June 30, 2004

Waging "war" (v.2)

Because fighting a war is so significant a thing, we shouldn't cheapen the word by casual overuse or calculated misuse.

The discussions surrounding this week's Supreme Court review of Bush's "wartime" detentions of "enemy combatants" make it clear that when national security is at stake, much of the daily civilian law that we take for granted is liable to change in fundamental ways.

This is as it should be. Which is why we must not allow the words "national security" and "war" to mean just about anything, which is what some supporters of the Bush administration have been far too eager to do -- whether out of intellectual laziness, a giddy attraction to fascism, or overweening fear.

AlQaeda, for all its spectacular and murderous "success" on 9-11, has never threatened our national security. The terrorists have threatened American citizens; they continue to threaten American citizens; but they have never threatened America.

AlQaeda has never even come close to threatening America's consumer lifestyle, let alone our national security. Back in the last real national-security war that America fought, World War II, our national security demanded that we sacrifice our preferences for keeping women in the home and put them to work in factories building fighter planes instead. An equivalent national security threat today might lead our government to actually discourage our wasteful oil consumption, or some other such liberating but unpopular adjustment to the demands of war.

If there's one way AlQaeda has been able to actually threaten the national security interests of the United States, it's in the way their attacks have caused the American people to glibly swallow the notion put forward by the opportunists in the Executive Branch that we're at war. And because we're at war, say the opportunists, the special features of America that make our nation worth protecting have suddenly become too burdensome. The notion of limited executive power? Obsolete! And despite the fact that the Supreme Court has simply said that the Executive must provide some justification for detaining citizens incommunicado other than just their word on it (cross my fingers, hope to die, Iraq has WMDs I swear) some conservatives are only able to see the "tyranny" of the judiciary.

This emperor has no clothes, and his dog doesn't hunt. We are NOT "at war."

Posted by Carey at 11:59 PM | Comments (1)

I love the New Yorker

From this week's Shouts & Murmurs, "A Prayer" by Paul Simms:

Well, that's about it, Lord.

Actually, as long as I've got You, let me just mention a few final ways for me to die that may or may not seem funny to You, depending on Your sense of humor.

I would rather be burned beyond all recognition than burned almost beyond all recognition, especially if the pictures are going to end up on the Internet.

If some kind of rare organism eats away at my body from the inside, please let it be microscopic. Or just slightly larger than microscopic. Let's put it this way: if it's big enough to have a face, that would be too big.

Thank You for Your time, Lord.

Posted by Carey at 11:05 PM | Comments (0)

Call me an asshole, but . . .

"Fahrenheit" is spelled with a silent h.

This goes for you too, Nicholas Kristof. Thankfully, your editors have caught it by now.

Everyone else, hie thee to your blogs and edit them!

Posted by Carey at 07:32 PM | Comments (2)

June 28, 2004

Psst... it's a metaphorical war

Today's series of Supreme Court decisions defining the breadth of Executive Branch discretion over who is held incommunicado where and for how long, is ably summed up elsewhere.

Having little to add to the analysis of the Court's opinions, I'll throw in my two cents about the Blogosphere's opinions, which appear predictably to be divided between the Left, who support limits on Executive discretion, and the Right, who seem not to mind at all.

My goal -- and I'm not sure I've succeeded -- is to try to explain why I think this discussion is laced with absurdity. It's all very rational and learned; don't get me wrong. It's just that I keep thinking that somehow we're arguing about the wrong things. Or rather, that we're not arguing about enough things.

There's an unexamined premise that needs digging up -- before we can decide whether today's Supreme Court decisions are worthy of celebration or scorn:

"We are at war."

We're at war with Afghanistan. We're at war in Afghanistan. We're at war with insurgents in Afghanistan, although the government there is our ally. We were at war in Afghanistan, and that war was fought by the prisoners held in Guantanamo. So we're still at war with them, although they're in custody. If we release them, the war in Afghanistan will flare up again, because the people we were at war with will return to Afghanistan and restart the war.

We're at war with Iraq. We were at war with Iraq, but the government that we were at war with has been replaced. We took over the country, but now we've transferred sovereignty back to the Iraqis. Our troops can't leave because they're needed to provide security.

We're at war with Al Qaeda. We can't tell if we're winning or not. Tom Ridge raises the alert level to yellow from time to time. Al Qaeda wants to kill Americans. They've already killed several thousand on 9-11. Before 9-11, we were at war with drugs. Drugs have already killed thousands of Americans.

We're at warwith Terrorism. We can't tell if we're winning. We don't know whether we'll ever defeat Terrorism. Maybe John Ashcroft will tell us when it's over, and whether we've won or not. Maybe he won't.

Posted by Carey at 11:45 PM | Comments (4)

June 26, 2004

Todd Bertuzzi charged

Proving that hockey violence does have limits, criminal charges have been filed in Vancouver against Todd Bertuzzi for attacking Colorado Avalanche player Steve Moore.

Posted by Carey at 07:31 PM | Comments (2)

June 24, 2004

milking aphids

Do the people lead, or do they follow?

It's not easy to tell sometimes. For example, the people of Colorado gave U.S. Senate candidate Mike Miles the victory in the Democratic State Assembly, which means that Miles' name will appear first on the August primary ballot. Nevertheless, the web page for the Democratic Senatorial Campaign Committee doesn't even acknowledge that Mike Miles exists. Well before the primary, the DSCC is pretending that the race for U.S. Senate in Colorado is between state attorney general Ken Salazar and the eventual winner of the Republican primary.

The DSCC, led by a bunch of current Senators, is of course free to support any candidate it wants to. It can pretend that Ken Salazar has already won the primary election. But instead, DSCC spokesman Brad Woodhouse (never trust a man named Brad) defends its snub of Miles by arguing that, really, the outcome of the primary is not in doubt, and that to acknowledge the reality of Mike Miles' existence would be ignoring reality. This sounds more surreal to me the more I think about it.

Most of us think that in this country, "the people" rule. That's what it means to be a democracy, right? After all, in an election, "the people" "choose" the winner, who becomes a public "servant" who "does the will of the people" while in office.

All of this isn't entirely true, of course. The people follow, most of the time, and the most successful politicians are those who groom their constituents most effectively, like a shepherd tends his sheep, or an ant milks his aphids.

The DSCC is milking their aphids in Colorado. The Commission on Presidential Debates was milking aphids when it refused to allow Ralph Nader to debate George W. Bush and Al Gore. "Come on little aphids," say the political elite, "give us your sweet honeydew, by selecting from among the wonderful alternatives we've provided for you."

And the people lead, by making "their" choice.

Posted by Carey at 07:20 PM | Comments (1)

June 23, 2004

Baby chickens

Pictures of cute baby chickens.

Posted by Carey at 11:55 PM | Comments (1)

Anonymous law student notes

Good discussion on anonymous Notes from the Harvard Law Review.

Posted by Carey at 11:33 PM | Comments (0)

Colorado politicians: nothing to be proud of

Usually, the Colorado delegation in the U.S. House and Senate is invisible.

Unfortunately, Colorado's delegation seems to emerge from obscurity only to garner more than their share of embarrassment and ridicule, as exemplified by the recent posturing over gay marriage.

Marilyn Musgrave, a congressional lightweight, has finally been able to grab some media attention by sponsoring a House bill to amend the Constitution to ban gay marriage. The idea is either so trivial, or so constitutionally flippant, that it can't even win support from conservative Rep. Bob Barr, who notes that the Defense of Marriage Act hasn't been found unconstitutional (yet).

And which statesman has sponsored this featherweight legislative idea in the Senate? Yep, Colorado's Republican Senator Wayne Allard, whose other job is to serve as one of President Bush's automatic Senate supporters, no matter how ridiculous the proposal.

Maybe one of these days, Colorado voters will elect a real statesman to either the House or the Senate. But their recent track record doesn't suggest that such a deed is imminent.

Posted by Carey at 11:14 PM | Comments (0)

June 22, 2004

Two Buck Chuck

Recently, it was reported that a two-dollar bottle of wine had won a prestigious double-gold medal at the 21st annual Eastern Wine Competition. The wine is a 2002 shiraz from Charles Shaw, and it's sold at Trader Joe's. Although it won the medal, it narrowly missed winning best-in-category, losing out to a wine that costs $50.

Well, I'm tossing back a glass of the Charles Shaw Merlot tonight, and it tastes pretty good to me. (I've somehow got the urge to go spend $48 on really good cheese.)

In other news, I saw my first snake of the year today, when I was biking the Potawatomi Trail northwest of Ann Arbor. Summer must really be here. Now, where are those damned turtles?

Posted by Carey at 08:54 PM | Comments (3)

June 21, 2004

Do HMOs practice medicine?

The Supreme Court didn't actually decide that question today. Its ruling in Aetna v. Davila (consolidated with Cigna v. Calad) that a patient who developed bleeding ulcers requiring the transfusion of seven units of blood and five days in a critical care bed could not sue his HMO under a Texas patient's rights law does, however, lead one to ask the question again.

Rather than summarize the holding, I direct you to the SCOTUSBlog*, and to the Health Law Blog, both of which have good summary links and commentary.

Most observers seem to think the Court "got the law right" (which I hope is true given the 9-0 decision). The concurring opinion, written by Ginsburg and joined by Breyer, raises the question of whether the limited remedies available to injured patients under ERISA mean that Congress ought to consider changing ERISA.

The question that most interests me, though, is one that was sidestepped in the Court's opinion, namely: when are HMOs making decisions that exclusively concern coverage under an insurance plan, and when are they making "mixed coverage and eligibility decisions," i.e. practicing medicine?

The question was explicitly raised in Julie Rovner's audio piece on NPR, which pointed out that much of what HMOs do can't be neatly described as merely deciding whether or not to pay for a particular treatment. Especially when HMOs engage in "disease management" for chronic conditions like diabetes, it seems factually inaccurate to say, as Clarence Thomas did in his opinion for the Court, that an HMO is deciding only whether or not they will pay for a particular treatment. The fact that HMOs do more than this is something that HMOs use to sell themselves to employers looking to cut costs: the HMO claims that its payment strategies will really "manage care."

At what point does this management of care shade over from coverage decisions into treatment decisions?

During the oral argument, the counsel for the respondents (the patients) described the reality of what happens when an HMO makes a "coverage decision." In the case of Ruby Calad, who had just undergone a hysterectomy, the decision by the HMO's discharge nurse that Cigna would not pay for any more than one post-op day in the hospital, despite the surgeon's opinion that she should stay longer, meant that she left after one day.

I'd like to know the way this decision was presented and acted upon. I suspect it wasn't like the Court's opinion describes it. It probably wasn't the case of someone informing Ms. Calad that the HMO was only ponying up for one day, but that if she wanted to stay longer she could certainly do so if she found alternative sources of funding. I suspect it was more like a real medical decision: "the HMO says you gotta go home lady; so I'll bag up your stuff and take out your IVs."

The Court may have gotten the law right, but I'm not so sure they got the facts right.

* Not a pinpoint link, secondary to the site's annoying javascript linking scheme...

Posted by Carey at 10:59 PM | Comments (1)

June 20, 2004

Style question

Here's a question for all you blog connoisseurs out there:

The Feanor heraldric crest on the right side of my banner-- what do you think?

(I've tried not to ask a leading question here. There is a particular issue I'm trying to settle, but asking leading questions is not the way to do it...)

Posted by Carey at 10:20 PM | Comments (2)

June 19, 2004

glorfindel reborn

The blog looks odd. I know.

I'm messing around with the stylesheet this weekend, so don't be surprised if it looks weirder than this on occasion. I'm shooting for some warmer colors; the syle won't change radically.

It's damned uncomfortable climbing into this cramped little chrysalis...

Posted by Carey at 10:24 PM | Comments (0)

George R. R. Martin update

Everyone lucky enough to have read the first three books in George R. R. Martin's series A Song of Ice and Fire has been obsessively checking to see whether the next book is done.

Apparently, some people have been getting all huffy about it. They've been emailing Martin and accusing him of luxuriating in hot tubs with hotties in bikinis while his audience grows more frustrated waiting for the book.

These fans need to chill out.

Based on what he's done so far, Martin doesn't need to publish anything else, period. His story isn't finished, but it's already big enough and rich enough that it probably never will be. No matter how many more books Martin writes, his readers will probably wish he had said just a little bit more about this, or about that. We're all lucky that Martin himself feels like he wants to tell more of the story. We should all wait patiently for him to tell it like he wants to.

In the meantime, as Martin suggests, we all have lives to lead. So quit bugging him, and get a life! (Just make sure to wear your seatbelt, since you don't want to get killed before A Feast for Crows comes out...)

Posted by Carey at 05:35 PM | Comments (1)

June 18, 2004

Butt slogans for undergrad girls

Some of the slogans written across the butt of those velour pants that undergrad girls wear are getting kind of old. "Sexy," "Hottie," and "Michigan" are so last summer.

Here's the slogans that will surely catch fire this year:

  • Too Big--Getting Bigger.
  • Electrolysis: ask me how
  • My friends make me wear this
  • Employee of the Month

    Posted by Carey at 11:21 PM | Comments (1)
  • June 17, 2004

    drug trial registries: pro and proer

    I'm usually a "big picture" kind of guy, but when it comes to the recent controversy over whether drug companies should be required to post all of their clinical trials to a public registry, it's worth dwelling on the details.

    First, the major proposals to create registries would require varying amounts of information to be made public. The still-in-the-oven proposal from the International Committee of Medical Journal Editors (scheduled for release later in the year) would only require drug firms to publicize the existence of all clinical trials in a public registry. While this would be an improvement over current practices, doctors and patients would still not have access to the data. Instead, the registry would be useful only if it encouraged a healthy skepticism: "I see this study in JAMA reporting the favorable effects of a new drug, but I see from my own perusal of the public registry that only one study has been published out of the five that were started..."

    There are two reasons why this proposal is too limp: (1) not every doc is going to have the time or the inclination to check every positive, published study against the public registry--especially when she's running late because of that burrito lunch with the drug rep. (2) The skepticism might sometimes be unfair, because a study could have been stopped for reasons that do not reflect poorly on the drug--all clinical trials at an institution could have been suspended because their IRB was asleep at the wheel, for example.

    For these reasons, the public registry proposal from the AMA is better. It would require that the outcomes of every clinical trial be posted to the registry. For this sensible idea to work, though, the FDA would have to stop going along with the absurd notion that the study data was proprietary. The need for physicians and patients to evaluate the safety and effectiveness of drugs aggressively marketed to the public should not be held hostage to some misguided notion of intellectual property more suited to the manufacture of Pez dispensers (how do they do that, anyway??)

    Some critics make the argument that any registry would increase the costs of research, in part because drug firms would be "afraid to make a mistake." But this fear is much greater when a firm knows that its competitors can hide their mistakes. The public understands that some drugs won't work; that's why we do studies in the first place. Besides, arguments about cost lose their luster when you realize that drug firms spend about as much on marketing as on research.

    As an aside, even when and if a public registry is implemented, don't assume that the pharmaceutical companies will comply with any required reporting... (pdf file, small. Go ahead! Open it!)

    Posted by Carey at 11:15 PM | Comments (0)

    June 16, 2004

    Wendell Berry on farming, Jesus, tradition, and corporate tyranny

    From an interview with Wendell Berry:

    BERGER: Of all your writing, Life is a Miracle is the one that I think is the most brilliant because it calls into question the entire myth of progress.

    BERRY: You know, it helps an old man to hear that!

    BERGER: There are not enough people who are asking questions about the post-Enlightenment era, and the myth of progress and where it's taking us. Even our contemporary Christian mindset is just built on this myth that the world just keeps getting better and that the past was worse than the present.

    BERRY: It gets taken for granted, that's why it's so easy to attack. People are handing out this stuff without thinking about it.

    BERGER: How is that myth of progress operating on us as people, and what are the reasons for calling it into question, or subverting it?

    BERRY: Well, that's two questions, isn't it? How does it operate on us? It substitutes this infinite advance toward better and better life in the material sense for the old pilgrimage, which you make by effort and grace, to become a better person. And I guess that's the reason you need to subvert it if you can. It takes people's minds off the important things. It becomes, at it's worst, a kind of determinism: All we have to do is just passively go along and things will get better and better, and we'll be happier and happier. That's why we need honest accounting.

    I think all the time about the medical industry's emphasis on longevity. It's a substitution of quantity for any idea of completeness or wholeness or any sense of real fulfillment or real worth, so that you prolong life past the time where it's worth living, and then you brag about it. Without any acknowledgment of the possibility that somebody's life might become a burden, or that some things are worse than death.

    (Via political theory daily review.)

    Posted by Carey at 09:57 PM | Comments (1)

    Spite voters

    Here's the poor man's David Brooks.

    Happiness is the scarcest resource of all, not money. And the happy supply has been cornered by the beautiful, famous and wealthy coastal elite, the ones who never age, and who are just so damned concerned for the have-nots' well-being. In that sense, you can see how the Republicans were able to successfully manipulate the meaning of "elitism" to suit their needs. They weren't just selling dogshit to the credulous masses; they were selling pancreatic balm to the needy.

    (Via political theory daily review.)

    Posted by Carey at 07:08 PM | Comments (0)

    June 15, 2004

    All about influence

    It looks like Eliot Spitzer isn't the only one concerned about drug company non-disclosure of clinical trial data: now the International Committee of Medical Journal Editors is weighing a policy that would require pharmaceutical firms to publicly register the commencement of clinical trials in order to get the results published later. Apparently the editors of journals like the New England Journal of Medicine and JAMA don't appreciate being unpaid marketing agents for Big Pharma.

    Also, the American Medical Association adopted a resolution supporting the establishment of a public registry today. It seems the docs and the journals agree that the worth of a study can only be judged in context--a context that Big Pharma tries to avoid when it might mean reduced revenues for them.

    And just think about how much medical research we could fund with 286.9 million dollars.

    Posted by Carey at 08:58 PM | Comments (0)

    Confining religion

    I usually won't even read most blog posts about religion, because this topic is one on which back-and-forth debate is almost always impossible. One side believes something; the other side doesn't. What next? Usually an avalanche of vituperative text of diarrheic proportions that's useless for anything but making its author feel good about him-or-her self.

    Time spent reading this ineffectual drivel is in my opinion a pure waste of time.

    Sometimes, though, the topic of religion can't be avoided. Why? Because certain religious zealots (almost all of them on the political right wing) can't stop trying to set up a kingdom of heaven down here on Earth (or whatever other verbiage they use). On my way home from work today I heard an interview on the radio with the leader of the Southern Baptists, who didn't himself argue that every nonbeliever is dirt, but did a fine job of annoying the shit out of me with his self-righteous blather about the "literal truth" of the Bible. Having been thusly annoyed with a religious belief I despise but recognize as something I have no right to forbid with the power of the law, I come home and read blogs.

    Brian Leiter recognizes that any requirement that one recite the words "under God" in the Pledge of Allegiance demands a personal profession of faith that the government has no right to demand. Another of my favorite law professor bloggers, Stephen Bainbridge, seems not to.

    Perhaps it's just my mood, but I'm getting fed up with the apologists for George W. Bush, like Stephen Bainbridge, who dream of "winning" the "culture wars" by among other things requiring me, or (if I had any) my kids, to affirm a belief in a deity they believe exists, but that I haven't made up my mind about yet. (Uh, yes, that would make me an agnostic.) I'd hate to put Bainbridge in the same bucket as Orson Scott Card, but it's hard not to after reading posts like his--if winning the culture wars means requiring me to profess a particular religious belief, you'll never win. I guarantee it.

    In a modest effort to restate my position vis-a-vis writing religion into law, I'll just quote Leiter's post, and go take a long shower to wash off the theocratic grime I've been exposed to.

    The Supreme Court permits the government to mandate that anyone who wants to affirm their patriotism by pledging allegiance must do so by affirming the existence of the deity, and Stephen Bainbridge thinks the High Court isn't conservative enough.


    But in fairness to Steve, he's at least right that we should view the Supreme Court as a naked political actor in cases like this, such that a vote for Bush is a vote for more religion in public life via judicial fiat, and a vote against Bush is a vote for less by the same means.

    Gimme Bainbridge on wine any day....

    Posted by Carey at 07:38 PM | Comments (5)

    June 14, 2004

    David Brooks: journalist and hack

    Nicholas Confessore, in an article that's a bit too long, essentially gets David Brooks just about right.

    Posted by Carey at 10:51 PM | Comments (0)

    New blogs

    They're new for me, at any rate, and they're worth reading.

    Via Jordan Fowles, here's HealthLawBlog.

    Anjali Taneja, who's active in one of the best organizations around, has been carrying the weight at the group blog To the Teeth.

    One of the most elegantly-designed law school blogs-- buzzwords.

    And I've finally begun reading Jeremy Blachman, Ditzy Genius, and BuffaloWings&Vodka on a regular basis. (Kind of like growing up in Chicago and not going to the top of the Hancock building until you're twenty seven. Just plain lame.)

    Finally, I don't know how I found the underwear drawer, but this blog by a pediatrics resident helps to cure my bias against pediatrics residents. :)

    Posted by Carey at 08:43 PM | Comments (0)

    June 13, 2004

    800-pound gorilla opines on healthcare

    Hey, I don't know what gorilla you were thinking of, but I'm talking about Michael E. Porter, the Harvard Business School professor.

    Porter has written an article (via HealthLawBlog) claiming that the health care system in this country suffers from too much of the wrong kind of competition. His solution? More competition, but of the right kind. Porter firmly believes in the power of competition to compel improvements in health care delivery. This, and his track record in promoting effective management strategies in other industries, will almost guarantee Porter a careful hearing in the boardrooms of the largest corporations and among most influential policymakers.

    Perhaps most interesting, then, is that Porter, the competition maven, buries the following in the middle of his article: "the larger, more controversial step would be for the government to require health coverage for all, with subsidies for low-income people." That this sensible proposal should be advanced in the context of an argument for the competitive marketplace reveals, at the very least, that Porter's not another run-of-the-mill ideologue.

    According to Porter, competition in the health care industry is between the wrong players, over the wrong objectives. Currently, health plans, hospitals, and networks are competing to shift costs onto other parties, and this drives costs up without creating any value in terms of better medical care. Porter would like to see competition among providers and health plans not to shift costs but to prevent, diagnose, and treat specific diseases. After all, notes Porter, this is what happens in other well-functioning industries: the participants compete to create value, and this competition leads to innovations and lower costs.

    The health care industry is dysfunctional because there's little accountability, prices are opaque (see my earlier post on transparent drug pricing), and the "winner" is the plan or provider who most successfully shifts costs to someone else, instead of offering the best service at the best price.

    Although it's too early to be sure, Porter, unlike a disappointing majority of pro-market reform advocates, seems to have recognized that so long as there is no universal health insurance coverage, the strongest short-term incentive for providers and payers will always be to avoid the uninsured and to push the sick out of the insurance pool. The efforts to do this are the purest form of waste--they drive costs up and retard innovation. (Which leads me to wonder whether the implacable opponents of universal coverage are motivated more by a love of the market, or by an overweening and irrational fear of the state.)

    One question the article raised for me is this: Porter talks about health as a "value" much as the products of other industries is a value. To the extent that participants in the health care market can capture this value, it makes sense that they will compete fiercely to provide it. But can employers or health plans really capture the "value" provided by, for example, long-term nursing home care? If, as I suspect, they can't, Porter's prescriptions for change would seem to provide no ready solution to the quaint social problem of taking care of economically valueless people.

    But this problem aside, I think Porter is on the right track. At least he's willing to rethink the health care system from the bottom up.

    Posted by Carey at 11:03 PM | Comments (1)

    June 12, 2004

    Goat. Goat.

    I got your Positive Goat Flow right here, baby.

    Posted by Carey at 11:45 PM | Comments (2)

    Transparent drug pricing? Good luck. . .

    In a quixotic quest for transparency, several large employers are trying to negotiate drug prices directly with the manufacturers, instead of relying on pharmacy benefit managers ("PBMs") to negotiate for them.

    I don't know if this is going to work or not. What's interesting to me is what the article reveals about how opaque drug prices are now:

    Consider this example: A 30-day supply of 40-milligram tablets of Lipitor, a cholesterol treatment that is the world's best-selling drug, costs $112.48 at the "average wholesale price.'' For the average employer drug plan it is reduced to $97.51, not counting various rebates from the manufacturer. But at the Drugstore.com Web site, available to anyone, the price is $94.99.

    Buying drugs, it seems, is a byzantine labyrinth of buyer groups, rebates, pass-throughs, and (probably sometimes) kickbacks. The result is that it's hard to talk about "the price" for a brand-name drug, since everything depends on who you are and where you're buying.

    A popular buzzword in health care reform circles these days is "consumer-driven health care." Its advocates claim that when consumers can see the real costs of various treatment options, they will choose the ones that are most efficacious and that cost the least.

    I like the theory--it makes sense. But I'm skeptical about whether the theory can be put into practice without some profound changes in our healthcare delivery system, most of them involving changes that many of the game's major players are going to oppose. Articles like this one reinforce my skepticism, since it suggests that we have a very long way to go before the costs of care are reliably reflected in the prices for care.

    It seems to me that this is another classic example of "market failure" (i.e., a real-world case that doesn't conform to the theoretical constructs of the laissez-faire economists and their champions in the policy arena). Whether the solution to this market failure can be achieved by the market alone is a question that can only be answered by experience. But I'm doubtful.

    Most people, including myself, just don't have enough information and knowledge to make the kinds of idealized decisions that the pro-market advocates presume that we have. Even if I were presented with a list of perfectly transparent prices and forced to pay some percentage of these prices myself, I simply wouldn't know when I could safely choose the cheaper option and when my health depends on spending more. And my powers of discernment would only get worse when I got sick. I'd have to rely on my physician, and she's either going to be in a fee-for-service arrangement where she simply won't take costs into account at all, or she'll be in some form of capitated payment system, where her incentives will probably tilt too far in the direction of cost savings. The point is, the decision is not going to be made entirely by me, and the costs probably won't be entirely borne by me. That creates problems for the idealized market model. Health care isn't like toothpaste, at least relative to idealized, rational consumer behavior.

    This doesn't mean there isn't room for an injection of some consumer accountability. Health savings accounts ("HSAs") might even make people get off their fat asses and exercise for the sake of keeping a bit more of their money. But even this model has limits, since our illnesses are often outside our control. My genes might spring the "Huntington's disease surprise" on me one day; or some yahoo with too much EtOH on board might run me over with his SUV. Life can be a real bitch.

    Meanwhile, the incrementalists can try things like cutting out the PBMs and negotiating with drug companies directly. They can try HSAs. All of this, in my opinion, is mere beating around the bush. But if it shaves a percentage point or two off the annual cost increases of health care, and if that makes folks happy, I'm all for it. I remain convinced, though, that our system will eventually collapse under its own weight, and we will have to build a new one out of the rubble on an entirely different foundation and set of assumptions.

    That's why I like health policy. It's like sitting outside in the rain, waiting for the approaching storm.

    Posted by Carey at 09:25 PM | Comments (1)

    Annals of Civilizational Decay

    Staplers aren't what they used to be.

    Most standard office staplers are incapable of driving a standard staple through more than about eight pages of paper--any more than that and the staple inevitably gets bent and warped. If you think this is because the staple itself is too flimsy, think again.

    My dad gave me an old gray Swingline stapler that looks like it was made during the Kennedy administration. It's made of thick metal everywhere and weighs about twice what a new stapler weighs. Put an ordinary, modern staple in that sucker, and you can staple, cleanly, just about any stack of paper that you can fit between its jaws.

    Next week: the cheesy crap that's marketed as a "floor lamp."

    Posted by Carey at 10:34 AM | Comments (4)

    June 10, 2004

    Spitzer doing the right thing

    New York Attorney General Eliot Spitzer is acting in the public interest by suing drug maker GlaxoSmithKline (GSK) for fraud under a state law prohibiting the "deception, misrepresentation, concealment or suppression" of data.

    The suit alleges that GSK conducted at least five clinical trials evaluating the effectiveness of the antidepressant Paxil for treating depression in children, but chose to publish only the results of the one trial that demonstrated that Paxil was more effective than placebo. Meanwhile, GSK was actively marketing Paxil as safe and effective for treating depression in children. Although GSK submitted all of its data to the FDA, an internal memo reveals that the company's goal was to "effectively manage the dissemination of these data in order to minimize any potential negative commercial impact," and recommended publishing only the favorable results.

    Pharmaceutical firms like GSK have consistently demonstrated a penchant for conducting their research efforts primarily for the sake of commercial, and not scientific, ends. At the same time, the pharmaceutical manufacturers attempt to justify the exorbitant prices for their products by claiming that high prices are necessary to conduct research into new medication therapies. Since the federal government has so far been willing to buy this argument, the public is at least entitled to expect--in exchange for continued high drug prices--that the pharmaceutical companies will adhere to the highest standards of scientific inquiry when conducting clinical trials. GSK seems to have fallen short of that standard.

    Posted by Carey at 10:45 PM | Comments (0)

    June 09, 2004

    glorfindel, rock critic

    (I'm not a real rock critic. I just play one on my blog.)

    Unlike most rock groups that put out their first album in 1974, Rush is still writing (good) new music. Its members haven't ODd on drugs, and they're still touring (and I don't mean packing them in at the State Fair as the opening act for Foreigner, either). This makes them relics and ass-kickers at the same time.

    Last night I saw Rush on their 30th anniversary tour, and they showed both sides of their nature. They showed their relic selves, but not in the pejorative sense of the word. Throughout the long medley at the end that included, among four or five others, "Xanadu," "The Trees," and "La Villa Strangiato," I was gripped by the feeling that these guys had been around long enough to make their own history--especially when they played covers of old Clapton a la Robert Johnson ("Crossroads") and other classics like "Summertime Blues" and "The Seeker." Their own older material seemed to take its place alongside these classics, and I can't help but think that thirty years from now some old band will trot out some Rush covers as an homage to the music that got them started. Hell, there are plenty of "old bands" right now who could do that.

    But let's be honest: Rush kicked a lot of ass. Their new stuff, most notably "Earthshine" from 2002's Vapor Trails, was blistering, and proved that no one, even now, puts out a more pounding heavy rock sound than Rush. But, as Neil Peart's drum solo and Alex Lifeson's funky spoken-word piece, mumbled into the microphone as he made some weird subterranean sounds on the guitar, hinted, Rush might make a damn fine jazz ensemble, too.

    One thing Rush will probably never be good at is hip-hop and rap. Nevertheless, they were one of the first, and still one of the only, old-line white-guy rock bands to try to incorporate some rap into their music. Even most Rush fans will admit that the rap bit in "Roll the Bones" didn't quite capture the essence of the form in the way that, say, Eminem has, so it was mildly surprising that Rush put the entire rap bit into it's performance of "Roll the Bones" last night. But why not? They deserve credit for branching out, and in a tour that's intended as a retrospective, it's very honest of them to leave that rap bit in. Talking skeletons and all.

    The show wasn't perfect. The sun was still out in the beginning and was shining directly into the band members' faces. Geddy Lee had trouble remembering the lyrics to some of the songs, prompting his quip as he went off at the intermission that they'd be back "after they got some brain surgery."

    But after it got dark, and the stars came out, and Rush had set the mood with an inexorably pounding performance of "Between the Wheels", the show began to move in the way only Rush can move it. . .

    To live between the wars in our time
    Living in real time
    Holding the good time
    Holding on to yesterdays. . .

    It slips between your hands like water
    This living in real time
    A dizzying lifetime
    Reeling by on celluloid. . .

    We can go from boom to bust
    From dreams to a bowl of dust
    We can fall from rockets' red glare
    Down to "Brother can you spare..."
    Another war
    Another wasteland
    And another lost generation. . .

    --Rush, Between the Wheels

    Posted by Carey at 09:27 PM | Comments (4)

    June 07, 2004


    I work my 1L summer job all day
    So after work I want to play!

    This is why my heart is smitten
    (and also why my toes are bitten)

    For I have found a little kitten!

    Hey you little cat! My toes!

    Posted by Carey at 07:13 PM | Comments (16)

    June 06, 2004

    Remembering Ronald Reagan

    One of the reasons I never became a right-winger is because most of my earliest memories of politics date from Reagan's first term in office. Although I was concerned for Reagan's health when he was shot by John Hinckley on that day in fourth grade, my memories of Reagan's Secretary of the Interior James G. Watt made "Republican" a bad word from the time I first learned what the word meant. I also remember the suspicions that Reagan's election team plotted to delay the release of the American hostages held in Iran until just after the election, so Jimmy Carter wouldn't be able to take credit for it. "Who would do that kind of thing," I asked as a fourth-grader, "except for low-down, lying, cheating, powermongerers who can't be trusted?" Even if I didn't use those exact words, they convey the essence of my memories fairly accurately.

    The Democrats, I've learned, often cheat and lie as well. But my first exposure to lying politicians during my formative political years was, thanks to Ronald Reagan, of lying right-wing politicians. The first cut is always the deepest, eh?

    My political education continued as I started high school and Reagan was in his second term. I know Reagan is praised for being a staunch anti-Communist, but somehow his anti-Communist rhetoric always seemed clownish and facile to me. By the time I was in high school, I knew something about Vietnam and about the discredited domino theory, so it seemed absurd that Reagan was so obsessed with the "Communist threat" in Central America. The Nicaraguan Sandinistas couldn't have been much worse than the dictator they'd overthrown, and the right-wing death-squads that Reagan propped up in El Salvador didn't seem like such great guys either. The lesson I took from all of this is that the American right didn't give two stones about the people in any of these countries, but they were willing to support the most brutal dictatorships to ensure that American multinational corporations could maximize their profits.

    The Iran-Contra scandal taught me that the hard right, exemplified by people like Oliver North, would violate any rule or principle in order to achieve the results they wanted. "Congress says it's illegal? What does Congress know? I'm a real American patriot! And I say, selling guns to the repressive mullahs in Iran to give money to the repressive (but anti-Communist) Contras in Nicaragua is good policy by my lights--and my opinion is the only one that counts." Ahh, good ol' Oliver North. Even if he wasn't making cameo appearances on Fox, I still wouldn't be able to forget him. All the foreign policy clowns in the current administration are cut out of the same mold. Some of them are actually the same people--John Poindexter was indicted for his role in Reagan's Iran Contra and is now runs George W. Bush's Total Information Awareness project. It's good to know that you can't keep a good man down.

    Ronald Reagan may have been the Great Communicator and all that; he may have given the generations older than mine who remembered Vietnam and Stagflation some optimism. But for me, he shaped my perception of right-wing politicians in a way that pretty much guarantees I won't be voting for George W. Bush in November.

    Posted by Carey at 08:52 PM | Comments (13)

    A caribou! Or is it just a rock?

    The New York Times has a new travel article about Denali National Park. They seem to have covered all the mandatory elements:

    Our bus, to Eielson Visitor Center and back, a 10-hour round trip, covering about 130 miles, left promptly at 9:30. The driver asked us to call out if we saw any animals, but cautioned us that the day before, he had seen only two caribou on an entire trip.

    This didn't so much diminish expectations as heighten desperation among the passengers who, bearing cameras and binoculars, craved any kind of sighting. And so, when a passenger spotted a distant speck on a ledge near the Savage River, about 20 minutes into our journey, and identified it as a caribou, everyone else, led by Jack and Peter, pressed onto that side of the bus for a glimpse.

    Ha! It seems nothing has changed since I spent a few summers working at Lynx Creek Pizza in Denali. The caribou are still there, and the tourists are still just as desperate to see them.

    Posted by Carey at 08:25 AM | Comments (2)

    June 05, 2004

    Governor Lamm on health care

    Former Colorado Governor Dick Lamm makes some interesting comments about our health care system in an interview with the Rocky Mountain News:

    Both you and I know our current systems of handling retirement are unsustainable. Social Security is unsustainable. Medicare is unsustainable. I can see a path to Social Security's solvency where we raise the retirement age and do some other things. But with Medicare I can see no path.

    I'm looking you in the eye and telling you I don't think you deserve a heart transplant if you're over 75. You just don't. We had 70,000 women give birth last year without adequate prenatal care.

    Lamm is one of the few politicians to come out of Colorado in my lifetime that I'm proud of. He was a three-term Governor, which is shocking when you consider how un-weaselly he is when he talks about important issues. Health care has always been an issue Lamm has concentrated on, and what he says is usually all the more valuable because no one else has the guts to say it.

    Take the comment quoted above about heart transplants, for example. If you read the whole interview, Lamm doesn't say you shouldn't get a heart transplant if you're old, only that, if you want a transplant at that age, you should pay for it yourself. That, to me, sounds right. When we don't have enough public dollars to provide basic, preventive health care to our citizens, it's absurd to spend those dollars on astronomically expensive high-tech treatments for people nearing the end of their natural lives. (It's also just as crazy to give away all that money to the pharmaceutical companies as part of the Medicare prescription drug benefit--but by preventing Medicare from negotiating for lower prices from Big Pharma, we're doing just that.)

    Elsewhere in the interview, Lamm makes the point that "People's best doctors are themselves; they've got to understand that. One of the things that I'm really talking about is the new sense of self-responsibility in health care. Just a few factors are the most likely indicators of future health: smoking, diet, the use of alcohol, those kinds of things." This is, in my opinion, something that everyone ought to be able to agree on (even myself and Chris Rangel). Take heart transplants for old people. Apart from genetic factors, the health of your heart at age 75 is something that's largely within your control. If you're worried that you might not be able to afford a transplant at 75, you can stop going to McDonald's now. Quit smoking. Take the stairs instead of the elevator.

    Some critics of Lamm will argue that the same logic applies to prenatal care, or to any other basic preventive health care service. Why should we spend public dollars on poor people's diabetes when we won't buy Grampa a new heart?

    This gets to the question not of whether people should take responsiblity for their health care, but of whether we as a society have any interest in something called "public health." Libertarians like Trent McBride, although their views are crucially necessary and sometimes flat-out right, often make it seem as though health is purely a private matter. The state of my health, the libertarians argue, is as relevant for the community as what color litter box I buy for my cat. On these matters, the argument goes, all community involvement is community interference.

    Ok, so most of you will now be complaining that I've set up a straw man, and you'll be right. Not even the libertarians make this extreme argument, because even the libertarians realize it's wrong. Like it or not, we must live together, and living together with sick people threatens my own health and well-being. We spend public dollars on sewers for a reason. We require immunizations for a reason. The question is not whether we should spend public money on health care; the question is what kinds of health care our public dollars should be spent on. We can't afford everything, so we'll have to make choices: heart transplants for 75-year olds? No. Prenatal care for pregnant women? Yes.

    One suggestion that clearly isn't helpful in this context is Donald E. L. Johnson's off-the-cuff remark that we don't have a health care "system" at all, just an aggregate of individual providers, insurers, and "markets". Apart from the obvious fact that markets are simply a type of system, and acknowledging Johnson's valid emphasis on real entities and not intellectual constructs, the problem with Johnson's remark is that it ends the debate before it even begins. If there's no system, we can't ask systemic questions. We can't ask the very questions Lamm raises: why are we buying heart transplants when so many of us don't have access to basic (and cheap) preventive health care? These questions need to be debated, not foreclosed by the not-so-subtle privileging of laissez-faire that Johnson engages in.

    Posted by Carey at 03:23 PM | Comments (0)

    The pleasant surprise

    The pleasant surprise is an often overlooked necessity of life, I think.

    Oh well. There's a reason they haven't made me a Zen monk. . .

    Posted by Carey at 12:15 AM | Comments (0)

    June 04, 2004

    Paying for Hank McKinnell's fun ride

    Some of the nation's big dogs of business have been schmoozing on Mackinac Island as part of the Detroit Regional Chamber's annual Policy Conference.

    While GM's CEO G. Richard Wagoner complains about how rising health care costs are crippling American business, Pfizer's Henry McKinnell reminds us that not every American business has been crippled by the high costs of health care.

    While GM's Wagoner didn't single out the cost of prescription drugs, I wonder whether he ever considered mentioning it. Did it ever cross his mind?

    Decades ago, Chrysler Chairman Lee Iacocca started grumbling about the costs of health care. It was partly because of Iacocca that the managed care revolution happened at all, back when everyone thought HMOs would save us from skyrocketing health care costs. Despite the bad rap that managed care has earned for itself, it might just have worked if the only engine driving health care inflation was the fee-for-service system where third party payers coughed up whatever a doc decided to charge, without question.

    We know now that fee-for-service wasn't the only thing driving the rise in costs. Most people who follow the issue these days agree that there are many different reasons why health care costs continue to rise so quickly. Drug prices are one factor getting a lot of attention. So far, the argument that any serious attempt to lower these prices will destroy all hope of ever developing any new drugs has held sway in Washington, with the help of pharmaceutical industry lobbying dollars to make the logic more persuasive.

    But how much worse do things have to get before the chairman of GM stops whining about the high costs of health care and actually proposes to do something about it? And when he does, what solutions will he suggest? Will he and Hank McKinnell be able to conjure up some scheme that doesn't touch Pfizer's profits, or will Rick Wagoner say to Hank: "Hank, you've had a great ride. But the rest of us have been buying your circus tickets for way too long."

    Posted by Carey at 09:28 PM | Comments (1)

    June 02, 2004

    The "Bush Draft"

    Say goodbye to our all-volunteer Army, and hello to the "Bush Draft."

    Faced with the need for far more troops in Afghanistan and Iraq than the civilian Pentagon leadership had anticipated, the U.S. Army has issued orders that will keep soldiers in the military for a longer period than they volunteered for.

    The Army has implemented this de-facto draft because it has been "stretched" by the burdens of what Bush is now calling his "Greater Middle-East Initiative." In his commencement address today at the Air Force Academy, Bush hinted at what this new "initiative" might mean:

    Overcoming terrorism and bringing greater freedom to the nations of the Middle East is the work of decades."
    Decades? With initiatives like this, we'll need a draft--even if it's a draft by another name. Bush can't find enough willing volunteers for his new brand of imperialism, so he'll have to start relying on unwilling conscripts instead.

    Posted by Carey at 10:38 PM | Comments (3)

    June 01, 2004

    Law school classes

    If you're a pre-law, I'd recommend reading Heidi Bond's suggestions for what to do when you attend a law school class.

    Not because every suggestion she makes will be right for everyone (and God knows she's included enough disclaimers to that effect in her post), but because I think her post is a good example of an attitude that might make law school both more fun and more productive. It's an attitude of proactive curiosity.

    I've been in school a long time. I've done very well at times, and I've been mediocre at others. In my experience, the times I've done my best were the times that I cultivated a proactive curiosity about what I was doing. This hasn't been possible for me all the time; in fact, I think that if I could turn on the attitude of proactive curiosity like a light switch, there would be something seriously wrong with me--I would be a zombie, or a soulless plastic shell that only looks like a person, and which can sometimes be found doing a residency in pediatrics.*

    Nope; you won't always be curious enough in law school to attack a class in the way that Heidi suggests. You may never be curious enough. But that's an unfortunate and inescapable fact of life, in the same category as the fact that you'll occasionally feel nauseous and full of intestinal gas. If you are curious, though, I think Heidi has good advice for putting it to work in law school.
    * That's a story from my pediatrics rotation in medical school that's grist for another post. Later.

    Posted by Carey at 07:06 PM | Comments (0)