From the New Property to the New Responsibility
posted by Frank Pasquale
Just as Charles Reich was a premier theorist of rights to government largesse, Peter Schuck and Richard Zeckhauser are leading exponents of the responsibilities it entails. In Targeting Social Programs, S&Z focus on the denial of benefits to “bad bets” and “bad apples:”
Bad bets are individuals who are likely to benefit little from social resources relative to other [beneficiaries]. . . . Bad apples are individuals whose irresponsible, immoral, or illegal behavior in the past—and predictably, in the future as well—marks them as unsuitable to receive the benefits of social programs.
This may sound a bit cold-hearted at first, but S&Z make a good case that, behind a veil of ignorance, we’d quite sensibly allocate resources to, say, the transplant recipient who is most likely to benefit, rather than the one who has been on the wait list the longest. They also show how often “bad apples’” worst effects are on the disadvantaged citizens near them. (For an example, see Kahan and Meares on anti-loitering ordinances.)
The West Virginia Medicaid program provides an interesting case study of “bad apple screening.” Consider the fate of one beneficiary who refuses to sign a “health responsibility contract:”
Mr. Johnson. . . goes to a clinic once a month for diabetes checkups. Taxpayers foot the bill through Medicaid . . . [b]ut when doctors urged him to mind his diet, “I told them I eat what I want to eat and the hell with them. . . . I’ve been smoking for 50 years — why should I stop now? . . . This is supposed to be a free world.”
Traditionally, there was little Medicaid could do to encourage compliance. But now, “[u]nder a reorganized schedule of aid, the state, hoping for savings over time, plans to reward “responsible” patients with significant extra benefits or — as critics describe it — punish those who do not join weight-loss or antismoking programs, or who miss too many appointments, by denying important services.” But as the article notes, “Somewhat incongruously, [Johnson] appears to be off the hook: as a disabled person he will be exempt under the rules.”
Critics claim the program is unduly intrusive: “What if everyone at a major corporation were told they would lose benefits if they didn’t lose weight or drink less?” asked one doctor. Certainly in some manifestations it could be; consider this 1997 proposal by Judge John Marshall Meisburg:
Congress should . . . consider legislation stipulating that no one can be granted disability by SSA if s/he continues to smoke against the advice of his physician, and smoking is a factor material to the disability, because such claimants are bringing illness and disability upon themselves. Such a law would reduce the burden of proof now needed to deny benefits to persons who fail to heed their doctors’ advice, and would dovetail with legislation just passed by Congress to abolish disability benefits for persons addicted to drug and alcohol. In many cases, smoking is akin to “contributory negligence” and the SSA law should recognize it as such. [From Federal Lawyer, 44-APR FEDRLAW 56 on Westlaw.]
I think S&Z frame the debate in a nuanced enough way to avoid this kind of draconian proposal. But I do have a few quibbles with the framing of their work, if not its substance.
Disparaging an approach that “would rather serve ten undeserving recipients than deny a single deserving one,” S&Z believe that most citizens are willing to permit agencies to weed out “the chronically disruptive students, the patients getting little benefit from vast Medicaid and Medicare expenditures, the public housing and homeless shelter residents who spoil their neighbors’ quality of life, and the recidivist criminals.” They specify a number of nuanced procedural protections for those deemed “bad bets” and “bad apples.” They also recommend “remedial strategies” designed to assure that bad apples don’t languish in that category forever–or, worse, that the bad apple classification should prove a self-fulfilling prophecy.
Overall I found the book’s arguments quite compelling. In the “bad apples” sections, it provides a careful and balanced approach to some very difficult problems of regulating “subcriminal” behavior. With respect to “bad bets,” it is a worthy contribution to the “tragic choices” literature of Calabresi & Bobbitt, and Jon Elster. (Full disclosure: Schuck was a mentor of mine during law school, but I think we disagree on enough that I can view this work objectively!)
But if I have one problem with the book, it is probably the moral judgments it implies about bad apples. Yes, people have to take responsibility for their actions. But as the Unequal Childhoods literature is documenting, disparities in everything from language skills to discipline are so great from the “get-go” that it’s hard to hold a pauper to the same standards as a prince. I also worry about a responsibility “contagion,” as “innocent tenants” like Pearlie Rucker (in HUD v. Rucker) end up getting thrown out of public housing programs because of the behavior of those they’re associated with.
I think I would substitute the more morally-neutral behaviorism of a Chris Slobogin for S&Z’s normative take on “bad apples.” By all means, let’s target social programs efficiently. But if there’s any way to avoid stigmatizing the people whose bad behavior may be the result of a terrible upbringing, let’s try to find it–even if only in the language of justification and description we choose to present our policy proposals in.
Photo Credit: Flickr/InkSwamp. No bad apples here–just ones perhaps subject to targeted deprivations designed to modify behavior.
PS: For further reading, see:
3 Health Matrix 195
Health Matrix: Journal of Law-Medicine Spring, 1993 LIFE STYLE, HEALTH STATUS, AND DISTRIBUTIVE JUSTICE Robert L. Schwartz
56 Rutgers L. Rev. 1039
Rutgers Law Review Summer 2004 Note MORE THAN A FAT CHANCE FOR LARD LITIGATION: THE VIABILITY OF
STATE MEDICAID REIMBURSEMENT ACTIONS Matthew T. Salzmann
29 Am. J.L. & Med. 77
American Journal of Law and Medicine 2003 Article WHAT MAKES GENETIC DISCRIMINATION EXCEPTIONAL? Deborah Hellman
78 Ind. L.J. 659
Indiana Law Journal Summer, 2003 Article UNMANAGED CARE: TOWARDS MORAL FAIRNESS IN HEALTH CARE COVERAGE Sharona Hoffman