On Marriage Equality Campaigns

Well, it looks like California isn't alone.  Shortly after gay marriage was legalized in Maine, a ballot initiative de-legalized it, similar to what happened in California with Prop. 8.  Here though, the Maine campaign was, by all accounts, fantastic (unlike the California No on 8 campaign), but the turnout wasn't high enough.

The one common thread in both campaigns, though, is messaging.  In both instances, the message was "don't take away our rights." The anti-gay marriage crowd responded by proclaiming that if gay marriage continues, then gay marriage will be taught in schools.  And in both cases, the response by the gay rights groups was to dispute the notion - after all, the whole gay-marriage-will-be-taught-in-schools thing is nonsense.

And this is where I think the messaging is wrong.  Look, gay marriage is a BIG change for our culture (and even bigger if you live in Maine).  Homosexuality has only been legalized throughout the country in the past ten years.  So, rather than downplay the importance, play it up.  Humanize the issue by having old gay and/or lesbian couples talk about their relationship in ads.  Have survivors tell their stories about losing their partner and the aftermath.  In other words, run ads in FAVOR of gay marriage, instead of OPPOSING taking gay marriage away.

With regard to the schools thing, don't deny that gay marriage will be taught in schools - because its a BIG change, some teacher is certain to bring it up - instead, point out that the whole "its going to be taught in schools" thing is scary only if you don't want to accept gay people.  Tell them that even though its a BIG change, in ten years, it will seem like a trifle because nobody really cares about who marries who except those getting hitched.

The Fallacy of Tort Reform in the Health Care Debate

Last night, as a gesture to the Republicans, President Obama signaled that he would be willing to discuss medical malpractice tort reform as part of an overall health care package. In very short order, let me throw some cold water on this idea. Here are two reasons why tort reform is not going to work:

1) Federal Courts don't do Med/Malpractice Cases: Under Article III of the U.S. Constitution, Federal Courts only take cases where Congress says its okay for them to take cases. The types of cases that go to Federal Court are either cases involving a federal statute (Civil Rights Act), or involve "diversity" wherein two people from different states sue each other. Medical Malpractice cases, by and large, fit neither of these bases of jurisdiction. Med/Mal (as we lawyers call it), is a negligence tort - that is, the Doctor hasn't violated the law, per se, but rather, has failed to act competently. There's no statutory basis for Med/Mal, but its part of the area of law called the "common law" - the stuff that we got from England. So, no statute, no jurisdiction. Additionally, Med/Mal typically involves people who live within the same state. So, there's almost never diversity jurisdiction. Oh, and Federal judges know this, and HATE to take cases they don't have to take. At any point in any federal litigation, even before the Supreme Court, someone can throw a monkey wrench into a lawsuit by questioning federal jurisdiction.

This point is important because Congress and the President only have the authority to change Federal law. You know that 10th Amendment that Conservatives talk about, well, here's where it comes into play. The Feds can create a law that supercedes State law, but that doesn't mean state law goes away. Hence, the California law on medical marijuana, wherein State authorities (the police) will let someone go for possession if they have the medical marijuana card (or whatever it is), but the Feds can, and have readily, arrested people for possession. So even if the Feds were to outlaw all Med/Mal cases, or limit the damages, it would only apply to those cases brought before a Federal judge (which is a ridiculously small amount).

2) Tort Reform Won't Help Much: Since 1975, California has had limits on Med/Mal cases of the kind the Republicans talk about. These limits are found in MICRA, and the details of the law can be found here. Basically, MICRA limits the amount that someone can recover from a Med/Mal case, requires arbitration, etc. Look, read the description. Anyway, since its enactment, MICRA has been the darling of the California Medical Association. The mere mention of changing even a comma is practically a call to jihad. If you ask the CMA, MICRA is the foundation upon which doctors can practice medicine in California.

Strangely enough, though, medical costs continue to go up in California, more or less at the same rate as everywhere else in the country. And one of the worst instances of insurer neglect came from California. Read the sad story here. Even though California has MICRA, the medical malpractice reform that the GOP wants, Californians have the same problems with health care as everyone else - its too expensive to go without insurance, and the insurance they get is bad.