Silken Slippers and Hobnail Boots Surviving the Decline and Fall

by R.E. Hannay

  THE RULE OF LAW

  In this country, we assume the rule of law prevails. In reality, we do not have the rule of law, but the rule of lawyers. Our carefully crafted system of government checks and balances has been drastically changed by lawyers dominating both the judicial and legislative branches of our government as well as the upper-level executive branch.

  Why not? Lawyers are often bright, capable people. Aside from the obvious mistake of letting any one type or group of persons dominate our government, consider the ways many lawyers think and function. Lawyers tend to think and deal in form, not substance, good at picking the fly specks out of pepper. They deal in the minutiae of traps and loopholes in agreements and contracts, previous court decisions, vague or ambiguous rules, laws, ordinances and meanings, and selective, devious and faulty human memories. What is right or fair or intended is often buried in details, complexity, clever maneuvering by lawyers, and erroneous or prejudiced juries and judges. Pepper loses; fly specks win.

  With trial lawyers, there is really no right or wrong. It is a game, a contest to be fought. Lawyers represent the clients who hire them, but most could represent the opposition just as convincingly. Our legal system has been crafted by time and evolution not as a way to assure that truth and justice prevail as quickly and inexpensively as possible, but as a drawn-out, expensive, nit-picking combat. It has evolved into medieval jousting, following elaborate rules and procedures that only the anointed are privileged to know and practice. Cleverness often wins; justice often loses.

  The rule of law does not exist; the law is what some lawyer or lawyers say it is, sitting as a judge or one of a panel of judges; he is just another lawyer, but one with a big hammer. Incredibly, many judges have great authority but no accountability, appointed for life. The lawyer may be acting as an "attorney general," issuing a proclamation from on high, or he may be working as a common lawyer, clever enough to threaten or file what may be a baseless lawsuit, and win because it is too expensive or time-consuming and unpredictable a battle for the defendant to contest it. The only certain winners of lawsuits are the lawyers.

  What about juries -- don't they do the deciding in jury trials? In theory, yes; in practice, no. By controlling and limiting the introduction of witnesses, testimony and evidence, by instructing the jury in what they may and may not consider and do based on his own interpretations of the law and his personal opinions and prejudices, any judge has substantial influence or outright control of the outcome of a jury trial. In addition, prejudiced juries can be just as wrong as incompetent or prejudiced judges; as in the criminal trial of O.J. Simpson. Juries don’t have to follow the law or the instructions of the judge, but most do. Clever lawyers make statements that the judge says must be stricken from the record and that the jury is told not to consider, but they have heard the statement and by nullification they can vote any way they choose.

  The excessive number and influence of lawyers is not limited to our government. Lawyers are brought into many business discussions and negotiations simply because the legal minefields that have been sowed in this country are ubiquitous, dangerous and potentially very expensive. The incredible maze of often conflicting laws, bureaucratic rules and previous court decisions often demand expensive legal research and advice, even on simple matters. Lawyers, like bankers, tend to look for potential problems, not opportunities. They are criticized only if there are future problems, not success, and they are not rewarded for a successful venture. Their interest is not in making things happen but in avoiding possible trouble later, and often also in piling up as much billable time as possible. Relying on them to make business -- not legal -- decisions is usually a mistake.

  Japan has one-tenth the number of lawyers per capita, compared with the United States. Businessmen there make decisions and often write the agreements, using lawyers only to check the agreements for form, technical compliance, and translation into legal Pig Latin. It has been reported that bringing a lawyer into a Japanese business meeting may cause the rest of the participants to walk out.

  In much of the world, contingent legal fees are not permitted, and a losing plaintiff pays all the legal and court costs of a winning defendant. The predictable result is that those countries have a much smaller incidence of lawsuits than the U.S. We have an outrageous, expensive, slow, self-serving legal system that is bleeding the country of vitality, productivity, innovation and enterprise. We also have an irresponsible public who want to blame someone else for every real or imagined harm and problem, and of course to have someone else pay dearly for whatever allegedly happened or did not happen. People no longer slip and fall because of their own carelessness or clumsiness. Someone else must be found responsible and pay all costs involved, plus often large amounts for "pain and suffering" and punitive damages, both of which are badly in need of constraints.

  One solution to the proliferation of expensive lawsuits would be to have the opposing lawyers fight a duel.

  Now a new contaminant has been injected into the legal can of worms by a Chicago community rabble-rouser who talked himself into the White House. Obama frequently refuses to enforce laws he doesn’t like. He and his bureaucrats legislate by executive orders and regulations, including laws that Congress has refused to pass, like his Dream Act to benefit illegal aliens. Then, prior to the sequester reduction in the planned increase of spending, Obama started releasing jailed illegal immigrants and blamed it on sequestration, saying he didn't have enough money to keep them in jail. He even illegally repealed laws, such as the work or training for work requirement of the 1996 Temporary Assistance for Needy Families law. He has picked out parts of the 2010 Obamacare law for political reasons and set them aside or exempted from provisions of the law unions, congressional members and staffs, and other favored groups. The Obama administration’s flaunting the law extends to the top law enforcer in the country, Attorney General Eric Holder, who refused to prosecute Black Panther thugs who threatened voters at a 2008 polling location in Philadelphia.

  The law of the land is no longer the Constitution, its words and intent. It has become the law of lawyers, the politicians and their bureaucrats, and liberal judges who legislate without constitutional authority, in spite of all of them taking a sacred oath to preserve, protect and defend the Constitution of the United States.

  THE NEW INQUISITION OF THE BAD-NEWS MEDIA

  During the Gulf War -- Kuwait -- the media were not privy to every move the U.S. made and they created a big fuss over it, as if it were their birthright to know everything. So, during the Iraq invasion reporters were “embedded” with our military and soon became intrusive, demanding briefings and interviews with high administration and military officials, as well as full explanations of the details of actions, scares, threats, rumors, reports of friendly fire, “suspicious” illnesses and injuries, and damage to civilians.

  Military activities were openly questioned and probed. Troop deployments, strikes and plans was scrutinized. Often injuries and deaths involving our troops had to be documented and justified. Any damage to non-Baathist property or persons was discussed in detail, and apologies were given for the “accident”. Collateral damage and injury by friendly fire, inevitably part of all military combat, was not acceptable to the Monday-morning quarterbacks. Our relations with every other country involved had to be explained, actions or failure to act justified and our plans to correct perceived errors revealed. The Bush administration should have put the inquisitors where they belong, as we should in Afghanistan and elsewhere -- waiting for results.

  The intentions of the news people are understandable. They want to fill their endless hours of scheduled news broadcasts and program interruptions with exciting, informative stuff –- good news doesn’t sell -- to acquire more viewers and listeners to gain higher ratings and advertising income. One memorable bit of hysteria was the hours-long discussion of an unsubstantiated threat announced by California’s then-Governor Gray Davis of a possible bom
bing of the San Francisco-Oakland bridge, including interviews of people frightened into taking the ferry to avoid the bridge.

  The liberal television newsmongers are constantly devising new ways to intensify their endless “expert” commentaries on threats, death and destruction in Iraq, Afghanistan and elsewhere. PBS concluded every Lehrer News Hour by naming each U.S. soldier killed in Iraq -- a clever way of dramatizing what the liberals saw as our folly in invading Iraq. It may have been folly, but we were there and they should report results wherever we are involved in combat and terrorist suppression, not broadcast a serial soap opera.

  The bad-news media portrayed the more than 3,000 Americans killed in Iraq as huge losses, but they failed to report that those casualties are nothing compared with pre-television conflicts. Most reports of the number of British soldiers killed in the 1920 Iraqi revolt varied from 3,000 to 10,000. In one month in 1945, when Russia finally declared war on Japan two days after Hiroshima, 8,000 Russians and 100,000 Japanese were killed, half of them after Japan’s final surrender.

  The unfortunate result of the Inquisition’s efforts is to keep the public constantly stirred up and apprehensive, giving aid and comfort to the enemy. Imagine what the effect would have been if our 1942 invasion of Guadalcanal, New Guinea or other bloody Pacific battles had been brought hourly into every American home in living color and naming names of our dead.. With parents, wives and sweethearts clamoring to stop the slaughter, would we have given up the fight and sued the Pearl-Harbor Japanese and Hitler for peace, handing them Asia, the Pacific and Europe? American casualties in Iraq and Afghanistan are few compared with U.S. automobile, bicycle and bathtub deaths on any given day, but those are not news sensational enough to be reported.

  The media turned the Iraq and Afghanistan wars and terrorism into a vehicle to parade their left-wing ideologies. West Virginia politicians nominated PFC Jessica Lynch to receive a Medal of Honor, our nation's highest combat award. When her nomination was reviewed by Lt. General Michael DeLong he found that rather than being a hero, "emptying her weapon in heroic action" as was claimed, she was simply a passenger in a maintenance convoy that got lost, came under fire and crashed. She was hurt, was suffering from shock and loss of memory, and our troops later rescued her. General DeLong said overzealous politicians and a frenzied press corps distorted the facts. Private Lynch admitted she closed her eyes and hid her head when she found herself in a firefight, but the military dare not question whether women perform well in combat. Instead, she was celebrated as a “hero.” Lt. Colonel Allen West, who intimidated but did not harm an Iraqi while attempting to secure information to protect his troops, was considered for a court-martial, possible dishonorable discharge, forfeiture of all pensions and a prison sentence, and finally resigned his commission and ended his career under pressure.

  Napoleon Bonaparte said it: “If you start to take Vienna, take Vienna.” If we are so afraid to suffer casualties or to be criticized for causing collateral damage, friendly-fire casualties, or political disturbance that we impair our ability to take Vienna, we are foolish. Right or wrong, we are in Iraq and Afghanistan, and the bad-news media undermine our efforts. If they want us out of there, they should get out of the way and make their case. They should spare us, and the military, the TV blood bath with names of soldiers and interviews with their grieving families back home, and report results, not endless speculation and sob stories.

  War is graphic stuff. Unfortunately, children see it on television, people watch it during dinner and victims’ families witness their worst nightmares, replayed again and again. Reporters with cameramen, hungry for stories, knock on doors and shove microphones in people’s faces and ask, “How do you feel about your son being killed in Afghanistan?’ They should be asked how they would feel about a fist in their face. Should responsible journalism include pictures of Nick Berg’s head being cut off while we listen to his screams?

  HEALTH CARE AND THE “UNINSURED”

  Not long ago, everyone paid for their own medical care the same way they pay for everything else. Then came “temporary” wartime wage and price controls in 1942. Employers couldn’t raise wages to get and keep good employees, so many started paying for employees’ medical coverage as a deductible business expense. Now anyone who doesn’t have a medical-care plan is called “uninsured” and declared to be "in need of health insurance.” Insurance is always the wrong way to pay for repetitive smaller expenses. The cost of processing any claim is high. Its proper use is for catastrophe protection, with comparatively high deductibles.

  It makes no more sense for taxpayers to underwrite everyone's medical expenses than it does for them to pay everyone’s mortgage, car payments or other personal expenses. The fundamental reason our medical costs are almost twice as high as the rest of the world’s developed countries – 16 percent of our economy – is that most individuals don't pay a substantial part of their own medical costs. Someone else – the government, an insurance company, a group plan or an employer – pays the bills, so patients accept all the tests, treatments and expensive extras their doctors can get approved, and the doctors tend to order more tests and treatments than people would authorize if they were paying the bills directly or through a health savings account.

  Our tax laws encourage this situation by making medical-plan costs tax-deductible business expenses if an employer pays, but not tax-deductible if the individual pays. The predictable result is that most medical coverage is paid by employers, and employees' wages are that much less. The employee thus feels detached from his own medical costs, makes little effort to monitor and control them and most physicians do not encourage hard discussions of costs and alternatives. They tend to tell patients what should be done and, desperate for tort reform, often order expensive tests and treatments primarily to protect the doctor from possible future malpractice lawsuits.

  Using the term uninsured is one of the ways the government-controlled-medicine advocates promote their religion, effectively saying that such people have no medical care. Formerly everyone paid for his medical care, as many still choose to do. Government-controlled and administered health care was rammed through Congress by the Obama gang in 2010, unworkable, impossibly complicated and restrictive legislation that is even worse than the abortive attempt by the Clintons. In 1994 when self-appointed co-president Hillary Clinton and Slick Willie made a major effort to get a socialized medicine bill passed before the November election. Hillary attempted to rouse support by explaining that “it takes a village [the government] to raise our children, and [by the way] they should have the right to sue their parents at government expense.” Former House Speaker Dennis Hastert said about Comrade Hillary, “She felt if money goes to individuals and they have control over it, then that is money the government doesn’t have. People wouldn’t spend their money as wisely as the federal government would.”

  Public skepticism and the Clintons’ other mistakes led to a sweeping Republican election victory that silenced the debate over the Democrats’ health care proposals. Proponents of government-controlled medical care blamed the greedy insurance companies, greedy drug companies, greedy doctors and greedy employers, but didn’t mention the greedy trial lawyers and the greedy make-someone-else-pay voters. Always anxious to appease and pander to voters, Republicans soon joined the outcry to solve “the problem of 37 million ‘uninsured’ Americans” and began drafting populist something-for-nothing proposals of their own. Now the Obama gang has seized control of our medical care, and their legislation was approved by the U.S. Supreme Court with a weird kind of legal fabrication. Chief Justice Roberts called the specified fines (for failure to do as Obama’s legislation demands) a “tax”, even though Obama repeatedly said the fines are not a tax. Now it’s up to Congress to disable or repeal Obamacare, as is desired by some 70 percent of Americans, and to consider other badly needed medical reforms to replace the Democrats’ unworkable legislation, but they still control the Senate and White Hou
se so lawsuits, failure to cooperate, nullification, civil unrest and future elections will determine the fate of Obamacare. There is a strong Don’t sign and don’t pay the fine” movement under way. Gestapo chief Eric Holder and the IRS can’t fine or imprison 50 million people who refuse to dine on the Democrats’ medical can of worms. An Impeach Obama movement is also under way and many people are thinking that since he chooses to disobey laws he doesn't like, so can they.

  By delaying action or refusing to comply with the impossible requirements and complexities of Obamacare, insurance companies, HMOs, employers, states, and various groups like the Obama-loving unions are finally waking up to the disastrous provisions hidden in the 2,600 page legislation that Obama, Pelosi, Reid and the rest of the Democrats passed without studying and without a single Republican vote. Obamacare, his “great achievement”, could implode and die a death by a thousand cuts. The program is unconstitutional, it is unworkable, it is causing medical-plan costs to rise sharply and it leaves control of how and whether people receive medical treatment in the hands of a few unelected bureaucrats who are not even medical professionals. In spite of Obama’s many, many promises that costs would be lower and that people could keep their doctors and their medical plans, it appears obvious that the Administration knew that costs would rise sharply and that millions would lose their medical plans and doctors. Most of the people signing up for Obamacare are not signing up for private insurance but for Medicaid, so the medical-welfare rolls are ballooning. That may actually have been the intention of the Democrats, to expand welfare medicine and make more voters dependent on the government.

  Aside from the obvious fact that people could always obtain medical plans for themselves or pay their medical bills directly, everyone without a plan can currently get free medical care simply by going to a hospital emergency room. Congress and liberal judges have ruled that hospitals must treat anyone who comes to their emergency rooms. Not surprisingly, illegal aliens and others without medical plans routinely use and abuse this free care, paid for by other patients and the taxpayers. In some cases, the policy has forced many hospitals into bankruptcy. Between 1993 and 2003, 60 California hospitals closed because about half of their services were unpaid, with another 24 verging on closure.

  Medical costs have become very high for various reasons: new technology such as MRI’s, organ transplants, kidney dialysis, and expensive new surgical procedures; people living longer and requiring more treatment for more years; hospitals and medical groups buying or leasing expensive, under-utilized equipment and wanting to get more revenue from them -- all combine to increase treatments and costs, but now Obama is decreasing payments for Medicare and Medicaid services.

  The medical community’s focus is almost completely on curing disease and prolonging life, rather than preventing illness and not recognizing that often the expense and misery of prolonging life are not justified. With medical plans or taxpayers paying for heroic end-of-life measures, there is often little incentive to consider conservative measures. Ultimately, individuals and families need to take a substantial amount of the responsibility for their own medical decisions and bills, including expensive heroic efforts. If someone, or his family, chooses to extend his life with expensive surgery, treatments or an organ transplant and to use much or all of his accumulated assets or medical savings account, he should be free to do so, but he should not expect others to pay the costs.

  The Wall Street Journal, September 7, 2013: “This disconnect [third parties paying] has ruinous economic costs. About a quarter of Medicare’s $550 billion annual budget pays for medical treatment in the last year of life. Almost a third of Medicare patients have surgery in their last year of life, and nearly one in five in their last month of life. In their last year of life, one-third to one-half of Medicare patients spend time in an intensive care unit, where ten days of futile flailing can cost as much as $323,000. Medical overtreatment costs the U.S. health care system an estimated $158 billion to $226 billion a year.”

  Health Savings Accounts (HSA), are a valuable tool in reducing and paying for medical costs, and typically work this way: An individual, his employer or both pay a certain amount monthly into an individual HSA, which he owns. The individual pays small medical expenses directly. His major medical expenses for treatments that the individual and his doctor deem justified are charged to the HSA. If the individual incurs expenses greater than his HSA account balance, he pays that directly. Any unused funds in the account are eventually returned to the individual or his estate. Reports from companies with HSAs have been very favorable and average medical costs have been substantially lower. When the decision involves a patient’s own money, he is much more careful and willing to question doctors about proposed tests, treatments, surgeries and their costs, discussions that many doctors and medical providers try to avoid.

  Singapore has a healthier population than the U.S. and U.K., with medical expenses 3.5 percent of GDP vs. 16 percent in the U.S. Why? Health savings accounts. Opponents of HSAs call for “universal coverage,” meaning government-controlled medicine, usually proposing the same rates for everyone no matter what their medical history or risk profile. Why should a 25-year-old non-smoker pay the same rate as an 85-year-old with a history of smoking, heart problems and diabetes? Who would underwrite automobile, fire or life insurance that way? The record of universal coverage in Canada is awful: long waiting lists for tests and surgeries, 10,000 doctors leaving Canada during the 1990s, falling numbers of medical school graduates, and now it is against the law to bypass the system and pay for your own surgery , so many Canadians come to the U.S. for medical diagnosis and treatment and pay cash. A report in The Economist: “Health spending is administered by the provinces…In Ontario, the most populous province, it is set to reach 80 percent of their budget by 2030, leaving pennies for everything else.”

  Another aspect of the medical mess that deters people from paying for their own medical care and is crying for reform: unfair billing practices, charging different amounts for the same services, depending on who is paying. In a September 21, 2004 Wall Street Journal story, a 43-year-old Virginia man without medical coverage was charged $29,500 for a 21-hour hospital stay. The charge to Medicare would have been $15,000 and the charge to Medicaid, $6,000. In another typical case in Phoenix last January, a neurosurgeon billed $12,700 and Medicare paid him $1,613. The patient tried to pay him more, but by law, he could not. The hospital’s billing was similarly high and then heavily discounted by Medicare. Congress should stop the games by requiring consistent billing by each medical provider for similar services. People paying for their own care are paying a big penalty, subsidizing patients with no medical plan and illegal aliens who get free hospital care and childbirths by federal government fiat. The solution would be to require that cash customers be charged no more than 10 percent above the rate paid by Medicare for similar medical services.

  To avoid a Canadian fate there are several major factors in the medical care debate and each needs to be studied carefully, not driven through Congress in secret sessions for political reasons, as happened with Commissar Obama’s legislation. The major considerations are these:

  * How much responsibility should each individual or family have, and how can HSAs, tax incentives and other provisions help them save and pay for desired care?

  * How should we standardize insurance policies and HMO coverage, claims procedures and provide portability of coverage when people change employers? How to make insurance saleable across state lines, to increase competition? How to level the field so premiums are either tax-deductible or are not, regardless of who pays them?

  * Establish the right of plans to charge rates that reflect the individual risks involved. Healthy young people should not be paying for the high medical expenses of old people. HSAs should accumulate funds for the young people to own and use when needed. Separate insurance pools should be established for high-risk persons and premiums paid by them, not by health
y persons or the taxpayers.

  * How should we address the fact that an estimated one-third of lifetime medical costs now are spent for the last year or so of life, which is often of poor quality? HSAs leave those decisions to the people involved.

  * End the federal requirement that hospitals provide free care for illegal aliens and others. That is unconstitutional fascist governing and unconstitutional appropriation of private assets.

  * How should we reform the tort legal system to reduce frivolous, unfair and punitive litigation and the resulting high costs of malpractice insurance and medical care?