The Right Coast

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

A Member of the Law Professor Blogs Network

Monday, December 31, 2007

CIGNA denial of coverage case sows confusion
Tom Smith

The Houston Chronicle summarizes its view of this matter in the news thus:

When insurance company officials arbitrarily denied a California patient life-preserving care recommended by her doctor, the case provoked outrage and inspired the hope that medical coverage for all citizens can eventually become law.

Rather than a tragic waste, the death of 17-year-old Nataline Sarkisyan should become a rallying cry for supporters of the universal health care plan passed by the Golden State's House of Representatives last week. The bill faces tough sledding in the state Senate.

Sarkisyan had battled leukemia for three years and had received a bone marrow transplant from her brother the day before Thanksgiving. In response to complications, her liver ceased to function and her team of doctors at the University of California at Los Angeles Medical Center recommended she receive a liver transplant in order to prolong her life. A candidate organ became available but could not be implanted because insurer CIGNA ruled that the procedure was experimental and was not covered under Nataline's mother's policy.

What I find ironic about this is the notion that CIGNA's wrongdoing, assuming it did do wrong, somehow supports the case for government-controlled health care.  This is like saying that if Federal Express negligently or even maliciously failed to deliver a package on time, it would just go to show that all packages should be sent by the U.S. Postal Service.

It may well be that CIGNA acted wrongly.  But if they did act wrongly, the nature of their wrong was to breach a duty they had under an insurance contract with Natalie's mother.  There seems to be an issue of fact at the heart of this dispute.  Recognized experts at the UCLA medical center said the proposed liver transplant for Natalie was not experimental, while CIGNA says its experts said it was.  If the treatment really was not experimental and, nuances aside, CIGNA failed to fulfill its contractual duties, I am quite happy to see them hammered for it.

But the notion that if governments were making treatment decisions instead of private insurance companies, they would somehow not face decisions such as whether to approve payment for a transplant, or that when facing such a decision, they would make them better, is the sheerest nonsense.  If anything, there is every reason to suspect that under anything like a single payer system, or any system in which government strongly influenced the rationing of health care, treatments such as transplants for seriously ill patients would quickly go by boards, to make more resources available for more basic and routine medical care.  Natalie's problem was not that she lacked health insurance.  It was that either her insurance did not cover her problem, or that it did, and her insurer breached its contract.

The reputation of government health care systems such as those in Canada and the UK is that you really don't want to be the sick person who needs expensive, let alone experimental care, in those countries.  True, you might be better off there than in the US with no insurance in some area without large hospitals willing to underwrite your care.  But last I heard, the prognosis for what is in the US usually an utterly routine case, an otherwise healthy 70-year old male with early stage prostate cancer, was in Canada, certain death as the disease took its course unopposed, or opposed too late to help. 

If CIGNA did breach its contract in this case, it is very much to be blamed.  It would not only discredit itself, but the whole system of private medical insurance, at a very bad time to do so.  But the idea that the public sector would have done a better job for Natalie is more than unproven; it's utterly implausible.  If the federal government can't even take care of veterans at Walter Reed, I don't see why they are going to better with civilians in LA.

December 31, 2007 | Permalink | Comments (12) | TrackBack (0)

Prediction market blues
Tom Smith

The intrade prediction market on the 2008 elections is pretty depressing.  It has Hillary running at about a 70% chance to get the Dem nomination, notwithstanding the close race in Iowa.  It rates the Democrats as having a 60% chance of taking the White House.

Of course, things with only a 40% chance of happening happen often, indeed, about 40% of the time.  And prediction markets obviously can be wrong.  They're more thinly traded than many markets and only as good as the information traders have to work with.  Still, studies I have seen suggest they do a better job of predicting future events than expert opinions or mere polls. 

As much as I am sure I would not like the policies of the Democrats in the White House, mostly I just don't want the spectacle of Hillary and Bill back in the White House.  I'm still not over the Starr Report, which I wish I had never read, like one of those websites you are sorry to have stumbled upon.

Call it right wing paranoia, but I thought the Clintons brought to public life a degree of ruthlessness that appalled many of even the hardened souls in DC, and I was in DC for about half of the Bill years.  I would much prefer Obama or even Edwards.  It would take either of them years to build the private army the Clintons have at their disposal.  The combination of a very personally ruthless President and all the dangers and opportunities presented by the War on Terror to the Executive branch, puts a knot in my little libertarian stomach.  Or not so little.

December 31, 2007 | Permalink | Comments (4) | TrackBack (0)

Sunday, December 30, 2007

Around the Web
Mike Rappaport

Here are two interesting discussions from the Web.  First, this is from the summary on Amazon of Jonah Goldberg's new book on liberal facism:

Contrary to what most people think, the Nazis were ardent socialists (hence the term “National socialism”). They believed in free health care and guaranteed jobs. They confiscated inherited wealth and spent vast sums on public education. They purged the church from public policy, promoted a new form of pagan spirituality, and inserted the authority of the state into every nook and cranny of daily life. The Nazis declared war on smoking, supported abortion, euthanasia, and gun control. They loathed the free market, provided generous pensions for the elderly, and maintained a strict racial quota system in their universities—where campus speech codes were all the rage. The Nazis led the world in organic farming and alternative medicine. Hitler was a strict vegetarian, and Himmler was an animal rights activist.

Second, this claim from Michael Barone's column:

Lesson two is that societies can more easily be transformed from the bottom up than from the top down. We persuaded the Iraqis to elect their parliament from national party lists (reportedly so that it would include more women) rather than to elect them from single-member districts that would have elected community leaders more in touch with local opinion.  But the impetus for change has come from the bottom up, from tribal sheiks in Anbar province who got tired of the violence and oppression of al Qaeda in Iraq, from Shiites and Sunnis who, once confident of the protection of American forces and of the new Iraqi military, decided to quit killing each other.

(Hat tip in both cases to Instapundit.)

December 30, 2007 | Permalink | Comments (2) | TrackBack (0)

Saturday, December 29, 2007

Why are law professors (and everybody else) unhappy?
Tom Smith

First of all, let me reassure you that I am not unhappy.  Indeed, in the immortal words of Mater, "I'm happier thanna tornader inna trailer park!"  That said, Paul Caron (via Instapundit) asks why law professors are "edgy," by which he seems to mean discontented.  I confess I want to use this observation to float a very general idea I have, which I suspect is so good that it is almost certainly not original.  And it may not even be that good.  In my defense, I will say that this blog post is much shorter than any law review article.

My observation on the general cause of much discontent not just among law professors, but among humans in general, of which the former are, albeit controversially, a subset, can be presented in two pictures.  First, here is a picture of the distribution of intelligence, at least as measured by a standard IQ test, in the US population:

Iq_distribution_2

Second, here is a picture of income distribution in the US:

2005_income_distribution

This is not going where you think.  I am not going to suggest or complain that law professors, who are so smart, are paid less than real estate promoters or whoever, who are not.  (Though this completely irrelevant picture I stumbled upon is interesting.)  Rather, I call your attention to the very different shape of these graphs.  Intelligence is normally distributed.  It is spread out in the population according to our old friend, the bell curve, which smarter people call a Gaussian distribution.  Income, on the other hand, is not normally distributed.  It is distributed much more like a power law distribution, which is illustrated in the context of web page linkages below (because that's the easiest context in which to find a handy picture to steal on the web):

Figure76


I like the picture above better because it illustrates the "long tail" webbies are familiar with more clearly.  But if you moved the axes around on the income distribution picture, you would see that income distribution also follows a highly skewed (darn skewed!) distribution, much more like a power law distribution than a normal distribution.  (See also this dated but still cool income distribution poster.)



Continue reading

December 29, 2007 | Permalink | Comments (20) | TrackBack (0)

Failure in Pakistan
Tom Smith

This is worth reading.

December 29, 2007 | Permalink | Comments (1) | TrackBack (0)

Thursday, December 27, 2007

Dworkin's Justice in Robes
Mike Rappaport

I have been reading Ronald Dworkin's Justice in Robes, which I find interesting, but problematic.  Here I want to discuss a small mistake but one that I think may be indicative of something important.

In the beginning of the chapter on Originalism, Dworkin notes that George Bush promised to appoint judges who adhered to the intentions of the Constitution's framers, and cited Dred Scott as an example of what happens when one does not enforce the framers' intentions.  Dworkin writes:

Bush is not a constitutional scholar and his mistake was evident: Dred Scott was an example of justices not ignoring but enforcing the framers' intentions because the original constitution contemplated slavery.  But his meaning was clear enough: he meant he would not appoint the kind of judges who voted in the majority in Roe v. Wade.

I mention this because Dworkin's statement is clearly mistaken.  His suggestion that Dred Scott would have been justified under originalism (even original intent originalism) because the constitution contemplated slavery is puzzling.  Originalists generally believe that Dred Scott was wrongly decided.  But that is not because they ignore that the constitution contemplated slavery.  Rather, they believe, as Justice Curtis argued in his dissent, that Chief Justice Taney and the majority misapplied the provisions of the Constitution.  For example, they believe that the diversity of citizenship clause did not exempt free blacks from citizenship.  It said nothing about blacks and there was no reason to infer any prohibition.  In fact, the Constitution itself drew a distinction between slaves and free people, providing in Article I, section 2, that Representatives and Direct Taxes shall be apportioned among the several states which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons. . . , three fifiths of all other persons."  Thus, free blacks would count for representation and would be citizens. 

One might believe that I am picking on a single sentence by Dworkin here, and I am.  But when he suggests that a nonconstitutional scholar like President Bush has mistakenly applied the constitution, with a sentence that betrays his own misunderstanding of the constitution and its history -- a misunderstanding worthy of a nonconstitutional scholar -- it is worth calling him on it.

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

Sunday, December 23, 2007

White Guys Have No Rights. And They’d Better Shut Up If Think They Have (Part 1)
Gail Heriot

This semester my employer required me to take a training course on sexual and other illegal workplace harassment. USD didn’t adopt this policy by choice; California law requires it. Alas, the course, turned out to be an annoying piece of propaganda. Here’s what I (and untold thousands of other Californians) "learned":

1. White Guys Can Be Scary. The core situation in the computer training course is a tendentious incident in which a recently-promoted black, female bank employee named "Shani" receives anonymous e-mails from someone who purports to be her secret admirer. This escalates into a kind of stalking. Finally, the "secret admirer" takes a large photo of a naked pregnant woman with a headshot of Shani (who is herself pregnant) pasted on it and hangs it on her office door with the caption "pregnant and looking for love." Obviously, no one imagines that this is proper office decorum. 

Who turns out to be the perpetrator? Can’t you guess? It’s the white guy who complained that he should have gotten Shani’s promotion. He earlier claimed that he was the victim of "reverse" race and sex discrimination, so he’s a scary guy. We’re told that his actions were calculated to frighten her into not returning to work after her upcoming pregnancy leave.

Okay, fine. No doubt white guys who complain that they are the victims of reverse discrimination do bad things sometimes, just as every other variety of humankind does bad things sometimes. And producers had to use some dramatic situation as its theme. But it’s needlessly insulting to its captive audience for it to portray the villain as a person who is unenthusiastic about the merits of affirmative action. No one else in the program is portrayed as anything more than a generic "employee."

Nevertheless, that alone would not have inspired me to write this blog entry. It gets worse ....

2. All Complaints Must be Treated Seriously. No jokes. No retaliation. This is a theme that the course returns to over and over again. A manager is REQUIRED to report any incident that might be interpreted as sexual, racial or any other kind of illegal harassment to the friendly bureaucrats who inhabit the "Human Resources Office." Hence, both Shani and her friend from another department had a duty to report the various incidents involving the "secret admirer"–the e-mails, the stalking, and the poster.

Another minor incident in the training course involves a women named "Ami" who is exasperated that a colleague of hers, "Wendy," has been complaining of being harassed on account of her obesity. Evidently, Wendy herself makes jokes about her weight. Ami says to her supervisor, "Hey, can I bend your ear for a minute? Is it safe? Are the Sensitivity Police out?" She then asks, "Look, can’t you get the [Human Resources Office] to drop this Wendy thing and let the rest of us get back to work? It’s really bringing down team morale, and people just aren’t laughing like they used to."

Course participants are instructed that Ami must be admonished. A good supervisor should [e]xplain that the organization expects all employees to act in a professional and respectful manner when dealing with each other." Participants are further instructed that "Ami should not make negative comments about the investigation, or about Wendy for making the complaint." Of particular importance is the so-called "No Retaliation" policy:

"Explain the no-retaliation policy. If Ami witnesses any retaliation against Wendy because of the current investigation, Ami should report it immediately–this includes ‘ribbing,’ teasing, or even giving the cold shoulder. Retaliation is strictly prohibited by law and the policy."

Got that? It’s not just that Wendy’s supervisor must not penalize her in her assignments or evaluation for making her complaint. It’s not just that nobody may tease her about it. Her colleagues may not even pay less attention to her socially than they did before. Absolutely no retaliation unless ....

3. Complaints Made by White Guys Don’t Count. Here Retaliation is Evidently Fine. The exception to the "take all complaints seriously" rule appears to be for white guys who complain that they are the victims of discrimination. When Shani first learns the identity of her "secret admirer," she tells the Human Resource bureaucrat:

"You know, I remember overhearing him saying something really offensive about how he was the victim of reverse discrimination when I got the job. Really out of line. I wonder if I would’ve reported it then ... (emphasis supplied, ellipsis in original)."

The Human Resources bureaucrat replied:

"That certainly would have been the right thing to do, and reporting it then might have enabled us to nip this in the bud earlier."

Huh? How can Shani, a bank manager, get away with pronouncing our villain’s complaint "really offensive" and "really out of line"? Isn’t our villain simply making a complaint that he has been mistreated by his employer under the laws of California and the United States of America? Doesn’t the no-retaliation policy apply to white guys complaining of discrimination too? Evidently not. The training program treats it as obvious that white guys are not supposed to complain about discrimination.  Can anyone imagine that if the roles were reversed, and Shani had complained that she was discriminated against in the promotion as a black female, that anyone would have called her protests "really offensive" or "really out of line" with the training program's approval?

We’re later told that the villain has been fired and that his case is being referred to law enforcement for possible criminal prosecution as "cyber-stalking."

This is really over the top. The message the employee is supposed to carry away is clear: Anyone who complains about any kind of inappropriate harassment or discrimination in the workplace must be treated with kid gloves (even if the complaint is silly), unless the complainant is a white guy concerned about "reverse" discrimination, in which case he’s "really out of line" and his conduct is "really offensive."

It occurred to me that this training course is itself a rather blatant form of racial and sexual harassment.  Employees taking the course are not so subtly being told, "Do not dream of complaining about race or sex discrimination if you are white or male.  Your employer will consider you to be 'really out of line' and your conduct 'really offensive.'  This may have an career shortening effect."

Update:  In my original version of this post, I identified New Media Learning as the producer of the training course.  I have since received an e-mail saying that I am mistaken about this.  I am checking to get the right info. 

December 23, 2007 | Permalink | Comments (21) | TrackBack (0)

Charlie Wilson's War
Mike Rappaport

I caught this movie tonight, and found it quite enjoyable.  It is both funny and tells an important story.  The acting, especially by  Phillip Seymour Hoffman, was first rate.

That said, as one would expect from a Hollywood movie by Aaron Sorkin, there is some left wing bias in the movie.  Somehow, the story forgets that Ronald Reagan had something to do with funding groups resisting communism.  You know, that thing called the Reagan Doctrine. 

Still, I never expect to see a political movie that doesn't have liberal bias, and the bias in this one was not strong enough to spoil for me what was otherwise quite a fun film.

December 23, 2007 | Permalink | Comments (2) | TrackBack (0)

Saturday, December 22, 2007

Increased Use of Filibusters
Mike Rappaport

According to Josh Patashnik at the New Republic, the Republicans are on pace to have filibustered more bills, by a significant amount, than have ever been filibustered in the past.  According to his statistics, more than twice as many as ever before. 

Now, why might that be?  Patashnik wants to simply blame the Republicans, but that is silly.  The most obvious reason is that the Democrats engaged in unprecedented use of the filibuster (against federal judges) when they were in the minority, and that has led the Republicans to respond by increasing their use of the filibuster.  Not a word about that, though, in his post.

The Democrats were warned that their behavior would change the rules of filibuster use, but as is the case in most bilateral situations with this Hatfield versus McCoy structure, they were inclined to ignore the warning.  And so the growth of the filibuster continues.

I am not much inclined to bemoan its use.  I believe that other supermajority rules would be far better -- for example, one applied to spending increases might be very desirable -- but I certainly don't regard this one as a disaster.  As compared to a simple majority rule in the Senate, the filibuster supermajority rule has both benefits and costs, and overall my guess they are even.

December 22, 2007 | Permalink | Comments (1) | TrackBack (0)

Friday, December 21, 2007

Is it time to set up the biggest Napster in the world?
Tom Smith

Does this mean entrepreneurs should start downloading every song, book and image you can imagine and put them in a digital vault in Antigua?

December 21, 2007 | Permalink | Comments (2) | TrackBack (0)