The New Puritanism

H. L. Mencken described puritanism as “the haunting fear that someone, somewhere, may be happy.”

The new puritanism is the fear that someone, somewhere, may be learning.

The Minneapolis Star Tribune has a story today in which public school educationalists wring their hands over the fear that suburban whites may be getting a good education in charter schools. This, somehow, is perceived to be a bad thing for urban minority kids.

Um. No.

What is bad for any child is a paucity of high quality education options from which to choose. The focus of policymakers should be on ensuring that more and better education options are constantly coming within reach of all children, regardless of the contents of their parents’ wallets, the pigmentation of their skin, or their ethnic background. This, the research shows, can most reliably be achieved by harnessing the freedoms and incentives of a competitive education marketplace.

Can the charter school system create such a marketplace? Can it relentlessly spawn new excellent schools and scale up the established ones to reach a mass audience? For a discussion of those questions, drop by Cato on October 2nd.

Govt Bureaucrats Already Interfere in Medical Decisions

Among the many whoppers President Obama packed into his recent address to Congress, he declared that once he creates “a publicly-sponsored insurance option, administered by the government just like Medicaid or Medicare…I will make sure that no government bureaucrat or insurance company bureaucrat gets between you and the care that you need.”

Just like Medicaid and Medicare?  Medicaid and Medicare don’t get in between patients and the care that they need?  Really??

That was too much for a correspondent of mine, a government bureaucrat who oversees other government bureaucrats who come in between patients and the care that they need.  He writes:

I am government bureaucrat…and I just happen to be reviewing cases, albeit involving Medicare and Medicaid, where the government has inserted itself between the patient and the care prescribed by the physician.

Some time ago the Center for Medicare and Medicaid Services contracted with a consulting firm…to audit Medicare and Medicaid providers.   Pursuant to this contract, [the firm] audited certain hospital records.  In the cases I am reviewing, [the firm] would perform a computer analysis looking for situations where a hospital admitted a patient only to discharge the patient the next day. (This is just one of the many things they audited for; e.g., the use of intense care rehabilitation in joint replacement cases).

[The firm] then reviewed the hospital’s justification for the admission and, when [it] “determined” that the admission was not appropriate, the hospital would be required to repay the money it had already been paid – the audit dated back to 2003.  The cases proceed through a reconsideration process and if it’s still determined that the hospital admission was improper, the case ends up on my desk for adjudication.

I happen to have six of those cases now, from three different hospitals.  In all six cases the patients had significant chronic health problems and all were having acute episodes at the time of admission.  Of the six, five were senior citizens, and one was having problems with a pregnancy.  In each case a “panel of experts” determined that, based on the medical evidence, the hospital’s admitting doctor was unjustified.

Setting aside the medical issues, which in each case were significant, you and I both know that a large factor in the admitting doctor’s decision is the potential liability for the hospital.  I am sure in each case the doctor considered just what would happen if he sent the patient home they died.  Even if liability would not ultimately attach to the hospital, the cost of fighting such a lawsuit would be considerable.  Of course, the so-called panel of experts does not have to worry about medical malpractice, so that issue does not figure into their consideration.

It is extremely rare for the patient to be held financially liable in such cases.  So, one could argue that they got the treatment they needed and didn’t even have to pay for it.  But, how long will it be before hospitals become so “gun-shy” that they refuse to admit patients for care, fearing that they will not be reimbursed by Medicare?

By the way, [that] contract was just a trial run.  CMS has contracted with a number of audit firms to conduct a similar and on-going program review nationwide.  So we will be seeing these “20-20 hindsight” reviews of doctor’s decisions for a long time.

Of course, the president’s IMAC proposal would make those powers much more explicit and sweeping.

If the president thinks it’s a good idea to give the federal government more power to ration medical care, he should say so.  It’s a defensible position.

But to claim that’s not what he’s proposing, or that the government doesn’t do that already, is a … oh, what’s the word … ?

Tuesday Afternoon Hypocrisy

An article today in Congress Daily [$] made me laugh out loud. In a “Geez, these people have some nerve” kind of way.

A bunch of politicians have written to Obama, saying that Airbus should be disqualified from the current bidding process for the Air Force refueling tanker contract on the grounds that the World Trade Organization has reportedly (the final ruling is not yet out) ruled EU subsidies to Airbus illegal. Here’s part of their letter:

Buying Airbus tankers would reward European governments with Department of Defense dollars at the same time that the U.S. Trade Representative is trying to punish European governments for flouting international laws… American taxpayers must not be forced to foot the bill for products which benefited from illegal subsidies.

As I wrote to my colleagues when the news came over email, I wonder if those same politicians (authors, by the way, of the auto bailout and cash-for-clunkers) will be as indignant about subsidized companies  if/when Boeing’s subsidies, currently being examined in a counter-challenge at the WTO, are ruled illegal. And how about all those illegal cotton subsidies that the United States doles out? Should taxpayers be footing the bill for storing cotton (scroll down, under “Commodity Certificates”)?

In any case, while I feel sorry for the taxpayers who pay for them, foreign subsidies are a gift to the U.S. consumer.  The bill that American taxpayers are being “forced to foot” is smaller than it otherwise would be because of the corporate welfare flowing to Airbus.  (Note to the libertarian purity police: I’m not advocating for corporate welfare here, just noting the other side of the economic ledger).

NEA Dues and ACORN

Sabrina Schaeffer (yes, related) over at IWF’s Inkwell wonders when the NEA is going to sever its ties to ACORN, given recent revelations that its employees are willing to help set up a brothel with child prostitutes. Good question. I’m sure a lot of union members would be none too pleased with where their dues money ends up.

From the Examiner:

Teachers unions have contributed over $1.3 million to ACORN and its affiliates, since 2005, according to U.S. Labor Department financial disclosure forms.

Many education reformers would call the NEA criminal in their resistance to effective policy change. But that’s a figure of speech. They do, however, need to be more careful with their money.

The NEA, really any activist group on the Left with a shred of dignity, should publicly end their relationship with this corrupt and criminal organization immediately.

Google Book Search, Class Actions and the Separation of Powers

In response to yesterday’s post making the case against the Google Book Search Deal, I had spirited conversation with Google policy analyst Derek Slater, who helped me understand Google’s perspective on the case and some of the issues I discussed.

He raised a reasonable objection to my claim that “the settlement would give Google carte blanche to use these orphan works without making a serious effort to contact their owners.” He points out that the settlement stipulates that the Book Rights Registry will make an effort to locate orphan works holders and hold funds in escrow for five years to be paid to any orphan work holders who surface. Describing this as “carte blanche” was probably too strong. I think my basic point—that Google won’t be required to conduct the kind of “diligent search” for rightsholders before using a work—is still valid, but I could have made this point more carefully.

He also quibbled with my contention that the settlement would confer permanent competitive advantages on Google. I think I’m on firmer ground here; although the settlement does extend to Google’s competitors some of the advantages Google itself enjoys, the fact remains that Google would receive broad immunity from copyright lawsuits that would not be extended to Google’s competitors.

Much of our conversation focused on how various parties would be helped or harmed by the settlement. Derek explained that approving the settlement would have some worthwhile consequences: the orphan works problem would be mitigated, libraries and universities would get access to a vast database of books online, and consumers would continue to enjoy access the great product that is Google Book Search. He pointed to various provisions that give third parties access to some of the same licensing opportunities available to Google itself. And he may be right, for example, that most orphan works holders would be made better off by the settlement, since the deal would generate extra income that would be escrowed for them should they subsequently surface.

The problem is that I don’t really know how the various class members might be affected by the settlement. And more importantly, I don’t think the judge does either. The settlement is extremely complex, and it will have too many effects on too many parties for anyone to fully evaluate all of them. In the last month, we’ve seen literally dozens of parties file comments with the courts in support or opposition to the settlement. Indeed, the volume of the comment is so large that I suspect the judge is beginning to feel overwhelmed. And there are doubtless many other parties that would object to the settlement but lack the knowledge or legal savvy to submit comments.

The judicial process works well precisely because it typically makes decisions on a case-by-case basis, fitting the circumstances of each case to an evolving body of precedent. This incremental approach tends to produce a body of law that adapts well to changing circumstances while giving all affected parties the opportunity to have their interests represented. Because different cases are heard by different judges, the mistakes of any one judge won’t unduly influence the direction of the law’s evolution. The class mechanism tends to undermine these beneficial properties of our legal system. Rather than many cases being decided by many judges over a period of years, a class action lawsuit asks a single judge to render justice for thousands of plaintiffs whose individual interests can’t possibly all be represented by the attorneys presenting arguments to the judge. Especially when the proposed class is as large and heterogeneous as the plaintiffs in the Google Book Search case, the class action mechanism demands that the judge to balance the competing interests of thousands of different parties, many of whom have divergent interests. No single person could possibly weigh all the competing arguments in a systematic fashion.

Fortunately, we have an institution with the infrastructure and accountability to deal with precisely this kind of situation: the legislative branch. I think many people find the Google Book Search settlement appealing precisely because it provides an opportunity to bypass the stalemate on Capitol Hill and achieve some de facto changes in the copyright regime that lots of people (including me) regard as desirable. But this perspective misunderstands why the legislative process is so slow and cumbersome. The problem isn’t that Congress is taking a simple problem and making it more complicated than it needs to be. The problem is that orphan works reform is a genuinely difficult problem that will affect the rights of many different people. Achieving consensus is genuinely difficult, we want a slow, sprawling, messy process to make sure everyone gets a fair hearing. The Google Book Search deal wouldn’t really resolve the complex trade-offs Congress is wrestling with, it would simply put the judiciary’s thumb on the scales in favor of those who happen to have the judges ear thanks to the peculiar structure of this lawsuit. This is undoubtedly a faster way to deal with the orphan works problem, but I don’t think it’s a better one.

Return of the Trade Enforcement Canard

In defending its tire tariff decision, the White House has glommed on to the “logic” that free trade first requires enforcement of trade agreements.  Scott Lincicome exposes the absurdity of that defense here. But with that fallacy serving to undergird what sounds like a pre-justification for more trade cases and more trade restrictions, let me remind the reader that we already have 299 active antidumping and countervailing duty measures in the United States, resticting or prohibiting imports from 43 different countries.  We have all sorts of restrictions on imported textiles, clothing, footwear, food products, agricultural commodities, lumber, steel, pickup trucks, tobacco, and many, many more products, including tires.  But despite all of this enforcement–of rules that are hard to justify, as they penalize most members of society for the benefit of a connected few–we still don’t have free trade in the United States.  In other words, we’ve had the enforcement, where’s the free trade?

And if the holier-than-thou U.S. government is going to focus on enforcement of rules, then by all means do unto others.  The United States remains baldly and defiantly in violation of its NAFTA commitments to open U.S. roads to Mexican trucks by the year 2000.  The United States remains defiantly in protest of WTO Dispute Settlement Body decisions impugning U.S. cotton subsidies, U.S. prohibitions on gambling services offered by providers in Antigua, the antidumping calculation methodology known as “zeroing,” and the Byrd Amendment.  Trade partners in some of these cases are either retaliating or have been authorized to do so.

The argument that more rigid enforcement leads to freer trade will be tested.  But don’t let the inevitable slew of new 421 cases and related restictions in the name of enforcement fool you.  After the restrictions, the retaliation, and the adoption of similar measures in other countries, free trade will be right around the corner.  The next corner.  Keep looking…

Rep. Flake’s Wise Counsel on the Tire Tariff

Earlier today, Congressman Jeff Flake, Arizona Republican, sent a letter to President Obama urging him to reconsider his decision to impose a 35 percent tariff on tires imported from China.

Rep. Flake makes all the right points in his letter, reminding the president that:

Your decision to impose duties on Chinese tires is likely to encourage other domestic industries to file their own petitions for relief under Section 421. The potential for an endless cycle of U.S. restrictions and subsequent retaliation from China is the last thing our economic recovery needs.

I wish there were more members of Congress like Rep. Flake. Our Trade Vote Records feature on our web site offers a searchable data base of all major trade votes going back to the mid-1990s. Our data base confirms that Rep. Flake is the most consistent supporter in all of Congress in opposing both subsidies and barriers to trade.

The president should heed Rep. Flake’s wise letter.