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News and stories from the campaign to reclaim individual responsibility and liberate Americans from bureaucracy and legal fear.

Blog — Op-Ed

Fiscal Times: Outdated Laws Drive Stupid Government Spending

"Maybe our undisciplined government spending isn't the problem; maybe it's our stultifying legal system." That's a core message of Common Good, and it's the message of a new piece in The Fiscal Times, "Outdated Laws Drive Stupid Government Spending."

The Fiscal Times asked Common Good Chair Philip K. Howard to diagnose the cause of our nation's legal, economic, and regulatory nightmare. The answer? "Cleaning up the government is hard not just because it is vast, but because it is tangled up in layer upon layer of antiquated laws--laws that should be periodically reviewed and simplified."

Convoluted laws and regulations gum up the works of government, creating a complex, wasteful bureaucracy. Common Good has argued from the start that America needs simpler government, law and regulation. That's why we've developed a set of concrete reforms to cut red tape and free Americans to innovate and create jobs in our economy.

Check out the Fiscal Times article, and join the fight for common sense.

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Dissatisfaction with Governance at Historic Levels

In forty years of Gallup polling, Americans have never expressed such dissatisfaction with how the nation is being governed:

According to Gallup:

  • 82% of Americans disapprove of the way Congress is handling its job.
  • 69% say they have little or no confidence in the legislative branch of government, an all-time high and up from 63% in 2010.
  • Americans believe, on average, that the federal government wastes 51 cents of every tax dollar, similar to a year ago, but up significantly from 46 cents a decade ago and from an average 43 cents three decades ago.
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States leading on malpractice reform

As federal and state governments struggle to combat rising healthcare costs, more and more policy makers are looking at our flawed medical justice system as an opportunity to reduce waste, improve patient outcomes, and make it easier for patients to receive just compensation.

Wayne Oliver writes in the Washington Times about initiatives in Georgia and Florida that would do just that:

The Georgia and Florida proposals would eliminate defensive medicine and create billions in health care and taxpayer savings. In exchange, the plan would replace the medical tort system with a no-fault, administrative model similar to a workers’ compensation system.

This would revolutionize the medical-malpractice system so that no physician would feel compelled to practice defensive medicine. Moreover, all injured patients would be compensated for their loss — something unheard of today because very few claims ever make it through the legal system.

See Oliver's full article here.

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Walmart vs. birthday party parents: Who’s got the most hysterical overreaction?

By Lenore Skenazy

Readers--Here's a story from the NY Daily News that highlights two of the things that drive me craziest about our culture:

A family in Maine was serving a Walmart cake at their 2-year-old's birthday when they found a paring knife baked into it, on the bottom, clearly left there by mistake. Said the traumatized dad, the incident "put a dampener" on the party and people started to leave.

As if folks usually stick around for hours after the cake. Nothing more fun than the dregs of a party with over-tired toddlers! But the dad, sounding weepy, added, "We're not going to get that second birthday back ever."

Ohmigod--he’s right! How is anyone expected to recover from a blow like that? The family will NEVER get back a non-paring-knife-marred-cake-cutting-moment when their kid is two again! Naturally, that kind of thing is so unfair, so deeply disruptive to the natural order of things, that the dad said he may sue.

If he does, I hope he is thrown right out of court, and into a cake. (And if, ironically enough, there's a pointy thing in there, well...)

For its part, Walmart sounded almost sane and strong for a second, offering the family only its apologies and a replacement cake. Right on! But then a spokesman added that the chain was "now banning the use of pairing knives at its bakeries across the country."

Wha!? Just because ONE person in ONE Walmart screwed up ONE time with a paring knife--not an AK47--now the chain is banning ALL paring knives at ALL times in ALL Walmart bakeries? Are apples going to peel themselves for the pies? Is the store going to ban cleavers from the meat department, too?

What's disturbing about Walmart's response is how quickly and cravenly the corporation was willing to pretend that the problem was X, and now it is solved forevermore, by X banishment.

But the problem is obviously not paring knives. The problem is that human beings screw up sometimes, and this shouldn't be a sue-able offense unless there was gross negligence or malice, or some really unconscionable filling, like prune pudding. If a minimum wage bakery employee spaces out, it's time to talk to that employee, not issue an across-the-board edict.

So my ideal punishment for the Walmart legal team? Send them a cake. Prune pudding filling. No one goes home till it’s eaten. - L.

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

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Medical malpractice reform seen as state issue

The following article, by Ramesh Ponnuru, was published at Bloomberg View.

Feds Shouldn’t Meddle With Medical Malpractice

The idea that we should reform the way we handle allegations of medical malpractice is enjoying a new vogue.

At the end of a long cover story for Time magazine on high U.S. health-care costs, Steven Brill suggested that doctors who follow the best practices in the field should be shielded from liability. Peter Orszag, writing for Bloomberg View, argued that this policy could do a lot to reduce costs. One of the few health-care ideas that almost all congressional Republicans have agreed on, meanwhile, is caps on medical-malpractice awards.

Another proposal comes from Philip Howard: Specialized “medical courts,” he says, should hear malpractice cases, just as there are courts devoted to patents, tax law and other areas where expertise matters.

Supporters of these ideas say they would do more than control costs. They would also improve the practice of medicine. Doctors would no longer order unnecessary tests, for example, to protect themselves against future lawsuits.

All of these are attractive ideas. And I don’t deny that medical-malpractice law needs reform. Every doctor I know has a horror story. But lawsuits over medical care have traditionally been governed by state law -- and they should continue to be.

Consequential Mistakes

The federal government should keep out of this area, first, because we don’t really know the best way to reform the system. Would a legal “safe harbor” for doctors really work, or would trial lawyers find a way to get around it? Pharmaceutical companies thought that the federal drug-approval process would protect them from the whims of state courts. They thought wrong.

Even if the safe harbor proved legally effective, it could have negative effects. Doctors dislike the current system partly because it limits their ability to do what they think best for their patients, but a safe harbor for supposedly best practices could just put them in a tighter straitjacket. By placing the practice of medicine under more centralized control, the idea will magnify the effects of any mistakes the experts make.

Caps on medical liability would prevent outrageous verdicts, but a cap set too low could reduce the incentive for doctors to avoid errors. Where should the cap be set? We don’t know.The second reason the federal government should let states set their own rules is that they can do so without imposing costs outside their borders. If West Virginia chooses rules that punish obstetricians and gynecologists, some of them will move to Pennsylvania, and care will get more expensive. That’s too bad for West Virginians, but it’s also an incentive for them to elect legislators who will get the balance right.

Other areas of tort law don’t offer this opportunity for competition and self-correction. In product-liability cases, people can sue out-of-state corporations in their own states’ courts using their own states’ laws. Companies with national markets have to adjust to the most demanding jurisdiction. The most punitive state or locality can thus set a de facto national policy. Federal action to stop states from hurting the rest of the country is justified: The Constitution wisely gives the federal government the responsibility to protect commerce among the states.

There’s no such justification in the case of medical torts. No state can use its medical-malpractice rules to force outsiders to bear extra costs. It’s true that state rules can inflate the costs of federal health-care programs (that fact helped persuade President George W. Bush to call for federal legislation to cap malpractice awards). But the federal government has voluntarily picked those costs up, and can’t use its own decision as a basis for intrusions.

State Solutions

A recent study by Michael Frakes of Cornell Law School suggests that states that shield health providers from liability when they follow best practices have much lower health costs than other states. Proponents of that idea are pointing to the study to justify federal action. What it shows, though, is that states are capable of implementing such a policy on their own and can capture the benefits.

Notice that neither of those things is true in product- liability cases. No state can protect its companies from lawsuits elsewhere. And if it clamps down on abusive product- liability litigation inside its borders, much of the benefit will accrue to residents of other states.

Ken Cuccinelli, the attorney general of Virginia, is one of the few Republicans to warn his party against attempting to reform medical-malpractice laws from Washington, even though, as he wrote in 2011, “I am concerned that our legal system encourages more lawsuits than are appropriate,” and even though this imposes higher medical costs. But not every problem has a federal solution, and he argued that states should fix their own laws rather than have the federal government take over the field. He’s right.

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Lenore Skenazy’s Outrage of the Week

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

Hi Common Good Readers! Here’s a letter that may remind you of “safety” measures being taken in your own neighborhood. If so, we’d like to hear from you. There’s strength in numbers, and if enough parents, teachers, principals and plain old citizens feel that the new rules aren’t doing any good, we can push back together. So read this, then write us!

Dear Lenore: I took my kids to Sunday school a few weeks ago and the door we usually go in had a sign on it saying that we could no longer enter there.  Everyone needs to go in the door on the other side of the building.  Never mind that to get there, people now have to walk their children through the entire parking lot, which was already congested. (So much for “safety!”)

As I was walking my son to his classroom, I saw the woman in charge of Sunday school guarding one of the doors, waving away the people hoping to be let in.  I asked her about the new rule and she said, "I implemented it for safety.  Before, we had people going in and out of six different doors.  It just wasn't safe."  As we walked away from her, my 7-year-old son whispered, "Why is that not safe, Mommy?"

I couldn’t answer.

Then I picked up my 11-year-old daughter from her Sunday school class across the street.  She told me that instead of a normal lesson that day, they had a police officer come talk about personal safety.  “Personal safety” evidently means telling the kids details about several child abductions that have happened over the last 30 years.

As we were picking up my son from his class, I told my daughter that we must now walk around the building because they want everyone to go in and out of the same door.  She asked, "Won't that make it easier for someone who wanted to shoot or bomb people, because everyone will be in the same place?"

No answer.

Monday morning, I headed to the elementary school to change the marquee, as I have done for the past seven years.  I pressed the buzzer and instead of just opening the door as usual, the secretary asked me who I was over the intercom.  Never mind that there was a video camera and she could see me!  She let me in and I saw that she had a woman standing over her who’s evidently a security advisor.

I walked back to get the marquee letters in the office and she told me I needed to sign in, even though I do not even enter the main part of the school.  I do the marquee outside.

The only ray of hope came when I was leaving and overheard the office manager, principal, and secretary complaining to each other about how the new safety rules they are being forced to implement don't even seem to make anyone safer.

I keep thinking about the schools of my youth that had all of the doors open all day, every day, with no one monitoring who came or went.  The schools today have all implemented locked doors and buzzers and signing in, yet school shootings still occasionally happen.  Why does anyone think more and more "safety" rules are going to stop them?  If all of the safety procedures so far have not stopped these incidents, why will more safety procedures work? – Puzzled in Plano

P.S. The school district just voted to put armed guards at each of its 72 schools.

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Views on defensive medicine, health courts advocated

The following letter from Philip Howard appeared in the Wall Street Journal on February 15:

Tort reform caps only noneconomic damages, such as pain and suffering. A doctor can still be liable for millions for a lifetime of care for a baby born with cerebral palsy, even though the doctor did nothing wrong.

The only cure for defensive medicine is a system of justice that reliably distinguishes good care from bad. That's why a growing consensus, including President Obama, Mitt Romney and the Simpson-Bowles proposal, calls for creating special health courts. The cure for the disease of unreliable justice is reliable health courts.

Howard's letter accompanied several others, including this from an Arizona doctor:

The cost of defensive medicine doesn't lie in the additional study ordered "just to be sure" or to fend off a potential future liability claim from the patient being seen today. The continued presence of a malpractice threat has moved practice standards so that they incorporate the underlying risk and raise the cost of health care that isn't measured by changes in health-care spending with tort reform. Over time, constant malpractice pressure has changed what was once ordered "just to be sure" into the standard community practice.

A doctor from Salt Lake City adds:

The best place for medical malpractice is administrative law, not tort courts. That transition may not reduce the total amount of rewards paid by liability companies but the money will go to more injured patients and to fewer attorneys, and the physicians who cause harm can be dealt with in a far more effective fashion. I project the overall savings will be larger or at least produce a better picture of the cost of defensive medicine. But it will never happen because of the trial-lawyers lobby.

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Why America needs health courts

From The Providence Journal, February 15, 2013:

U.S. health-care costs keep rising, because Congress won't address the skewed incentives imbedded in the underlying legal structure. One basic reform - creating reliable health courts - would save tens of billions of dollars a year. Leaders of both parties, including President Obama and Mitt Romney, call for it, as does the Simpson-Bowles debt-reduction plan.

But this one obvious reform, which would probably save each American family more than $1,000 a year, has been blocked by a tiny special interest - the trial lawyers. America cannot avoid a fiscal crisis until it figures out how to overcome the stranglehold of this and other special interests.

Physicians and nurses distrust the current medical-liability system, because it does not reliably distinguish good care from bad. This causes doctors to practice defensive medicine, ordering tests and procedures not based on medical necessity but to protect themselves from possible lawsuits.

Defensive medicine is notoriously hard to measure, with estimates from about $45 billion to more than $200 billion annually. Defensiveness also leads to tragic errors, because doctors and nurses are trained to avoid speaking up - "Are you sure that's the right dosage?" - out of fear of taking on legal responsibility.

The distrust of the current system is amply justified, because it has an error rate of 25 percent according to a 2006 report by experts at the Harvard School of Public Health. The unreliability is hardly surprising since the current system lets lawyers argue almost anything - often with bogus experts - and present an emotional appeal to a lay jury whose members have no way of knowing what other juries or judges have decided in similar circumstances.

The current system also badly serves patients injured by medical mistakes. It takes an average of three to five years to resolve a claim and wastes almost 60 percent of an award on lawyers' fees and administrative costs. And in about 25 percent of the meritorious cases, the injured patient gets nothing.

Unreliable justice helps only one group - the trial lawyers, who can use the possibility of a rogue jury verdict to extort large settlements in tragic cases.

All these counter-productive effects of unreliable justice - including the huge waste of defensive medicine - can only be eliminated by creating specialized administrative health courts. The concept of health courts has been championed by Common Good - the nonpartisan government- reform coalition that I chair - working in conjunction with experts at the Harvard School of Public Health, with funding from the Robert Wood Johnson Foundation.

Health courts would have judges dedicated full-time to resolving health-care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in complex areas where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers' compensation, vaccine liability and other specialized areas.

The public sees the need for reliable health-care justice. The health court concept has also been endorsed by virtually every legitimate health-care constituency, including medical societies, patient-safety organizations and such groups as AARP.

Only the trial lawyers oppose health courts. Whom do they represent? Not injured patients, who are badly served by the time-consuming and unreliable system. Not the American families who must pay the rising cost of care. Not the doctors and nurses who must go through the day looking over their shoulders instead of caring for patients.

The trial lawyers represent only themselves - because they feed off the fear that a jury might render a ruinous verdict whenever there's a tragic medical result, even where the doctor did nothing wrong. It is precisely the fear sown by trial lawyers that causes defensive medicine.

Special interests undermine the promise of democracy. Everyone sees the problem here. Justice is supposed to be reliable, not a lottery. We can never fix the wasteful costs of health care until we provide a reliable system of health courts. Why are we waiting?

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Are we in the end times of trust in government?

From The Washington Post, February 7, 2013:

It’s no secret that the American public views its elected officials with some combination of disgust, disappointment and distrust. Congress’s approval rating is in used-car-salesman territory, and with every legislative crisis it dips, somewhat amazingly, lower.

But, as bad things are, there is a tendency to assume that the current attitude toward the federal government is sort of how it always has been. Except that it hasn’t always been like that.

This chart is taken from a broader interactive project from the Pew Research Center that aims to document public attitudes toward the federal government from 1958 to the present day. It documents the percentage of people who said they trust the government in Washington either “just about always” or “most of the time.”

There are any number of interesting storylines in the chart  – for much of the 1960s, more than seven in 10 people expressed considerable trust in the government in Washington! — but what struck us most was how the current low period of government trust is, unlike past periods of distrust, seemingly unconnected to an obvious event or events.

When public trust in government collapsed from 53 percent in 1972 to 36 percent in November 1974, it made sense. The Watergate investigation, which led to the resignation of President Richard Nixon, was just the sort of ugly — and prolonged — episode to make public perception of government erode in a relatively rapid manner.

Ditto the historically low trust ratings reached in Pew polling in the early 1990s, as a series of congressional scandals — with the House Bank scandal being the most prominent — produced large amounts of media coverage focused on what the heck politicians were doing in the nation’s capital.

But the recent drop, which began in earnest after the goodwill toward Washington surrounding its actions in the wake of the Sept. 11, 2001, attacks wore off, seems disconnected to any single notable event. There have been a fair share of legislative standoffs and scandals in recent years, but nothing nearly as heavily covered or broad as Watergate or the House bank.

Instead, it appears to be a political death — or at least bloodletting — by a thousand cuts. No one event is to blame. Rather, something even more corrosive to government appears to be happening — a steady and growing belief that politicians in Washington are simply not to be trusted.

(It’s worth noting that this decline in trust in government has corresponded with a decline in trust in other major pillars of American life — from the financial sector to sports. Thanks a lot Barry Bonds and Mark McGwire!)

The depressing reality of Pew’s long-term trend on trust in government is that there is no obvious cure for what ails the body politic these days. Without a clear cause, a sure solution isn’t available. It’s possible that we are simply in a new era in which trust in institutions like our government simply won’t ever approach — or come close to approaching — its historic highs.

The end times of trust in government may well be upon us.

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Video: Is America a “Kludgeocracy”?

Liberals and conservatives may disagree about the appropriate size and reach of the federal government, but according to Johns Hopkins professor Steve Teles, that debate is largely a red herring. In his article "Kludgeocracy: The American Way of Policy," Teles suggests that the most important questions about modern American governance concern efficiency rather than scope. "The issues that will dominate American politics going forward," he writes, "will concern the complexity of government, rather than its sheer size."

Teles presented the idea of "kludgeocracy" in Common Good’s 2010 forum on "Fixing Government Paralysis;" here are some of his comments:

From healthcare to education to infrastructure, the works of government are gummed up by convoluted, piecemeal, and reactionary laws and regulations. As Teles puts it, "For any particular problem we have arrived at the most gerry-rigged, opaque and complicated response."

Philip K. Howard, founder and chair of Common Good, made a similar case recently in The Atlantic: "Simplification does not mean eliminating government oversight. It makes oversight better by allowing people to use their judgment. Rules can't think. Nor does it give tyrannical powers to officials. Checks and balances can safeguard against abusive decisions--but these checks must also be based on judgment."

That’s why Common Good is producing issue briefs that describe common sense reforms to simplify government, cut deficits and create jobs in our economy. Take a look at our briefs on education, obsolete law, infrastructure, and more here. And read Steve Teles’s essay here.

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