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Judges make lousy social scientist

Posted on April 30, 2017 at 3:45 PM Comments comments (1)


Social sciences include history, sociology, economics and philosophy and some of the earliest historical giants in these fields had their training in history, religion and philosophy, Adams, Marx, and Weber. 

Modern pundits from these fields examine human behavior by developing some measureable characteristics and attempt to quantify these characteristics into some predictive modality. Although they will not admit it the opinions of these scholars and their studies have little predictive value and worse have no value to judges.  After all humans are too unpredictable and most social scientists fail to remember “we cannot quantify mystery”.

Judges don’t usually read nor care about these studies.  They find them of little help to their sense of jurisprudence.  For example, in a 2005 National Review article, Liberals ‘N’ Lawsuits, Supreme Court Justice Neil Gorsuch wrote, that “constitutional litigation” to achieve social change such as gay marriage, assisted suicide and vouchers for private school education is wrong. It only causes “politicization of the judiciary and “political atrophy”. 

Jurisprudence is the philosophical application of community rules to situations of current conflict and is a philosophical process that develops rules of behavior to avoid future conflict.  In other words the community will develop norms of behavior and then rules of behavior which stem from its “need for order”.

The science of law is defining an important community issue, identifying salient facts, and finally applying a rule in some contorted analysis to reach a conclusion. Law students know this as the Socratic case study of law methodology.

The science of law is really a formal process of critical thinking surrounded by community values and mores.  The process is an attempt to resolve conflicts, which arise among incompatible members of the community. This process develops rules of behavior. These rules of behavior “the law” are formal expressions of the values of a dominate group in a community. This is the “Natural Law”.

Development of “Positive law” occurs after a community establishes political bodies, legal institutions, and law enforcement agencies. All in some social, economic, philosophical and historical framework. Judges, as members of the community are the Solomon’s of justice, legal decision makers, and the administrators of justice. And although they should be from the community, often they are not. They now have little experience with the community.  All too often they are not chosen by the community-election but rather picked by a governor who appoints them from a select field chosen by a small legal elite group who are also devoid of any communal values.  This group conducts its selection in a secretive star chamber.

The selection of judges, their total disconnect from the community, combined with their lack of education in the social sciences explains why judges are “lousy social scientists” and their decisions reflect it.

Choice, Poverty, Health Care and "Unnatural Monopolies"

Posted on March 18, 2017 at 2:50 PM Comments comments (0)

Insurance companies do not have to sell their products (insurance policy) in every market. The most important reason for not offering insurance coverage is because the composition of the “risk pool” is cost prohibitive.

A risk pool is simply the total number of people living in a covered geographic area; city, county or state. Insurance companies will not offer policies if the experience rating of the individuals in the pool have medical service needs that yield high treatment costs which cannot be covered by insurance policy pricing.

Insurance companies will not enter markets unless they can mix a pool with insureds that make the sale of policies profitable. They are always trying to dilute the risk pool with low risk pool members. There is a need for healthy 18-25 year olds.

Insurance companies do not want in their pools young woman who are planning on having children. They are high risk pool members. Health care for mothers and children and those over 65 form pools with “incidents” of high medical costs. Their average costs rise faster than the average revenue from the sale of policies. Insurance companies do not want to sell to these individuals. They will avoid pools with their risk factors unless there is a subsidy. Medicaid which provides health and long-term care coverage to more than 70 million Low-income children, pregnant women, adults, seniors, and people with disabilities in the United States is that subsidy.

 

Insurance companies are also no friend to anti-poverty programs. They closely monitor the economics of a pool. When average income indicates pool members cannot afford to buy a standard policy the company will leave the market. These markets will have too many people below the poverty line, or who are minimum wage earners. As a consequence insurance companies make poverty worse.

 

There is no free market for anything unless firms are free to enter and exit. Capital requirements prevent this from occurring in an insurance market. Meaning there are barriers to market entry which create unnatural monopolies. These non-completive markets also arise because there are legal barriers to enter such as patents for medical technology. Insurance companies are heavily invested in these patents and hospitals.

In today’s market insurance companies may leave a market because profits cannot be sustained to satisfy shareholders demand for dividends. The insurance company cannot generate sufficient revenues to cover the costs associated with the dollar value of the high risk factor of the pool. In other words the risk expense of the pool cannot economically be covered by insurance rates that generate sufficient revenue for the company to maximize profits.

These artificially created firms crush competition. The business model for big insurers is the tried and true method of market growth: gobbling up smaller insurers. This practice continues like the proposed acquisitions of Cigna by Anthem and Humana by Aetna.

The current size of these firms which dominate the health insurance market inhibit competition. They have reach their current size through merger and acquisitions and patent purchases and not through the development and sale of new products. The trend for growth through acquisition is even more pronounced because banks, equity companies and insurance companies now coexist. With new unending financing resources the insurance market for health care will soon be dominated by these few “Mixed” corporate oligopolies. Also, as they continue to buy hospitals and merge, the health care insurance industry will become more risk adverse meaning less coverage, more poverty and more deaths.

 

Keeping social security recipients alive

Posted on March 5, 2017 at 12:15 AM Comments comments (0)

Social Security benefits must be sufficient to keep recipients alive!

There are two parts to this discussion:

First, every recipient should be allowed a base amount sufficient to allow them to live independently – “Cost of Life”. This amount should be based upon the cost of life in the closest urban area. This means that beneficiaries will not receive amounts they paid into Social Security retirement, but would receive an amount sufficient to allow them to live independently. There must be no reduction for federal or state income taxes, nor should recipient have to pay sales tax or any other tax. Medicare, Medicaid, dental care, hearing aids and public transportation will be provided free.

Second, discussions on how to adjust the base with COLA, Cost of Living Adjustment, continue. If we use a cost of living adjustment, then we will need adjustments only for housing (rent), food and clothing. Recreation costs will not be adjusted. This discussion always starts when current recipients have their benefits reduced, or as in 2016, zero adjustments. The Consumer Price Index for urban wage earners, CPI-W, which is currently used for the Social Security COLA, does not reflect the spending patterns of older Americans and therefore understates inflation. The CPI-W understates the inflation for the elderly because it does not reflect how large a share of their budget goes for medical care, where prices have been rising rapidly. Dental and Hearing aids are not included under Medicare – both of which consume large expenditures by seniors. The elderly also tend to be hurt by the introduction of new consumer technology because they consume relatively less of these goods and do not benefit as much as the rest of the population from the initial declines in prices.

Congress has asked the Bureau of Labor Statistics to calculate a new index for persons 62 and older CPI-elderly (CPI-e). A study by the “Center for Retirement Research” at Boston College, Do We Need a Price Index for the Elderly? Munnell and Chen found that this new CPI will not be of much help to seniors.

 

Misery in the 21st century

Posted on February 26, 2017 at 10:00 PM Comments comments (0)

Disappearance of our Republic under 21st Century Neo-capitalism

The election of 2016 is proof our traditional economic indicators are not hooked up to our “body politic”. Prior to the election surveys showed a strong national discontent because we no longer feel neo-capitalism can lift us up to a better standard of living.

National wealth, output, employment and the value of our health system no longer tell us about the condition of our country nor can they predict how we will fare in the future. This disconnect is evident. We have not seen unemployment rates below 4.8% since the late 60’s, real estate values are back to pre-2007 levels and U.S. equity markets are booming again. Yet before our nation could recover from the non-financial recession of 2001 the great 2009 crash occurred. Millions lost homes, pensions and paid hours of work for adult civilian workers plummeted.

With regard to our democracy how can anyone argue we have a functioning republic when over 30 million people are impotent? This includes; Seniors, i.e. those who are over 55; individuals with less than a high-school education, who now have one of the highest mortality rates; 23 million felons; 7 million white men between 25-54 who are now officially labeled as “those people who are in their prime of life, not working and not looking, are addicted to opioids, and now spend over 2000 hours each year in front of electronic screens”.

Regarding our physical and mental health, we cannot afford health care which is why death rates are rising for non-Hispanics aged 45-54 with less than high school education. And life expectancy for the first time in decades has dropped.

There is no need to discuss “economic inequality” it is merely an academic abstraction. A way to misdirect and to keep us distracted from the real issue, how do we fix social and economic “insecurity” especially for seniors and those who care for them.

 

Surrogate Crisis

Posted on February 11, 2017 at 2:20 PM Comments comments (0)

Surrogate Crisis.

It is estimated that by 2035 there will be over 7- million elderly persons in the United States. The percent of the elderly requiring surrogate decision-making is rapidly increasing and the rate of increase is being made worse by government actions, extended military intervention “wars”, and current economic events.

The population of individuals with Developmental Disabilities, residing in mental hospitals can be counted. However, the number of individuals with chronic mental illness living outside mental institutions is unknown. Estimates are 25-40% of persons living on the street or in boarding homes and shelters are persons with chronic mental illness. Both groups require surrogate decision making for personal and financial affairs. We are facing a crisis.

Court appointed surrogates.

The legal process called “guardianship” is a court monitored system of surrogate assistance and it is broken. It cannot handle the current onslaught of the elderly, developmentally and mentally disabled individuals needing “surrogate assistance”.

In 1987 the Associated Press commenced a nation-wide study of guardianship. This study culminated in its Report “Guardians of the Elderly: An Ailing System”, which identified serious shortcomings including that Due Process Rights are lacking and, Standards for determining incapacity are unclear.

Petitions to courts which are presented to the court to support the appointment of a guardian, the surrogate. The petition will present basic information which is combined into data sets. The interrelation between these basic data sets are seldom understood by the party requesting appointment to be guardian or by the court.

The role of legal counsel for the ward in guardianship.

With regard to Due Process, the right to counsel for the ward/respondent in a guardianship is mandatory. The attorney must interview all the witnesses, understand clear and convincing evidence, be prepared to request expedited hearings to restore rights and finally, be prepared to initiate appellate proceedings.

At a hearing to appoint a surrogate the ward’s attorney will be involved in a proceeding where most courts are unprepared to make a finding of mental incapacity. Most attorneys for the ward do not understand that the court’s ruling will affect fundamental personal and property rights, It will require a full adversarial proceeding which guarantees due process, and establishes a base line for the respondent’s incapacity through expert witnesses. All provided at public expense.

 

Seniors are under full scale assualt

Posted on September 6, 2015 at 5:35 PM Comments comments (1)

In Nevada we saw the right to die bill not make it out of committee, but the legislature allowed a right to try bill pass. Guardianships in Nevada under study after finalncial exploitation and alledged mental and physical abuse. A Special Commission has been established and is meeting monthly. The next meeting will be September 16, at the Reno Airport. Vetarans are being displaced and housing is being denied.Compassion and Choice will soon be in Nevada to help educate seniors and the right to die with dignity. The following presents some of the discussion regarding death with dignity and then we will present a discussion on adult guardianship.

In general death with dignity allows a terminal ill person who is competent to obtain a prescription that will be self administered to end their life. the key aspects ar that the person must be competent, terminal ill, with 6 months to live. There are an over abundant safegurads in the laws to be sure the person is making the decision with after ample consultation with two doctors and after making the request twice with one beiing in writing. One writing is witness. Oppendents are blanking the airways with false and misleading information. this first article will provide a informal legal basis in support of the bill.

The core elements of Death with Dignity laws should include;

• Using terminal illness not disease,

• Using competent not capable,

• Permitting one not multiple oral and written requests for a prescription,

• Permitting an exception to 18 years old and,

• Permitting one doctor not “two doctors and two lay witnesses” to confirm competency.

Nevada needs this legislation more than other states because of our growing senior population and because we do not have an expressed right of privacy in our Constitution.

Today, in Nevada defending a law suit involving acts assisting death would have to be based on the Liberty interest found in Article 1, section 8 of the Constitution of the State of Nevada. Those who would need protection from liability would now have to seek relief from our Supreme Court and hope the current Court would be as pragmatic as the Court in 1990 which held a competent person had a constitutional privacy right to discontinue further medical treatment. McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617 ((1990).

Oregon, Vermont, and Washington have statutes and the Supreme courts of Montana and New Mexico now permit end of life options. The Canadian Supreme Court has also authorized death with dignity decisions. California “End of Life Option ACT” has been reintroduced and is moving for a full vote soon.

A Death with Dignity law should allow a person who understands the nature and consequences of his/her decision and who has a terminal illness to end his/her life with dignity. The definition of terminal illness should not be restricted to a definitive 6 month period within which death must occur.

The law should allow a person who is not competent to have the right to die with dignity with the assistance of a parent, guardian, person with a power of attorney or court order.

There is precedent for this in Attorney General Opinion 97-08. “Children; Child Abuse and Neglect; Health; Courts; Juveniles”. The Attorney General examined whether a court upon physician’s recommendation could order placement of a “Do Not Resuscitate” order on the chart of a terminally ill “ward” of the state when the minor is in custody of the ward’s treating physician. The AG answered in the affirmative and also expressed that the Division of Child and Family Services would avoid liability.

 

 

 

Social Security

Posted on February 6, 2015 at 12:20 AM Comments comments (1)

Social Security Is Not Broke – But It Is Not In a Lock Box Either

 

Social Security is NOT THE PROBLEM - the problem is with the government’s total

“unified budget.” Social Security is running a surplus and this surplus is used to understate

the national debt. If you are interested we would be happy to provide the actual numbers and

all projection assumptions used by the Board of Trustees.

 

Social Security is not welfare it is an entitlement like your life insurance. Let us get some

terminology straight. The Old –Age, Survivors, and Disability Trust fund consists of two

separate parts that pay benefits to “Workers” and their families; (Old-Age and Survivors

Insurance (OASI) and Disability Insurance (DI)). OASI pays monthly benefits to retired

Workers and their families and to survivors of deceased Workers. The DI part pays

Monthly benefits to disabled Workers and their families.

 

The Board of Trustees was established under the Social Security Act to oversee the

financial operations of the OASI and DI Trust Funds. The OASI Trust fund is not the problem

but rather the DI Trust fund is. The DI fund will steadily decline because its costs will exceed

income beginning in 2013. If the decline is not fixed this fund will be exhausted by 2018.

However if you combine the OASI and DI funds they are in good shape. Some

recommendations to maintain the solvency of the programs over the next 75 years include

raising the payroll tax rate, and/or re-allocating the payroll tax rate between the two funds as

Clinton proposed and Congresspassed in 1994. (See the 2011 Annual Report of the Board of

Trustees of the Federal Old-Age Survivors Insurance and Federal Disability Insurance Trust

Funds).

 

If you want to be more radical merely end all payments upon the death of the

principal worker. No more survivors benefits and/or tighten the definition of a “disability”

which has already begun. This is of course the “let’s privatize the funds approach”.

So let us be clear “Privatization” means the transfer of $2.7 Trillion” today or $3.6 Trillion in

2020 into the hands of those who brought us the financial collapse of 2009. So let us also be

clear, although Social Security is referred to as an “Entitlement” which has the connotation of

“Welfare-something that is handed to you” – Social Security is an EARNED BENEFIT.

 

Chained CPI

Posted on February 4, 2015 at 7:30 PM Comments comments (1)

Question: What Is a Chained CPI and Why Should I Care? By Keith Tierney*

It has been some time since I was asked to write something in “Eco-mese”. Let’s start with what is a Consumer price index. It is simply an average price of all the goodies a certain group of consumers buys in a certain time period usually a month. The official definition from the Bureau of Labor Statistics (BLS) is “a measure of the average change over time in the prices paid by urban consumers for a market basket of consumer goods and services.” The BLS has classified all these goodies into 200 categories which are then arranged into eight major groups:

Food and Beverages (breakfast cereal, milk, coffee, chicken, wine, full service meals, snacks)

Housing (rent of primary residence, owner’s equivalent rent, fuel oil, bedroom furniture)

Apparel (men’s shirts and sweaters, women’s dresses, jewelry)

Transportation (new vehicles, airline fares, gasoline, motor vehicle insurance)

Medical Care (prescription drugs and medical supplies, physicians’ services, eyeglasses and eye care, hospital services)

Recreation (televisions, toys, pets and pet products, sports equipment, admissions);

Education and Communication (college tuition, postage, telephone services, computer software and accessories);

Other Goods and Services (tobacco, haircuts and other personal services, funeral expenses).

By the way, how many of you spend your social security on leisure, college and tobacco? Shall we tell Congress to get this iteml out of the calculation? Also included within these groups are various government-charged user fees – water and sewer charges, auto registration.

The CPI is used to adjust consumers’ income-hopefully up but it can adjust down (deflation). The CPI affects 48.4 million Social Security beneficiaries, and about 4.2 million military and federal Civil Service retirees and survivors.

An alternative measurement for the CPI-U being discussed in “Star Chambers” in Washington is the creation of a price index that more closely measures the average price of what you really buy. That alternative is called the “Chained CPI”. Don’t ask how they came up with that label it really should be the “deranged CPI”. The premise starts with the assumption they know when you walk into the grocery store how you will decide to spend your income. For example, they think you will stop by the meat counter and ponder price of beef and then run over the chicken counter (they are never next to one another) and compare the price of chicken. If the relative price of beef (relative to chicken) is higher you will substitute the chicken for beef. Really!? Proponents, who carefully study all of this, have concluded that you will spend the entire day in the grocery store making these decisions. Meaning your time has no value (opportunity costs) another story. The net result is they will lower the CPI by about 0.3 % that is 3/10s of one percent. The bottom line is the Social Security income you receive will be lowered by this amount. But since it is such a small adjustment you will not notice or care. Yes the same person who will spend the entire day in the grocery store will not notice or care.

In reality, we all know what the typical Social Security recipient spends their income on– heating their home in the winter and cooling in the summer, prescriptions, gas for the car or public transportation (at least until we privatize that too)

The real discussion should be that people on social security do not buy the same bundle of goods those who have an average income of $50,000/yr buy. Why don’t we start this conversation with what do you need to live, to keep a roof over your head, to eat and to dareI say it go see a movie? Since I started this with a questionhere is the answer.

Answer: The chained CPI is a stealth decrease in Social Security Benefits, and Veterans Benefits. It will lower your dismal standard of living. It will also increase in your Income Taxes.

If you are not in favor or the Chained CPI – let your Senators know:

Patty Murray 202-224-2621

Maria Cantwell 202-224-3441

Barbara Boxer 202-224-3553

Diane Feinstein 202-224-3841

Harry Reid 202-224-3542

Dean Heller 202-224-6244

* Keith Tierney has lectured for the University of Nevada system and Oregon State University in economics and law. He also is a public speaker and humorist like Mark Twain (or so he thinks)


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