Saturday, September 28, 2013

Quick Observation

I noticed today how odd a role the media plays in the world of illegal drugs. In one sense, it does quite an effective job in stirring up anti-drug hysteria, by creating stories about "horrible new drugs" that are nothing of the kind. On the other hand, by the very same act, it also manages to act almost as an advertising arm for the sellers of drugs, since it convinces those with little drug experience that these "potent new drugs" really are something new, creating demand for something which is, in reality, nothing different from what was always around.

I thought of this today when seeing a news article about "Molly", which was described as "an especially pure form of MDMA, the active ingredient of Ecstasy". Well, that is a bit of an amusing description as Ecstasy IS MDMA, so they are saying, it is an especially pure form of the substance itself, or, in short, it is just a new name for Ecstasy, though apparently now sold as a powder rather than pill. (Though that is hardly a total novelty either.)

It reminded me of a few previous drug scares, such as "Ice", a "deadly new drug out of Hawaii", which turned out to be nothing but crystal methamphetamine under a new name, sometimes somewhat adulterated, but in essence nothing new. Or even the object of the granddaddy of all drug hysterias, crack, which, in the end, is simply a quicker, dirty version of what had previously been called freebase cocaine. The only innovation with crack was selling it already converted to freebase (and in small quantitites), as well as convincing users to accept a much less pure product.  But it was nothing that had not been around for decades, it was all just marketing.

Not that there aren't new drugs. At one time MDMA (and MDA) were new drugs on the market. And cathinone and GHB were both novelties at one time, and the introduction of oxycontin and a few other opiate varieties from the medical world into the drug scene were new, in a sense, though in the end they were simply variations on familiar opiates (codeine, heroin, methadone, morphine, etc.) But it seems recently, whatever the big drug scare is in the media, it seems it turns out to be a repackaging of an old drug, covered with breathless hysteria, and nothing more.

I know, at this point, I would usually spring some big conclusion, connect my discussion to one of my favorite political topics, but in this case, I have none. As I said earlier, it is amusing, in a way, how this exaggeration serves to both fuel anti-drug hysteria and drug sales, though I doubt either is the intent. No, in the end, these drug scares are nothing but the logical outcome of how the media works. "New" is a byword of reporters, if it isn't new it isn't news, and so, "dealers repackage ecstasy" is not news, "deadly new drug" is. And if you don't get a byline every so often, you're out of a job. And thus, we end up with the media fueling the pro and anti drug fires simultaneously, but only as a side effect of reporters desperately seeking a story in an area where circumstances haven't really changed in decades. After all, despite the war on drugs, and decades of policing, drugs have, by and large, remained much the same. The numbers may fluctuate, the middle and upper class kids may find drugs more or less acceptable from year to year, some cities may crack down for a time and see a marginal decline, but, for the most part, drug markets remain where they always were, the users remain mostly who they were -- at least in an abstract socioeconomic sense -- and thus, if you want a drug story, the only choice is to repackage the same old thing with a new shiny label.

I suppose there is one bit of good news in this. Apparently the news media is naive enough about drugs that reporters can get these stories through the editors, and middle America is unfamiliar enough to swallow these reports. On the other hand, perhaps I am looking too hard, and I should instead be upset, taking this to mean, instead, that a drug savvy media views the public with such disdain they think they can fob off these stories on the ignorant masses, while the public is so used to media nonsense that they don't even care whether the story is true or not.

Well, so much for silver linings.  On the other hand, it does serve as a good example of how much your perspective depends on how you spin the story you tell.

Wednesday, September 25, 2013

Upcoming Post

Things have finally settled down at home and at work, and I have published most of my unfinished essays (and decided to abandon several that proved less promising than I thought), so I intend to start on a project I have long intended to undertake. In the spirit of Hazlitt's "Failure of the 'New Economics'", I intend to go chapter by chapter through "the book", the holy scripture of the FairTax movement, and analyze the arguments, good and bad, and publish my thoughts in this blog. I am not sure if I will do it one post per chapter, several chapters per post, or all at once, we will have to see how long each chapter proves.

In addition, I have the text of the associated law, or rather bill, and I will cite it when needed to clarify the text in "the book". In addition, should the bill itself prove either sufficiently different from the book, or prove to have a lot of added details, then I may follow up with a similar in depth analysis of the bill. But, for now, I only intend to use it as a supplement. We shall have to see if it goes beyond that.

I am not sure when I will start, but since I have been posting pretty irregularly, I figured it was time to finally undertake this project. If only to make up for the dearth of material recently.

The Problem With Mental Health Laws

Today I read Ann Coulter's recent essay in favor of involuntary commitment, and was struck by a few thoughts about such laws, as well as the whole "mental health" framework which surrounds and justifies them. As anyone who has read my blog must realize, I am hardly sympathetic to Coulter's arguments, but I have to agree with a few of her statements. On the other hand, if we concede the arguments she has offered, it introduces another problem, and one about which she has been equally vocal. But, I am sure this description, being rather vague, is not making my case very well, so let us start looking at this topic, point by point.

To begin, I am no proponent of commitment. (Cf "Mental Illness") Even if I did not feel a great degree of skepticism about diagnoses of mental illness, even were such diagnoses not so horribly subjective, I would still oppose involuntary commitment on one simple ground. Those who have not violated the rights of another cannot lose their rights.Now, Coulter is right that involuntary commitment would perhaps have prevented some crimes, but I argue that that alone does not justify it. In fact, she would oppose applying the same logic to other cases. For example, were the Columbine shooters deprived of guns, they could not have killed so many, so should we ban guns? Or preventative detention, imprisoning based on suspicion, could clearly prevent some crimes. So should we allow the police arrest powers based on suspicion? Of course not! And Coulter would not accept these arguments. Yet the argument that involuntary commitment prevents crime is of the same type. So I would suggest in this case she is being inconsistent.

However, I know many disagree with me on this point. Some will argue that I am arguing on "theoretical" positions, rather than pragmatic necessity*, while others will argue that even my more practical point, that the same argument offered for commitment justifies a host of other, less desirable actions, is unfounded. Though I firmly believe that once we accept a general principle, no amount of line drawing, no amount of hair splitting, will prevent it from being taken to its logical conclusion, that it will not stop until all of its implications have been enacted (see "Guns and Drugs"), I realize there are those who disagree. Many have told me, time and again, that my arguments against, say, laws against prostitution, fail to take into account "common sense" ("The Sexual Revolution and Prostitution", "In Loco Parentis", "Harming Society", "On the Side of the Angels... Yet Completely Wrong"), or argue instead that "slippery slope" arguments are invalid, that laws can be crafted in such a way that a principle can be applied to a limited case, and that case alone. So, I doubt this argument will necessarily convince anyone. But then again, I think there is a much stronger argument against Ms. Coulter's position.

So, what is this fatal weakness in the argument for involuntary commitment? What do I see as its overwhelming flaw? Quite simply, the problem with this argument is that you cannot pick and choose your beliefs, or to make it a bit more clear, if you accept the current view of mental illness to justify commitment, then you must accept the entire current view of mental illness, including all of those arguments used to allow prisoners to avoid jail, to obtain early release, and even those arguments used to favor therapy over punishment. And that is why I find Ms. Coulter's argument so damaging.

I know many will find it hard to agree with me, but allow me to make my case. If we accept that involuntary commitment is a valid concept, we must, legally, do so on the basis of the belief that mental illness can make someone so incapacitated that he is no longer responsible for his actions, that he is no longer in control of his behavior, and thus can be treated, essentially, as a wild animal -- or a young child -- deprived of his right to make decisions and move about at will for the protection of himself and others.

However, if we accept that view, then we must also accept that the same argument can be used to excuse various crimes. If a person can be so incapacitated that he requires imprisonment (which is what commitment essentially is), then he also can be so incapacitated that he is not responsible for his crimes, and thus, when no longer incapacitated, will of necessity be freed, as he bears no responsibility. In other words, if a murderer is incapable of understanding his actions, he needs to be committed, but, if a year, or a month, or  a day, later he is found sane, by the same logic, he must be released without any legal onus attached. Thus, if we accept involuntary commitment, we must also accept the view of "insanity pleas" which has often been criticized by those on the right.

Likewise, one could also argue, and pretty consistently, if there are things which can make someone act against his will, can make him behave without volition, then, does it not follow that there are lesser conditions, where one may be responsible, but only partly? That bad behavior may be in part the result of imperfect control? And, if so, does it not follow that criminal should be not punished, or at least not just punished, but also treated? If they may not be wholly in control of themselves, is it not better to treat them, rather than punish them, which will not stop them from offending again, since they do not control their actions?


As you can see, it is not that far from arguing for involuntary commitment to the "therapeutic society" that many on the left have favored from time to time, and I think that alone should be enough to make us reconsider whether or not we want to accept that view of mental health.

I know I am not likely to convince others of my view that all action is chosen, all behavior is volitional, and what we call "mental illness" is little more than a mixture of poor socialization, poor habits, lack of restraint and playacting**, but I can at least ask if we really want to adopt a position which is part and parcel of the school of thought which led directly to lenient punishment and soaring crime rates? Does not the fact that long jail sentences lead to falling crime rates suggest that, for the most part, people act on choices, and respond to various rewards and punishments. Rather than trying to catch people before a crime, by deciding who may be harmful, why not create conditions which are proven to deter criminals. Granted, any deterrent will not deter everyone, but on the other hand, any system of preventative imprisonment will jail the innocent, and since it is, in effect, jailing before guilt, there is no way to know which cases are successes and which failures. And, for that reason alone, I strongly oppose preventative detention, or its medical guise of involuntary commitment***.

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* Unfortunately, Townhall finally did take down their site, and I have yet to repost all of my articles in a new venue, so most of my comments about "common sense" and pragmatism are no longer available on line. However, there are still a few to which I can point, so, for those curious why I find it pointless to try to oppose "theoretical" and "common sense" can find at least a partial response in my post "Hard Cases Make Bad Law" and, a reposting of one of my earliest essays on the topic, "The Shortcomings of Pragmatism".

** Some may think this an exaggeration, but my ex worked in several public mental hospitals, and many, perhaps most, patients fell into two categories: (1) criminals faking mental illness to avoid trial or jail and (2) the mentally retarded dumped there because there was money for mental illness but not for mental deficits. Oh, and the third category, the bulk of many private hospitals, teens (and others) who used drugs and entered treatment to avoid jail. I would also mention one individual I knew who, to be "different" often play acted characters of her creation. At first it was an affectation, but over time, it became a habit, until, at some point, she simply did it without thought. I suppose, to someone coming upon her without background, it would appear a "mental disorder". And maybe it is. But, in the end, all it was was the long term outcome of continued juvenile behavior. I suppose, in some ways it really makes no difference, but in other, it makes a great deal. If one can voluntarily choose to "be insane" then there is no reason to grant the insane any pass on their actions, for the same reasons voluntary drunkenness and drugging does not remove culpability. But that is a much more complex topic and one I would like to cover another time when I have much more energy.

*** Some may say I am engaging in hyperbole by comparing our system of involuntary commitment to the totalitarian state use of mental illness as a means of silencing dissidents, but, on the other hand, prosecutors in the US have tried to keep repeat rapists in jail through civil commitments, so the system has been perverted here as well. And, in the end, what is involuntary commitment but an attempt at preventative jailing? The criteria -- "a threat to self or others" -- makes clear it is essentially tied to criminal acts, and thus, it is little more than a means of jailing before a crime occurs, only substituting medical evaluation for legal findings. However one is deprived of his freedom, it makes little difference, nor does it matter to whom the state delegates the right of imprisonment, you are still jailed.

Thursday, September 19, 2013

Societal Evolution

In any number of science fiction films there appears a most absurd concept. It can be found everywhere from Altered States to Star Trek Voyager to 2001* to Stargate Atlantis to... well the list is pretty long. This concept is that, somehow, man contains the future path of his own evolution. It is never stated this way, but in film after film, television show after television show, human beings, through some sort of miraculous energy, or perhaps the intervention of superior aliens, or for any number of other reasons, begin to "advance" and eventually pass through a definite set of stages, finally become "what man will evolve into" in the distant future. The problem here, of course, is that evolution is not a teleological process, there is no order to it, no end goal, no higher or lower, better or worse, no beginning and end. Evolution is a process of gradual random change through the interaction of small variations with the environment. The variability in genetics, as well as the introduction of genetic mutations outside normal variability (if it is worthwhile to even try distinguishing the two rather than just calling both "variability"), allows for a variety of forms, some of which are more adapted to reproduce in a given environment. (Which includes surviving to reproductive age, finding mates, mating often, bearing young to term and all the rest.) That is all, there is no "end goal" no fixed path programmed into the genes**. Thus, there is no way, short of time travel, that any entity could know what man will become, and it certainly cannot simply be pulled out our current genetics through the use of mysterious energies. To do so would be akin to saying you can know who would win this year's Super Bowl by knowing the outcome of that first game between the Chiefs and Packers. Actually, the relationship between what evolves and its ancestors is probably even less direct, but you get the idea, there is simply no road map of future evolution that can be found in our present makeup. Only in hindsight can we say "gene X was emphasized due to these factors and resulted in Y", looking at gene X beforehand, there is no way to tell what it will become. And thus, this entire concept of somehow "rushing evolution" is just ludicrous. (As is the idea that evolution will always mean an improvement or enhancement. Many traits which promote survival in the future may seem detrimental in the present, as circumstances differ. Just take blind cave fish into the waters inhabited by their sighted ancestors and you can see what I mean.)

I mention all of this, not because I am a science fiction fan who nonetheless likes to point out mistaken cliches of the genre (though that is true as well***), but rather because this error came to mind recently when I ran into an analogous mistake in the realm of politics.

When you mention "evolution" and "politics" inevitably there are two schools of thought which spring to mind, social Darwinism and communism. And, while technically communism was based more on the Platonic dialectic via Hegel, rather than evolutionary theories a la a bastardized version of Darwin, in the way social Darwinism was, communism seems to be seen by many moderns in terms of evolution. And it makes sense. After all the fixed and inevitable path through the various economic stages, leading inexorably to the formation of communism does fit the modern mistaken belief that evolution is goal-directed and that "evolved" means "improved" in some absolute sense. And thus, to the errors of communism are added the errors of our common understanding of evolution.

But that is precisely what made me think of that original error. You see, political development is more akin to evolution than anything Hegelian or dialectic. Granted, being the outcome of decisions made by volitional beings, it is not as random or free of goals as true evolution, but overall, much of the process of political change resembles an evolutionary process, as more accepted or successful concepts are retained and unpopular ones vanish, and so on. Most important, there is no determined path, no definite stages, no fixed outcome, and certainly no defined course. And that is what brought all this to mind. Communist belief in a definite end result of political change reminded me far too much of those science fiction writers who are certain man will evolve into a bald, big headed, shrunken limbed creature who speaks via telepathy, or a happy glowing ball of light, or whatever. And both have an equal amount of proof to back up their beliefs.

Not that this mistake is limited to communists. It first came to mind at all in reading my comments. In arguing against my call for the elimination of medical licenses ("On the Side of the Angels... Yet Completely Wrong"), CW argued that as societies grew more advanced they all implemented such plans, suggesting it has value. However, that is also a mistaken belief, in two senses. First, the idea that something adopted by more developed cultures must be an improvement. Second, that something widespread must be valuable. As with evolution, there are two other possibilities. First, it may be a dangerous concept, which was passed from one group to another, and which has just had insufficient time to be eliminate through natural processes. Second, and more likely, it is not beneficial, but the harm is small enough that wealth cultures do not feel the damage and thus there is little benefit in eliminating it****.

We can see this in all those commonplaces of rich nations. How often have we been told "all great nations funded their artists"? Or "all modern nations fund science"? Well, yes, perhaps they do, but does that mean it is a good idea? Or even inevitable? Let us not forget, a small number of European nations (and later the United States) established modern governments in many parts of this world, and when free from colonial or imperial control, those nations often continued to emulate their former masters, either out of habit, out of respect, or just to show their former rulers that they had "made it" and were somehow equals. So many of the ideas we see, from unemployment insurance to socialized medicine, arose in a very few lands and were diffused around the world through academics educated in those handful of nations, or trained by those who were. Thus, what we see in most or all developed lands is hardly an inevitable outcome, and certainly not proof of its worth, it simply IS, that is, it is what we now have, what was the outcome of the long, complicated process that shaped these nations. It has no more meaning than the color of your eyes, at least in terms of political viability. Yes, it was adopted by someone, somewhere, for some reason, and it has not produced enough political trouble to be eliminated, but that is a far cry from saying it is a valuable feature of politics.

Actually, perhaps comparing politics to evolution is invalid in one sense. Evolution is driven by an impartial arbiter, whose rules are fixed and applied equally, while politics more often bases decisions on what can be given the best public face, what can please the most active voters and so on. Thus, it is wrong to think of political changes in terms of ability to benefit the political entity, instead, we should think of the survival of various political concepts as the result of being able to weather the highs and lows of popular opinion.

Of course, that makes my argument even stronger. If political programs survive, not because they benefit the state, but because they serve the needs of politicians, and can be sold as beneficial to enough active voters, then the success or failure of a measure, as well as its presence in many nations, means little more than that it is politically useful for some groups. And thus, has even less to do with survival than I first allowed.

Well, in either case, whether we view political change as evolution, or as a process of change driven by popular beliefs and misconceptions, my point still stands, that there is nothing that is an inevitable development in the course of political change. Nor is there any point in seeing the common development of a concept among certain states as a sign of its utility, at least in anything other than purely political terms.

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* I suppose this is not entirely accurate, neither the book nor film SAY the star child is man's eventual destiny (not that I recall, it has been a long time since I read the books), but it certainly is implied that the star child is a "more evolved" man, and thus I still include the film in this category.

** In a way this is the mirror image of the belief (no longer commonly held) that we "evolve through" all our past forms during the process of gestation, or that somehow all of those previous forms are still contained within our current genetic code. Neither is accurate, especially not in the sense popular culture imagined (eg Altered States and its regression into previous incarnations). But it is easy to see how these two ideas complement one another, and why some would like to believe there is some sort of genetic "great chain of being" stretching from our bestial past through to our eventual angelic evolutionary end. It isn't there, but the idea is attractive enough for some to believe it anyway.

*** See "Issues of Gravity", "Two Complaints About the Star Wars Prequels", "One Thought On Time Travel", "Rebutting My Own Argument", "Quote of the Day", "A Bit Off Topic, But Not Entirely", "Musings About A Television Series", "Off Topic Comment on Science Fiction", "Off Topic Post - A Question of Scope", "A Final Digression On the New Dr. Who", "More Off Topic Musings", "A Science Fiction Story", "Faux "Maturity"", "More Reflections on Science Fiction Programs -- Somewhat Off-Topic", "Quick Off-Topic Post", "Incredibly Irrelevant Post", "An Off Topic Post on Star Wars" and "The Grammar Nazi Versus George Lucas".

**** As we see in the US, rich cultures can sustain a considerable number of economically damaging belief and practices while still remaining rich. Of course, some do serious harm, but it usually takes a generation or more, making it hard for the society to properly place the blame. This is one of the ways that bad political ideas can persist for a long time. ("Symmetry and Asymmetry in Government")

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POSTSCRIPT

Some may argue that my belief that man can be misled into accepting false political and economic beliefs is an argument against my federalist ideas ( "Reforms, Ideal and Real", "Minimal Reforms""The Benefits of Federalism", "Consolidation and Diffusion", "Redundancy as a Protective Measure", "Why I Am Not A Libertarian", "Learning From Crows", "A Rational Approach to Punishment", "Symmetry and Asymmetry in Government", "The Tragedy of the Creative Commons", "Contracts and Freedom" and "The State of Nature and Man's Rights" ), that my idea is based upon man always choosing the best course. But that is simply not true. I grant that for federalism to work, it is best if the populace is well educated, but the ability to compare two different examples makes it possible, over time, for even those holding relatively mistaken views to inadvertently act in such a way to advance the right practices. (That is those practices which produce the results most beneficial to themselves, even if they fail to recognize the connection.) Just as you do not need to know how an engine works to benefit from a car, but it helps if you have some understanding, the creation of multiple competing environments, and the pursuit of one's self-interest, will eventually lead to the spread of the most beneficial ideas, through trial and error if nothing else, even if no one knows why they are best. It is just much slower, much more of a halting process, and involved many more false starts if we lack the proper understanding. But, over time, as the outcomes become linked to causes, more and more will come to the proper conclusions. Which is yet another benefit of true federalism.

Wednesday, September 18, 2013

Always Something Worse

Please forgive me, but for a moment I want to deviate from my normal politico-economic, and sometimes philosophical/theological, discussions, and take a moment for one of my "Grammar and Spelling Nazi" posts. ("The Irony of Lax Internet Standards", "Ye Olde Grammar Nazi", "In Defense of Standards""Rules of Grammar and Pragmatism", "Spelling Nazi Short Post", "The Grammar Nazi Versus George Lucas")  At least it will be mercifully short.

A number of times in the past I have complained about the fact that it seems the spelling "rediculous" or sometimes "rediculus" is supplanting the proper spelling. I can't figure out why, except that people are so used to seeing the "re-" prefix they assume ridiculous must be spelled that way. Well, that, and the fact that the word "ridicule" is used infrequently enough that the connection between the two is being forgotten.

Whatever the cause, I sometimes thought to myself that I would be happy to see the word constantly misspelled, so long as they didn't use that annoying "rediculous" spelling. And, sure enough, life responded with one of those "careful what you wish for" moments. While perusing Amazon reviews, I ran across the spelling "reduculas", and worse, a misspelling that the writer used consistently, suggesting he really thinks that is the proper spelling.

Why this worries me, and is worth mentioning, is, except for one other spelling error ("nurish"), the writer spells everything correctly, and uses mostly correct grammar. In short, someone who shows signs of being relatively careful in spelling and grammar is unable to spell ridiculous correctly. And thus I must conclude that, as is the case with the replacement of the word "indices" by the neologism "indexes", I will have to resign myself to seeing this word constantly misspelled, or, a horrible though, seeing "rediculous" become an accepted spelling.

POSTSCRIPT

I joked that the more common misspelling was inspired by Eddie Murphy's parody of Ricky Ricardo, in which he constantly pronounced the word "RE-diculous". Sadly, the new misspelling makes me think it was inspired by the overused and unimaginative "redonkulous" neologism that seems to not yet have vanished. I am not certain, but it is hard to otherwise explain the "-ducu-" part in the center, as the pronounced word pretty clearly has a short I sound in the center.

ADDENDUM (2013/09/19)

I have mentioned this in previous essays, but as no one seems to follow links, it is worth repeating, I may be a "spelling Nazi", but that does not mean I either insist on correct spelling at all times, or that I am myself without flaws when it comes to spelling and grammar. For example, I know I regularly misspell "missile", having at an early age started dropping the second "I", a bad habit I find it hard to break. My point is not that we need to always spell perfectly, but rather that we should TRY to spell correctly. I am not insisting one never make an error. What I fight against is simply that "well it's close enough" attitude that casually accepts bad spelling. I understand in some cases, such as teaching very young children who you want to encourage to write, regardless of quality, or maybe in quick notes for yourself or close friends, a casual attitude toward spelling may be appropriate, but in general, I find that "close enough" is the cause of more misunderstandings than any other cause. Despite the absurd "it's ok to spell any way so long as others understand" attitude, it seems we often assume others understand, when in reality, they do not. And that is the problem with "close enough". It is impossible to know when you write who might read it, and what will and will not be understood. That is why we have standard spelling and grammar, so we all understand in the same way. if you doubt this, read some medieval or colonial era essays, before standardized spelling became commonplace, and tell me how easy it is to understand. Well, your "good enough" may be just as impenetrable to other readers. And that is my point. (See "The Irony of Lax Internet Standards".)


Tuesday, September 17, 2013

How To Stop Workplace and School Shootings

I know whenever there is a tragedy, such as yesterday's shooting at the Washington Navy Yard, there are always a host of supposed experts popping up with the perfect solution. And, inevitably, almost all of them involve some form of gun ban. What makes that particularly interesting in this case is Washington DC, in addition to having an absolutely deplorable crime rate, also has one of the most stringent gun bans in the US, which makes me wonder how anyone could imagine additional bans (if there were much left to ban in DC) would do any good. After all, isn't it obvious to everyone by now that the cities with the most strict gun bans also seem to be those with the worst record of criminal activity? Granted, in part this has nothing to do with gun bans, more likely it is because gun bans tend to indicate liberal political dominance, and liberal dominance equates to rather lenient penal systems, which fail to deter crime. Still, it does indicate that gun bans don't have any impact on crime prevention. Despite that, I guarantee before the week is out, several dozen pundits will be telling us about the need for new gun bans, and at least a handful of congress members will have put forth some sort of gun prohibition.

Well, I am now tossing my hat into the ring, though reluctantly. However, I think my proposal may be of some interest, as it differs in two significant ways. First, I have no intent to propose anything even close to a gun ban. Second, I admit my solution is far from perfect, suggesting only that it will help to prevent at least a few such events.

My answer is quite simple, and at the same time almost impossible, at least given our culture. You see, my belief is that many such shootings, not just those school shootings carried out by disgruntled teens, but even the workplace shootings carried out by angry workers, are motivated, at least in part, by the promise of posthumous fame. Oh, granted, workplace shootings are not exactly the same as school shootings, they are not looking for the same sort of fame, but, in the end, they are still looking for fame. It is more likely they are hoping those who escape, those who they don't kill, will finally recognize that they should have treated them better, or some other sort of vindication, but in part, it is certain that the killers imagine that they will be known and in death gain some sort of validation.

And that is what lies at the base of my proposed solution. You see, every time there is one of these shootings, we not only report the news, we spend days or even weeks afterward delving into it, giving more and more attention to those who carried out the attack, talking to their family, their friends, everyone they knew, basically setting the stage for the next shooting by showing anyone who is interested how much fame they could garner by carrying out a shooting of their own.

Thus, I suggest we should, as a society, agree that we will not only ignore those who carry out such acts, we shall treat them as if they never existed. We will not speak their names, not interview their families, not broadcast their manifesto, not discuss their motivations, nothing. We will behave as if they never existed.

Of course, given our national fetishistic obsession with crime, and our obsessive need for "news", the fascination with garnering every trivial detail about every recent event, I doubt this will ever happen. And even if it did, it probably won't prevent all such shootings. But, I have to think, if we were to erase the memory of those who carried out such acts, at least of few of those who decide to kill because "that will show them" might have second thoughts. After all, it isn't much fun to be the fellow who died taking out his classmates and coworkers if no one knows who you are.

It will never happen, and it is a partial answer at best, but I thought I had to at least mention it. After all, it is probably the only answer that won't mention gun control.

Sunday, September 15, 2013

More Thoughts on Class Action Suits

Until recently I thought I had written everything I had to say on class action suits. ("The Harm of Class Action", "The Perversion of Liability Law", "What is the Role of the Attorney General?", "Off- Topic Amusement", "Am I Missing Something?", "Still More on Liability Law") In fact, I thought that they had become so absurd (eg. lawyers making millions, while members of the class get $0.75 coupons) that even the left, in fact everyone not a member of the trial bar, thought they were a bad idea. I admit, there were a few high profile class actions suits, such as those concerning asbestos, and the tobacco shakedown... I mean extortion... sorry, "multi-state settlement", that made some people see them as a valid tool for "social justice", but in the end, they have become so absurd, with lawyers running ads fishing for those with vague health problems who happened to also use the target drug du jour, that those early nominal triumphs were losing their luster.

Unfortunately, I think I may have been premature. It seems, despite the ludicrous nature of the injured party walking with pocket change while lawyers earn hundreds of millions has not deterred some, and so faith in the class action, as with many failed "consumer protection" schemes ("Consumer Protection") continues unabated.

But rather than rehash the old arguments at great length, allow me to offer up a very brief summary, after which I want to point out one very important difference I just noticed between class actions and traditional suits.

The basic problem with class action is simply that it makes it worthwhile (at least for attorneys) to sue for something where the individual harm is trivial. In fact, it almost mandates trivial damage, as if the damages are substantial -- as they were in the asbestos cases -- the large classes will tend to bankrupt the defendants and leave some parties, and some attorneys, with nothing. Thus, as we have seen in so many modern suits, the damages paid to the nominal plaintiffs are well under $100, often under $10. And thus, cases which would never have come to court, complaints about video stores "defrauding" customers of trivial amounts, or other nonsensical claims, end up not only going to court, but wasting thousands of hours. 

There are other complaints, but the wasting of time, as well as making it possible to sue over trivial matters are two of the larger ills. So I will stop there. Anyone interested in reading more elaborate arguments can see the articles cited above.

However, there is one thing that struck me today about class action I had not noticed before. That is how class action inverts the legal process. Traditional lawsuits are individual actions. Lawyers are involved, but as agents of the injured party. Class action inverts that. Lawyers now initiate suits. Oh, granted, a class action needs to have at least one nominal plaintiff to certify the class, but lawyers often fish for those first plaintiffs after they spot a likely target. And once they have a few, they can then effectively drag into the suit everyone else who might conceivably file a similar complaint, whether they want to or not, unless they take extraordinary actions to escape being included.

This is not just a technical issue, it is a serious change in the way the law works. In the old system, the law was basically a means for providing redress for injury. If a party was harmed and felt strongly enough to file suit, then the case proceeded. In many cases, either the party was not motivated to sue, or the injury was too small or too hard to prove, and the suit was never filed. Thus, the system kept cases limited to those cases where injury was serious, provable and substantial, and it limited payment to actual damages. Until modern times, no one was getting rich on law suits.

The new system basically sets up lawyers as hunters. They seek out any situation which might conceivably support a suit, whether or not there is proven harm, and begin to search for plaintiffs. Once they find a handful willing to go along, they can begin the process to basically shake down the target. In short, it makes of lawyers, at best, mercenary regulators, attacking sources of injury for their own profit, or, more likely, extortionists, exaggerating or even inventing complaints, relying on the unpopular nature of pharmaceutical firms, tobacco companies and others to line their pockets.

I will grant, even ordinary cases are often exploited by lawyers for tremendous gain under our new, more liberal liability system ("Still More on Liability Law", "Liability Law and Cost-Benefit Analysis", "Victim as Judge", "The "Right To Sue" As Our Only Right"), but the class action is especially offensive, in the way it makes the courts into a lottery for lawyers. And while there are many, many reforms needed in our liability law, I think ending the class action fiasco should be one of the first, as it is a single action that would produce tremendous benefit.

POSTSCRIPT

Even the well known and supposedly "good" uses of class action are not exactly what they seem. For example, the source of much of the asbestos exposure in the 1940s was the US Navy, which used asbestos in many ships. However, being unable to sue the military, lawyers went after manufacturers, who were hardly to blame for how the military used their product. There are other issues as well, such as the failure to distinguish between long and short fiber asbestos, the question of how much was known about risks (akin to the tobacco suits) and so on. But, the biggest problem, overall, is that, while the lawyers did quite well, in the end, the settlements -- and successor suits -- were such a farce that a trust for payments had to be established, which tells em the lawyers, though adept at getting paid and bankrupting firms, were not so adept at ensuring their nominal clients were getting paid.

And then we have the tobacco suits. Basically, these were supposedly files by the states to compensate them for increased medical expenditure. However, the money, by and large, went to anything and everything but medicine. Some wen to produce those oh-so-charming "The Truth" advertisements, made by self righteous young propagandists ("The Truth"), some went to the state general funds, some went to highways, stadiums, all over the place. and much went into the pockets of lawyers. (And, ironically, in Maryland, at least, some went to pay for lawyers in a suit to keep from paying the agreed amount to the original lawyers...) If anyone can show me how this helps smokers, I will be stunned. It is rare, but for once the state didn't even attempt to hide the fact that this was a shakedown intended to do nothing but produce revenue. Even speed traps are less blatant. But, "Big Tobacco" had a bad name, so the states figured they could get away with it, and, sadly, they were right.

But, I think you can see my point. Class action, even in the "best cases" is not exactly a roaring success. And in the vast majority of cases it is little more than a means of extorting money from whoever happens to be in the doghouse with the public.

Wednesday, September 11, 2013

On the Side of the Angels... Yet Completely Wrong

NOTE: As Townhall shut down its blog on September 1, 2013, some of the links below, and in older articles as well, may not work. I have been trying to figure out an easy way to transfer 5+ years of old blog posts to a new location, but do not yet have a simple solution. TH promised to provide export files for all users who requested them, but I have been waiting several weeks and have nothing. I did save html copies of my old blogs, but unfortunately the formatting makes direct imports tricky. I am trying to hash out a perl script to format them for submission to Google, perhaps even to automatically upload, and to fix internal links to point to the new locations. However, this is trickier than I thought, given the idiosyncratic formatting TH used, so it is not going to be done for some time yet.

I wrote some time ago ("Noble Goals") about the difficulty discussing the Civil War, largely because the Lincoln administration was both responsible for violating every principle of republican government, and yet at the same time, fighting to end an unquestionable evil. It is a phenomenon that is remarkably common, and frustrating. For example, conservatives have long argued that affirmative action and kindred policies, while well intended, also result in more harm than good, yet the argument is often ignored as the policies are seen as redress for past wrongs, and opposition as heartless and cruel. Likewise, I have argued that, while drug abuse is doubtless harmful for those involved, the drug laws themselves are equally harmful, both for the precedent established, and in the practical harm done tot hose who truly need pain medication, among others. Yet, because of that first clause, the admission that drugs are harmful, many fail to recognize that the laws may be damaging. Or, when I discuss prostitution, when I mention that the laws are themselves wrong and potentially damaging, it is assumed that I somehow do not recognize that prostitution itself is harmful to some or all of those involved. In short, the fact that a law may remedy some harm, that it is intended to remedy an ill, often causes us to overlook the very real damage the same law does.

Unfortunately, as the examples above show, many of the topics I would use to argue this point, are themselves quite controversial, and thus we end up bogged down in debates over the real damage done by drugs or prostitution or guns. And so, to make my case, I have chosen to use an example that, while still controversial, is at least less emotionally charged for most people. That is the topic of medical licensing.

I suppose I should start with two disclaimers, just to make my position absolutely clear before going any farther.

First, I am a strong proponent of scientific medicine. I believe our medical system is well designed, based upon sound principles and is to be trusted. I also believe that most, if not all, of alternative medicine, is not worthwhile. Some, such as some herbal remedies, may have some therapeutic value, but would likely benefit from true scientific inquiry and refinement. (And, in most cases, any herb which has shown promise has been investigated either from motives selfish and selfless.) However, the vast majority of alternative treatment is of no value. I will be generous enough to believe many of those promoting such treatments mean well, and think they are doing good, but whether they are truly benevolent, or engaged in fraud, I believe what they are promoting is of little or no value, and likely does actual harm by drawing some individuals away from real, effective treatments. Thus, what I am going to argue is in no way based upon a love of alternative medicine, nor a belief in quack cures. I am aware of the value of modern medicine, no antipathy toward scientific medicine is behind my arguments, even if a few sound very similar to the arguments offered by promoters of dubious cures.

Second, though I will argue that there are those who have advanced licensing schemes in order to restrict competition, I am willing to believe that most do not. I am not naive enough to believe no one realizes that licensing raises salaries. Doctors are intelligent and well educated, so some must know enough basic economics to recognize this fact. Even when licensing was first advanced in individual states in the early 19th century, I am sure some were aware of this side effect. However, though there are some who act out of avarice, I will agree most promote licensing out of generous motives, mostly a belief that ineffective remedies do harm, and thus should be banned. On the other hand, the fact that self interest and public interest happen to point in the same direction probably helps to inspire a little extra zeal in some. It is only natural. When the right thing is also easy, even rewarding, it is inevitable we would be more eager to do it than when the right thing actually has a heavy cost. Nevertheless, I am not going to suggest that anything close to a majority is promoting licensing out of greed.

Having said all of that, I must now argue that licensing, whether promoted out of noble or base motives, is an improper use of government power. As I said earlier, there are any number of approaches to this argument. First, one can argue quite simply that it is not the proper function of the state, which, though I think it the most important argument, many find the least convincing. So, in addition, I will also offer up some more pragmatic arguments, three of them to be precise. First, the economic argument, that closing markets promotes inefficiency. Second, that promoting such uses of government power one creates a dangerous precedent that can result in much worse consequences. And finally, the argument most seem to find most persuasive, the pragmatic argument that, whether or not such laws seem beneficial, they can also result in harm. As most seem to find the final argument the most pleasing, let me approach these in reverse order.

I suppose the best place to start is to disabuse readers of their implicit belief that such laws inherently protect scientific and effective medicine against quacks and charlatans. As in modern times the law is most often used to prevent those who have been found to be either incompetent or deceptive from practicing medicine, and since the modern medical profession is held in such esteem, we tend to think of these laws as "good" uses of power. However, that has not always been the case, and it need not always be the case in the future. For example, when the first such laws were enacted, promoted by established medical doctors to outlaw ineffective folk remedies, the state of medicine was such that "scientific" cures largely involved bleeding or mercury purgatives, while "unscientific" medicine was made up of a host of equally ineffective practices, such as sweating, herbal concoctions, tractor rods and others. I will grant, some, perhaps most, of those pushing for such laws believed they were promoting the best available science -- rather than seeking to close the market to competitors -- but looking back with our present knowledge, it is hard to say these original laws protected patients, as both approved and unapproved medicine was equally dangerous. (Surgery is, oddly, treated completely separate from medicine, for the most part thanks to the English tradition, inherited from classical sources, of surgeons -- often barber-surgeons -- being trained separately from medical doctors. This lingers even today in the titles used for surgeons and doctors in England, though not in the US.)

Of course, that is history, and doe snot prove anything about current conditions, I simply offer it to show that there is no necessity that such licensing laws will always promote the most effective treatment, only what is, at the time, the most widely accepted, and, in retrospect, that can often seem quite a dreadful choice. If you doubt that, look back over the 20th century. The medical practices of the 20th century endorsed, among other concepts, eugenic laws, including sterilizing the retarded and mentally ill, lobotomies and leukotomies for those with mental illness, routine hysterectomies for almost any gynecological issues after childbearing years, and several other medical practices we would now find abhorrent. Granted, at the time, they were supported by the best science available, but they were also practices we now find wrong, which should help to show licensing is not only not a protection against error, but it can even enshrine error and force it upon doctors as accepted practice.

However, before we even discuss error, let me point out something else. Many of the practices mentioned above contain not only scientific judgment, decisions about what is or is not most effective, but also contain some very subject value judgments. Or, to be precise, what is often presented as an objective judgment often includes many cost-benefit decisions that are not objective, but rather depend on the values of the individual1. Granted, in some cases there is one treatment which is universally held best, that has the best outcomes, the fewest side effects and the lowest cost, but those are hardly the majority of cases. In most cases, science can tell us how effective a give treatment might be, which side effects might occur, what it will cost, and how long it will take, but it is still up to the patient, or the doctor, or both, to choose between several options and decide which treatment to use.

I mention this because it is a truth we implicitly recognize in medical treatment2, but which we seem to ignore when it comes to licensing, or related functions such as FDA approval of drugs and devices. In medical treatment we tend to accept that the patient might reject the approved treatment in favor of a less effective alternative for personal reasons, and, even if we disagree with those reasons3, we allow him to make that decisions.  However, within their charge of deciding if a drug is "safe and effective", the FDA implicitly makes this decision for patients, as it disallows various medications if it decides the drug provides too little benefit to justify the side effects4. As the AMA is not a bureaucratic government agency of the FDA mold, it does not ban treatments in the same way, but, over time, treatments do pass out of use for many of the same reasons. In most cases, doctors could still perform such treatments, which is why we see more choice in medical treatment than in pharmaceuticals, but in some cases, opting for such outdated therapy might bring negative attention or even penalties5.

However limited it might be, the choice we allow within approved medicine seems to be in stark contrast to the choice allowed when it comes to unlicensed medicine. Should a patient, knowing that a given treatment is deemed ineffective by medical authorities, or perhaps imply considered to have side effects far too severe to justify the results, or maybe simply not yet approved, decide to use that treatment, he is denied the option. While, if he chooses among approved treatments, we would allow him to choose a less effective treatment, he is denied a similar choice when he considers unapproved treatments. Where, in some cases, we accept that competent adults can make decisions that go against the judgment of medical experts, at some point we stop allowing him this option, and force him to follow the opinion of medical experts "for his own good". In short, in some cases we see him as a competent actor, and in others we adopt the demeaning practice of protecting him from his own decisions.

What makes this particularly peculiar is that we are still free enough that we accept the individual -- in most cases6 -- can refuse treatment entirely. And thus, we accept that he can do something is entirely contrary to medical opinion, and yet, we then refuse to allow him to make an equally unapproved decision when it comes to unapproved treatment.

Now, I know many will argue that we prevent these treatments because the patients receiving them are not informed, they are provided with fraudulent information or given false hopes, and thus are being defrauded by the people providing them. However, if that is the case, is not fraud law a better vehicle than preventing individuals from exercising choice? And what about those who, in full possession of the opinion of medical experts, still wish to try other treatments? Oddly, in some cases, we have allowed this, allowing those with terminal diseases to purchase unapproved medication for private use, recognizing their right to make their own choices7. But when it comes to other treatments, to people who are not dying, we do not allow them to exercise their choice, and in the guise of protecting them from supposed fraud, we do not allow them to make even informed choices8.

A case that comes to mind that demonstrates quite well how much subjectivity can be found in such decisions is found in the question of medical use of marijuana. For a number of years, marijuana remained banned, mostly because of government opposition, but also because the medical community argued there were no reliable studies showing any benefit. However, after some time, that opinion changed, and some began to argue there was proof of some benefit in certain cases. On the other hand, some still argued the evidence was mostly anecdotal, the side effects were too great for the benefit, and, most of all, better therapies already existed. In such a case, it would seem the best solution -- were it not for drug laws9 -- would be to publish the results and allow doctors and patients to decide for themselves. However, both because of the war on drugs, and because of the prescription system makes doctors gate keepers for access to medicine, the position of the medical world does matter, and thus the ability to receive medical marijuana has gone back and forth, swayed by current opinion, though it has masqueraded as scientific certainty.

And that is the primary reason I argue medical licensing and related regulations have the potential to do real harm. It is also why I mentioned individual choice. It is because, in two very concrete ways, the power granted through such licensing gives those controlling medical licensing the ability to do harm to the rest of society. I grant it may allow them to prevent a certain amount of harm, as is the intention behind such laws, but it also allows for some very real harm. But we shall discuss the cost-benefit arguments later, first let us look at what dangers I see in these laws.

The first potential harm is in the very human tendency -- and doctors are human -- to confuse one's own value judgments with objectivity. We can see this in the already mentioned medical marijuana debate, but even more obviously in, for example, the decision made by many medical journals to ignore early articles on the health benefits of moderate alcohol consumption, or even more noticeably, in the attempts in recent years to treat gun violence as some sort of disease, including rather intrusive questions on many medical forms about gun ownership. In each case, and a number more, those charged with establishing the medical orthodoxy, chose not to simply present facts, but rather to force their own values on the public at large, either withholding information which should have been made public, or distorting facts to match their own prejudices. Were this not a government empowered body, this would be irrelevant. Were it just a medical society without any political power, they would be free to put forth their prejudices as they wish. But, as these individuals can allow or deny one the ability to practice medicine, the promotion of such prejudices sends a clear message that such prejudices are to be the official position of everyone practicing medicine. And, in this way, the power granted to them means that what is claimed to be objective and scientific is often nothing of the kind.

Which brings me to the more important type of harm. When an organization, or group of organizations, is given control over who may enter a profession, and over what actions they may undertake, an orthodoxy tends to arise. In some cases it is a formal orthodoxy, such as that espoused by religions. In other cases, it is informal, such as the political bias found in many university departments, or in the choice of recipients for government grants10. We recognize this in many organizations, yet, whenever I mention this in terms of medicine, I hear objections. Most often, this rest on the belief that because they are scientific in their approach, doctors will not be subject to error. However, we have seen in our own age how university science departments took steps to enforce conformity in relation to global warming theories, so it does not seem science is immune to such orthodoxies.

Nor does an orthodoxy even have to be so explicit, or so blatantly enforced. As anyone who has worked for a large organization must know, large groups develop ways of doing things, they develop, for lack of a better word, corporate cultures. And those cultures tend to narrow their perspectives and limit the allowable solutions. For doctors this is even more true, as they have all attended schools run on basically the same lines, read the same journals, follow the same research, perform similar procedures, are subject to similar insurance regulations and so on. Doubtless, without even thinking about it, doctors develop a number of suppositions about what will and will not work. And as a result, the limit of choices that are allowed is restricted.

Were this any industry, such as computer design or auto manufacture, that would not be an issue. Someone with a radical new idea could simply start his own small venture and prove himself right or wrong. But with medicine, there is a legal gatekeeper, whose approval must be maintained to practice medicine. And I will grant, the gatekeeper is often quite generous and allows a good deal of experimentation. But, as with an group culture, there are limits to the flexibility they will permit, and those limits change. Thus, at one time or another, it is quite possible an avenue of thought could be put forth which would provide a successful result, but which is cut short due to the group orthodoxies. I am not saying this is common with medicine, or even unique to medicine, it is a problem inherent in all regulatory agencies, including medical licensing. However, even if it is rare, it can still be quite disastrous. What if, at the time it was proposed, the germ theory of disease were disallowed? Or chemotherapy? X-rays? Antibiotics? How much damage would any one, very rare mistake have caused?11 Of course, likely most such mistakes will not be so great, and in most cases no mistakes will take place at all. But if a single mistake could be so damaging, while the same benefit could be achieved without regulation -- as I will show -- then why risk it at all?

There are also other, lesser, ills which arise from the approach we have taken to regulation. For example, because of their privileged position in dispensing medicine and providing various treatments, we have come to see doctors, not as employees whom we employ to achieve a particular result, but almost as bosses we have to placate. And the law makes this easy by, for example, restricting our access to medications without the approval of a doctor. In this way, many patients are pressured into making decisions they would not otherwise. If you doubt this think of this scenario: When was the last time your auto mechanic made you sign a form saying you refused tire rotation "Against Mechanical Advice"? Or argued your refusal to change your plugs showed a self-destructive tendency and had your car held for 3 days of observation? If we would not accept it from a mechanic, plumber or grocer, why do we allow such behavior from doctors, who are also employees, no different from the others?12

Of course, there are a number of different elements at play here. There are the powers gained through medical regulation, such as limited access to medicine and procedures, and then there are the quasi-governmental powers granted to doctors by statute, such as psychiatric detention. However, in the end, the two are related, as it is difficult to imagine that such powers would be granted to a profession that had free entry, and so the limited entry to the medical profession and the governmental or semi-governmental control over who is licensed allows the state to grant them such government-like powers. Were the market free in medicine, I doubt the state would entrust everyone who hung out a shingle with the power of imprisoning others13.

I suggested above I would next examine the problem of setting a bad precedent, but as that relates rather closely to the argument about the proper role of government, I think we shall defer that topic and look instead at the economic arguments, which should be rather brief, as the economics behind them is pretty well established, and quite easy to understand.

Basically, a service is like any other good. When in short supply, the price rises, people seek substitutes, or do without, and in general, the market is less well served than when the service is abundant. For example, during wartime, say during either of the world wars, when a considerable number of men of working age are shipped overseas to fight, the number of available workers for any profession is reduced. Thus, provided the government does not intervene to fix wages, the salary for workers rises, and new sources of labor, such as women (who until that time had mostly stayed at home), older retired workers and immigrants are brought in to replace the missing laborers. However, those substitutes are often less efficient (which is why they were not previously used)14, and thus productivity per dollar is still reduced, causing prices to rise and overall satisfaction to fall. Granted, the workers who do have these jobs will enjoy a higher salary, but, because of reduced productivity, that higher salary will still buy less satisfaction of wants than the lower salary did in most cases15.

The same is true of doctors. When the number of doctors is artificially restricted, as it is by licensing requirements (as I will show shortly), the amount of services they can provide is also limited, and, as a consequence, the price of those services is increased. This beneficial to the doctors -- unlike my earlier example -- because there is not a general rise in prices, but only in the price of their services, meaning their salaries rise, while only a small amount of their expenses do. Thus, they enjoy an overall rise in satisfaction. On the other hand, for the market overall, people pay more to receive less medicine than they would were there no barriers to entry, and thus overall satisfaction in society is reduced. Nor does the benefit to the doctors offset this. In total, society is worse off than they would be otherwise.

Now, some may argue that medical licensing is not a true barrier to entry, as no one would want to see a doctor who could not pass medical school or obtain a license. However, that is not entirely true. You see, licensing goes far beyond what most people think about when considering medical licensing. For example, many states limit who can administer medicines, restricting it to certain nursing licenses. Can anyone argue that handing out pills requires years of education?16 Or consider the small clinics which have sprung up in pharmacies and elsewhere which mostly administer vaccinations. Would our health be severely at risk were the injection given, not by an RN or MD, but by a trained layman? Perhaps with a single doctor in attendance for emergencies? Or maybe a former paramedic, military corpsman, nurse or other would like to set up a small, affordable clinic, where he would offer low price services such as setting bones, stitching wounds, maybe even prescribing common treatments for common ailments, and referring anything difficult to more trained professionals. Why would that be a detriment to public health? In each case, a service could clearly be provided safely by a lower cost individual, but licensing restrictions prevent this, driving up costs17. Which is why I argue that medical licensing is a classic example of a barrier to entry causing prices to rise, by denying the right to provide equivalent services by those without required licensing.

Of course that is precisely what proponents of licensing deny, that such services could be provided without risk. And that is the crux of the economic argument. While I can show clearly that licensing causes prices to increase, it can always be argued that the increase is justified by the gain in safety or reliability. I do not agree, and believe, as I argued earlier,t hat the laws actually create a potential for grave harm, while providing only small benefit, at most. But, as this is a judgment based on individual values, there is no right answer. Which is why I offered up my initial arguments as well, and, even more to the point, why I now plan to explain why this function is not within the scope of the functions proper to a government. I would like to believe that argument alone would be enough to defeat regulation, but, knowing as I do how little faith many place in theoretical arguments about government's proper role (even when supported by practical reasons), I know I needed to include these earlier arguments as well. Still, despite the fact many seem to find them less than persuasive, let us move on to the explanation of why I find this function improper for government to perform (as well as a look at the dangerous precedents doing so sets for future laws).

As I see it, the role of government is quite simple, it is nothing more and nothing less than the protection of individual rights from aggressors internal and external to the state18. Admittedly, in practice this can lead to a few thorny questions, such as when was against foreign nations is appropriate19, but in broad outline it is very simple. Individuals have an unlimited, inalienable right to life, liberty and property, rights they deputize the state to help them enforce, and thus, the state exists entirely to stop crimes against persons and property, and nothing else. Of course, in practice, our present states are quite far from this ideal, and I believe reform is best accomplished by gradual steps, rather than some wholesale assault from the top down20. But, whether or not we presently live under ideal circumstances, the ideal still gives us a good idea of what is and is not the proper role for the state. Granted, some improper actions are worse than others, for example, state run art galleries are less harmful than redistribution of income, but before we can gauge how harmful a given law might be, we must first decide whether or not it is within the proper scope of state activity.

And quite clearly medical licensing plays no part in protecting individual rights. Some claim that it helps to prevent fraudulent claims by charlatans, but fraud is illegal already, so there is no need for an independent law. No, the licensing laws, and FDA certification of drugs and devices, along with all related regulations and laws, exist for one simple reason, to "protect us from ourselves". That is, to prevent us from making what has been deemed a bad decision, to allow us only the choices that experts of one sort or another have decided are appropriate.

At first, many do not see why I find such laws troubling, after all, compared to, say, socialized medicine, they seem innocent enough. However, as I have argued elsewhere21, many, many times, the problem is that all such regulations, from the most innocent to the most invasive, all rest upon the same three principles, those being that the masses are incompetent, that there is a right answer, and that the state can somehow determine what that right answer is. Or, to word it with somewhat less precision, these laws all arise from the state's efforts to protect us from ourselves. And thus, when a law sets forth the argument that it is intended to save individuals from potential bad judgments, we must recognize that such laws lay the groundwork upon which rest almost every intrusive state measure in the modern world.

Just consider the rationale behind licensing, be it doctors or hair dressers or interior designers22,23. The argument is made that individuals are, in general, incompetent to distinguish between competent and incompetent practitioners, while the state is. Thus, the state must prevent individuals from making wrong choices. Instead, the public must be presented with only acceptable choices, lest they harm themselves. As you consider it, begin to ask yourself "what government action could not be justified with the same rationale?" If the state so wished, could it not do everything from ban books to assign careers to arrange marriages to put all children in state nurseries using the same logic? If w are to be protected from even the possibility of making a wrong decision, and the state is the only body capable of determining the proper course -- or the only one capable of consistently doing so in all areas24 -- what could not be justified?

And that, in the end, is the greatest harm of all from such laws. Though so many doubt this possibility, believing that some sort of line drawing, an appeal to common sense, some sort of limit will stop these laws from running to their logical conclusion, the fact remains that throughout our history, time after time, laws inevitably brought about those things that they implied. Once we allow that a given principle is correct, it is inevitable that those who desire the results it implies will continue to use that law to push, and, having the more consistent position they will inevitably win. We might not demand complete consistency in our laws, but we humans tend to be quite uncomfortable with arguments that make no sense. And thus, in the long run, the most consistent position wins, and so, the outcome that fulfills the implications of existing laws will triumph as well.

And the implication of a government which does nothing but protect us from ourselves is a government with unlimited power, able to intrude into our every decision, able to touch upon every facet of our lives. And thus, even were medical licensing not dangerous for all those other reason I mentioned, were there not pragmatic and economic risks involved, I would still oppose it, if only because it is the one opening needed to allow for the eventual creation of a government with unlimited power, unlimited scope, unlimited reach.

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1. See "Selfishness as Reason - "Wants", "Needs", "Fairness" and Other Guises for Arbitrary Decisions", "Imperfect Competition, Abstraction and Anti-Trust" and "Self-Sustaining Beliefs".

2. To a degree the present insurance system, especially as it moves toward universal insurance, removes this choice, as it substitutes the judgment of insurers for the insured. This would be less of an issue were insurance truly insurance, that is preventative payment against catastrophic emergencies. but as we have started using nominal insurance as a means of regular payment for expected and routine procedures, this means choice is being eliminated in all aspects of medicine. (See "The Absurdity of Mandatory Insurance", "Preexisting Conditions", "Public Funding is Government Control ", "Private and Public Coexisting", " Who Will Decide", "Shameless Self-Promotion", "The Devil is in the Definitions (And Assumptions)", "Redefining Insurance... To Actually BE Insurance", "The Insurance Sham", "Government Efficiency", "High Cost of Medical Care", "Medical Reform, An Overview", "My Health Care Plan", "True Insurance Reform", "A Different Look at "Health Care Reform"", "Of Wheat and Doctors", "Bad Economics Part 10" and "You Gotta Have Faith".)

3. This is not entirely true. While we do allow adults in most cases to refuse treatment, in some cases, such as children whose parents refuse treatment for them, or individuals whose reason for refusing treatment makes us think they are incompetent, we have seen the law intercede to force treatment. It is an odd approach, as there are very few other areas of life where an individual can be forced to buy a good or service, but our thoughts on medicine have long been tainted with collectivist theories of "social good" that have both made us treat doctors as bosses, rather than employees, and treat the purchase of medical services as a communal activity rather than an individual purchase. (I will discuss some of this later in this essay.)

4. There are obviously devices and medicines which are rejected because they do not achieve any of the stated goals, but they are a small minority. Most drugs which make it to FDA testing do accomplish some beneficial goals, the FDA bans them, not because they do not work, but because they have side effects deemed too dire, or because the results of their use is deemed of too little benefit. Thus, many times refusing to allow a drug to come to market is less of an objective scientific decision and more of a value judgment made by regulators instead of potential consumers.

5. At one time I thought it important to point out that licensing and FDA certification have very different functions, though with similar outcomes. However, in truth, because the results end up being so similar, I don't think it makes much difference that one provides a remedy after the fact, while certification from the other is required before a solution can even be used. Even in terms of motivations, the two are quite similar. thanks to the fact that licensing bodies are either governmental, or beholden to the state, they have the same bureaucratic incentives as formal government agencies. (See "Gun Control, The FDA and Regulating the Law Abiding", "The Magic Bureaucrat", "Consumer Protection", "Professional Education", "Licensing", "Business Licensing and Regulation" and "A New Look At Intervention". See also "Bureaucratic Management and Self-Policing", "Bureaucracy and Arbitrary Power", "Fear Driven Enterprises", "Killing the Railroads", "Adaptability and Government", "Inflexibility and Bureaucracy", "Bureaucratic Management", "The Bureaucratic Mind", "Bureaucracy Revisited", "The Wrong Solution to Bureaucracy", "Inflexibility and Bureaucracy", "Adaptability and Government", "Best Practices and Resistance to Change, Bureaucracy and the Free Market" and "The Inevitability of Bureaucratic Management in Government Enterprises")

6. Again, see note 3, above. As I said there, the right to refuse treatment is not absolute, and becomes less so as medicine becomes less and less of a private matter.

7. The right to buy unapproved medicine is actually quite limited, though more liberal than the rights most have when purchasing drugs. Still, the logic for allowing compassionate exemptions for those suffering from fatal diseases supports arguments for allowing exceptions for others, which, in the long run, would support an argument for allowing free purchase of all pharmaceuticals. As some regulators recognize this logical progression, they have long opposed even the most restricted exemptions, and place tight controls on what exceptions are allowed. (See  "Slippery Slopes""No Dividing Line", "Harming Society", "You've Come a Long Way, Baby!", "In Loco Parentis", "Hard Cases Make Bad Law", "Tyranny Without Tyrants", "Some Thoughts on "Summerhill"", "In Defense of Zero Tolerance, or, And Examination of Law, Common Sense and Consistency",  "With Good Intentions", "In The Most Favorable Light", "Inescapable Logic", "Recipe For Disaster", "The Endless Cycle of Intervention",  "The Cycle of Compassion", "Grow or Die, The Inevitable Expansion of Everything" and "Inspections, Regulations and Bans" and "Guns and Drugs".)


8. To be absolutely clear, I do not believe most alternative medicine is effective. However, I also believe an individual has every right to choose to spend his money as he sees fit, even on those things which everyone else believes to be ineffective. Granted, if it is sold fraudulently, that is a crime, but provided the sale is transacted without fraud, there is no legal reason to refuse to allow individuals to make a purchase simply because others believe it to be without merit.


9. See "In Loco Parentis""Drug Legalization", "Medical Regulations" and "Medical Regulation II".


10. See "Patronage", "The Other 99%", "A Question for Artists of the Left", "A Perfect Example (And an Unintentional Example of Blindness on a Simple Issue)",  "Moral For Me, But Not For Thee", "Protectionism for Art?", "Patronage Versus Choice", "Subsidies and Censorship", "My Censorship Is Your Discretion", "Time to End the NEA", "The Problem of Pornography", "Canada, Subsidies, The Free Market and Intractible Reality",  "Asking the Wrong Question", "Publish Or Perish", "Corrupting Science", "Funding and the Corruption of Science", "An Examination of the Economics and Sociology of Government Spending" and "The Failure of Peer Review".


11. It is not impossible, even in modern times. As I mentioned earlier, many past orthodoxies now seem to be mistakes. Similarly, the microbial theory of ulcers was for a long time rejected as absurd, and was only accepted after some rather heated struggles, in the course of which several times the theory was deemed by some to be, effectively, beyond the pale of allowable medical beliefs. Thus even recent times have seen the potential exclusion of correct medical paradigms and treatments.


12. I grant, psychiatric holds are not common, but the very fact that they can be used suggests that doctors have been granted quasi-governmental powers not found in any other category of employee or merchant. (See "The Politics of Psychiatry", "Crime, Insanity, Incompetence, and IQ", "Mental Illness" and "Finding What You are Looking For".)


13. I understand that a long term psychiatric detention requires judicial review, but in most states, a doctor can, on his own, or with the agreement of a number of other doctors, hold an individual without review for a number of hours or days (72 hours seems to be common). Thus, a doctor actually has a greater power to detain an individual without judicial oversight than a police officer in many states, as habeas corpus allows for much less time without charges being brought before a magistrate than mental hygiene laws allow for psychiatric holds. Of course, some will argue a doctor must have a reason to assume the patient is a danger, but the police must also have cause to hold a prisoner, that is why review exists. We do not assume a police officer is always honest and correct and simply allow him to detain at will for as long as he wishes, so why do we assume doctors are always honest and correct? There is a good reason for review, which is why I find it odd that doctors are often granted more leeway than police, given the relative importance of each and the danger presented by criminals versus the mentally ill.  It is interesting that a number of states saw prosecutors trying to use mental hygiene laws to circumvent various criminal protections, such as having serial rapists committed once they were released from jail. It highlights this contrast I mentioned. (In a way, this reminds me of the laws in Maryland, where the old law for smoking in elevators was never updated, and still had a fine of $25, while the new draconian laws against smoking indoors almost anywhere had a fine of hundreds of dollars. Oddly, it made it cheaper to smoke in an elevator, where presumably it was less welcome than elsewhere. Similarly, because doctors are granted greater leeway by these laws it makes it easier to call criminals mentally ill, as the burden of proof is much less. But that is far from my present topic and needs an essay of its own.)


14. This is not to say that women, retirees or immigrants cannot eventually become as efficient as those they replace. However, when they start they have little or no skill (or in the case of retirees, outdated skills), and even in unskilled jobs lack familiarity with the workplace procedures and customs. It will take time for them to become as skilled as those they replace. However, had the original employees been at the job, they too would have been improving their skills, so, in the end, the new workers will never catch up to the point the original workforce would have been had they not been removed. Thus, this substitution will, for quite a long time (until a new generation of workers enters the workforce) represent some degree of loss relative to what would have been had the substitution not been made.


15. Obviously, there will be cases where a particular worker enjoys a greater rise in salary than the overall decline in productivity and rise in prices. This will be especially common in the area of skilled employees, especially those with very uncommon talents, as their rarity will be exaggerated by the reduction in the labor pool. But, for the most part, increases in income will be insufficient to offset the overall drop in satisfaction per dollar spent.


16. Oddly, most laws allow completely unskilled family members to give medicines to relatives, but if the pill is given by someone on the staff, it must be an LPN or RN, not a CNA, GNA, orderly or other staff. (The laws vary from state to state, to it is hard to make a general rule here. And, even within a given state, the laws change from time to time, so any statement I make here applies only to certain states at certain times.) 


17. The legal profession is actually an even better example, as the hiring of an incompetent lawyer truly does harm absolutely no one but the individual, and it would be easy enough to allow for private certification of lawyers. There is not even a hint of risk to life and limb as in the example of doctors, so that argument is not valid. However, this argument will need to wait for another essay, though, given how straightforward it is, it would be a rather short essay. (Oddly, though I think economically it would be beneficial to allow free entry into the practice of law, I would not argue all legal licensing is outside the proper role of government, as is the case with medicine. Who can and cannot represent another in court is arguably a proper governmental function -- though I can also make a case to the contrary -- and thus is not clearly an inappropriate activity as is medical licensing.)



18. See "Prelude", "Tools", "My Vision of Government", "My Vision of Government Part II", , "An Analogy For Government", "A Simple Proposal", "Man's Nature and Government", "Why Freedom Is Essential", "A Right Is A Right""The Case for Small Government""Symmetry and Asymmetry in Government", "Negative and Positive Rights" , "Volunteer Fireman, Barn Raisings and Government",  ""...Then Who Would Do it?" ", "Collective Action and Government", "Why Must The Government Do It? Part I", "In Loco Parentis" and "Inconsistent Understanding".

19. "Imperfect Information", "Rational National Defense", "Rights Versus Laws", "Last Word on Defense", "Foreign Policy", "My (Informal) Nobel Peace Prize Nomination", "Inconsistencies in Historical Perspectives", "The Point of Foreign Policy", "Stupid Quote of the Day (January 5, 2012)", "Knights and Bandits""War As Last Resort", "War Crimes", "Civilian Casualties", "Follow Up on an Old Comment" and  "A Little Bit of Irony".


20. "Reforms, Ideal and Real", "The Benefits of Federalism", "Consolidation and Diffusion", "Redundancy as a Protective Measure", "Why I Am Not A Libertarian", "Learning From Crows", "A Rational Approach to Punishment", "Symmetry and Asymmetry in Government", "The Tragedy of the Creative Commons" and "The State of Nature and Man's Rights".


21.  "Liberalism, Its Origins and Consequences", "The Essence of Liberalism", "Arrogance and Gun Control", "Our View of Our Fellow Citizens", "Those Other People", "Seeing People As Stupid" and "Man's Nature and Government" .


22. I am not certain if any state yet licenses interior designers, but I dates someone studying interior design in the late 80's and recall there was a movement to "improve the image of the industry" by requiring a degree and licensing by a professional body. Obviously, this was motivate mostly by a desire to restrict competition, but ti shows how little harm an industry must be capable of inflicting before it can justify licensing. After all, precisely how much harm can be done by reckless interior design? (I realize interior designers, unlike interior decorators, can make architectural changes, but those changes must pass state inspection and also tend to involve an architect, so it is unlikely a renegade interior designer is going to start dropping walls on people.)


23. In some cases, the state pretty clearly licenses as a form of taxation. For example, to be a licensed peddler, all Maryland requires is a fee. This clearly in no way protects anyone, and is simply a means of taxing sales which, because so much of the activity is transacted in cash, could not be otherwise taxed.


24. because it would be PR suicide, government and those promoting intrusive government rarely state most individuals are incompetent and the state omniscient, they instead speak as if those listening were part of the state-centered cognoscenti, and some amorphous mass of poor benighted individuals "out there" need guidance. By so playing to arrogance, elevating all listeners above some lowly "masses" of ignorant, needy, misguided "sheep", they tend to win over the public, while implicitly telling them at the same time they are too foolish to be allowed to choose for themselves. It is quite a trick. See  "Those Other People" and "Appealing to Arrogance". Also see "The Inherent Disappointment of Authoritarianism".


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POSTSCRIPT

Whenever I bring up this topic, inevitably someone will ask how I would select doctors if there is no licensing, how we could tell good from bad, and so on. The answer seems simple to me, but I will give a brief answer. 


First, there is nothing in a free market that prevents private certifying bodies from continuing to function. Just as there are private bodies now that certify auto mechanics, for example. If you need a doctor, you could check with an AMA list or some other organization for those certified in your area. Those groups with a reputation for providing good recommendations would, obviously, flourish, while those which were disreputable would fail. Yes, from time to time a certifying body might suggest a bad doctor, or a certifying body might be dishonest, but to be fair, with licensing there are still bad doctors as well, so it is not as if we are comparing a private system with some form of government perfection.

Actually, there is an even simpler solution. Many people would use a system they use now to hire all sorts of professions. Word of mouth. And if you think your health is too important for this solution, let me ask you this, how do you hire babysitters? Almost everyone goes on word of mouth. And if that solution is good enough to entrust the lives and safety of your children to a completely uncertified, usually underage, babysitter, is it not good enough for picking a physician?

I will grant, from time to time, word of mouth may give undue credit to someone quite affable yet rather unskilled. However, to point out the obvious once again, the same can be true of a licensing system. It is not unheard of for a likable individual to repeatedly dodge malpractice suits and maintain medical licensing for a long time, making it clear that, whatever problems may exist with a system lacking government backed licensing, there are similar issues with government licensing as well.