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March 31, 2005

No, not dead yet...

I got an email from a friend of mine yesterday asking whether I was still alive.

I'm assuming he was worried because I hadn't posted on my blog in a while. Well, I want to assure everyone that I'm not dead. Instead, I've been working hard at learning to shoot and run at the same time.

Although this fantastic game for the PS2 hasn't killed me, it may have put me into a PVS...

March 25, 2005

Banning internet access in class

There are rumors going around that some faculty members and administrators at my law school want to ban internet access in class. Again, at this point this is nothing more than a rumor, a whisper, a ghost of a shadow of a mist (or whatever that line was in that movie I can't remember).

I'm opposed to a rule banning internet access in class, for at least these three reasons:

  • It's overly paternalistic. (This is the weakest argument.) Bad enough that they insist on using EBB to prevent cheating on exams, instead of relying on an honor code.
  • How much money did they just spend to install all those wireless internet antennae in the classrooms last year? I know, sunk costs. But, sheesh.
  • A ban on classroom internet access won't change much of anything. (This is the strongest argument.) People still have their minesweeper; they still have their chess games.

I agree with Will Baude and find Raffi Melkonian's position unassailable:

Just because I have pitiful self control doesn't mean others should suffer, and I don't think it's part of a law school's pedagogical mission to cater to my weaknesses.

Hopefully, this ban-the-internet silliness will remain just a rumor, or I might be forced to write more about it.

(That oughta set those administrators straight...)

No words of comfort? None at all?

I'm disappointed that someone as erudite as Prof. Bainbridge feels that he has "no words of comfort to offer" to a person who sent an email to Bainbridge complaining that:

I now consider 1/3rd of our government, the unelected, permanent system of the courts, to be hostile to the good ....
"Hostile to the good?" The entire American court system? Does Bainbridge agree with this? If he does, I'd sure like to hear his reasons.


Catching up on my blog-reading today, I noticed the discussion between LMark and Denise over whether gender-reassignment surgeries should be an employment benefit for graduate student instructors. Neither of the two have completely persuaded me. I agree with Denise that these surgeries are usually, in all important senses of the word, necessary. But so far, Larry seems to have the stronger argument about coverage -- gender-reassignment surgeries seem to me exactly the kind of treatment that ought to be left uncovered when the choice is between covering them, and leaving some workers without medical coverage altogether. (This of course presumes that such an either-or choice actually exists. If we can find the political will to get control over some aspects of prescription drug pricing and to spend more public money on relatively inexpensive public health measures, it seems that we could find the money to cover gender-reassignment surgeries for the people who need them.)

Meanwhile, Steve Sanders puts his finger on what bothers me about Terri Schiavo's parents. Of course they love their daughter; of course they should vigorously fight for what they think is best for her. To say on CNN that Judge Greer was on a "crusade" to "kill" Terri Schiavo, though, is an indulgence that gets no sympathy from me. As Steve explains, that kind of rhetoric harms the rest of us by aiding religious extremists who show nothing but contempt for earthly law.

Nevertheless, if the Schindlers really believe that their daughter is still on this earth in that hospice bed, they have a reason to be upset with the results they've gotten from the judicial branch. Tom DeLay and Bill Frist are an entirely different story. Steve's post says it well; go read it.

I'm only slightly confused about one thing, though. Why would a rational fundamentalist right-winger really want to attack the legitimacy of the judiciary? If their electoral majorities were rock-solid, I can see the temptation, but it seems like the fundamentalists aren't dominating at the polls (yet). Surely they must fear the consequences of a delegitimized judiciary if their short run of narrow electoral successes were to come to an end. Any kind of political backlash will send them running to the judges like kiddies to their mamas. Are they so confident of the national mood that they're willing to risk everything on majoritarian politics?

Perhaps all those a.m. radio talk shows have gone to their head. They should try reading some liberal blogs sometime, just to remind themselves that there are still a lot of folks out here who still disagree with them. (Hell, they should just read some secular blogs -- plenty of conservatives still disagree with them too.)

March 23, 2005

New Yorker cites the wrong Scalia lecture

The latest issue of The New Yorker has an article about Antonin Scalia's Supreme Court opinions.

The author writes:

On a damp, cold afternoon in November, Scalia spoke at the University of Michigan Law School. Two hours before the lecture, the line extended down the steps of the school's auditorium.

* * *

At 4:30 p.m., Scalia strode heavily to the lecturn, his head thrust forward.

I attended Scalia's speech at the Law School, but I don't remember any lines extending down any steps. The author has evidently confused Scalia's law school lecture with his lecture the previous day for the entire University (which I also attended). That lecture was given several blocks away from the Law School in the Rackham auditorium, and did indeed have a long line extending down steps. This University-wide lecture was the one with the picketing students shouting "Two, four, six, eight, separation of church and state!" that are mentioned in the article.

My recollections are confirmed by the authoritative, live-blogged account of Justice Scalia's law school lecture, which was well underway sometime before 3:42 p.m.

Counting my blessings

I'm usually a pretty critical person, but every once in a while it'll dawn on me that I've got it pretty damned good.

Since these moments are so rare, I like to seize the chance to offer effusive but well-deserved praise. I'll return to my usual habit of focusing on constructive and helpful criticism soon enough. :)

Just this week, I've been lucky enough to be led through the morass of conflict-of-law rules by a brilliant teacher who knows what he's doing and who actually prepares for class; I've had the chance to follow the developments in the Terri Schiavo case with another brilliant teacher who takes the trouble to hold himself to the same high standards to which he holds us; I've heard about issues of federalism in the European Union from one of the judges on the European Court of Justice, which just isn't an opportunity that most people are ever going to have.

Whew. Some weeks just make you realize how lucky you are, and this has been one of them.

March 21, 2005

Feds intervene in Schiavo case

Via Howard Bashman, this ABC poll tells us that most folks, even evangelical protestants who split down the middle on the question of removing Terri Schiavo's feeding tube, oppose federal intervention in the case.

It might look like these numbers will prove Tom DeLay's grandstanding to be a political blunder. On the other hand, the poll doesn't measure the intensity of people's preferences, nor does it tell us how people will respond to these politicians' inevitable campaign rhetoric portraying themselves as "defenders of the culture of life."

Seems to me, this kind of rhetoric will be a lot more powerful on the campaign trail than the "I stood up against the inappropriate interference by Congress into issues which were none of its business" rhetoric.

The whole thing gets me thinking about federalism generally, and about the question of which entity should police the boundary between the states and the feds. The Schiavo case makes a strong argument that Congress isn't the best institution in cases like this. In order to pander to a few zealots on a particular substantive issue, the Schiavo case suggests that Congress will not act thoughtfully and deliberately to give voice to the less zealous but more widely-held opinions about the appropriate division of federal and state responsibility.

Anyhow, I'm sure we'll be seeing a lot of thoughtful commentary on this issue soon.

March 18, 2005

Pretty lights

Since I don't watch TV very much, I think I consciously notice a lot of things about a show that I'd just take for granted if I watched more often.

For example, this morning I had the opportunity (misfortune?) to catch a bit of FoxNews at the local coffeeshop where I did a bit of studying.

It's a very distracting way to get your news. First, there's a lot of cutting between scenes and speakers. You never spend too much time continuously with one person or place or thing. Next, you're often trying to listen to one guy while watching a cool video clip and reading whatever's scrolling across the bottom of the screen. Third, the producers often make the distraction worse by splitting the screen up into three or four little boxes, one of which shows the host, another shows the guest, a third shows a cool video clip, and the fourth (the background) shows some moving graphic or series of shifting colored lights. Add in the scrolling words across the bottom and it's a really pretty thing when seen from a distance. Pretty, but distracting.

It's been said before a million times, but it seems obvious that a medium like this would have a very hard time conveying anything that required sustained concentration to understand. "Man dies. President speaks. Defendant convicted." Stuff like that might survive all the pretty lights, but what about an argument about Social Security? No way would anything other than "private accounts good" or "private accounts bad" seep through all the distractions.

How many hours do people spend watching news shows on TV? How many people get their news primarily from the TV? I'd like to see a study relating people's understanding of political controversies to their relative dependance on TV news shows. My suspicion is that the more TV news we watch, the less we understand what we're watching.

March 16, 2005

What's really at stake in ANWR

The Senate is once again about to vote on whether to allow drilling for oil in the Arctic National Wildlife Refuge. We should remind ourselves of what's at stake.

It isn't oil. The Bush energy department forecasts that ANWR might reduce foreign oil imports from 68 percent of our national requirements to 65 percent during the years of maximum production. The smallest efforts to improve fuel efficiency would have a much greater effect.

It isn't caribou. Although the political taint over the issue makes most information on the effects of drilling on the caribou population hard to evaluate, it's not clear that small-footprint drilling will substantially harm the herds.

What's really at stake in the ANWR controversy is the future of wilderness. If our nation will not exercise the moderate restraint required to preserve ANWR as a place where people can experience the natural world as it existed before people were able to modify it as they wish, then there will soon be no such place left on Earth. Everywhere we look, we will see ourselves.

More importantly, drilling in ANWR would amount to a declaration that our civilization does not value wilderness above any other competing value. Even the flimsiest of suggestions that the land might be put to some moderately profitable alternative use will be enough to override wilderness protection.

This, in my opinion, is an appropriate attitude for barbarians. The hallmark of a mature and well-functioning civilization is its ability to show restraint, as opposed to more primitive and less-successful societies that must take advantage of every opportunity to expand or be threatened with extinction. Senator Pete Domenici and other supporters of drilling in ANWR act as if we were still a barbarian society.

Sadly, they might turn out to be correct.


By a vote of 51 to 49, Republicans defeated an effort by Democrats to eliminate the drilling language from the budget. The vote does not ensure that drilling will be approved. But if the budget is adopted, Senate rules would allow the passage of a measure opening the refuge with a simple majority of 51 votes, escaping the threat of a filibuster, which has killed it in the past.

* * *

Three Democratic senators, Mary Landrieu of Louisiana and Daniel Akaka and Daniel Inouye, both of Hawaii, joined 48 Republicans in endorsing drilling today. Seven Republicans joined 41 Democrats and Senator James Jeffords, independent of Vermont, in opposing it. Those seven were John S. McCain of Arizona, Norm Coleman of Minnesota, Mike DeWine of Ohio, Lincoln Chafee of Rhode Island, Gordon Smith of Oregon and Susan Collins and Olympia J. Snowe, both of Maine.

(See Julie Saltman.)

No credibility? Big deal.

The New York Times' editorial response to the Bush administration's aggressive distribution of fake news reports strikes me as off-the-mark:

If using pretend news is one of the ways these stations have chosen to save money, it's a false economy. If it represents a political decision to support President Bush, it will eventually backfire. This kind of practice cheapens the real commodity that television stations have to sell during their news hours: their credibility.

Will the television stations really lose that much credibility? I'm inclined to think not.

The 2004 elections demonstrate that the public doesn't put too much independent value on being told the truth. We knew before the election that the Bush administration's arguments for invading Iraq depended upon highly speculative evidence that was sold as "slam-dunk." Dick Cheney repeatedly suggested that 9-11 was much more closely tied to Saddam Hussein than it in fact was. This lack of truth-telling (ok, lying) was not enough damage the president's credibility in any way that mattered.

The same might be said for Bill Clinton in the Monica Lewinsky scandal. Sure, he lied, but the public doesn't seem to have held it against him.

Maybe, though, politicians and presidents can't be compared with television news stations on the issue of credibility. Dan Rather's faulty report for CBS about Bush's national guard service may have have hurt his credibility far more than any overzealous interpretation of tentative intelligence seems to have hurt Bush -- at least if you believe what what you read in the blogosphere.

I suspect, though, that CBS' credibility won't suffer too much in the long run. FoxNews, after all, continues its crusade against journalistic standards without any public uproar, and certainly without much public rejection. Ultimately, television news is probably no different from politicians. Both have so little credibility left to lose that they need not fear losing any.

What really counts, for both politicians and news organizations, may be whether or not they make the public feel good about themselves. In a consumer culture like ours, where we expect everyone to be a salesman and treat every thing as a product, the only thing that counts is whether the product makes us feel young, pretty, loved, strong, or righteous. We don't expect the real thing, but we do require the feelings.

Bush, Clinton, and FoxNews all seem to be able to do this despite their lack of credibility. Whatever the source of television news stations' success, I don't think the Bush propaganda pieces are going to wipe it out.

March 15, 2005

AHP bill expands feds' power

Today promises to be another busy day.

In these few free moments I'd like to send you all to Nathan Newman's warning about the creeping federalization of health care policy.*

What's the next legislative atrocity coming down the pike from the GOP Congress? So many to choose from, but a sleeper is H.R. 525, labeled the "Small Business Health Fairness Act of 2005," which has a committee hearing this Wednesday. With a name like that, you know evil's afoot and the plan here is to exempt more health insurance plans from state regulation.

* * *

This bill is so bad that thousands of organizations oppose it, including the Republican Governors Association.

*WARNING: those of you allergic to ERISA should premedicate yourselves first.

March 14, 2005

Colorado's quarter

Colorado Luis points us to this page showcasing all the candidates for the new Colorado state commemorative quarter, scheduled to be released in 2006. My favorite esthetic design is the maroon bells with the big "C" below it:

However, since I grew up in Colorado Springs, looking at Pikes Peak every day, I'd love it if the view I'm so familiar with winds up on our quarter:

The feeling would be comparable to discovering that New Line Cinemas was spending $300 million to make a film version of The Lord of the Rings.

March 13, 2005

HIPAA: train wreck?

Seems like people in small towns don't like HIPAA because it mandates too much privacy, while at the same time, the plaintiffs in this Third Circuit case don't like HIPAA because it provides too little.

Me, I haven't looked too closely at HIPAA yet. My curiousity has been piqued.

March 12, 2005

Dave Kopel needs a chill pill

Take a look at this language from one of the Volokh Conspiracy's "lesser co-bloggers" in his latest Ward Churchill rant in Denver's Rocky Mountain News:

Why did the University of Colorado Arts and Sciences administration continue to promote and laud Churchill after the late- 1990s publication of professor Thomas LaVelle's articles alleging extensive academic fraud and plagiarism on Churchill's part? Are there other academic frauds and plagiarists at CU whom the administration has protected? How did CU become such a racist institution that a patently unqualified man was pushed for tenure in three departments because he claimed to be an Indian? How many other poorly-qualified teachers have gotten jobs at CU, based on their ethnicity or their pretended ethnicity? To what extent does the extreme left dominate hiring at CU, so that highly qualified applicants for teaching positions are rejected, whereas politically correct hacks get the job? How often do other CU teachers act like Churchill allegedly did by punishing students for expressing opinions contrary to the teacher? Has CU protected other teachers who have been credibly accused of making violent threats and/or perpetrating on- and off-campus violent crimes against people who disagree with them?

Thank goodness Dave Kopel doesn't chair a Senate committee with subpoena powers.

Kopel's incessant screeching about Churchill does make two good points. Kopel is probably right to worry about a double-standard among some CU faculty members when it comes to preserving academic freedom. I also agree with Kopel that it would be a disaster if the University of Colorado were to buy out Ward Churchill. This kind of spineless decision would waste taxpayer money and damage the school's credibility; the Churchill case is too politically charged for the University's Board of Regents to weasel out the side door with a buyout offer.

However, these high-profile public demands that Ward Churchill be terminated are the very reason why the University's Board of Regents should do the exact opposite of what Dave Kopel suggests. The Regents should not fire Ward Churchill so long as politically-motivated bloggers like Kopel (and more importantly, the Governor of Colorado) continue to howl for his head on a pike. No matter what the investigation into Churchill's alleged "scholarly fraud" reveals, to fire Churchill after an investigation that was initiated solely in response to criticism of what he said and wrote would do serious damage to the valuable tradition of free and open speech on campus.

If the investigations confirm what are now merely "credible accusations" (in Kopel's words), then Ward Churchill will be revealed as a fraud before the whole world. There will then be other ways to discipline Churchill, as Dave Kopel recognizes:

One can imagine all sorts of sanctions which the CU Regents might impose short of firing. For example, Churchill could be barred from campus until he successfully completes a therapy program for his inability to control his anger. He could be ordered to write formal retractions of the various academic frauds he has perpetrated. He could be ordered to pay full compensation to the copyright holders for the various works he has plagiarized.

Unless Kopel wants to make some really wacky argument that all the universities are crammed with complete idiots as well as adherents of the far-left, Churchill will suffer for any fraud he may have committed--if in fact the accusations turn out to be true.

But if the Regents fire Churchill, then the lesson for ideologues on both the right and the left will be that witchhunts work. Don't like what Professor X wrote? You might not be able to get him fired for that, but if you dig hard enough into his past for varied and sundry transgressions, and call for his head loudly enough and often enough on the internet, you might eventually get him fired for something. Better yet, if the Governor thinks he can score some cheap political points by pandering to the current majority and publicly advocating his dismissal, your chances are even better.

I don't think it's an unreasonable worry that this kind of climate might chill the willingness of professors to speak unpopular opinions out loud. The CU Regents need to boldly and publicly defend the value of academic freedom, because majorities are sometimes wrong. Even overwhelming majorities are sometimes overwhelmingly wrong, and we need to protect the freedom of at least some part of our society to say so when it happens.

As David Velleman explains, the decentralized system of publishing papers and awarding tenure occasionally results in mediocrities getting tenure. Ward Churchill may be one of these; he may even be a fraud. Were people like Kopel and Governor Bill Owens to keep silent, firing Churchill for fraud and plagiarism might not be the worst decision a University ever made. But, as David Kopel so regularly reminds us with his overheated and McCarthyesque rhetoric about the dangers of the far-left's influence over the CU campus, firing him in this situation would be a de-facto capitulation to a politically-motivated witchhunt. That would be far worse for this country than allowing a questionable professor to remain at his post. The more David Kopel complains, the stronger the argument for not firing Ward Churchill.

March 10, 2005

Rise to xoxo's defense!

Prof. Volokh has the right response to another law professor's suggestion that the managers of xoxohth.com "clean up" the pre-law discussion board's content.

Yes, there's a lot of ugly and racist comments on that board. But as a formerly active participant on xoxo, I can say that the people posting such statements are thoroughly and routinely ridiculed as complete idiots by the majority of posters.

That doesn't seem to happen as often at some of the other places where these racists hang out online. Censoring the racism won't make it go away; it will shift it to other places where it's harder to see and where it might find a more hospitable reception.

As for this other law professor's suggestion that it might be a good thing if the xoxo participants were "encouraged to move to the more mature and civil prelaw sites," I say no way.

Before I started law school, I posted on the former incarnation of xoxo (which was then run by the Princeton Review) because it was a wide-open and mostly unmanaged discussion. In one sitting I could have the most sober and serious conversations as well as the most silly and immature bullshit sessions, all with the same group of people. The other, more "mature" boards were by comparison intellectual wastelands, partly because they were so "sober" and "mature." All the really smart people shunned those boring boards in favor of pr (now xoxo).

Bottom line: don't be messin' with my xoxo board until you really understand it. (Because when you do, you'll love it and won't want to change it much. Unless you're a rancid TTT.)

UPDATE: Anthony Ciolli and Jarret Cohen of xoxohth.com have responded, and Volokh has posted it. A taste:

The very reason our student-run community has been so much more phenomenally successful than all of its competitors, in its single year of existence, is that it respects the merits of the free, uninhibited exchange of ideas. In fact, one finds overall a much deeper and much more mature level of insight in a community where the ugliest depths of human opinion are confronted, rather than ignored. And the majority of the school-related content on the site speaks to that fact. That is our community; take it or leave it.

March 09, 2005

Just thinkin'

So, if the Supreme Court overturns the 9th circuit in Gonzales v. Oregon, what happens next? Would that ruling effectively kill (pardon the pun) Oregon's Death With Dignity Act?

Could Oregon physicians help people commit suicide without using controlled substances? Could they just inject people with potassium chloride without premedicating them with sedatives? Would that be humane?

Are there any sedative drugs not under the control of John Ashcroft and his successor, Alberto Gonzales? Just wondering...

The problem with "progressive"

As the right flexes its muscles in Washington, putting the screws to the American middle class, the left is still wondering why so many working families in the heartland continue to support Republican candidates. As a left-wing agrarian, I offer some modest commentary upon the failures of the American left.

Berkeley scholar Lillian B. Rubin (via A&L Daily) rejects the "Thomas Frank" approach, which she says blames voters for their failure to understand their own interests. (On Frank, see Steve Sanders.) Instead, Rubin explains the left's failure with what I'll call, perhaps unfairly, the "Joe Lieberman," the "DLC," or the "David Brooks" approach. Basically, the left is in the weeds because of its insistence on political correctness and its unwillingness to listen carefully to its critics.

Rubin's piece is much better than I'm making it sound. She is correct that the left's infatuation with political correctness (if not with identity politics generally) has been crippling. She does not, as do Brooks and Lieberman and others of their ilk, suggest that the left should back away from its fundamental positions and compromise with the fundamentalist right.

However, I do think Rubin fails to explain why the left has been so ineffectual. After all, the right has made the exact same mistakes, but it has not been made to pay for them. Why? The right's pet mantras inaccurately describe reality (just like the left's), and the right-wingers have perfected the art of selective deafness to citizens' concerns (perhaps more so than the left). I'm looking to solve the symmetry problem here, folks: I want an explanation of the left's failures that explains why the right's identical behavior hasn't led it into the same trap.

Here's my own best guess. We start by assuming that the majority of people want stability first, and improvement second. No sense putting the cart before the horse, we say.

Next, we recognize that the past few decades have been enormously unstable. Social norms have been revolutionized by the liberation movements of race, class, gender, and sexual orientation. The economy has been revolutionized by globalization, technology, and massive deregulation. This instability has been severe enough to lead the majority of people to focus most intensely on security, and much less so on innovation. (See, for example, this book.)

Finally, we note that while both the left and the right have recognized this instability and have tried to address the need for stability and security, they've talked about it in different ways. Very simply, the right has told us that they support stability. The left hasn't talked about it as much.

The right has made preservation and continuity the centerpiece of their rhetoric, while the left has continued to rely on the rhetoric of change and improvement. Both sides have, of course, continued to work for the kind of changes that they prefer. But while the right has described this work as "preservation" (of tradition, of morality), the left has continued to describe their work as "progressive." People don't want progress until they feel secure. They don't want to fall two steps back with each step forward.

I'm not saying that both sides haven't talked about change and progress. I'm saying that the left has emphasized it more than the right has. I'm also not saying that the left hasn't talked about preservation of worthy things from our past; I'm only saying that the right has talked about it more. Much more.

If I'm right, both about what voters want, and about what the left and right have been saying, the next steps are obvious.* The left must talk more about stability and security. This does not mean that it must talk about "traditional values" as they've been defined by the right. Instead, they need to talk about protecting the nation from the radical changes that the fundamentalist right is proscribing: removing economic security, aggressively eroding local communities in favor of corporate-style globalization, polluting our entertainment culture with Rupert Murdoch-style crap like Bill O'Reilly, Rush Limbaugh, and Sean Hannity.

They can do all of this without, as the Clintonistas at the DLC suggest, surrendering their commitment to equal rights, protection of the disadvantaged, etc. The right has demonstrated that radical changes can be sold as tradition. Perhaps a fairer way of putting this is that all the innovations pushed by the right wing have been justified by appealing to their connection with tradition: the tradition of family, the tradition of personal responsibility, the tradition of authority.

The left's innovations are also connected to tradition: the tradition of human dignity, the tradition of autonomy, the tradition of justice.

It's not a matter of deceiving anyone. It's just a matter of recognizing that the rhetoric of "progressiveness" isn't going to carry you very far when people are watching the world collapse around them.

March 08, 2005

AMA, is this all you can do?

I was browsing the web tonight and got an unwelcome pop-up ad from an organization calling itself the "Patients' Action Network." It was the straw that broke the camel's back -- now I'm fed up and pissed off.

I'm one of those people that believe the medical malpractice system needs to be reformed. I also think that the AMA has embarrassed itself over this issue. Just at the time when real leadership is badly needed, especially from physicians, the AMA is abdicating its responsibilities to the nation and behaving like just another narrow special interest group, grubbing for money and pleading for special liability protection.

Case in point, this web site.

The AMA-sponsored "Patients' Action Network" lauds its own site as "an excellent resource for finding out all the critical health care issues facing Americans, including medical liability reform, the Medicare crisis, and more."

But all the website really tells us about medical liability reform is this, and all it tells us about the "Medicare crisis" is this and this.

Go ahead, click on the links. There's virtually nothing there. The AMA could be exercising real leadership, but instead it's just telling us to do two things: rein in "overzealous personal-injury attorneys," and pay doctors more money.

No leadership here, folks. Zilch. Nada.

The AMA has, of course, other websites. But they aren't significantly better on these two issues than their "Patients' Action Network" propaganda piece. That's not surprising. At a time when the public is justifiably concerned about medical errors and the rising costs of health care, the nation's major physician organization is acting like the base, self-interested special interest group that its worst critics accuse it of being.

I wonder why more physicians aren't embarrassed. I suspect many of them just aren't educated enough about either issue to notice the AMAs abdication of responsibility. But there are plenty of others, I suspect, for whom the AMA's short-sighted bawling for more money is just what the doctor ordered. They see no problem with the AMA as just another lobbyist, especially when it lobbies for them.

But the AMA is more than a lobbyist. It has more responsibilities than just sticking up for doctors. The nation has granted the medical profession a substantial amount of discretion to police itself, and much of this policing is performed through the AMA. In exchange for this deference, the AMA owes it to the nation as a whole to exercise real leadership on issues related to the practice of medicine.

Physicians like to complain that the medical profession's traditional perogative to police itself has been eroded. If the AMA continues to act like the American Used-Car Dealers' Association, this erosion will likely continue.

March 07, 2005

Conservative ideology: a post for Nick

I'm neither conservative nor liberal. Instead, I like to call myself an agrarian.

My friend Nick from med school is one of the few people who understands what this little idiosyncracy of mine really means. Nick's a bit more conservative than I am, but even though we don't agree about every little detail, I suspect that he sympathizes with my position, as I do with his.

Anyway, one of the things Nick and I usually enjoy arguing about is the relative worth of Pat Buchanan's brand of conservatism. So I thought I'd post the link to this essay for Nick and anyone else who might be interested:

But historicist contempt and ignorance of economics does not alter the fact that inexorable economic laws exist. You cannot have your cake and eat it too, for instance. Or what you consume now cannot be consumed again in the future. Or producing more of one good requires producing less of another. No wishful thinking can make such laws go away. To believe otherwise can only result in practical failure. "In fact," noted Mises, "economic history is a long record of government policies that failed because they were designed with a bold disregard for the laws of economics."

In light of elementary and immutable economic laws, the Buchananite program of social nationalism is just another bold but impossible dream. No wishful thinking can alter the fact that maintaining the core institutions of the present welfare state and wanting to return to traditional families, norms, conduct, and culture are incompatible goals. You can have one—socialism (welfare)—or the other—traditional morals—but you cannot have both, for social nationalist economics, the pillar of the current welfare state system Buchanan wants to leave untouched, is the very cause of cultural and social anomalies.

(Via Conservative Philosopher.)

My reaction: despite all my criticisms of Buchanan, these two paragraphs alone (and in context!) demonstrate that the free-market fundamentalists are a much sillier bunch of people.

Antitrust violation?

Pfizer Stirs Concern with Plans to Sell Heart Drugs Only as Pair (NYT)

* * *

Pfizer's plan might seem to violate antitrust law, which can prohibit companies from "tying" products together or refusing to sell one unless customers buy another. But antitrust lawyers said the company's plans were legal, as long as the F.D.A. approved the drugs in combination.

"It's the F.D.A. that's doing the tying," said Herb Hovenkamp, a law professor at the University of Iowa. "Assuming the F.D.A. accepts Pfizer's test results and certifies this drug only when it's taken in conjunction with Lipitor, then that would then become the government's restraint, not Pfizer's restraint."

We should find out what percentage of the development costs of torcetrapib were paid for with taxpayer money and NIH grants before we let either Pfizer or the FDA off the hook on this one.

March 04, 2005

Health Literacy

[H]ealth literacy can save lives, save money, and improve the health and well-being of millions of Americans … health literacy is the currency of success for everything I am doing as Surgeon General”

--Surgeon General Richard Carmona (2003)

The one panacea that nearly all Americans believe in is individual choice. There's no social or political or economic ailment that we think can't be cured with a devolution of more decision-making authority to the individual. Hence our love of free-market economics, and our obsession in bioethics with "autonomy."

Both of these obsessions are animating our most recent attempts to restrain our skyrocketing health care costs. If we can only give individuals more "say-so" over their health care, costs will plummet and quality will go up. Despite the rich supply of international examples demonstrating that a modern society can get better health outcomes for less money when the government takes a more active role in insuring all its citizens' health care, and in monitoring its quality, we Americans find it easy to dismiss such examples in favor of our home-grown cure-all: more individual choice. MSAs, defined-contribution plans, more effective advertising of doctors' and hospitals' performance histories, private Social Security accounts, direct-to-consumer drug advertising -- all these policies and more are designed to provide information to the health-care consumer so that they can make the decision for themselves, and by doing so, improve health-care quality and lower its cost to boot.

Ah, panaceas. Hope does spring eternal.

No doubt that individual choice, in some if not most contexts, is the best possible aspiration we can have. The problem with aspirations is that sometimes they don't match up with reality. The fact is, many people (including myself) just aren't well-enough informed (for many different reasons) to exercise the kind of individual choice that we believe will cure all our health care ills. Some observers have noted this problem, and have curiously referred to it as a lack of health care "literacy."

A 29-year-old African-American woman with three days of abdominal pain and fever was brought to a Baltimore emergency department by her family. After a brief evaluation she was told that she would need an exploratory laparotomy. She subsequently became agitated and demanded to have her family take her home. When approached by staff, she yelled “I came here in pain and all you want is to do is an exploratory on me! You will not make me a guinea pig!” She refused to consent to any procedures and later died of appendicitis.

This vignette comes from a report issued by the National Academies Press called "Health Literacy: A Prescription to End Confusion." The authors are rightly concerned that although "health consumers" are being asked to make ever-more complicated choices, "over 300 studies have shown that health information cannot be understood by most of the people for whom it was intended...." The vignette is misleading because it suggests that health literacy comes down to teaching everyone the meaning of the word "exploratory." But this general illiteracy isn't the real problem. The real problem is that each of us is being asked to make more and more complicated decisions that are difficult for even the most highly educated among us to make. A few weeks ago I asked for some information from an insurance company about an HSA. Heath Savings Accounts are all the rage these days as a way to "empower consumers" to "take control" of their own health-care spending decisions. When I got the information in an email, I couldn't understand it. Sorry. I know, I have an MD; I'm about to get a JD; I've been around and seen some things. But this HSA stuff was just plain confusing.

It's a testament to the power of our belief in individual choice that the report's authors blithely assume that our health illiteracy can be corrected (usually by another beloved American panacea, education). Another possibility -- that these 300 studies reveal the inherent limits of our individualist approach to solving all our health-care problems -- isn't considered.

Perhaps you'll get a sense of how futile correcting our collective "health illiteracy" might be when you read some of the report's specific "visions" for a health-literate America:

  • everyone has the opportunity to improve their health literacy.

  • people are able to accurately assess the credibility of health information presented by health advocate, commercial, and new media sources.

  • health practitioners communicate clearly during all interactions with their patients, using everyday vocabulary.

  • rights and responsibilities in relation to health and health care are presented or written in clear, everyday terms so that people can take needed action.

Ok, and no one should ever sleep late, the Cubs should win all their games, and the stock market should go up continuously forever. Anyone who pays any attention at all to the real world will realize that these visions are either utopian, or they're trite and silly.

Robert M. Fineman's overly-indulgent review of this report in this week's New England Journal of Medicine says more than its author seems to know. "Although it is a minor point in a review of this outstanding contribution to the public health literature, I believe that an almost Talmudic-length commentary is needed to describe the assessment, policy development, assurance (implementation and evaluation), infrastructure, and capacity-building activities and resources needed to end the confusion regarding health literacy in the United States today." Since "ending the confusion" would amount to describing how normal human beings might be remade into superhuman health care consumers, I suspect the commentary would have to be a lot longer than even the Talmud.

You won't find me holding my breath waiting for the "health literacy" crowd to produce any such thing.

March 01, 2005

"Blog People" give ALA president Gorman the smackdown

Apparently, some of the criticism that bloggers have leveled at Michael Gorman has gotten under his skin.

Gorman is the president-elect of the American Library Association. He wrote an op-ed piece for the LA Times on December 17, 2004 suggesting that Google's plans to digitize the collections of several large libraries (including the U of M's) was, among other things, an "expensive exercise[] in futility." Kevin Drum, in true blogger style, responded to this poorly-argued piece by calling Mr. Gorman "an embarrassment to [the librarians'] profession."

While Drum's comments might have been a bit hyperbolic at the time, they seem less so now. Gorman's response to his critics in the blogosphere suggests that he may in fact be an embarrassment to librarians everywhere:

It is obvious that the Blog People read what they want to read rather than what is in front of them and judge me to be wrong on the basis of what they think rather than what I actually wrote. Given the quality of the writing in the blogs I have seen, I doubt that many of the Blog People are in the habit of sustained reading of complex texts. It is entirely possible that their intellectual needs are met by an accumulation of random facts and paragraphs. In that case, their rejection of my view is quite understandable.
To which the author, blogger, and friend of the ALA Neil Gaiman responds:
On the other hand, I feel the love diminishing a tad when I read an article by the president-elect of the ALA, and find myself unable to decide whether it's mostly that a) he's simply a very, very bad writer, or b) he lacks any skills of a diplomatic nature, or it's just c) he really believes that statements like "Given the quality of the writing in the blogs I have seen, I doubt that many of the Blog People are in the habit of sustained reading of complex texts" are somehow going to disabuse people who keep blogs, journals and such from believing or repeating the calumny that "Michael Gorman is an idiot" (someone apparently said this on a blog, he tells us, expecting us to feel an outrage on his behalf I somehow wasn't able to muster). (Surely, if you're upset that someone called you an idiot, the wisest course of action would be not to write an odd screed that will itself convince many people who haven't heard of you before reading it that this is in fact the case.)
Whatever the Blog People's faults might be, they have some things to teach Michael Gorman about the values of a thick skin and the avoidance of overbroad generalizations.