My commentary yesterday on the presidential contest seemed to strike a nerve; at least it got picked up at a large number of sites, including Andrew Sullivan (calling this blog “estimable”), Tom Palmer (that word again!), Reason “Hit and Run”, Andrew Tobias, PrestoPundit, and many others. The number of visitors more than doubled from an ordinary day, to 14,353, which may or may not be a record. Tom Veal at Stromata wrote a lengthy response from a pro-Bush point of view, and there was a lot of email too, including several from valued friends who take issue with my position. It’ll be a while before I can read or respond to all the mail, but that’s true even in less busy times than this.
Posts Tagged ‘politics’
Election roundup: the White House
Speaking only for myself and not for Ted (and obviously not for anyone else either), I’m among those who believes George W. Bush doesn’t merit re-election, though I supported and in fact actively advised his campaign the first time around. For some of the reasons, check the links in this Oct. 5 post. Foreign policy and defense blunders aside, the last thing I wanted was an administration combining aggressive social conservatism with uncontrolled spending and big new government programs.
Some Bush strategists have seemed confident that secular-minded supporters of small government and individual liberty — a rather important constituency, historically, within the Republican Party — would have nowhere to go this fall, since it’s not as if the record of Sen. John Kerry inspires confidence. But there are places to go, if not especially attractive ones. Prof. Richard Epstein of the University of Chicago School of Law, whose scholarship has inspired so many of us, says he plans to vote for the Libertarian nominee (true, as Megan McArdle points out, the nominee in question appears to be a barking moonbat, but the point of a Libertarian vote is to send a well understood protest message that stands apart from personalities). My favorite syndicated columnist, Steve Chapman of the Chicago Tribune, is actually planning to cast a Democratic presidential ballot for apparently the first time in his life (“Why I’m voting for John Kerry”, Oct. 24). Chapman quotes Cato’s Dave Boaz making perhaps the strongest argument that can be made for the Democrat on domestic policy: “Republicans wouldn’t give Kerry every bad thing he wants, and they do give Bush every bad thing he wants.” The Detroit News, meanwhile, editorializes in favor of none of the above. Finally, for balance, here’s a link to Coyote Blog, run by a small businessman who says he’s going to support Bush as a “single-issue voter” motivated by the subject matter of this website, that is to say, the need to reform the litigation system.
Election roundup: down the ticket…
Won’t we all be glad when it’s over:
* At Point of Law, I’ve got a post up tracking the current status of the propositions on four states’ ballots that would limit medical malpractice litigation or fees. The situation in Florida looks grim for doctors who’ve pushed such curbs (they’ve been outspent by their lawyer opponents, $22 million to $7 million). Voters in Nevada, Oregon and Wyoming may be better disposed toward their states’ ballot measures.
* On Friday, Ted posted about how critics of trial lawyers are getting sued for running an ad commenting on the Illinois Supreme Court race. Unfortunately, that’s just one of numerous instances in which criticizing the Litigation Lobby in paid advertisements is itself getting to be legally hazardous. In a new post at Point of Law, I list two other recent instances.
* Both the New York Times and the National Law Journal are out with stories on the very nasty and expensive battles between business interests and trial lawyers in state supreme court races, especially those in West Virginia (see May 13, etc.) and Illinois (Adam Liptak, “Judicial Races in Several States Become Partisan Battlegrounds”, Oct. 24; Emily Heller, “Judicial Races Get Meaner”, National Law Journal, Oct. 25).
* “Voters may run a gantlet of lawyers before reaching the ballot box on Nov. 2.” The two major parties are deploying lawyers by the thousand to challenge state procedures and individual votes (Miles Benson, “Voting in a Battleground State? Prepare to Meet a Lawyer at the Polls”, syndicated/Newhouse, Oct. 23).
The ad that trial lawyers don’t want Illinois voters to hear
Operating Engineers Local 318 sued to stop Illinois Lawsuit Abuse Watch from broadcasting the following ad about the Illinois Supreme Court race (Sep. 13, Mar. 20):
“We’ve all seen the headlines about how the flood of frivolous lawsuits in the Metro East is closing doctors’ offices and driving many of our finest physicians away. Greedy personal injury lawyers have turned the Metro East into a haven for bad lawsuits. But lawsuit abuse doesn’t just hurt doctors – it hurts all of us. Frivolous lawsuits, many without scientific merit, limit access to health care and drive up prescription drug costs. And lawsuit abuse slows down the development of new lifesaving medical devices.
“Now we all have a chance to cure the lawsuit epidemic. Personal injury lawyers have given over $2 million to Illinois Supreme Court candidates because they want their friends on our court. But we want our justices to be unbiased and fair. To find out if your state Supreme Court candidate takes money from personal injury lawyers, contact Illinois Lawsuit Abuse Watch at www.I-LAW.org. Together we can make sure justice is no longer for sale in the Metro East. Paid for by Illinois Lawsuit Abuse Watch.”
Circuit Judge Phillip Palmer of Williamson County issued a temporary restraining order to forbid the broadcast of the ad, even though it doesn’t mention any candidates by name, as a supposed violation of Illinois campaign finance law. Once again, “campaign finance reform” Oct. 17) becomes speech regulation and censorship. (Paul Hampel, “Tort reform group is ordered to pull ad”, St. Louis Post-Dispatch, Oct. 19).
Recount battles (even before the election)
“Not a single ballot has been counted in the presidential election, yet Florida is already teeming with lawsuits charging the state and its county elections supervisors with voter disenfranchisement, a legal muddle likely to grow worse before Election Day.” (Abby Goodnough, “In ’04 Florida, Lawsuits Begin Before Election”, New York Times, Oct. 14). “The legal combat in Ohio over the fundamental issue of who can vote is recurring in virtually every battleground state this year, in what experts say is fast becoming, in its final weeks, the most litigious, lawyer-fraught election in history.” (James Dao, “As Election Nears, Parties Begin Another Round of Legal Battles”, New York Times, Oct. 18). See also Sept. 22.
Lawsuit reform at the debates
[Question about flu vaccine shortage]
BUSH: […] We have a problem with litigation in the United States of America. Vaccine manufacturers are worried about getting sued, and therefore they have backed off from providing this kind of vaccine. [ed.: see Dec. 24 and earlier links]
One of the reasons I’m such a strong believer in legal reform is so that people aren’t afraid of producing a product that is necessary for the health of our citizens and then end up getting sued in a court of law. […]
KERRY: […] This president has turned his back on the wellness of America. And there is no system. In fact, it’s starting to fall apart not because of lawsuits — though they are a problem, and John Edwards and I are committed to fixing them [Oct. 12] — but because of the larger issue that we don’t cover Americans. […]
[Question on medical insurance costs]
BUSH: […] I do believe the lawsuits — I don’t believe, I know — that the lawsuits are causing health care costs to rise in America. That’s why I’m such a strong believer in medical liability reform.
In the last debate [Oct. 9], my opponent said those lawsuits only caused the cost to go up by 1 percent. Well, he didn’t include the defensive practice of medicine that costs the federal government some $28 billion a year and costs our society between $60 billion and $100 billion a year. […]
[Kerry’s response addressed Medicare bulk purchasing, the uninsured, and prescription drug reimportation, but not medical malpractice reform.]
Alex Tabarrok also has more on vaccines.
“Did John Edwards Mean to Say What He Said He Meant?”
George Wallace more closely parses John Edwards’s answer at the debates (Oct. 5):
We do have too many lawsuits, and the reality is there’s something that we can do about it. John Kerry and I have a plan to do something about it. We want to put more responsibility on the lawyers to require before a case of malpractice, which the Vice President just spoke about, have the case reviewed by independent experts who determine the case is serious and meritorious before it can be filed; hold the lawyers responsible for that, to certify that, and hold the lawyer financially responsible if they don’t do it; have a three strikes and you’re out rule so that a lawyer who files three of these cases without meeting this requirement loses their right to file these cases.
If Kerry-Edwards are really proposing screening by “independent experts” to determine that a case is “serious and meritorious”, this is an innovative and very real reform. One suspects, however, that these are just focus group buzzwords: in the legislation Edwards co-sponsored in the Senate (POL Sep. 27), “independent” meant that the plaintiff’s attorney got to hand-pick an expert-for-hire to sign off on the case (which is, in most states, already a requirement to survive a summary judgment motion) and “serious and meritorious” meant simply “not brought to harass” or “colorable.” These are merely cosmetic hurdles to suit.
Medmal reform at the debate
NORMA-JEAN LAURENT: Senator Kerry, you’ve stated your concern for the rising cost of health care, yet you chose a vice presidential candidate who has made millions of dollars successfully suing medical professionals. How do you reconcile this with the voters?
KERRY: Very easily. John Edwards is the author of the Patients’ Bill of Rights. He wanted to give people rights. John Edwards and I support tort reform. We both believe that, as lawyers — I’m a lawyer, too. And I believe that we will be able to get a fix that has eluded everybody else because we know how to do it.
KERRY: It’s in my health-care proposal. Go to johnkerry.com. You can pull it off of the Internet. And you’ll find a tort reform plan.
Now, ladies and gentlemen, important to understand, the president and his friends try to make a big deal out of it. Is it a problem? Yes, it’s a problem. Do we need to fix it, particularly for OGBYNs [sic] and for brain surgeons and others? Yes.
But it’s less than 1 percent of the total cost of health care. […]
CHARLES GIBSON: Mr. President, a minute and a half.
BUSH: Let me see where to start here. […]
BUSH: And what are his health programs? First, he says he’s for medical liability reform, particularly for OB/GYNs. There’s a bill on the floor of the United States Senate that he could have showed up and voted for if he’s so much for it.
Secondly, he says that medical liability costs only cause a 1 percent increase. That shows a lack of understanding. Doctors practice defensive medicine because of all the frivolous lawsuits that cost our government $28 billion a year. […]
GIBSON: Senator Kerry, we got several questions along this line, and I’m just curious if you’d go further on what you talked about with tort reform. Would you be favoring capping awards on pain and suffering? Would you limit attorney’s fees?
KERRY: A follow-up…
GIBSON: Yes. A follow-up on this for…
KERRY: Yes, I think we should look at the punitive and we should have some limitations.
But look, what’s really important, Charlie, is the president is just trying to scare everybody here with throwing labels around. […]
GIBSON: […] Thirty seconds, President Bush.
BUSH: You’re right, what does matter is a plan. He said he’s for — you’re now for capping punitive damages?
BUSH: That’s odd. You should have shown up on the floor in the Senate and voted for it then.
Medical liability issues are a problem, a significant problem. He’s been in the United States Senate for 20 years and he hasn’t addressed it.
We passed it out of the House of Representatives. Guess where it’s stuck? It’s stuck in the Senate, because the trial lawyers won’t act on it. And he put a trial lawyer on the ticket.
As the Washington Post notes, “Kerry glossed over his opposition to” medical malpractice caps. Unfortunately, the Post’s “Debate Referee” adjudicated that Bush exaggerated the effect of caps–and then proceeds to make the same mistake Bush criticized Kerry for, by omitting the effect of caps on defensive medicine costs by taking a statement in a CBO report out of context. As I noted on Point of Law,
What the CBO says is that, assuming medical malpractice expenses are 2%, reducing those expenses 25% will, as a matter of simple arithmetic, reduce total health care expenses by 0.5%. But, as Dr. Chusid acknowledges, that 2% assumption for medical malpractice expense is a great underestimate. There’s more than just insurance premiums: there’s the billions spent on inefficient defensive medicine, on hospital in-house lawyers, on time doctors spend with lawyers instead of with patients, on time doctors spend papering the record to protect themselves in event of suit, and on self-insurance–many hospitals don’t use a middleman insurance company. And for a number of disciplines, the malpractice insurance rate is unquestionably higher than 2%–the average OB/GYN pays a quarter of her net income in premiums.
The Post didn’t referee–they took sides in a controversial public policy debate, and did so on inaccurate information.
Mickey Kaus calls Kerry’s “I’m a lawyer too” the “worst-polling line of the night.”
Texas Watch: San Antonio State Hospital v. Cowan
James Roy Cowan, Jr., committed to the San Antonio State Hospital, hung himself with his own suspenders. His family sued the state-run hospital for not preventing the suicide. Problem: Texas law prohibits lawsuits against state entities. Plaintiffs’ creative solution: an exception permits lawsuits against the state when the state injures someone by “using” “tangible personal property”–for example, if a state employee negligently drives an automobile. Thus, plaintiffs argued, the hospital “misused” the suspenders by permitting them to remain in Cowan’s custody. A trial court and appellate court were prepared to let this theory go to trial, but the Texas Supreme Court unanimously reversed last January.
Reasonable minds may differ as a matter of public policy whether Texas taxpayers should be on the hook for damages for failing to prevent a suicide, but it hardly seems controversial that the Texas Supreme Court correctly held that the Texas legislature has not made that decision.
Except that “Texas Watch,” a plaintiffs’ lawyers’ front group (see Mar. 11), issued a report complaining that the Texas Supreme Court was “anti-consumer.” It came to this conclusion by tallying various pro- and con votes in 52 cases, and noting that the Texas Supreme Court votes against plaintiffs in 82% of that sample.
Of course, this is hardly sufficient to prove any such thing. Perhaps, as in Cowan, the problem is that the lower courts are too aggressively activist and pro-plaintiff. If so, the Texas Supreme Court’s ratio reflects that it’s simply being more reasonable than the decisions of the courts it was reviewing.
One might complain that I’m nitpicking at the Texas Watch report — except that that same report included a “Terrible Ten”, and Cowan was singled out as the most terrible of the ten at the top of the list, as the anecdote that Texas Watch thought most helpful to their argument. Leave aside for the moment whether a decision that protects Texas taxpayers is “against the public” as Texas Watch portrays it. It is telling that Texas Watch believes that it is the responsibility of the Texas Supreme Court to create rights for plaintiffs where the legislature has refused to do so; while newspapers printed rebuttals from a Texas Supreme Court spokesperson, they did little to evaluate the relative truth claims of the competing soundbites and let Texas Watch dictate the headlines. (Christy Hoppe, “High court rarely backs consumer, study says”, Dallas Morning News, Oct. 6; John Moritz, “Court goes largely against public, group says”, Star-Telegram, Oct. 6; Tama Swan, “Report finds past year’s Texas high court rulings lopsided”, Daily Texan, Oct. 7) (via Bashman).
Edwards’ lawyerly debating skills
The rhetorical techniques that John Edwards employed in his opening and closing arguments before juries were on display Tuesday night in the vice presidential debate, according to lawyers who crossed swords with him in his home state of North Carolina (Lisa Hoppenjans, “Lawyers: Edwards used trial technique”, Winston-Salem Journal, Oct. 6). Thoughts Online and Beldar discuss whether success as a trial advocate nowadays critically depends on the ability to “think on one’s feet”, as opposed to delivering a pre-scripted message, given the emphasis of modern procedure on avoiding surprise at trial. (My own impression is that Edwards was strongest when delivering material suitable to being prepared in advance, and less strong when obliged to depart from the script.) Several commentators note that Edwards saved many of his most slashing attacks for his final round of discussion on a given question, at which point Cheney would have no chance to reply. And George Will thinks Kerry’s selection of Edwards as running mate was a blunder, though for reasons unrelated to the debate (“GOP power plan”, syndicated/Washington Post, Oct. 7).