Sunday, January 30, 2005

Deceptions, Sleights of Hand, and Lies

Okay... So we're going to continue to pretend that Social Security taxes (which, until you have a very substantial income, are based upon a percentage of your income) are not "income taxes". Despite some pre-Bush II complaints by, for example, John McCain, neither major political party seems to object to that little deception.

And we're going to continue to ridicule the notion of the "lock box", Al Gore's all-too-often repeated buzzword for the theoretical mechanism he would have theoretically implemented to keep Congress from looting the theoretical "Social Security Trust Fund" to pay for current budget obligations.

So perhaps that is why Bush-II-style Social Security privateers... er, privatizers... think it will be easy to transition to the unadulterated lie:
[Future Social Security obligations] would have been less daunting had we saved the very substantial Social Security surpluses of the past two decades. Instead, we mostly spent them, particularly in the past four years, leaving behind a much-touted Social Security trust fund that is, in reality, a myth.

All that resides in the trust fund is a $1.5 trillion pile of IOUs from the federal government, obligations likely to be honored by increasing the national debt. In addition, according to the trustees, we would have to deposit an additional $3.7 trillion into the trust fund today to ensure solvency until 2078. Is that a crisis or just a problem?
Is, then, Bush going to go on camera and say "I lied to the American people when I said the rich pay too much income taxes as compared to the working masses, because I said that the Social Security tax was a 'payroll tax' and not an 'income tax'. But because we 'compassionate conservatives' have now blessed the theft of the entire Social Security Trust Fund in the name of fiscal responsibility to pay for obligations which should have been satisfied from the general fund, and have no intention of repaying that money despite the legal mandates that we honor our nation's debts, as it turns out it was an income tax after all - and one that was subject to double and triple taxation. Boy, do I feel the egg on my face. Middle class tax relief is on the way."

Saturday, January 29, 2005

A Twist On An Old Joke

There's an old joke, not particularly funny, which asks, "How does a coroner commit malpractice?" The answer, "By bringing his patient back to life." (Nonetheless, while the EMT's may have some exposure, I think Mr. Perdue is safe from litigation.)

Thursday, January 27, 2005

"Now We're Just Negotiating The Price"

Now that we all know what type of man Armstrong Williams is, Maggie Gallagher, admitting to having surreptitiously taken $21,500 to hawk the Bush Administration's marriage policies, asks us what type of woman we take her for. Or, more specifically,
"Did I violate journalistic ethics by not disclosing it?" Gallagher said yesterday. "I don't know. You tell me."

Yes, Maggie. Yes, you did.

Her defense, it seems, is that she, um, forgot.
I should have disclosed a government contract, when I later wrote about the Bush marriage initiative. I would have, if I had remembered it. My apologies to my readers.
A $21,500 government contract she forgot? Did she lose track of it, amidst all the other payoffs, or does she consider the amount to be forgettable chump change?

Wednesday, January 26, 2005

Prosecutorial Excess

Okay... CNN is a bit ambiguous in this first part:
Two boys were arrested for making pencil-and-crayon stick figure drawings depicting a 10-year-old classmate being stabbed and hung, police said.
But we'll proceed on the assumption that they meant "hanged".

While certainly a child's artwork may be indicative of psychological issues (apologies for the pop culture reference), sometimes it just means that the kids were drawing pictures. The report indicates, "The children, charged with a felony, were taken from school in handcuffs." Um... excessive?

As I look back on some of the pictures my classmates were drawing at similar ages... well, let's say that little Colin's daily drawings of military hardware in action probably would have inspired Florida to classify him as a habitual felon.

Today's Post May Be Found At....

As a guest, I have posted some thoughts on Ethics and the Criminal Defense Attorney over at Crime & Federalism.

Tuesday, January 25, 2005

The Stopped Clock Award Goes To....

David "Babbling" Brooks, for his column on the demise of social mobility. Not enough attention is paid, particularly by self-described "conservatives", to our society's increasingly rigid class structure (even as we pretend we have no social classes, or that "we're all middle class").

Monday, January 24, 2005

Putting Their Money Where Their Mouths Are

Not to state the obvious, but if our nation's politicians really believed in some of their "ownership society" initiatives, they would put their money where their mouths are.

Most employers have either stripped down their pension plans, or have abolished pension plans in favor of investment accounts, such as 401K plans, which I guess gives workers "ownership" over their own retirement. Congress, of course, has given itself an exceptionally generous pension plan. The President enjoys an exceptionally generous pension plan. Ownership, it seems, is for the working masses - our "leaders" don't want that type of risk.

With health care costs increasing, and health insurance unaffordable for many Americans and small employers, "conservatives" like Newt Gingrich like to rail against traditional health insurance plans, suggesting that federal deductions should be reduced and that employers should be pushed to offer bare-bones plans such that workers have to absorb basic health care costs out of their own salaries. Have you heard even a whisper that Congress intends such an effect for itself, as opposed to continuing to benefit from the excellent health care plans afforded to federal employees? At least John Kerry was willing to allow all Americans to buy into that system, with their own dollars. The "ownership society" Republicans (who control Congress and the White House) sneered at that proposal, and have no intention of sharing their coverage with the working masses - even when, as Kerry proposed, working Americans would have to buy in at full price.

Worst Day Ever?

Happy January 24!

Saturday, January 22, 2005

Make Your Blog Less Appealing...

Less appealing to spammers, that is.

Educational Wackiness

My curiosity was piqued by a headline in London's Guardian, Head gives the boot to homework. While I am skeptical of a notion that homework is never appropriate, I am no fan of the current "mandatory homework" policies which require teachers to assign a fixed number of minutes of "homework" to students each night, even in the lower elementary grades. From what I have seen, that usually translates into mindless busy work. To put it concisely, I have seen no evidence that mandatory homework policies were needed, and I have seen no evidence (and doubt that any exists) that would suggest even the most modest of increases in student performance resulting from such a policy.

I was recently visiting some friends, and saw one of their daughters working on a homework assignment. The assignment was in essence a spatial-relations quiz - requiring that the student break down shapes into four identical components. She finished the assignment with some help, and then set about erasing one of the answers. When I inquired why she was erasing a correct answer, she replied that her teacher gives bonus points if they make a mistake and correct it - that is, she gets better grades when she gets one or two homework answers wrong than if she gets it right the first time. (And this makes sense, because....)

Getting back to the article, it unfortunately seems to reflect the opposite end of the spectrum - the notion that homework is never helpful - associated with the adoption of a new program "which rejects the notion that a teacher's job is to transmit a body of knowledge to pupils", such that they "'manage their own learning' so that they learned to love learning for learning's sake." You know, I'm all for trying new approaches to classroom learning, and agree that the traditional model can be stifling and at times even counter-productive, but... let's just say, I hope the article is omitting some facts about this program which make it seem less harebrained.

The article, commenting on the school's present policies, observes,
But there is a contradiction between the decision and the school's official policy, which states: "Regular homework is an essential element of learning and contributes to the development of sound study habits."

The school has already introduced a system by which pupils mark their peers' work, and has replaced subject teaching with "cross-curricular projects".
Oh yes.... those systems where students grade their peers' work, which numerous students in any given class will take as an opportunity to "help" their peers by changing answers and improving grades. And isn't there more than a small amount of irony in having students grade each other's work in class instead of participating in a lesson or actually doing work, while giving them homework so that the process can be repeated the following day?

Oh, I'm sure somebody can chime in with some rhetoric about how much kids can learn by grading a peer's classwork and homework, and there are some situations where, if done correctly, that can be the case. But in my experience, we're rarely talking about an opportunity for learning - the usual "peer grading" scenario involves a teacher standing before the class reading out answers, while the students mark an answer correct or incorrect, and then having the student graders call in the number of correct answers as each pupil's name is called out. What this type of "peer grading" does is save the teacher from having to teach, while also cutting down on the teacher's own "homework". (Because, I guess, homework is only good for kids.)

Homework can be a constructive part of the educational process. But assigning homework for homework's sake renders it counterproductive - giving kids busywork that teaches them nothing except that their schools and teachers don't value their time. (But then, one might cynically suggest that "do your mindless busywork", along with "sit still at your desk" and "don't question authority", is part of what many schools think of as "preparing kids for the real world".)

Wednesday, January 19, 2005

Health Care Policy

Recently, on a blog devoted to health care issues, the author followed up a number of posts on the evils of medical malpractice litigation with an interesting post on the subject of disciplining physicians. The author suggested at the conclusion of the post that the best means of determining which doctors might be the most appropriate targets for discipline would be to look at those who had been sued a couple of times. I had the temerity to ask the author if he was truly asserting that medical malpractice litigation was the most efficient, cost-effective, and fair means of identifying substandard medical practitioners. He responded by... well, he didn't, and the entire post subsequently disappeared. (The start of this Jan. 5 post can still be found in the rdf feed through bloglines, but unfortunately the substance of the post is no longer available.) Too bad, because I would have been interested in hearing the answer.

Well, perhaps the blog does better when addressing health care policy issues? Or perhaps not. (If any Newt Gingrich fans are reading this, I apologize in advance.) The author of the blog seemingly endorses Newt Gingrich on two points. The first is extremely basic, and is far from being a true Gingrich initiative - improving the technology associated with maintaining and accessing medical records. The second is very much associated with Gingrich, and his particular brand of conservative illogic. That is,
He advocates applying the principles of the “ownership society” to medicine, notably health savings accounts and consumer-directed health care. The idea is to give individuals tax breaks to assume the responsibility for paying more of their own medical costs and to rely less on the government and insurers. Market forces, supporters have said, will bring more options, lower prices and higher quality to health care, as they have done for other categories of goods and services.
One would think that the first logical implication of this proposal would give a health care practitioner pause. Whence the savings, if consumers are deprived of insurance coverage and are looking for health care bargains? Since we've just moved those patients into the category of the underinsured, the savings won't come from improved efficiency from, or reduced profits for, the insurance industry. Hospitals and specialists, offering their higher-priced services, would presumably remain primarily within the scope of health insurance policy coverage, and thus would feel no pain as a result of the anticipated cost-savings. So it would appear that it would be the physicians on the front line - primary health care service providers - who would be asked to reduce their prices, become more efficient, and provide better services as a result of this proposal.

And we are to overlook the fact that general practitioners and internists are already shrinking in number, as doctors turn to higher paid specialties.
According to a recent editorial in American Family Physician, there is still a shortage of primary care physicians and "we [United States] find ourselves behind nearly all of our nation's industrialized peers with regard to health outcomes." For the U.S. health care system to improve, [the American Medical Student Association] believes that 50 percent of the nation's medical school graduates should be choosing primary care careers, including family medicine, general internal medicine and pediatrics.
And we are to ignore the fact that, if this magic market for uninsured and underinsured patients truly exists, private health care providers would already be lining up to serve that market. With close to fifty million uninsured people, and close to one hundred million underinsured people, as ready clients, why don't these magically cheap, high quality clinics already exist? In Texas, where about 25% of the population is without any health insurance whatsoever, why aren't doctors lining up to join this new generation of cheap, high efficiency, high quality practice? Why aren't the major health care corporations building clinics to serve the uninsured and underinsured? Well... because as anybody who actually thinks about the issues, or knows a number of uninsured and underinsured people, is aware, even at a "reduced fee" the cost of primary health care services can exceed the budget of a typical wage earner.

Given how frequently doctors complain on that particular blog that they feel sqeezed by medical malpractice insurance premiums because they are limited in what they can collect by virtue of what insurance companies are willing to pay for their services, it seems peculiar that they are so incurious in response to a proposal that would require them to set their fees in accordance with what the uninsured public would be willing and able to pay.

Monday, January 17, 2005

Inventing a Crisis (of Constitutional Proportions)?

Recently, attention has started to turn to the life tenure afforded to Justices of the United States Supreme Court. Pursuant to Article III, Section 1 of the Constitution:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
In the New York Times, Linda Greenhouse notes,
Judges depart from the lower federal courts with regularity, assuring a steady turnover. Supreme Court vacancies, on the other hand, are rare events. It has been nearly 11 years since the last one, when Harry A. Blackmun stepped down at age 85 after 24 years on the court.

The trend is clear. From 1789 to 1970, the average Supreme Court justice served for 15.2 years and retired at 68.5. But since 1970, the average tenure has risen to 25.5 years and the average age at departure to 78.8.
She summarizes some of the main objections to the status quo:
The academic critics see a variety of negative consequences from life tenure. One is that the scarcity and randomness of vacancies promise to turn each one into a galvanizing crisis. Other drawbacks include the temptation for justices to time their retirements for political advantage; an overemphasis on youth and staying power as a qualification for nominees; the likelihood that even those justices who escape the infirmities of old age - and, predictably, not all will escape - will tend after many decades to lose touch with the surrounding culture; and the fear that if the court is seen as out of touch and unaccountable to a democratic society, its legitimacy will erode.
So we have... a fear of what might theoretically happen in the future as a basis for amending the Constitution.

Now granted, if half the Justices on the Supreme Court were senile or left incapable of performing their services due to advanced age or illness, that could present a crisis. And at present Justice Rehnquist's health is in question, raising the question of whether he will be able to return to the Court (and, if not, why he does not announce his retirement). But speculation about one Justice's illness, or sneering speculation about how Justice Thurgood Marshall was supposedly senile by the time he retired from the Court in 1991, does not seem to me to be compelling evidence of an emerging crisis.

I am also less impressed than many with the notion of Justices timing their retirements "for political advantage". I see nothing which would indicate that the present set of Justices has attempted such timing, despite the speculation tossed about four years ago when many asserted that Justices Rehnquist and O'Connor decided Bush v Gore in favor of G.W. Bush so that they could retire under a Republican President. If Rehnquist was salivating to retire four years ago, when he was in comparatively sound health, is it not peculiar that he continues to cling to his gavel? Unless, that is, he intends to time his retirement based upon when he no longer feels capable of performing his job duties, and intends to keep the job he enjoys and believes himself to be very good at performing.

Greenhouse also describes a proposal which would have Supreme Court Justices appointed to eighteen-year terms, with staggered appointments such that a new justice would be appointed in each odd-numbered year, while the Justice whose term was expiring would be assigned to status as a "senior justice" no longer actively participating in the Court's decision-making activities. That would allow the President to appoint two new justices during each four-year term of office. She notes the response of a law professor, Ward Farnsworth, who suggests that "could magnify presidential power and make the two guaranteed appointments each term come to seem like the spoils of political victory."

But there are more objections. First, a President looking to appoint a Justice to an eighteen-year term is more likely to choose somebody who is neither likely to be derided by opponents to the appointment as "too old" for a term of that duration. While it is already a consideration, this might also magnify the extent to which a Justice's possible future health is considered during the selection process. While under either system an unexpected health crisis by a Justice precipitating retirement may seem like a windfall opportunity for a President, the phenomenon of "appointment envy" might be exaggerated if a President were concerned that a successor might get "more than his share" of appointments. (Or should we assume that Presidents are less petty than that?)

It is interesting that some of the advocates for change, while suggesting that Justices may be manipulating their retirement dates such that their successor will be appointed by President with a similar political ideology, don't believe that the same type of manipulation would occur if Justices served fixed terms.
A justice seeking to outfox the new system might be tempted to resign before the end of his or her term whenever early resignation might offer advantage to a preferred successor. Such manipulation should be deterred by a general sense of fair play. In an analogous situation, a president might be tempted to resign a few months before the end of his final term, thus placing his handpicked vice president in power before the November election. Yet all past presidents facing this situation -- most recently, Eisenhower, Johnson, Reagan and Clinton -- have spurned this sort of manipulation. If even elected presidents pursue nonpolitical exit strategies, America should demand no less from unelected justices.
But if we're willing to suggest that Justices engage in political exit strategies under the present system, and given that it would be relatively easy for a Justice to claim a health condition or personal crisis as an impetus for retiring near the end of an 18-year term, why should we not believe that a Justice would "preserve the balance" of the court by tendering an early resignation? Also, part of the reason Presidents don't manipulate their retirements in the manner described is that it would cause a popular uproar, and quite possibly a backlash against the appointed "incumbent". Given that the typical American can't name more than one or two Justices of the Supreme Court, I doubt that early retirements of Supreme Court Justices would generate similar attention or controversy.

Further, we can be assured that some Justices will leave office early - whether due to accident, illness, or even through the political manipulations described above. Would the successor of a Justice who retired early be appointed for an 18-year term, messing up the "odd year appointment" system into the indefinite future? Or would that Justice go to senior status upon the predecessor's regularly scheduled retirement date, in which case the appointment would be an excellent reward for a political crony, but would pretty much guarantee that a President would not nominate a candidate he truly wanted to serve out a full 18-year term - that is, a candidate he believed to be most qualified for the position - to such a limited term.

I also wonder if this relatively complex system of slow-motion musical chairs has been proposed instead of the relatively simple solution (to the extent that one is needed) of a retirement age, because of concern that imposing a mandatory retirement age for Supreme Court Justices will cause Presidents to bypass highly qualified, highly competent candidates in their late fifties or early sixties in favor of younger, less qualified candidates who can be expected to serve for a longer period of time. It has been suggested that Justice Thomas was selected, at the age of 43 because of his relative youth and the anticipated length of his service. Whatever you think of Justice Thomas, it seems fair to suggest that we should not create a system that further disfavors many of the best candidates for the Supreme Court because of fear that their service would be "too short".

I note also that the proposals don't include the possibility of reappointment, perhaps with a shorter term of service. One need only imagine the reconfirmation hearings, assuming a change in the composition of the Senate, in order to assess why this isn't high on the list of proposed reforms.

But in any event, I don't think we should set out to look for a crisis. If an actual crisis does emerge on the Supreme Court, and we find that it is dominated by judges too enfeebled or senile to perform their assigned tasks, that is a problem we should be able to address in relatively short order at that time. For now, there is every reason to believe that despite their increased lifespans and terms of service, the Justices will continue to retire when they are no longer able to perform their jobs.

Sunday, January 16, 2005

This seems pretty brazen....

New and used judges for sale on eBay? (Don't "used" judges prefer the term "experienced"?)

Wednesday, January 12, 2005

There's Not Much Else....

I don't wan't to be unfair here, but on the face of the article I don't think that there's not much else to like about the guy - in my opinion he's way too comfortable with his past - but if you want something to throw in the face of a Holocaust revisionist, here's an "Oh yes, it did happen" from an SS Officer who served at Auschwitz.

Tuesday, January 11, 2005

(Not So) Superpredators Update

A year ago, I ranted a bit about stereotypes and the criminal justice system, and brought up a case of prejudice and police incompetence in Chicago:
A couple of years ago the Chicago Police were so quick to adopt the "super predator" stereotype with two African American boys, aged seven and eight, that they bungled the investigation and all-but-certainly let a convicted child molester get away with molesting and murdering an eleven-year-old girl.
Today, the City of Chicago reportedly settled a wrongful arrest lawsuit by one of the boys for $2 million dollars.
The boys, then 7 and 8, were charged with the girl's murder but were later cleared when DNA tests linked the case to Floyd Durr, a Chicago man who has since been convicted of sexual assaults on other young girls. Durr is still awaiting trial in Ryan's death, although he is in prison as a result of the other convictions.
I hope Durr's convictions relate to offenses committed before the 1998 murder of Ryan Harris, as but for the botched investigation focused on the two boys he would likely have been incarcerated for the murder before he got a chance to attack any more young girls. It was, after all, that focus that gave credence to Durr's "she was dead when I molested her" defense, and forestalled his prosecution all of these years.

The Military You Have

Something I haven't seen discussed much, within the context of Rumsfeld's clumsy comments about going to war with the military you have, is that Rumsfeld and Bush also went to war with the military they wanted. It isn't an accident that the military was deployed with Humvees which were lightly armored or unarmored. That was part of Rumsfeld's plan for a fast, light-weight, highly deployable military. The idea was that, if you can outrun the enemy's tanks and artillery, you don't need the armor.

Even before the Iraq invasion, a friend of mine pointed out the problem with this approach: What happens when the enemy works by roadside bomb or ambush, instead of trying to hit you with a tank or artillery shell. What if the U.S. forces in an urban setting are led into a dead-end, where an unarmored vehicle would be incredibly vulnerable?

Recall that the M1/A1 tank, which has been invaluable in the Iraq war and occupation, was intended for retirement before the war? As that article notes, the future of the tank had been called into question, with "Secretary of Defense Donald Rumsfeld recommending a lighter, more technologically advanced military" - one which would depend primarily on wheeled vehicles which could be quickly airlifted to their destination, rather than massive vehicles which had to be transported by land and sea. For Rumsfeld to suggest that the military in Iraq was the one he had, not the one he wanted, is truly disingenuous. Rumsfeld wanted Iraq to be a showcase for his plan to reinvent the U.S. Armed Forces into a light, fast, highly deployable army, and going in with lightly armored and unarmored vehicles was an integral part of his plan.

Sunday, January 09, 2005

War on Drugs

A British documentary producer reflects on his experiences in Peru and Colombia, and questions whether the war on drugs is worth the price - even if you assume an increase in drug use:
Yes, more people will try these drugs and there will be tragedies. But 30 years of the war on drugs have achieved almost nothing except to make a few people fantastically rich, to arm our inner cities, to criminalise a generation of users, and to leave tens of thousands of Latin Americans dead. As our cocaine maker in Peru happily told us: 'People want our cocaine because it is good and, for a while at least, makes them happy.'

Friday, January 07, 2005

The Internet At Work

You may have received an email forward in the past couple of days, with a picture of a two-year-old boy who was found in Thailand, but whose parents had not been found. The Internet proved to be an effective tool for finding the boy's family:
A two-year-old boy found dazed, alone and apparently orphaned in this devastated Thai resort was identified and reunited with his family after an aunt in Sweden recognised his picture on the Internet.
Unfortunately, the boy's mother and grandmother remain missing.

Thursday, January 06, 2005

Urban Wildlife

I just came face-to-face with a skunk, outside the back door of my house. "Is that a large cat wobbling toward me? Um... Uh oh." Of course, in my opinion a close encounter with the face end is much better than a close encounter with its opposite end.

Ah, the joys of living a stone's throw from a sizeable wooded area, even in the middle of a city.

Wednesday, January 05, 2005

With Age Comes Wisdom

A couple of weeks ago, I recounted some thoughts from a visitor to this blog:
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).
Today, an aide to Karl Rove did us the favor of confessing that this, not "saving" Social Security, is in fact the Administration's goal:
Calling the effort "one of the most important conservative undertakings of modern times," Peter Wehner, the deputy to White House political director Karl Rove, says in the e-mail message that a battle over Social Security is winnable for the first time in six decades and could transform the political landscape.
If this is perceived as a possible last volley in what the Republicans see as a sixty year battle against Social Security, how can anyone pretend that the present initiative is about anything but destroying the foundations of that system?

"We Don't Accept Uninsured Patients"

One of the more ridiculous arguments on health care costs is that a lot of the woes of the system would be magically cured if we reduced the scale and scope of medical insurance, such that most basic health care costs were paid directly by the patient. Part of the problem with that "logic" is that health insurance isn't really insurance in the classic sense - it is more accurately a prepaid package of health care services, which will be provided under contract for a fixed price (plus applicable copayments). This can create an incentive for a person - particularly somebody who is paying out of pocket for health insurance as opposed to obtaining it as an employee benefit - to seek to maximize his use of medical services while insured, to "get his money's worth". But more typically, what you see are people who are uninsured or underinsured going without medical care that would be beneficial (and in some cases is necessary) in order to avoid the high cost of health care.

The stupidity of the essential argument is of Gingrichian proportions - there are, at present, about 45 million uninsured Americans, and about as many underinsured Americans. That is, there are at least 45 million people who are already forced to buy medical services as needed at "market prices", and tens of millions more who routinely must do so - unless, of course, they choose to go without those services. If the "free market" were a magic cure for the high cost of health care, the growing market of uninsured and underinsured should have doctors lining up to treat them. But they don't. And when they try to obtain medical care from an estabished provider, they will often be told, "We don't accept uninsured patients".

Meanwhile, a doctor recently complained on another blog that he feels squeezed by malpractice premiums because health insurance companies limit what he can charge - so as to justify surcharging patients a fee for the cost of malpractice insurance. The typical medical insurance company applies some mechanism to determine a "market rate" for a given area, and then reimburses participating physicians at a portion of that "market rate". (So yes, the uninsured and underinsured patients would pay a higher fee for the same service - often remarkably higher - than an insured patient.) Nobody was forcing this doctor to accept insured patients, or to agree to the terms of any given insurance company - if he truly believed the "market" would support a higher rate of payment, he would be within his rights to decline to participate in the insurance plans which so "limited" his income. But the reality is, patients find it convenient to work through their own health insurance networks, so as to minimize copayments and to avoid having to pay out of pocket and seek reimbursement for medical services. And doctors know full well that the "market rate" for services is an artificial construct. The doctor who made that claim chose to participate in health insurance plans not because they limit his income, but because they help him maximize his income. I would not be at all surprised if, despite his complaints, his practice only accepts insured patients.

Also, given the high cost of health care, a typical physician, clinic or hospital that treats and uninsured or underinsured patient wants to be paid up-front. Many even offer "credit counseling" to help people finance their medical care. When uninsured emergency patients come to a hospital, protected by anti-dumping laws, and receive tens of thousands of dollars in treatment before they can be transferred or discharged, hospitals often have to eat those costs. When they can check your credit and arrange financing in advance, perhaps secured against your home, they have the ability to collect their fees - or to refuse service if you aren't going to be able to pay. That's pretty mercenary when it comes, for example, to somebody with cancer, but that's the way the market works. In most western nations, people aren't asked to choose between their homes, savings, and livelihoods and obtaining necessary health services. In this nation, our present political leaders want to make that choice even more stark.

Ironically, the satisfaction of one of the Bush Administration's wet dreams, the elimination of an employer deduction for health insurance premiums, might be just what it takes to force a national health care program. The "big three" auto manufacturers, for example, are already stressed by the costs of health care. Take away the deduction, and you'll force them to choose between absorbing a massive increase in employee compensation or lobbying for a national health care plan. I think that, given the choice, they'll opt for the latter.

Tuesday, January 04, 2005

Affirmative Action in Law Schools

Today, while browsing How Appealing, I was reminded of two things: Why I stopped reading "", and of the persistent debate over whether "affirmative action" programs in universities do minority students a disservice - the usual argument is that they place students in institutions above their intellectual ability, and thus cause lower performance and higher attrition rates. The former issue is the easier to address - I got tired of the fact that you usually didn't have to read past the headline to know what a piece would argue, and that if by then you could not already predict the tired, overused arguments that would be applied to reach the editorial's conclusion, all you had to do was look at the name of the author.

Today's editorial was a bit of a surprise - the headline, "Does affirmative action produce more black lawyers?", certainly presages the anticipated answer of "No!". But it didn't telegraph that the author of the piece would then digress into an irrelevant narrative about creating an alternative system to the nation's public schools. (The surprise was, obviously, less the nature of the argument than the fact that it would be used to pad out this particular piece.)

The editorial, in classic style, is internally inconsistent. It references a law review article, "A Systemic Analysis of Affirmative Action in American Law Schools" [PDF Format, 1.2 Megabytes], by Richard H. Sander, a law professor who we are first told is " a long-time liberal and advocate of race-conscious public policy", and are next told is "cannot be painted with any ideological brush". Um... okay. In any event, a brief summary of the law review article is provided by the author. The arguments he presents are not new, save perhaps in their appliction to law schools instead of undergraduate institutions.

The author's first suggestion is that affirmative action programs for African American students at the nation's law schools are so pronounced that they are effectively parallel systems of admission - or, as he puts it, they "are generally hard to distinguish from racially segregated admissions". The author then suggest that because African American students come into law school with such inferior preparation, they underperform during their first year.

Accepting these assertions as true, isn't the reasoning rather circular - to criticize affirmative action programs which are meant to close an achievement gap on the basis of an achievement gap? If the argument is that the affirmative action programs don't offer anything to the students themselves, and do nothing to advance their later lot in life, that's material. But we already know about the achievement gap, and one wouldn't expect it to magically disappear merely because a student is accepted into a law school.

It would be interesting, of course, to see how the African American students perform during their second and third years of law school - the article suggests an overall slight decline in average class ranking. (My personal performance following first year went up - in no small part because I learned to game the system. Read the professor to anticipate what will be on the exam; write an exam that accords with the professor's politics; assume that a professor who assures a class "I don't take politics into consideration while grading" is either lying to the class or lying to himself, etc. I think the biggest advantage some of the kids from "elite" undergraduate institutions had, on their way into the law school, is that they were already expert at gaming the system.) The author presents a number of theories as to why this might be the case, settling primarily on "academic mismatch". But the author's arguments (including his personal example of almost failing an undergraduate course in German, finding himself with little aptitude for that language) do not necessarily support his thesis. That is, the mismatch may not be between the student and the institution, but (as in his case) between the student and the subject. It may be that some of the "mismatched" students might have been better served by being directed to business school, for example, by their undergraduate academic advisors, instead of law school. Presumably the author is not disputing that he, personally, was academically qualified to go to Harvard and to enroll in the German course he almost failed - so why is he so willing to attribute "mismatch" to academic inadequacy as opposed to the subject matter when it comes to African American students?

The next argument makes no sense to me - it is that "these low grades substantially handicap black students in their efforts to complete law school and pass the bar". Perhaps it is because when I was at law school I didn't see many students drop out of the program, and the only two I can recall from my first year class were not African American. One hated law school; the other got a job offer within his prior profession that was "too good to refuse". The lowest performing student I can recall from first year, also, was not African American - and she ultimately did pass the bar and found employment in a law firm. Now granted, my law school might have been exceptional in this regard, but I doubt it - I would venture that other elite law schools had similarly high pass rates for their students, including minority students. The author's statistics suggest that relatively few African American students drop out of elite schools, with a growing dropout rate as you move down through lesser-rated tiers of schools.

That seems rather inconsistent with the author's notion that attrition rates would drop if affirmative action were eliminated - in fact the author concedes that at elite institution the lower attrition rates offset the effect of lower grades. And while the author suggests that first year grades are a more important factor than law school ranking, it is not clear to me that the author's analysis properly takes into consideration the relatively low numbers of elite institutions - that is, the overall extrapolation seems to overrepresent middle and lower tier schools, which is where he expects the students from the elite schools to end up.

In terms of how this would affect bar passage rates, the author asserts, "Only 45% of black law students in the 1991 cohort completed law school and passed the bar on their first attempt; in the absence of preferential admissions, I estimate that this rate would rise to 74%." That conflates the two issues - graduating from law school and passing the bar - when in my opinion those issues should be treated separately. After all, everybody who takes the bar in a particular state at a particular time takes exactly the same test.

Most students take "bar review" courses to prepare themselves for those tests, their first year of law school (where many of the key subjects for the bar exam are covered) being an increasingly remote memory, and coverage of state law issues (particularly in elite schools) pretty much absent from the curriculum. Granted, it is suggested that some lower tier law schools amount to little more than a three year bar review course, but presumably the author isn't assuming that the typical African American student declined admission by Yale would end up at such a school - he suugests that on an even playing field, the student declined by Yale might end up at Cornell, the student denied by Cornell might end up at Cardozo, and the student denied by Cardozo might end up at Syracuse. The author accepts that this would result in a marked diminishment of African American enrollment at the nation's top 40 law schools. On a personal note, after I left law school, my school raised its first year curve - such that students had higher GPA's. Despite the author's thesis, I am not aware that this had any effect on either attrition or bar passage rates.

This "trickle down" (the author prefers "cascade effect") in the admissions process is presumed to result in a better match between student and law school, and higher graduation rates - but even accepting that assumption it still isn't apparent how that would affect bar passage. The author presents statistics showing a strong correlation between law school GPA and bar passage rates, but as with the prior extrapolation this overall effect would seemingly be distorted by the number of students from middle- and lower-tier schools, as compared to the relative few from elite institutions.

The author also suggests that the effect of higher grades at a lesser institution would result in higher income than lower grades at an elite school. This, again, assumes a mismatch between student and school as opposed to between student and subject matter. I don't think, for example, that the author would have fared particularly well in a German class even at a mediocre college. It also presupposes that post-law school income is the best measure of success - something that may surprise those of us who took alternative paths in our legal careers. I know a lot of lawyers who have found greater satisfaction in smaller firms, public service, or other lower paid careers - even as law professors. Failures by the author's standards?

Even with respect to the "money effect" the author is very tentative in his assertions - "It is clear enough that law school grades are quite important, perhaps more important than law school prestige in determining who gets what jobs." On a personal note, I had a couple of interviews during law school where the identity of my undergraduate institution was enough to put me out of the running - whatever one makes of the author's overall projections, I don't think they would hold for the NLJ 250 - I think that you would find that the top law firms recruit almost exclusively from elite law schools, and want "brand name" undergraduate institutions. Eliminating African American students from the top tier would seemingly have a profound impact on their presence in top tier firms.

The "money" analysis also excludes the possibility that racism plays a role in the relative income earned by African American law school graduates. While the racial environment at law firms has certainly improved, and while some reading this might disagree, I think that assumption is quite naive.

The author extrapolates from his findings to suggest that, given a level playing field, "86% of blacks currently enrolled in law schools would have been admitted to some law school under race-blind policies, and the much lower attrition rates that would prevail in a race-blind regime would probably produce larger cohorts of black lawyers than the current system of preferences produces." For the reasonas outlined above I personally believe that, despite the author's attempts to back up his position with statistics, this thesis relies too heavily upon assumption. (Giving due credit to the author, toward the end of his piece the author acknowledges that there are significant defects in his data, and that his analysis relies heavily upon assumption - he just happens to believe those assumptions to be sound, whereas I am skeptical.)

I am left with one lingering question about the piece, and would appreciate any thoughts you might have. The piece is titled, "A Systemic Analysis of Affirmative Action in American Law Schools", yet it addresses only African American law school students as compared to Caucasian law school students. Given that several other minority groups are significant beneficiaries of typical law school affirmative action programs, how is that a "systematic analysis of affirmative action"?