Why I'm Not a Libertarian

In the circles where I spend most of my time, libertarianism is quite popular. Roughly put, a libertarian believes that the role of government is to promote individual liberty. Most libertarians believe that the government should facilitate people making their own decisions while providing some of the infrastructural framework as well as enforcing laws and providing defense. It, in its most basic sense, seems like it's not that bad of an option. The problem is that a libertarian government fails to accomplish anything. A libertarian government ends up being a babysitter that breaks up fights but doesn't accomplish anything in the process.

A typical conservative libertarian believes that the free market and people working by themselves will lead to the best possible country. For example, individuals should make decisions about how to fund their healthcare, how to build their houses and how to invest their money. The smaller the government, the easier it is for the individual to act and use their free agency to progress or regress as they see fit. Each man will prosper according to his ability, if you will.

Why, then, not simply go to no government at all? Well, think about a nation in anarchy and a potential contract is going to be made. I want to buy a pig from you. Since there’s no government and no currency, I’ll instead offer you a cow. That’s a great deal, so you agree and hand over the pig. I, though, realize that I have a better option than to give you the cow – I can keep it along with the pig. You have no recourse other than physical violence (which is typically the eventual result of any anarchical situation). Therefore, even the most die-hard libertarian will typically admit that there is at least a need for the government to enforce contracts so that specialization of labors can take place. After all, if you can’t buy a loaf of bread without risking bloodshed, everybody will just do things for themselves.
That leaves us with the conservative libertarian’s ideal world where people can make enforceable contracts and prosper according to their individual ability. The invisible hand will direct the market and people will succeed or fail according to the choices they make. The next problem, though, comes when an outside power decides to invade the country and take away what the individual has gained by force. The individual might rally his friends, call up the volunteer militia and try to fight the invading tanks, but ultimately will fail. When a despotic nation is able to unify its forces into a concentrated attack, there’s simply no time to organize a viable defense among the countless individuals.

Recognizing the potential for invasion, the brilliant capitalist realizes that a standing army needs to be able to counter any outside threat. Therefore, the individual corporation might start selling army insurance – you all pay a little bit and if there’s ever a problem, you’re protected. The problem is that the rational individual will recognize that it’s not worth it to pay into the insurance because as long as someone else is paying in, the end benefit will be the same. Therefore, even the staunchest libertarian will recognize that everybody should be required to help pay for the national defense. Then, it’s turned over to the government, too.

The same basic pattern can be followed for many things that the United States government currently oversees because the government can do a better, more efficient job than any individual or even any corporation. A few simple examples are infrastructure (the interstates, railroads and even the telegraph), national parks, police enforcement, securities regulations and even biomedical research (through the NIH). The simple truth is that whenever a large scale enterprise is undertaken that will affect (benefit) the entire country, there simply isn’t an individual who can implement that sort of undertaking without the support of the nation. Until we have a nation with a collective consciousness, we are left with our government that represents our collective goals. The question with election shouldn’t be whether an individual is going to minimize government or increase its power, it should be a discussion of which improvements need to be made and how.

The problem with libertarians is that they arbitrarily draw a line and say, “There’s enough government, let us live how we are.” The libertarian believes that certain things, if they can’t be done by the individual, shouldn’t be done. Whether that leaves living as the Amish or like Jefferson’s “gentlemen farmers” is unclear, but the result is inevitable – certain types of progress will never be done. The libertarian focuses on the means of accomplishment and glorifies the worker over the work being done. Thus, even if government could do something more effectively, the libertarian believes that the means are superior if the same result comes through private hands. Rather than focus on the obvious similarities to Bolshevik proletariat (remember how that turned out?), I’ll make an economic argument that the government should take the lead in any necessary improvements that it can do more efficiently than an individual person or corporation. Since the government has the ability to encourage (through economic incentives or threat of criminal prosecution) people to act, it has the ability to make wholesale change much more effectively than any individual.

I believe that the role of the government is to lead. I don't think that it should compel (though it should compel in some, few things like compelling an individual to not murder) but it should encourage certain behaviors and even incentivize certain actions. While the government shouldn't say "you can't choose to get fat under penalty of death", taxing fat people or fat-causing foods is what government should be doing after it decides that being fat is not ideal. Governments need to take direction and the present form of the US government is not good at taking direction. It is built to last - and it's lasted for well over 200 years. Its problem is that doesn't adapt. The setup of Congress is such that it is forced to centrism (aka, the status quo). When Congress actually passes some bill or effects a change, it's national news for months. When the President says something firm and somehow backs it up, school kids will study it forever (think the Truman Doctrine). Meanwhile, the Supreme Court took a stand once (Brown v. Board of Education) and it's still hailed as a mighty achievement. The problem with this current government is that leading is not common nor is it easy to do. A powerful government gives the people direction and then, if the people don't like that direction, they can replace the government. The inability to adapt or to quickly change the government means that we're stuck with what we have and no major directional changes will happen within a decade (usually longer).

I'm not a libertarian because I believe that a government gives direction, encourages certain action and then is directly accountable to the people (not to warring parties or political machines). Libertarian governments are fine for a country that is happy with how it is, but if a country ever wants to progress and improve, it needs direction. You don't find that direction from a libertarian government.

I think the big difference between my understanding of the role of government and a libertarian view of government boils down to my belief that government is simply a group of individuals chosen to give the country direction. Government isn’t an amorphous body or a club of narcissistic power-mongers, it’s the individuals we individually choose to further our collective goals. When government can do something beneficial for the nation more efficiently or effectively than private individuals, it should. The world needs strong leaders who make decisions and then are held accountable for those decisions. The libertarian ideal leaves the nation in a state of stagnant mediocrity and glorifies our present state as ideal. I can’t embrace a form of government that focuses on keeping us as we are whether than helping us realize what we may become.

The Problem With Liberal Libertarians

I was reading this article about a positive change a judge enacted to help stop recidivism among prostitutes and happened to see this comment,

the only reason there are victims is because of paternalistic puritanical government interference that makes it a crime in the first place
say, how is that war on drugs working out?

Being in a somewhat feisty mood and having a little bit of time, I decided to reply:

Wonderful, another inane comment from a liberal libertarian (as opposed to the conservative libertarian comments which, though from the other side of the aisle, are just as useless). Let me paraphrase your political ideology: government exists to settle disputes and keep the peace, anything that people want to do with their own selves, as long as they don't DIRECTLY injure another, is perfectly fine.

Let's see, we take a little bit of Nietzsche, a touch of Marx, a few selected writings of Jefferson (it is America, right?) and mix it all together under the jurisprudence of Justice Brennan and we end up with the modern liberal libertarian (hail individual liberties!). As long as anybody agrees with what you say, they're open minded and their opinions matter, but if somebody disagrees, they are a puritanical paternalist who is infringing on your humanity (aka "personal freedom").

Let's, though, put away the individual anarchy (aka individual rights) drivel and instead focus on the positive aspects of this story. Judge Herbert saw a problem and noted that current remedies weren't working. Then, as an elected official took a stance and started an innovative program that is showing positive outcomes and a lowering of costs. That's why we have a government - to lead the country, inspire people to make good decisions and give them direction in reaching worthy goals. If you don't like the goals the leaders are striving for, replace them at the ballot box.

An easy solution to lower crime is to make fewer things illegal (murder, anyone?), but the way to effect positive change is to actually take a stand and encourage people to change themselves while providing the appropriate tools. In this case, the government is providing those tools because the scale is such that a typical person can't help a drug addict overcome an addiction and resources need to be pooled and directed. If you want fewer rules (and thus lower "crime"), I hear Somalia is a great destination, but if you want to live in a society where personal responsibility is encouraged and individual improvement is facilitated, please applaud the efforts taken by Judge Herbert rather than self-righteously deriding his work in helping bring about positive change in these women's lives.

One Size Doesn't Fit All

If you take a look at our highways, you see countless varieties of vehicles cruising around. Whether you're on a motorcycle or driving an 18-wheeler, you're able to get to where you're going, albeit with different costs, degrees of comfort and levels of safety.
Meanwhile, if you look at our housing system, you'll see that some people get shelter in downtown apartments convenient to the glitz of the big city and some live in suburban sprawl far away from the noisy traffic. Others live in massive gated homes with hired help. All of the homes keep people dry at night but some are more comfortable, some are larger and some are closer to the action.
Americans are different and want choices to live their lives in their own way. Whether it's deciding what to drive, where to work or what to eat, they do things how they want to. Healthcare should be no different.
Let's say that three people work at comparable jobs. Andy might love to travel so he'll live in an apartment for 50 weeks out of the year and eat cheerios and hot dogs so that he can live like a king for two weeks in Europe. Beth, though, might eat out three times a week and hit the hottest clubs on the weekend but never travel outside her city. Meanwhile, Chad could put his money in the stock market and retire ten years before Andy or Beth. All three recognize that they have finite resources and they allocate them in different ways. In other words: to each, their own.
Healthcare, though, seems to be an enigma. Politicians portray it in binary - either you have it or you don't. In practice, that's about what it is. Sure, you have some choice about what you're getting, but you have two general options: either get cared for or get nothing. There's no "lite" version and no "limited edition" to choose from. It's strange that Americans who can choose between six different qualities of ketchup don't get the choice between different qualities of anesthesia. Either you're in and you get the best of the best or you're out and you get nothing. Part of this comes from the modern approach to medicine with "standards of care" and "best practices" and some of it comes from the insurance approach to mandated risk sharing.
If you want to get from point A to point B on a highway, you get a vehicle and go. If you want comfort you might choose a Lexus or if price is more of a concern you might choose a Focus. Of course, you also might choose a noisy Harley or a Corvette with rock hard suspension. The latter two won't provide you the comfort of a the former two, but they will provide other things. In healthcare, though, you typically get just a few options such as surgery or pills. Which surgery is decided by your doctor and the way tha it is performed is perscribed by your hosptial. You can't elect to use the same anesthesia methods used in 2003 (out of style) or the surgery bed from 1999 (out dated). If you get the surgery, you're getting top-of-the-line, no-expense-spared surgery - there's no "best care circa 1995 (at half the cost)" option. If you get the pills, you might be able to choose between brand name or generic, but that's about the only choice in quality you get in healthcare. Thanks to the fear of lawsuites constantly changing standards of care and the notion that the best care is the only option, ignoring expense, you actually have very few options with your health. You get the best, or you don't get anything.
The insurance companies aren't helping. Their goal isn't to give you the lowest price, it's to offer a competitive price compared to other companies. There's no Wal-Mart among them. The insurance companies are all about risk sharing and if people are willing to pay their prices to share risk, they have no reason to lower them. Also, since they are risk sharing, they don't care what the bottom line is, as long as the top line is above it. There's no discount insurance agency competing with the top-end ones, so you either pay the big prices or go without.

Gradations of Care

The answer to this is that medicine needs to be like every other aspect of life. There needs to be gradations of care available with gradations of price. People need to be able to purchase what they need at the price they can afford. Some people can't afford to shop at Dolce & Gabanna, but they can afford to buy their clothes at Target, so while they might not reach the pinnacle of fashion in Milan, they do get by. Unfortunately, we currently live in a world where all of our healthcare is provided by the equivalent of Via Montenapoleone.
Providing gradations of care is easier than you think and the system is already partially in place. Just as buying a premade suit and altering it slightly costs a fraction of the price of getting a custom-made suit, we could start by making mostly-premade healthcare. We could buy our prenatals with our tylenol and our flushots with our throat lozenges and administer them to ourselves. We could train technicians that specialize in just one or two surgeries and then are overseen by doctors. We could place healthcare centers staffed by nurses, physician's assistants or nurse practicioners in Wal-Mart and Kroger. We could consult doctors and nurses via webcam. If I can print my pictures in one hour, why can't a phlebotomist draw my blood as I walk into Costco and tell me my potassium and sodium levels as I leave? Heaven forbid I get an MRI taken by some technicians in a store in a strip mall and have the results read by a remote doctor (who could be anywhere in the world) at a fraction of the price of an in-hospital imaging lab. If you want the head of surgery to sew up your finger, you should be able to and you should have to pay for it. But, if you're okay with a nurse giving you a couple of stitches, you should be able to choose that and, thus, choose to pay less.
Do fewer accidents happen and better results occur if you follow extensive protocol with highly-trained staff? Probably. It's also safer to drive a Suburban than an Accord. The safety, though, just isn't worth the higher up-front costs, higher gas costs and aggravation at never fitting into a parking spot for most people. Give me shorter lines, lower prices and almost-as-good care any day of the week. I bet a lot of other people would choose it too.

Solutions to Medical Malpractice Costs in America

The American approach to medical malpractice is odd at best. The general concept is that if a doctor makes a mistake, that doctor is then responsible for any harm that comes to the patient. The actual implementation of the general concept, though, is not so simple.

Let's suppose that Dr. Jane Love is a general surgeon and John Smith is referred to her after he is diagnosed with appendicitis. Mr. Smith agrees to undergo an appendectomy and understands that there are certain risks involved but he also understands the necessity of having his appendix removed. Mr. Smith undergoes the procedure and develops an infection at the site of the surgery. Following two weeks in the hospital, he recovers and then goes to talk to his attorney, Marc Nelson.

For arguments sake, let's say that there are some serious questions about whether or not Dr. Love did everything possible to prevent an infection. Dr. Love did a very good job with the procedure, but it is possible that she could have done something more. There is also evidence that the infection would have resulted no matter what she did. Nobody knows if Dr. Love could have prevented the infection but it is obvious that Mr. Smith suffered greatly, accrued extensive hospital bills and missed considerable amounts of work.

At this point the American malpractice system becomes very convoluted for a number of reasons. I'll just address a few of them:

1. Mr. Nelson could refuse to represent Mr. Smith and (assuming other lawyers do the same), he really can't sue Dr. Love. Whether or not malpractice was performed will not be decided unless a lawyer can be convinced to take up the case.
2. Since Dr. Love followed procedure, she is not under threat of losing her license, she is only under the threat of monetary damages. In this case, "justice" is only about who pays what to whom and who covers the cost of the undesired result.
3. Dr. Love doesn't believe she did anything wrong and she did follow hospital procedure. Regardless of her actions, she will be forced to hire an attorney if Mr. Nelson takes the case, even if it never even progresses to court. She is carrying the entire "risk" of the operation until Mr. Smith drops his claim (through a verdict, settlement or because he doubts he will win).

The major problems arise because it is very difficult to determine fault and causality in malpractice cases. There is rarely a clear-cut line where you can state that because person A did X, person B suffered Y (such has removing the wrong leg). Often, cases simply boil down to a situation where person A expected result X and ended up with result Y. When Y is a bad result, person A expects recompense. Is it justice to assign blame when no obvious blame exists? The American malpractice system operates on the basis that the answer is "yes".

Problems

The first problem with meting out justice in this fashion starts with the hurdles to have your day in court. Since malpractice attorneys generally operate under a contingency-fee basis (where they only get paid if they win - usually a percentage of the total award), they will only take cases that will pay enough to justify their time. Since litigation is expensive (court costs, depositions, travel, expert witnesses, staff, etc.), attorneys first make a business decision about a case before they consider the merits. Is it better to spend $20,000 litigating a case where you have a 25% chance at winning $1 million or to spend that same $20k on a case where you have a 95% chance of winning $30,000? Attorneys will only take cases that will make a return, and they don't really care who wins as long as they win enough to stay in business. An attorney can stay in business if they win one case a year and make $1million on it - losing another 12 wouldn't matter and each of those clients would get absolutely nothing. An individual, of course, could directly pay for litigation out of pocket, but few people have thousands of dollars available to take a case to court and there's no cheaper way to litigate. It would seem odd to have to pay a policeman a $3000 retainer (direct payment option) or else prove to him that you can tell him where the robber is (contingency-fee with a good chance of winning) before he investigates a robbery, but in malpractice law, that's the situation that exists. The entry to the case is based on the whims of the attorneys.


The next problem comes from the idea that justice is comparable to dollars. No matter what happens, Mr. Smith can't undo his time in the hospital, he can only be recompensed for his losses. Dollar values can recompense lost wages and hospital fees, but it is a bad way of compensating for pain and suffering since it doesn't recompense, it only replaces. The idea of monetary damages for suffering boils down to the idea that "because something bad happened to me, somebody should pay me" - it's an untenable position since bad things happen all the time. The idea that "my ex-girlfriend broke my heart and so now I'm going to sue her for all the emotional turmoil I went through" makes no more sense than trying to quantify how much pain is worth in dollar figures. If the ex-girlfriend kept the boyfriend’s car, getting it back is justified, but paying for emotions isn't. Only in the realm of medical malpractice do courts seriously try to repair a broken heart (or, for that matter, a broken leg) with a dollar bill.

The final problem I want to discuss is that once litigation has begun, it carries disparate risks on the opposing sides. In our example, once Mr. Nelson has taken the case, Mr. Smith has no reason not to continue with it since he has no risk of losing and only a risk of gain (Mr. Nelson is operating on a contingency fee basis and is paying all the litigation costs and will only get paid if Mr. Smith does). Dr. Love, though, is forced into a situation where she is only carrying risk. Once Mr. Nelson begins a suit, Dr. Love must hire an attorney to defend her. If the case goes nowhere, she is out the money she paid the attorney. If she loses, she pays her attorney and any damages awarded to Mr. Smith. Additionally, Dr. Love's lawyer has no incentive settle the case early since he will be paid as long as it goes on, often leading to increased litigation costs. Justice, then, cannot be had for Dr. Love, only for Mr. Smith - once he gets a lawyer to take his case (and has jumped the entry barrier) he cannot really lose, he can only gain. No matter what Dr. Love did, even if she was the best doctor ever and did the best job ever, she is going to lose - the only question is to what degree.


Solutions

There are some ways to get around these problems.

To start, we must identify the point of the civil courts - to make whole. If a physician is negligent or inflicts intentional harm, the physician should be punished by losing privileges or licensure from a professional committee or even being punished by the criminal justice system. This should be initiated and governed by the state or licensing committee and not depend on an injured party bringing suit and should not involve any benefit for the injured party. The state or professional committes can use expert panels who can decide whether a physicians actions were correct, honest mistakes or true mistakes that need to be punished. Conversely, the civil side of the law should not be involved in punishment but in restitution and making the injured party whole. Medical malpractice law currently attempts to both benefit the injured and punish the injurer and fails at adequately accomplishing either.


Next, we must continue with efforts to cap pain and suffering. There is no good way to quantify pain and suffering and money does not make up for it. Making someone whole by returning what they lost is appropriate, but paying a speculative amount serves no person other than to punish the offender.

Finally, we must remove the cost of litigation and inherent incentives and disincentives to pursue specific cases. The way to do this would be to eliminate the need to place all the risk on only one party. Why should physicians carry all the risk? While they certainly are involved with healthcare, they definitely aren't the only ones who benefit from their efforts. The risk pool should be shared more broadly and then recovering from that fund should be easier. By eliminating the litigation middle-man, millions of dollars can be saved and injured parties can be compensated much more quickly. I have two, competing suggestions on how to do that:

1. Create an additional insurance that patients can choose to buy (or have their insurance buy) before a specific operation or even just for life in general that is called "bad result insurance" where they will be automatically given money if something bad happens to them. If doctors can insure against future mistakes (medical malpractice insurance), why can’t patients simply elect to insurance against bad results? It would be very simple to pay an extra $100 for a wisdom tooth removal with the understanding that if dry socket resulted any future care would be covered plus you would get an automatic one-time payment of $1000 for pain and discomfort. The types of things that could be insured against are innumerable and the market would dictate who bought what coverage and how much it cost. In this case, risk sharing would be pool everyone who decided to buy insurance.
2. A state-funded entity comparable to workers compensation could be formed where, in the result of a bad result during a medical procedure, a patients losses would be automatically covered. Payments into the fund would automatically be charged for every procedure performed (with rates varying by the risk of complication) and as a general tax on healthcare expenditures. This would result in a risk sharing pool that includes everyone who uses healthcare.

Conclusion

Malpractice expenses can be curbed, but we need to recognize the problems and fix them from the base. Current efforts focus on limiting how much is paid out in damages, but the underlying problem isn’t the amount of the damages physicians have to pay, it’s the process by which those amounts are arrived at. We need to reevaluate our malpractice system and individually focus on the aspects of punishment and restitution. By dividing the two and taking the focus off the inefficient process of litigation we can truly lower the costs of medical malpractice while still making whole the injured and punishing the offender. When we leave all aspects of restitution and punishment in the hands of for-profit attorneys we arrive in the exact position we are in right now.