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November 30, 2004

Olympic cyclist fails drug tests

From the New York Times:

With Ban Pending, Hamilton Loses Ride
By JULIET MACUR

Published: December 1, 2004

Tyler Hamilton, who won an Olympic gold medal for the United States in Athens, was fired last Thursday by Phonak, his Swiss cycling team, two months after testing positive for illegal blood transfusions. His termination was announced yesterday at a news conference in Switzerland during which Phonak said it had been denied a racing license for next year.

Hamilton tested positive for blood doping at the Olympics in August and at the Vuelta a España in September. He could face a two-year suspension from the sport.

Illegal blood transfusions? How sad. The pressures to win must be very strong.

Hamilton is perhaps the best American cyclist apart from Lance Armstrong. In addition to winning the Olympics, Hamilton inspired everyone in last year's Tour de France when he rode day after day with a broken collarbone and managed to finish fourth overall.

Hamilton insists that he is not guilty of doping: "I am looking forward to the judicial process in my case and having the opportunity to prove my innocence. It is my sincere hope that once I am exonerated I can rejoin the professional peloton and the sport I love."

Hamilton's team has challenged the integrity of the new blood test which indicted the Olympic time trial champion. Details are here. Anyone with even a passing interest in minor blood group antigens should have a look.

November 29, 2004

Law school teaching methods

Anyone naive enough to doubt that law schools pursue multiple goals--beyond just teaching law students--should simply look at law school pedagogical practices.

The standard law school classroom method, which involves reading appellate opinions all term and then doing one timed issue-spotting exam at the very end of the course is so suboptimal from a learning point of view that it's hard to understand why law school faculties have failed to make improvements.

The [non]billable hour has assembled five thoughtful pieces from well-known law students discussing what might be done to make things better. AI has a some good follow-up comments.

If law schools existed only to teach students, I don't doubt that the smart people who sit on law faculties would have left our current system behind long ago. The fact that they haven't is perhaps the best evidence that law schools are committed to doing things other than teaching (what things??). Perhaps that's a good thing; perhaps it isn't. But law students have plenty of reasons to bitch, and I'm glad to see some of them doing it in a thoughtful and enlightening way.

November 28, 2004

Koyaanisqatsi

Everyone keeps asking me about this movie I rented the other day. I tell them "it's a photo-montage thing with a Philip Glass score, and it starts slow and gradually builds up and just when you think your head is going to explode -- blam!!! -- a whole bunch of stuff gets blown up, sort of."

And people say I "can't" describe it. Bah.

koy.aa.nis.qat.si (Hopi) [n] 1. crazy life 2. life out of balance 3. life disintegrating 4. life in turmoil 5. a way of life that calls for another way of living.

November 27, 2004

Cheese tip

If you've got a chunk of Appenzeller around, take it out of the fridge about an hour before you're ready to eat it. It'll taste better at room temperature.
______

EDIT: I encourage you to browse around the Zingermans website. Zingermans is an absolutely overwhelming place--so many cheeses, sausages, olive oils and other goodies from all over the world... Mmmm. It's definitely one of the best things about Ann Arbor.

November 26, 2004

Friday's almost over!

I'd better get those cat pictures up quick!

Who's hiding under the laptop??


It's little Gus!


Gus was the little cat I lived with over the summer. Although he was not my cat, he did managed to chew the laces off of all my shoes. Fortunately, my Tevas were resistant to the scourge of little Gus, because they close with Velcro and don't have any laces. Otherwise, he would have gotten them, too.

By now, Gus is probably an elegant and mature adult cat. It's hard to imagine.

November 24, 2004

Happy Thanksgiving

If you've been traveling this Thanksgiving, I hope you've arrived safely. Tomorrow, it will be time to eat.

This is a holiday that for better or worse has come to revolve around food. Perhaps we can take this opportunity to think about where our food comes from and how it's produced.

At Thanksgiving, we celebrate the food we eat. The cornucopia on our dining tables is the unifying force that brings family and friends from hundreds of miles away to partake of the delectable feast.

But unlike our pioneer ancestors who relied on their own crops and livestock, most Americans today see food as mere commodities, without any personal connection more compelling than patrolling the aisles of the supermarket.

We're fortunate that we all don't have to be farmers or hunters anymore. Some of us enjoy these activities more than others do, and some of us probably just aren't very good at them. But the fact that we buy our food in a grocery store doesn't mean that food is nothing but a commodity. If it were, then there would be no grounds for arguing that locally-produced food, grown by real farmers and not by machines or agricultural laborers, should be privileged in any way over mass-produced industrial food products that embody the corporate ideals of efficiency at the expense of the ideals of taste, variety, and health.

But there are in fact such grounds. Political, social, ecological, spiritual, ethical, and biological grounds exist for the argument that the corporate methods of food production may not be ideal.

Unfortunately, not all the news is positive. Over the past five years, the closure of several regional food processing plants has left area food growers with few options for selling their produce. Small farms struggle with high labor costs and stiff out-of-state and foreign competition.

The farmer's share of the food dollar has slipped from 37 cents in 1980 to less than 19 cents today, making farmers twice as likely to live in poverty as the general population and resulting in a 20 percent decrease in the number of Lane County acres in crop production between 1989 and 1999.

Even worse, only 2 percent of America's children meet all the recommendations of the U.S. Department of Agriculture's food pyramid. Incredibly, one of every three Lane County children is at risk of hunger!

When food becomes just another commodity, it can be outsourced, imported, and centralized just like every other "consumer good." When farming becomes "agricultural production," we can start to think of it as a "growth industry" (no pun intended) or as an economic dud in the mode of the American steel industry. The land we farm and the food we eat are subjected to the same speculative uncertainty as every other commodity in the global economy.

This may not be so bad for widgets, but food may be different. We don't build holidays around a widget. We don't gather with family around the holiday widget and give thanks for all we have.

The Pilgrims celebrated with food because food is a special thing. We ought to think about whether treating it as if it were just another commodity might not be the best decision we could make.

[You might be wondering, what's the point? How else should I think about food? Well, it's late, and I'm going to bed, so you're on your own. Turns off light, shuffles away from desk . . . "yeah, yeah, happy Thanksgiving! I'm hungry."]

November 23, 2004

Medical-legal symposium

Today I attended a symposium on medical-legal reform at the Medical Center here at Michigan. The quality of the speakers was uniformly high, and the presentations were generally to-the-point and useful. Here are a few choice bits from today's event:

  1. Troyen Brennan presented data that suggest that the current malpractice crisis (i.e. the skyrocketing medical malpractice insurance premiums that are causing doctors to quit their practice or restrict the kinds of patients they see) has been driven primarily by an increase in the size of claims, and not by an increased frequency of claims.
  2. Brennan reminded us that there are many more patients who have been injured by medical treatment than there are patients who sue for malpractice, and he suggested that these patients constitute a reservoir of potential suits which might be tapped by an increasing public awareness of medical errors. He argued that proposals to reform our current negligence-based system by nibbling around the edges (damage caps, restrictions on expert witnesses, etc.) might not "solve" the malpractice crisis if more injured patients choose to sue.
  3. Instead of incremental reform, Brennan suggested that we change the system more fundamentally, perhaps by moving to a no-fault system. He argued that something like no-fault would do a better job of compensating patients and would make it more likely that patient safety would be addressed at a systems level. (More on no-fault here.)
  4. John Nelson, the president of the AMA, emphasized that capping noneconomic damages should be just a stopgap measure. He argued that the entire negligence-based system is destructive and should be thrown out.
  5. Rick Boothman, assistant general counsel at the U of M, pointed out that the problem with our current malpractice system is not that "it's bad," period, but rather that we depend on it to do far more than it really should. The tort system, said Boothman, works well in cases where there's an intractable disagreement and both parties demand a hearing. Many medical malpractice claims, however, are filed because other avenues of communication have broken down.
  6. Boothman talked a bit about the University of Michigan's much-heralded proactive approach to malpractice claims. Aided by a Michigan state law requiring that plaintiffs provide 6 months advance notice of their intent to file a claim, the U of M has been able to contact these unhappy patients and attempt to find out what's gone wrong. In cases where a mistake was made, the University will apologize and try to compensate the patient fairly. In many of these cases, the patient decides not to file a claim. The University will aggressively defend suits where it is not at fault, however. Boothman emphasized that although the press likes to focus on apologies, the key to Michigan's success has been honesty.
One thing that all of the speakers seemed to agree on was the need to define more clearly what we mean by "medical error," "adverse event," "near-miss," "medical injury," and so on. Until we can count the occurrence of these things more reliably, and track the effects of various reforms on the rates of these various things, it's hard to make an airtight case for any particular reform measure.

One thing that I would have liked to have been discussed that wasn't is the role of health plans. In a fascinating throwaway comment, Troyen Brennan pointed out that in California, where damage awards are capped under that state's MICRA reform law, malpractice insurance premiums are much lower than in other states. However, in California a huge number of patients see doctors employed by Kaiser Permanente, an HMO that assumes the malpractice liability of its physicians. Brennan hinted that this large-scale example of "enterprise liability" might itself be one significant reason for the lower premiums in California, and that MICRA might not be wholly responsible for controlling the rise in malpractice premiums.

Should enterprise liability be encouraged? Are health plans an appropriate enterprise to bear liability for physician malpractice? Are these questions moot unless ERISA is reformed?

More later, I'm sure...

November 22, 2004

"Marriage" and natural law

My recent response to IrishLaw about same-sex marriage has provoked a very thoughtful return response--which I'm not sure I entirely deserve given the sarcastic tone of my post.

Despite Anthony Rickey's suggestion that IL refrain from making the "much weaker" argument that marriage between a man and a woman is "some form of natural right," IrishLaw sticks to her guns:

Indeed, I could have stopped there, but I don't believe the only reason we have a right to marriage is because it's currently on the books. In other words, I don't think we'd suddenly stop having a right to marriage even if we all decided to repeal those laws tomorrow (or if the courts suddenly decided they were all unconstitutional somehow). . . . I do believe there are natural rights, which if abridged by law would be by unjust law.
[Comment on Anthony's post.] I appreciate ILs candor, and I sympathize with her clear recognition that actually arguing for the existence of natural law--let alone its precise boundaries--is a very difficult thing to do.

When the question is whether constitutional or statutory law permits or prohibits a thing, it can be very hard to persuade each other. When the question is whether there's a natural right to marriage defined as the union of one man and one woman, I think it's virtually impossible. IrishLaw may not be John Finnis, but that's not the reason her arguments fall far short of persuading me. Maybe because natural law is simply given (it's "anterior" to not only the state, but to all of human civilization), it doesn't depend on reason or empirical evidence in the same way that constitutional or statutory law does. Attempts to persuade others using these tools alone are bound to fail, because in the end, the proponent of natural law has to ask that we simply believe it. In this way, natural law is a lot like religion--both are founded on a certain amount of faith.

I don't want to say that natural law does or doesn't exist. I only want to say that if man/woman marriage is a natural right, but SSM is not, IrishLaw is unlikely to persuade me by appealing to history, tradition, and reason. For every argument that IL comes up with, someone like Fool's Blog or Heidi Bond will be able to persuade me that it doesn't compel the natural-law conclusion that IL favors.

In fact, no argument like this will ever be successful, because the conclusion ultimately depends on a leap of faith.

This might be the best reason of all for the government to get out of the "marriage" business altogether. By that I mean just drop the word entirely from the law. Use "civil unions" instead. While we are deeply divided about what "marriage" is, we are mostly in agreement that the tax code should treat people equally, that laws governing inheritance shouldn't be biased against gays, and so forth. Perhaps through some sheer stroke of good luck, we mostly agree that equal protection of some sort is the law of the land, whether because of natural law, the constitution, or statute. Fine. Let's focus on what we agree about. The government does not have to take a position on "marriage," but it can (and should) act to ensure that the laws don't systematically deprive gays (or opponents of SSM, for that matter) of equal protection.

If the only way we can do this is to lower our sights to the mundanities of the tax code and employment benefits law, and away from metaphysical questions about "marriage," then we should do this, and be satisfied.

November 21, 2004

New Silmarillion

Houghton Mifflin has come out with a new edition of the Silmarillion to match the great box set of the Lord of the Rings that they put out two years ago. The spines of the dust jackets (do dust jackets have spines?) are identically styled, so anyone with the box set, but no Silmarillion, should get this edition. Bellissima!

This edition is very similar to an earlier version which I have. Both are illustrated by the most overlooked of the glorious triumvirate of Tolkien illustrators extraordinaire: Ted Nasmith.

If you've never read Tolkien, and want to know why you should, browse through the paintings on Nasmith's site. His paintings give me goosebumps. Lee conveys the culture, Howe the action, but Nasmith does the landscapes of Middle-Earth better than anyone else. This new version of the Silmarillion just stuffs in new Nasmith illustrations, and that makes it worth getting, even if you already have a few Silmarillions lying around already.

November 20, 2004

Fashion sense

Via Book of Joe (via Cut-to-Cure), here's an interesting fashion statement from designer Alexander McQueen:


Apart from the haute couture designers, I think our culture is woefully bereft of interesting fashion--especially men's fashion. Everything is so homogenous; it's almost impossible to find simple banded-collar dress shirts, let alone anything really over-the-top.

When it comes to clothing (and spaceship technology) our culture could learn something from the Minbari:


Minbari men's clothing clearly displays both Asian and Elvish influences. At any rate, it's more stylish than most of the crap we Americans have to wear...

November 19, 2004

Cat-blogging

It's Friday. Time for cats!


This is Allie. She's curious, feisty, arrogant, playful--the perfect little cat!

November 18, 2004

Browsing

Mark Schmitt doubts that the Bush administration is serious about tax reform (or to put it more accurately, that the Bush administration's seriousness extends to anything other than shifting the tax burden away from wealthy investors). Sigh. We voted for him. Votes have consequences.

Professor Bainbridge might turn out to be the Republicans' canary in the coal mine. It seems he's one of the few right-wingers who can still recognize convenient corruption when he smells it. Sigh. This year's crop of Republicans won't be the first ones to have forgotten the timeless principle that power corrupts. Let's just hope they can remind the rest of us. 2006 is only two years away.

In more optimistic news, for only $104.95 you can get yourself a copy of University of Michigan Law Professor Peter Westen's new book (which is earning favorable reviews so far). If I were Professor Westen, I'd be trying to get the publisher to hurry up with the $24.95 paperback release.

November 17, 2004

The University of Chicago

Will Baude calls "sheer nonsense" the suggestion that the University of Chicago might be becoming a leftist bastion unfit for good little conservatives and other sensitive right-wingers:

All that aside, this tallying up and searching for conservatives at Chicago completely misses the point about what makes Chicago great, and what makes it a great place for the "Conservative students and parents" that Kurtz is warning. The University of Chicago's unusually strong commitments to free speech, even when it is uncivil and offensive, make the place welcome for all who believe in questioning orthodoxies on either side. People argue. Others argue back. That's what we do.
I've spent time at a lot of schools: Reed College, the University of Colorado, the University of Michigan, and the University of Chicago. Of all these places, the University of Chicago is far and away the most conducive place for serious (and playful) intellectual inquiry, and the most hostile place for knee-jerk politically-correct views (left, right, up, or down), that I have ever experienced.

The kind of student for whom the University of Chicago would not be a good fit is the student who insists upon being surrounded by a "comfortable" environment, where his or her political views are safe from challenge. A left-wing student of this sort might be better off at UC-Santa Cruz; a conservative student of this sort might do well to choose Hillsdale College. If you don't value real debate, stay away from the U. of Chicago.

More Scalia

I got to listen to Justice Scalia again today, this time at the Law School. The format was mostly Q & A, and the quality of the questions today was generally better than yesterday. A little too many social policy questions for my taste, but hey. Even though Scalia may not like it, the Supreme Court is an enormously powerful arbiter of social policy, and the chance to ask one of the nine Justices a question about abortion, or gay rights, or whatever other social policy issue floats your boat, should not be passed up.

I'm still curious about Scalia's judicial philosophy, and to what extent it reduces the number of instances that require judges to exercise their own personal discretion to obtain a result. Here I'm mostly thinking about statutory interpretation, not constitutional interpretation. What should a judge do when the statute is ambiguous? In the realm of statutory interpretation, Scalia says that a judge ought not to construe the text "strictly" or "leniently," but "reasonably." My question is, reasonably according to what, and according to whom?

Scalia said today, as he has consistently for years, that he does not think that legislative history is a legitimate source of authority for a judge who must interpret an ambiguous statute. He also said that the doctrine of stare decisis should not bind the Supreme Court absolutely--cases like Roe v. Wade which are founded upon an erroneous interpretation of the Constitution should be overturned. It would seem then that Scalia would agree that precedent should have even less authority when interpreting statutes. Even if precedent can be binding, it's sometimes as ambigous as the statute itself.

If legislative history and stare decisis are out as authoritative guides for judges confronted with an ambiguous statute, what's in? Several times today he mentioned some interpretive "canons" (rules of thumb) like the rule of lenity: in criminal cases, the statute should be construed in favor of the defendant. The problem with canons is that there are a lot of them, and a judge can often pick and choose which ones to apply in a particular case (see for example Babbitt v. Sweet Home, 515 U.S. 687 (1995), where Scalia engaged in dueling canons with Justice Stevens in a dissent from a holding that the Endangered Species Act includes habitat destruction that kills wildlife in its prohibition against "taking" endangered species.) I haven't seen an argument demonstrating that any approach to statutory interpretation, Scalia's included, would allow a judge to specify which canons should be relied upon ex ante when the text of a statute is ambiguous. Reading the opinions, it seems like most judges choose the canons they like, and don't choose the ones they don't like. But I haven't yet heard a judge or anyone else tell me that yes, this is what really happens.

Scalia's approach to statutory and Constitutional interpretation is probably more successful than other popular approaches at rooting a judge in the law and limiting his arbitrary discretion. That seems to be what everyone is afraid of, and probably for good reason. Article III judges aren't elected, and they can serve for life, if they want. They should be constrained. But I don't think any particular approach to statutory or constitutional interpretation can ever wholly succeed at eliminating the judge's individual preferences as a major (the major?) factor in cases where the text is ambiguous. This is probably uncontroversial.

Why, then, is everyone so hesitant to admit it? Certainly very few judges will; they'll always say that their decision was compelled by the law. But we know that this isn't true because in hard cases, different judges come out the opposite way, and all of them will say their decision is compelled by the law. Either about half of these wise, experienced, and conscientious judges are plain wrong, or none of them were compelled by the law. Instead, they did what we pay judges to do: they exercised their own best judgment.

This is the reason why the political views of a nominee to the Supreme Court will always matter. Especially at the Supreme Court, where the cases are chosen because they're situated in thorny areas of the law with no easy (and often no compelled) answers, the Justices are going to have to exercise their own judgment. This means they're going to have to identify what they believe are the most important principles underlying the controversy, and they'll have to interpret for themselves what those principles suggest ought to be the outcome of the case before them.

In Sweet Home, Justice Scalia relied upon the principle of the sanctity of private property to find that habitat destruction was not outlawed by the Endangered Species Act. Justice Stevens relied upon the value of preventing species extinction to argue that imputing to Congress the intent to cover habitat destruction was the most reasonable reading of the statute. Neither justice was being overtly "political," but the political preferences of both influenced their judgment about the resolution of this hard case.

November 16, 2004

Muscle soreness

A NYT article reports that the soreness you get about 24 hours after a hard workout may be due to inflammation:

No one knows for sure exactly what does cause muscle soreness. But many scientists now think that the delayed pain is caused by microscopic tears in the muscles when a certain exercise or activity is new or novel. These tiny tears eventually produce inflammation, and corresponding pain, 24 to 36 hours later.
I don't know a single person who would have thought this was surprising. But oh well. What surprises me is that consuming the right carb/protein mix during and after excercise might limit soreness and improve performance:
Consuming protein, however, may help. In a report published in the July issue of the journal Medicine & Science in Sports & Exercise, scientists found that trained cyclists who consumed a carbohydrate and protein beverage during and immediately after a ride, were able to ride 29 percent longer during the first ride, and 40 percent longer in a second session than those consuming carbohydrates alone.
Does protein consumption alter the inflammatory response? Does it improve performance by some other mechanism? At any rate, I'd rather have a can of tuna than pop a Vioxx.

Scalia's originalism

I was lucky enough to hear Justice Antonin Scalia speak today. One of his arguments was that the Supreme Court has become so politicized because of the pernicious view of many Justices that the Constitution is a "living document" and that its meaning changes with the times. I'm curious about how far this argument goes.

Justice Scalia defends "originalism" as superior to any other constitutional interpretive philosophy. In fact, Scalia hints that there is no other such philosophy--every non-originalist approach is merely an unprincipled picking-and-choosing of whatever seems to make sense to a judge on any particular day.

Originalism has a lot to recommend it; but like every other interpretive approach, it must deal with the reality that the outcome of many cases is underdetermined by the law. In many disputes, there may be no one "right answer" compelled by existing law, leaving the judge free to choose from among several (often conflicting) rulings.

Scalia says that judges ought to interpret the Constitution to mean what it meant when it was written. That's fine, as far as it goes, but this technique doesn't turn all hard cases in 2004 into easy ones. Even if you're right about what the Constitution means, the text of the Constitution won't determine the outcome in every constitutional case. For example, would the constitutional prohibition on unreasonable searches and seizures apply to the government's copying the files on your hard drive? Have they "seized" anything tangible here? (I'd like to acknowledge the place where I got this example, but damn--I can't remember.) The point is, even originalist judges are going to have to rely on something other than written law to decide hard cases.

The interesting question is, where should they look? Precedent would be good, but it's not always slam-dunk. Same goes for legislative history, or agency interpretations. The truth is, there's no one particular philosophy of constitutional or statutory interpretation that will relieve a judge from having to exercise a personal choice among outcomes. That's why they call it judging.

Even if the entire Supreme Court were packed with Scaliaesque originalists, the values and political preferences of each judge would still matter. They might matter less than if the Court were packed with "evolutionists" and non-originalists, but they would never be wholly irrelevant.

Does originalism render the values and political preferences of judges irrelevant enough to abandon a close political scrutiny of high court nominees? I'm not sure that it obviously does.

----

As an aside, if I were Heidi I would not liveblog Scalia's Q&A tomorrow. But that's mostly because I would be distracted by the blogging, and I would really want to be listening. But I'm not Heidi. So all I'll say is, if Heidi wants to liveblog and she's sitting next to me, I wouldn't be distracted by her typing. HTH.

November 15, 2004

How fat is your state?

Colorado is the least obese state in the country, according to a public health survey by the United Health Foundation.

Even so, a whopping 16 percent of Colorado's population is obese, defined as a BMI greater than 30. Every other state has a higher obesity percentage than this. (We are a FAT country, boy howdy.)

Despite the strong obesity showing, Colorado is only the 13th healthiest state overall (the healthiest is Minnesota). One reason is that it ranks a lowly 48th for access to prenatal care.

How healthy is your state? Click here to find out.

New Blogs

Two of my classmates, Larry Marcus (AKA "LMark") and Steve Sanders, have new and interesting blogs. Check them out.

November 14, 2004

Malpractice reform

William R. Brody, the president of Johns Hopkins University, provides a pithy account of what's wrong with our system of medical justice.

If this piece suffers from anything, it's that Brody is just complaining. Physicians need to start offering some real suggestions--beyond just caps on damage awards--for making the system work better.

"Myth No. 2: We need to preserve the current legal system to guarantee a fair hearing and provide compensation for patients harmed by the health care system."

If we feel that patients should be compensated for iatrogenic medical injuries, why should we make this compensation dependent upon proving fault? Since the costs of medical malpractice insurance are passed on to employers, insurers, and ultimately to patients, in some sense we are all purchasing insurance against injuries caused by medical treatment. But our fault-based system means that even though we're all buying this insurance, only some of us who are injured will be able to collect. If we can't get a good lawyer to take our case; if the evidence has been flushed down the toilet; if no physicians will testify on our behalf; we're out of luck. Sorry.

One solution would be to adopt a no-fault system, where all injuries are compensated regardless of whether anyone was negligent. Of course, we'd still be faced with the problem of differentiating between an injury caused by our treatment and a bad outcome caused by the illness. The increased frequency of compensation might drive costs up, but the lack of windfall jury awards and the removal of incentives for "defensive medicine" might drive costs down. If the current system is so bad, we might want to try something like a no-fault system, and see what happens...

"Myth No. 3: The malpractice system is necessary to punish and remove incompetent health care providers."

Some patients' groups oppose no-fault because they want to be able to punish negligent physicians. Some patients also oppose caps on damages because they (rightly) feel that negligent physicians should be held accountable.

If the physician lobby wants relief from the current malpractice system, they should stop carping about the trial lawyers and start offering some constructive alternatives for holding negligent physicians accountable. They might start with reversing their opposition to publicizing appropriate data from the national practitioner data bank (1, 2, 3). They might consider reversing their position on enterprise liability (1, 2) which would make institutions such as health plans or hospitals liable for the errors of the physicians they employ, supervise, and contract with. This exposure to liability would motivate these institutions to identify and remove incompetent doctors. They might support a more vigorous oversight by state licensing boards. The only unacceptable option is to continue to rely entirely on self-policing by the medical profession. This merely gives the trial lawyers more ammunition in their campaign for the status-quo.

"A few new caps on liability costs aren't going to solve the problem. It's time we begin a comprehensive reform of the medical justice system."

Perhaps caps on damages are a necessary first step, but they won't solve many of the problems that plague our current system. Caps won't necessarily change the frequency of claims, which is an independent reason for rising malpractice premiums. Even if they successfully reduce malpractice premiums, caps alone will do nothing to alter the random nature of malpractice lawsuits. Physicians will still have to contend with the unsettling reality that a lawsuit might strike like lightning at any time. Hence, caps will also do nothing to curb the habit of "defensive medicine," because the fear of random lawsuits will remain.

If physicians are serious about changing our irrational system of medical malpractice, they're going to have to think beyond just caps on damages. The chance for physicians to play a leadership role on this issue is still there, but an obsession with caps will ensure that this opportunity will pass them by.

----

For some interesting comments by physicians on malpractice reform, you might start here (suing HMOs) and here (medical expert witnesses.)

November 13, 2004

That's what I'm talking about

I've tried occasionally to describe what I call the "agrarian" state of mind.

Scheherazade does it better.

I'm not trying to label anyone; I'm just saying that this love of place, which can flourish in Manhattan as well as in Wyoming, is the central feature of what I've been calling agrarianism. Start with the love of place, and everything else follows--all the politics and policies and arguments.

Creepy

David Brooks gives me the creeps with his calls for Bush to punish his "enemies" in the CIA:

Now that he's been returned to office, President Bush is going to have to differentiate between his opponents and his enemies. His opponents are found in the Democratic Party. His enemies are in certain offices of the Central Intelligence Agency. . .

If we lived in a primitive age, the ground at Langley would be laid waste and salted, and there would be heads on spikes. As it is, the answer to the C.I.A. insubordination is not just to move a few boxes on the office flow chart. . .

It is time to reassert some harsh authority so C.I.A. employees know they must defer to the people who win elections, so they do not feel free at meetings to spout off about their contempt of the White House, so they do not go around to their counterparts from other nations and tell them to ignore American policy.

It's hard for me to tell what it is about Brooks' piece that gives me the willies. I don't disagree that insubordinate behavior should result in some kind of discipline. Maybe it's the way Brooks is so willing to use the word "enemies," the same word we use to describe the al Qaeda terrorists who destroyed the World Trade Center. This implied equivalence is at best intellectually unhelpful, at worst it's downright dangerous.

Brooks implies that a CIA employee's highest obligation is to the President. This sounds right, but isn't it also true that as citizens, their highest obligation ought to be to the nation? If the President is misrepresenting the available intelligence to persuade the nation to go to war, what responsibilities to the nation do employees of the CIA have? Perhaps they should be fired for leaking information, but perhaps the nation ought to commend their courage for choosing their country over their jobs. Labeling them the President's "enemies" is misleading and dangerous.

Still uncomfortable with Brooks' piece, I turned to an article about the resignation of CIA #2 John McLaughlin. Porter Goss, the man Bush picked to head the agency after the departure of George Tenet, is shaking up the CIA's top leadership:

Mr. Goss, former chairman of the House Intelligence Committee, became director of central intelligence in late September and has unnerved many career officials at the C.I.A. by installing four former House Republican officials in senior advisory positions.
Why does this give me the willies too? Shakeups can be good for any organization, and there's no reason to think that Goss hasn't picked qualified people whom he trusts will do a good job.

Maybe it's just the residue from Brooks' call for a CIA purge. Maybe it's just the words "House Republican officials." Why does all this sound so creepy? Somehow I don't think the CIA can be effective when it's politicized, but it seems like that's the direction we're headed.

November 12, 2004

State pressure on churches?

Jordan Fowles has posted a thoughtful reply to my question for Irish Law: why should members of a particular religious faith worry about whether the government allows same-sex marriage? After all, the state wouldn't be dictating to the churches which kinds of marriage they should recognize, right?

Well, maybe wrong. As Jordan points out, it's not easy to keep the realms of church and state entirely separate.

November 11, 2004

Colorado

I'm from Colorado, and I'm proud of it. Usually, though, my pride comes from the state's physical beauty. (Yeah, that's got nothing to do with me, but most of our parochial prides suffer from this same flaw.) The state's politics and culture have rarely given me much to be proud of. I grew up in Colorado Springs, which was uber-conservative in the Orange County mode long before it welcomed James C. Dobson's Focus on the Family and a flood of smaller wingnut fundamentalist groups. Instead, I centered my cultural and civilizational pride on my "adopted" home city of Chicago. (Obama!)

Now, though, Colorado's voters are making me proud of something other than mountains. Sure, they voted for George W. Bush, and that's disappointing. But Colorado is no Utah, and it's no Oklahoma.

Despite the predictable opposition from our embarrassing Governor, whom National Review praised as the "best Governor in America" and who never met a road project he didn't like, Denver-area voters have approved "one of the most ambitious urban transportation projects in the nation's history." Denver also improved a tax increase to fund civic improvements and an independent monitor to oversee internal Police Department investigations. Denver Mayor John Hickenlooper (a Democrat) stumped for all these measures, and went 3-for-3. Meanwhile, Governor Asphalt spent most of his time working on the platform for the Republican Convention, and continued his recent losing streak on voter initiatives dating back to the water-grubbing Referendum A. (Water politics is bruising in the West.)

Statewide, voters are shaking off their knee-jerk allegiance to the Republicans. The miserable performance of the party's leaders in the state legislature has inspired voters to return both houses to the Democrats. They've elected Ken Salazar, a decent and competent Democrat, to the U.S. Senate. (The snarky behavior of the national Democratic Party leadership shouldn't cast any aspersions on Salazar's character.) The state is sending two more Democrats to the Congress in Washington.

I'm proud to say that Colorado is living up to its self-image as a rugged and independent Western state. It's certainly independent of the knee-jerk right-wing ideology.

(There's more great Colorado discussions at Colorado Luis. Picante pero sabroso indeed.)

November 10, 2004

Leavitt's EPA the NCGA's monkey?

The Washington Post reports that the EPA is responding dismissively to a suggestion by a NAFTA panel that suggests Oaxacan campesinos in Mexico are entitled to a little deference. First, the EPA is failing to respect the basic dignity, let alone the property rights, of the Mexican farmers. Second--the EPA?? Mexican farmers? Shouldn't Mike Leavitt be worrying about our environment or something?

The issue is genetically-modified ("GM") maize. American farmers love it, but Mexicans don't want it growing in their fields. The Mexican government prohibits imports of GM seed intended for cultivation, but apparently some of the stuff has escaped and is now growing in Mexican cornfields. A group of Mexican farmers petitioned for an expert investigation of the problem under Article 13 of NAFTA, and the resulting report has the temerity to recommend that the we actually do something in response to the farmers' concerns. Specifically, it recommends that any GM corn products imported into Mexico be milled at or near the border. This would prevent the kind of accidental cultivation of GM maize that so worries the Oaxacans.

The EPA's press release responding to the report is no better than a bad blog post. The EPA argues erroneously that the report "fails to consider the benefits of biotechnology" and arrogantly dismisses the report:

This report is fundamentally flawed and unscientific; key recommendations are not based on sound science, and are contradicted by the report’s own scientific findings. The authors acknowledge that no economic analysis of their recommendations was conducted, and that many of these recommendations are based solely on socio-cultural considerations.

This kind of cold dismissal of "socio-cultural" considerations got me curious, so I downloaded the report and read it myself (pdf here). Contrary to what the EPA says, the report did consider the benefits of biotechnology. But it also considered the harms. It pointed out that the safety questions have still not been answered:
The maize transgenes that have found their way into Mexico have not undergone risk assessment for environmental, health, social, or economic risks by Mexican national public institutions as they have within the United States and Canada. The regulatory agencies of the United States and Canada do not carry out a formal risk assessment for the consequences of transgenes beyond their borders.

The report also points out that that the preferences of Mexican campesinos, like our own preferences, are not entirely determined by scientific study:
There are a number of Oaxacans, especially campesinos, who consider the presence of any transgenes in maize as an unacceptable risk to their traditional farming practices, and their cultural, symbolic, and spiritual value of maize. That sense of harm is independent of its scientifically studied potential or actual impact upon human health, genetic diversity, and the environment.

This position isn't strange or radical. We all have things which we value culturally and symbolically; think of the furor over burning the American flag. Is it so much to ask that we take steps to avoid contaminating their land (and it is, after all, their land) with corn that they don't want? How would you react if you were told you shouldn't be complaining about your neighbor planting unwanted peonies in your backyard, because peonies have never been scientifically proven to be a threat to your health? That your opinion counted for nothing because it was based on your "socio-cultural" loathing of peonies? You'd say "screw you, Jack, and get off my land."

Why shouldn't the Mexican farmers be able to say the same thing?

(And why should the EPA be involved in this issue at all? Since when did it decide to be the industry groups' public-relations monkey?)

------

One of the GM varieties of maize that the farmers are objecting to ("Bt maize") has been engineered to produce a protein made by a soil bacterium, bacillus thuringiensis. The NAFTA report explains:

Bacillus thuringiensis (Bt) – A group of soil bacteria found worldwide, which produce a class of proteins highly toxic to the larvae (immature forms) of certain taxonomic groups of insects. Bacterial spores (resistant forms) containing the toxin are used as an environmentally benign commercial pesticide favored for its high specificity. Bt strains (over 20,000 known) produce “cry” (crystal) endotoxin proteins that disrupt digestive function and lead to death in moths, butterflies, and certain other insects, including corn borers, cabbage worms, cotton bollworms, and other agricultural pests. Since 1989, genes expressing the cry proteins have been introduced into plants (see Bt crop) to confer insect resistance. Bt also refers to the insecticidal toxins.

A plant that's been rigged to produce an "environmentally benign" commercial pesticide that kills butterflies? This doesn't sound great at any level, socio-cultural or otherwise.

November 09, 2004

Grand Rounds

The medbloggers have got a great thing going: every week one blogger hosts grand rounds, a compilation of the best of the medical blogs. This week, GruntDoc is hosting, and the posts should be interesting to everyone!

When I first started blogging, it was a lot easier to find good law blogs than it was to find good medical blogs. But I think the medbloggers have caught up with the blawggers. This year's 1L class doesn't seem to have spawned a lot of blogs, while some fantastic new medbloggers have arrived to compliment the strong veterans.

The best new development in law blogging has come from professors, not students. I'm talking about the new network of Law Prof Blogs.

marriage "rights"

My classmate Denise has been conversing with Irish Law (1, 2) about whether same-sex marriage is a "right" or not. I'm wondering why this debate has to be confined to same-sex marriage--why should one side's version of marriage enjoy all the scrutiny? Why can't we ask the same questions of man/woman marriage? It's only fair, after all. . .

Irish Law says that supporters of same-sex marriage ("SSM") show "contempt" for the democratic process when they appeal to the judicial branch to preserve SSM in the face of the expressed desire of the majority to prohibit it. She claims that this tactic is legitimate only when a "right" is at stake--we can't infringe rights by majority vote--and that SSM is not a right.

That's fine, as far as it goes. But Irish Law doesn't want to say that "marriage" has nothing to do with rights at all. Predictably, perhaps, she asserts that marriage between a man and a woman is a right. This conveniently relieves herself of any obligation to do what she insists the supporters of SSM must do: persuade a majority in the public square to permit the practice, or go without.

I can't blame her for trying to insulate her version of marriage from the whims of the majority. After all, the ability to marry someone you love would be a terrible thing to lose. But why should Irish Law relax, content in the knowledge that her idea of marriage is safely ensconced behind the walls of "rights," while a gay person is forced to endure the vicissitudes of public opinion, pleading in the public square for what Irish Law is assured of having, and for what may, if won, be withdrawn in the next election?

With man/woman marriage safely protected as a right, Irish law can appear magnanimous about her willingness to debate SSM: "if I lost the overall debate in the public square I would be upset and keep working to protect marriage, but I would accept that the result had come about by democratic processes." This apparent magnanimity is possible only because she is protected from "losing" a public debate about whether her version of marriage should be legislated out of existence--she's already locked this up as a right.

Can Irish Law explain why man/woman marriage is a right, but man/man or woman/woman is not? She attempts to do so in several ways, all of which fail.

  1. The definitional argument: "It's true that marriage is a fundamental right, anterior to the state -- but marriage has never encompassed in its definition any "right" to wed someone of the same sex." This is simply arbitrary. Definitions are (by definition?) always capable of being contested. Grounding a right "anterior to the state" (whatever that might mean) in a definition just begs the question of whose definition we should privilege. Irish law wants to privilege hers. But she still has to explain why we should, and this brings us to. . .
  2. The history argument: "Empirical observation of historical or current societies around the world does not demonstrate that marriage ever has included or really does include union to someone of the same sex. . ." Is IL really prepared to hang her hat on this? Must all rights depend on an unbroken historical practice of the recognition of these rights? I hope not. Women's "right" to vote? Tenuous. But we also have. . .
  3. The biological argument: "It doesn't follow from rational deduction that marriage must include the right to join with someone of the same sex; reason rather supports the institution of marriage, as it is between men and woman, as a means to ensuring stability of and propogation [sic] of our very existence." But why should the need to procreate establish the "right" of men and women to marry each other? All procreation requires is the right to fuck each other. With today's in-vitro fertilization technologies, it might not even require that.

Since Irish Law cannot establish why men and women have the right to marry each other, her argument that men and men, or women and women, have no such rights is actually stronger. But I doubt Irish Law will revel in this kind of victory.

Chris Geidner is correct to characterize the SSM issue as fundamentally about equality. What I'm curious about is why Irish Law seems so afraid of equality. Is it because she fears that gays will demand that the Catholic Church sanction gay marriage? I haven't heard of anyone threatening to do that. I don't see how Catholic marriages are in any way threatened by the state's recognition of SSM. Irish law is a good writer, and she seems very smart. I'd like to see her answer this question, if she can.

November 08, 2004

The DLC

George W. Bush's reelection should cause us to take a hard look at the Democratic Leadership Council's record as custodian of the national Democratic party.

The DLC's self-styled "progressive" ideology has driven the Democratic party away from its working-class roots and into the arms of corporate technocrats, a position which has crippled the party's ability to appeal to average voters. Listen to this claptrap from the DLC's website:

New Democrats are the modernizers of the progressive tradition in American politics. We believe in the traditional values that have always propelled the Democratic Party and we believe that the best way to further those values in a new era is to modernize our policies and programs to keep up with the changing times.
What does this mean? The professed belief in "traditional values" that Democrats used to stand for is buried under an unrestrained enthusiasm for "modernization" in a "new era" to "keep up with the changing times." It's no surprise that voters don't often know what the Democrats stand for.

Thomas Frank has given us a comprehensible translation of this DLC mumbo-jumbo:

For some time, the centrist Democratic establishment in Washington has been enamored of the notion that, since the industrial age is ending, the party must forget about blue-collar workers and their issues and embrace the "professional" class. During the 2004 campaign these new, business-friendly Democrats received high-profile assistance from idealistic tycoons and openly embraced trendy management theory. They imagined themselves the "metro" party of cool billionaires engaged in some kind of cosmic combat with the square billionaires of the "retro" Republican Party.

The problem with speaking the language of values is that it tends to force you to confront what those values actually are. The DLC's values are those of the corporate class, the mega-entertainment industry (think Dianne Feinstein), and the well-to-do cosmopolitan professional class.

There's nothing inherently wrong with this, but we should be very clear about what we sacrifice when we allow the party to be guided by people who stand for Disney and Viacom. We lose any credibility we might have with the voters in Akron, Ohio who've lost their jobs to downsizing and "global competitiveness." We lose our credibility with average folks who've been told by the Republicans that, as Frank puts it, they're the "victims of a haughty overclass - 'liberals' - that makes our movies, publishes our newspapers, teaches our children, and hands down judgments from the bench."

Average folks aren't dumb. At least, they're no dumber than I am, and even my Bush-loathing self knows an "elitist liberal" when I see one. They run the DLC.

November 07, 2004

How now mad cow?

Let's talk about something other than the election, something more optimistic. Let's talk about mad cow disease.

I wouldn't have thought of mad cow disease, except that in my Legislation course, we were divided up into groups and asked to write a piece of legislation that would protect America from the scourge of bovine spongiform encephalopathy. The story behind this public health menace is fascinating.

Many mammals, including humans, cows and sheep, suffer from degenerative neurological diseases--the "transmissible spongiform encephalopathies" or TSEs-- caused by what many people now think is an abnormal protein--a prion. In sheep, the disease is called scrapie; in cattle it's called mad cow disease. The infectious agent that causes these diseases, probably a prion, is concentrated when an animal eats the carcass of another of its kind, and especially the neural tissue of the brain and spinal cord. Yummy. Cannibals in Papua-New Guinea, for example, are susceptible to a form of TSE called kuru.

These diseases can cross the species barrier. If you're not a cannibal, but you eat certain parts of a cow with mad cow disease, you can get a TSE called Creutzfeldt-Jakob disease. It causes dementia, and it's always fatal. If there's a particularly heavy load of infectious agent in a carcass, it's more likely that the disease will infect whoever eats it.

The problem is, our industrialized agricultural practices involve a lot of things that tends to concentrate the infectious agents of the various TSEs. We feed a whole lot of animal carcasses to other animals: cows to cows, cows to chickens and pigs; zoo animals and roadkill to cows and chickens and pigs, etc. etc. Many animal feeds are made with the products of "rendered" carcasses of dead or diseased animals. The carcasses are tossed in a vat, melted down, and separated into proteinaceous materials, fats, and whatnot. These carcass-products are the main ingredients in livestock feed, pet food, bologna, etc.

After a cow in Washington State was discovered with mad cow disease in 2003, the USDA issued some basic regulations designed to keep the mad cows off our dinner plates: non-ambulatory ("downer") cattle weren't allowed in the slaughterhouses anymore. Certain parts of cattle--brains, spinal cords, terminal ilea--were prohibited from going into bologna and sausages. Having issued these regulations, Agriculture Secretary Ann Veneman spent the rest of her time trying to convince the public that their meat was safe. The National Cattlemen's Beef Association no doubt appreciated the Secretary's efforts.

There remains no ban on feeding the products of animal carcasses, even diseased ones, to livestock animals that enter the human food chain. The rendering plants that melt down these carcasses are not yet required to follow methods designed to eliminate the infectious agent that causes mad cow disease, and they are permitted to accept "downer" animals for processing. There is no national system for tracking individual cows, as there is in many other developed countries. There have been occasional tests of animals sent to slaughterhouses for mad cow disease, but the percentage of animals tested remains extremely low. (This has been one of the reasons Japan has not dropped its ban on American beef just yet.)

Needless to say, there is a lot of room for more legislation on this issue, which made it an excellent exercise for our class. Now, if you'll excuse me, I'm going to go get me a burger. With the USDA on the case, I know it's safe!

November 06, 2004

The power of persuasion

The New York Times' Nicholas Kristof is one of my favorite columnists, but this time he's talking nonsense. Arguing that the Democrats need to win more voters in the heartland, Kristof suggests something that sounds too much like surrender:

I wish that winning were just a matter of presentation. But it's not. It involves compromising on principles. Bill Clinton won his credibility in the heartland partly by going home to Little Rock during the 1992 campaign to preside over the execution of a mentally disabled convict named Ricky Ray Rector.

There was a moral ambiguity about Mr. Clinton's clambering to power over Mr. Rector's corpse. But unless Democrats compromise, they'll be proud and true and losers.

49% of America voted to get rid of an incumbent wartime President and Nicholas Kristof is suggesting that we abandon ship and start executing the retarded. If winning entails this kind of "compromise on principles," I'll remain a principled loser, thank you.

Ahem. I'm sure Kristof isn't suggesting any such thing, but his column reveals the dangers of his approach. "Jettison the base!" "Pander to the right-wing extremists!" No, Mr. Kristof, the Republicans will pander to their own base quite nicely. The Democrats need to be more attractive to the voters in the middle.

The question is, how? According to the DLC and people like Terry McAuliffe, the only way to capture voters in the middle is to move further to the right. But this approach has proven, again and again, to be a failure. Look at what the Republicans have done. By playing to their base, by unceasingly repeating the far-right mantras of people like Grover Norquist, they've managed over the past thirty years to move the whole country rightward. Their rhetoric was radical when they first started repeating it, over and over again, but now we've heard it so often that it sounds moderate. They attracted the middle by the power and energy with which they advocated their right-wing beliefs. You might even say that they persuaded some folks.

The Democrats, under the leadership of the DLC "centrists," have moved so far to the right that there's very little "center" left. They've abandoned the idea that corporations should be regulated for the public good; they've acquiesced to the idea that 45 million Americans living without health insurance is a minor glitch; they've stood by while inner-city poverty has deepened and a significant percentage of black males have been permanently incarcerated.

Bill Clinton is the exception that proves the rule. Yes, he won the Presidency by moving to the "center," but we got: failed health care reform, "don't-ask-don't-tell," and NAFTA. We got many of the welfare reforms that the right-wing was trying to get for years.

The Republicans want us to believe that the country moved to the right on its own, and found the Republicans waiting for it with open arms. But I think the reality is different: the Republicans took a firm stand, and called out to the country again and again, with courage and conviction. They believed in what they stood for. The country could see it. Forced to choose between a Democratic party who wasn't prepared to fight for anything, and a siren song of people with firm convictions, they did the reasonable thing. They moved to the right.

Can they be moved to the left again? I think so, because so much of what the left believes is appealing: dignity for all people, rich and poor. Equality for all people: gay, straight, black, white. The left could choose, as the Republicans did thirty years ago, to take a stand on these principles, and persuade the country of their goodness.

Or, they could listen to the DLC, and execute a few retarded people to pander to the heartland's worst instincts.

November 05, 2004

What one sows...

A conversation with a friend just now produced this almost-cliche:

"During his first term, Bush just threw feces. During his second term, the feces will start to land.

November 04, 2004

Rural voters

Ok, here we go. George W. Bush completely swept the rural parts of this country, and this has focused our attention on these habitually ignored (except for marketing purposes) residents of the "heartland." Stephen Bainbridge points out how eager the left is to vilify rural voters, and also (by way of his own eager identification with them), how eager the right is to put them on a pedestal. Both sides are doing these rural Bush voters an injustice.

It is not true that rural people are all rabid evangelicals, although many of them are overtly religious. It's not true that rural people are bigots, although many of them aren't as comfortable with the wide range of cultures that you regularly see in the big cities. It's not true that rural people are stupid, although many of them are less formally educated than the cosmopolitan city-dweller.

Although Republicans have been more successful at winning the votes of rural people, the Democrats would be foolish to write them off as hopelessly-benighted slaves to AM radio right-wing propaganda. For the Democrats to make inroads with America's rural population, they need a more nuanced view of rural voters than they've shown up 'til now. Both parties could do worse than pay attention to Wendell Berry, who addresses the (often) unstated assumptions of the elites of both major political parties:

I can say, too, that, having lived both in great metropolitan centers of culture and in a small farming community, I have seen few things dumber and tackier--or more provincial--than this half-scared urban contempt for "provinciality."

The stereotype of the farmer as rustic simpleton or uncouth redneck is, like most stereotypes, easily refuted: All you have to do is compare it with a number of real people. But the stereotype of the small farmer as obsolete human clinging to an obsolete kind of life, though equally false, is harder to deal with because it comes from a more complicated prejudice, entrenched in superstition and a kind of insanity.

The prejudice begins in the idea that work is bad, and that manual work outdoors is the worst work of all. The superstition is that since all work is bad, all "labor-saving" is good. The insanity is to rationalize the industrial pillage of the natural world and to heap scorn upon the land-using cultures on which human society depends for its life.

The industrialization of agriculture has replaced working people with machines and chemicals. The people thus replaced have, supposedly, gone into the "better" work of offices or factories. But in all the enterprises of the industrial economy, as in industrial war, we finally reach the end of the desk jobs, the indoor work, the glamour of forcing nature to submission by push-buttons and levers, and we come to the unsheltered use of the body. Somebody, finally, must lift the garbage can, stop the leaks in the roof, fix the broken machinery, walk in the mud and the snow, build and mend the pasture fences, help the calving cow.

Now, in the United States, the despised work of agriculture is done by the still-surviving and always struggling small farmers, and by many Mexican and Central American migrant laborers who live and work a half step, if that, above slavery. The work of the farmland, in other words, is now accomplished by two kinds of oppression, and most people do not notice, or if they notice they do not care. If they are invited to care, they are likely to excuse themselves by answers long available in the "public consciousness": Farmers are better off when they lose their farms. They are improved by being freed of the "mind-numbing work" of farming. Mexican migrant field hands, like Third World workers in our sweatshops, are being improved by our low regard and low wages. And besides, however objectionable from the standpoint of "nostalgia," the dispossession of farmers and their replacement by machines, chemicals, and oppressed migrants is "inevitable," and it is "too late" for correction.

Berry puts his finger on something the Republicans and the Democrats have both ignored: a contempt for a life on the land. Whichever party can address this issue will make inroads into the red areas of every state. The Democrats can do this without pandering to fascism or theocracy. The votes are there for the asking.

Frustrated cities

Eighty-two percent of Manhattan voters cast their ballot for John Kerry. This article describes how disconsolate these voters are over the rest of the country's preference for George W. Bush. Well, not exactly the rest of the country--voters in other big cities wanted to get rid of Bush, too. In Chicago, 81 percent of voters favored Kerry. Atlanta voters went for Kerry by 73 percent; Denver voters by 70 percent, and even in mega-suburb Los Angeles, 63 percent of voters preferred John Kerry.

There were exceptions, of course. Harris County, Texas (Houston) went for Bush 55/45.

We have a dramatic rural/urban divide in this country.

November 03, 2004

Four more years...

Whoa. . .

The majority of American voters have chosen to re-elect George W. Bush.

It's not like the President Re-Elect hid anything from us; we knew about his policy goals and his methods for implementing them. We can't say, like we did last time, that we didn't really know how radical he is, how extreme, how willing he is to sacrifice procedural safeguards and open government. Nor can we say, like we did last time, that he has no mandate because he lost the popular vote and was installed by the Supreme Court.

This time, we know that the majority of American voters are comfortable enough with George W. Bush in the White house that they will drag themselves out of their homes and away from their TVs to vote for four more years of the same.

The question now is what to do about it. At this point I'm still walking around in a daze, but here are some (possibly incoherent) thoughts about where to go from here:

1) Confront and accept the fact that we are an effective minority. There may be a "silent majority" out there that agrees with us and hates Bush, but they will remain silent. Our efforts to rouse these hypothetical people were about as effective this time around as they are ever likely to get, so don't count on any nascent progressive grass-roots movements to change our electoral fortunes anytime soon.

2) Since the Republicans have demonstrated that they need not fear the Democratic Party, don't expect the Democrats to solve our Bush problem. We might want to ask why the Democrats have become irrelevant. Some will say that the Democrats need to "move to the center," but I wonder if this isn't just a euphemism for "we can't beat 'em, so we'll join 'em." The problem in this election was that there wasn't much of a center to move to--if anything, John Kerry didn't inspire any passion because he was so busy pandering to the non-existent center that he ignored his own base. There may indeed be some common ground out there, but we won't find it somewhere between the current Republican and Democratic parties.

3) If George W. Bush was a divisive and polarizing President when he had no mandate, we should plan for even more divisive behavior now that he does. We'd better dig in, keep our eyes on the Federal Register, and pray. More specifically, we should consider doing what we can to support individuals and groups that serve as watchdogs. Sending a check to Public Citizen, the NRDC, or the EFF might be a good idea.

4) When our country sets out on the road to re-electing George W. Bush, there's a lot to be afraid of. Barbarism, fascism, and theocracy are the ultimate stops along that road. But they're still a long, long, way ahead. 50% of the country is still unwilling to buy a ticket on the Bush-mobile, and that's a reassuring thought. So don't get depressed. Look at those blue areas. There are still some islands of good judgment left.

5) Democracy was never a tool for making good decisions, just legitimate ones. If we make the mistake of condemning the people who voted for George W. Bush, we're making a mistake. They're no less wise, intelligent, or concerned for the country than we are. But we do have a sound basis for being very angry with them--especially those who voted for Bush but who aren't committed social conservatives. What were they thinking? We need to be able to get angry at them without condemning them as stupid, shortsighted, or selfish.

November 02, 2004

Back from Ohio

I just returned from 13 hours of poll monitoring at a working-class precinct in Toledo, Ohio.

It was cold and rainy all day, but the turnout was still very high--perhaps higher than 70%. I've heard reports from Denver that despite bitter cold temperatures early this morning, there were still long lines of people willing to endure the cold to vote before work. The radio reports say that this kind of thing was happening across the country.

Today was the first time I've ever volunteered for any election activities; most of the other people who were volunteering with me at the same precinct also claimed to be volunteer virgins. And there were a lot of us--observers inside and outside the polls as well as "get-out-the-vote" teams and rovers moving from precinct to precinct.

This election was very important to a lot of people. And so far, it seems like the country is, if anything, even more regionally polarized than it was in 2000. If a state was blue last time, it's blue by a bigger margin this time around. Ditto for red states. The amount of common ground between the two parties seems to be shrinking. Regardless of how the major swing states go tonight, we're going to have to deal with this intensifying cultural divide for at least another four years.

I'm clear about which side of this divide I stand. So I'll probably be volunteering for more elections in the future, win or lose tonight. But election victories are only temporary, and they aren't conclusive. Lasting "victory" can only come through persuasion--either us of them or them of us. We've got to find some common ground. That, however, is a job for tomorrow.

Tonight, let's have a few big swing states tip for Kerry so I can start celebrating!

November 01, 2004

Thank you, Wal-Mart

Today's NYT reports that Wal-Mart, the nation's largest employer, provides health insurance to only 58 percent of its "eligible" work force. Full-time workers have to wait 6 months to become eligible, and part-timers have to wait 2 years. These rules, plus the high turnover in the service industry, explains why Wal-Mart only covers 45 percent of its total workforce.

And you wonder where the low prices come from.

In our euphemistically-called "system" of health care, employment is the surest route to health insurance. Except if you're employed by Wal-Mart. Since Wal-Mart is the employer everyone else is trying to emulate--gaining market share by slashing prices, which is only possible by slashing labor costs--our entire employment-based health insurance system is probably heading in the direction of Wal-Martization. Only 45 percent coverage, that kind of thing.

Before we condemn Wal-Mart, we should consider that it may be doing us a favor. If its growing refusal to shoulder the burdens of health care coverage for its employees leads us to reevaluate our employment-based insurance system, we might want to say 'thank you.' Economic conditions in this country have changed dramatically since employment-based health coverage was instituted on a large scale in the middle of the last century. Jobs are not as permanent as they were before, and employers are under more global competitive pressures to keep prices (and labor costs) low. It makes much less sense now to expect employers to be the ticket to health insurance for America's population.

If employers don't do it, though, who should? In my opinion, that's a no-brainer. The United States should try to have the courage to resist its fear of creeping Communism, and recognize that the government is the proper entity to offer basic, universal health coverage to all its citizens.

With Wal-Mart sending its employees to "the state" for coverage, this is quickly becoming a fait accompli.