Wednesday, December 30, 2009

Incentives in Arbitration

Arbitration is a process for resolving civil cases. Instead of using the court system, the parties agree to submit the decision to an arbitrator. The arbitrator is simply another lawyer who acts like a judge in the case. He'll hear motions and, if act as both the judge and jury in the trial-like arbitration. The arbitrator then makes his award which is generally binding on the parties, barring extraordinary circumstances.

Arbitration is usually preferred to court trial because it allows the parties to save some money. Courts are slow and formal, whereas arbitrators are swift and informal. Speed saves money.

Despite the similarities, it occurred to me that while arbitrators act like judges, they are unlikely to reach the same decisions as judges. I think this is for two reasons.

First, parties are less likely to appeal an arbitration decision. The standard for overturing an arbitrator's decision is higher than for a court. Appellate court generally do not defer to trial court's decisions on questions of law. Trial courts will, however, defer to arbitration decisions on these questions.This leaves the arbitrator more latitude.

Second, the arbitrator is usually selected by an agreement of the parties. That means that arbitrators are unlikely to be extremely biased in their decision. If they were, one side of a dispute would never choose them. But it also means that arbitrators are unlikely to send one party home empty handed. A lawyer that gets a really bad decision will probably never use the arbitrator again unless it was really clear that their side of the case should fail.

So, I think if you want the result that may be in tension with the law but seems fair, you probably want an arbitrator.  And if you have a technically good case but are seeking a result that seems less fair, you probably want a judge.

Tuesday, December 29, 2009

Sick of Reform

I know we're all "sick" of the health care debate. I'm "nauseated" every time I think about the healthcare bill passing. Still, I had a couple things to say on the subject. (And these aren't all directed at this particular health care bill)

1. We hear a lot about uninsured Americans. This number fluctuates from forty million to sixty million, which indicates to me that we really have no idea how many uninsured Americans there are. When you break down those numbers, you discover many of the uninsured fall into the following categories: illegal aliens; young, healthy individuals; people who can afford to purchase health insurance but choose not to; and people who qualify for existing assistance programs, like Medicaid, but aren't signed up.

There are probably some people who don't qualify for Medicaid, but also can't afford health insurance, and that's a problem. Here are two things that I think are often overlooked on this insurance point.

 First, not having health insurance doesn't mean you don't get health care. I, myself, purchased health care services without insurance. It's expensive, but doable. True, that's routine care, not serious surgery. But most of these people can purchase a doctors visit if needed.

Second, the comparison always drawn by single-payer advocates is between a free market system that has some people uncovered, and to a government system where everyone gets coverage. But countries that have "single-payer" health care usually have long lines for at least certain kind of tests of treatments. When you're waiting in line, you have less access to health care as a person in the U.S. with no health insurance.

2. Legislating is an ugly process. Everyone is rightly disgusted by the size of the payoffs that senators Landrieu and Nelson got for their states. Now we get to rely on the same institutions to fairly dole out or mandate services and coverages.

3. This particular health care bill mandates that uninsured people either buy coverage or pay a penalty. The bill then prohibits charging disparate premiums to sicker people than to healthier people. The result is that healthy people will subsidize the sick.

That's basically how insurance works in some sense, because it spreads the costs of people who are sick to people who are not. Now, however, insurance companies can hone in on riskier groups and charge them a higher premium. As I understand it, this bill will prohibit that.

One ways to figure out a person's potential need for health care is by age. In other words, insurance companies could charge the elderly more, and the young less. By prohibiting that risk calculation, this bill transfer money from  the young (who are now required to buy coverage) to the elderly. The young are relatively poor, while the elderly are relatively rich. So the bill takes money from the poor and gives it to the rich.

UPDATE: Here is an article making this same point that "community rating" means the healthy will subsidize the unhealthy.

Monday, December 21, 2009

Civil Obedience II

The last post on civil disobedience didn't get much response, but I keep thinking about the topic, and I can't figure out the answer. I'm trying find a theory for when it is okay to violate incorrect laws. Obviously this is a continuum problem. On the one hand, we have to obey some laws we believe are imprudent. If we didn't, the result would be anarchy. On the other hand, certainly some truly oppressive laws should be violated.

Here are the proposed answers so far.

We can/should violate laws:
1. When you are in a position to change the law through your disobedience.
2. Only in extreme circumstances
3. When the law is unjust
4. When the law violates inalienable rights
5. When the law prohibits exercising freedom of conscience
6. Something else?

The problem here is it's results driven. Can you realistically know whether your actions will have the desired affect before breaking the law? Supposing Shadrack, Meshack and Abedego would not have changed the law by refusing to worship the idol of Nebuchadnezzar II, should they have worshiped the idol? I think the answer must be no.

I agree that we should only disobey the laws in extreme circumstances. I just don't know that this test gives us much guidance to identify which circumstances warrant disregarding the law.

This is the Martin Luther King Jr. argument. I think all sorts of well intentioned laws are "unjust" under his definition of "degrading human personality" and would be continually violating laws if I subscribed to this argument. Also, is the constitution unjust before the civil rights amendments, back when slaves and women could not vote?

This is question begging. What are inalienable rights? Again maybe, but how do we recognize these rights.

This may be close, but I fear that freedom of conscience may not be broad enough to justify all the circumstances were we think civil disobedience was justified. It works for the Shadrack example. Does it justify the american revolution? Maybe. What about the civil disobedience in the civil rights movement? eh, probably not. I'm currently leaning toward this one.

Other suggestions?

Sunday, December 20, 2009


JB's comment had me laughing out loud.

My theory of comments: all comments fit into these basic categories:
1. pedantic comments
2. The holier than thou comment
3. The troll comment
4. The overly sincere comment
5. the snarky comment
6. the absurd comment
7. the joke comment
8. the praise comment
9. the insightful comment

Thursday, December 10, 2009

Civil Obedience

Do you believe in following the law, regardless of how wrong it is? Everyone in church Sunday seemed to agree that you should. One lady member went as far as to say she would send her sons off to war for Nazi Germany, had she been German at that time.
We believe in being asubject to bkings, presidents, rulers, and magistrates, in cobeying, honoring, and sustaining the dlaw. Link.
 and then there is this section:
 21 Let no man break the alaws of the land, for he that keepeth the laws of God hath no need to break the laws of the land.
There are no caveats in these scriptures, but certainly we don't always believe in following every law right? Then I remembered this section in Doctrine and Covenants:
We believe that all men are bound to asustain and uphold the respective bgovernments in which they reside, while protected in their inherent and inalienable rights by the laws of such governments; and that sedition and crebellion are unbecoming every citizen thus protected, and should be punished accordingly; and that all governments have a right to enact such laws as in their own judgments are best calculated to secure the public interest; at the same time, however, holding sacred the freedom of conscience. Link.
Now, this scripture doesn't directly say that men are free to rebel against government when the government does not protect their inherent rights, but isn't that what it implies? I think so. However, if I remember the commentary to these verses in the orange Doctrine and Covenants study guide correctly, it essentially says that members are required to uphold the government, no exceptions. If you have that commentary, I would appreciate you posting the section I am thinking about.

So I think you can commit civil disobedience if the government does not protect your "inherent and inalienable rights." But what are those rights? The only one identified here is freedom of conscience.


What I'm looking for is some sort of guiding principles that helps explain when breaking laws is appropriate. Here's one such principle from Martin Luther King Jr.'s letter from Birmingham Jail (which I think is flawed in some respects):

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."
Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I it" relationship for an "I thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.
Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?
Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.
I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.
Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.
We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws.

Tuesday, December 1, 2009

Lost in the Public Woods

Conventional wisdom says that what happens on the streets adjacent to Tiger Wood's house stays in Tiger Wood's house. That is, whether Tiger crashed his car and his wife heroically tried to pull him out of the back window of his SUV (instead of the windshield, driver's side or passenger side windows or doors) to save him or she was actually trying to knock his head off with a golf club because he had an affair is none of our business.

But I think it is our business. It's our Nike, Buick, Gillette, General Mills business. Sort of.

Tiger has been good about not thinking that, because he is really good at golf,  he is also really good at politics, and I appreciate that. Still, he, like most great sports athletes, has profited, not from his golf winnings as much as his endorsements. He's traded on his fame, and it made him a lot of money. I don't really think it's fair for him or for any other celebrity to use the public's interest in their lives and personalities to make money when it's convenient, only to later argue that the public should stay out of their private life when the public scrutiny is inconvenient.