Leif Olson (who is no relation) is a well-known Texas lawyer who just landed a nice job at the U.S. Department of Labor. He's a good friend of several people at Cato, and a Facebook friend of mine, although we've met in person at most briefly. We agree on many legal issues and likely disagree on some others.
This week, in one of the most unfair hatchet jobs I've seen over the years as a watcher of Washington journalism, a Bloomberg Law reporter took a heavily sarcastic Facebook post Leif Olson wrote three years ago and presented it as meant in all sincerity -- complete with a partial screenshot which clipped off the comments that followed hailing the post as an elaborate exercise in sarcasm, which it obviously was.
As if that weren't bad enough, the piece was compounded with other errors and distortions. As Josh Blackman points out, author Benjamin Penn asserted that "Olson filed an amicus brief for the Cato Institute in 2015, asking the Supreme Court to strike down" President Obama's unilateral DAPA program on immigration. While Olson served as local counsel at earlier stages of the case, he wasn't on that Supreme Court brief.
But don't expect this to be one of those bilious damn-Washington, down-with-the-press stories. It isn't. Instead of the pile-on you might have expected, social media almost at once was full of voices defending Leif Olson -- not only dozens of his own friends and colleagues, but a robust line-up of media critics and commentators from places like the Washington Post, Vox, Slate, New York magazine, and Tablet. Most of them almost certainly do *not* share Leif Olson's conservative political and legal views. But they saw that he had been wronged. Wednesday afternoon, the U.S. Department of Labor saw that too.
Take hope. Truth won out over partisanship, as it should. Most of the big press names who got involved deserve honor and respect for their role. Except those at Bloomberg Law, which as of this morning, in the teeth of near-unanimous criticism, has refused to correct, retract, and apologize for its report. But that's for the next chapter.
It has been a rough news day for government-run health care. But not nearly so rough as government-run health care has been to its victims.
First, The Washington Post reports on the matter of Robert Morris Levy, a former pathologist at the Veterans Health Admininstration hospital in Fayetteville, Arkansas who repeatedly showed up for work intoxicated and who "VA officials say...made 3,000 errors or misdiagnoses dating to 2005." Levy showed up for work one day with a blood alcohol level of 0.4 percent, five times Arkansas' legal limit. He misdiagnosed patients who actually had cancer and whose cancers spread untreated for years, leading to their deaths. "Federal prosecutors charged Levy, 53, last week with three counts of involuntary manslaughter in the deaths of three veterans. VA officials now acknowledge that he botched diagnoses of at least 15 patients who later died and 15 others whose health was seriously harmed."
Veteran Kelly Copelin, whose neck and throat cancer went misdiagnosed by a VA hospital for 13 months. Photo credit: Bonnie Jo Mount/Washington Post.
Levy continued to practice at the VHA for 15 years in part because, according to prosecutors, he easily defeated the agency's quality controls for pathologists. While his actual error rate was "nearly 10 percent, more than 10 times the normal frequency of mistakes by pathologists," Levy was able to make his error rate appear to be 0.7 percent or at times zero. So not only did the agency not fire him for showing up to work intoxicated (neither did Arkansas' medical licensing authorities, for that matter), the VHA paid him multiple bonuses atop his $225,000 salary while his lower-income patients endured unnecessary suffering and "horrible" deaths. Your tax dollars at work.
It would have been fairly simple for the VHA to adopt quality-control measures that Levy could not have defeated and that therefore would have identified his errors earlier and saved lives. But the VHA faces insufficient incentives to adopt such measures. It does not operate in a competitive market and neither the agency nor its employees face the same sort of liability for malpractice that private actors do. In a competitive market, these sorts of horrible consequences would damage a company's reputation and cause patients to flee. But the VHA is a near-monopoly government provider with a captive clientele who typically have no other options. As for liability, Cato adjunct scholar Shirley Svorny writes:
The 1946 Federal Tort Claims Act (FTCA) shields government-employed physicians from medical malpractice claims. This includes medical professionals who work for the Department of Veterans Affairs, the Indian Health Service, the Department of Defense, and other federal agencies. The FTCA makes the federal government responsible for defending federal employees when malpractice claims arise, and makes taxpayers liable for harm due to negligence...
Shifting liability for malpractice from physicians to taxpayers shields government physicians from underwriting and oversight by private insurers. Federal agencies, such as the Department of Defense and the Indian Health Service, do often create risk-management programs. Yet government agencies have less of an incentive to reduce the risk of negligent injuries than private malpractice insurers do, because the money at risk in a malpractice suit is a common resource (federal revenues), rather than a privately owned one. Because private malpractice insurers have more at stake in a malpractice suit than government agencies do, the government’s risk-management efforts are likely to be less rigorous. Indeed, federal investigators have found that in some cases, such as community and migrant health centers, the government is ill-equipped to provide risk management. In most cases, consumers would be better off were government agencies not to shield their physicians from malpractice immunity.
As an indication of whether the remaining incentives are enough to prioritize quality and patient safety, the Post reports:
Inspector General Michael Missal’s office in recent years has identified multiple VA physicians who continued to practice even after they were found to have compromised patient care. A report this year by the Government Accountability Office found weak systems for ensuring that problems are quickly addressed when a physician’s quality of care to veterans is compromised.
Veterans thus get hit by a double-whammy. The VHA has insufficient incentive to change -- that is, to save lives -- because killing veterans really doesn't affect the bottom line of the agency or of individual physicians. A single-payer, Medicare-for-All system would subject all Americans to the same double-whammy.
Second, the Post reports on a Journal of the American Medical Association article that alleges the Department of Homeland Security places unethical employment conditions on physicians who treat migrants in the agency's detention facilities. The authors of the JAMA article write:
[P]hysicians and other health professionals are often put into situations in which they cannot fulfil their obligations to their patients because of competing obligations imposed on them by detaining authorities; this is often referred to as the problem of dual loyalty. Given the reports of inhumane, overcrowded, and unsanitary conditions, including insufficient water and toilets, lack of clean clothing and bedding, high exposure to psychological stress, and poor medical care in many of the DHS processing and detention facilities, how can and should needed medical care for detainees be structured, especially given the dual loyalty challenges that emerge if physicians are employed by the agency in charge of detaining migrants?
First and foremost, health care professionals should insist on and adhere to clinical independence to ensure they are able to provide the highest standards of care that are in the best interests of the patient. This independence also demands that physicians and other health care professionals are not subject to retribution for reporting, both in medical charts and openly and transparently to authorities, including legislative oversight bodies, about their evaluations of conditions of detention that impede their patients’ health and the availability of quality medical care. Currently, all DHS employees, consultants, and subcontractors are required to sign nondisclosure agreements that are quite strict and clearly state that if violated, the person “…could be subject to administrative, disciplinary, civil or criminal action…” Such nondisclosure agreements could conflict with physicians’ primary duties to the health of their patients.
In addition, the Post reports, the U.S. Customs and Border Patrol refuses to provide flu shots to detained migrants, even though influenza has been a problem in its facilities and "at least three children died of the disease, according to autopsy reports."
Yet this "dual loyalty" problem is just another manifestation of the same problem we see at the VHA. Each agency has interests that are different from and often conflict with those of their wards. The VHA and the doctors it employs value their patients but they also value stable budgets and job security. DHS, CBP, and their employees value national security but also stable budgets and job security. The main differences are: VHA employees care about their wards, while DHS and CBP employees are openly hostile to theirs; the VHA has a figuratively captive clientele, while DHS and CBP's clientele are literal captives; and yet, even so, the VHA probably does more to harm the health of its clientele. Such is the power of the principal-agent problem that it can overwhelm the agents' intentions to act in the interest of the principals.
The principal-agent problem appears in private-sector health care, too, where the interests of the insurer often conflict with those of the patient. (So does the interest of the physician, for that matter, and not only because of the insurer.) The solution to the principal-agent problem is to let principals (consumers) choose among different agents (health care providers). The resulting competition rewards health care providers who devise the best ways to align their interests with those of consumers. The reason the principal-agent problem is manageable in the markets for haircuts and auto repair is not that those services are less complicated than health care. It is because those markets are markets. In health care, government has defeated the market mechanisms -- principally, consumer choice and competition -- that would otherwise keep the principal-agent problem in check.
There may be some scenarios where consumer choice and competition among health care providers may not work -- for example, when the patient is someone the government is holding captive. Better health care then becomes one more reason why the government should hold fewer people captive.
People ask if I crossed paths with philanthropist David Koch, whose death is being mourned today, and the answer is yes.
When I resolved to sample New York City's culture in my thirties on a modest salary, I discovered the affordable City Opera at Lincoln Center, already the object of generosity that led to the renaming of the David H. Koch Theater. It gave me joy.
Years later, when I went to Johns Hopkins Hospital in Baltimore to pursue cancer treatment, the first building I saw after I parked my car was the giant David Koch Cancer Research Pavilion. It gave me hope.
And everywhere I went in the liberty movement over forty years, where there was a good cause, David Koch seemed to be somewhere in the background giving support, whether it was economic liberty, peace between nations, free trade, freedom to marry, or free speech. It gave me inspiration.
His death leaves the world poorer.
The directors and staff of the Cato Institute, and indeed friends of liberty throughout the world, are saddened by the passing of David Koch.
David’s accomplishments as a businessman and philanthropist are estimable. But we most remember and admire him for his efforts to advance liberty in the United States and around the world, and his steadfast dedication to libertarian principles.
David is a director emeritus of Cato, having joined our board of directors in 1986 and serving for nearly 30 years. Over this time, the Institute, the Cato community, and our work benefited greatly from his service, insight, generosity, and example. We will not forget the many ways in which he contributed to our mission.
Because the quality of our civil discourse has deteriorated in recent years, David’s dedication to our principles often earned him unfair criticism and excoriation in the public arena. But like us, he was motivated by a firm belief that liberty is the means to human flourishing, through which every individual is able to live a prosperous, meaningful life in a country and world at peace. He also believed strongly that the rights granted to us by nature and protected by the Constitution cannot be denied to any American for any reason. That he bore such unwarranted public criticism with dignity, and that it did not deter him from his work in advancing freedom, merits great respect from all of us.
We have no doubt that David’s partnership will be missed by so many of the causes to which he dedicated himself, not least of which is the cause of liberty. But of course, he will be missed most of all by his family, to whom we extend our heartfelt sympathy and to whom we turn our thoughts at this difficult time.
|Robert A. Levy
Chairman of the Board of Directors
|Peter N. Goettler
President and Chief Executive Officer
As I wrote a couple of weeks ago, back-to-school also means the release of lots of education polling, and Tuesday brought us the yearly Education Next poll, which is one of my favorites. (Of course, I love all you crazy polls!) The Education Next folks do a lot of interesting experimentation with their polls, especially when it comes to funding, and they keep nice longitudinal data. I don’t love every part of the survey—looking at you, Common Core question—but overall I think it is well done and highly informative.
As usual, you should read the whole thing, and I’ll just hit some highlights.
More, more, more!
If there is one repeated theme to the poll, it’s that people generally want more of whatever is being discussed: more spending, higher teacher pay, more school choice, more accountability. People also tend to like their public schools and state colleges, and seem to want more higher ed.
Not especially well informed
While the members of the public express opinions on many education issues, they aren’t always especially knowledgeable, as you would expect of people with regular jobs and lives and not a ton of time to delve deeply into public policy issues, including education. They tend to greatly underestimate how much we spend on public schooling (by about 47 percent), public school teacher salaries (by about 30 percent), and they know either very little or the wrong things about charter schools (no, they cannot charge tuition or hold religious services).
As you can see below, support for all sorts of choice—charters, vouchers, scholarship tax credits—rose this year, and scholarship tax credits remain the most popular option. This is probably because a lot of people like school choice and even more like tax credits. Charters have also rebounded after taking a sizeable dive between 2016 and 2017.
As we’ve seen before, a significant majority of the public likes the idea of common standards across states that would “be used to hold public schools accountable for their performance.” How much this question reflects support for common standards, accountability, or both is unclear. What is clear is if you attach the name of specific curriculum standards to it—the Common Core—support drops, though it has been inching up as the battle over the Core, and the Core itself, fades in the public memory.
“Free” college is a bad idea for numerous reasons we have discussed many times—and apparently a lot of economists agree—but there is no question that the idea, at least in the abstract, is popular. 69 percent of the public favors it for two-year schools, and 60 percent for four-year institutions. Troubling, but who doesn’t like a free lunch?
Again, lot’s more to see here, so check it all out.
"I love America more than any other country in this world, and, exactly for this reason, I insist on the right to criticize her perpetually."
With those words in Notes of a Native Son, author and essayist James Baldwin captured a core conflict of being an African American in the 1950s: to love a home that very often lets you know it doesn’t love you back. So much has changed and improved since 1955, but the words still have resonance with black writers and commentators today. Criticisms of American institutions by black people are often dismissed as “divisive” or even “anti-American” because the authors want their home—our home—to be more fair and just.
Over the weekend, the New York Times Magazine published The 1619 Project, a collection of essays, stories, poems, and photography marking the 400th anniversary of the first enslaved Africans arriving in the future United States. The project, the brainchild of Nikole Hannah-Jones, is an ambitious collaboration to address the painful but necessary aspects of American history that shape the present. The 1619 Project explores the most profound struggle for freedom in the United States:race-based chattel slavery and its myriad legacies. Anyone committed to liberty should read and engage it.
Unfortunately, The 1619 Project is receiving over-the-top criticisms that accuse the writers of dividing America along racial lines or undermining the very idea of the American project. Perhaps anticipating such reactions, Hannah-Jones echoes Baldwin’s sentiment in the opening essay, writing “Black people have seen the worst of America, yet, somehow, we still believe in its best.”
To be clear, engagement does not mean unquestioning agreement with everything in the 1619 issue. Indeed, libertarians specifically will find certain claims about the relationship between modern American capitalism and slavery to be off-putting, and there are economic and historical claims that are already being contested by scholars. But those issues are not in every piece, and much of the history is solid but not well-known. One need not agree with everything a writer says to benefit from reading it.
The amount of information crammed into this issue is impressive, and many of the contributors are stellar in their given fields, including poet and author Eve L. Ewing, bestselling author and activist Bryan Stevenson, historians Kevin Kruse and Khalil Gibran Muhammad, and Oscar-winning director and writer Barry Jenkins, to name a few. Topics include, inter alia, enduring medical myths, incarceration, lynchings, and even how segregation led to Atlanta’s traffic jams. I especially liked Jenkins' short story about Gabriel's Rebellion.
The 1619 Project is an important endeavor to fill the gaps in Americans’ understanding of the nation’s history. The history of black people in the United States is filled with suffering, oppression, injustice, and crippling defeats; but it is also filled with joy, inspiration, and triumphs. The United States can be loved in spite of its flaws, and there are many. Wanting to correct those flaws is not anti-American; in fact, it’s quite the opposite.
For Times subscribers, The 1619 Project is online here. Non-subscribers can access the PDF at the Pulitzer Center here.
I was a little young for Woodstock. In that news-packed summer of 1969, I was entranced by the moon landing and aware of Chappaquiddick, but I don't recall paying much attention to Stonewall or Woodstock. But both of them became symbols of social change and stayed in the news and eventually the history books.
In 2009 I watched the movie Taking Woodstock, directed by Ang Lee, which led me to the book of the same name by Elliot Tiber. As I say, I knew of Woodstock as a hippie happening a bit before my time. What I found interesting about the movie and the book was the portrayal of the Woodstock Festival, “Three Days of Peace and Music,” as an impressive entrepreneurial venture.
In 1969 Tiber was a 33-year-old gay designer living in Manhattan, while spending his weekends trying to save his parents’ run-down Catskills motel. One weekend he read that some concert promoters had been denied a permit in Wallkill, N.Y. He came up with the crazy idea of inviting them to hold the festival on his parents’ property. Lo and behold, they showed up to check it out. Taking the lead was 24-year-old Michael Lang, who went on to become a prominent concert promoter and producer.
The Tiber (actually Teichberg) property wasn’t suitable, but Elliot drove Lang and his team down the road to Max Yasgur’s nearby farm. At least that’s Tiber’s story; other sources say he exaggerates his role. He did play a key role, however, in that he had a permit to hold an annual music festival, which up until then had involved a few local bands.
There’s a wonderful scene, better in the movie than in the book, when Lang and Yasgur negotiate a price for the use of the farm. We see Yasgur coming to realize that this is a big deal and demanding more money. We see Elliot panicking that the deal will fall through, and that without the festival business his parents will lose their motel. And we see Lang’s assistant reassuring Elliot that both parties want to make a deal, so they’ll find an acceptable price, which indeed they do.
And then, with 30 days to transform a dairy farm into a place for tens of thousands of people to show up for a 3-day festival, Tiber describes (and Lee shows) a whirlwind of activity. “Within a couple of hours, the phone company had a small army of trucks and tech people on the grounds, installing the banks of telephones that Lang and his people needed.” Helicopters, limousines, and motorcycles come and go. A few hundred people are erecting scaffolding, stage sets, speakers, and toilets. The motel keepers are trying to find rooms and food for the workers and the early arrivals. The local bank is eagerly providing door-to-door service for the mountains of cash flowing into bucolic White Lake, N.Y.
Meanwhile, there are a few locals who don’t like the whole idea. In Tiber’s telling, they don’t like Jews, queers, outsiders, or hippies. Maybe they just didn’t like a quiet village being overrun with thousands of outsiders. In any case they had a few tools available to them. A dozen kinds of inspectors swarmed around the Teichbergs’ motel. The town council threatened to pull the permit. Tiber writes, “Why is it that the stupidest people alive become politicians? I asked myself.” At the raucous council meeting Lang offered the town a gift of $25,000 ($175,000 in today’s dollars), and most of the crowd got quiet. Max Yasgur stood and pointed out that “he owned his farm and had a right to lease it as he pleased.” That didn’t stop the opposition, but in the end the concert happened.
The psychedelic posters and language about peace and love – and on the other side, the conservative fulminations about filthy hippies (see John Nolte’s movie review at Breitbart's BigHollywood.com) – can obscure the fact that Woodstock was always intended as a profit-making venture. That was the goal of Lang and his partners, and it was also the intention of Tiber, Yasgur, and those of their neighbors who saw the concert as an opportunity and not a nightmare. The festival did rescue the Teichberg finances. It ended up being a free concert, however, which caused problems for Lang and his team. Eventually, though, they profited from the albums and the hit documentary Woodstock.
In his book Tiber also details his life split between Manhattan’s scene and his parents’ upstate struggles. He tells us that as a young gay man in the ‘60s he encountered Tennessee Williams, Truman Capote, Marlon Brando and Wally Cox, and Robert Mapplethorpe.
Tiber writes, “One of the great benefits of Woodstock—a benefit that, to my knowledge, has never been written about—was its sexual diversity.” But I think the fact that there were gay awakenings at Woodstock—and three-ways and strapping ex-Marines in sequined dresses—would surprise people less than the realization that Woodstock was a for-profit venture that involved a lot of entrepreneurship, hard-nosed negotiation, organization, and hard work. Taking Woodstock (the book, but better yet the movie) is a great story of sex, drugs, rock-and-roll, and capitalism.