Category: Law and Inequality

Posner: Show Me the Money (and Little Else)

Many scholars are interested in new ways of measuring well-being that go beyond crude measures of income. I have thought of the UN Human Development Index as a good step in this direction, but Richard Posner has come out against it.

I agree with Posner’s critique of commensurability implicit in such a ranking, and his points about the distortions that can be caused by the “bunching” of many countries around one indicator. But if there are going to be rankings by income, I would think he would welcome alternative perspectives. Instead, he frets that the US loses out in the UNHDI because its life expectancy figures are lower than many other countries. I found this section of his critique troubling:

If a country devotes resources to improving life expectancy, it has to give up some other good. It is hard to say that the United States is making a mistake in not spending more resources on extending life expectancy; many Americans think that we spend too much on health care already. One reason (though by no means the only one) that the United States ranks only 44th in life expectancy is that our large black population has an abnormally high death rate; the average life expectancy of black male Americans is only 69. This shockingly high death rate reflects deep-seated problems of American blacks that would probably cost an enormous amount of money to solve. The political will to expend those resources does not exist. This may be a misfortune, a tragedy, or even a sin, but to use it to push the United States down in an index of human development is a political judgment, rather than anything determined by neutral social science.

Query: is the UN constrained to measure well-being only via neutral social science? Is that even possible? Well-being and development are inherently normative concepts. Their capacity to reflect a society’s “misfortunes, tragedies, or sins” is a feature, not a bug.

Bargain Men

Wealth watcher Robert Frank presented some survey data on “marriage for money” in the WSJ last week. Willingness to marry for money was surprisingly widespread, but the question’s tactful wording casts some doubt on the data:

According to a survey by Prince & Associates, a Connecticut-based wealth-research firm, the average “price” that men and women demand to marry for money these days is $1.5 million. The survey polled 1,134 people nationwide with incomes ranging between $30,000 to $60,000 (squarely in the median range for nationwide incomes). The survey asked: “How willing are you to marry an average-looking person that you liked, if they had money?”

The question really gets at how much of a difference there is between a) an “average-looking” person and the respondent’s ideal match, and b) “like” and “love”. . . and since we don’t know if some respondents imputed the latter into the former, it’s not that useful. But I’ll give Prince & Associates credit for limiting the survey to people in a narrow income band–I’ve argued elsewhere that such “willingness to accept” figures are meaningless otherwise.

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How the Economics of the Well-Off Can’t Help the Uninsured

Two of the most perceptive health policy analysts, Drs. Steffie Woolhandler and David U. Himmelstein, provide a good “reality check” for those who think a Massachusetts-style health plan can fully handle the problem of the uninsured. (Though it took me a long time to figure out their title, “I am not a Health Reform,” was a play on Nixon’s “I am not a Crook.”)

Woolhandler and Himmelstein observe that the past twenty years of failed state-based health care reform (and mandates) do not bode well for the plans now being discussed among presidential candidates:

In 1971, President Nixon sought to forestall single-payer national health insurance by proposing an alternative. He wanted to combine a mandate, which would require that employers cover their workers, with a Medicaid-like program for poor families, which all Americans would be able to join by paying sliding-scale premiums based on their income.

Nixon’s plan, though never passed, refuses to stay dead. Now Hillary Clinton, John Edwards and Barack Obama all propose Nixon-like reforms. Their plans resemble measures that were passed and then failed in several states over the past two decades.

W&H are particularly disappointed by the recent Massachusetts plan; “even under threat of fines, only 7 percent of the 244,000 uninsured people in the state who are required to buy unsubsidized coverage had signed up by Dec. 1. Few can afford the sky-high premiums.” W&H should also acknowledge that in some cases the uninsured themselves are responsible; according to one recent study, “twenty-five percent are eligible for public coverage.”

W&H suggest that mandates will not work, but do not have the space to fully explore why. I think they are right to emphasize lack of affordability in plans, but a recent book suggests some deeper issues. Charles Karelis’s The Persistence of Poverty: Why the Economics of the Well-Off Can’t Help the Poor argues that we cannot expect impoverished individuals to react to economic incentives the same way that middle- and upper-class people do.

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Verkuil and Klein on Privatization

Philip Dynia at the Law & Politics Book Review has commented on Paul Verkuil’s Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do about It. Dynia characterizes the book as a sober and penetrating analysis of two disturbing trends:

Who is really in charge of government policy making? Verkuil sets himself the task of demonstrating two points: (1) that important work both significant to and often inherent in the concept of government is being contracted out to the detriment of democratic policy making, and (2) that the trend can (and though he does not say so directly must) be moderated, if not reversed, by changes in the way government operates.

Dynia calls Verkuil’s “command of the relevant literature . . . prodigious,” and notes his skill at “incorporat[ing] constitutional, statutory, administrative, and contractual sources.” Here are some of the conclusions that Dynia draws from Verkuil’s book:

[T]he ratio of political appointees to the number of senior career managers must change. Verkuil cites a report by the National Commission on the Public Service (the Volcker Commission) which notes that President Kennedy had 286 political leadership positions to fill, President Clinton 914, and President George W. Bush 3,361. Such a large number of political appointees paralyzes government . . . . Moreover, studies have shown that politically appointed bureau chiefs get systematically lower management grades than bureau chiefs drawn from the civil service . . . . In short, FEMA’s Michael Brown . . . is just the pathetically obvious tip of [an iceberg of] cronies.

I look forward to comparing Verkuil’s book to Naomi Klein’s The Shock Doctrine, a polemical take on privatization.

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Welcome to the Disciplinary Corporation

Panopticon2.jpgThe market has done a characteristically fantastic job of “trimming the fat” at nursing homes–i.e., squeezing out more profit by providing less care. One may wonder, how do the residents of such homes get taken care of when staff are fired and other corners are cut? The WSJ reports on one solution: drug them.

Nearly 30% of the total nursing-home population is receiving antipsychotic drugs. . . . In a practice known as “off label” use of prescription drugs, patients can get these powerful medicines whether they are psychotic or not.

Federal and some state regulators are pushing back, questioning the use of antipsychotic drugs and citing nursing homes for using them in ways that violate federal rules. New York has increased its focus on antipsychotics in nursing homes, training inspectors to spot signs of medication abuse.

Meanwhile, some employees are finding their health increasingly managed by their employers. “Employers Tell Workers To Get Healthy or Pay Up” is the headline, and here are some of the pressures:

Employees at some companies who are overweight, smoke, or have high cholesterol, for instance, and who don’t participate in supplementary wellness programs, will pay more for health insurance. In extreme cases, employees’ insurance deductibles could rise by $2,000.

What I wonder is: will the same people who are so distressed by the possibility of government-mandated purchase of health insurance also rise up against the corporate imposition of health standards? Or is paternalism perfectly fine when it’s a product of the market?

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Larson on Legacy Preferences as Titles of Nobility

ballcrown320.jpgCarlton Larson’s article on the “Unconstitutionality of Legacy Preferences in Public School Admissions” is provocative, persuasive, and beautifully written. I read its seamless synthesis of legal history and constitutional advocacy at one sitting, and I think anyone interested in egalitarian thought would do well to consult it. As its precis states,

[The Article] sets forth a framework for building a modern jurisprudence under the Nobility Clauses and concludes that legacy preferences are blatantly inconsistent with the Constitution’s prohibition on hereditary privilege. Indeed, the closest analogues to such preferences in American law are the notorious “grandfather clauses” of the Jim Crow South, under which access to the ballot was predicated upon the status of one’s ancestors. The Article considers a variety of counterarguments supporting the practice of legacy preferences and concludes that none of them are sufficient to surmount the Nobility Clauses’ prohibition of hereditary privilege.

Larson’s piece is also impeccably timed, as controversy over admissions to elite universities heats up. Justice Talking featured a series of speakers on college admissions on last week’s podcast. As book after book reveals inequities in the system, apologists for privilege are mounting a counterattack. Larson’s article reminds us of what is at stake–no less than the egalitarian values at the core of the American Revolution’s rejection of British aristocracy.

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Gallacher on Cite Neutrality

The law should be freely accessible to all, but in many ways it is not. Ian Gallacher’s Cite Unseen is a brilliant piece that works to solve this problem on two levels: 1) it offers keen insights about the legal profession, and 2) exposes an easily avoidable injustice perpetuated by the legal system’s inertia and neglect. It turns out that 1) explains a lot about 2), as I’ll try to show below.

1) I believe Richard Posner has called the Bluebook a “hypertrophy of ritual”–an elaborate manual of propitiation as involved (and useless) as the pyramid tomb of a Pharaoh. Given the near-universal availability of hyperlinking and searchable texts, why does anyone still bother with figuring out whether a committee report needs to be in small caps or italics? Gallacher suggests that the answer may by psychological:

Law school is place of almost existential doubt, a world in which the Socratic teaching method replaces knowledge with questions and understanding with incomprehension. For many law students, The Bluebook is a binary state refuge in the dismal swamp of hypothetical ambiguity that can be law school classes, replacing . . . blurred doctrine with a sharp focus, and principles with rules.

An almost Linnaean taxonomy (reflecting Langdell’s geological approach to precedents) vests law with the trappings of science. Just as a posh Etonian can spot a Cockney pretender on the basis of any one of thousands of well-trained social gestures, the elect can instantly identify the work of an outsider who writes “F. 3d” instead of “F.3d”.

Many of us are annoyed by this aesthetic tic masquerading as scientific precision. But where’s the injustice?

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Philadelphia Story: Is Appearance a Positional Good?

phanatic.jpgTravel & Leisure magazine recently released a survey concluding that “Philadelphia is home to the least attractive people in the United States.” Defending this cruel and implausible judgment, a survey organizer said “We were asking people to vote on attractiveness, not unattractiveness. Travel & Leisure editors believe there are a lot of attractive people in Philadelphia.”

Can someone rank-order attractiveness, and then plead that any unattractive results are mere byproducts of a contest that should only concentrate on winners? I’ll admit that my last post too easily assumed that appearance-improvement is likely to degenerate into positional competition. But I still think surveys like T&L’s inevitably result in losers as well as winners. And I think one needs to prove the widespreadness of a quite rarified aesthetic theory to convincingly demonstrate the opposite–even outside the confines of a ranking survey.

As I recall from an Alain de Botton book, Plato and Kant had divergent aesthetic theories. (And I hope the philosophers out there forgive me for citing a popularization I read years ago.) Kant suggested that a judgment of beauty had to participate both in the objective and the subjective:

Running through Kant’s various characterizations of judgments of beauty is a basic dichotomy between two apparently opposed sets of features. On the one hand, judgments of beauty are based on feeling, they do not depend on subsuming the object under a concept (in particular, the concept of an end which such an object is supposed to satisfy), and they cannot be proved. This combination of features seems to suggest that judgments of beauty should be assimilated to judgments of the agreeable. On the other hand, however, judgments of beauty are unlike judgments of the agreeable in not involving desire for the object; more importantly and centrally, they make a normative claim to everyone’s agreement. These features seem to suggest that they should be assimilated, instead, to objective cognitive judgments.

By contrast, Plato’s position was far more objective . . .

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Any Deserving Uninsured?

Judging from some bloggers’ response to the Frost family featured on the radio last week, that question appears to be on the table. I found David Lazarus’s story a compelling example of the anxiety that lack of stable health insurance can cause. Having just been diagnosed with diabetes, he’s worried about the future:

[T]he quirks and complexities of the insurance system border on madness. Through my employer, I have about as much insurance coverage as anyone. . . . I have to wonder where else my private-sector insurance will fail me in years ahead. And what happens if I get fired tomorrow? With a preexisting condition, I’m virtually uninsurable in the individual insurance market. Will diabetes leave my family destitute?

The terrifying possibility of my own loss of coverage gives me an acute sense of what the uninsured must deal with, the dreadful awareness that you and your loved ones are only one medical misstep from catastrophe. That’s unacceptable for any person who lives in the wealthiest, most advanced nation in the history of the world.

Or consider the story of a potential whistleblower who finds his insurance gone along with his job. How many such stories must be told before we can all agree there is a problem?



Did you ever notice that law school hiring seems to aim for not-all-that-diverse diversity? It reminds me of a friend who claims to love Thai food and then orders everything “extra mild.” Does he like Thai food (as in embrace it) or does he simply embrace the idea of liking Thai food? It’s like the question I often ask my classes: Can you have a preference for a preference?

How is this like faculty hiring for diversity? My, admittedly unofficial, view is that when hiring committees look for candidates the pecking order is like this:

White elite eduated male

White elite ed. female

African American ed. elite male

African Americna ed. elite female

White non elite female

White non elite male

African American non elite female

African American non elite female

The ranking is, no surprise, consistent with social comfort and, let’s face it, given that there is no evidence that one group is better at law teaching than another and that law professors can “interpret” resumes to mean anything, social comfort plays a big role.

So, do law professors on average like the idea of embracing diversity or do they really embrace diversity? I think it’s the former and it’s not even close. They have a preference for a preference for diversity but the real preference is just not there.

So how would you recruit for actually diversity? No question in my mind that race is a big factor but how about these questions:

1. What was your father or mother’s occupation?

2. How much school did your father and mother complete?

3. How much student debt have you accumulated?

4. How many people do you know at an Ivy League school?

5. Ever worked at McDonalds, washed cars, or bagged groceries?

6. Anyone in your family on welfare.

7. Has anyone in your family done time?

8. Ever been out of the US?

9. What is the difference between rigatoni and zitti? (oops, sorry this one accidently came over from a completely different list)

When and if law faculties get serious about diversity, let me know.