Boutique Medicine: Tax it, Don’t Ax It

Sick of waiting weeks for a doctor’s appointment? Or hurried visits? Well, “concierge physicians” have got a deal for you. Just pay a retainer to a practice (usually between $2,000 and $5,000 annually), and you’ll get immediate attention, long visits, and personalized preventive care. There’s just one catch—when you and, say, 400 other health care “consumers” sign-up at a given practice, it drops the other 1500 patients it had been serving to concentrate solely on retainer patients.

Is this problematic? Some important Democrats say yes, and have moved to kick “concierge physicians” out of the Medicare program. Tommy Thompson resisted that move when he headed HHS—and now he’s on a leading concierge franchise’s board. But since he’s left, some lower level officials at HHS have been raising concerns about “boutique medicine.”

After thinking about retainer care for a while, I have a few conclusions about these efforts. In a nutshell: I think it’s unwise to try to ban concierge care outright. But I do worry about it. It’s consonant with a larger movement that TNR describes: “to radically transform health insurance altogether, so that risk is gradually transferred away from large groups ( i.e., the government and large employers) and onto individuals (i.e., you).” If health insurance starts to move from a “defined benefit” to a “defined contribution” model, we can count on a diversion of scarce medical resources from a common risk pool to pockets of well-heeled consumers. Here’s why I think so…

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List of Law Student Blogs

Clever WoT, a law student blogger at Michigan Law School, has compiled a list of law student blogs, organized by law school. Law schools with the most student blogs include Georgetown, Michigan, Harvard, and Lewis & Clark. Clever WoT counts 215 law student bloggers from 48 schools.

I don’t understand, however, why Balkinization is listed as a law student blog. Last time I checked, Jack Balkin was a professor . . .

Hat tip: 3L Epiphany


Demography Ain’t Destiny

Daniel Drezner notes the latest study in the always irritating demographic-victory-of-the-scary-is-upon-us field of empirical research. This time, instead of the Chinese or the Hasidim, it’s the conservatives of Salt Lake City who will, if the trend lines continue unabated, take over the earth.

Look, there’s no doubt that far into the future, there will be way fewer bloodline-pure Italians, or ditto-pure Iowans born into Italy or Iowa. There’s also no question that if you’re only going on the basis of children produced, Salt Lake City will grow at a faster rate than Seattle.

But what conclusions can be drawn from these facts in light of the prevalence of immigration and assimilation? I have no confidence – none – that the political ideologies of parents with big families will result in successful political movements soldiered by their children. And if I was a political consultant, I’d be more concerned with the ideological ferment in Greater Los Angeles than I would in the ten Great Plains states that might rival it in population, even if your average couple in Scotts Bluff produces more kids than your average couple in West Hollywood. Or at least I would be if we didn’t have a Senate.


Why Are More People Failing the Bar Exam?

idtheft4.jpgAn interesting article in the National Law Journal describes how the passage rates for the Bar Exam have been declining:

Nationwide, some 28,110 people failed the test in 2004, for a 64 percent pass rate. By comparison, 65 percent passed in 2000 and 70 percent passed in 1995.

Some observers point to higher pass scores required by some states as the culprit, others note a proliferation of new and unaccredited law schools, and still others blame a lack of preparation provided by all law schools. Indeed, the situation has become such a concern that law schools have begun implementing for-credit bar review courses into their curricula.

Whatever the reason, the failure to get an attorney’s license is creating a crisis situation for a growing number of graduates who sit for the exam, often burdened with crippling debt. . . .

Since 1995, the number of people failing the test has ballooned by 28 percent, while the number of law graduates taking the bar exam has increased by 6.4 percent, according to the NCBE. In 2004, some 77,246 people sat for the bar exam, compared to 72,591 in 1995.

The article proposes several theories for the declining pass rates, such as a lack of preparation for the Bar Exam by law schools and the existence of more unaccredited law schools. I’m skeptical about whether these are the reasons. The article proposes a third reason that probably is the most significant factor. In the face of great uncertainty about whether the Bar Exam really tests anything meaningful, states continue to raise the minimum scores necessary to pass the Bar:

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Has the Tide Turned for Conservatives in the Academy?

Sorry. Another hiring post. Tis the season.

Conservative academics have long moaned that they face hostility in the academy, and I imagine that this may still be true at some institutions. But since there aren’t that many conservatives in on law school faculties to begin with, I thought it might be idly worth speculating whether the few that do decide to teach are entering a land of milk and honey. Harvard invited mostly conservatives for a look at its con law position, some think the place is on a right wing hiring binge. As best as I can tell, Illinois, Minnesota, and Notre Dame have developed concentrations in Republicanism, possibly they hope to imitate schools like George Mason and San Diego, which, according to the conventional wisdom, have looked rightward for hiring, and seen a dramatic improvement in their repuations. And that’s not all: the University of St Thomas and Ave Maria are new law schools with socially conservative agendas; they need to hire faculty, too. I’ll leave other tea-leaf readers to try to figure out whether other faculties keep a particular eye out for friends of the supply side and states’ rights.

It all sounds very political and possibly a bit cynical, but, while we’re idly speculating, I’d note that there may be good reasons for these faculties to look for Federalist Society credentials. You’re likely to get yourself new colleagues who are likely to do revisionist, but hardly incomprehensible, work, who are often comfortable with economic analysis, who might be willing to teach corporate subjects, and who will not find it difficult to plug themselves into a well-resourced, energetic network of teachers at other law schools.

Indeed, many schools may want a conservative or two on their faculty for the same reason they’d like, say, an ADR specialist – so they’ve got people on all of the conference circuits, capable of participating in a field that could, as they say, blow up. Even Yale has hired a conservative or two recently. Talk about shifting the paradigm.

Dedicated Ventilators?


Imagine that bird flu hits the United States, and you’re a doctor at a hospital filled with 700 infected patients who all need ventilators to help them breathe. You have 100 ventilators. How do you allocate them? To the sickest? the youngest? the oldest? the most likely to live? the ones most likely to die without one?

The choices would be unthinkable, as Bernard Williams and Martha Nussbaum have suggested. We should be doing much more to avoid them, or at least make them less stark. But as this article from the NYT shows, we are instead doing very little:

Right now, there are 105,000 ventilators, and even during a regular flu season, about 100,000 are in use. In a worst-case human pandemic, according to the national preparedness plan issued by President Bush in November, the country would need as many as 742,500. To some experts, the ventilator shortage is the most glaring example of the country’s lack of readiness for a pandemic.

Now aren’t you happy that market forces got rid of all that “excess hospital capacity” in the 80s and 90s? According to one doctor from the Mayo Medical School, “Families are going to be told, ‘We have to take your loved one off the ventilator even though, if we could keep him on it for a week, he might be fine.'”

Given various budgetary crises, we can’t expect much help from government. Is there any creative solution? I’d like to suggest one: Let individuals buy ventilators to dedicate for themselves and their families (at nearby hospitals), in exchange for their donation of one ventilator for each one they dedicate. Here’s some “figures”….

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The Implication of Specter’s FISA Argument

Arlen Specter claimed on the Senate floor that FISA is unconstitutional because it conflicts with the President’s Article II plenary national security authority. [Update: No he didn’t. See below.] Wouldn’t that argument make the Patriot Act unconstitutional too? Just wondering. Orin Kerr: take it from here.

[Hat Tip: A colleague who knows more than I do about constitutional law.]

[UPDATE: Thomas has the remarks online. In my view, early reports, like those provided by Josh Marshall, incorrectly stated Specter’s position. I relied on those early reports. Apologies. The relevant bits of Specter’s presentation follow after the jump]

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Grading redux: Spelling and grammar

Another question from my friend “Jim”:

How much weight should I place on spelling and grammar? I myself place a very high value on perfect spelling and grammar, and I personally used to spend hours and hours combing through my documents to guarantee that my documents were free of absolutely any spelling or grammatical errors before I submitted them to a professor or a client. So, it’s frustrating me to no end to read a paper that was apparently thrown together without, as I admonished the students plenty of times in class, the student paying meticulous attention to eradicate any spelling errors or incorrect grammar in their final papers. How have you handled this?

It’s my sense that every professor handles it differently, but that everyone gives some weight to spelling, grammar, and so on. Personally, I allocate about a quarter of the points in my exams and papers to a category I call “writing and organization.” Students lose points from this pool if they have misspellings, bad grammar, bad organization, and so on. I think that this more or less mimics life on the outside. A brief or memo full of bad grammar and misspellings will not be viewed particularly kindly by a judge or a law firm partner. Because of this reality, I think it’s important to keep students focused on the importance of good grammar, spelling, and organization. On the other hand, perfect spelling of bad law won’t help either.

For me, the number of points at stake depends on the context. A few misspellings in a final exam will typically cost a student one or two points out of the total pool. Students are hastily putting together answers in a two or three hour period, and I’m not expecting polished perfection. The same few misspellings on a final paper, however, will cost a student significantly more points. A student who has months to put together a paper has more than enough time to ferret out any spelling, grammar, or organization problems in her paper.


Subjective Personal Factors in Grading

A friend is a professor (at a different school than mine, and no, it’s none of the Co-Op bloggers). Recently, he asked me this question:

“When is it permissible to incorporate personal information about a student into the grading calculus, to give that student’s grade a ‘nudge'”?

His situation is this. He’s got a batch of student papers for his class. There are some clear A papers, and some clear B’s, and so on. And one student’s paper is borderline-A. Maybe an A-minus, but maybe not. Slightly better than other A-minus papers; not quite as good as the A papers. It’s right on the borderline.

However, through a series of personal conversations with this student, my friend is privy to the fact that this student is going through some very challenging family circumstances right now. My friend is impressed that this student was able to put together a borderline-A paper under the circumstances, and is thinking of giving the student an A. (At present, he’s undecided). As we discussed the matter, we hit on the broader issue: When is it permissible to allow subjective factors to weigh on a student’s grade?

First, let me note that I don’t really have to deal with that at Thomas Jefferson. We use blind grading here; even if I wanted to give higher grades to students based on some subjective criteria, I wouldn’t be able to do so.

But even if subjective grading were allowed, I don’t know that I would engage in it. It’s not clear to me which subjective factors ought to be brought into the calculus. Should I give a higher grade to students who are overcoming some personal struggle, as in my friend’s example? This path seems problematic. I’m the students’ professor, not their therapist. I don’t know what struggles any particular student might be going through. This would make it easy to misjudge any nudge. For example, I might give student A a nudge over student B because student A just had a death in the family. However, I might not know that student B is also going through a family challenge — perhaps his wife just had a baby. Both are being subjected to family challenges; however, one tells me and the other does not, and so I nudge one but not the other. That seems like a major potential problem.

There are also structrual questions. It is easy to sympathize with the student who suffers family challenges. Who wouldn’t want to go easy on such a student? But aren’t there other subjective factors that could be brought into play? For example, one could also conceive of giving nudges based on race, class, or gender. If blacks or women typically perform more poorly in law school, why not bump them all up a notch?

The possibilities get even murkier. Some students are chattier in class than others. Some are friendlier. Some are more punctual. Some are better-dressed. Some are better-looking. There are a thousand subjective differences. If I’m willing to deviate for the student who has a family crisis, where do I draw the line? Do I also deviate for students who are nicer to me? Students who smile and greet me in the hallway? Students who dress well? Students who attended my alma mater?

Perhaps at some future date, I’ll be sufficiently comfortable in my professorial role to start experimenting with subjective factor grading. But right now, I find even objective grading to be difficult enough — I don’t need to add more factors to the equation. Subjective grading is a can of worms that I’d rather avoid for now. I’ll respect my friend’s decision on the matter, whichever way he goes. But my own grades are going to be strictly based on the factors laid out in my syllabus.