I’ve been working on a business for when I get tired of being a law professor. False memories. There’s a huge potential market. Everyone has missing pages in the scrapbook, things we’ve always wanted to do but never managed — that grand April affair in Paris, climbing K-2, or perhaps just nobly and diligently overcoming some childhood adversity. False memories have a bad name in law: we don’t like it when a victim remembers abuse that never happened, or an eye-witness realizes that the short Black defendant is the tall White gunman he saw pull the trigger. But why not harness that power for good? My idea is to help people recover detailed memories of things that, if you want to be technical about it, never actually happened. From the point of view of present emotional value, a false memory is just as good as a real one, so why confine your remembrance of things past to that poor parade of things that actually passed you?
Well I thought this was a pretty good idea, until last week, when a New York Times editorial reminded me that this sort of fantasy is already a mainstream business. Working in public health law, I should have realized a long time ago that most of what passes for the facts beneath our health policy are, in fact, things we know for sure that just ain’t so. (Wait, I just recovered a memory of having this precise insight fifteen years ago, during a magical week in Paris). Anyway, in this editorial, the Times catalogued the myths that shape health care politics in America today. Here’s a bit:
Seven years ago, the World Health Organization made the first major effort to rank the health systems of 191 nations. France and Italy took the top two spots; the United States was a dismal 37th. More recently, the highly regarded Commonwealth Fund has pioneered in comparing the United States with other advanced nations through surveys of patients and doctors and analysis of other data. Its latest report … ranked the United States last or next-to-last compared with five other nations — Australia, Canada, Germany, New Zealand and the United Kingdom — on most measures of performance, including quality of care and access to it.
We lead the developed world in un-insurance. Germans get to specialists faster, and our access score is even worse if you decide to count the poor and uninsured. “The United States ranks dead last on almost all measures of equity because we have the greatest disparity in the quality of care given to richer and poorer citizens.” And so it goes, through measures of public health, health care quality and even patient satisfaction.
I started to think about what this means, this gap between the real and the imagined, and fortunately, when I was not reading the Times, I was going back and forth between Dan Kahan and Martha Nussbaum on shaming sanctions, a debate that actually sheds some light on the question of our fantasy politics league. Kahan’s recent partial recantation of shaming sanctions is based on his theories of the social meaning of legislation. I think he’d say that, after all, our health policy will never be primarily about good health statistics and a fair and efficient system; rather, it will be a symbolic crusade, or set of nested crusades, that will turn on questions like the extent to which reform proposals can somehow affirm our national greatness, and can have enough pliability of meaning to unite free-marketeers and social-safety-netters. It may not be pretty, I can imagine him saying, but that’s just how it is.
Nussbaum, by contrast, takes the Enlightenment line. In her Hiding from Humanity, she distinguishes between two kinds of shame. “Primitive shame” is “a shame closely connected to an infantile demand for omnipotence and the unwillingness to accept neediness — is, like disgust, a way of hiding from our humanity that is both irrational in the normative sense, embodying a wish to be a type of creature one is not, and unreliable in the practical sense, frequently bound up with narcissism and an unwillingness to recognize the rights and needs of others.” This shame does no good for the individual or the society; it is just another defeat in the struggle for reason. But there is also a healthy, mature and socially productive shame. Nussbaum tells about her reaction to Nickel and Dimed, Barbara Ehrenreich’s account of her effort to get by in the unskilled labor market. Nussbaum is ashamed at the gap between our social values of equality and opportunity and the real conditions of life for the poor in our country, and is spurred to action. As a public health person, I was schooled in stories of epidemiological data and social statistics instigating reform. Just think of the great sanitary reports of Chadwick or Shattuck, or The Jungle. This is how I thought things were supposed to work in a liberal society.
I want to believe that I still inhabit a society that can feel shame when facts and norms collide, but I doubt I am the only empirical legal scholar who wonders what it takes to get people mad. Several years ago, I and my colleagues published an exhaustive study of EEOC processing of employment discrimination complaints. We focused on the ADA, but showed that the EEOC was basically tossing most cases coming in for “investigation” into the circular file. In all, we showed that the administrative system for dealing with American workers’ claims of discrimination was broken. The media were barely interested and I’m not aware of any Congressional or executive action, much less social outrage. Later we added plausible evidence that courts and administrative agencies enforcing the ADA actually discriminate against people with psychiatric disabilities. And we are hardly alone. I take considerable comfort in the fact that the elegant Harvard Malpractice Study and its replications have had no significant impact on tort reform, in spite of demonstrating that our malpractice system doesn’t do anything it is supposed to. Or consider Melissa Jacoby and Elizabeth Warren’s work on the link between high health care costs and personal bankruptcy, which seems to have given no pause whatsoever to the proponents of the punitive bankruptcy “reform” movement.
So I’m pursuing a two-prong strategy. I’ll keep doing research on the gap between what the law promises and what it delivers, in the hope that shame is more powerful than the spin of the moment or the disassociative shrug of “Whatever.” But, just in case, I’m developing some false memories of how much better things got at the EEOC after Congress instituted sweeping administrative and budgetary reforms.
Don’t remember your work having a big impact? Hey, call me.