The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

A Member of the Law Professor Blogs Network

Monday, July 30, 2007

Middle school horseplay is sex crime
Tom Smith

This is appalling.  Middle schoolers engaging in "butt slapping" are charged with multiple felony accounts of sexual abuse.  It looks like they will have to face the chance of years in prison to avoid a plea deal that would mark them as sex offenders for life. (HT instapundit and his lovely wife.)

July 30, 2007 | Permalink | Comments (4) | TrackBack (0)

Nerdy defined
Tom Smith

Weird Al defines nerdy, more effectively than the professor does.  Though maybe they agree.


July 30, 2007 | Permalink | Comments (6) | TrackBack (0)

Saturday, July 28, 2007

U.S. Commission on Civil Rights to Report on Affirmative Action in Law Schools
Gail Heriot

The U.S. Commission on Civil Rights will be releasing a report on affirmative action in law schools in the next few weeks.  I expect this report to be interesting and controversial, so be on the lookout for it.

July 28, 2007 | Permalink | Comments (4) | TrackBack (0)

Friday, July 27, 2007

Junk Social Science Leaves Congress Feeling Sicko
Todd Zywicki & Gail Heriot

Here's the op-ed Todd & I published in the Washington Times yesterday:

No one has ever accused Congress of being overly meticulous about the scientific evidence it takes in. But the 110th Congress has been on a binge diet of junk social science. It’s no wonder it’s been looking sick lately.

Or should we say Sicko? An excellent example is last week’s hearing before the House Subcommittee on Commercial and Administrative Law. Preciously titled "Working Families in Medical Crisis: Medical Debt and Bankruptcy," the hearing purported to be a serious look at medical debt and bankruptcy. In reality, it was just another arm of the publicity leviathan behind Michael Moore’s new "documentary." The star witness was Donna Smith, whose story was featured in the movie--including her trip to Havana to seek the supposedly superior medical treatment available in Cuba. She was surrounded at the hearing by a bevy of nurses in brightly-colored "Sicko" t-shirts, who applauded her testimony enthusiastically. The hearing quickly developed into a cheerleading session for single-payer healthcare—an issue over which the Subcommittee has no jurisdiction.

But Ms. Smith’s testimony was the best–or the least bad-- part of the hearing. At least she had a story to tell, which she told forcefully and, as far as we could tell, forthrightly. Most policymakers can tell the difference between a serious inquiry into bankruptcy policy and a single-anecdote photo opportunity, so there is little danger that bankruptcy policy will be crafted in a way that is responsive only to Ms. Smith’s case.

The same cannot be said of the testimony from Harvard professors David Himmelstein and Elizabeth Warren. They purported to offer generally-applicable social science. In fact, it was junk. Blandly entitled "Illness and Injury as Contributors to Bankruptcy," their long-discredited 2005 study may be among the most misleading research ever placed before Congress–no small dishonor.

The study’s central findings were that 54.5% of all bankruptcies have a "medical cause" and that 46.2% of all bankruptcies have a "major medical cause." Even if this were true, bankruptcy law already provides adequate safeguards for the special problems posed by medical bankruptcies, as one of us (Zywicki) testified at the hearing. But it is not true. And the only way to make such a claim is to gerrymander the definition of medical bankruptcies to generate the desired results–true junk social science.

For example, the study classifies uncontrolled gambling, drug or alcohol addiction, and the birth or adoption of a child as "a medical cause." There are indeed situations in which a researcher may legitimately classify those conditions as "medical," but a study that is being used to prove that Americans are going bankrupt as a result of crushing medical debt is not one of them. A father who has gambled away his family's mortgage payment is not the victim of crushing medical bills. Similarly, new parents who find they can no longer afford their previous lifestyle now that one of them has to stay home with the baby will usually find the obstetrician's bill the least of their problems. Babies are a financial hardship even when hospitals give them away free.

But that’s just the tip of the iceberg. The authors also classified bankruptcies as having a "major medical cause" if the debtors had more than $1000 in accumulated, out-of-pocket medical expenses (uncovered by insurance) over the course of the two years prior to the bankruptcy, even if the debtors themselves did not cite illness or injury as among the reasons for their bankruptcy.

Nobody likes to have to pay $1000 in medical expenses, even if it is spread out over the course of two years. But for most Americans (particularly those with enough at stake to declare bankruptcy), it is not catastrophic. To put this figure in perspective, in 2001 (the year that provided the basis for the study’s sample) average per capita out-of-pocket medical expenses were $683—meaning that during that two-year period the average American spent about 30% more than their figure on uncovered medical expenses. To designate all cases involving expenses of more than $1000, regardless of circumstances, as bankruptcies with a "major medical cause" is both silly and deliberately misleading. A bankrupt with $1001 in uncovered medical expenses and $50,000 on a Bloomingdale’s card would constitute a "medical bankruptcy" in their study. Perhaps their expansive definition of "medical bankruptcy" should include self-proclaimed "shopaholics" as well.

We could go on. The point is simply that the study uses trick after trick to classify as many bankruptcies as possible as medical. It’s remarkable that they didn’t include them all.

What do the real data show? Numerous studies have found the number of bankruptcies caused by medical debt to be dramatically lower than Himmelstein and Warren report–down in the single digits. Among the most recent is a study of 5,203 bankruptcy filers (about three times the number examined by Himmelstein and Warren) by the Executive Office of the United States Trustee. It found that 54% of filers listed no medical debt at all and that medical debt accounted for about 5.5% of the total general unsecured debt. About 90.1% of filers reported no medical debt or medical debt of less than $5000. Of the 46% who reported medical debt, 78% reported medical debt of below $5000, with an average of only $1,212 within that group—hardly enough to send the average family into bankruptcy. Overall, 1% of the cases accounted for a total of 36.5% of medical debt, and less than 10% of all cases represent 80% of all medical debt.

In short, in a tiny number of cases, substantial medical debt does force bankruptcy. In a few others, medical debt combines with otherwise high levels of mortgage, automobile, or credit card debt to tip someone into bankruptcy. But the notion that half of bankruptcies are driven by medical debt is unsupported and insupportable.

Why did a Congressional subcommittee turn to such a thoroughly discreditable study when it needed information on medical debt and bankruptcies? We can only speculate. But the idea that Congress would consider revamping the bankruptcy law–or worse yet, the entire health care system--on the basis of junk social science is enough to make us feel sick.

Todd J. Zywicki and Gail Heriot are professors of law at George Mason University and the University of San Diego respectively.

July 27, 2007 | Permalink | Comments (7) | TrackBack (0)

Prosecutors with Absolute Power
Maimon Schwarzschild

Mark Steyn offers half a dozen reforms to improve the US justice system and rein in the stupendous powers of prosecutors - powers that are now all too easily abused:

1) An end to the near universal reliance on plea bargains

2) An end to the reliance on technical charges such as "mail fraud" and "wire fraud", whereby you're convicted not for the crime itself but for sending a letter or authorizing a bank transfer in the course of said crime.

3) An end to the process advantages American prosecutors have accumulated over the years - such as the ability to seize a defendant's funds and assets and deprive him of the means to hire good lawyers and rebut the charges. Or to take another example: Unlike the Crown in Commonwealth countries, in closing arguments to the jury the US government gets to go first and - after a response from the defence - last. This is an offence against the presumptions of English law: The prosecutor makes his accusation, the accused answers them. Every civilized legal system allows the defendant the last word.

4) An end to countless counts.

5) An end to statute creep. One of the ugliest features of American justice is the way that laws designed to address very particular situations are allowed to metastasize and be applied to anything a prosecutor fancies.

6) An end to de facto double jeopardy.

Without some such reforms, there is very little to protect anyone against the malice of a D.A Nifong, or the self-righteous excess of a Patrick Fitzgerald or an Eliot Spitzer.

As Steyn says, "this system is blind drunk on its own power".

Read the whole thing.

July 27, 2007 | Permalink | Comments (5) | TrackBack (0)

Monday, July 23, 2007

Chicago Health Department Closes Down Macy's Restaurants in the Former Marshall Field's
Gail Heriot

Loyal Right Coast readers know how unhappy I am about Macy's taking over Marshall Field's.  Now Macy's sales are way down, the corporation may be the target of a leveraged buyout,and the Chicago Health Department has just closed down the food court restaurants at the State Street Store. (No, thank heaven, not the Walnut Room; that would be unthinkable....)  I wish I knew how to pronounce schadenfreude ....

July 23, 2007 | Permalink | Comments (1) | TrackBack (0)

Brave New Courts and Lawyers
Maimon Schwarzschild

Gordon Brown's new government in England announced last week that British barristers will no longer wear wigs and robes in court, and judges will no longer wear wigs.  Judges will exchange their traditional British robes for a "Continental-style gown".

Ostensibly, traditional wigs and gowns will continue in some criminal cases for "security" reasons, i.e. to make judges and lawyers less identifiable.  But this is so ludicrous that it won't last, and I'm quite sure it's not intended to.  If what you really want is to disguise judges and lawyers, you'd do better with a paper bag.

Wigs and gowns might seem quaint to foreigners, but to English people they represent judicial independence, and the professional independence of the Bar.  They are also symbols of older values and an upper class or upper middle class style, to be sure: which is one reason why abolishing them is a gesture to the Labour Left.  Gordon Brown is busy making many such gestures, or changes in policy: hence the appointment of the vehemently anti-American Malloch Brown to a senior foreign policy post.

But it seems to me that there is more to it than that.  Judicial independence, and a proud and professionally independent Bar, are at odds with the idea of an all-controlling (or as-much-as-possible controlling) bureaucratic nanny state.  And such a nanny state has been the drift of the Labour government in Britain - as it might well be the drift of a Democratic government in the US.

Last week brought this example - by no means unique - of Britain's nanny state in action:

A couple whose two baby daughters were taken away by social services have been told that they will never see their children again, despite being cleared of abuse allegations.

One of the girls was taken away shortly before her second birthday, the other removed only hours after being born.

Social workers have told the parents that the girls, now aged one and three, will not be returned because they have settled with a childless couple who want to adopt them...

The father, a 32-year-old caretaker, says the family has been treated as "adoption fodder" to satisfy government targets. The case raises fresh questions about the financial incentives offered to councils which increase adoptions, and about the level of secrecy surrounding family court hearings.

In 2000, Tony Blair set a target for a 50 per cent increase in adoptions nationwide to reduce the time children spend in foster care. Councils were offered cash bonuses totalling £36 million for hitting their goals.

Read the whole, horrifying thing.

The parents' lawyers have warned them, apparently, that their chances in court of getting their children back are "very slim".  I suspect that's right.  The British courts are ever more deferential to the government and to the social service bureaucracy.

Social services, in turn, are deeply imbued in Britain with the feminist, and of course bureaucratically self-serving, idea that "abuse" is rampant; that families are not to be trusted; and that social services themselves should have the decisive say over children's upbringing.  There is the extra, characteristic note of corruption here that the bureaucracy gets cash bonuses for more adoptions.

Judicial independence, and an independent-minded legal profession, might be at least some safeguard against this sort of thing.  Abolishing wigs and gowns in England - improbable as it might seem - is a deliberate step away from any such independence.

July 23, 2007 | Permalink | Comments (4) | TrackBack (0)

Sunday, July 22, 2007

CEA's report on immigration
Tom Smith

The President's Council of Economic Advisers (of which I am a proud alumnus) has come out with a little paper on the economic impact of immigration.

July 22, 2007 | Permalink | Comments (0) | TrackBack (0)

Saturday, July 21, 2007

The Bankruptcy Study is Baaacccckkk!!!
Gail Heriot

Two years ago, a study claiming (falsely) that half of all bankruptices are caused by illness or injury received front-page treatment in newspapers all across the country.  Anyone reading the fine print, however, learned that, among numerous other tricks, the study included "uncontrolled gambling" as a medical cause.  The whole thing was timed to de-rail the 2005 bankruptcy reform legislation, but (fortunately for the cause of truth) it failed in that endeavor.

On Tuesday, the House Subcommittee on Commercial and Administrative Law held a hearing on "Working Families in Financial Crisis:  Medical Debt and Bankruptcy." And guess what?  It's baaaccckkk!  Two of the study's co-authors appeared as witnesses to present the study as if no one had ever offered the slightest criticism.

Fortunately, Todd Zywicki of George Mason University was there to rebut all this, which he did with great authority.  But through the use of a cheap trick, the majority staff members attempted prevent him from being as effective as he could have been in his oral testimony.  The agenda as originally prepared called for Donna Smith, who was featured in Michael Moore's Sicko, to testify first, followed by the experts witnesses on both sides, so that the witnesses invited by the minority would have a chance to respond to the study co-authors.  Minutes before the hearing began, the order of witnesses was re-arranged, so that Zywicki & and Clifford J. White III, Director of the Executive Office of United States Trustees, the other witness invited by the minority, would directly follow Ms. Smith’s emotional testimony.  The co-authors of the study, who were invited by the majority would both go later and thus be unrebutted. 

The legislative process in action is a beautiful thing to behold, isn't it?

July 21, 2007 | Permalink | Comments (10) | TrackBack (0)

Friday, July 20, 2007

Unfair. Funny. But Unfair
Tom Smith

The Post's combination of headline and photo in this update on W's doings is a bit over the top.  Have a little pity for the guy.

July 20, 2007 | Permalink | Comments (4) | TrackBack (0)