Libertarians and Liberals

It is a peculiar characteristic unique to our country that Americans talk about political issues in constitutional terms, thereby turning every policy debate into an argument over basic principles.  That was my thought when I read about Senate candidate Rand Paul and his “Constitutionalist” view that the federal government has no right to dictate the behavior of private enterprises.  Mr. Paul came under fire last week for suggesting that the Civil Rights Act of 1964 went too far when it prohibited discrimination by private businesses.  You can read more here (astute students in my Constitutional Law class will observe that Mr. Paul inspired one of the questions on my final exam this year).

Paul objects to federal policies regulating business due to his reading of the U.S. Constitution.  His political philosophy might best be characterized as extreme libertarianism.  Following the objectivist principles of Ayn Rand, he argues that the public should be left to their own devices and that greater social benefits will accrue naturally over time from the enlightened (and rational) self-interest of individuals.  Ironically, Paul’s embrace of self-interest as a moral good in itself is directly at odds with the view of the Framers of the Constitution.  The people who designed our constitutional system spent much time criticizing the biases, prejudices, and self-interested motivations of the general public.  The system of government that they created was intended to ameliorate the very aspects of human nature that objectivists like Rand Paul celebrate.

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ERISA Supreme Court Attorney Fees Case Goes Way of Plaintiffs

4United States Supreme Court 112904 For those who care about ERISA participants and beneficiaries being able to find good counsel for their claims, the U.S. Supreme Court decision this morning in Hardt v. Reliance Insurance Co., No. 09-448 (U.S. May 24, 2010) is welcome news.

In a nearly unanimous opinion written by Justice Thomas (Justice Stevens wrote to concur in part), the Court held that:

A fee claimant need not be a “prevailing party” to be eligible for an attorney’s fees award under §1132(g)(1) [Section 502(g)(1)]. Interpreting the section to require a party to attain that status is contrary to §1132(g)(1)’s plain text. The words “prevailing party” do not appear in the provision. Nor does anything else in §1132(g)(1)’s text purport to limit the availability of attorney’s fees to a “prevailing party.” Instead, §1132(g)(1) expressly grants district courts “discretion” to award attorney’s fees “to either party.” (Emphasis added.) That language contrasts sharply with §1132(g)(2), which governs the availability of attorney’s fees in ERISA actions to recover delinquent employer contributions to a multiemployer plan. In such cases, only plaintiffs who obtain “a judgment in favor of the plan” may seek attorney’s fees.§1132(g)(2)(D). The contrast between these two paragraphs makes clear that Congress knows how to impose express limits on the availability of attorney’s fees in ERISA cases. Because Congress failed to include in §1132(g)(1) an express “prevailing party” requirement, the Fourth Circuit’s decision adding that term of art to the statute more closely resembles “invent[ing] a statute rather than interpret[ing] one.” Pasquantino v. United States, 544 U. S. 349, 359.

The case is interesting because it poses a common legal issue in ERISA litigation.  The court, after pointing out problems with a plan administrator’s interpretation of plan terms, remands the case back to the company and the company ends up awarding the initially requested benefits to the employee.

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Health Reform and Racial and Ethnic Health Disparities

One of the most troubling aspects of the U.S. health care system is the existence, and extent, of racial and ethnic health disparities. Research has amply documented that members of racial and ethnic minority groups receive fewer health care services and lower quality health care than non-minority patients (see, for example, the rather damning portrait drawn by the Institute of Medicine’s 2003 study titled “Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care”). These disparities remain even when insurance status, socioeconomic status, and other important factors are controlled for in scientific studies.

There are many likely causes of race- and ethnicity-based health disparities. Among them: patient-level variables such as cultural preferences, mistrust of health care providers, and degrees of knowledge; system-level factors such as the geographic availability of health care providers, the use of managed care in publicly sponsored health care programs, and a general lack of institutional funding for language interpretation and translation services; and provider-level variables such as prejudice, stereotyping, and clinical uncertainty when treating minority patients.

Yet for all the evidence showing the existence of racial and ethnic health disparities, government agencies, health care providers, and health plans and insurers do not routinely collect data pertaining to patients’ race, ethnicity, and primary language.

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