May 14, 2008

posted by Frank Pasquale

Calling a majoritarian mob that expropriates from some to give to others a "community" is the functional, and moral, equivalent of calling prisoners and prison guards a "jailhouse community."

There is a wide chasm, which your sophomoric "sucker" comment demonstrates you simply cannot grasp, between (a) the fictional dog-eat-dog animosity which you libelously ascribe to capitalists, and (b) the notion that a classical liberal social safety net ought to be limited to those who actually need it and not expanded merely to accommodate a sociopathic bloodlust against the prosperous.

Thanks for the pointer to Bauman; BTW, he has a new book coming out this month, "Does Ethics Have a Chance in a World of Consumers?" from Harvard U Press.

To KipEsquire, apropos of his comment: So what is the correct way to characterize your animosity, then?

Kip,

Your parody is amusing, but I think there's a serious issue here: There is a natural human tendency to conclude that our mostly instinctive beliefs are "truth" while beliefs we do not have are mere "ideology" held by fools who have been tricked. I think that's the leading difficulty with Bauman's essay: If there's an ideology on the other side, which Bauman seems eager to present in the most negative light he can, then surely his own views are based on mere ideology as well, right? I would think the question is comparative: When fairly and accurately presented, which ideology is more persuasive, or leads to better public policy, or is most consistent with the empirical evidence?

I'll agree regarding Orin's perspective on how ideologies are to be judged. . . to a point. I think that it will be very hard for partisans of rival ideologies to agree on a common set of measures to judge results. It will often be even harder to attribute results to some particular ideological program. Is the subprime meltdown primarily a market failure, or does it stem from the "regulatory license" effectively granted to the ratings agencies by government?

In any event, I think that in the health field all can recognize that the US is an outlier in terms of the number of uninsured, the waste generated by the system, and pervasive fear that a bad health outcome will lead to financial ruin. Barry Furrow offers a cutting but accurate perspective on "consumer-driven" solutions here:

"Consider the cartoon by Bud Blake, reprinted by David Hyman as part of his endnote to a special issue of the Journal of Health Policy, Politics and the Law devoted to the Federal Trade Commission Report on Health Care and Competition. The cartoon shows two small boys talking to one another as they play. One, riding on his wooden sawhorse--his play horse--says, “We're not very rich are we?” The other responds, “No, but look at it this way: You've got your health.” To which the first boy responds, “Well, I'd be willing to swap a little health for my own pony.”

"Very cute. What does it capture? The centrality of choice in one's life, the merits of allowing people to make their own decisions about their preferences, and the ultimate point that we might want some things more than further spending on health. In its purest sense, as Hyman undoubtedly uses it, it means that the best of all possible worlds is one in which individual choice in a well-functioning economic marketplace maximizes individual welfare and satisfaction, and therefore social satisfaction. Perhaps a health savings account to shift our choices from government to consumers? Perhaps some other reform that is based on the market and empowerment of consumers? Exciting stuff--plausible in the abstract but flawed for too many Americans who [can't afford such programs and need] health care, yet still appealing to those ideologically blinded to the costs of the market in health care and the human waste generated by ideology ungrounded in complex reality."

Barry Furrow, ACCESS TO HEALTH CARE AND POLITICAL IDEOLOGY: WOULDN'T YOU REALLY RATHER HAVE A PONY?, 29 WNENGLR 405 (2007).

Frank writes:

I'll agree regarding Orin's perspective on how ideologies are to be judged. . . to a point. I think that it will be very hard for partisans of rival ideologies to agree on a common set of measures to judge results. It will often be even harder to attribute results to some particular ideological program. Is the subprime meltdown primarily a market failure, or does it stem from the "regulatory license" effectively granted to the ratings agencies by government?

In any event, I think that in the health field all can recognize that the US is an outlier in terms of the number of uninsured, the waste generated by the system, and pe,rvasive fear that a bad health outcome will lead to financial ruin.

Frank,to start with your first paragraph, I agree that partisans of either side will never agree on these issues. But I suspect there is a large swath of centrists who are less interested in ideology than in trying to figure out the facts. Sometimes we can't be sure of the facts, and most commentators will adopt their preferred ideological narratives, but I tend to think it's better to keep things uncertain and answer, truthfuly, that we don't know.

As for the second paragraph I quote above, I agree with these facts. But these are not the only relevant facts, it seems to me. For example, there are the questions of quality of care, overall quality of health care, etc. I understand that you are less concerned with these questions, but others aren't. I suppose I would prefer to see a debate in which we valued everyone's honest perspective, as I think everyone has something important to say. (And at this point we're probably echoing our earlier debate on whether some views are "out of bounds" in the academy, with you more ready to declare ideas out of bounds as "harmful" than I am.)

Oops, that second paragraph should be italicized, too.

Orin,

What makes you think Frank is less concerned than others with questions of the overall quality of health care?

I tend to think it is not only possible but advisable to seek to maximize both a just allocation of health care and the overall quality of care (though I would prefer we tried to maximize the overall quality of health, because good health goes far beyond the delivery of care). Sometimes, the two objectives are in tension, of course, but that's not the same as saying that Frank or anyone else who supports both goals is less concerned about one than the other.

By the way, I should add here that I don't think that the term ideology should inevitably be seen as a pejorative. Bauman concentrates on that usage, drawing mainly on Mannheim's Ideology and Utopia. But Jack Balkin's Cultural Software and Michael Freeden's Ideology explore the wider range of meanings for the term. I would even venture that, based on Clifford Geertz's work Ideology as a Cultural system, an ideological point of view is inevitable.

Has your "health insurance" left you with huge debts? The privatization ideology responds, "Should have read the contract, sucker." Never mind if the person who signed the contract doesn't have training as a lawyer, or didn't have the funds to buy a better alternative.

I'm not sure that the solution is therefore to make everyone pay for everyone's care (and the inevitable rationing (by the State; of course scarcity as such is unavoidable even in principle) and increase of State power that follows along with that).

"Has your state health plan left you with a long wait to get a needed operation or cancer treatment? Too bad you can't do anything about it and didn't have a choice about any of it, huh?"

That's just as unsatisfactory a result (and arguably a less unfair characterisation). I, for one, am not worried about a "just allocation of health care", at least if the proposed remedy is to remove it from the control of the recipients and place it in the hands of the State.

(More relevantly, why should "most doctors support X" be taken to mean "X is therefore a good idea"?

Just as Joe Notional Bankrupt isn't a lawyer, doctors aren't policy analysts, economists, or indeed expert at anything except doctoring.

And doctoring is not the same skill as deciding how people should pay (or be forced to pay) for it.)

The choice between health care being in the control of the recipients and being in the control "the State" is an utterly false one.

When I lived in California and became self-employed, I was unable to get health insurance when my COBRA expired because I used an asthma inhaler more than once within 2 weeks. That was sufficient for me to be repeatedly denied coverage, even though I had never been hospitalized for asthma in the 30+ years since I was first diagnosed with it, and on my allergist's advice I no longer needed allergy immunization shots since my symptoms were too mild and occasional.

While my wife was employed, she was able to claim me as a dependent, which was the only way I got coverage, albeit with pre-existing condition carve-outs (and diminutions in her employer's contributions year to year). My only other alternative was to get on a waiting list for an indigents' policy -- with a several years' wait -- even though I was not indigent. Who was in control of my health care then?

I am now a resident alien in Japan, where I was able to get national health insurance effective as of my date of official entry into the country. It costs about US$45 per month, as opposed to my COBRA payments of over $1,200 per month (for just me). I can choose my doctor. After a recent injury to my leg, my co-pay for an exam at a clinic I walked (or hobbled) into, including an X-ray and battery of blood tests, was US$30. Moreover, my "borough" of Tokyo, Chuo-ku, provides free annual check-ups for residents over 40, and including free cancer tests for residents over 50, even for foreigners like me. No carve-out for pre-existing conditions. No one tells me what doctor to go to, what tests I can take or not, what drugs I can get or not, etc. And no one, truly no one, believes me when I describe the conditions in the US; those are simply too barbaric to be credible here.

Wow, with health care like Mr. Sutter is describing, it's a wonder Japan isn't overrun with immigrants trying to get in on such a good life...how will we ever attract any Japanese to come over here - what with such barbaric conditions...and, as an aside, I've had similar reactions talking to non-Americans about the pervasiveness of lawyers in our populace and daily doings.

America has other attractions, some imagined, some real (but evaporating), for Japanese emigrants. Many other Japanese remain nostalgic about their time there as expats from big companies or as students. Most were covered by generous health care plans from their employers. But as for those who planned to stay in the US after they retired, or who are or became self-employed, I personally know several who've recently come back to Japan specifically because of the cost of healthcare. My wife and I also know a couple of Japanese families back in California who've had tragedies with US healthcare -- such as having to sell their home in order to pay for the cost of brain cancer treatments that their insurance did not cover, and still being hundreds of thousands of dollars in debt.

You're right, there are indeed lots of people who want to emigrate to Japan. The Ministry of Justice works overtime to prevent the place from being "overrun." But for more than just the health care reasons, I'm very happy I moved here, and I hope to be here a long time. And actually, both the MoJ and the local bar association I'm joining have said they appreciate my experience as an American lawyer. When you've been in transactional practice for 20-odd years or so, maybe they'll be interested in you, too. BTW, malpractice insurance here is incredibly cheap: coverage for up to 3 incidents per annum @ US$1 million (Y1 oku) each costs about US$250.00 per year. Try getting insured in US if you've got you've got a small or solo practice in corporate/securities and/or IP.

America has other attractions, some imagined, some real (but evaporating), for Japanese emigrants. Many other Japanese remain nostalgic about their time there as expats from big companies or as students. Most were covered by generous health care plans from their employers. But as for those who planned to stay in the US after they retired, or who are or became self-employed, I personally know several who've recently come back to Japan specifically because of the cost of healthcare. My wife and I also know a couple of Japanese families back in California who've had tragedies with US healthcare -- such as having to sell their home in order to pay for the cost of brain cancer treatments that their insurance did not cover, and still being hundreds of thousands of dollars in debt.

You're right, there are indeed lots of people who want to emigrate to Japan. The Ministry of Justice works overtime to prevent the place from being "overrun." But for more than just the health care reasons, I'm very happy I moved here, and I hope to be here a long time. And actually, both the MoJ and the local bar association I'm joining have said they appreciate my experience as an American lawyer. When you've been in transactional practice for 20-odd years or so, maybe they'll be interested in you, too. BTW, malpractice insurance here is incredibly cheap: coverage for up to 3 incidents per annum @ US$1 million (Y1 oku) each costs about US$250.00 per year, with more coverage available at similar low cost. Try affording insurance in US if you've got you've got a small or solo practice in corporate/securities and/or IP.