instead of addressing it he pretends it does not exist. I guess, though, that it's easier to present false dichotomies, and criticize an undefined faction of "well-meaning liberals".

George Will Silliness

(George Williness?)

I'm not going to dismiss concerns about political diversity on campus, but it is pretty obvious that certain personality types are drawn to careers in higher education - and the low salaries that go with most professorships. Actually, Will more or less sneers at that notion:
But George Lakoff, a linguistics professor at Berkeley, denies that academic institutions are biased against conservatives. The disparity in hiring, he explains, occurs because conservatives are not as interested as liberals in academic careers. Why does he think liberals are like that? "Unlike conservatives, they believe in working for the public good and social justice." That clears that up.
Will seems to think he's insightful when he writes,
that the "first protocol" of academic society is the "common assumption" -- that, at professional gatherings, all the strangers in the room are liberals.
I wonder if he would write a similarly insipid and whiny column about the overrepresentation of political conservatives at professional gatherings of business executives.

Wednesday, November 24, 2004

There He Goes Again

I know some people are enamored with Joe Lieberman. I even know of an ostensibly "center left" blog whose proprietors were dreaming a few months ago about a Democratic "McCain/Lieberman" ticket. (Yes - they do seem to qualify as "people unclear on the concept".)

But I've never cared for Lieberman. When he speaks about an issue, his comments usually betray a surprising lack of acumen - he doesn't seem to know the facts, nor does he seem to understand the issues. The alternative explanation is that he does know what he is talking about, but rather than advancing a sensible approach based on fact, logic, and law, he instead panders to the "family values" crowd, railing against immorality in a manner that, for somebody sworn to uphold the Constitution, is reckless and irresponsible.

Case in point: "JFK Reloaded. Lieberman starts with righteous indignation - and surely, if anything is offensive, it is that particular video game. "I hope somebody in a position of authority will review whether this game has gone over the line." But then this:
"I hope somebody in a prosecutor's office will take a look at this," said Sen. Joseph Lieberman, D-Conn., referring to "JFK: Reloaded," a game by the Scottish video-game company Traffic in which players peer through a rifle scope and attempt to re-create Lee Harvey Oswald's assassination of the 35th president.

"You can get arrested for threatening presidents and any behavior that suggests you are contemplating taking violent action against an elected official. The line between this and this 'JFK: Reloaded' game is, in my mind, close," said Lieberman, who has led earlier Senate decency campaigns involving movie, video and music ratings.
So is he that ignorant of the law and Constitution? Or is he engaged in mindless, irresponsible pandering? A little of both? A lot of both?

Tuesday, November 23, 2004

The Price of Being an Occupying Power

"The most moral army in the world".

Am I, Um, Missing Something?

In the United States, exit polls "showed" us that Kerry was going to win a decisive victory over the incumbent President Bush. The consensus is now that the polls were wrong.

But the same papers which told us that the U.S. polls were wrong are suggesting (or crying) "shenanigans" over election results in the Ukraine, where exit polls suggested that the challenger was going to beat the incumbent.

Oh, wait - I'll bet it is just that with Ukraine's firmly established democratic traditions, and the amount of money and prestige on the line behind their pollster's efforts to presage the election return, it is simply impossible that their pollsters erred. (Counting the votes to determine the victor? How old-fashioned.)

I'm not saying that election returns in the Ukraine are untainted. Heck, even in this country we suffer the taint of such election peculiarities as the "vote whores" of Texas. But I'm not one to hang my hat on exit poll results, here or there.

Applying Scientific Methodology To Security Screenings

Imagine that the police show up at your house, and insist upon searching your closets. They explain that once a year or so, somewhere in the United States, they catch a murderer hiding in a closet, and thus they have to do closet screenings "just in case". They advise you of safety regulations which may cause them to seize certain items as a result of their search - they'll be taking your wire coathangers, for example. And if you argue, they'll probably search a bit more intensively, maybe also searching your crawlspace and attic.

Obviously, the police aren't on their way to randomly search a closet near you. The "general warrant" which allowed the British authorities to search a neighborhood on generalized suspicion was one of the abuses which led to our constitutional protections against unreasonable searches and seizures. And such searching would be regarded, quite correctly, as an extraordinary waste of time and resources.

Except at airports. Perhaps our government can be made to realize that searching people who have no conceivable relation to airborne crime or terrorism is, similarly, a waste of time and resources. Perhaps there are even methods which could be applied to winnow down the list of suspects from "everybody" down to, well, people who might intend harm to their fellow air travelers. But as long as our transporation security agents feel unduly threatened by the likes of Patti LuPone and Cat Stevens, I wouldn't count on it.

Applying Scientific Methodology to Educational Technique

In a recent discussion of the No Child Left Behind Act, it was suggested that busting the "educational cartel" would be a step forward in public education. It was also suggested that to question the efficacy of charter schools or whether present voucher proposals are sensible is tantamount to "scrapping the whole idea" behind such projects. But the real problem goes much deeper than proponents of competition realize. Or perhaps they recognize the problems but aren't willing to adequately address them, or have other motives (such as obtaining public money for parochial school tuition) that they deem more important than actual improvement in our nation's system of education.

What is most striking about K-12 education is that, save for a constant parade of gimmicks, it remains pretty much what it has always been. Put kids into a building, shuffle them off to a classroom, sit them behind desks, lecture, and test. Granted, schools have added labs and hands-on components to many classes to provide something beyond the lecture, but if you remember your school days you probably remember some horrible, ineffective laboratory work. I recall chemistry labs which may as well have been cooking classes - follow the recipe and get graded on how well it turns out, whether or not you learn anything. And, as much as Canada was trying to encourage bilingualism, the language "lab" component that was grafted on to the ineffective classroom instruction was a waste of time.

Language instruction fascinates me, because it is typically done badly in classrooms, with the only alternative people seem willing to recognize being language immersion courses. Yet for decades there have been alternative programs, including high-cost programs offered to business clients and government programs offered to diplomats, which promise a working vocabulary and functional conversational proficiency through short-term training. That is, they promise to deliver in the short-term a result that most schools, public and private, can't deliver despite forcing children to suffer through year after year of classroom instruction.

And no small part of the problem is that languages are typically taught in about as unnatural a manner as teachers can concoct - memorize vocabulary lists and verb conjugations, delay teaching complicated verb forms, provide a unduly limited vocabulary, stage stilted 'conversations' based on that limited vocabulary, and otherwise work to ensure that even after several years of study a diligent student will still need a dictionary to struggle through a children's story in the foreign language under study.

It isn't that it would be hard to come up with a better way to teach language. As previously suggested, alternative methods already exist. They simply aren't being used in most classrooms, whether because teachers (and teaching schools) are too used to existing methods, because it would be "too expensive" to switch to new methods, or possibly because nobody even thinks to attempt it.

And don't get me started on history instruction - the rote memorization of names, dates, places and events. It is easy to find children who "hate history" - but for the most part, they haven't had any opportunity to learn history. As those who love history and absorb history books know, history is full of wonderful and fascinating stories and narratives. Unfortunately, it is hard to fit in those stories - which might give rise to an actual learning experience - because those darn kids have such a hard time absorbing the dry, sterilized list of names, dates, places and events that most school teachers believe constitute "history", and which are going to be the central focus of "the test".

How about something as basic as reading? There are countless products pitched at schools to help children "learn to read". There are noisome battles between "whole language" advocates and "phonics" proponents, each of whom have their own gimmicks, products, and ideologies. But why is the focus more on the marketing of ideas and products than on the scientific basis for those ideas and products? It is possible to test products and teaching techniques, and to get quantifiable results in relatively short order. But, even when people try to apply scientific methodology to reading and language instruction, who is listening?

Most private schools follow teaching models very similar to those offered in public school. Those schools and school models which come up with innovative teaching or classroom technique rarely see their techniques picked up by other schools, public or private. Even when a good idea is adopted, it is often simplified, modified, or misinterpreted from the outset - without respect to how the original idea worked - and its remains may be subject to further misapplication by a classroom teacher.

It seemed like charter schools would offer an opportunity for true innovation. Freed from the public school bureaucracy, a charter school should be able to innovate, and should be able to test and apply educational models and techniques which offer more than the status quo. But to date, even when charter schools are attached to universities or teachers' colleges, that doesn't seem to happen. Gifted education? Across the board the response seems to be "enrichment" - which is a nice-sounding word but usually translates into "give the smart kid some busy work" - or accelerating the curriculum.

You would almost think that, as long as their kids are scoring reasonably well on "standardized tests" and bring home acceptable "grades", most parents, even when they are paying for their kids' school tuition, are sufficiently happy to regard their school as a convenient babysitting service. Because most parents express satisfaction with their child's school, yet that's largely what they get.

Sunday, November 21, 2004

A Strange World

In a world where it is assumed that medical costs will always go up at a rate which significantly (if not vastly) exceeds inflation, one would think that a new, non-invasive and highly accurate test which can be administered at a fraction of the cost of its predecessor would be, well, good news. So the announcement of a new form of CT scan that is likely to replace angiograms seems promising:
The scans can largely replace diagnostic angiograms, the expensive, onerous way of looking for blockages in arteries, and can make diagnosis so easy that doctors would not hesitate to use them. They are expected to cost about $700, compared with about $4,000 for an angiogram.
According to Epix Pharmaceuticals, this new technology"may provide an alternative for the 4.5 million diagnostic X-ray angiograms performed in the United States annually at a total cost to the healthcare system of over $9 billion.". But it seems that some doctors and industry analysts can find a dark cloud for every silver lining. As the New York Times editorializes,
From a patient's viewpoint, the heart scans have a lot to recommend them. They take seconds to conduct and require no recovery time, whereas an angiogram takes 45 minutes and requires hours of recuperation. The scans can also spot danger spots in the arteries that might be missed by an angiogram. The downsides are that heart scans subject a patient to far more radiation than most diagnostic procedures, and they are quite apt to spot things that are of no medical consequence but that one might feel compelled to do something about. In the end, the patient might undergo additional tests and procedures - all of them carrying some degree of risk - to eliminate a potential problem that did not really need to be fixed.
At first blush, it will take a lot of overuse of this new technology before we're losing money on the deal. Epix suggests a savings of $9 billion per year - but using the Times' figures, we're looking at savings approaching $15 billion per year. Those figures translate into somewhere between 12 million and 21 million new prescriptions for cardiac diagnostic imaging before we're losing money. (That's four to six times the rate at which angiograms are presently ordered.) Whatever skepticism is coming from within the industry, let's hope doctors are more responsible than that, in wildly prescribing this new test, or (as is implicit in some of the "doom and gloom" cost forecasts) in overprescribing it to pay for expensive new equipment.

But one might also note that this highlights something that few analysts have dared to interject into debates over the cost of medical care. It is possible for costs to come down - way down - for certain procedures. And it is possible that the ultimate result will be a vast cost savings over present diagnostic procedures, as imaging tests become less invasive and more accurate, and as methodological scientific study of the results of new imaging tests provide a science-based rationale for determining which medical treatments are most effective and when additional intervention is required.

I Know - We'll Poll The Soldiers, And....

Apparently not wishing to be outdone in the idiotorial business by Anne Applebaum's amazing entry on electronic voting, Tom Friedman shares his, um, insight into when it will be time to give up on Iraq:
Readers regularly ask me when I will throw in the towel on Iraq. I will be guided by the U.S. Army and Marine grunts on the ground. They see Iraq close up. Most of those you talk to are so uncynical - so convinced that we are doing good and doing right, even though they too are unsure it will work. When a majority of those grunts tell us that they are no longer willing to risk their lives to go out and fix the sewers in Sadr City or teach democracy at a local school, then you can stick a fork in this one. But so far, we ain't there yet. The troops are still pretty positive.
Well, let's hope that the troops are positive. The suicide rate among troops in Iraq is already pretty alarming, and we don't need any more incidents of "fragging". Troop morale is unquestionably important.

But in his zeal to support the war, he comes up with a notion that even his optimistic troops might find absurd - the notion of quitting a war in the event of poor morale among the soliders, or a large scale mutiny. Perhaps one of them can jot Mr. Friedman a note explaining that the military is not a democracy, and (within that context) why officers carry sidearms instead of something that would be, say, more useful for shooting enemy soldiers. Someone might also wish to remind Mr. Friedman that the zeal with which troops take to a cause is not always a good measure of the rightness of the cause and, even though the test may seem to work in the context of this military action he supports, he may find himself unwilling to apply the same standard to myriad other conflicts, past, present and future.

Thursday, November 18, 2004

Like A Phoenix From The... Okay, Not Quite, But....

The CJR Campaign Desk site, which provided some pretty good analysis of media coverage durign the Presidential election, has announced its new name and role:
Welcome to CJR Daily -- emphasis on the word "daily" -- an outgrowth of Campaign Desk. Our intent is to critique press performance in real time, day in and day out, and along the way to examine the forces -- political, economic, technological, social, legal -- that affect that performance.
Let's hope, then, that they can keep up their energy and enthusiasm ad the CJR Daily.

Wednesday, November 17, 2004

She's Kidding, Right?

Anne Applebaum today suggests that it is okay for us to vote on ATM-style voting machines with no paper record or audit trail, because she often chooses not to take a paper receipt when she withdraws cash from her bank's ATM machine, and even purchases items or pays bills online with her credit card. Anne seems to be confusing the absense of a paper receipt with the absence of an audit trail. The financial transactions she describes are carefully tracked by the vendor, by her bank, by her credit card companies, and by any other affected financial and commercial institutions, each of which have systems in place to ensure that transactions are not lost.

If her point were that it is possible to implement a pretty sound system of verification without issuing paper receipts, there might be some merit to her column. But as it is, she doesn't even understand the issues.

Sunday, November 14, 2004

Medical Malpractice Mythology

Apparently things work like this at the Washington Post. They find an interesting topic, find a person with good qualifications to author a piece on that subject, then... run the resulting work on the editorial page so that they don't have to fact-check. Today, they present a magnificent example of distortion through an editorial on medical malpractice, by William R. Brody, president of Johns Hopkins University.

Brody announces that there are five myths of medical malpractice, and sets about advancing various myths in the guise of "rebutting" his contrivances. His first "myth" is that "The medical malpractice crisis is someone else's problem, not mine." to which he replies by asserting that people are losing access to medical care and "doctors are leaving practice in the face of unaffordable insurance premiums", or otherwise cutting back on services. He does not explain how doctors can increase their incomes, even taking malpractice insurance into consideration, by quitting their highly compensated profession. Nor does he explain in what, if any, specialty a medical professional can see a significant drop in malpractice premiums by "cutting back on the services they offer". That is, without so dramatically changing their practices they effectively qualify for insurance under a different specialty or subspecialty.

Further, where is the evidence that doctors are fleeing the profession? Florida had more licensed doctors in 2003 than in 1998, with an increase in new applications, despite a supposed "malpractice crisis". This year the chairman of the Pennsylvania Medical Society was forced to admit that he made up his three-year claim that doctors were leaving the state in large numbers, when confronted with documentation of an 800 doctor gain. In 2003, the GAO documented that in 2001 there were more doctors in Washington, in both rural and urban settings, than there had been ten years earlier. Ohio had a five percent increase in medical licenses issued between 1998 and 2003. Illinois showed a 30% increase in doctors between 1994 and 2004. North Carolina documented an increase in OB/GYN's from 843 in 1997 to 937 in 2001, despite the fact that the specialty has borne some of the highest premium increases of any field of medicine.

Other than in insurance industry and lobbyist rhetoric, where is this supposed "flight" from the profession actually manifested?

Brody also suggests that malpractice insurance costs may make medical care unaffordable. That claim may sound like a bad joke to anybody who is uninsured or underinsured, as medical care is already unaffordable. And the adequately insured aren't particularly concerned, because... well, they have insurance to pay the bill. As Brody later addresses the cost of "malpractice" under a later myth, I'll leave this issue for the moment.

Brody's second "myth" is "We need to preserve the current legal system to guarantee a fair hearing and provide compensation for patients harmed by the health care system.". Brody argues that the present system is unfair and is "essentially a lottery" - a claim doctors seem inclined to make. To back up this claim, Brody first misrepresents the findings of a 1991 study which "found that nine out of 10 victims of disability-causing malpractice go uncompensated The study actually found that only approximately 1 in 8 malpractice victims, as defined by the study protocol, pursue claims against the medical professionals who harmed them.
By contrast, our estimate of the statewide ratio of adverse events caused by negligence (27,179) to malpractice claims (3570) is 7.6 to 1. This relative frequency overstates the chances that a negligent adverse event will produce a claim, however, because most of the events for which claims were made in the sample did not meet our definition of adverse events due to negligence.

CONCLUSIONS. Medical-malpractice litigation infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care.
I agree completely with the study's authors that the malpractice system is a poor tool for identifying substandard practice, and obviously a great many patients forego any effort to receive compensation for their injuries. But to claim that because only a small number of people who are harmed by malpractice choose to sue, the system is a lottery, is a rather shameful distortion of the study's purpose and findings. If anything, the study is good news for doctors - it suggests that the vast majority of patients understand their humanity and forgive their errors.

Further, the logical consequence of Brody's misrepresentation is that the system would be more "fair" if every patient harmed by malpractice filed suit. That would mean a literally exponential increase in malpractice litigation. And I think he knows that - but was simply anticipating that nobody would look behind his numbers.

Brody's next claim takes on the other side of the coin, claiming, "a recent study by Harvard University researchers found that 80 percent of malpractice claims were filed against doctors who had made no error whatever." This appears to be a reference to the 1991 Harvard Study which, consistent with the New England Journal of Medicine study, found that in 1984 only one in eight bona fide victims of malpractice sought legal remedy. (This is recent?)The study presents some issues of methodology and definition which weaken some of the arguments made from its findings, both for and against "malpractice reform". Brody, though, probably should have mentioned this finding: The tort system "appears to do a surprisingly accurate job of sifting out the valid from the invalid claims (in the latter cases paying the claimants nothing or just a small amount of damages)."

Brody's last point is similarly dishonest - he claims on the basis of recent medical findings that certain past litigation over cerebral palsy is called into question. It is a good thing to revisit old science, and certainly there have been vast improvements in medicine and medical care as a result of a better understanding of disease and its causes. However, you can only apply that science going forward. Brody appears to intend to mislead his readers into thinking that juries relied on bad science, rather than the best available science, in deciding cerebral palsy cases - and that simply isn't true. Don't get me wrong - there is plenty of room for improvement in the litigation of "bad baby" cases - but Brody's approach to the subject is fundamentally (and in my opinion intentionally) misleading.

Brody's third "myth" is that "The malpractice system is necessary to punish and remove incompetent health care providers." I'm not sure who is supposedly arguing this "myth" - the malpractice system is meant to compensate victims of malpractice. Discipline and removal of incompetent physicians is an entirely separate matter, handled by hospitals, licensing boards, and peer review panels. And on this subject, Brody's argument is wacky:
Unfortunately, the system that rarely provides just compensation for patients also perversely protects doctors who need to be removed from practice, by enabling them to sue other physicians who might step forward to question their competence. This undoubtedly has a chilling effect on whistle-blowing, and those who regulate doctors are often reluctant to suspend or revoke licenses without expert medical testimony.
He's, in my opinion quite deliberately, conflating medical malpractice litigation with lawsuits over defamation. While both are forms of tort litigation, from a lawyer's perspective there is a world of difference between litigating a defamation claim and a claim for professional negligence. Lawyers are reluctant to take defamation cases, as they tend to be difficult to prove and tend to result in small damages awards. Defendants cannot be sued over their opinions, and truth is an absolute defense to a defamation suit.

There is no rash of absurd or frivolous defamation cases by doctors against peer review panels - and, plainly, none that the tort reform lobbyists or the author of the editorial are willing or able to present. To the extent that a peer review panel smears the reputation of an innocent doctor, or abuses its position in order to exclude a competitor from practice, shouldn't there be legal recourse for the injured doctor? If not, why not?

Brody continues with the half-truth, "Nor does the current liability system provide a way to make health care safer." In a purely literal sense, that's true. But in practice, litigation has resulted in dramatic changes in the administration of health care, and significant improvements in patient safety. Anesthesiology used to be very much a "hit or miss" practice, with a very high level of injury and fatality particularly with general anesthesia. Following a wave of lawsuits, the science of that profession improved dramatically, with malpractice and maloccurrence dropping dramatically.

Brody goes on to claim,
What we need is a system that allows health care providers to work together to study errors and put practical improvements in place to prevent recurrences. The current system discourages doctors from talking about system failures for fear of being sued.
The "system" he appears to be describing is called "peer review", where doctors examine incidents of maloccurrence behind closed doors and make findings which are kept secret from the patients, their families, and the courts. What more does he want, in that respect? In terms of open discussion to improve patient safety, contrary to Brody's arguments, that is also occurring at a growing number of hospitals - and I haven't heard anything to suggest that the discussions have increased litigation, although there have been significant improvements in patient safety (e.g., with Ventilator-Associated Pneumonia).

Brody continues by arguing his fourth myth, "Malpractice costs are not a big deal -- they amount to less than 2 percent of total health care costs.". Brody correctly notes that two percent of a $1.66 trillion system is a lot of money. However, for obvious reasons, he doesn't return to his earlier claim that only about 10% of malpractice victims are compensated - given that earlier claim, shouldn't Brody be exceptionally pleased that the cost of malpractice is not ten times higher?

Also, Brody doesn't mention that approximately 10 to 20% of every health care dollar goes to... waste. As Physicians for a National Health Program noted,
Jobs with Justice will release a report on Oct. 7 showing that approximately $245 billion is wasted on private insurance red tape and protecting drug company super-profits each year. The study concludes that by providing insurance more efficiently and making drug companies sell in a more competitive market, the savings could be used to provide secure, affordable health care for all.
While I understand that medical malpractice is a personal issue for doctors, while waste is not, if a purported expert on the subject is going to make an economic argument that "2% of health care costs is a lot of money", it is not unreasonable to expect that the professional might put it into context by noting that it is far from the most significant area of potential cost savings.

Additionally, Brody presents no evidence that the figure is too high. (His evidence, as previously noted, is that the figure is actually too low.) He might as well be arguing that new cars cost too much on the basis of the percentage of an average household's income that goes to pay for a car - the fact that something is costly does not of itself mean that the cost is too high. And while I grant that it makes sense to work to lower the cost of something that is costly, it seems that the hundreds of billions presently going to pure waste would be an easier target for prompt and effective reform.

Brody next introduces the subject of "defensive medicine", claiming that if you go to a hospital with a headache " You are as likely to get a CAT scan as a couple of aspirin". I certainly hope that the standard of care at Johns Hopkins is higher than its President just suggested. However, it should be noted that the cost of "defensive medicine" is borne by the patient (or the patient's insurance company), and that if Brody's specific claim is true it is exceptionally profitable for his hospital and its radiology department. And while Brody claims "The added costs of defensive medicine are estimated at $50 billion to $100 billion per year", he provides no source for that claim, nor any explanation as to how the estimate was made.

If we turn to Harvard studies, as Brody did, we find that in 1990 a study by the Harvard University School of Public Health "did not find a strong relationship between the threat of litigation and medical costs". Or, more recently, a 1999 study from the Journal of Health Economics on the cost of Caesarean sections in states with or without damages caps, found "cost savings" of only 0.3% - and this in one of the areas ballyhooed by "tort reformers" as a centerpiece of defensive medical practice.

The study to which Brody apparently means to allude is the Kessler-McClellan study, a 1996 reporty by two Stanford economists. The General Accounting Office has found that the Kessler-McClellan study cannot be extrapolated in the manner chosen by Brody:
Because this study was focused on only one condition and on a hospital setting, it cannot be extrapolated to the larger practice of medicine. Given the limited evidence, reliable cost savings estimates cannot be developed.
This January, the Congressional Budget Office agreed:
When CBO applied the methods used in the study of Medicare patients hospitalized for two types of heart disease to a broader set of ailments, it found no evidence that restrictions on tort liability reduce medical spending. Moreover, using a different set of data, CBO found no statistically significant difference in per capita health care spending between states with and without limits on malpractice torts.
Brody could, of course, demand a systematic study of "defensive medicine", its costs, and how savings might be achieved. But as his point is actually political, not economic, he instead prefers to make what he cannot resonable believe to be an accurate economic projection.

Brody's last "myth" is that "The current malpractice insurance system is in crisis because insurance companies are trying to cover losses from unwise financial investments made during the dot-com boom." His response to this is to argue that there has been an increase in the median malpractice award granted by juries between 1995 and 2000, and that there has also been an increase in the median settlement. That, of course, is fasinating - but in no way supports his argument. It is possible for the median award or settlement to rise for a large number of reasons, even as the overall cost of malpractice drops.

The best source of information on malpractice costs would come directly from insurance companies - but they are loathe to reveal it. So claims of increase in the median settlement or verdict come instead from informal sources, such as the reports of Jury Verdict Research, Inc., despite the disclaimer by JVR that its figures should not be used for public policy purposes. JVR, for example, makes no claim that its reports include all jury verdicts, estimating that they cover about 60% of jury verdicts. JVR also ignores all verdicts which return no damages award, verdicts reduced by judges, and verdicts overturned on appeal. It does not obtain its data in a methodological manner, and does not consider post-verdict settlement figures. JVR also makes no effort to distinguish between physician liability and hospital liability.

On those rare occasions when actual insurance figures are made available, as was recently the case in New Jersey, Massachusetts, Mississippi and Missouri, those actual figures revealed, in the words of an insurance industry executive, "Severity has not gone up, and in fact, it has gone down a little". Additionally, despite population growth, data from the National Association of Insurance Commissioners (NAIC) demonstrates a four percent reduction in medical malpractice lawsuits between 1995 and 2000.

So Brody presents flawed "median" figures, a tactic which suggests that "average" and "overall" figures don't support his claim. He doesn't present industry figures which show a decline both in damage awards and the frequency of malpractice litigation. And again he skips merrily past his earlier argument that 90% of malpractice victims go uncompensated - something that, if remedied, would escalate the cost of malpractice far beyond the increases in "median" verdict and settlement he claims.

Near the end of Brody's missive, there is a small truth: "A few new caps on liability costs aren't going to solve the problem.". For anybody interested in justice, caps are anathematic. Surely not even Brody would argue that it would increase fairness for the 90% of malpractice victims he believes to go uncompensated, for an additional group of severely injured malpractice victims to be grossly undercompensated as a result of arbitrary damages caps. Further, there is little evidence to suggest that caps will have any appreciable impact on the cost of malpractice insurance.

There is also something incredibly disingenuous in Brody's complaint that too much of a typical malpractice award is eaten up by attorney fees and costs. Doctors lobbies and the insurance industry have worked extremely hard to drive up the cost and burden of litigating malpractice cases - this is the inexorable result of their prior tort reform "victories".

Yes, it is possible to look at reform in a more global manner, and to try to work for a system that maximizes justice for both doctors and for patients injured by preventable medical error. But, given this "fast and loose" play with the facts, I am not optimistic that people like Brody are sincerely interested in achieving such a system.