Justinian Lane - Commentary on law, politics, and tort "reform."

There’s a Reason The 14th Amendment Didn’t Have A Trigger Option

I can say that I no longer give a damn about healthcare reform.  I no longer give a damn because I know that whatever we finally get will be a watered-down compromise that is more about ensuring that neither the Democrats nor the Republicans can be said to have lost the battle.  Both sides are of course under enormous pressure to deliver.  A loss for the Democrats will be seen (stupidly) as a referendum on Obama and the progressive movement, and a loss for the Republicans will be seen as a referendum on the GOP.  Both sides are so firmly entrenched that neither can afford to be said to have lost.  So both sides will deliver some bullshit compromise measure whose effects will be impossible to explain in one or two sentences.

The beauty of the 14th Amendment is that it is both incredibly complex and incredibly simple.  If you doubt the former, take a Con Law class.  And if you doubt the latter, remember that elementary school students are taught that the 14th Amendment abolished slavery.  Sure, that explanation leaves a lot out, but it explains perhaps the most important part of the Amendment.  The 14th Amendment is also beautiful because it neatly and cleanly accomplished what it set out to do.  There’s been a lot of peripheral litigation over the scope of the Amendment, but never any serious debate over whether it’s legal to own a slave in the U.S.

One has to wonder how effective the 14th Amendment would have been if instead it had been written as a trigger option.  Perhaps it would have required states to grant citizenship to a certain percentage of slaves by a certain date, and if those states failed to do so, then the 14th Amendment would take effect.  It could have left it up to the states to determine which slaves to grant citizenship to, and perhaps even let states define citizenship, thus allowing states to game the system by saying that “X percent of our slaves have been granted citizenship,” when in fact that grant of citizenship did not comport with the intent of the drafters of the 14th Amendment.  Can you imagine such a system succeeding?  Probably not if your definition of success meant that there would be zero slaves in the United States.

Similarly, any trigger option that leaves it up to the states (read: private insurance companies) to cover the uninsured will not succeed if you define success as meaning every U.S. citizen has healthcare coverage.

Instead of delivering legislation that is as clean and as effective as the 14th Amendment, Congress is going to deliver us a bill that will best be described as a kludge or a patchwork.  The 14th Amendment wasn’t a kludge and it wasn’t a patchwork.  There’s something else it wasn’t, too: a failure.  And a failure is what I predict this bill will be.

I think it’s funny that on the one hand the GOP yells and screams “listen to the doctors!” about medical malpractice reform.  But when they’re told that the majority of doctors support single-payer universal healthcare, well, it’s not so important to listen to doctors anymore.  The problem is fundamental.  Many people (like me) believe that every American, by virtue of being a citizen in the greatest country the world has ever known, has a fundamental right to medical care.  Others, (like most of the GOP) believe that no one has a fundamental right to healthcare and instead should have to work to pay for it.

Personally, I don’t understand why I don’t have to work to pay for the military that keeps me safe, the fire department that keeps me safe, and the police that keep me safe, but I should have to pay for my healthcare coverage.  If it’s the job of our government to keep us protected from being killed by terrorists, then why shouldn’t it also keep us from dying of preventable illnesses?  One preventable death is too many, regardless of whether it comes from a shoe bomb or poor prenatal care. 

At this point, all I hope is that the Democrats don’t decide to try and buy off Republicans by giving them tort reform.  Here’s what’s going to happen if they do: Within ten years, Democrats will no longer be able to count on the support of trial lawyers, because trial lawyers won’t be able to afford to donate.  Republican challengers will then take out vulnerable Dems, and once they own Congress & the White House, they’ll gut the portions of the healthcare bill that they didn’t like, and keep tort reform.  Hope the Dems keep that in mind…

Your Doctor’s Advice, Brought To You By Coke

This just doesn’t sound like a good idea to me.

CHICAGO – Advice about soft drinks and health from one of the nation's largest doctors groups will soon be brought to you by Coke.

The American Academy of Family Physicians has prompted outcry and lost members over its new six-figure alliance with the Coca-Cola Co. The deal will fund educational materials about soft drinks for the academy's consumer health and wellness Web site, http://www.FamilyDoctor.org.

Source: Family doctors group loses members over Coke deal - Yahoo! News

This is why trial lawyers constantly get their asses kicked in the court of public opinion

Today, the U.S. Chamber of Commerce released a report complaining about lawsuit abuse, and the American Association for Justice released a report complaining about corporate misconduct.  Look at the links below and see if you can figure out why trial lawyers aren’t “winning hearts and minds.”

Click here (PDF) for the Chamber's report, "Selling Lawsuits, Buying Trouble," by Skadden partners John Beisner and Jessica Miller and counsel Gary Rubin. Click here (PDF) for the report from the American Association for Justice, titled "They Knew and Failed To."

Source: Law.com - Dueling Reports: More or Less Litigation?

The Chamber put together a slick, professional report that oozes class.  The AAJ put together a coloring book.  I don’t mean to be harsh, but look at the difference in quality between the two products. 

The Chamber put theirs together in Quark Xpress 6.5.  They’re a couple versions behind, but Quark Xpress is top-notch desktop publishing software. 

The AAJ put theirs together in Microsoft Word, probably Word 2003.  Word is undoubtedly the best word processor out there, but it’s crap for desktop publishing.  You simply can’t make a document in Word look as good as one done in Quark. 

How do I know what software they used?  It’s in the metadata.  I laughed when I saw that the Chamber cleared their metadata such as the name of the author; they probably learned the importance of doing that after their members produced documents with damning metadata in them.  The AAJ, on the other hand, did not clear their metadata.  The metadata they left behind tells me that this document is little more than a repackaging of a previous AAJ article, “Cases that Made a Difference.”

My biggest complaint with the AAJ piece isn’t the coloring-book cover, or the mediocre publishing format.  It’s the title.  “They knew and failed to…”  Failed to what?  Failed to stop selling the product?  Failed to fix the defect?  Failed to be decent human beings?  I have no idea because they don’t tell me.  Even a clichéd title like “Making a killing” would have been an improvement.  

The content of the AAJ piece is pretty good – other than the stuff from the 1970’s and 1980’s that no one cares about anymore.  Dalkon Shield?  Horrible, terrible, and evil.  And entirely irrelevant to anyone under 40.  Try asking a 30 year old what an IUD is and you’re going to hear something like “one of those bombs they use on the road in Iraq.”  Similarly, the Copper-7 thing doesn’t resonate, either.  (And neither does the document that was quoted under the Copper-7 paragraph.  *I* had to read it two times to see what was so bad about it.)

The bit about Renu would have been greatly improved by one picture of a guy with one eye, or a picture of an infected eye.  Even better if it were followed up with some of the nasty internal Renu docs, or even an excerpt from one of the FDA reports.  The article totally dropped the ball on Trasylol.  It left out the most important part of the Trasylol story – that the competing drug was completely safe, and cost 1 tenth of the price as Trasylol.  The Avandia part lacked punch, too. 

The entire document just doesn’t look like it was put together by a multimillion-dollar lobbying organization.  The stakes are too high not to hire typographers and desktop publishing experts to put these things together.

So many of the things that trial lawyers (and not just the AAJ) are amateurish or lack polish.  The Chamber and other tort “reform” whores, on the other hand, spend the money to put out stuff that looks impressive.  I mean, the Chamber’s latest doc is screaming to be printed on 110lb glossy paper.

As always, I’m willing to volunteer my time and resources for free to the AAJ or any other group who wants my help.  And as always, my inbox will remain empty.

More Dirt On The Chamber of Commerce

I of course am interested in the fact that the Chamber pays it’s President $3 million bucks a year, but thinks that someone who is paralyzed by a defective product doesn’t deserve more than $250,000.  

Apple Computer’s announcement Monday that it was quitting the US Chamber of Commerce was just the latest high profile defection from the country's most powerful business lobby—and one of the most prominent opponents of climate change legislation. In the preceding two weeks, three major electric utilities and Nike also said they'd be leaving the Chamber’s board of directors or dropping out altogether to protest its antiregulation stand. But yesterday Nike made it clear that its parting of ways with the Chamber went beyond a simple policy disagreement, describing a lack of transparency and accountability that conflicted with the organization's own supposedly democratic principles and suggested the outsized influence of a few Chamber members in setting its climate stance.

. . . .

The opaque nature of the Chamber's inner workings is also reflected in Chamber president Bill Donohue's role as a booster for business in general and for a few businesses in particular. In addition to raking in more than $3 million from the Chamber in 2007—six times what his predecessor earned—he makes a lucrative income as a member of several major companies' boards of directors. He is on the board of the Union Pacific Railroad, which has given the Chamber $700,000 since 2004. It is also a staunch opponent of Waxman-Markey; it operates diesel locomotives and earns a significant portion of its revenue hauling coal. (On average, major railroads earn 20 percent of their revenue from moving coal.) Since 1998, Donohue has earned roughly $5 million in payments and $3.8 million in stock from the railroad. In return, he is expected to abide by a Union Pacific conflict of interest policy that prevents him from engaging in "any conduct or activities that are inconsistent with the company's best interests." The Chamber has no similar policy.

"What makes this uncommon is in this case the individual is the head of the nation's business federation," notes Natural Resources Defense Council climate campaigner Pete Altman, who first drew attention to Donohue's Union Pacific connection. "They want people to believe that they represent the broad consensus views of their federation, but he is obligated to watch out for Union Pacific, and I just don't see how you reconcile those roles."

Source: Inside the Chamber of Carbon | Mother Jones

Lead Abatement Is A Great Start – But How About Asbestos?

Obviously, getting lead products out of houses is necessary:

When the Obama administration told federal agencies to find “shovel ready” projects that could be fast-tracked and fuel them with stimulus funds, HUD directed additional funds to its lead-hazard reduction program and Elkhart County’s request was approved.

“What an awesome opportunity,” said Carrie Brunson, an environmental health specialist with the county who will spend the next 30 months riding herd on the grant. “I know the difference this money can make. We’re going to get into homes before they’ve lead-poisoned anyone.”

Source: Stimulus targets stubborn foe — lead in homes - The Elkhart Project- msnbc.com

But so is asbestos abatement.  How about we as a nation just man up and spend whatever it takes to go house-by-house and get rid of all the asbestos lurking within?

Technorati Tags: asbestos,asbestos abatement,lead paint

Straight Talk About Medical Malpractice Reform

The first rule of politics is “it’s always about the money.”  So let’s talk about the money in the medical malpractice “reform” debate.

The Republicans claim that many billions of dollars are wasted due to what they’ve dubbed “defensive medicine.”  Defensive medicine occurs when a doctor does something – usually ordering a test – only because he or she is afraid of being sued.  According to Republicans, if we “reform” the medical malpractice system, defensive medicine will stop (or at least slow) and billions will be saved.  This argument is both wrong, and a red herring.  Here’s why it’s wrong:

Each and every medical insurer (including Medicare & Medicaid) makes doctors sign a provider agreement.  The provider agreements differ in many ways, but are identical in one respect: all of them require doctors to certify that every procedure they order is “medically necessary.”  The penalties for ordering unnecessary tests include both monetary penalties, and jail time. The monetary penalties can be very large.  For example, if a doctor bills Medicare or Medicaid for a procedure he or she knows isn’t necessary, the doctor will be liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of the unnecessary procedure.  So if a doctor orders a $1,500 MRI that he or she knows isn’t necessary, the doctor will have to repay the government anywhere from $9,500 to $14,500 dollars.  It will also be the doctor making the repayment, and not his or her malpractice insurance carrier because insurers don’t cover fraud.  Oh, and there’s also the chance the doctor will be criminally tried and go to jail for ordering that unnecessary MRI. 

Now, getting sued in a medical malpractice suit isn’t much fun.  But do you really think it’s worse than paying huge criminal fines and going to jail?  Or do you think there’s more to the “defensive medicine” argument than Republicans are letting on?  The bottom line is that if a doctor orders an MRI and bills an insurer, the doctor is either admitting that the procedure is medically necessary, or the doctor is committing insurance fraud.  Either way, the Republican arguments about defensive medicine are wrong.

Those arguments are also a red herring.  What’s the first rule of politics?  “It’s always about the money.”  In this case, it’s about campaign money.

When Republicans bash trial lawyers, what’s the one thing they always point out?  They always point out how trial lawyers give so much money to political campaigns.  And to which campaigns?  Democratic campaigns.  Republicans tend to exaggerate just how much that trial lawyers give, but make no mistake, they do give a lot of money to Democrats.

Now put yourself in the shoes of a Republican.  If one of the biggest sources of campaign contributions for your opponent was a trial lawyer, what’s one thing you could to to reduce the amount of money your opponent has?  That’s right – you pass laws that make it harder for trial lawyers to make money.  The less money trial lawyers have, the less they can give to Democrats.

But for Republicans, passing tort “reform” doesn’t just cut down on the amount of money your Democratic challengers will have.  It will put more money in your campaign coffers.  Doctors and insurance companies both love tort “reform” because it will save them money.  So if you’re running on a platform of tort “reform,” you can count on both of those groups to give you plenty of campaign cash.

If you’re a Republican, passing medical malpractice “reform” is the ultimate win-win for you: It will cut your opponents’ funding, and increase yours.  But wait – it gets better.

Notice how Republicans are trying to force Democrats to pass tort “reform” in order to get universal healthcare?  Think about how twisted that is.  Republicans are telling Democrats, “Sure, we’ll give you universal healthcare to save countless lives.  But to get it, you’re going to have to commit political suicide.”  Talk about playing dirty!  Of course, the second rule of politics is “You don’t win by playing fair.”

Technorati Tags: medical malpractice,universal healthcare,healthcare reform,tort reform

Lily Allen: Crappy singer, hypocrite

You just can’t make this stuff up.

On Lilly Allen’s new blog “It’s Not Alright” musicians such as Gary Barlow from Take That, the one with the silly hat from N-Dubz and ex-Robbie Williams songwriter Guy Chambers are queuing up to help in her campaign against illicit file-sharing.

The debut post on the blog includes a criticism of 50 Cent, who just a couple of weeks ago had the temerity to suggest that piracy and file-sharing are all part of marketing music.

However, aside from the critique of Fiddy, the rest of the blog post – put there by Lilly herself – is someone else’s work. Arrr mateys, Long John Allen lifted the entire post from another site – Techdirt.com – effectively pirating the work of the one and only Mike Masnick.

Source: File-Sharing Heroine Lilly Allen is a Copyright Hypocrite | TorrentFreak

Note to musicians: If you aren’t singing, why don’t you just keep your mouths shut? The ability to play a guitar or hold a tune doesn’t qualify you to tell me who I should vote for, what products I should buy, or anything else not related to music, for that matter. 

I am so tired of reading abortion cases

I’m now sitting in the second Constitutional Law II session to focus on abortion.  I’m willing to bet that not a single person in this entire class will ever have occasion to litigate an abortion case.  Reading the Supreme Court’s jurisprudence on abortion is at least slightly interesting, but adds absolutely no value at all to my legal education. 

The professor spent literally two minutes discussing constitutional limits on punitive damages, and literally two hours discussing abortion.  I bet at least 10% of the people in this class will eventually seek or oppose punitive damages.  State Farm v. Campbell has so much more relevance to the practice of law than the abortion cases, yet it hasn’t even been mentioned by name!

There’s no reason the abortion jurisprudence couldn’t be covered in a five or ten minute lecture.  For all of the concurring and dissenting opinions, it’s patently obvious that each justice is just coming up with legal reasons to support his or her personal preference.  These cases have next to no value for learning constitutional interpretation or other useful legal skills.

Here’s hoping that we finish these cases up before the next class.

Technorati Tags: law school,abortion,waste of time

How Can Dems Win The Healthcare Debate? By Letting The Trial Lawyers Loose.

If you want to read an excellent article about why Dems are getting their asses handed to them on the healthcare issue, read the entire article I quote below.

If, this fall, proponents of health-care reform conduct a postmortem on how President Obama's signature issue went down to defeat—I'm not saying it will, but stick with me here—they will not be far off if they trace it to this summer's "great phrase face-off." From Obama, we got "bending the cost curve," his hope of slowing the rise in health-care spending. From Sarah Palin: "death panels." From Obama: "the status quo on health care...is threatening the financial stability of families, of businesses, and of government." From GOP strategist Frank Luntz and his clients: some bureaucrat will put himself "between you and your doctor, denying you exactly what you need." From Obama: "If you like your health-care plan, you can keep" it. From GOP Sen. Jon Kyl: "Imagine needing a new hip that will make it easier to get around, but just because you're over 75, the government denies you that surgery." Not to mention Republican Rep. Lamar Smith's assertion that the Democrats' bill "contains gaping loopholes that will allow illegal immigrants to receive taxpayer-funded benefits." And then there was that sign greeting President Obama outside an August town-hall meeting in New Hampshire: Obama lies, grandma dies.

Source: Attack! The Truth About Obamacare

After I read the whole article, I found myself (as usual) pissed off because Republicans are using their standard playbook of fear and lies to set the terms of the debate.  The playbook hasn’t been a secret in a very long time.  Anyone in the Democratic party who pays attention to politics knows who Frank Luntz is, and knows why he is so effective.  In other words, we have the opposition’s battle plan… but we keep dropping the ball.  Why?

Because many Democrats lack the will and the skill to fight an effective rhetorical war.  I say many Democrats, but definitely not all.  Because there’s one group of Democrats who dominate their opponents in any debate: Trial lawyers.  If the Dems really want to win this debate, they need to hand the reins over to trial lawyers.

Who is behind the opposition to health care reform?  Big insurers and big health care companies.  Who routinely beats insurers and health care companies in court?  Trial lawyers.

If trial lawyers ran the show, it would be the big healthcare companies and insurers who would be on the defensive.  How many billions of dollars in punitive damages have been awarded because trial lawyers vilified companies that made decisions based upon cost-benefit analyses?  Too many to count.  What’s another way of looking at the bean counters who make those decisions?  As death panels who decide who is going to live and who is going to die based upon how profitable it is to the company.  Yet somehow, the very same insurers who deny treatment to sick people to make a profit are persuading Americans that a nonprofit public insurer will lead to death panels.  The Dems running the healthcare debate are either too spineless or too clueless to point that out, but trial lawyers wouldn’t be.  Especially since they’d have free rein to use every rhetorical trick in the book in this debate.

In court, there are many rules about what trial lawyers may not say or imply to the jury.  Chief among those rules is the prohibition of making “golden rule” arguments that invite the jury to treat the plaintiff as they would want to be treated.  In other words, a trial lawyer can’t say “Award the plaintiff as much money as you would want if this bad thing happened to you.”  There are many more rules.  In fact, many jury awards are later reversed because an attorney violated one of them.  Ask Geoffrey Fieger, who uses fear and prejudice to persuade juries to award tens of millions of dollars… only to see those awards vanish when an appellate court slaps him for comparing a healthcare provider to Nazis.

Healthcare providers and Nazis.  Sounds kind of like how the Republicans are kicking our asses, doesn’t it?  I can only imagine how badly the Republicans would lose if Geoffrey Fieger wrote the copy for the Dem ads. 

Or Mark Lanier.  If juries were violins, Yo-Yo Ma would take lessons from this guy.  His opening statement and accompanying PowerPoint presentation in the first Vioxx trial were so good that they (a) netted a quarter of a billion dollar jury verdict, and (b) are a major part of a leading book on PowerPoints.  If we let him explain the byzantine system of our current health care system, Americans would clamor to scrap it tomorrow for whatever system he recommended.

And don’t forget the countless thousands of other trial lawyers across the country who  persuade juries every day to find in their favor, regardless of whether the other side has the more logical or nuanced position.

Logic, nuance, and subtlety has no place in American politics except last place.  Sarah Palin (who is too stupid to comprehend a detailed piece of healthcare legislation) has managed to inject herself into the debate by playing on people’s fears, sympathies, emotions, and guts.  Yet the people who have the intelligence and resources to speak intelligently about healthcare are ignored because – yawn – they’re boring.  All trial lawyers do their damndest to make sure jurors don’t fall asleep.  And good trial lawyers keep jurors on the edge of their seats.  So why not let them wake up America?

America’s best trial lawyers are, bar none, the greatest rhetoricians in the world.  Coincidentally, they’re mostly Democrats.   Why on Earth aren’t the Democratic leaders turning them loose on this issue?

Technorati Tags: Trial lawyers,healthcare,health care,debate,rhetoric,spineless Democrats

An Open Letter to the Health Care Protesters

Dear Protesters,

I am lumping you into two groups.  The first group is "concerned citizens," and the second group is "blithering idiots."  Here's how to tell if you're in the latter:

If you actually believe that the government is going to institute forced euthanasia programs, you're a blithering idiot.  Setting aside your (probably racist) prejudices against Obama, do you really believe the average citizens who work for the federal government are going to be part of murder squads?  Do you really believe there are hundreds or thousands of doctors who would willingly kill the elderly at the command of the government?  Or are you so incredibly moronic as to believe we'll have soldiers pointing guns at the heads of the doctors?  Or have you just watched Logan's Run one-too-many times?

Another way to tell if you're a blithering idiot is your attitude about "government run healthcare" and Medicare.  If you don't know that the latter is the former, you're dumb.  And I've seen the videos and photos of the protest crowds, so I know many of you are old enough to be on Medicare.  Here's how Medicare works.  Young, able-bodied people go to work.  Money is deducted from their paychecks and part of their taxes go to fund social programs that take care of the elderly.  One of these programs is Medicare.  People on Medicare go to the doctor, get treatment, and the government pays the bill.  Of course, the government won't pay for ANY treatment - it only pays for treatments it believes are medically necessary.  So right now, in this very country, we have a government-run healthcare program that determines who gets what medical treatments.  And believe it or not, Medicare doesn't have a panel of death doctors who wear black coats with little lightning bolts on the collars who go out and euthanize the old and infirm. 

You're also a disgrace to your country if you're receiving Social Security & Medicare AND complaining that Obama wants to make this country turn Socialist.  Why, I ask you, is it OK for YOU to receive government benefits just for being old, but it's not OK for people like me to receive them?  Asked another way, why is it that I'll become worthy enough to deserve free health care just by doing nothing other than aging?  And do you realize just how hypocritical it is for someone who receives money from Social Security to complain about socialist policies?  If you're so committed to the cause that you give the money back to the government, I salute you.  If you're such a hypocrite that you use taxpayer dollars to fund your trips to the protests, I give you the one-finger salute.

Now, to the "concerned citizens" who are left: Might I suggest you distance yourselves from the blithering idiots above?  May I further suggest that being unruly and yelling at the protests doesn't help your cause?  Here's a tactic to try: Ask the politicians detailed and well-articulated questions.  If they can't answer them, (a) ask them how they can support a bill when they don't know how it will work, and (b) expose their ignorance via the Internet and letters to the editor.  Rest assured, the one thing politicians fear most is being asked intelligent, detailed questions about specific legislation.  I can guarantee that if you printed out a copy of the bill and asked specifically for the politician to go over "Section 1, Subsection A(2) Part B" with you, the politicians will look like deer in the headlights.  Which do you think will help your cause more: Film footage of a bunch of loudmouths yelling about Nazis, or film footage showing that U.S. Senators haven't read and don't understand the legislation they support?

If through your concerted efforts you force politicians to actually read and think about health care reform legislation, you'll improve the quality of whatever is eventually passed.  Make no mistake, I desperately want health care reform.  But I don't want it to come in the form of a lengthy bill that only lobbyists have read.  I want my elected officials to do their god-damned jobs and read the legislation, think about the legislation, suggest improvements to the legislation, and then pass legislation that works as they intend.  I don't want some 1,500 page bill to be passed purely on party lines and then have ugly surprises once the bill is passed.