P.L.A. - A Journal of Politics, Law and Autism
PLA is a fair and balanced Journal published by Dwight Meredith with a Focus on Politics, Law and Autism
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Saturday, January 25, 2003
A Welcome Return
Jeff Cooper has returned and will be back on a more regular basis soon. That is welcome news.
Friday, January 24, 2003
Karl’s Magic Elixir
Presidential political and policy advisor Karl Rove recently attended a Christian Science Monitor forum where he answered questions from the press.
Mr. Rove has a reputation as a political genius. He received much credit for both Bush’s 2000 electoral victory as well as the GOP success in the 2002 off year elections.
Two new books about Rove are titled “Boy Genius” and “Bush’s Brain.” The CSM reported that:
But both supporters and critics of the Bush administration say Rove holds a unique, perhaps unprecedented position. He works out of the West Wing, rather than at party headquarters or a private consulting shop. And his influence extends far beyond politics into policy.
The interview with Rove shows that either Mr. Rove is a “genius” or that people who believe Mr. Rove have been drinking a particularly powerful potion known in the West Wing as "Karl's Magic Elixir."
For instance, Mr. Rove announced that the Trent Lott controversy had strengthened the Republican Party.
One of the most powerful elected officials in the Republican Party is revealed to have a longing for a return to the days of Jim Crow and Karl Rove thinks that was a political plus for the GOP. Mr. Rove's position is either a product of genius (having insight denied to all others) or a product of Karl's Magic Elixir. Anyone who is not either a "genius" or under the influence of the Magic Elixir would have laughed Rove out of the room after that statement.
What was Mr. Rove’s logic to arrive at the counterintuitive conclusion that L’Affaire Lott helped the GOP?
The Christian Science Monitor reports Mr. Rove as saying:
I think the party has emerged from this stronger. People have a sense of who this president is and what this party stands for and I think there is a higher comfort level.
We agree that the Trent Lott episode helped “people have a sense of who this president is and what this party stands for.” The Trent Lott episode tore the mask from the GOP’s tolerance of racists and its appeal for the support of racists. It let all who have not sampled the Magic Elixir see exactly what the President and the GOP stand for.
Perhaps Mr. Rove’s logic explains the strange nomination of the homophobic Jerry Thacker to the Aids Commission. After drinking Karl's Magic Elixir, one can believe that Mr. Bush’s backtracking on that nomination made him stronger politically because the public now has a better understanding of the criteria Mr. Bush uses for his nominations.
After only a few sips of Magic Elixir, one will realize that the public has “a higher comfort level” now that it knows that when Mr. Bush gets caught appointing homophobic nut cases to federal commissions, the nominations will be withdrawn.
Mr. Rove also had counterintuitive takes on other issues. With regard to the President’s call for the elimination of taxes on dividends, the Times reports as follows:
Karl Rove, the White House's senior political strategist, said today that President Bush was a populist whose call for the elimination of taxes on stock dividends was aimed at "the little guy."…
After drinking the Magic Elixir prepared by “Bush’s Brain”, the definition of “populism” becomes siding with the very richest people in America rather than siding with the very largest corporations in America.
Under the influence of the Boy Genius’ Elixir, cutting Dick Cheney’s taxes by more than $200,000 in one year and cutting Bill Gates’ taxes by $37 million per year constitutes standing up for the “little guy.”
Mr. Rove’s comparison of Mr. Bush to Teddy Roosevelt is also remarkable.
Mr. Bush promised to reform the Security and Exchange Commission and to provide tough enforcement of tough new regulations on accountants, lawyers and corporations. The Sarbanes-Oaxley bill was signed into law for just such a purpose. When it came time to implement that law, however, the Bush administration changed its tune.
The Times reports as follows:
The staff of the Securities and Exchange Commission plans to recommend that the agency soften proposed rules that would impose new obligations on lawyers and accountants, government officials said today.
Caving to the lobbying efforts of lawyers, accountants and corporations looks just like the crusading trust-busting of Teddy Roosevelt once you have had a glass or two of Karl’s Magic Elixir.
Next, Mr. Rove contends that George W. Bush is a great environmentalist in the tradition of Teddy Roosevelt. The Times reports:
On the environment, Mr. Rove said Mr. Bush had pursued enlightened policies, such as encouraging the thinning of forest on federal land to reduce the damage from forest fires.
The Bush forest policy has far less to do with healthy forests than with opening up public land to logging with taxpayers subsidizing the logging industry.
The Bush administration and its Senate allies recently defeated an effort to restore weakened provisions of the Clean Air Act.
Mr. Bush reneged on his campaign promise to reduce power plant emission of carbon dioxide.
There are many other examples of Mr. Bush choosing corporate interests over protecting the environment. The whirling sound you hear is Teddy Roosevelt rolling around in his grave. But then, Teddy never had the chance to sample the Elixir.
If you get the chance, drink some of Karl’s Magic Elixir. After only a few sips, you will believe that George W. Bush is a populist and an environmentalist. You will believe that President Bush spends his time looking out for the little guy. You will believe that Trent Lott being exposed as a segregationist was a political triumph for Mr. Bush.
After all, a political genius told you so. After only a few sips of the Magic Elixir, you will believe him.
The Short Unhappy Nomination of Jerry Thacker
The brief but turbulent nomination and withdrawal of Bob Jones’ own homophobic nutcase, Jerry Thacker, to the AIDS commission has caught Julia’s attention (you may have to scroll down until you see a picture of Claude Rains). She awards this week’s Claude Rains Memorial Gambling Awareness Award to Andrew Sullivan for being shocked, shocked that the Bush administration would nominate a homophobe to the Aids Commission.
She also awarded the Claude Rains Memorial Gambling Awareness Award for Ambiguous Relationship to Officialdom to Ari Fleischer. Fleischer won that award for being able to keep a straight face while saying that despite the fact that President Bush chose to nominate Mr. Thacker to the Aids Commission, Mr. Bush and Mr. Thacker hold views precisely opposite views.
By Ari’s logic, we can expect the President to appoint Paul Krugman to replace Glenn Hubbard as head of the CEA.
Thursday, January 23, 2003
Tort Reform and Frivolous Suits
Many tort reformers argue that reform is needed to reduce the number of frivolous lawsuits. They believe that insurance companies and others pay millions of dollars in judgments and settlements on cases that have no merit whatsoever.
The evidence that insurance companies engage in such self-destructive and irrational behavior is often anecdotal.
Much is made of the fact that a lawyer sued McDonald’s contending that the fast food giant was liable for the obesity of his clients. As is often the case with frivolous suits, that action has now been dismissed in its entirety. Thanks to Planet Swank for the link.
If the McDonald’s suit lost, what about all of the other the frivolous suits in which the plaintiff gets a huge verdict?
Kip at Long Story Short Pier discusses an email making the rounds. That email purports to detail a number of completely frivolous suits that were successful:
1. Kathleen Robertson of Austin, Texas, was awarded $780,000 by a jury of her peers after breaking her ankle tripping over a toddler who was running inside a furniture store. The owners of the store were understandably surprised at the verdict, considering the misbehaving little toddler was Ms. Robertson’s son.
Those are certainly some outrageous stories. Would any of you agreed with the result of those cases on the facts presented had you been on the jury? Would any of your friends or family?
No one else would either. Those stories are all complete fiction. Snopes.com has investigated each of those stories and found them to be complete fabrications.
Well, if those stories do not support tort reform, there is always the tried and true story of the lady who won millions from McDonalds because she was burned by hot coffee. We would have hoped that Charles Kuffner would have but that old chestnut mare out to pasture with this post.
If not, surely Kip completes the job here. Read those posts and the links Charles and Kip provide and we suspect that you will come to the conclusion that the “hot coffee case” was far from frivolous.
We do not contend that no frivolous suits are ever filed. We have argued that frivolous cases simply lose and lose big. Winning lawsuits with a good case is hard, it is near impossible with a completely frivolous case.
President Bush recent gave a speech advocating tort reform. Mr. Bush used the standard “frivolous suit” rhetoric.
There are too many lawsuits in America, and there are too many lawsuits filed against doctors and hospitals without merit!
The core of Mr. Bush’s actual proposal was a $250,000 cap on recovery of pain and suffering damages in medical malpractice suits.
The most striking thing about that proposal is that it is not aimed in any way at reducing the number of frivolous suits, punishing the lawyers and litigants who bring frivolous suits, or reducing the chance that frivolous suits would be successful.
A $250,000 cap on pain and suffering awards does absolutely nothing to limit frivolous suits. It simply caps the recovery in meritorious suits. So after claiming that the problems was frivolous suits, Mr. Bush proposes no solutions that address what he perceives as the problem.
If, however, one believes that frivolous suits are at the core of the need for tort reform, there are a number of measures that would address that alleged problem.
The 1993 Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc went a long way to prevent the presentation of junk science to a jury. Daubert requires, in Federal Courts, that the judge make in independent determination that any proposed expert testimony “both rests on a reliable foundation and is relevant to the task at hand.”
Prior to allowing expert testimony to be heard by the jury, the judge must first find that expert testimony’s
underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community.
The adoption of the Daubert standard in state courts would go a long way to ensuring that junk science has no place in the courtroom.
Under one Georgia statute, OCGA 9-11-9.1, no malpractice suit may be filed unless accompanied by an affidavit from a physician who has reviewed the case and determined that a violation of the standard of care occurred. Any malpractice suit filed without a doctor testifying that the defendant is negligent is subject to automatic dismissal. Requiring a doctor to testify to the negligence of another doctor before a suit is filed addresses the problem of frivolous suits directly.
Georgia also seeks to punish lawyers and litigants who file frivolous suits. In Georgia, a defendant in any civil litigation may bring ask the judge to sanction the other side for frivolous litigation. The sanction is an award of his or her attorney fees and litigation expenses against either the opposing party, the opposing lawyer or both.
The trial court is required to award such sanctions if “there existed such a complete absence of any justiciable issue of law or fact that it could not reasonably be believed that a court would accept the claim.” OCGA § 9-15-14(a).
In addition, the court may award attorney fees and litigation costs as a sanction if the court finds that the claim, or any part of the claim “lacked substantial justification” or was interposed for an improper purpose. OCGA § 9-15-14(b).
The defense attorney fees, expert witness fees and other litigation costs can be quite substantial in a medical malpractice case. Those provisions are not a form of “loser pays” in that the loser of a suit that had a sound factual basis but was not ultimately successful is not subject to sanction. Nonetheless, the threat of sanction can be a real deterrent to frivolous suits.
The tort reform argument based on a claim of an explosion of frivolous litigation has long been a Republican spin point. When closely analyzed, however, it is like Gertrude Stein’s description of Oakland. There is no there there.
The cases brought forth in support of the claim turn out to dismissed, fictitious or not frivolous at all. There is a Republican President and Republican control over both houses of Congress. If reforms that address the problems of frivolous litigation would actually accomplish the benefits that tort reformers profess to want, would not Mr. Bush have proposed such reforms?
Instead of proposing reforms that address frivolous litigation, Mr. Bush proposed to cap the damages for pain and suffering. The purpose of that proposal was not to limit frivolous suits but rather to make sure that people badly injured by medical malpractice to not receive full compensation for their injuries.
Mr. Bush’s proposal aims not at frivolous cases but at meritorious cases. The big insurance companies that support Mr. Bush want to make sure that the amounts they have to pay on the cases in which people are badly injured by the negligence of others is sharply reduced. Mr. Bush talks about frivolous cases but he proposes a policy that only affects meritorious cases.
If Mr. Bush were honest, he would acknowledge that fact. That, however, would require both honor and dignity.
Wednesday, January 22, 2003
We Are Confused
Exactly how much of pretax income do most Americans pay in taxes? We read apparently conflicting reports today and need some clarification.
Kevin Drum, the CalPundit linked to a New York Times article and presented a chart today. The chart shows the percentage of income taken by taxes (at all levels of government) for each quintile of the population. That chart pegs the percentage of pretax income paid in local, state and federal taxes as ranging from 14% of income for the second poorest quintile to 19% of income for the richest quintile.
Glenn Reynolds points us to a post by Zonitics.
Zonitics, in turn, links to a 2000 Tax Foundation report that says the tax burden on the median income American family is over 39%.
If the tax burden does not rise above 19% for any quintile, how can the tax burden on the median family be 39%? What is even more curious is that the chart Kevin presents lists the same Tax Foundation as one of its sources.
Our understanding was that the Federal budget was slightly more than 20% of GDP. That is, the budget was about $2 trillion out of a GDP of slightly more than $10 trillion. If that is the case, then it seems unlikely that the total tax burden including state and local taxes would be less than 20% of income.
Are we missing something? The total tax burden seems like a fairly basic data point. Anyone want to help us out? Do we really have to do the research ourselves?
The Winds of Change Are Still Blowing
We argued in this post that the winds of change are blowing for the Bush administration and that the second two years of Mr. Bush's term will be far more difficult politically than the first two years.
Others seem to agree. Liberal Oasis has noted the change:
If there’s one skill that a president must have, it’s the ability to reassure a nervous public.
Sean-Paul, The Agonist, has called the top of the political market for Bush:
One of the things I've learned working in the asset management business for the last eight years, especially over the last three, is how to notice that brief moment when the momentum shifts… Sometimes there are tangible signs…
Jim Capozzola points us to this unscientific online poll in which CNN asks whether the public prefers the Iraq policy of George W. Bush or Ted Kennedy. As of this writing, the voting public prefers the Kennedy policy by a 3 to1 margin.
The Daily Kos has noted the change in weather:
Now the GOP is on the defensive, struggling to defend actions that have brought conomic ruin to the states, a state of perpetual war, and economic distress. Draconian tax cuts have boxed in budget planners trying to use fiscal policy to stimulate the economy. Their solution? More tax cuts -- an idea laughed into submission the past couple of weeks. The nation's interest rates are nearly at zero, preventing the use of monetary policy to drive the nation out of recession.
Our observation that the political winds were changing just might prove to be correct. Of course, even a blind pig finds an acorn every now and again.
The Birth Tax Just Went Up
Wampum discusses a new report of the California Department of Developmental Services. The report does not yet appear to be online. According to one account of the report:
According to the latest figures just released by the California Department of Developmental Services, in 2002 California experienced an astounding 31% one year increase in the number of new children professionally diagnosed with the most severe cases of autism entering it's developmental services system. The 31% one year increase from 2001 to 2002 represents an all time record number of new cases in the system's 33 year history.... 3,577 new severely autistic children added in just the past 12 months. The figures reported by the Department DO NOT include persons with PDD-NOS, Asperger's, or any other autism spectrum disorders, just those who have received a professional diagnosis of level one, DSM IV autism.
Wampum has more. Please read it and also read the comments as Wampum discusses, and eviscerates, the possibility that the increase in reported cases is due an expanded definition of autism.
Some may argue that the increase in reporting is due to increased awareness of autism, a substitution of a diagnosis of autism for one of mental retardation or from migration patterns.
As study after study shows higher incidence of the most severe form of autism, the rationale for arguing that the increase is illusionary fades.
Even at current incident rates, the costs to society are staggering. California alone is added 3,577 additional severely autistic children last year. Each such child imposes between $2,000,000 and $3,000,000 of costs on the taxpayers (depending on the source cited.) Those costs do not include the loss of potential or any non-economic costs. They do not include costs to the child or the families but rather represent only government costs.
California has approximately 1/8 of the population of the United States. If California’s experience is repeated nationwide, we are adding 28,616 severely autistic kids a year to our population.
Thus, the failure to find a cause and a cure for autism added between $57 billion and $85 billion to the tax burden of the country last year. Those are lifetime costs and are not due and payable immediately. We do not know the present value of such costs. If the causes and cures are not found, those costs will become yearly expenses once the incidence of autism is spread evenly throughout every age group. To put those figures in perspective, the administration contends that a war in Iraq will cost about $60 billion.
The National Institute of Health currently spends about $65 million per year on autism research. Until a few years ago, the NIH spent only $5 million per year on autism research.
It is in the interest of every taxpaying American to support much greater funding for autism research so as to avoid the costs of failing to find the causes and cures for autism.
Tuesday, January 21, 2003
A Warm Welcome
Please give a warm welcome to Wild Monk.
Wild Monk is a frequent commenter on these pages and has taken the plunge to start his own blog. Wild Monk writes about Politics, Technology and Human Nature. He holds a Ph.D. in Cognitive Psychology and a Masters degree in Computer Science.
Wild Monk has a number of interesting posts up. One post includes a political personality test. We scored 58. That score allegedly places us in the “Center Right” of the spectrum. Perhaps the test should be recalibrated.
Please do not tell anyone that our politics are “center right.” If that became known in certain quarters, we could be sleeping on the couch for a while.
Monday, January 20, 2003
Autism -- Finding Acceptance
As many or you already know, the White House, in conjunction with Dick Armey and Bill Frist, snuck a provision into the Homeland Security Bill that requires parents of autistic children who contend that thimerosal in childhood vaccines caused their child’s autism to seek compensation through the Vaccine Injury Compensation Fund.
In order to obtain passage of the Homeland Security Bill, Trent Lott promised moderate Republican Senators to revisit that provision in the new Congress. New Senate Majority Leader Bill Frist has agreed to do so.
The indispensable Bloviator points us to a Washington Times editorial arguing that thimerosal should be included within the VICP. The Bloviator agrees.
We think that the logic expressed in both the Washington Times editorial and the Bloviator’s post suffer from a number of flaws. It is not the purpose of this post, however, to point out those flaws. We hope that others do so.
There are a number of aspects of the VICP that need to be fixed before it can be considered a viable alternative for families with autistic children. The statute of limitations provision must be modified, the tax codes that currently prevent compensation must be altered, the cap on non-economic damages should be raised and the availability of compensation for respite care, education expenses, non-medical therapies and other needs must be more clearly specified.
That argument, however, is for another day. Today, we wish to explore whether, if given a choice, the family of an autistic child would be better off seeking compensation through an improved VICP or through the tort system.
Before analyzing that choice, please allow us to emphasis that the choice is purely hypothetical for us. Although we are the parents of an autistic child, we have no intention of pursuing either option.
The Vaccine Injury Compensation Program was established by Congress in 1986. It is designed to compensate persons injured or killed as a result of vaccinations. Compensation for injuries under the VICP is paid with federal dollars generated from an excise tax of $0.75 per vaccination.
There are four major differences between proceeding with a VICP claim and proceeding through the tort system.
First, the VICP is a “no-fault” proceeding. If the injury results from the vaccine, compensation is automatically paid. No negligence on the part of the vaccine or ingredient manufacturer need be shown.
A lawsuit, however, is not no-fault. In order to recover in a lawsuit, the plaintiff must either show that the thimerosal manufacturer was negligent or that the vaccine was defective (depending on the legal theory pursued).
The Washington Times writes that:
By contrast, the Stabenow approach will effectively guarantee that, unless a vaccine ingredient works perfectly and without adverse side effects in every person who receives it — an impossible standard to meet — that the manufacturer could face a multimillion-dollar lawsuit.
In so writing, the Times confuses the no-fault provisions of the VICP with the fault based provisions of tort law. No provision short of a complete bar can prevent a suit from being filed. Under current tort law, however, if the manufacturer is not negligent and if the product is not defective, the vaccine manufacturer is not liable even if the injury is caused by the vaccine.
Under either the tort system or the VICP, a causal relationship between thimerosal and autism would have to be shown. Thus, the existence or non-existence of such a relationship is entirely irrelevant to the choice between the two procedures. An argumment that thimerosal does not cause autism is not an argument for including thimerosal in the VICP.
The second major difference between the VICP and the tort system is that the tort system uses a jury as the decision maker while the VICP uses a “Special Master.” A Special Master is a lawyer selected by the court to receive evidence and make a determination.
The third major difference is that the VICP caps damages for pain and suffering at $250,000 and no punitive damages are permitted. Except in certain states, the tort system places no such caps on recovery.
The final difference between a VICP claim and a tort action is that the VICP claim is shortly after the claim is brought and after a 1 or 2 days hearing. A tort claim will last a number of years with a trial measured in weeks. In a lawsuit, the parents will be required to answer interogatories, produce documents, testify at deposition, participate in settlment negotiations and testify at trial. Every part of their life and their child's disability will be placed under a micropscope.
The last difference is important. We litigate for a living. Litigation is a long, hard, messy, and expensive method of resolving disputes.
Litigation imposes large, hidden, non-financial costs on the families of autistic children. Having an autistic child changes everything for a parent and a family. Autism is a pervasive disorder. It is pervasive not only in terms of the child’s development but also in terms of family life.
In a family with an autistic child, every aspect of life must accomodate autism. Normal functions of daily life such as such as meals, sleep patterns, transportation and hygiene are affected by autism. Education, work schedules, finances, health care, religious observances, socializing, entertainment, vacations, shopping and everything else must be structured to accommodate autism. Our child requires three adults plus restraints to cut his hair. A trip to the dentist requires three adults (including the dentist), a backboard and a form of a straight jacket. A family outing to a movie is out of the question. Our family is not welcome at restaurants. We have dead bolt locks on our doors to keep people in not out. No part of family life is unaffected by having a severely autistic child.
More than 85% of marriages into which an autistic child is born fail within 5 years. In order to save one's marriage, raise children and move forward with life, the parents and siblings of an autistic child have to find some level of acceptance of their circumstances.
That acceptance can only be found when moving forward and focusing on the future. Becoming obsessed with the causes of a child’s disability and the assessment of blame does not aid the search for acceptance.
Litigation is by definition backwards looking. Litigation is solely focused on the cause, blame and damages for something that happened in the past. Liitgation focuses on the problem and not the solution.
Unlike litigation, life must be lived looking forward not backward. The qualities that make for successful litigation often make for an unsuccessful life.
Having a functional family and a functional life is far more important than unlimited damages for pain and suffering. Functionality is achieved only through accomodation and acceptance. We have spent more than five years trying to find acceptance. While we may not have reached that goal, we have traveled some distance towards it.
We have a great deal of experience with the process of litigation. We have also struggled with the necessity of finding acceptance in an unacceptable circumstance. Litigation does not help.
John Lewis on Race and George W. Bush
Today we celebrate the life and work of Dr. Martin Luther King, Jr. Congressman John Lewis, an American hero, has written an op-ed in the Atlanta Journal Constitution. Congressman Lewis reminds us that the work of Dr. King is not yet complete. Here are excerpts from that piece:
Today our nation comes together as one family to celebrate the life and the work of the Rev. Martin Luther King Jr., America's greatest human rights advocate of the 20th century.