Saturday, April 12, 2003

...and the horse you rode in on!

Looks like those deep divisions between State and Defense are taking their toll on Colin Powell:

Mr Powell also said that the US and its coalition partners would not be willing to hand over political authority to the UN once Saddam Hussein's regime had been removed.

"The suggestion... that now that the coalition has done all of this and liberated Iraq, thank you very much, step aside and the Security Council is now going to become responsible for everything, is incorrect," he said.

"And they know it. And they were told it."
Yup, it's a wonder he and Don Rumsfeld haven't just had a duel to settle the thing.

Hat tip: LGF.

Friday, April 11, 2003

I would like to talk about optimism and conservatism.

I've been thinking a lot about this lately, which is not to say that I'm any more enlightened on the topic than when I began, but I can say I'll sound nicer when I talk about it.

It is a fundamental premise of conservatism that someone, somewhere, is making the same mistake millions of others have made hundreds of times before -- and he won't be the last. Conservatism sees men, to borrow a line of Orrin Judd's thinking, as inherently comic -- fallible, fallacious, and always falling on their faces. Conservatism is to some extent premised on the notion that the more things change, the more they stay the same. Hence, I'd argue that conservatives were better prepared for the events of the last year -- the uselessness of debates in the U.N. Security Council, the machinations of the French and Germans (and to a lesser extent the Russians and ChiComs), the way America became a villain apparently overnight -- than our liberal friends, all because this is the way things always work. States are amoral actors. Men are selfish and self-serving. No true conservative should be shocked by most of the events of the last year -- including Bush's eventual "Aw, To Hell With 'Em," and its timing.

To put it succinctly, conservatives are the great pessimists of the world; we're never surprised when things turn out the way they inevitably do.

On the other hand, American conservatism is in some ways, and in some quarters, different from traditional conservatism. American conservatism was once called liberalism, and implicit in it was this: While men are Fallen, and deprived of God, they are not inherently depraved; they can better themselves, and their world, even though they will never come close in any real sense to perfection. It's the difference between Bill Buckley and Pat Buchanan; between Jonah Goldberg and Robert Novak; between, yes, Rush Limbaugh and (at an extreme) Father Charles E. Coughlin: The former in each pairing is a man who knows that men screw up, early and often, but has hope for them nonetheless; the latter is a man who is without doubt that men chart a direct path for Hell by waking up in the morning.

I'm caricaturing, but I'm trying to make a point. For all of the (ample) doom and gloom in The Federalist Papers, for all of Alex Hamilton's warnings, for the inherent suspicion of the masses implicit in our government's structure, consider this: Our Revolution was truly revolutionary. It posited that, for all of men's faults -- for which we needed checks, and countervailing governments, and limitations on the popular will -- there was a strong case to be made for freedom. The right to a jury trial, descended from the mother country, was enshrined in our Constitution. The freedom to agitate, to gather, to worship God free from the Federal government's over sight; the freedom in our homes from troops or lawmen of that same government; indeed, the very federal system, which posits paradoxically that men can be most free when there are two governments fighting to regulate them -- all of these are announcements, intimations, proclamations that when men are set loose upon the world, their work is frequently good. That freedom is a good thing because men are inherently capable of using it correctly is a profoundly optimistic assumption -- and one well outside of the spirit of the times.

I stress that this should not be confused with modern liberalism, or libertarianism, or progressivism, or what have you, for they all posit, at some level, that men are inherently good, or at least can be made so. It is the difference between believing that a coin tossed in the air may come up heads or tails, and having an ontological (if not epistemiological) certainty that it will come up tails. The former is hope; the latter is foolishness. The former is the American revolution; the latter is the French revolution, at best.

I'm walking down this road because I'm a Reagan conservative. Ronald Reagan was many things, among them a former liberal Democrat. In a sense, he was one of the first neoconservatives. And yet he was never that, and much more. Reagan made people believe in America again. Now admittedly, I missed the chunkiest parts of stagflation, and the Ford administration, and I was blissfully unaware of Jimmy Carter's existence until I was three. But looking back, to some of my earliest political memories, I can remember feeling good to be an American during Reagan's terms. Oh, and wanting to go to war with the Soviet Union over that Korean airliner. The first time I ever felt my skin tingle, that I can remember, is watching an American flag unfurl on television, in I think 1981.

Reagan believed in people's good side, along with their bad. He was convinced that men could get past the bad part, at least a little. He believed in the Shining City on the Hill. He wasn't resigned to the existence of the Soviet Union; he saw it for the evil it was, and like a good, pre-1960s American, rolled up his sleeves and went to work. He made America, in a sense, America again, by reminding us that we were Americans, dammit, and we're the last, best hope of humankind.

I'm not offering a paean to Reagan here (well, not just that); I'm fully aware of Reagan's limitations. But what I mean to say is, aside from some of the loonies over at and The American Conservative (but I repeat myself), no one doubts Reagan's conservatism. On the other hand, no one doubts his constant, sunny optimism. And implicit therein, to many minds, is a contradiction: For if men are always taking two steps back for every one forward, why hope that they can ever get ahead?

I'm not sure I know the answer to the alleged contradiction I've posited, traditional conservatism v. American conservatism. But I will say this: I don't see a Gordian knot at all. I'd argue that it's possible to have hope for mankind -- that's implicit in our being such a hope -- and that is a profoundly American, and conservative, sentiment. Having hope doesn't mean closing your eyes to reality, or ignoring the fact that men can be evil, as well as good; it just means that you know what you have to overcome, to make things better.

NB: On Lew and the American "Conservative" above: Note the lack of links. I don't make nice with folks who've turned on their own country, especially folks who should know better.

UPDATE: The ever-reliable Paul Cella correctly takes me to task for painting with too broad a brush where and The American Conservative are concerned. I should clarify: It is the editorial positions of the two publications -- especially Lew and Friends -- with which I take umbrage. In the same way that my much-beloved National Review publishes articles which strike me as wrong, or at least out of synch with a better understanding of the world, it must be said that Pat Buchanan's publication has been broadly willing to accept pieces from writers with whom they have profound ideological differences. Lew and kids... well, I have not been able to stomach that site for some time, so I'll just work with my last impressions and say that I think I was, for the most part, correct where Lew et al. are concerned, even if I was too broad with Pat and the Paleocons. And I should add that Pat Buchanan had the good grace, and moral correctness, to write this (which I originally read on Townhall).

Actually, this calls for a bit of a post in its own right; I'll get to that later. The very short of it is, I don't think conservatism was "hijacked" (could we please start using a better word than this? or at least a less visually evocative one?); my only beef with the much-dreaded neocons is that they actually supported John McCain; and a great deal of my respect for Pat Buchanan, and indeed most paleocons, has vanished in the last year, due in large part to their willingness to make common cause with the very hardest of the Left.

FURTHER UPDATE: Paul Jaminet, The Brother By Another Mother of the Brothers Judd, expands and offers a more eloquent version of what I was trying:

Now, Reagan's optimism, like that of many other American conservatives, was the result of his religious faith. If a good God rules the universe, we can trust and hope that things, in the end, will go well.

But I think there are two powerful non-religious reasons for conservative optimism. Both reasons have to do with the evolution of the economy. Together, they give us cause to be far more optimistic than conservatives of 50 years ago.

The first is the increasing rate of real, per capita economic growth in free societies. As a general rule, unfree societies are stagnant, whereas free societies grow. But in the past, the rate of growth in even the freest countries was small. In the history of the world, there was never a year when real economic growth exceeded 0.5% before 1800. Yet as technology has advanced, growth rates have steadily increased -- to 1% annually 1820-1920, 2% 1920-1980, and 3% since 1980. I won't be surprised if the U.S. economy soon grows at 4% annually.

The second reason for optimism is cultural. The economy provides everyone with a cultural training. The ideas and character traits which help us earn our living, we adopt, and transfer to other areas of life including politics. The modern world, I believe, has experienced three major cultural eras...
It's quite good. Read the whole thing.

Sorry I'm so late on this, but last week was ... an Elton John Marathon.

Double, final UPDATE: Paul Cella takes on the question with his usual flair and aplomb, and I'm tempted to say he has the better of the argument. Tempted.

Some guy I've never heard of before takes issue with Reagan and, incidentally, me. (Only incidentally; he's quite clear on that.) Permalink probably won't work, so scroll around.

SO-I-LIED-AND-THIS-IS-THE-FINAL-UPDATE: Paul Cella has more cogent thoughts on the matter, and quite adroitly points out that one may expect things to go to Hell, without being certain that they will. I'm pretty well with him on this: As he puts it:

If a man were to awake from a long and torturous fever-induced nightmare, and discover with a start that he is rushing wildly toward a precipice, all he need do is stop; having committed his will to simple survival, his vista opens wide from there. He need not thoughtlessly turn, almost as if beguiled by a new fever, and march precisely backward in his own wild steps. To his left may extend a daunting though ultimately navigable path along the mountainous crags back to his home; to his right may open a broad and primordial forest, imposing but by no means malicious, through which he can arrive at the home of his fathers. He may even find it necessary and desirable, after careful deliberation, to attempt a risky descent off the cliff before him, anticipating that below, perhaps, there is a solid road around the mountains or the forest; and for this he will need sturdy and reliable equipment, which upon consideration is readily available all about him, though most of it was dreadfully concealed by shadows and monsters in his nightmare. The point is that what he must not do, what in fact only a man of terrible insanity would do, is commit to a fatalism about his rush toward oblivion, or fancy somehow that oblivion is desirable, and plunge headlong in silence.
Like I've implied before, if you're looking for eloquence, you're in the wrong place; head over and check out Paul's work instead. (If I'd spent a year at it, I doubt I would have come up with such a nicely-phrased metaphor, or a more compelling image.)
Maybe I'm just a crass, old, under-thirty anti-Soviet Cold Warrior, but contra Glenn Reynolds, I'm not in the habit of celebrating Soviet accomplishments, other than whupping Nazi ass.
One more golf note, on the point below:

I should point out that I know that sapiens is the singular form of the Latin adjective, and therefore the word as "sapien" is a bad Anglicization of the language. However, I didn't feel like dragging out the Latin any farther than needed. So, I bastardized the poor word for singularity.

Just noting.
I take back what I said about Page 2:

Where I live, I got to see UConn's first round annihilation of Boston University, a game UConn led at halftime 49-22. Is showing this debacle really "growing" the sport? And how ironic that Boston University was served up as UConn's sacrificial lamb. Boston University, you'll remember, is a school that lost its entire football team to Title IX compliance. One would have thought that without big-time football's "drain" on the athletic program the women of BU could put up better numbers.

The Nielsen ratings for this first-round tourney action? A puny 0.34 (294,902 households).

Let's put that in perspective. Remember the XFL on NBC? The pro-wrestling inspired football league lost parent company General Electric something in the neighborhood of $50 million and was canceled after one season, due to low ratings. Well, the XFL championship game between the Los Angeles Xtreme and the San Francisco Demons garnered a 2.1 (2,157, 000 households). Here's more perspective: The 2002 championship game of the WNBA garnered a 1.0 rating (1,085,000 households) on NBC, the same network which ruthlessly cut the XFL. Yet the WNBA is now in its seventh season on network television.

In men's sports, ratings are everything. With women's sports, no one cares so long as you're "on message." (The WNBA is so political that its website has an entire zone devoted to "Show Your Support for Title IX.")

The infuriating thing is that there are plenty of sports where the women's game is equally, if not more, enjoyable to watch than the men's. And it doesn't require charity and hype to get people to tune in. We've got tennis, soccer, volleyball, gymnastics, and figure skating. But no, the girl-power publicity machine is not going to be satisfied. They're going to jam women's basketball down your throat UNTIL YOU LIKE IT!

Sports programming should be about entertainment, not waging the gender wars on our television sets.
Amen, sister.

Hat Tip: Ben Domenech.
Cats and Dogs, Hating Each Other

Andrew Sullivan points to this story for the following proposition:

More Massachusetts residents now support equal marriage rights than oppose them, according to a new poll. I point this out so that when the hard right claims that the courts are subverting popular opinion, you'll know they're projecting.
There is either a factual fallacy at work here, or a logical fallacy.

First, to suggest that notoriously left-wing Taxachusetts residents falling in love, so to speak, with the idea of gay marriage is somehow shocking, surprising, amazing, or in any way unexpected is to announce that you're broadcasting from Bizarro World. We're talking about a state with a heavily Catholic population that votes for Ted Kennedy every single time he's up. To be honest with you, the surprise to me is that the poll data indicates that the People's Republic of Massachusetts just now decided it favored gay marriage. I woulda figured they'd have decided that by last Great Leader Day, or whenever someone came up with the Big Dig, whichever came first.

The logical fallacy may be a result of reader impression, rather than writer intent, but: Insofar as he's implying that the opinions found in the PRM are in any way, shape, or form indicative of the rest of the country (and that, therefore, courts announcing a right to gay marriage in, say, Kansas or Texas, would not be subverting popular will) is to engage in wish fulfilment so strong as to actually raise questions concerning one's narcotic use.

(Thus, the article itself starts with:

In a major break with public opinion across the country, a new poll taken by the Boston Globe and WBZ-TV finds a slim majority of Massachusetts residents express support for allowing same-sex couples the right to marry.
Yup, that sweeping mandate, she is a-coming.)

Thursday, April 10, 2003

Yup, that global warming really sucks.
Apparently, coherence isn't required of's Page 2 writers:

At this year's Masters, something smells funny among the magnolia trees.

Anticipating the shape of things to come, National Geographic magazine tapped your boy for the duty for a 1,000-word "Zip USA" story. I had 30904 -- the Zip that included, among other things, Augusta National Golf Club. I was to try to make sense of it all, find a telling theme, in a thousand or so words.

National Geographic was denied a credential for the 2002 Masters by the Augusta National Golf Club, which cited as its reasoning that a Zip USA story could be about anything in that "Zip" code, not about Augusta National itself. The implication was that Augusta National was a theme alone, not standing on anyone else's back, or at their side, for that matter. It would not sully its reputation by potentially being cast in the same set of photographs with the rabble, or the help. Or, since you bring it up, the womenfolk, either. They could come around and work, if and when invited to do so. But they could easily be dismissed, when it came time for cigars and blue stories that mostly used them as punchlines.

I spoke to Glenn Greenspan, media liason between Augusta National Golf Club and the rest of the world. He was nice. He sent "Masters" press guides and such to me; they tell you everything about it, except what you want to know.

So, I went to Augusta to see for myself.

They might just as well have taken a "Hell No, We Ain't Forgettin'!" sticker off the back of a pick-up and wrote it up purtier as a template for the etching on the statue on Broad Street downtown that speaks to the time in the long-dead past when the "Masters" came into being.

All Martha Burk wants is women members at Augusta National.

The "Masters," and all horrors its name implies, was born akin to the statue that honors the Confederacy on Broad Street downtown. Its etching says, "No Nation Rose So White and Fair, None Fell So Pure and Free of Grime."

No need to dwell on it, though. There's newer stuff around now to occupy you. There's an art gallery across the street from the statue. There's a colored guy in there, acting like he knows something about art. Jessye Norman, the opera singer, has an ampitheater named after her, bisecting the freshly bricked Riverwalk. Over to Fox's Lair downtown, good white guys to know -- the ones in the law business, ex-sheriffs, bailiffs, bail bondsmen, lawyers, and what-not -- were getting hozzled, and I don't mean golf clubbed.

One lawyer with a practice on his boat said, "Hell, idjit, don't you know nothing? Discotechque over there's for the po' folk; the real jizz goes on up in the big houses, upland, uptown, not down here ..." He said the big houses would be rented out for that week for 10 and sometimes 20 thousand dollars -- the higher price fetched three "Masters" Patron Badges instead of two; "'maid service' is included, if you know what I mean ..." That's a direct quote. "But you didn't hear it from me. You don't know my name."

"Yes, you do," said the black barmaid. "Jack Boone, Jr."

Jack Boone Jr. squirmed, chafed, then pleaded with her, "Aw shoot, Doris," although her name was not Doris. He told -- asked -- the barmaid to top off his drink. She did while giving him a look. Not so free from grime was he.

"Wow," I thought, "there are a lot of interesting things about Augusta and mastery that aren't in a press guide."

I found that, black or white, the general consensus was that the founders of the "Masters" tournament, Bobby Jones and Clifford Roberts, were making a social statement, too; they weren't just holding a tournament, or, as it's called here, a "too-na-mint."

For example, for years, the unwritten, understood rule at Augusta National and the "Masters" was, golfers were white, and caddies were black, and never the twain should meet otherwise. There was even a written Caucasians-only restrictive covenant that wasn't officially struck until 1961. Very odd in a way, because the whole place is crawling with blacks and women. I mean, literally crawling with them. But between the "Masters" and "Gone With The Wind," a semblance of honor could be regained for the Old South. It wasn't all bad. Some of it was ever so grand ...

Yeah. Right. Whatever.

That's just the way it was in Augusta, for what seems like many years, an Old Testament eternity, but actually isn't. The "Masters" tournament isn't even 70 years old.

Hell, Earl Woods alone is as old as the "Masters."

Lee Elder shakily stepping up to the first tee box was the first black man to play -- officially play --at Augusta National in the "Masters," in 1975.

Tiger Woods was not even born by then. In fact, if you look at it, he was born on December 30 of that same year, so he would have been conceived about the time of the 1975 "Masters," in which Clifford Roberts dryly shook hands with Lee Elder, and unbeknownst to him at the time, inspired Earl Woods, not to join a club, but to embrace his wife Kutilda. Now, not half a lifetime later, Tiger Woods is the "Masters" tournament's great champion of champions; his brown skin and the hint of epicanthic fold at his eyelids did not stop Life from happening, even out of chaos.

So now, is 2003 Women's Day at Augusta?

It isn't, it will be.

There is no edict making it so.

No letter or protest will announce it.

No refusal or bewildered denial can stop it.

Life just happens, and continues to go along. It's chaos theory, and here's how that theory works: There is no barring life, segregating it, no stopping it for long. Sometimes there can be rushing it, or delaying it, or killing it, trying to bury it; but there's no stopping it. It happens. Martha Burk can ride the wave, but she didn't start it, and she can't stop it. Her protest will seem to fizzle out this weekend, at the 2003 "Masters," but that won't matter a tittle. Barbara Eden is out of the bottle.
May I?

First, Augusta is a private club. You know, like, oh, I'm just picking at random here, The Black Law Student Association -- which, incidentally, only accepts black law students as members. Query: Does Wiley think they should be forced to have white members? Just wondering.

So as a private club, why shouldn't they be free to admit whomever the hell they like? Oh, I know: Because chattel slavery is identical to housewifery. Because nailing manacles through men's ankles is identical to asking for fried chicken and biscuits for dinner, instead of meatloaf. Because subjugating a group of humans based on their skin color alone -- the historic injustice that the civil rights movement was trying to undo -- is indistinguishable from not letting women into law school.

Yup. I see where he's coming from now.

(2) The problem with sending a Yankee into the South is that they've all internalized 1958 and Gone With the Wind. Of course "the Masters" refers to chattel slavery, and, ok, sure, they have black members, and Tiger Woods plays there, but MARK MY WORDS! They're trying to re-launch the Civil War!!

(3) How do we know what caused Tiger Woods's father to impregnate Tiger Woods's mom, and:

(a) Why do we care?

(b) Is it even our damned business?

(4) "Toon-a-mint": Because remember, it is wrong wrong WRONG to make fun of blacks, Asians, and Hispanics for linguistic problems with English, but man-oh-man, there is nothing so much fun as making fun of those Southern Bwahs when they speak, is there?

Oh, and moron: In Augusta, they say "Tuhn-ah-ment." At least get your mockery down right, jackass.

(5) Actually, idiot, chaos theory does not mean "[t]here is no barring life, segregating it, no stopping it for long." It means, in one respect (I'm keeping this simple just for you, Ralphie), that even within apparently random event sequences, there is a pattern. It means that small permutations can geometrically build to larger ones. It is the proverbial butterfly in Beijing causing storm cycle changes in Brooklyn. There's much more to it than that, of course, but I figure that sentence probably destroyed your prefrontal lobe, so I'm not going any farther.

(Here's a good primer on the subject. Learn to read, then browse it.)

(6) I'd like to tackle one more bit of idiocy:

It seemed delusional, as homo sapiens, as mammals, to think you could segregate yourself from that from which you come. Consider the source of our comfort and desire.

You see? You don't? Well, I'll keep trying. Roll over and ask your significant other, "Honey, what do you think about women as members of Augusta National Golf Club?"

Notice how she replies. Does her reply reflect total honesty, what she really thinks, or how she knows she has to handle you on this subject? It's a loaded question. It goes beyond Augusta National. Should a woman be free, is what you're asking. Even the ones who say they don't care -- it's just tactical, whether they are actually aware of it being tactical or not. They are saying that to continue to survive in the manner to which they have become accustomed. As one long-time black Augusta caddy who's worked with Gary Player among others told me, "I try not to make enemies out of rich folks." Note that he didn't say white folks, or menfolks, or Republicans. He said rich folks.
(a) As a homo sapien, does it make sense to cut yourself off from the dirt out of which the basic components of your existence come? If not, then why are you wearing shoes? Working in an office?

(b) Wow, false consciousness theory. I thought that went the way of Bill and Hill. So a woman can't honestly believe -- to her core -- that sometimes men need their own space, and women do, too?



(c) I asked my wife about Augusta. She said it's wrong to have a men-only policy, morally, and, perhaps, legally. I told her she was full of [it]. I asked her if she'd mind if high school boys got to hang out in women's locker rooms. That's different. If women should be forced to have male ob/gyns, because after all, men and women should be forced to mingle, right?

She, of course, God bless her, punched me in the gut.

Doesn't make her any more right, nor does it mean that her belief in single-sex locker rooms or having the choice of same-sex doctors are signs of false consciousness.

So, to summarize: The point of the article is that a bunch o' hillbilly rich boys are keepin' the womenfolk out 'cuz they're stoopid, talk funny, and are disconnected from reality; they're probably all racists, even the black ones; they're definitely misogynists; they're on the wrong side of History; and any women who disagree aren't women after all.

Took ol' Ralph 2,000 words to recycle typical left-wing garbage. Took me 58. But that's because I'm a racist, misogynist homophobe, I guess.


(Via Jimmy, who I think still has that burning desire to tell the world off.)
For the record, I haven't said much about the war in Iraq for two reasons:

First, I don't get much TV, and my life is consumed with work and housework and rare glimpses of my family, so TV takes a distant spot in my priorities. I am therefore sort of disconnected from the world right now.

Second, grateful as I am that we've won, and that the Iraqis won't face miserable levels of torture, oppression, and starvation (and admittedly, that a lot of Democrats, paleocons, and lefties are gonna have to start eating crow now if they want to be done by the time of the 2004 elections), I cannot hope to say anything quite as eloquent as this.

Or this.

Or this. Or this. Or this. Or this. Or this.

Or this.

Or this.
Getaway Driver Praises Quick Capture of Bank Robber

French President Jacques Chirac hailed the fall of Iraqi President Saddam Hussein's government in Iraq and said he hoped the fighting in the country would end soon, his office announced.
Vivez les Maquis!


Wednesday, April 09, 2003

Why the Republicans, despite numerous Democrat attempts to seize the title, remain the undisputed, champeeeeen stupid party.

Hint, kids: They won't take you seriously until you make them bleed. While it means your life will be a little harder for a while, try. They'll never show respect if you don't make them.
This is What I Get for Not Drinking More Coke

I was doing a back-read on Orrin Judd's work -- like I said before, I can't keep up any more -- and I came across this:

Libertarianism in its most extreme, or most immature, form rebels against the notion that even God can limit liberty. That rebellion is the point at which it turns into mere license. Like all extremisms, it envisions itself as uniquely pure and uncompromised, but it must be obvious that having abandoned the idea of a Creator and rights as issuing from Him, this kind of libertarianism becomes incoherent. For if Man is not endowed with dignity by virtue of being Created, then what is the basis for saying that the individual should be inviolate? It can only be that you say it should be so--but if I believe otherwise, necessarily with equal validity, then what may I not do to you? And so a doctrine of liberty that has no other basis than the individual and his capacity to imagine freedom will descend into anarchy. Nietzsche offers a typically cogent aphorism that captures the danger: "[M]an would sooner have the void for his purpose than be void of purpose." And because it is the nature of men to demand not just freedom but security, they will insist that someone put an end to the anarchy; that something fill the void, and, the internal restraints of religion and tradition having been destroyed, there will be no one left to intervene between men but the State. Thus does an ideology which ostensibly aims at maximum freedom render a system of minimal freedom.
That is but a small, nibbling bit; the whole is worth more than a few minutes of your time.

It is my dream to someday be as thoughtful as this man.
Gary Hart Joins John Kerry on Sinking Ship

Gary Hart is now in month, what, four? of his ongoing flirtation with a run for the Presidency:

Former U.S. Sen. Gary Hart said Tuesday a decision on joining the race for the Democratic presidential nomination is only days away, maintaining the feedback he's received so far is very encouraging. [...]

Hart on Tuesday blasted the Bush administration for using "subversive tactics" to conduct the war, and said the lack of focused goals would hurt American troops and send the economy in a downward spiral.

"This administration is not prepared for the retaliatory attacks we will face as a result of this war," said Hart, who suspects Bush has a broader agenda than regime change in Iraq. "The president was not candid with the American public."

He said the war with Iraq is inextricably linked to the nation's economy.

"This war is financed by foreign debt," he said. "This war is going to cost us $200 billion when we are running a $300 billion annual deficit."
It takes a rare, brave, principled, stupid politician public servant to say of a President who is winning a popular war, freeing an entire people, and holding back our full military might so as to spare as many civillians as possible, that he is "using 'subversive tactics' to conduct the war," (on national TV!) that "the president was not candid with the American public," (aside from some well-publicized speeches) and that we're spending too much on national security.

It is especially stupid when that, er, public servant is running for the Presidency, on behalf of a party that has a well-deserved reputation for softness to threats, foreign and domestic.

I know InstaPundit was really hyped about Gary Hart a few months ago, but let me be on the record about this: Any Democrat who runs left of Bush on national security is gonna get trounced in the national election (if not the Dem primaries). Hart is a throwback to Democrats of the 1970s and 1980s, even if some people won't admit it.

He's toast.
Evil and its willing stooges.

The man is a walking parody.
Orrin Judd, in an only tangentially related (and well worth reading) post, quotes A Few Good Men, a movie of which I'm very fond (and he is not). I will therefore share my favorite part of the movie:

Son, we live in a world that has walls and those walls have to be guarded by men with guns.

Who's gonna do it? You? You, Lt. Weinberg?

I have a greater responsibility than you can possibly fathom.

You weep for Santiago and you curse the Marines.

You have that luxury. You have the luxury of not knowing what I know: That Santiago's death, while tragic, probably saved lives.

And my existence, while grotesque and incomprehensible to you, saves lives.

You don't want the truth because deep down, in places you don't talk about at parties, you want me on that wall. You need me on that wall.

We use words like honor, code, loyalty...we use these words as the backbone of a life spent defending something. You use them as a punchline.

I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, and then questions the manner in which I provide it.

I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post.

Either way, I don't give a damn what you think you are entitled to.
A friend in high school and I used to quote this to each other all the time.
Kerry Announces He Wants to Lose in 2004

John Kerry announced that he'll have a litmus test for High Court nominees that somehow isn't a litmus test:

The potential retirement of Supreme Court justices makes the 2004 presidential election especially important for women, Senator John F. Kerry told a group of female Democrats yesterday, and he pledged that if elected president he would nominate to the high court only supporters of abortion rights under its Roe v. Wade decision. [...]

In making his pledge about Supreme Court nominees, Kerry denied he was establishing his own litmus test, an accusation that congressional Democrats routinely level against Republicans who say they favor appointing only judges who oppose abortion. The difference, Kerry said, is that the Roe v. Wade has become settled law since the court rendered the decision in 1973 and now defines a constitutional right.

''Let me just say to you: That is not a litmus test,'' Kerry told about 85 women who turned out to listen to him over a continental breakfast in Des Moines. ''Any president ought to appoint people to the Supreme Court who understand the Constitution and its interpretation by the Supreme Court. In my judgment, it is and has been settled law that women, Americans, have a defined right of privacy and that the government does not make the decision with respect to choice. Individuals do.''

In an interview after the speech, Kerry added: ''Litmus tests are politically motivated tests; this is a constitutional right. I think people who go to the Supreme Court ought to interpret the Constitution as it is interpreted, and if they have another point of view, then they're not supporting the Constitution, which is what a judge does.''
Let me see if I understand his reasoning correctly:

Litmus tests are tests imposed on judicial nominess by the political office holders who nominate them, on whether or not the political appointment of a judge will affect the interpretation of the Constitution, which they should do the same way it's done, and if they don't interpret it the way it's interpreted, then they're committing treason. And my test isn't a litmus test because it revolves around making sure that my interpretation of the Constitution remains the official interpretation; theirs is a litmus test because it seeks to produce a different outcome.

Literally, that's what his words mean. Don't blame me for the circularity, blame him.

This raises a number of Carroll-like questions, the answers to which I'll leave to you:

What profiteth it a man to gain the world Democrat nomination, only to lose his soul the Presidency in return?

I know he has to make nice noises for the Dem primaries, but in a right-of-center country with an increasingly rightward tilt, where those GE commercials show babies quite clearly on ultrasound, where the mood of the populace is trending steadily rightward on this issue, is this really a good way to make a firm bid on the Presidency?

Is John Kerry insane?

Are his advisors?

How much longer are media organizations gonna call this apostate "Catholic"?

Why hasn't someone officially excommunicated him yet?

Has anyone even told him he's excommicate latae sententiae?

Can we just burn him at the stake and get it over with?

UPDATE: Ramesh Ponnuru, of course, says better what I was trying to say -- and remembers what I forgot to add, to-wit: If "settled" is the last word (I suppose "settled" means over thirty years old?), then we should just toss that Brown v. Topeka Board of Education case right out the window, right, John?

Dammit, that's it. This is going too far.

Spam today: "Hot Sweaty Lobster Sex!! XXX!!" (emphasis mine)

Lobster sex. Lobster sex.

I officially give up on the world.
I'm starting to think I should just call this blog "T. Crown's Musings on Medical Malpractice and Tort Reform," which is kind of irritating, as there are a lot of things I care a lot more about than medical malpractice, tort reform, lawsuits, liability, and the general crankiness that our legal system either embodies or causes, depending on how you look at these things.

For example, I like thumbs.

Anyway, since I'm this far down the road, there's really nothing left to do except to toss the silver down the well, pack up the chickens, and keep going.

MedPundit has a link to a very thorough exegesis on the value of medical malpractice lawsuits in providing a negative incentive to doctors to show more care in treating their patients. I, like Ms. Smith, am not qualified to examine the statistical analysis in detail; I will say that game theory and simple human psychology suggest the fellow is right. I'll also tell you from firsthand experience that it's right: One hospital we sued because they failed to recognize a postoperative pulmonary embolism that killed a man, now checks routinely for pulmonary embolisms in their postop patients. I know of two people who had embolisms that were caught, at that hospital, and treated, and lived -- and I'd argue it's at least in part because the hospital was worried about getting sued again.

Ms. Smith, however, rebuts with a point that's been bothering me for a little while now: The danger of overreaction. I'll let Ms. Smith put it in her words:

But, I think that far more often, fear of a lawsuit causes us to overtreat and to order unneeded tests to protect ourselves.

All doctors experience this, and not just occasionlly. Here’s another example from my own practice. A patient came to me after her sister was diagnosed with ovarian cancer. She wanted to make sure she didn’t have it. I discussed how we don’t really have a good screening test for ovarian cancer. She should have yearly pelvic exams to check for ovarian masses, but by the time those are felt, cancer is usually advanced. We could do yearly ultrasounds, but a cancer could still crop up in the intervening months, and be quite aggressive. We could do yearly blood tests for a protein that’s produced by ovarian cancer cells, but the test isn’t specific for ovarian cancer. It can be elevated for other reasons, resulting in a lot of worry and perhaps a needless surgical procedure. Again, a cancer could develop in the intervening months. Early diagnosis of ovarian cancer doesn’t necessarily improve outcomes, because ovarian cancer tends to be aggressive. We discussed genetic screening, which also can’t tell her with any certainty whether or not she’ll develop cancer, but only whether or not her risk is increased.

In the end, she looked at me blankly, shrugged her shoulders, and said, “I don’t know. You decide. I trust you to do what’s best for me.” But, in the case of screening tests like that, I don’t know what’s best for her. I don’t know if the false sense of security she gets from a normal screening test is worth the lower level of daily anxiety. I don’t know if she’ll think that a surgical procedure initiated by a false positive screening test would have been worth the risks it entails. But, I do know this. If I don’t do those tests, and she gets ovarian cancer, I’ll be the one who gets the blame. Maybe not by her, but certainly by her family. So, completely out of self-interest, I ordered the tests. They probably won’t make a difference in her life expectancy. They will certainly cost her insurance company a lot of money. But, they’ll keep me out of court.

I know that I'm not alone in this. Everytime I get a radiology report that hedges on the result and suggests more studies, I know the radiologist is doing the same thing. I suspect most of my mammogram call backs are due to this. There are times when exercise stress tests are equivocal for evidence of heart disease, the history not very convincing, yet patients get cardiac catheterizations "just so we don't miss anything." And there are plenty of times when we all order x-rays looking for fractures when we know full well the yield is likely to be small. All of this adds up quickly. And we all pay the price.

As one of my older, more experienced, colleagues once said, "It used to be that ordering a lot of tests was a sign of a doctor's inexperience. Now, it's the standard of care."
It's senseless to deny that this massively increased care isn't raising the cost of health care, health insurance, and most other "health" things.

It would also be senseless for me to argue that I know the way around the problem. In a sense, it's a disturbing side effect of one of the most wonderful things ever to happen to humanity: Technological progress. As we get better at treating illness, we live longer, and healthier, and we slowly start to expect mortality to be farther and farther away. (It's called a "longer life expectancy.") So, we get greedy -- rationally -- and we want more. We want to live longer and healthier. We want to be sick less. We want to be cured faster. We want the best treatment, now that we know it's possible. (Put it this way: You tell an average serf in 1200 A.D. that he'll live until he's seventy with the right medical care, and he'll think you're nuts; do it to the average guy on the street now, and he'll want to know why you're shortchanging his medical care.)

The problem is, what we demand is, in the short run, more expensive. And with the baby boomers about to get much, much sicker, on average, the system might very well explode.

Yes, I know: All I'm doing is restating the problem. Sue me. You have a solution? Click on the mailto link on the left.

Tuesday, April 08, 2003

Speaking of humor, get a load of InstaPundit's takedown of that insufferable prig, James "Catholicism Means What I Want It to Mean" Carroll.

By the way, the most embarassing line of that piece is not the straw men it shamelessly erects, or the dithering moral equivalence, or any of the usual garbage. It's this:

James Carroll's column appears regularly in the Globe.
I know I've been linking him a lot lately, but check out the now one-year old Travelling Shoes for a take on the Clinton Cult.

I could quote it, but, one, I'm still laughing, and two, I don't wanna ruin the joke.
In reference to my malpractice post here, a reader -- the first to reply to this blog -- writes:

I do not know a good alternative to the present system - but I can tell you of the costs on the side of the defendant.

I am a tax CPA. One of my partners was sued a couple of years ago (malpractice in terminating an S corporation election. That is, for the non practitioner, the individuals owned a corporation whose income (or loss) passed thru directly to them.) My partner discussed their plans, the projected growth, their other income, and recommended terminating the S election.

Well, the next year, we found out they had a substantial loss on the corporate return (not projected by them), and the client sued us because "we" screwed up their individual return. (The loss on the corporate return could no longer offset their personal income.)

The case never went to trial (for a number of reasons - basically, the client had no case. I do not want to give details, but we would have prevailed in a trial.). But it still cost us $25,000 cash, plus a couple hundred hours of my partner's time and aggravation, etc. CPAs are NOT like trial lawyers. We CANNOT bill 1/3 of your refund. We typically bill based on our time - and that time is gone.

We were out $25,000 as a firm, plus the opportunity costs of the lost partner time (there was also some staff time involved in preparing for our defense). The suit was withdrawn. We cannot sue - where do we get our money back? Should we get emotional damages for the fact that someone sued us and then withdrew the suit?

Another example. A client came to us, claiming that their prior CPA had screwed their return. We did a little work for them, and then they found a different CPA firm. They (this former client) has begun a suit against the first CPA. I have had to answer interrogatories and provide workpapers in relation to this suit. I will not be reimbursed for my costs nor my time in this matter. Again, an innocent bystander, supplying at his own cost for the legal system.
The fellow deserves an answer. I'll paraphrase from my reply, to protect his anonymity:

First, just so you'll know, this doesn't sound like the sort of case classic "trial lawyers" go in for: First, because this doesn't sound like a winning case, and second, because the recovery would've had to be pretty big for the amount of work that would go into showing that you were negligent. We *generally* work on contingency fees (which of course means that we get nothing if we lose). Speaking from personal experience, we also charge hourly if the client can afford it and wants to go that way.

Second, depending on how long ago this was, and what state you were in, it might behoove you to see about Rule 11 Sanctions, or a malicious suit case. Not every state has the latter, and most states have the former (to summarize, a rule identical to Federal Rule of Civil Procedure 11, which sanctions -- charges -- lawyers and their clients who bring suits in bad faith). You can also try a suit -- and most states of which I'm aware don't have this -- that's akin to malicious prosecution. Talk to your lawyer about that.

If -- not just in your opinion, but in an objective way -- there was no merit to the suit, report the lawyer who brought the suit to the Bar for your state. We get in loads of trouble for doing that sort of thing; and I'm generally supportive of any enterprise to clean out my profession.*

As far as the discovery: I can't help you with that too much. Third-party interrogatories are like third-party subpoenas: We balance the smaller harm to third parties by so inconveniencing them with the much larger harm of not getting all of the information needed to reach the truth. If they actually depose you, though, talk to your lawyer about charging them for it.

The firm or lawyer asking for the documents, however, is supposed to reimburse copying and postage costs, I'm pretty sure in every state.

I honestly feel bad for this fellow: I'll be the first to admit that this is an imperfect system, created by imperfect men. Sometimes, innocent folks get stung. Small consolation to this guy and his partner, admittedly.

The alternatives, though, are frequently worse. The European model is predicated on the notion that people can't be trusted, juries can't be trusted, only terribly well-educated judges can be trusted. Our system has lasted somewhere on the order of nine centuries because, for all its pitfalls, things like this aren't as common as the legitimate application of justice.

Am I gonna deny that injustice is worked through the justice system? Hell no. I could go on for weeks about things that make my blood boil to consider them. But is the system a malicious venue of oppression? Honestly, I don't think so -- and the consensus in this country has been with me since the Founding.

* Related note: Lawyers aren't really allowed to solicit business -- especially classic ambulance chasing. If you are a doctor, or nurse, or whatever, and lawyers prowl your halls looking for clients -- as opposed to visiting clients who were clients before the lawyers set foot in the hospital -- get their names and report them to the Bar of your state. Please. They give the rest of us a bad name. And if you've been sued, and it really, honestly had no merit, consider doing the same.
Ever get the feeling that J.P. Chretien has invisible sails on his back, so he can always tack with the wind?

Jean Chr├ętien is to give a speech in the House of Commons today endorsing the Bush administration's "mission" in Iraq and asking MPs to declare formal support for a quick victory by coalition forces.

The Prime Minister will speak in favour of a government motion designed to show solidarity with U.S. and British forces in Iraq and hope for their victory, even though Canada refused to join the coalition against Saddam.

The motion affirms "the unbreakable bonds" of values and family Canadians share with the United States and Great Britain.
I mean, even Joe Lieberman didn't change course that hard and that fast.
Just for the record, I detested Josh Marshall before it became cool to do so.

Also for the record, I never found his rationale for "I used to want war, but now it's too dangerous" anything more than a very well-ventilated fig-leaf for renewed anti-Bushism.

I could go on, but I swore not to link him.

Monday, April 07, 2003

The upside to embedded reporters.
Matt Hoy has returned!
By the way, that global warming thing is a bitch. I mean, golly, snowstorms in NYC in April?

They used to have snowstorms until June, in Queens. Then global warming set in, and now they only last until April.

Bleeping, bloody...

It's gonna be below 60 at night where I live for a while. And I live in the South, dammit.
This article suggests, by negative implication, that we should crown Donald Rumsfeld "Emperor for Life."

Conversations last week with a dozen of Mr. [George H. W.] Bush's friends and close advisers turned up nothing to dispel the view of him as an internationalist worried about the influence of the go-it-alone hawks in his son's administration. He is most concerned, they said, about the need to jump-start the Middle East peace process after the conflict and about how the United States and the United Nations will sort out their conflicting roles in administering a postwar Iraq.
With due respect to a man who served his country nobly and ably for decades: You were a one-termer, and something of a squish. You are one of three Presidents in the 20th Century to lose your re-election bid, joining those two other greats, Herbert Hoover and Jimmy Carter. I happen to think you were better than either; but before we go acclaiming your foreign policy insight, and follow your suggestions, let's review the fruit of your decisions:

End Gulf War I Before Driving Saddam Hussein Out of Power: Twelve years of crushing sanctions; Gulf War II.

Force the Israelis to the Peace Table: Give Yassir Arafat a national redoubt, equipped and financed by the E.U. and the U.S., from which to slaughter Israeli civillians; make the Israelis more intractable than ever; give Hamas, Fatah, Hezbollah, Jihad, and too many other groups to count breathing room to slaughter the innocent.

Invade Panama: No real effect. Failure to re-take Panama Canal that Carter gave away. Failure to get more Latin American players for MLB teams.

Try to Hold Soviet Union Together While It Was Tearing Itself Apart: Increase the cost and recovery time of rebound from decades of communism; help legitimize a regime that slaughtered and terrorized hundreds of millions; help Boris Yeltsin seem like a heroic genius.

I'm leaving to the side "inertia" policy, i.e., doing what others had done before, like treating Mobutu Sese Seko as anything other than the tinpot loony he was, and sending a rep to the United Nations. I don't blame you for those, or at least, I don't blame you for those more than I blame your predecessors.

Sorry, kid. A batting average like that would send you out of the minors, for the love of Pete. It is -- and, blessedly/sadly, was -- enough to keep you out of a second term in the majors. (Of course, the call-up in your place was even worse...)
MedPundit has a summary of a book review that's available to NEJM subscribers, of the book Whiplash and Other Useful Illnesses. The review's central point, and Ms. Smith's, is this:

There have been studies that show that injuries take longer to resolve when there are unresolved compensation issues - such as lawsuits and worker’s compensation. And although this is only anecdotal evidence and nothing to base public policy on, I’ve noticed in my practice that patients recover in a matter of days to weeks when they’re the ones at fault, compared to patients who are the victims of accidents, who take months to get better.

And the time for recovery does clearly seem to be related to compensation. This is what happens. A person has an accident, and as a result sprains their neck. As in any sprain, the pain is at its worst the first few days, then it gradually gets better. But, even when things are mostly better, there are still, on occasion, twinges of brief pain that come and go. For the person not involved in litigation, these twinges are barely noticed because they’ve moved on. Their injuries are no longer a major focus of their lives. They perceive these twinges as nothing more than the usual aches and pains that everyone suffers now and then.

But, the person who is trying to get compensation for their injuries, either through the legal system or the worker’s comp system, has the constant fear that things might get worse. Once they settle the case, that’s it. No future claims will be paid by the other party. So, when they feel those twinges, their inclination is to wonder if they might be harbringers of worse things to come, of disabilities that won't be compensated. That anxiety only serves to magnify the pain. Which keeps the case open. Which costs society a lot of money.
I've wondered about this for some time. We get a broad range of folks in here -- most are decent sorts, some are nose-to-the-grindstone, some are a tad more... relaxed. But to a one, the longer litigation drags on, the longer their healing seems to be arrested.

There are two points here, to which Ms. Smith is not alluding:

First, it costs money to get medical treatment. A lot of our clients get little to no medical treatment, because the insurance companies (cough, the ones we're suing) won't pay for medical treatment -- so of course healing takes longer during litigation. (A couple of our cases started because the buggers wouldn't even pay out for medical bills of all things.) Worker's comp cases frequently end up in the system because the insurer decides that the herniated disc you're suffering from isn't that bad. Just walk it off.

Second, the actual stress of a case is enormous. Most people don't experience litigation, but for those of us on the inside one way or another, you can see these folks worrying -- unpaid bills from the injury and healing time, lost credit, waiting medical treatment, and so on, can really eat at you. I can't imagine that has no impact on one's recovery.

Blinkered system, really. If it weren't the least bad one we have, I'd junk it in a heartbeat.
On that story, by the way, I'm not sure how I feel about the result of the opinion. I have no empirical problem with some sort of relationship between the level of damage suffered and the scope of the punitive damage; you shouldn't tag a supermarket chain with $300,000,000 in punitives for a spill in one of its stores that leads to a broken hip. On the other hand, "proportionality" is sort of a tricky thing, and I'd usually leave it to the jury to figure that one out. In a wrongful death case, is punitives ten times the economic damages proportionate? Six? One hundred? I don't like bright lines in situations like these, because so many different kinds of cases, with so many different causes of action, come before the courts.

That leads to why I have a problem with the result of the case in every other sense. This really should have been left to the states. A lot of states already have hard caps on punitive damages (which is to say, a flat figure, above which one cannot go); I'd argue that such a cap comes very close to a constitutional issue in itself. Those states that don't have caps are considering them. For the Supreme Court to go making up (yet another) rule, another malleable test -- well, let's just say that if Dred Scott couldn't teach them the danger of that ("substantive" due process), nothing I say here could make a difference.
Because remember, Antonin Scalia is a dimwitted conservative whose opinions always bear out his personal prejudices.

It is for this reason that I call Jack Balkin an ass.
Golly. Can anyone else say casus belli?

At one of the palaces, half a dozen Syrian soldiers were found, one of them hiding in a refrigerator, military officials said. The Republican Guards responsible for the security of the palace had fled.
Any comment would be superfluous.

Hat tip: Tacitus.

Sunday, April 06, 2003

Remember that tort reform post I kept promising?

Here it is. This post -- by a lady I rather respect -- set it off.

Before you read any farther, please check out the post to which I am referring. It's not fair to her to rely merely on my excerpts for rebuttal. She has good points, worth answering; this post will be here when you get back.

Ms. Smith writes:

As usual, the trial lawyer association argues that caps for noneconomic damages only penalize the injured. (Funny, they never mention how caps also penalize trial lawyers.) This idea that an award of millions of dollars somehow compensates for injury deserves to be challenged.
I am officially saying it: Caps on noneconomic damages do penalize trial lawyers. Fair enough. But before we continue down this vane (and, no pun, vein), let me explain how most medical malpractice suits work:

You get someone in your office who's injured. They think it's the doctor's fault. You have to talk to them, get copies of their medical records (this starts to add up -- but more on that in a second), and generally have a feel for the compensability of injuries, before you can decide whether or not to take the case. Put simply, medical malpractice cases aren't worth it unless they're, well, worth it.

Ah ha! The Evil Trial Lawyer admits that the members of the ATLA are in it for the money!

Not quite. Let me continue, and you'll see why.

Assume that the case is worth it -- by "worth it," I mean that the verdict, if things break correctly (by which I mean, the jury verdict is large enough to cover all damages) exceeds $50,000 for small cases, and $150,000 for larger cases. More on those numbers in a second. The lawyer must then -- as almost all of these are done on a contingency basis (if we win, we collect a percentage of the award, and costs; we lose, we get nothing) because the plaintiffs are poor (more on that below) -- shell out the following costs, at minimum:

Acquire medical records. $100-1,000.
Retain a physician as expert witness: $3,000.
Filing fees: $25-$100
Service on one to twenty defendants (doctor plus any other entities liable): $15-$1,000
Cost of deposing defendant(s): $4,000 to $45,000 (depends on court reporters, states, travel expense, number of depositions required, and way too many other factors to label easily here)
Cost of deposing opponent's expert(s): $6000 to $75,000 (these folks -- cough, doctors -- charge dearly for their time, and the side taking the deposition must pay; also, in one case of which I know, deposition costs exceeded $150,000, but that was an unusual case by any measure)
Travel costs: $20 to $2,000 (varies with case, locus of injury, etc.)
Printing costs (for all those pesky motions): $150 at least
Expert preparation for trial/ expert(s)' trial cost: $3,500 to $40,000 (a case we finished up a while ago had expert costs in excess of $60K, but that was (another) unusual case)
Lost time from paying cases (admittedly, something of a double cost, and a theoretical): unknown, but something along the lines of $10,000 to $800,000 (multiply $125/hr by, say, one thousand hours over six years, including appeals, cross appeals, and various disruptive and set aside motions; then keep in mind that few medical malpractice cases are handled by a single lawyer -- this is a fair estimate)
Postage: Adds up, let's say $300 over three years (that's on the low end, trust me)
Copying costs: $1,000 (Requests for production, etc. -- also adds up way too quickly)

None of this includes the enormous number of man-hours that go into such a case. The average lawyer bills around $125 per hour or so (some more, some less) when we're getting paid; we're doing this essentially for free until the verdict comes in. Looking through some of my notes, I spent one hundred hours over the course of three months doing preliminary research on a case involving neural damage, spinal injury, and stroke. And that's not the record. (We didn't take that case, so that was time down the drain.)

It costs a lot to bring a case to trial.

All of this is fine, you say, but it ignores Ms. Smith's basic point: Who cares/ it's just trial lawyer expenses/ y'all get rich off of this.

Actually, it goes right to the point. We can't bring a case like this unless it looks like the doctor's really liable, which is to say, he did something so far outside the standard of care -- screwed up so far beyond what a normal doctor would do -- that a jury will see it and attribute the fault to him; unless the plaintiff is badly harmed (the shorthand is "permanent, crippling disability"); and unless it looks like there will be a lot of money in it. Put more succinctly: It costs a great deal of money to go after the doctors who screw up badly, and badly hurt their patients. If you do not believe that there should be some justice in such a case -- or, in a less loaded way, that someone should pay -- then you doubtless could care less. But, without stepping on the soapbox, there are a lot of doctors who do a lot of bad things. Most don't. I'm rather fond of my doctor, and my kid's doctor, and my wife's doctor. They're dedicated, intelligent people, and I have no doubt that -- assuming they make mistakes -- they do so in the way that reasonable doctors do, i.e., they are not negligent. Indeed, I'm willing to bet that most doctors are not negligent over the course of their lives. They may make mistakes, but negligence is a different monster altogether. I'm willing to concede that even those few who are negligent are rarely negligent to the extent of grievously harming their patients.


There are doctors who screw up badly, and sometimes often. Ignoring this doesn't make it go away. And people get hurt, or, yes, killed. We just got a case with one of those.

And it costs money to bring them to heel. Sure, lawyers make money off of this; that's why we do it, in part. (Remember, capitalism is usually good -- related note: Why is it ok to glory in the free market for everyone but lawyers?) (It's not as much as you might think.) But we can't bring those doctors -- who have lawyers one way or another, usually from larger firms -- to justice without the money to fund those operations. That's part of why we seek out the big cases -- so we can afford to do it, and because the jury will usually (correctly, in my mind) only reward those who are badly hurt -- and that, in turn, is why you hear so much about giant awards in the news.

And all of this ignores the costs we have to go through for cases we reject, or lose. That's not a small amount of money, in real terms, or opportunity costs.

Which leads to my second point. Ms. Smith uses an example of one of her patients to argue that money can't buy you relief from pain and suffering. True as charged. But how else do you make them whole? You can't undo the pain, and quite frequently, you can't even manage it out of existence.* The law is, in a lot of ways, a pretty imperfect tool. It has two ways to make people right: Money and equity. Money is obvious in its implications and limitations. Equity basically seeks to force people to act in such a way as to make everyone whole, as fairness dictates. If we could get those badly hurting -- or dead -- people fixed through injunctions, I assure you, we'd do so, and the money be damned. But then again, that implies that we could get doctors, or someone, to fix that condition under court order; and for reasons ranging from impossibility (I know I can't raise the dead) to the Thirteenth Amendment (we don't like to force people to perform labor, for some reason), this isn't practical.

That leaves money. I'm sorry. It's the nature of the system. We have no other way to compensate those people for the pain, and loss, they experience.** If anyone -- and I'm not just tagging on MedPundit here -- can think of an alternative, I'm not kidding, I'm interested. Pop over to Tell me your thoughts on the left and let me know.

It's poor compense, but it's all we've got.

Ms. Smith's other point is this:

Putting caps on non-economic damages would not change any of this, of course. My patient would be equally bitter and dysfunctional no matter what the justice system did. And that's precisely my point - large monetary awards do not alleviate pain and suffering. They do, however, drive malpractice insurance companies - and doctors - out of business.
Here's the carrot. I'll be the first to admit that pain does not vanish with loads of money. (But see above on why it's the next best thing.) AND I'll admit that the malpractice practice is hurting the medical industry. And I'll admit that I have no damned idea how to solve the problem, because doing it Ms. Smith's way -- capping left and right -- is only gonna leave a lot of badly hurt people without enough to get by on, and keeping the status quo is gonna leave us sans m├ędecins fairly soon. And I'm not smart enough to see the way around it.

But I will tell you this. Cap punitives if you want -- as long as you put in an automatic escalator, so the capped value still hurts in twenty years -- but cap pain and suffering, or even (as some argue) ordinary damages, and economic damages -- and understand the consequences: You'll leave folks who are badly wounded without any recourse, and a lot worse off than they were before that doctor touched them. And there, I'll fight you.

* Ms. Smith is conflating economic and non-economic damages. The award her patient apparently got was in part to handle future medical expenses (assisted living, custom housing) -- an economic damage.

** I should also add that for some reason (truly) lost on me, the poor get the crud end of the stick more often than middle class and rich folks do. I don't think it's because most doctors don't like Medicaid patients, or are wantonly sloppier in those cases. But for some reason, the vast bulk of med mal clientele is made up of the poor. They have no way to fix themselves, save those non-economic damages.

UPDATE: MedPundit graciously posts my response, then offers some closing thoughts. Obviously, I can't speak for all of the lawyers out there, especially the huge plaintiff's firms; nonetheless, the costs, real and opportunity, I laid out are pretty much dead-on.
H.D. Miller says better than I would have something I've been meaning to write about the last couple of days:

This period of felicitous climate in the Central Middle Ages has long been known as The Little Optimum; called "optimum" because the warmer climate enabled a flourishing of agriculture in Northern Europe. England, which during the Little Optimum enjoyed the climate of Central France, even developed a substantial wine industry, an industry which was frozen out of existence at the start of the Little Ice Age. It was also during this period that Viking explorers gave Greenland its improbable name and found grape vines growing as far north as present-day Newfoundland.
Full caveat: I'm no Medievalist, but as part of one of my hobbies, and as part of my course of study in undergrad, a good grasp of English and Western Continental (and indeed, Continental) history from about 900 A.D. to about 1500 A.D. was vital. So I'd forgotten the term "Little Optimum," but I did know this:

Military conquests are both easier and less likely in warmer temperatures. If it's warmer, it's easier to move around; swing armies over sea and land; keep your troops supplied; fight longer days, during longer periods of the year, than otherwise; and keep your troops from dying of illness and starvation in general. It's also possible to build up food reserves, so that you don't need to be as worried about leaving during harvest time.

But, because harvests are more bountiful, and winters less harsh, two of the biggest causes of conflict become less. War happens less frequently, as one professor of mine liked to put it, because there's less to fight over, and more to get drunk and get laid over. (His words, not mine.) Populations grow. Political systems mellow, because resources are less scarce.

Put it this way: Aside from the spate of millennial violence right after 1,000, Europe was a pretty calm place, all things considered, during that Little Optimum. Then check out what happened at the end -- the Great Schism (or the Second Great Schism, I lose track), the meaningless Crusades, the Welsh revolt, the Hundred Years' War, the Scot revolt, the purging of the Knights Templar, famine, plague, Catharists, Spiritualists, Albigensians, burned Jewish ghettoes, and so on, and so on.

H.D., of course, could and did make this point better. But it's late, and I'm rambling.