In Re: Eddie Richardson, Penn State Dickinson School of Law, Class of 2009.

The State College contingent of the Penn State Dickinson School of Law, Class of 2009, showed up on campus in August of 2006- a new thing under the sun. We will be forever bound together, however tenuously as the years march on, by our membership in that class. For now, though, we are tightly bound together by the sad and unexpected news that our classmate and colleague, Eddie Richardson, has died. Two days shy of his twenty seventh birthday.

A light, as they say, has gone out in the world. Yet we may expect that the sky will be a little brighter from now on. Eddie, a luminescent figure in life, has ascended. Perhaps from his new and sky-bound home he will continue to do for us now what he did for us in life: shine his light upon us, and thereby, in the words of that Spanish poem, "...hacer mas claro y luminoso el dia." But now, from up there, he will reach us all at once and always, rather than, as he did in life, shine upon us separately and episodically, through his personal interactions with us.

Many members of our class knew Eddie better than I did. They no doubt can offer meaningful testimony to his life, and they are certainly invited and encouraged to do so here. But I think it says something very positive about Eddie that someone like me, who knew him, but not especially well, remembers him so fondly. He looms large in my memories of law school, and principally for this reason: He was the first person I met at the first orientation event that was held for our class, back in August of 2006. As an older student, and having just left professional life behind, I was nervous walking into the room that day; nervous about fitting in, about being accepted by my new classmates. It was a sort of discomfort I had not felt in years, back to the day I walked, as a stranger in a strange land, into the cafeteria of my new high school. I was all grown-up in 2006 when I walked into the law school orientation event, but in my mind I was right back in my high school cafeteria, embarrassingly desperate for the consolation of a friendly face.

And then there was Eddie. He was sitting at the table I arrived to- maybe he was the reason I arrived at that particular table- already popular with the people there and smiling genuinely back at me. He put me at ease. My nervousness was gone, never to return. That is the sort of kindness a person doesn't forget in life; I haven't and won't. Even if, in Eddie's case, it wasn't so much a kindness done to me as it was an expression of who he was; which was and remains a kindness done to everyone he knew.

I sat next to Eddie in our Administrative Law class during our last semester of law school. He regularly said the best things, most of which betrayed a rare wit and a high intelligence. One of those best things, which however did not tax either his wit or intelligence to conjure, was an occasional and appropriate, "This sucks." And he pronounced the word "sucks" in such a way that anyone unfamiliar with the word or its connotations would nevertheless have known what he meant by it; had he been made to write out his pronunciation, between the 's' and the 'cks' would have been about fourteen pregnant u's.

But then he would smile and go on. Which- in law school and in life- is the thing to do. It's the thing to do not because it's a grand invention, but because it stands well among a limited troupe of truly unpalatable alternatives.

Farewell, gentle-souled Eddie. Shine on down.

On S'engage; Et Puis, On Voit

That was a favorite saying of Napoleon’s. Later, Lenin adopted it as his own. Rendered in English it reads, “You commit yourself; and then, you see. It is a romantic notion, fitting for men of action. And it is revealing of each man’s monomania that it never gave them pause that they were committing everyone else.

Now the United States is on the verge of committing itself to nationalized health care, the results of which, should we go through with it . . . we will see. The debate on the business is just getting started, though tragicomically, the enabling legislation is well-advanced. The bumper sticker opposition to the idea writ large is that health care will be rationed. No one even casually acquainted with economics, and so with the notion that economics is the study of alternative uses of scarce resources, would find that news. Steven Singer could not abide the rationing chorus, and so wrote this pointing out that rationing is currently and of course afoot. Whatever his Logan’s Run enthusiasms (I have long thought that Singer’s best eventual exit will be to feed himself to hungry but otherwise healthy and sound young people), Singer is a serious intellectual force. He does a service to the extent he buries the ‘no because health care will be rationed’ opposition to government controlled heath care. The issue, of course, is who, or what, will do the rationing going forward.

Singer almost apologizes for the imperfections of his solution (grey souls in grey suits counting life years and handing out money to the potentially longer lived, all else being equal), but justifies it as the best we can do. He cites Churchill’s defense of democracy as ‘the worst possible form of government except for all the others’ as an analogous rallying cry for his proposal. Singer thinks Americans will accept such centralized rationing provided they can opt for supplementary private insurance and that the cost of care rationed the current way (e.g. by what you can afford) is brought home to us all. This ability to buy supplementary insurance is a big deal. An even bigger deal is the ability to simply pay through the nose for something if it comes to that. As Thomas Sowell has pointed out, the integrity of a government controlled system may depend on making some services and goods unavailable, regardless of an individual’s ability to pay. And don’t think such restrictions can’t be imposed. Again, as Sowell has pointed out, the FDA, although for other reasons, currently prevents us, even those of us with a very different risk profile owing to advanced disease, from buying drugs deemed safe enough for Europeans. As for Americans understanding the true cost of their health care, it seems the higher unemployment rate, coupled with our nation’s informal system of employer provided health care, has brought that cost home to many Americans who until recently were blissfully unaware.

There are two principal concerns I have with government run health care, exclusive of cost (the CBO covered that). First, Singer mentions the high costs of prescription drugs in this country as a source of rationing. He points to the reasonable costs of these drugs in other countries with nationalized systems, which will only pay a certain price for the drugs. The idea is that a nationalized system will bargain for lower-priced drugs, producing savings. But it seems clear that the cost of the development of the drugs will not go down by the act of a nationalized system demanding sale at a certain price. Rather, it seems currently that the American market is paying the loin’s share of the tab, which renders tolerable the risk that the R&D investment into new drugs will be profitable. If the United States institutes universal price controls on drugs (in addition to what goes on in the current government-run health care programs) we may well see R&D by major pharmaceutical companies go down. And we are likely to see more incremental progress via copy-cat drugs that simply tweak side effects, and less true innovation. Note that we see this even now because any industry will seek to minimize its risk and maximize its profit (see, e.g., the practice in both the publishing and motion picture industries to stay with winners, be it Doctor Phil’s fortieth book or Spiderman 20). Government-imposed (read lower) profit margins would surely make the pharmaceutical industry more risk adverse and less innovative.

Second, I am not confident that official rationing, once started, can be acceptably cabined. Singer goes into some detail in his essay about counting life years as the key to his rationing regime. That’s the practice of judging that this teenager should get the instant procedure or drug and that this senior citizen should not. The rationale is that the teenager will continue to live for many decades, whereas the senior…well, the end is nigh. But in practice, it seems unlikely that the teenager would be much featured in the analysis conducted by the grey suits. In practice it seems that what would be before the grey suit would be the senior and his need. And the grey suit would say no; not no as between the senior and a similarly situated teenager, but just plain no. That is to say, because young people are not often in need of expensive medical care, and in any case because identical needs by opposing class members will seldom be coincident in time, the rationing conducted would be in the form of a denial of a single need, not as between a need and a greater need. Or, put another way, the greater need referenced would be that hoary need that has been the benevolent altar baptized by so much human misery down the years. And it is insatiable.

Regarding the way forward, I find myself in agreement with Charles Krauthammer. He advocates radical tort reform and a stark move away from the employer-provided health insurance paradigm. But however you come down on the health care issue, it seems folks of good faith (i.e. not those ideologues who view government run health care as a tool for realigning the American people into dependency on the government, and so are for it regardless of content; nor again those who seem to be using the extant debate as an excuse to riot) can agree at least to this: that the legislators actually read and understand whatever final thing they end up voting on. They will be, after all, one way or the other, committing all of us. They should be charged with a better explanation than “we’ll see” when asked what they have done.

What Hath Law School Wrought?

I am taking Professional Responsibility this semester. This week in class we talked about the gulf that obtains between lawyers and non-lawyers in society. More than that, there is alleged to be a gulf of similar span separating lawyers as they are now from who they were when they first walked into law school. Specifically, law school is believed in much of the relevant literature to render those subject to it less reactionary and more conservative, in the non-political sense of that word.

It is not surprising that law school should change a person. As students we spend three years reading cases that lay out the opposing sides' arguments. We read dissents from majority opinions. We read cases where an appellate court reverses a trial court or where a state supreme court reverses the appellate court. Of course we read cases of the Supreme Court of the United States, which does what it will, and about which it is said that it is not final because it is right, but right because it is final. And too we read of cases with similar facts decided differently in different jurisdictions. In short, we become accustomed to needing to see a thing all around before coming to judgment on its nature. That is not what the mass of society is in the habit of doing.

Hardly surprising then, that when released back into society newly minted lawyers should have some trouble relating to non-lawyers. And if it were possible to introduce them to their former selves, the trouble would be no less. The joke told at the orientation for my class was that three years later we would know enough to answer most questions with, "It depends." No self- respecting reactionary, nor even a host of a cable television talk show (which might be the same thing), would be caught saying something like that.

For me personally, one of the worst things to happen in law school was my realization that the woman in the McDonald's hot-coffee-in-the-lap case had a point. I think before long every law student, present or past, will have this experience: someone, family or friend, will pull out a news story about some facially absurd law suit. Then everyone present will denounce the suit. Then they come to you. Wanting to commiserate yet constrained by self respect, you say something detached like, "That's something." But the others find this judgment unsatisfying and press you for a more strident condemnation of the thing. At length you are obligated to say something even less satisfying to them, but which warms your innards; something like, "Well, the relevant standard..." And then the outrage of the group moves from the lawsuit to your profession, and, the undertaking being in jest or not, you are distanced from those folks to some degree.

Such is the burden of a life in the law, I suppose. Speaking for myself, while I am nostalgic for the guy who could enjoy visceral outrage at the McDonald's case, I cannot wish to lose my hard-gained understanding (like how that dude in the Matrix can't go back to the cocoon). Happily, I still don't think the McDonalds woman should have recovered; though it would take me some time, and possibly some footnotes, to explain why.

Something to Consider when Drafting New Year's Resolutions

Andrew Osborn writes in yesterday's Wall Street Journal about Professor Igor Panarin, a Russian academic and former KGB man who we have cause to hope is not a modern-day Cassandra.

Professor Panarin is possessed of a theory that the United States ". . . will fall apart in 2010" (see map of our multi-sundered union via link to WSJ above). Why? Because, ". . . mass immigration, economic decline, and moral degradation will trigger a civil war . . ." Oh no! When does all this start? Next fall. Perhaps the professor has cable and has been exposed to Lou Dobbs and Fox News.

In truth, though, the professor has been pitching this idea since 1998. Recently he has been given the Obama treatment by Russian state media (which at least has the excuse of being state media). The popularity in Russia of the specter of American decline and the fact that the end is nigh combine to render the professor and his prediction presently conspicuous.

If 2009 passes without the rumblings of civil war, and if 2010 passes without the actual thing, then Professor Panarin will have some explaining to do. Perhaps in that event he can join together with Oral Roberts and those folks in the '70's who predicted a new ice age (some of whom, without acknowledging their past certitude, are now putting spoons to highchairs on behalf of melting ice caps) and begin charging rich folks money to predict the future movement of the stock market.

If, however, the professor is right, the United States will break up into six pieces. Alaska is a piece unto itself, and will be subsumed into Russia (this at least answers the questions about Palin's future in the Republican Party). A piece which the professor calls "Atlantic America" is to join the European Union and so make up something very much like Orwell's Oceania. Many folks in Tennessee, Kentucky, West Virginia, and South Carolina, if told that Professor Panarin has predicted that " . . . Washington, D.C. and New York [City] . . . " will join the European Union, might ask the professor when he will get around to predicting the winner of the 2008 presidential contest. They will certainly be surprised to find out their states, as constituents of "Atlantic America," are following Sodom and Gomorrah into the European vortex.

The great north of our nation will be annexed by Canada. But here, if only most conspicuously, the professor's theory seems a stranger to reality. Brave and valiant in arms are the Canadians, but a northern state could repel a Canadian invasion by dispatching a local Boy Scout troop. And too we have in those parts an apparently endless supply of shack-dwelling and prodigiously-armed hermit loons, who will not take kindly to the invasion.

In early January of 2004, I was in Spain's capital of Madrid. My trip coincided with the annual Desfile de los Reyos Magos (a parade and party featuring the three wise men, or kings; apparently the Spanish exchange Christmas gifts, rather sensibly, on the date that the three wise men are believed to have arrived at the manger). The city had come to a standstill, and the people had crowded into the streets and the tapas and the Parque del Retiro. Passing by a side street bordering the Calle de Acala, I saw a mother standing passively by while her nino heroically relieved himself into the sewer by the sidewalk. At the time, I considered the scene a vignette that Hemmingway could have turned into something special; indicia of the visceral soul of the Spanish people or some such thing. But now, inspired by Professor Panarin, I see that what I saw was a harbinger of Spanish moral collapse and that nation's impending absorption into Andorra (bitter-sweet for the Basque region).

The image is an Advanced Spaceborn Thermal Emission and Reflection Radiometer of Madrid: NASA/GSFC/METI/ERSDAC/JAROS, and U.S./Japan ASTER Science Team

Ecomonic Downturn Results in Commoditized Exams

A high school calculus teacher, confronted with a downward revised printing budget insufficient to cover the cost of printing his class' quizzes and exams for the school year, has resorted to selling ads in the margins of the quizzes and exams.

This is an example of out of the box thinking in the face of reduced circumstances; whether edifying or regrettable I can't say. The teacher plans for the ads to be temporary; until the government, in his view, steps up and pays for education like it is supposed to. Meantime, we have only to hope this novel example does not metastasize into theme based ads matched to test subject matter; a development likely to divide folks along ideological grounds (e.g. imagine what could show up on sex ed. exams, if there are such things as sex ed. exams).

Meantime too, maybe Dickinson can use the idea to relieve tuition a bit. Of course, only folks who haven't been to law school, and so don't know about the time pressures of a law exam and the related single mindedness of the tested, might be induced to pay for such ads.