Education Policy & Charles Murray

There's a great series of opinion pieces in the Wall Street Journal from earlier this month. Three articles by Charles Murray on January 16, 17, and 18. For now at least they are online at:

http://www.opinionjournal.com/extra/?id=110009531
http://www.opinionjournal.com/extra/?id=110009535
http://www.opinionjournal.com/extra/?id=110009541

I have to start by saying I disagree with him in a few significant ways, but I give Murray a lot of credit for saying things that many are afraid to say. He is a co-author of The Bell Curve, which I remember being rather controversial (for commenting on race/ethnicity and IQ, among other things). In discussing his articles I'll mention things from them below, but this is not a summary. Read the articles. They're worth reading, even if you disagree with him.

In the first article he notes: Today's simple truth: Half of all children are below average in intelligence. We do not live in Lake Wobegon. I love the whole Lake Wobegon thing, especially since I now have two children, and of course they are above average.

What I find really funny about his quote is that he's got the math wrong. Many people fail to understand the difference between average and median. If there are 31 kids, 10 with an IQ of 150, 10 with an IQ of 120, eleven with an IQ of 98, the average IQ of the group is 121.87096774194. The median is 120. Half the kids are median or above, and half are median or below (that's what median is). But two-thirds (21 out of 31) are below average in this example.

Murray's position (also likely to be controversial) is that many people have intellectual limitations, and the education system should recognize that and adjust to it. If little Mikey has an IQ of 90, he will never understand theoretical physics, so resources should not be wasted trying to prepare him for it. Not only that, but Mikey's time should not be wasted on that either, as he will likely be frustrated and time will be taken away from teaching him things he will be able to do.

Along these lines Murray's second article talks about vocational schools. He suggests that many kids with IQs of between 100 and 115 should not go to college but would be better off spending that time getting vocational education and training. He notes a cultural attitude that vocational education is "second class". But as he brilliantly explains:

The spread of wealth at the top of American society has created an explosive increase in the demand for craftsmen. Finding a good lawyer or physician is easy. Finding a good carpenter, painter, electrician, plumber, glazier, mason--the list goes on and on--is difficult, and it is a seller's market. Journeymen craftsmen routinely make incomes in the top half of the income distribution while master craftsmen can make six figures. They have work even in a soft economy. Their jobs cannot be outsourced to India. And the craftsman's job provides wonderful intrinsic rewards that come from mastery of a challenging skill that produces tangible results. How many white-collar jobs provide nearly as much satisfaction?

I'll get to my criticism below, but Murray really nails this point about the value of vocational education and training. We have this notion in our society that everyone should go to college, and that someone who doesn't go to college is somehow a lesser person. It's crap. I've got friends who either don't have a college education or at least never talk about having one, and who work in blue-collar fields or otherwise work with their hands. Frankly having been through law school and having friends who are doctors, it seems to me that such professional schools are vocational in nature. That guy's good at working with wood and I'm good at working with words (though some would dispute that I'm good at anything). Car mechanics and surgeons really are both just fixing machines. In some cases the car problem is more complicated.

What I don't like about Murray's approach is his reliance on IQ, or on any notion that there can be one measure of intelligence or intellectual ability. Testing for these things is horrendously unreliable.

I'll digress for a moment and go off on testing. I think I have some credibility on this for a couple of reasons. First, I'm a great test-taker. My PSAT and SAT scores were very high. I did well on the GRE, fantastic on the GMAT, and nearly aced the LSAT. I never took a prep class for any of these. Second, I actually handled a testing case when I first started my own practice. I got to cross-examine a testing expert (I believe the field is called psychometrics) and learned a lot about the field.

At every level of education I have had friends who were without question as intelligent as I am, some smarter, who did not test as well as I did. When I was in Stanford Business School's PhD program, just about everyone there was way, way, way smarter than me. I'm not saying I'm a chimp, but they were head-and-shoulders above me. Wicked smart. Good Will Hunting smart. Despite this I often did better on tests.

One of the ways I was born lucky was in getting great test-taking skills. I think quick on exams. If I don't know the answer I guess and move on with no remorse, and I guess well. I have ice in my veins. I remember taking the LSAT. It was at SUNY Albany near the fountain. I got there early and relaxed, sitting by the fountain with my feet in the water. Others were huddled in the hallways cramming their LSAT review books. During breaks I would go out to the fountain. I watched college girls frolicking in bikinis. No, this is not an ad for U Albany. :-) Ahem. Anyway, others would go back to their review books during the break. I know that cramming at that time just isn't going to help. It makes you more nervous about what you don't know.

So one problem with Murray's approach is figuring out who has the appropriate intellectual ability to go to college. From what I've read about Einstein, he wouldn't have made the cut in almost any system.

Another issue is that there are various kinds of intelligence. One person may have great math skills but not be that good in verbal areas. This seems quite common for engineers. Others may be good with words but weak in math. One great thing about a broad education is that you can find your strength. Someone who does poorly in many areas may have a special aptitude, perhaps in Anthropology or the History of Film.

Finally, Murray's series reflects a particular purpose of college education, and I don't agree with it. College doesn't have to be for the purpose of qualifying for jobs in intellectual fields. We had a landlord in Moss Beach (north of Half Moon Bay) who had a degree in Classical Greek, and he was a contractor and home-builder. Just because you get the degree, it doesn't mean you have to become a philosopher professionally. College can be for the purpose of making someone well-rounded, and exposing them to intellectual concepts. Even if they don't master these concepts, the exposure may help the person as they face the challenges of citizenship in a rapidly changing world.

I strongly agree with Murray on the value of vocational education, but I would still encourage anyone who is motivated to give college the old college try. If you like working with wood or some other craft or trade, then go ahead and do that if you know it's what you want. But don't let someone else's tests or their concepts of intelligence keep you out of college if that's what you want.

Presidential campaigns suck

Ugh. I turned on the Today Show briefly this morning and they were discussing the 2008 presidential campaign. The first primary/caucus is more than a year away, and it's already starting to dominate the news. Ross Perot's giant sucking sound now reflects the media getting sucked into following around Hillary, Barack, Al, Rudy, a couple of Johns, and a few others. The media sucks up to the early favorites, while the dark horses suck up to the media.

All of this sucking takes away time from the media actually covering real news. I'm not saying Hillary's announcement shouldn't get any press at all, but showing the talking heads blab about all the picayune details (is picayune the right word?) involved in forming an exploratory committee and what that all means, and who has the inside edge in Iowa or South Carolina or wherever is just a phenomenal waste of time.

This is personal for me. I started running for Congress (NY's 21st district) in May of 2003. I deliberately limited my campaigning to one smaller area (Fulton County) to get an early sense of how it was going to go.

The local paper there, the Leader Herald, refused to cover the fact that I was campaigning there. I do understand it's not my paper, but they'd have two or three front-page articles a week about the Democratic hopefuls and their misadventures in Iowa and New Hampshire. Dennis Kucinich got substantial coverage for his efforts 1000 miles away. I was campaigned in Fulton County for three solid months. I went to events, ran ads (both on radio and 5x/week in the Leader Herald itself) and so on. There I was, running a real campaign, right there. But nothing I did got the slightest coverage. Not a single word.

So maybe that sucking sound I'm hearing is just the media itself. This is one of the reasons I watch almost no TV news. I mostly read the Wall Street Journal and the Economist. Plus the Metroland. We get the Sunday Times Union, but I often don't get to it and occasionally read a few sections. There's so much more meat in the Journal. Yes, they do mention the presidential campaign once in a while, but they seem to know that it's mostly not news yet.

Real Tort Reform

I mentioned briefly my own proposal for tort reform in my last post. Cyrus Dugger from tortdeform.com encouraged me to describe my proposal in more detail, after I mentioned I was thinking about doing so. So here we go ...

It's a simple proposal - eliminate pain and suffering damages for cases of ordinary negligence. Pain and suffering damages are sometimes referred to as "non-economic" damages. This contrasts with lost wages, medical bills, and other easily measured damages. It is also the area of damages targeted by most proponents of any kind of tort reform.

Most personal injury cases involve ordinary negligence and the damages are primarily pain and suffering. I would say this is well over 90%, and probably over 95%. In other words, this proposed reform would eliminate 90-95% of the cases. The remaining cases would involve either economic damages or a higher level of misconduct, such as gross negligence, recklessness, and intentional torts. As a note here, at least one Supreme Court decision I read suggests that "gross negligence" and recklessness are the same thing. And a dictionary definition of the former suggests so as well.

I have an underlying reason why I think this is appropriate. The ordinary negligence standard is simply too low. Consider some examples of ordinary negligence - going 1 mph over the speed limit; not coming to a complete stop at a stop sign; failing to completely clear your driveway after a winter storm - all of these are ordinary negligence. We all do these things. The vast majority of us are guilty of ordinary negligence on a daily basis, if not multiple times a day, or in the case of many drivers, pretty much all the time.

The distinction between defendants and the rest of us is a simple one - bad luck. It just so happened that the plaintiff happened to be in the wrong place when the defendant was committing a regular act of ordinary negligence. In my opinion, it's not fair to hold the unlucky defendant responsible for the pain and suffering of the plaintiff when the defendant was doing the same things the rest of us do all the time.

A recklessness or gross negligence standard would set the bar much higher. My favorite way of comparing is this. Ordinary negligence is driving 1 mph over the limit. For gross negligence, it would have to be at least 30 mph over the limit, for a jury to even be allowed to consider it. Maybe 55 in a 30 mph school zone when kids are present would be enough, but there you're adding facts to the situation. I can think of examples in medical malpractice. I watched a case where a guy kept coming into the ER with asthma attacks. They kept giving him steroids, and referring him to a pulmonologist. He didn't follow the referral, and kept coming back. Due to excessive steroid use, he suffered avascular necrosis (bone death) in his hips and needed bilateral hip replacements. He sued the ER and the ER doctors, and pretty much everyone else. The jury eventually said no, but not until after several doctors spent a couple of weeks in a courtroom when they could have been treating patients. That case would have been dismissed on the standard I propose, but then again, the attorney would never have brought it.

By contrast, I remember one case from a couple of years ago where a hospital anesthesiologist failed to notice the patient had stopped breathing -- not at gross negligence yet. Then, when a nurse noticed and tried to perform CPR, the anesthesiologist stopped her from doing so. Now that's gross negligence. Another good example would be operating while intoxicated (i.e. BAC significantly over .10). Or the Ob/Gyn who had a sexual relationship with his mentally disabled patient. That's more than just an oops.

Some will say my position is not fair to the plaintiffs. Get over it. Life isn't fair. The current system isn't fair either. Get hit by a car and you get pain and suffering damages. Get hit by lightning and you get nothing. How is that fair? I had a client who got run off the road by another car, but there was no contact between the two vehicles, and the other vehicle disappeared. Due to an obscure no-contact rule of uninsured motorist coverage, she was unable to get any compensation despite a severe wrist injury.

The benefits of this reform are substantial. Insurance premiums would drop dramatically. The liability portion of your car insurance bill would be cut by 90%, and your overall premium (including collision and comprehensive) would be cut by half or more. The No-Fault portion (for NY at least) would also drop because at least some plaintiffs continue treating to enhance their pending personal injury cases. Yes, I am cynical. There would be similar reductions in other insurance, including for homeowners and renters.

Med-mal premiums would drop, but maybe not as much. The big med-mal cases often involve the need for future treatment and/or lost income. If the plaintiff is expected to spend the next 40 years in a nursing home at $100K/year, that's $4 million right there. Still, I think med-mal premiums would drop by roughly half. While you might like to see a better approach to this, I don't think any of the current proposals for tort reform offer any solution to this, and there really isn't one. If the person will spend the next 40 years in a nursing home, someone's going to have to pay for that anyway.

The insurance savings would be a huge sum of money that could be directed to more productive areas of the economy, such as home improvement, consumer goods, starting new businesses, etc. This comes to an issue in economics -- the personal injury system just redistributes wealth from one group (people who pay insurance) to others (plaintiffs and their lawyers, and insurance companies). The redistribution is highly inefficient, and it does not create anything of value. Some will disagree and say it creates justice, but I don't agree with that argument when it comes to ordinary negligence. Nor does the system deter negligence in any significant way.

A pleasant side benefit of this reform would be a dramatic reduction in attorney advertising. The ads would become far less cost-effective. Also, our courts would be a bit less busy, and this would address a common concern about reducing the load for them. If we could get rid of the drug war while we're at it, we'd really make a dent. But I digress.

Now I know many people out there are worried about the poor lawyers. Yes, I am being sarcastic - few worry about us. And we will get by without the huge fees we get from all these cases. That's because the vast majority of lawyers don't do personal injury law, and many that do have other areas of practice already. At least around here, the bulk of personal injury cases go to a few mills that have a few lawyers and a lot of staff. There's a small army of defense lawyers out there too, but still really just a drop in the bucket. More important, most lawyers are pretty talented people. We'll find other ways to make a living. Don't forget that lots of people in the insurance industry would also lose their jobs. Again, these are talented people who will find other jobs, and these would generally be something productive for society.

Questions? Comments?

Tort reform and half-assed conservatives

I've been waiting to take a good shot at conservatives and one just came along in today's Wall Street Journal. The opinion piece is written by Philip K. Howard, founder of Common Good. His group claims to support common sense reforms of the legal system. In today's article he puts forward some lame ideas for reforming medical malpractice cases. I aim to shred his nonsense here.

Before I start on this, please note that although I am a plaintiff's personal injury lawyer, I do support significant tort reform. I'll explain my position below, but you can see a brief version on this site at my tort reform proposal page.

My first gripe is a simple and direct one. Why do all these people think medical malpractice is something special? Why should doctors and hospitals get more protection when they're sued than I get when I get sued for how I drive my car, or for how I practice law for that matter? He complains about malpractice suits causing unnecessary defensive medicine, yet there appears to be no major concern in our society about people driving too carefully or lawyers being too careful with their client's cases.

I've been working in personal injury law for over 10 years. There are far more car accident cases than malpractice cases, perhaps 100 times as many. And while the typical malpractice case may be worth more than the typical car accident case, there are plenty of million dollar car accident cases too. If malpractice cases are such a problem for the healthcare industry, then car accident cases are surely a bigger problem for the rest of us. Maybe there are a few doctors stuck with 5-figure or 6-figure insurance premiums. But they have a lot of revenue from which to pay that. Meanwhile there are plenty of people making less than $50K who are paying $2K or more for car insurance.

Howard whines about the malpractice costs at his number of $28 billion a year. I did some very quick research and found that State Farm Insurance has $60 billion a year in revenue, with Allstate at $35 billion. Add $15B for Progressive, $10B for GEICO, St. Paul/Travelers at $24B, The Hartford at $27B, and you start to get the idea. Some of that is life insurance, but the bulk of it is what's known as property/casualty insurance. One source I read put the total premiums at over $400 billion a year. So let's not pretend that there's a medical malpractice crisis.

Howard's solution involves creating a system of "expert health courts." He mentions fears of erratic jury decisions in medical malpractice cases. Why isn't this a problem in other types of cases? He would replace juries with "specially trained administrative judges." So here's another conservative dispensing with another constitutional right - here the Seventh Amendment.

I agree that juries can be erratic, but judges can be too. Howard points to bankruptcy courts, tax courts, and patent courts as examples of where special courts without juries work well. I frankly disagree about bankruptcy courts and have heard plenty of criticism about the patent system. On the plus side I know nothing about tax courts and hope to keep it that way. I know a lot of judges, and if I got to pick my judge, I might be happy with a judge system. But there are some judges I wouldn't want, and I don't his system would let people pick their judge.

Howard's proposed system would include a schedule for pain and suffering damages depending on the injury. I can't wait to hear who gets to set up the schedule. I don't normally do med-mal cases, but I've got a couple clients who were raped in the health care system, one by her doctor (his license was revoked) and another by a nursing home aide with a long criminal record. Neither of my clients have substantial or long-term physical injuries. What do they get under this schedule?

Another bit of misinformation I noticed was his reference to lawyers "taking up to 40% of the award." In New York, which is supposedly a lawyer-friendly state, med-mal fees are much lower than that, as low as 10% for larger awards. Of course, he blames lawyers for any opposition to reform. Apparently Consumers Union and PIRG have fallen prey to the evil cabal of personal injury lawyers.

I do support tort reform, but it should be for more than just doctors, and much simpler than creating specialized courts and tossing constitutional rights out the window.

We should eliminate pain and suffering damages from cases of "ordinary negligence." The vast majority of personal injury cases involve ordinary negligence -- going 60 mph in a 55 zone, not coming to a complete stop at a stop sign, etc. And the vast majority are also about pain and suffering, with other damages being mostly unimportant. Eliminate pain and suffering damages for ordinary negligence cases and you'll knock out 90% of the lawsuits. Insurance premiums will also drop dramatically, and not just for wealthy surgeons.

I'm sure the trial lawyers would oppose this approach. So would insurance companies, who would see their revenues plummet. But if we deliver the message to consumers that their insurance rates will drop dramatically, it just might succeed.

Then again, I gave a talk about this idea to a group of educated consumers in Schenectady a few years ago. They didn't like it. Many people want their lotto ticket in case they get hurt.