Friday, March 10, 2006

Sandra Day O'Connor warns us of what we should already know: We are seeing the embryonic formation of american dictatorship; forewarned is forearmed:

I, said O’Connor, am against judicial reforms driven by nakedly partisan reasoning. Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.

Per NPR and Keith Olberman at MSNBC, and The Raw Story.

A Kentucky proposed constitutional amendment that would allow caps on noneconomic damages as low as $250,000 failed to pass the Kentucky State Senate earlier this month. Good.
Medical malpractice caps have little effect on rates, according to a Harvard Economist who studies the issue:
[Harvard economist] Chandra particularly attacks the doctors' argument that higher malpractice payments, which can result from having no cap, directly lead to higher liability insurance rates. "The relationship between these two variables that people have argued is tight is actually very weak," he said.

No surprise here.

I've said since the 2004 primary season that what John Edwards really needed to become a truly viable presidential candidate was more foreign policy gravitas. Apparently, he thought so, too.

Thursday, March 09, 2006

I love Grand Cayman, aside from the traffic, which is becoming a real problem. The good news: I was there with my wife, for our first grown-up vacation in 4 and a half years, and I got to do 13 dives in 5 days [I'll post a trip report when I get it done]. The bad news: Glenn couldn't go, because he was doing something else, I'm not sure what....

Thanks to Nick and Patrick at Red Baron Divers for the photo, as well as the great dives!
Random thought: many people -- and especially Republicans -- are saying that Hillary Clinton is the prohibitive favorite for the Democratic presidential nomination in 2008. Ever wonder why? Could it be because the Republicans WANT to run against Hillary, because they think she would go a long way to assure a Republican victory? Consider the situation:

The Democrats are seen as being disorganized, overly radical, soft on foreign policy, terrorism, the military, unfocused, with no clear "plan," and so forth. In other words, the same old hyperbole the Repubs have been spouting since 1972, or even 1968. Why is this the message resonating in the public? Because the Republican spin-meisters are doing a really good job at delivering that message to the public, and the democratic spin-meisters seem to be AWOL [I mean, Bilbo Baggins, uh, I mean Bob Shrum, who has NEVER won a presidential, and who blew a sure thing presidential in 2004, is on Hardball representing the left? come on guys....].

Those same Repub spinners are practically slobbering to run against Hillary. She has incredibly high negatives, and that's a year before her putative campaign would begin. Because she chose to move to New York and run for the Senate there, the Repub spinners will portray her as just another northeastern liberal, regardless of her Senate record on foreign policy, which is actually quite centrist. Truth is irrelevant; perception is what matters. She will be tarred -- unfairly, or course -- by the spectre of Bill's peccadillos while in the White House, and she won't get to take any of the credit for perhaps the best substantive administration since FDR. Finally, the Repubs believe, regardless of what might be said publicly, that the country just is not ready for a woman as president, especially in these terror-ridden times. I hate to agree with Pat Buchanan on anything, but he's right when he says John McCain will destroy Hillary in a presidential campaign.

Why wouldn't the Republicans want to run against Hillary?
Tennessee litigators may be familiar with the "made whole doctrine," which provides that a private health insurance company or medical payments insurance company may not be reimbursed from the proceeds of a personal injury settlement until and unless the injured party is fully compensated. Thus, if a plaintiff has $100,000 in medical bills, but the maximum recovery is only, say, $50,000, then that plaintiff is not fully compensated, or made whole, and the health/med pay carrier has no legal subrogation interest or right of reimbursement.

One "creative" argument insurance companies came up with to try and get reimbursement was to claim that the health insurance plan was covered under the federal ERISA law, and that therefore, ERISA preempts, or trumps state law protections and provides a federal right of recovery. The U.S. Supreme Court scotched that idea, though, in 2002, with the Knudson opinion, authored by my new best friend, Justice Scalia. Read the opinion if you will, but in essence, Scalia for the Court says that there is no such reimbursement right contained within the ERISA law. I have had a few cases where citation of this case was important to defeating a health carrier's assertion of a reimbursement right. Thank goodness for fairness, equity, and Antonin Scalia.

But wait a minute! Our wonderful Congress, who has shown itself as a body more interested in protecting business and Big Insurance, is at it again. H.R. 2830, the Pension Protection Act of 2005, is going to conference committee. The House version of the bill contains ERISA amendments that would allow insurance companies to have first dibs at personal injury recoveries. If enacted per the conference report, we will find many instances where the insurance companies get reimbursed and the injured victim as a result gets little or nothing from their his or her lawsuit. Here's a fact sheet detailing reasons for opposing this change in the law, which, as usual hurts the little guy while causing a windfall for Big Insurance.
Well, I'm back, literally as well as figuratively. I got a call from a colleague, commenting that I had not posted since December. He was, unfortunately, right. I really hate it when things like work and vacations get in the way of good, solid blogging. Heh.