Views of a Modern World

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Speech outside of school is protected

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The NYT has described the case in this article with this blurb:

The case presents an important question that several judges have urged the Supreme Court to decide: When may students be punished for things they say outside of school?

In my world, we call that a rhetorical question. The answer surely ought to be “Never.” The idea that schools get a little extra power than the state in general goes back to the landmark case of Tinker, in which the Court held that students could wear black armbands in school to protest the Vietnam War. The standard it established was that student speech was protected when it did not materially disrupt school activities.

Here are some quotes from Tinker that should clarify why I think it’s abhorrent to free speech that cases like this even get past summary judgment:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Tinker, at 506.

A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others.

Tinker, at 512–13.

But conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

Tinker, at 513.

Tinker talked about expanding classroom freedom of expression to all school activities. Nowhere did Tinker even suggest that the school could extend its reach to actions outside of school and school-sponsored activities.

This case, involving a rap/hip-hop song, is no different for the purposes of free speech analysis from a letter to the editor or a poem published in a literary magazine. Whether you like this form of expression or not, and whether you snicker at the names of the artists coming to the student’s support or not: you ought to recognize that the problem here starts with the restriction of speech that takes place outside of school and ends with what is almost certainly viewpoint discrimination – I doubt anyone can argue that the school would have punished the student for writing a song supportive of the lecherous coaches. That’s the dirty secret hidden inside of almost all of these cases: schools almost always only seek to regulate speech with which they disagree. Viewpoint discrimination is effectively an automatic loss in free speech analysis.

What’s the real difference between conservatives and liberals?

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The Supreme Court recently decided, 7-2,that the federal government has the power to civilly commit federal prisoners on the eve of their release if they meet some level of danger of future harm. The dissent, by Justices Scalia and Thomas, argued that only the states have the power to implement this sort of punishment/power.

I guess I’ll be citing this decision to people who dismiss Scalia and Thomas as right-wing conservatives. It sounds like they have taken a principled approach to applying the laws of the land and accepted a result that might otherwise be objectionable.

Our federal system makes tradeoffs that were readjusted in 1787 after the Articles of Confederation proved a poor framework. Two follow-on shifts occurred after the Civil War and during the Civil Rights era, but the second of those was not a structural change to the system but a tweaking of where we draw bright lines inside the gray borders between state and federal domains.

I sense that there could be great lessons in here for mindless conservatives who call themselves federalists or states’ rights folks only because they think they can get the rules they want, and perhaps great examples for mindless liberals who do not want to believe that they are only looking for the rules they want too. These mindless _____’s are more alike than different, and they are equally dangerous to our collective freedoms — freedom from ___, and freedom to ____.

“[T]o secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Declaration of Independence.

The way that I look at these groups, which I lump together, and others who operate from a different mindset from those although toward the same ends, is that the distinction is between rules-based and outcome-based politics. This being a democracy and all, and with the fundamental protections built into our federal and state constitutions, I see myself as a systems guy, with a belief that if our systems are well-constituted, and continually subject to improvement, we should be able to consistently improve our actual results over time, with fewer disruptions from political shifts of relatively minor proportion to the grand scheme.

In such a system, it is entirely possible that we could, as a society, legitimately come to different conclusions about how we would operate in nearly every sector of public life, from the expansion or restriction of government as a participant in the economy, whether by intervention, regulation, or participation, to the relative expectations about how widespread and uniform any regulation should be (which is another way of talking about the state-federal balance).

My theory is that the contradictory view of modern “liberals” on the federal government as both king-like protector and despotic villain are grounded in the combination of Watergate, Vietnam, and the Civil Rights movement. In those three seminal interactions with the baby boomers, many saw the worst and best of the federal government all at once. (And to be clear, many people who call themselves conservatives have a similar fear of government.)

At the same time, modern “conservatives” have latched on to different memes, showing the potential tyranny of the central government and the entrepreneurial spirit of a vigorous federal system, a laboratory of 50 regulatory approaches that could lead us all to finding more efficient ways of regulating ourselves to maximize freedoms and wealth while minimizing dislocation costs, crime, and negative externalities.

I confess that I have never thought about specific elements of our history that are likely to be responsible for (or at least ideologically connected to), this description of “conservatives.” Perhaps World War II and Roosevelt’s court-packing plan, the Slaughterhouse cases, and similar depression-era changes are the genesis, but I seldom hear these types of people talk about these events. Maybe it is the failings of other governments, where tyranny has taken hold, that is the real example this group keeps learning from.

What events/movements provide the touchstones for this rule-based group? Do you think that there are inherent benefits to rules-based or outcome-based politics?

Why don’t you pay for your own doctor?

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This WSJ editorial reprint of an earlier article by Milton Friedman describes the shift in doctor-patient relationships as a result of managed care companies hiring doctors to provide medical services.

I briefly commented on this on my Observations page in relation to a suggestion that we need to allow non-lawyer ownership of “law firms” to bring down legal costs. Separate from the misguided proposal of having non-lawyers doing legal work (which is like having lawyers doing surgery), there is a notion that third-party ownership of professionals would improve things. As I noted in that short post:

Fee-sharing: the relevant question here is how/why we accept the notion of doctors sharing medical fees with non-doctors not bound by ethical rules. It seems to me that either we lawyers follow in the footsteps of doctors, or the doctors got it wrong and should be shaking off the HMOs and insurance companies.

What struck me about the Friedman so quickly that I had to stop and write this (writing this, I still actually haven’t made it past the phrase “doctors and patients as enemies”) was the depiction of the doctor and patient as opponents in the cost containment battle rather than as a united front against disease.

A comparison is in order:

I don’t think many of my learned liberal friends (and yes, that, just like “learned conservative” isn’t always an oxymoron) would very much like the idea of a lawyer who had substantial other interests to protect. There are references to this in Guantanamo detainees distrusting the incredibly liberal and supportive lawyers trying to defend them (and perhaps breaking the law in the process): the detainees distrust the system so much that they doubt any part of it could be on their side.

In our legal system, prosecutors have a special ethical duty, singled out for them, to find truth. Their job is explicitly NOT to convict someone for a crime. Defense lawyers have no such obligation to find justice. We expect that the people working for us, particularly professionals who have these special skills, special privileges, AND special obligations to society, to be on our team 100% of the time.

If HMOs put doctors at odds with patients, what would corporate legal service providers do? Eliminate discovery? Substitute their judgment on accepting a settlement? Plaintiffs’ lawyers working on contingency already handle many of these issues when the client in charge of the litigation doesn’t bear the costs of maintaining it. In most cases, lawyers “guide” their clients in reasonable directions, and usually lawyers can withdraw if things become untenable (thus almost certainly forfeiting economic claims for whatever work is done or value created). The moral hazard of separating responsibility for payment and authority for expenses is too great for any field to bear for long (except Congress, where it can last for decades in some cases until voters wake up).

The stated rationale for no fee-sharing with non-lawyers is to preserve the lawyer’s independence in complying with ethical obligations and the representation of the client without the influence of a person who doesn’t have the same ethical obligations towards the client.

Tell me what you think: what is it about doctors?

  • Why do we trust them to abide by their ethical rules and oath but not lawyers?
  • Is it the underlying belief that science and test results will reveal bogus advice whereas lawyers can be more vague and un-catchable?
  • Or were the lawyers simply smart enough to see what happened to doctors’ practices?
  • What’s the relationship between these two professions and where did they diverge?
  • Is it just that we all expect to need healthcare? Why not use vouchers like with charter schools? (Oops, didn’t mean to stir up that debate!)

Fix health care by keeping records private

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The President’s new healthcare record digitization plan is fraught with good intentions.

Making healthcare records easier to exchange, analyze, cross-reference, maintain, and update. No one seriously doubts that particular issue. However, there are serious problems with the President’s plan that show the intrusion of big-government thinking over individual freedom.

There is no reason why the government needs to maintain the health records all by itself. What the industry needs, if anything, is for government to regulate, not by taking over the market, but by setting standards for data schema, interoperability, data ownership, data correction, privacy, security, and portability. By setting up these types of rules (and the federal government already handles similar issues via HIPAA, credit report rules, and cell phone numbers), government allows the market to expand through the efforts of non-governmental entities, such as nonprofits, healthcare companies, and separate private data warehouses. By solidifying the ground rules, government can create an immediate common platform for development and implementation.

Is that the only role for government? Of course not. Should the President want to “ensure” that everyone have access to this new system, the government could certainly provide such services to everyone for free. (The VA and medicare will certainly maintain their own databases in much the same way they do now.) An analogy can be made to the vehicle inspection regime in New Jersey: the motor vehicle department will inspect your car for free at specified location with (or sometimes without) an appointment. Or, you can have your car inspected at your convenience at a local garage for a modest fee. This dual approach helps people by allowing the market to segment itself rather than forcing everyone into the same box. Could we allow, but not require, everyone to use Medicare’s version of the health record information system? Why would a system that covers so many people *only* work if we force everyone else to use it too?

Avoiding the possible abuse of access by insurance companies, healthcare companies, or even hospitals is a worthwhile goal, but there is no reason that every citizen must then be required to trust the government. After all, many of these same politicians become incensed about government databases of other kinds, such as pictures of protesters at political rallies or even the cross-referencing of connections across pre-existing databases (remember “TIA?”).

Why should the citizens be forced to give up their most personal information to the government? Only fans of big government, who are confident in their own good intentions and certain of their wise decisions would tilt the scales in favor of the federal government, particularly when the other positions about government databases are considered. I expect we will hear assurances about the inviolate nature of the database, but a compelling case will certainly present itself quickly. What Democratic representative or senator will say that health data cannot be accessed to track a killer of doctors who provide abortions? A wifebeater? A child molester? A right-wing militia-style terrorist? An al-Qaeda sympathizer (sorry, that’s the other guys)? The basic point, the fundamental libertarian approach here, is that we can almost certainly trust people to make better decisions (for them) about how to disclose their medical information than government would; we ALREADY do that today. How does taking that power from the people increase freedom rather than extend government’s reach? How can we possibly prevent politicians from either party from deciding that their new bugaboo is a compelling-enough justification to eliminate the protections that will half-heartedly be added to this legislation?

Twist the issue around, and there’s no categorically worthy justification for preventing people from keeping their data safe from Uncle Sam virtually all the time. Hypotheticals about emergency access to data affect every system equally, and required disclosure scenarios (e.g., adoption, infection, genetic diseases, child support) will either affect the government system equally or have already been outlined by separate legislation in other areas, such as the rules that allow the IRS to share taxpayer information for the purposes of helping ensure payment of child support.

In short, government here can do what governments do best in these situations: set a standard and enforce compliance with the standard. There’s no need to overreach and take power from the people.

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Why is this here? Because handling information is what America is all about these days. And handling it wisely, in ways that are respectful of the rights of the individual, is what prevents government officials, particularly well-meaning ones, from doing harm to us “for our own good.”

I’ve been working on and updating my proposal for a child-centered autism information system (maybe that’s the name, but I’m not sure yet). Thinking about ownership, control, and access to information is part and parcel of that project, and it reminded me of this. More to follow, of course.

Allegheny College Gets WSJ Mention

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In this article on lawyer/presidents (or president/lawyers, if you prefer), the WSJ‘s Law Blog notes that William McKinley, the 25th President, attended Allegheny College (“briefly attended,” according to this biography) and “for one term” according to his Wikipedia entry.

So, if we’re grading on a curve, I’ve managed to graduate from Allegheny and from a law school. Now for that president thing….