Comments for Akron Law Café

Comment on Abortion Analogies by Kristina

Kristina — Sat, 21 Nov 2009 02:48:47 +0000

"I find a third analogy to be more fitting – one that supports the Supreme Court's position that while abortion is fundamental right, abortion funding is not."

I would argue it is a distinction without a difference. Women of means, even before Roe v. Wade, could obtain abortions. The whole fight to get access to safe, legal abortions was based on the problem of poor women perforating their internal organs attempting to perform their own abortions.

Frankly, we are arguably already back to the pre-Roe v. Wade position by default. It costs an extraordinary amount of money to pay out of pocket for an abortion now, and the people most likely to be uninsured are poor women. Abortion clinics are far and few between, requiring some women to travel hours, or even to take a week off of work (with the counseling, and the mandatory waiting periods, and all the other bs).

The Stupak amendment isn't limited to abortion, either, but can be read to apply to all forms of birth control.

The Senate compromise is absolutely garbage. I am beginning to think that President Obama found the most effective way to completely neutralize women's rights – he promoted the only person brave enough, with enough spine, to advocate for our rights.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by Quidpro

Quidpro — Sat, 21 Nov 2009 01:38:57 +0000

Professor,

My succinct post of 11-18 did not accuse anyone of instituting "death panels". I may use that accusation in the future, but I prefer to see how the legislative process plays out. I did mention rationing. You agree it will occur under any reform plan, but offer, by way of excuse, that it occurs at present.

One point to which you repeatedly come back is cost. You ask, near the end of your November 19 post: "The real question is, how much are we as a society willing to spend on health care?" But, at least in the case of private pay/private insurance "we as a society" don't pay this cost. Individuals do, based on individual, personal decisions.

That is my point. If we returned to a point closer to a true insurance model, "we as a society" would not have to address the cost issue. It would be a matter of individual choice. Are we not pro-choice on this issue?

Finally,I would like to commend you and your wife for your concern for those who do not have adequate health insurance, as you expressed in you post of this morning, but I will not. The concern that you clothe in the noble language of sacrifice, you would address with public funds. There should be no commendation in the use of others' funds to assuage your conscience.

Comment on NEW- Case Law on Google! by Dave

Dave — Sat, 21 Nov 2009 01:00:31 +0000

Because I don't know where else to suggest topics, here are a couple…

There are updates to the Massey Coal case. The West Virginia Supreme Court overturned a $50 million jury verdict for the third time. But now we have the precedent that you can take the case to the SCOTUS and get a Justice thrown out if you didn't like the original verdict.

How about discussing the high ranking DOJ officials having to recuse themselves from detainee cases because they worked for terror-friendly law firms? http://www.washingtontimes.com/news/2009/nov/22/on-terrorists-justice-recused/

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by P.O.L.

P.O.L. — Sat, 21 Nov 2009 00:55:28 +0000

Professor,

Could you please cite a reference in which any person claiming to be a libertarian has recommended the abolition of health insurance. I can think of few things more inconsistent with libertarian thought than denying people the freedom to contract for health insurance.

You continue to say that “we” face a problem, but you have never provided any rationale as to why you think this is a shared problem. In fact you suggest the exact opposite when you say you could go “merrily along under the current system.” Certainly some people face have medical problems that they cannot pay for, but how do you justify depriving others of their liberty and property to pay for someone else’s problem, when those who ultimately pay do not receive a reciprocal benefit nor were they in any way responsible for the creation of the problem.

I am all for eliminating barriers in the current system that drive up costs and impair people’s access to medical coverage. The employer-provider system, which I think you have to admit is the product of government intervention in this area, presents obstacles to people obtaining and maintaining insurance. There is no reason why someone who loses his job should also lose his medical insurance, provided he can still pay the premiums. And, there is also no reason there should be a large disparity between the cost of purchasing insurance through and employer versus buying it outside. I think these obstacles to obtaining or maintaining insurance would be eliminated if we eliminated the tax incentives for employers to provide health insurance. If you want to maintain favorable tax treatment for health care expenditures, then why not just have an individual above-the-line deduction for all health care expenses paid by the individual. I generally don’t favor using the tax code to either encourage or discourage particular behavior, but I think a personal deduction would not have the adverse side effects of the employer deduction.

I also have yet to hear any explanation provided as to why insurance should cover routine examinations, which is also attributable to the fact that employers provide health insurance rather than people obtaining a plan individually. Let’s use the mammogram as an example. If an insurance plan is going to cover an annual mammogram for women 40-49 and the cost of the mammogram is $100, then every woman between 40 and 49 will pay $100 plus the insurer’s administrative costs more than she would if such coverage was not provided. If the woman paid directly, she could just pay the doctor $100 directly and cut out much of the administrative expense. She would also have more control over whether she wants to undergo routine exams rather than being forced to pay for a service she may not want nor ever use.

There are other things we could do too to improve access without depriving people of choices regarding their own care. For example, we could also make health-care related debt non-dischargeable in bankruptcy to encourage the extension of credit to people who could not otherwise obtain care. This would also reduce doctors’ bad debt expenses and reduce costs for every one else.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by Dave

Dave — Fri, 20 Nov 2009 14:34:43 +0000

I have to agree with P.O.L. and Larry.

When you just spout the company line – "That's a lie," that is what is going to lead people to question your motives.

It is indisputable that some form of bureaucracy will determine what is covered and what is not. If this shortens or ends a few lives, what should these groups be called by those affected?

One of the reasons that people are so distrustful of insurance companies is the similar demagoguery that has been directed at them over the years.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by larry d.

larry d. — Fri, 20 Nov 2009 12:55:36 +0000

Actually, Professor, to simply state "death panels" are a lie is pretty disingenuous. It is hyperbole meant to warn folks about the possibility that under public options, etc., these kinds of recommendations could become inescapable policy. The hyperbole is distasteful, to be sure, but simply calling it a lie further clouds the issue and promotes distrust in the whole movement toward reform.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by Professor Will Huhn

Professor Will Huhn — Fri, 20 Nov 2009 11:16:14 +0000

P.O.L.
I think you are overestimating the amount of choice that people can exercise in this area. Most people can't "choose" to treat breast cancer with a biologic drug regimen that costs $48,000 annually. As a practical matter, if it isn't covered by insurance then we do without. The 17% of the country that is uninsured, and the additional 20-25% who are underinsured (and both numbers are growing) sure aren't making any choices. Wake up! Ideology is not the answer to the problems we face in this area. That prism is distorting your vision and is keeping you from grappling with the real issue here.
Liberals like to call medical providers or insurers "greedy" for charging so much for medical care, but they are wrong. Costs are going up not because doctors or insurance companies are "greedy" but because modern medicine can do so much to prevent and treat illness and injury … and treatments that are on the horizon will be even better and more expensive.
Libertarians like to believe that everything will be great if only we let the free market operate in this area, but they are wrong as well. They want to abolish health insurance and make people pay for medical care out of their own pockets, or abolish tax preferences for health insurance or health spending accounts. Well, I suppose that would put a lid on the cost of health care, but it would also end up denying most people access to health care, and the country as a whole would have a lot of untreated medical conditions, thus reducing our productivity and our overall happiness.
Conservatives tend to want everything to stay the same … "Why do you liberals want to change everything? Just leave the system alone!" Many people are doing all right under the current system, but this ignores the fact that there are a lot of people who are not doing all right – and even if we ignore the plight of people who are uninsured and underinsured, our current system it is not sustainable. Total health care costs have doubled over the last decade and if we do nothing they will double again over the next decade.
My wife and I earn a good living and we could go merrily along under the current system, but we have to answer the question, "What is best for the country as a whole? Not just for you and me, but for our neighbors and friends, children and grandchildren, for all Americans?"
We have to solve the problems of both high cost and inadequate coverage while at the same time maintaining high quality. The Democratic plans solve two of the problems, but it leaves the other unresolved, and that isn't good enough. The Democratic bills provide adequate coverage to 94% of Americans without significantly increasing the overall cost of health care, but they do nothing to "bend the cost curve" down. If we don't solve that problem too, then we will be spending a larger and larger percentage of our national income on health care – 17% now, 21% by 2019, 25% by 2025, and continuing to escalate until 2082 when health care costs exceed national income. We have to lower total overall costs at the same time that we increase coverage and maintain quality. We have to figure out how to solve thousands of issues like whether it is more cost effective to have mammograms done annually, bienially, or only on a doctor's recommendation. Do you see a way to do that?
As for your comment about my having "contempt" for the principles of personal choice and personal responsibility – I am unaware of any such feeling. Perhaps I do, from your perspective. But are you aware of the fact that people often attribute bad motives to persons with whom they disagree as a way of avoiding addressing the merits of their arguments? I ask you to consider the possibility that our differences are not due to any specific character flaws on my part (which I have in abundance), but rather to disagreements we have about the consequences that will flow from different public policy choices.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by Dan S.

Dan S. — Fri, 20 Nov 2009 03:01:18 +0000

RE:"….but I assure you that individuals are actually capable of making judgments about their own health care."

Capable?…..perhaps so, but are they willing to make those judgments ??

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by Dave

Dave — Fri, 20 Nov 2009 01:52:49 +0000

This is a great conversation to have and I agree that the timing is terrific.

One of the ways that were were supposed to save a fortune, was by preventative care. Of course, this isn't exactly preventative care. But is shows the concept that you can have too much care. That it can in itself drive up medical costs.

The other thing to notice is the backlash against the new care standard. If there is enough of a backlash, will public opinion be able to change the new care standard. If this is the case then the sky is the limit to how much this will cost us.

What about the court system? Can I challenge the care standard in the courts? You know some judge will demand that x-condition (baldness, alcoholic liver disease, ED or anything) be covered.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by P.O.L.

P.O.L. — Fri, 20 Nov 2009 00:43:23 +0000

When you say, “Someone has to make these judgments, either private insurance companies or the law,” you demonstrate a complete lack of vision. Your posts on this blog have demonstrated your contempt for individual liberty and personal accountability, but I assure you that individuals are actually capable of making judgments about their own health care. I recognize that the current system does generally limit people’s ability to customize their health care plan. Many employers offer only one plan and give employees the binary choice of being covered or not covered, leaving the details of the plan largely to the insurer. But, I think much of this can be attributed to the employer-centered model that has resulted from the government granting tax incentives for employers to provide health care. If you look at almost any other product, insurance or otherwise, that is purchased on the open market, consumers have a wide variety of choices that they can make to customize thee product. For example, auto insurance consumers can decide whether they want high or low liability limits, high or low deductibles, collision coverage, comprehensive coverage, uninsured motorist coverage, underinsured motorist coverage, medical payments, rental car reimbursement, etc. If you had a true free market system for health care, each individual woman could decide whether she wanted an annual mammogram, biennial mammogram, or no mammogram at all. The premiums offered by insurers would reflect both the additional cost of the exam and the potential cost savings from early detection. The woman, not the insurance company or the law, could weigh her own peace of mind, unnecessary anxiety, and the cost of more frequent exams to determine what is right for her.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by Professor Will Huhn

Professor Will Huhn — Thu, 19 Nov 2009 19:36:21 +0000

Larry, agreed – the "psychological harm" argument seems groundless. Let's go directly to the bottom line and say what USPSTF wasn't forthright enough to acknowledge. This is all about saving money.
And what if the USPSTF is right, or at least is taking a rational position. One of the criticisms that the CBO levels at the public option is that the CBO does not think that government will be as good at cost containment (rationing) as insurance companies are. This challenges the assumptions of both liberals and conservatives – basically it speaks to all of us. Liberals rail at the "greedy" "soulless" private health insurance companies who deny care or deny coverage for treatment that it regards as either not necessary or at least not medically indicated. But who will perform that function once the government is the insurer? Someone has to. Conservatives talk about "rationing" (I'm lookin' at you, Q) but that's not the real problem with more government involvement – the real problem is that public officials, whether appointed to elected, are not as likely to say "No!" to a patient as a private company is. And let's face it, insurance companies are rationing care now, a lot more than the government would under any of the bills, because the government is going to eliminate exclusions for preexisting conditions and abolish lifetime limits on coverage.
And let's talk honestly about "death panels." That's a figment, Q, a lie – there is nothing in any of the bills like that. But there is a concept that has been with us for a long time, the concept of medical "futility." A huge proportion of the money we spend on health care is expended in the last six months of life, and decisions are made every day about what can and will be done for people. And n entity, public or private – insurance companies, doctors, hospitals, nursing homes, Medicare, Medicaid, the Veterans Administration – can spend hundreds of thousands to "save" the life of a 95-year-old person who is in renal failure, end-stage cancer, and Alzheimer's which is so advanced that he or she can no longer communicate, let alone recognize loved ones.
Soooooo – the USPSTF concludes in this case that saving one person's life (I don't know how many life-years that represents) is not worth 1904 mammograms. A mammogram costs between $100 to $150. Accordingly, the cost of the 1904 mammograms is about $200,000. Add to this the cost of unnecessary treatment resulting from false positives or cancer that is detected but which would not be life-threatening, and the lost work days resulting from the mammograms.
I don't think that this is a liberal or conservative issue. Politics is irrelevant to this question – it cuts across ideological lines. The real question is, how much are we as a society willing to spend on health care?
I don't know where I would come out on the mammogram issue. This has been debated for about 20 years. The AMA and the ACS believe in yearly tests, while the USPSTF and other groups have said that every 2 years is enough. Some states have enacted laws requiring insurance companies to cover annual mammograms after age 40, but most have not.
I do know this. Someone has to make these judgments, either private insurance companies or the law. And these are not easy judgments to make.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by larry d.

larry d. — Thu, 19 Nov 2009 13:13:09 +0000

If one woman dies because of the lack of early detection due to this guideline, does that mean the USPSTF qualifies as a "death panel"?

Comment on 9/11 Plotters to Face Death Penalty in New York Federal Court by larry d.

larry d. — Thu, 19 Nov 2009 12:56:45 +0000

I think you might be thinking of the term "mixed metaphor," Tim. But no, stating the trial will be a kangaroo court in one post then stating that such a trial is the stuff you see in banana republics in a subsequent post isn't a mixed metaphor.

But if the military commission is unfair or not respected by the world, why isn't Obama getting rid of military commissions altogether and bringing all the terrorists to NYC? It's just politics.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by Dan S.

Dan S. — Thu, 19 Nov 2009 02:01:00 +0000

And so the rationing can end IF the medical professionals, adult women, and the men who love them stand firm and say this is BS and will not be tolerated. If this is allowed to slip through with minimal opposition, Quidpro could be right. Give the insurance industry any slack and it will do the right thing……for it's stockholders.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by Quidpro

Quidpro — Wed, 18 Nov 2009 22:06:26 +0000

And so the rationing begins.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by larry d.

larry d. — Wed, 18 Nov 2009 15:13:46 +0000

"Under the health insurance reform legislation, the USPTF would have no power to deny insurance coverage in any way.Their recommendations would be used in health reform to identify effective clinical preventive services."

More creepy doubletalk.

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by Concerned Citizen

Concerned Citizen — Wed, 18 Nov 2009 14:59:58 +0000

But see http://www.whitehouse.gov/blog/2009/11/17/reality-check-beware-what-2 for the White House Blog response to the USPSTF.

"Isn’t this the first step toward denying coverage for mammograms?

No. The Task force is an independent panel of experts in prevention and primary care that evaluates available evidence and makes recommendations about effective clinical preventive services based on scientific information. Under the health insurance reform legislation, the USPTF would have no power to deny insurance coverage in any way. Their recommendations would be used in health reform to identify effective clinical preventive services."

It looks like the White House is trying to do 'damage control.'

Comment on Health Care Financing Reform: (66) Mammography Guidelines from the USPSTF by larry d.

larry d. — Wed, 18 Nov 2009 13:09:31 +0000

I'd think there would be psychological benefit for women who are tested, in the form of peace of mind. It's a little disturbing to see the idea that negative results are evidence that the test was needless, an idea that seems to fly in the face of the scientific process.

Comment on 9/11 Plotters to Face Death Penalty in New York Federal Court by Tim

Tim — Tue, 17 Nov 2009 19:41:50 +0000

Larry D,

I do not understand what you mean by Banana Republic. Maybe you mean Kangaroo Court again and your just mixing metaphors.

Quidpro,
Some people are just guilty and even with the best defense team, guilt is guilt. KSM has proclaimed himself to be the mastermind of this plan. He was saying that before he was captured and I don't think anyone really doubts his guilt. It's just a matter of how the gov't goes about proving it and I was trying to point out that I am confident the gov't will be able to prove it with reliable evidence. Confessions get thrown out for not complying with Miranda all the time, and people still get convicted in this country. Chain of custody applies in a much narrower circumstance than I think you are giving it credit. People still get convicted.

Obama supported Military Commissions, and now he is supporting a civil trial. People (especially politicians) change their minds. But the Supreme Court said the Military Commissions weren't really fair in Hamdan v. Rumsfeld, so what good are convictions in a system that our own Supreme Court says is unfair?

The professor's point, as I understood it, is that there is more domestic and international faith in the American Federal Court System than in the Military Commission, so a trial in that court would be viewed as more fair because it is in this court. And we should trust that our system is fair and can hand down a fair result.

The real argument I was trying to make is that we should just make different courts for National Security issues. It could have different procedures and it could ensure fairness while at the same time, give the gov't a little more benefit of the doubt. I don't want KSM on trial in federal court in NYC. I don't think he deserves to go to NYC after trying to destroy it, especially since his trial will be just blocks away from Ground Zero. It might, as the professor suggests, show him that he failed and NYC is still strong and still there. But National Security issues are too sensitive for regular courts and military commissions are too unfair to defendants to trust their determinations.

I don't want KSM in fed court or a Military Commission. I want a new court system for those issues.

Comment on 2009-2010 Supreme Court Term: (2) Court Refuses to Hear "Washington Redskins" Trademark Case by P.O.L.

P.O.L. — Tue, 17 Nov 2009 02:24:28 +0000

I agree that applying laches seems wrong. As a practical matter, it would seem any person who just turned 18 could challenge the mark, so why force a new plaintiff to bring suit rather than just deciding the question on the merits. Although the government doesn’t have to afford trademark protection to any mark, it does seem suspect to me whether the decision not to afford the same protection to disparaging marks as to non-disparaging marks would pass constitutional muster. Can the government give special protection to speech it deems acceptable while denying that same protection to speech it disapproves of? It feels like impermissible viewpoint discrimination to me, but I think it would be an interesting issue for the Court to take up. Maybe a better plaintiff will come forward and we’ll get an answer.

Comment on 9/11 Plotters to Face Death Penalty in New York Federal Court by Quidpro

Quidpro — Tue, 17 Nov 2009 01:00:09 +0000

Thanks for the cites, Tim. I never meant to suggest that no statutes existed in the federal criminal code to cover the attacks of 9/11. Indeed, prior to 9/11 the policy of the government was to treat terrorist attacks as crimes rather than acts of war.

My criticism of the decision of the Administration and the Professor's post is that if we are at war, then we should stop using the tools of the criminal justice system to fight it. KSM and his cohorts were captured on the battlefield. They are not entitled to the extra protections accorded to defendants in the American criminal justice system.

As a Senator, Obama supported military commissions. If we must try for war crimes, we should use that forum. Otherwise, there is no need to to hold any trial until hostilities have ceased.

Larry is correct as to your second point, Tim. No trial is a foregone conclusion. Except a show trial. KSM will have a top-notch defense team that will exploit every technicality available. And it is not a question of the competence of the prosecutors. When was KSM read his Miranda rights? Has any of the evidence, gathered under battlefield conditions, been compromised? Have we preserved the chain of custody? Rep. Boehner's concerns are valid.

The Administration's decision is both foolish and dangerous.

Comment on 9/11 Plotters to Face Death Penalty in New York Federal Court by larry d.

larry d. — Mon, 16 Nov 2009 23:55:00 +0000

"We'll give you a fair trial because we know you can't win."

That's banana republic stuff, Tim.

Comment on 2009-2010 Supreme Court Term: (2) Court Refuses to Hear "Washington Redskins" Trademark Case by Dan S.

Dan S. — Mon, 16 Nov 2009 22:49:46 +0000

Just curious, why wasn't this 'issue' resolved in 1967 or shortly thereafter? Surely, in that decade of protests and demonstrations, someone must have tried to stand up for the Disparaged Americans.

Comment on 9/11 Plotters to Face Death Penalty in New York Federal Court by Tim

Tim — Mon, 16 Nov 2009 21:34:54 +0000

I also want to comment on the patent absurdity of Rep. Boehner's and others comments that KSM and his cohorts could be found not-guilty on a technicality. How incompetent must all the dozens (if not hundreds) of government and military attorneys be to have eight years of time to gather facts and evidence to charge these men with crimes and then lose their case on "a technicality" or some procedural ground? I'm not saying this trial is fixed, I'm just saying that there is no way our government could have expended resources for nearly a decade on gathering information about KSM and the others only to lose their trial because of an unsigned document or coerced confession.

And the idea that KSM or anyone else would be found not guilty and then walk out of the court house is even more absurd. Our military history provides many examples of where people were tried by a commission and then held for a period of time after that, even after being acquitted of charges. One needs only examine the trials that took place during the Civil War to see examples of this.

Comment on 9/11 Plotters to Face Death Penalty in New York Federal Court by Tim

Tim — Mon, 16 Nov 2009 17:06:45 +0000

To quidpro:

The U.S. Congress has twice given federal courts jurisdiction to try War Criminals. Congress passed the War Crimes Act of 1996 to permit u.s. federal courts to hear cases where someone committed a grave breach of the Geneva Conventions at the victim or perpetrator is a U.S. citizen or member of U.S. armed forces. They reaffirmed this law in 2006 with the Military Commissions Act of 2006.

So the U.S. Congress, the Justice Department, the Federal Court system, Attorney General Holder, President Obama and many more don't make the distinction you make where you wrote:

"Either they are military prisoners or they are criminal defendants. Either they committed acts of war or they committed crimes. If they are engaged in warfare, as they claim, then they are not entitled to a criminal trial to determine their guilt or innocence."

That's not what our law says.

I would rather see a specialized court system for National Security issues, comprising leading experts in the field and judges and attorneys who have handled these types of cases in the past (either as military legal professionals or other legal professionals). We have specialized courts for bankruptcy, patents and trademarks, admiralty and juvenile courts. How hard would it be to just create another specialized court for something as important and sensitive as National Security?