Busy Courthouses, Few Trials

From NYT columnist Adam Liptak:

Trials are on the verge of extinction. They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions. …

Instead of hearing testimony, ruling on objections and instructing jurors on the law, judges spend most of their time supervising the exchange of information, deciding pretrial motions and dealing with settlements and plea bargains. …

Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government.

The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all history.”

Indeed, juries were central to the framers of the Constitution, who guaranteed the right to a jury trial in criminal cases, and to the drafters of the Bill of Rights, who referred to juries in the Fifth, Sixth and Seventh Amendments. Jury trials may be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the federal system itself. …

I was on jury duty last week, in a state criminal court in Manhattan. During the orientation on Wednesday, a court officer, with mixed pride and hyperbole, said his was the busiest courthouse in America.

I never saw so much as the inside of a courtroom. After a couple of days of milling around in an assembly room with more than 100 other potential jurors, the State of New York thanked us for our service and sent us home.

For more about how plea bargaining tactics tax the right to jury trial, go here (pdf).

To listen to a talk that Judge Young gave at Cato, go here.

The Disaster that Is Dirigo

Health care reformers take note.  An article on Maine’s experience with its Dirigo health care program in today’s New York Times highlights some important lessons for those who would use command-and-control tactics to achieve “universal coverage.”

1. Government Coverage Crowds out Private Coverage

The Times reports:

When Maine became the first state in years to enact a law intended to provide universal health care, one of its goals was to cover the estimated 130,000 residents who had no insurance by 2009, starting with 31,000 of them by the end of 2005, the program’s first year.

So far, it has not come close to that goal. Only 18,800 people have signed up for the state’s coverage and many of them already had insurance.

In fact, some 60 percent of Dirigo enrollees previously had private insurance.  That’s consistent with recent estimates by economists Jon Gruber (MIT) and Kosali Simon (Cornell) that whenever government provides health insurance to 10 people, six people lose their private coverage.  Thus only four people gain coverage as a result of the expansion.

That’s government efficiency for you: covering four people for the price of 10.

2. Adverse selection happens.

More from the Times:

[P]remiums have increased, not become more affordable, because some of those who signed up needed significant medical care, and there are not enough enrollees, especially healthy people unlikely to use many benefits…

The program completely covers preventive care, subsidizes premiums and deductibles, and unlike most insurance plans, covers treatment for mental illness and does not exclude people for pre-existing medical conditions…

An Anthem spokesman, Mark Ishkanian, said the increase was necessary because medical claims of DirigoChoice customers were “substantially higher” than anticipated, about double those of non-Dirigo plans…

[A spokeswoman for the governor] said the state was surprised that more than half of DirigoChoice enrollees qualified for the highest subsidy, 80 percent, which meant the program has been more expensive for the state.

Hmm.  Benefits much more comprehensive than the market provides.  And enrollees were disproportionately high-cost.  Didn’t see that coming.

3. Predicted reductions in uncompensated care may not materialize.

Premiums are increasing under Dirigo.  (One diabetic man dropped out after his rates increased 13.4 percent.)  Part of Dirigo’s funding was to come from “assumed…savings because an increase in insured people would mean less charity care from hospitals.”  Guess not.  Gov. Romney, call your office.

4. For some, it’s not about better health care.  It’s about more government control.

When even the New York Times sees fit to run an article about how your big-government health plan is a disaster, it takes chutzpah to say that the answer is more mandates, more taxes, and more regulation:

[Democratic] Governor [John] Baldacci said in an interview that when the Legislature enacted the Dirigo Health Reform Act in 2003, it gave him less money and more compromises than he had wanted. He said his administration had now learned more about what works and what does not.

His new proposals include requiring people to have insurance and employers to offer it and penalizing them financially if they do not; making the subsidized insurance plan, DirigoChoice, more affordable for small businesses; creating a separate insurance pool for high-risk patients; instituting more Medicaid cost controls; and having the state administer DirigoChoice, which is now sold by Anthem Blue Cross.

“We’ve got a reform package that takes Dirigo to the next level,” Mr. Baldacci said. “It takes the training wheels off.”

Seems like the training wheels – indeed all the wheels – have already come off.

Barney Frank, the Occasional Libertarian

Rep. Barney Frank, chairman of the House Committee on Financial Services, gave a resoundingly libertarian interview to NPR’s “All Things Considered” Friday evening. Frank has introduced a bill to repeal last year’s ban on online gambling. As he did in this 2003 Cato Policy Forum, he made his argument in libertarian terms. From the Nexis transcript:

ROBERT SIEGEL: First of all, what is your motive here? Is it libertarian? Is it to achieve more revenues for the government by taxing activity? What is it?

Rep. FRANK: It’s libertarian. I am appalled at the notion that the government tells adults that they cannot do certain things with their own money on their own time in ways that do not harm anybody else because other people disapproved of them. …

But my motive is overwhelmingly that I just don’t want to see the government telling people what to do….

SIEGEL: How much money would taxing Internet gambling bring in to the federal government?

Rep. FRANK: Well, in the bill I am - not a lot - I really want to make it very clear, that’s not my major focal point here. Potentially this could be a useful source of revenue just like any other business. But I do want to stress, my main motivation here is that I do think I should mind my own business and I want to deal with the environment, and I want to deal with economic problems, and I want to deal with poverty and all these other things. But I spend a lot of energy trying to protect people from other people. I have none left for protecting people from themselves.

In between those segments, Frank said that we allow lots of things over the Internet–like wine sales–that are appropriate for adults but not for children. And he said that conservatives want to ban things they think are immoral, and liberals want to ban things they think are “just tacky.”

It’s good to hear an elected official use the word libertarian, and use it correctly, and apply it to issues. Would that more of his colleagues would do so. I’m reminded that seven years ago I did a libertarian rating of Congress. Frank did better than most Democrats, and indeed better than most Republicans (including 7 of the 11 members of the Republican Liberty Caucus Advisory Board). But he voted to restrict steel imports, restrict gun sales and gun shows, and implement the restrictive “Know Your Customer” bank regulations, and he opposed a tax cut. So his commitment to not telling what people to do with their own lives and their own money seems limited.

This year, as Financial Services chairman, he’s demonstrating his interventionist tendencies as well as his sometime libertarian instincts. He wants to push all workers into government health care, to regulate corporate decisions about executive compensation, to put more obstacles in the way of free trade across national borders, to keep Wal-Mart from creating an internal bank clearinghouse to hold down its costs. Not to mention expanding anti-discrimination rules to include gay, lesbian, bisexual and transgender people.

Frank told another journalist:

“In a number of areas, I am a libertarian,” Frank said. “I think that John Stuart Mill’s ‘On Liberty’ is a great statement, and I was just rereading it.

“I believe that people should be allowed to read and gamble and ride motorcycles and do a lot of things that other people might not want to let them do.”

Would that the Republicans who once took Congress on the promise of “the end of government that is too big, too intrusive, and too easy with the public’s money” also reread (or read) “On Liberty” and take its message to heart. And would that Barney Frank come to realize that adults should also be free to spend the money they earn as they choose and to decide what contracts, with foreign businesses or local job applicants, they will enter into.

Mallaby, Penn & Teller on Immigration

Sebastian Mallaby’s Washington Post column today on immigration is simply outstanding. After providing evidence that hard-working people who have crossed the border without the state’s stamp of approval do not increase the rate of unemployment, cost the average taxpayer nothing, and at worst depress wages of native high school drop-outs by 9 percent, Mallaby makes the argument that many otherwise decent people seem unable to make: the well-being of immigrants counts, too:

[A]lthough the concern for high-school dropouts is welcome, it must be weighed against the aspirations of migrants. Is it right to push native workers’ pay up by 2 percent [a generous estimate of the gain from tighter restrictions on liberty of movement] if that means depriving poor Mexicans of a chance to triple their incomes?

Of course it isn’t, and given that the total economic effect of immigration on U.S. households is a wash, the big ramp-up in enforcement spending beloved by immigration hawks is an egregious waste of money. But no politician is going to say that.

Another excellent, and rather more entertaining, rejoinder to nativist hysteria is Penn and Teller’s new immigration episode of Bullsh*t, available here for your viewing pleasure.

How to Reform E-Voting

On Friday, I made the case for scrapping computerized voting. Today I’m going to look at the leading legislative proposal to accomplish that goal, Rush Holt’s Voter Confidence and Increased Accessibility Act. As I wrote in a recent article, the proposal would do several things:

It bans the use of computerized voting machines that lack a voter-verified paper trail. It mandates that the paper records be the authoritative source in any recounts, and requires prominent notices reminding voters to double-check the paper record before leaving the polling place. It mandates automatic audits of at least three percent of all votes cast to detect discrepancies between the paper and electronic records. It bans voting machines that contain wireless networking hardware and prohibits connecting voting machines to the Internet. Finally, it requires that the source code for e-voting machines be made publicly available.

All of these seem to me to be big steps in the right direction. Requiring source code disclosure gives security experts like Ed Felten and Avi Rubin the opportunity to study e-voting systems and alert the authorities if major security problems are discovered. Banning Internet connections and wireless networking hardware closes off two major avenues hackers could use to compromise the machines. Perhaps most importantly, by requiring that machines produce paper records, that those records be the official record, and that the records be randomly audited, the legislation would provide a relatively high degree of certainty that even if a voting machine were hacked, we would be able to detect it and recover by using the paper records.

All in all, this seems like a good idea to me. But the legislation is not without its critics. I’ll consider two major criticisms below the fold.

One set of objections comes from state election officials. Some officials argue that some of the legislation’s requirements would be an unreasonable burden on them. I’m a strong proponent of federalism, so those concerns are worth taking seriously. But the Holt proposal appears to do a reasonably good job of respecting states’ autonomy in designing their own election procedures. For example, if a state already has an auditing procedure that differs from the procedure mandated in the Holt bill, it is permitted to continue using its own procedures so long as the National Institute for Science and Technology certifies that the state’s procedures will be no less effective. Other tweaks may be appropriate to avoid stepping on the toes of state election officials, but on the whole, the Holt legislation seems to me to strike a good balance between local autonomy and the need to ensure that federal elections are secure and transparent.

The most vocal critics of the legislation come from activists who feel the legislation does not go far enough. They believe that nothing less than an outright ban on computerized voting is acceptable. And they have some good arguments. They point out that the add-on printers now on the market are slow and unreliable, that technical glitches can lead to long lines that drive away voters, and that many voters don’t bother looking at the paper record of their vote anyway, reducing their usefulness.

These are all good reasons to prefer old-fashioned paper ballots over e-voting machines with a printer bolted on. Fortunately, the Holt bill does not require any state to use computerized voting machines. That decision is left up to the states, and activists are free to lobby state legislatures to use only paper ballots.

The activists may be right that an outright ban on computerized voting would be a simpler and more elegant solution to the problem. It would certainly make the legislation a lot shorter, since most of the bill is designed to address the defects of computerized voting machines. However, there does not appear to be much appetite for an outright e-voting ban this Congress, and I don’t think we can afford to run another election on the current crop of buggy and insecure voting machines. The Holt bill may not be perfect, but it seems like a big step in the direction of more secure and transparent elections.

Irish Policy Makers Resist Tax Harmonization

Tax-news.com reports on the growing concern in Ireland about European Union plans to harmonize the definition of taxable income for corporations. Such a scheme, particularly if it is voluntary, is not automatically objectionable. But Irish lawmakers correctly fear that a common tax base is merely the first step on the path to harmonized (and higher) tax rates:

European Union Taxation Commissioner Laszlo Kovacs has reportedly told Irish business leaders that formal plans for a common EU corporate tax base will be unveiled by the European Commission next week. …despite Kovacs’s assurances that the system would be optional for businesses, many member states, including Ireland, are strongly opposed to the CCCTB plans, wary that it would be the first step towards the harmonisation of corporate tax rates across the EU, an idea favoured by France and Germany. If this was the case, Ireland would certainly have a lot to lose, as its 12.5% corporate tax rate has been cited as a major ingredient in Ireland’s economic revival in recent years, and investors certainly would not welcome European interference with Ireland’s corporate tax regime. Consequently, organisations such as IBEC, and Irish politicians, have been lobbying in opposition of CCCTB. …Irish MEP Eoin Ryan…told MEPs that he “cannot and will not accept” moves towards a common corporate tax base. “Tax competition is healthy for the economic development of the European Union. It provides a clear incentive to European Governments to manage their public finances carefully and to build a corporate tax regime that encourages enterprise,” he stated. “The bottom line here is that no one size fits all policy covering corporate taxation matters in Europe is going to succeed. It is neither sensible nor realistic to seek convergence of corporate tax rates across Europe. EU member states have different demographic and social priorities. EU member states need to use their corporate taxation policies in different ways so as to entice foreign direct investment into their countries and generate employment.”

This Is a Republic (2)

At an appearance in Iowa this month, the Washington Post reports, Sen. John McCain went out of his way to declare his support for President Bush:

“There’s only one commander in chief of the United States, and that’s George W. Bush,” he told the crowd.

No, senator. This is a constitutional republic, and we don’t have a commander in chief. According to Article II of the Constitution, “The President shall be Commander in Chief of the Army and Navy of the United States.”

That’s an important distinction, and it’s disturbing that any candidate for the presidency would miss it. If McCain wants to be commander in chief of the whole country, of you and me, and to direct us the way the president directs the officers and soldiers of the armed forces, he needs to propose an amendment to the Constitution–an amendment that would effectively make the rest of the Constitution irrelevant, since it was designed as a Constitution for a limited government of a free people.

Next McCain will want us to bow and curtsy.