July 02, 2004

Pinheaded lawyer miasma of doom

I was going to write about ERISA 502(a) preemption of state "patient protection" laws.

I was planning to argue against the HMOs' assertion that because they merely contract to pay for certain medical treatments, and do not make medical decisions, they should continue to be immune from consequential damages when that medical treatment is inadequate as a result of a negligent interpretation of the plan's coverage requirements. Then I was going to highlight Justice Ginsburg's concurring opinion in Aetna v. Davila, where she writes that--and I quote-- "fresh consideration of the availability of consequential damages under 502(a)(3) is in order."

But alas. I've changed my mind.

I know you're all terribly disappointed, but please let me explain myself. Although I'm sure some of you will disagree, I think I've found something more interesting to talk about:

Learning the law can turn a vigorous argument into a pinhead lawyer's miasmic dream.

Before I knew anything about the intricacies of ERISA, I thought about issues of HMOs and patients in "big picture" terms. I had no choice. The small details were all in ERISA 502(a)(1)(B), of which I was blissfully ignorant. I was limited to contemplating big questions, like "what should be the role of private health insurance companies?"

Now, though, I'm not an ERISA virgin. I'm an ERISA neophyte, and like all neophytes, I want to show off my knew knowledge. Now I have options--I can argue like I used to that a complete reliance on the private sector for basic health insurance is a public health failure, because some people will always drag down the profitability of every risk pool. The power of the market bends itself toward excluding these people from coverage entirely, leaving them without any insurance at all. Lyndon Johnson knew this, but today's conservatives seem to forget--willfully, I suspect. It's only one of the many things about the political right that perplexes me...

Ahem, uh, where was I? Oh, yes. ERISA. Now that I know something about the law, I can choose to either make the argument I just made, or I can show off my neophyte's knowledge of ERISA by arguing about whether the Court's reading of 502(a)(2) in Pegram v. Herdrich should be extended beyond staff-model HMOs to include most instances of prospective coverage decisions that result in inadequate treatment. Indeed, that's what I was originally planning to do in this post.

The problem with this show-offery is that can lead straight into the pinhead lawyer swamp of miasmic doom and despair. In other words, instead of asking fundamental questions about what the healthcare system should look like, I'm reduced to making pinheaded arguments about the minutiae of a system that I believe is fated to utterly collapse. This transformation is profoundly conservative, and I don't mean that in the pejorative, political sense of the word. It's simply that the law-student focus can shift one's attention away from the wide view of everything that's possible, and limit it to the smallest of incremental shifts in current doctrine and practice. That's what I mean by conservative.

I don't believe this narrowing of vision is inevitable, by any means. A knowledge of minute detail can inform and strengthen one's arguments about the bigger picture, and sometimes, small changes can lead to profoundly different results. But even if it isn't inevitable, I'm wary of the possibility that legal training can leave you stranded in the swamp, sinking hip-deep in the slime, with the biting flies buzzing in your ears and the cloying, miasmic odor of rotting putrescence turning your face a revolting shade of puce.

Posted by Carey at July 2, 2004 10:46 PM

Beginning to wish you could have your old mind back?


Posted by: Len Cleavelin at July 6, 2004 01:41 PM

At times, yes.

But then I realize that legal training isn't itself the problem; in fact, it's a great thing. The new ways of thinking and arguing are fantastic, but only if they're added to the old brain's repertoire.

The risk is that they could displace the old brain, and that would be terrible.

Posted by: Carey at July 7, 2004 10:13 AM