Month: July 2009

Tokyo, Japan, 10 am

by Chris Bodenner

Barbara Walters reviews Brüno.

By Conor Clarke

And if she does, will anyone care? I hope not. There is a reasonable and occasionally interesting debate about whether foreign materials should have a role in American jurisprudence — that is, a debate about whether domestic judges should cite foreign and international legal materials when they make decisions. But I do not think the size of this debate is proportionate to the what the Court has actually done. When critics get worked up about international norms muddying our legal waters, they have, at most, six decisions in mind.

But Sotomayor has approved of making use of foreign materials. In an ACLU speech last April, she said that "international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system." And so this Wall Street Journal op-ed by Collin Levy goes through the motions of anger and confusion: Citing foreign law is inherently subjective! (If we start citing the European Union, why can't some future justice cite Sudan?) Citing foreign law is anti-democratic! (How can a French law be accountable to the American people?) And citing foreign law damages American sovereignty! (Doesn't the very concept of nationhood depend on the clear separation of legal systems?)

And isn't it? Well, maybe. But here are three reasons why citing foreign and international law shouldn't be so controversial.

1. What criticism of foreign law wouldn't extend to plenty of materials that the Court also cites, without controversy? My favorite example here is law review articles: Their authors aren't democratically accountable, either. But if you search any database of federal decisions you will find dozens of citations to other things: Karl Marx, Sigmund Freud, John Updike and Bob Dylan, just to name a few.

2. Citing foreign and international law has been happening for just about all of American history. I think that fact pretty much dissolves the sovereignty complaint. Go back to the 19th Century and you'll find plenty of cases (often involving fun things like pirates and treason) that make use of international legal norms.

3. Here's the real low-hanging fruit: American judges can use foreign materials to "cast an empirical light" (the phrase is Stephen Breyer's) on modern problems. The best example of this — which isn't very well known — is Earl Warren's use of foreign legal evidence in Miranda v. Arizona (the case that gave us "Miranda rights").

For a semi-embarrassing reason I know a fair amount about what is, I'll admit, a fairly obscure topic. So if anyone objects I'll try to write more.

by Patrick Appel

Conor solicits advice elsewhere and links to Kevin Drum's rebuttal. A few more reader responses:

I think in general Conor is asking the right questions, and as someone who has worked off and on in the health care industry for 20+ years, I share many of your concerns.

I'll comment on a few specific areas:

"I'd bet a hefty sum that expanding coverage /and/ the role the federal government plays in health care is going to significantly increase rather than decrease costs."

Right now I'd take that bet. The existing payments and incentives system in health care is completely, utterly broken, and we need a very large shake-up to fix it.  My last job in health care was at a small compounding pharmacy that employed 3 pharmacists, 7-8 pharmacy techs, and 25-30 people in billing and finance to try and get paid for what the other 10 did.

While in general I'm extremely skeptical of the government's cost management abilities (I've also worked in Defense…), health care is one area where the government currently does a better job than the large insurance companies.

"Fear of excessive state power. It shouldn't be too difficult to imagine another Dick Cheney or Richard Nixon in the White House."

This one is a huge worry for me, and why I think it's imperative that any public option not be allowed to crowd out all competition.  There absolutely must be a huge firewall between politicians of all flavors and people making health care decisions.

"I keep seeing the argument that America is the leading health care innovator, and that if our system looks more like what Europe has, there won't be anyone left making strides in research and development."

I don't understand this concern at all.  Where is the supposed threat to America's medical R&D establishment?  It's not like insurance companies and family practice groups are funding or performing the basic research that keeps us in our current leadership position.  Medical research is dominated by government agencies, non-profit NGOs, universities, and multi-national pharmaceutical and medical equipment companies, none of which stand to suffer based on any of the proposals I've read.

"It seems like we should train people other than doctors to perform certain discrete medical tasks that don't require all those years of medical school — a mix of pharmacists, professional bone setters, nurse practitioners and others should be able to dole out a lot of routine examinations, procedures and cures at a lower cost."

This has already largely happened, and it's a Good Thing indeed.  A huge proportion of primary care is now administered by PAs, NPs, RNs, and various non-MD technicians.

And yes, the AMA and many major med schools desperately need large enemas for how they train physicians and fight against reasonable accountability measures.  That being said, the malpractice insurance and civil tort issues are fairly confined to just a few specialties these days (OB/Gyn and plastics, for example) — it's really a non-issue for the vast majority of MDs.

Another picks out a comment already touched upon above:

"It seems like we should train people other than doctors to perform certain discrete medical tasks that don't require all those years of medical school… [they] should be able to dole out a lot of routine examinations, procedures and cures at a lower cost."

My wife and I are expecting a baby in September, and we are choosing to birth with a midwife rather than an OB-GYN. One problem: our insurance doesn't cover midwives, so we will end up paying $2,500 out of pocket for the kind of birth we want. If we had a hospital birth with an OB-GYN, our insurance company would cover the $20,000+ bill and not bat an eye. This is not logical. This is exactly the kind of backwardness that is the backbone of our healthcare system.

One more:

We are training nurse practitioners and physicians assistants, and you may notice that they do a lot of the work at hospitals and physicians' offices. This trend will continue. Where we could do better is at reducing the cost of professional school–medical schools and law schools are cash cows for the universities that run them, and their graduates leave school hundreds of thousands of dollars in debt. (Someone who starts medical school cannot afford to leave if he or she realizes it's not the right career.) Sure, it's rare to find a poor physician, but a typical doctor will still have large student loans well into the 40s. Cut the cost of med school, and you'll be able to cut salary costs w/o hurting future physicians.

by Chris Bodenner

Think Progress cuts through the crap:

The claim that Sotomayor led a terrorist organization apparently refers to her service on the board of the Puerto Rican Legal Defense and Education Fund, a mainstream civil rights organization.

 by Conor Freidersdorf

Elsewhere in my writing, I've been delving into the fascinating goings on at Ace of Spades HQ, where lead blogger Ace — a frequent critic of "elites" and "elitists" — finds himself pilloried by readers for dissenting from conventional wisdom within the movement, and responds with a surprising but welcome critique of heretic hunting on the right.

Having demonstrated that he understands the flaws in this approach to political discourse — and having personally experienced its absurdity — it'll be interesting to see if Ace himself continues to use it as a cudgel in his own writing. The same goes for other hard right pundits who've been criticized for their negative reactions to Sarah Palin's resignation, Erick Erickson and Ed Morrisey prominent among them. Is it wrong to wonder whether Mr. Erickson has gone native in his own leper colony? (World Net Daily has largely avoided this whole awkward kerfuffle by dedicating basically its whole site to Obama birth certificate conspiracy theories. Can a whole Web site win a Hewitt award?)

This culture of heretic hunting intensified dramatically during the build-up to Election 2008, a time when Republican and Democratic tickets were pitted against one another.

Now that the genie is out of the bottle, one wonders what havoc it'll reap in 2012, when a contested Republican primary seems destined to devolve into battles wherein some Republicans call other Republicans elitists, fake Americans, RINOs, and all the rest. In order to avoid being tarred by that charge, I wouldn't be surprised if those most vulnerable to it — Mitt Romney at this point — start to guard their flank by invoking 2012's rhetorical equivalent of "doubling Guantanamo," whatever that turns out to be.

Put another way, I fear that a segment of the Republican base is going to demand a GOP candidate who sounds so nutty and absurd that any chance they might have had for actually winning a general election in 2012 will be ruined. The right's alternative is to cut out the heretic hunting as quickly as possible. Of course, that is what an effete, inside-the-beltway, cocktail party lusting elitist like myself would think!

by Patrick Appel

A reader writes:

Another reader adds:

All due respect, your dissent of the day doesn't say much, except that he or she would be really tempted to sell a kidney when that $10,000 would really make a difference in their lives. And that makes them uncomfortable. I think any time we use our bodies as commodities, there is an ugly aspect to it. This goes for prostitution, or to a lesser extent, stripping, or performing in pornography. Legalizing these activities is certainly not the "perfect" world. But in the perfect world, you never languish on a kidney donor list for months or years. And in a "perfect" world, you are never faced with foreclosures or other personal financial crises. Legalizing the selling of kidneys, just like the legalization of prostitution, would never be a perfect solution. It is the least worst solution – that is, while it would make us all uncomfortable, the status quo is worse.

John Schwenkler is also confused.

by Chris Bodenner

Juan Cole tamps down the excitement over Ayatollah Montazeri’s recent fatwas against the Khamenei regime:

It is being alleged that Montazeri is saying that the Iranian regime is illegitimate, which he is not. He is implying that if Ahmadinejad stole the election by foul means, then his presidency is illegitimate. That is just a self-evident conclusion.

Also, it is being alleged that Montazeri is foremost among the grand ayatollahs, which he is not. On the Iranian scene he has been effectively marginalized by the regime. It is well known that he is on the outs with Khamenei, who put him under house arrest for five years in response to his questioning of the Khomeinist doctrine that the clerics must rule. His fatwa is therefore to be expected and will not cause any surprise or make any special waves in Iran.

A Dish reader pass along a blog post that recommends 10 books to strike from the canon of "required reading."

by Conor Clarke

I've been getting a lot of emails about my post on diversity at the Supreme Court, and I want to respond to some of them. (Of course, I've been getting schooled by Dish readers on lots of other subjects too! I'll respond to some of those emails later today. I've been a bit of a flake about replying, but I'm reading them all.) One reader, a third-year student at Harvard Law School, writes:

I don't disagree with any of this, but it makes me think that I probably put the emphasis in the wrong place in my original argument. So let me try it again, with the stress falling differently. The question I asked is: "Why do we think racial diversity — as opposed to diversity of opinion, religion, sex, sexuality, age, language or class — is uniquely disposed to make an institution more effective?" Now let me belabor the point a little more.

First, I believe that racial diversity does enhance social utility. And when I mentioned the standard arguments in favor of this position last time — better classroom discussions, stronger military leadership, smoother global business — I wasn't trying to be coy. If memory serves, those are all examples drawn from the amicus briefs in Grutter v. Bollinger, the affirmative case at the University of Michigan Law School. If the colleges, the military and business groups all submit that racial diversity has practical benefits, I won't doubt it.

But the question is this: Are the social benefits of racial diversity unique to race? If the test is an empirical one — discussions are better by X percent, the military is faster by Y degree, businesses make N more dollars — what reason to we have to believe that race-based affirmative action as it currently stands is leading to the best possible social outcomes? Maybe religious diversity would make classroom discussions better. Maybe socioeconomic diversity in the officer corps would make the army more effective. I dunno.

It's an empirical question, so there must be an answer somewhere. But merely assuming that racial diversity has benefits doesn't really do enough argumentative work. It has benefits, but compared to what?