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Court-ing Disaster

[EDIT: Some lawyers in the comments say various factors about this case sound very fishy. I know what I heard at the lecture, but it’s starting to seem more likely that the lecturer made this whole thing up or at least seriously embellished it. I have ensmallened the post below as a sort of retraction and apologize for believing everything I hear at a large and well-known hospital system’s extremely official medical education lectures which, I may add, are the same lectures that provide the information your doctor is using to decide on treatment for your life-threatening illness]

There are lots of tips for the homeless about how to get free stuff, so here’s mine: buy a white coat ($15) and a stethoscope ($20). Then, every morning and afternoon, walk into your local hospital and look for signs directing you to something like “grand rounds” or “morning report” or “noon conference” or “continuing medical education”. All of these phrases mean that if you listen to a boring person talk about boring things, you will get free food.

(if somebody starts looking suspicious and asks why they never see you in the rest of the hospital, or why you never seen to be treating any patients, tell them you’re a radiologist)

This tip works even better if you are a real doctor – you don’t even need to waste $35 on the coat and stethoscope! And that was how I found myself in a lecture on how malpractice cases work.

The answer is: not very well.

The speaker, a neurologist, described how he treated a stroke patient. From his description – and I admit, I have only his own words to go by – it sounded like he did a really good job. Didn’t just do it competently, but went above and beyond to make sure that he got the best treatment possible every step of the way.

Unfortunately the guy still ended up permanently disabled, because strokes are bad and even the best treatment doesn’t always ensure a good outcome.

The family decided to sue the neurologist. Upon being told they needed a reason, they and their lawyer came up with “he didn’t give the patient heparin immediately upon presentation”.

I don’t want to turn this entire piece into a review of evidence-based stroke treatment, but suffice it to say that heparin is not usually used for stroke. And anticoagulants like heparin should never be given until a haemorrhagic stroke has been radiologically ruled out, or they might kill the patient. This is an extremely basic point. All stroke doctors know it. I know it. Any medical school students who have been paying attention in class know it. This is not difficult or controversial.

My point is, the lawyers came up with a totally bogus claim that was just barely plausible for people who know nothing about medicine.

So the neurologist was pretty confident that he would win this one easily, and he and his lawyer collected a giant pile of textbooks and studies saying he was definitely right on this specific medical point.

The judge in the case refused to allow any of the textbooks or studies to be presented because they were “hearsay”.

Then the plaintiff’s attorney produced a stroke expert, a leading doctor who had helped write the guidelines for stroke treatment, to come up and say that heparin was the best treatment for stroke and it was malpractice for the neurologist not to have given it immediately, even before the radiology results were in.

Most of you are not in medicine and do not understand how creepy this is, but imagine that some law suit hinged on perpetual motion. In fact, let’s say this is a law suit against you – you’re an engineer, and for some reason someone has sued you for not believing in perpetual motion, and if you lose your career is over. And the plaintiff produces a Nobel Prize winning physicist who testifies that perpetual motion is super easy and happens all the time – and in his opinion any engineer whose machines don’t produce infinite free energy is guilty of malpractice and deserves to lose his license and go bankrupt.

That’s kind of what this was like.

So the defense attorney gets to cross-examine this guy, and points out that the expert wrote the guidelines for stroke treatment. And the guidelines for stroke treatment don’t mention heparin at all.

The expert says well, he didn’t write all of the guidelines, maybe someone else wrote that part.

The defense attorney asks why, if he thought heparin was such an important part of stroke treatment, he still signed his name to the guidelines, and didn’t even publish an article somewhere else mentioning that he wished heparin had been included?

The expert says well, you’ve got to choose your battles.

Then the defense attorney calls up their expert, who is also an award-winning prestigious expert stroke doctor, and who says he doesn’t know what the heck is going on here but everyone knows heparin is not a first-line stroke treatment and this is stupid. Then the plaintiff’s attorney gets to cross-examine him and comes up with BS reasons to sow confusion about his story.

So now the jury has just heard two experts say two different things and they don’t know what to believe. So for them it’s kind of a toss-up.

Luckily, one of the jurors is a nurse, and informs the other jurors that if you know anything whatsoever about medicine, the plaintiff’s case makes no sense. She convinces the other jurors to acquit. So, all’s well that ends well, right?

Not really. Because according to the neurologist, the plaintiff’s attorney met with him on the side and offered him a deal.

The deal was that, before verdict was rendered, the neurologist should pay the plaintiff’s attorney $30,000, which would cover his costs in prosecuting the case and in hiring the medical expert who said heparin was the mainstay of modern stroke treatment. In exchange for the $30,000, if he won, the attorney would ask for damages of exactly $800,000, which was the maximum that the neurologist’s malpractice insurance would pay. If the neurologist didn’t pay the $30,000, then if the plaintiff won he would ask for damages of $2 million. The malpractice insurance would pay $800,000, and the neurologist would be on the hook for the other $1.2 million. Which would easily force him to sell his practice and leave him bankrupt.

Under the circumstances, of course the neurologist payed the $30,000. So, although the plaintiff lost, they still got their costs covered and they still broke even. The medical expert who testified for the plaintiff still got $10,000 just to fly out for a day and spout an hour’s worth of lies, which is a pretty good deal and more than enough to ensure there will be unscrupulous experts willing to testify to any old thing in the future. The only person who didn’t get anything was the disabled stroke patient – but he hadn’t put any work into the lawsuit, so he too managed to break even.

I don’t know if this is a true story. I just have the neurologist’s word for it, and he seemed to have a Paul-Bunyan-sized axe to grind. [EDIT: A lawyer in the comments says the story about the plaintiff’s lawyer is either false or illegal. Another lawyer suggests it might be a version of something called a high-low agreement].

But it sure left a really gross taste in my mouth.

I recall what people tell me about the atrocities that constantly go on in prisons. The terrible conditions, the rapes, the beatings, the people frying to death in 110 degree cells without air conditioning. And the explanation offered is: most people don’t expect to end up in prison, so they have no selfish motive to care.

And I think about what people tell me about the court system. My mother was a juror in a murder trial once. She tells of jurors who didn’t listen to the evidence, who were asleep half the time, who made it all the way to the final deliberation without being aware that the murder victim was dead and this wasn’t an assault trial. And it’s been a while since I last posted the study finding that parole hearings depend as much on when the judge ate lunch as they do on the severity of the crime committed.

I wonder if, in the same way nobody expects to find themselves in prison, nobody expects to find themselves in court. Or at least, the probability of finding yourself in court is sufficiently low that no one has the energy to solve the collective action problem of getting a thousand people with a tiny chance of ending up in court to petition to make the courts fairer. So lawyers and witnesses and plaintiffs can do whatever the heck they want, because everyone assures themselves they’ll never be a defendant and so they have no reason to care.

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123 Responses to Court-ing Disaster

  1. James Miller says:

    Trial lawyers are among the top contributors to the democratic party, and of course a huge number of U.S. politicians are lawyers. Lawyers are articulate, well organized, and relatively homogeneous allowing them to overcome collective action failures that can otherwise inhibit successful political lobbying. Lawyers use their political power to set rules which greatly benefit themselves. Finally, because lawyers have managed to set extremely high barriers to entry to the legal profession, incumbent lawyers can reap large rents that don’t get competed away by setting such rules.

    • Douglas Knight says:

      Edit: Actually, I have no idea what you mean by “competed away by setting such rules.” The choice of rules doesn’t seem to me to have anything to do with barriers to entry or competition. Rules that encourage litigation help lawyers on both sides, so they exist. My comment is about barriers to entry and competition.

      Finally, because lawyers have managed to set extremely high barriers to entry to the legal profession, incumbent lawyers can reap large rents that don’t get competed away by setting such rules.

      Do you mean anything specific by that, or is this economic boilerplate that you assume applies everywhere without looking at the example? (Not to disagree with the preceding sentences that I didn’t quote.)

      Sure, there’s law school and the bar, but the existence of huge numbers of non-practicing lawyers make it hard to believe that the barriers to entry are that high. Many successful trial lawyers come from low status schools, further suggesting that such status markers aren’t secret barriers. Trial law is naturally a winner take all profession, so even if it has competed the median or maybe mean earnings to zero, the most successful trial lawyers are still as successful as ever.

      One interesting legal barrier is that law firms are partnerships and a non-lawyer may not own equity in a law firm. Thus lawyers capture all of the benefits of legal innovations, like the negotiating tactic in this story. Some people think that this decreases legal innovation. Given the example, probably a good thing.

      • James Miller says:

        Imagine no barriers to entry to the widget market and as a result widget makers don’t earn high profits. Widget makers, however, get together to successfully lobby Congress so each time you make a widget the government gives you $1. Over the long run this won’t help widget makers because it would just cause new people to enter the widget market probably lowering the price of widgets by exactly $1.

        To become a lawyer you need 4 years of college + 3 years of expensive law school + you need to pass an exam so hard that Hillary Clinton failed it her first time. It’s a crime to practice law if you are not a lawyer.

        “Many successful trial lawyers come from low status schools, further suggesting that such status markers aren’t secret barriers. ” Yes the lawyers who benefit the most from restrictions into the legal market are lawyers from low status schools. They tend to be the ones litigating cases such as the one described in the main post.

        • Douglas Knight says:

          As I already said, the median value of being a lawyer is ZERO, and I don’t mean net of tuition. How much lower would open entry compete wages? It’s not lack of lawyers that is holding down the number of lawsuits.

        • James Miller says:

          Response to Douglas

          “As I already said, the median value of being a lawyer is ZERO, and I don’t mean net of tuition. ”

          If true it’s because of the recent unexpected economic downturn which happened long after the rules the govern the case in the OP were set. Also, I’m not sure why “median value” is relevant nor how you could possibly calculate this when the core cost of being a lawyer is the opportunity cost of your time. Trial law is not a winner take all profession since most cases settle out of court.

        • Douglas Knight says:

          If true it’s because

          Again, assuming your model is true and refusing to look at reality. It has been true for a long time that huge numbers of lawyers don’t work as lawyers and don’t receive any of the legal benefits of being lawyers. The median value of these benefits is zero. Just value, not net of any costs. I talk of median mainly because it is so easy to measure.

          But the zero median is also relevant because it tells us about the marginal new entrant. If you think that becoming a lawyer is a rational entry in a lottery, then you are an idiot, but you could imagine that competition would drive down the expected value. But it wouldn’t dilute the value of the benefits to the incumbent lawyers.

          Yes, it’s possible that dumb but charismatic lawyers would displace the current crop. Intelligence is much less valued by the trial market than the BIGLAW cartel, but my estimate is that this effect would be small.

  2. Douglas Knight says:

    The judge in the case refused to allow any of the textbooks or studies to be presented because they were “hearsay”.

    I am very surprised. I knew that they wouldn’t allow studies, but just about the only thing they usually allow is “customary practice,” ie, textbooks. In fact, there are usually two defenses: (1) everybody here does it; (2) they taught me it that way in medical school. So it’s good to work far from school so that you have two options that will hold up in court.

  3. Matthew says:

    Out of curiosity, is there no regulatory/ethics body among medical professionals to whom the plaintiff’s expert could be reported for offering demonstrable quackery in court?

  4. The Anonymouse says:

    IANAL, but:

    FRE Rule 803: Exceptions to the Rule Against Hearsay

    The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
    .[1-17 omitted]
    (18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

    (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

    (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

    If admitted, the statement may be read into evidence but not received as an exhibit.

    • Matthew says:

      That just shows there would have been procedural grounds for an appeal, had the defense not been vindicated. Judges do stupid things all the time.

    • S says:

      Some states have kinda wonky expert-testimony rules so while this is right as a matter of federal law there’s no guarantee the state follows the same rule.

    • Scott Alexander says:

      That makes sense. Maybe the speaker was angry he couldn’t have the evidence presented on its own but had to have it go through a witness, at which point it might just sound like another thing some guy was saying, no different from the plaintiff’s guy who said stuff.

      Then again, the speaker made it sound like his lawyer was horrified by this turn of events, which it sounds like a halfway competent lawyer wouldn’t have been. Adding a lot more weight to “the guy made the whole thing up”

      • LRS says:

        For the reasons that Matthew notes above, this is only weak evidence in favor of “the guy made the whole thing up.” Sadly, many trial court judges have poor understandings of the rules of evidence and commit errors in evidentiary rulings all the time.

    • Anonymous says:

      I immediately had to make sure someone posted this in here. The story sound like bull.

  5. S says:

    Lawyer here: what the plaintiffs’ attorney (a prosecutor is the person who works for the government in a criminal case) supposedly did would, at a bare minimum, get him disbarred in an instant and seem to me to very likely also constitute extortion and hence be a felony. That’s, in fact, so obvious that I can’t really believe this happened. Why wouldn’t your neurologist have run the idea by his lawyer before handing over $30,000 if he really thought it was legal? And if he thought there was even a chance it was illegal why in the world would he have paid the money? All he’d have had to do was confirm it was illegal and the plaintiffs’ attorney would have been gone and the case would likely have been over as a practical matter.

    I also don’t know how malpractice insurance works, but is it really true that it’s personally held by doctors and that their employers don’t indemnify them? Because that’s not how it works for pretty much any other profession I know about. And if he was really personally liable why in the world would you have so little coverage relative to your assets (assuming the guy had the $1.2 million).

    The foregoing should not, by the way, be taken as legal advice. I don’t practice malpractice law and this is just a guess, albeit a slightly more informed one than Scott’s.

    • LRS says:

      Assuming the plaintiff’s attorney offered the “deal” with the blessing of the plaintiff, why would the plaintiff’s attorney’s conduct be grounds for professional discipline?

      • spree says:

        There are lots of deals that entered into willingly, but which the law tries to prevent. They are usually called “blackmail” or “extortion.” Why is this one enforced through professional ethics rather than criminal law, I do not know, but probably convenience.

        • LRS says:

          My question was meant as a request for a citation to legal authority for the proposition that the plaintiff’s attorney’s behavior in this case is a violation of a rule of professional conduct.

          But this response is interesting too. In your view, is there a principled distinction between, on one hand, things like “extortion” and “blackmail,” and on the other hand, an out-of-court settlement of a lawsuit? If you believe the former should be impermissible, do you also believe the latter should be abolished?

      • S says:

        Professional ethics and legal sanction are not mutually exclusive, I’m just less sure this is illegal than sanctionable. Among the reasons this is unethical:
        – As I understand Scott’s version, the plaintiffs’ lawyer met with the doctor without the doctor’s lawyer present–a big no-no for obvious reasons.
        – As I understand the deal, it benefited the lawyer and the doctor but harmed the client (by lowering his maximum possible recovery). If so it violated the lawyer’s duty to zealously represent the interests of his client. Sometimes you can do things that hurt your client with your client’s informed consent but generally not things that benefit yourself (like a writing a will with yourself as a beneficiary).
        -If the deal was not disclosed to the court that would likely be unethical too. (see in particular rule 4.2.2.)

        What is or is not extortion is trickier because extortion is a very strange crime: doing several things that are legal on their own becomes a crime when they are done together.

        Again, I could be wrong about all of this and don’t rely on it in real life. But this story just smells like bs to me.

        • LRS says:

          Good analysis. Thanks.

        • Joshua Fox says:

          Thanks for that analysis. If the plaintiff made this offer, specifying the various sums of money, but without mentioning the purpose (of getting the insurance company to pay rather than getting the best settlement), and if both lawyers and both litigants were present, is this unethical?

          To my lay eye, it looks like a perfectly ordinary settlement offer.

        • Anonymous says:

          I think the assumption is that this is a contingency case and that the plaintiff doesn’t get any of the $30k, and thus has no benefit from the deal. It doesn’t matter whether the plaintiff agrees to the deal: much of the point of professional ethics is to bar professionals from getting the client to agree to things that maybe they don’t understand.

          Settlement offers end the case. This offer did not. That’s the other thing that is wrong with it.

          Settling for lawyer’s fees is a common settlement agreement. I’m not sure how the logic applies differently. Maybe it isn’t common in contingency cases?

          (I don’t know anything about professional ethics of law; I’m just trying to interpret S’s claims.)

        • S says:

          Yes, I was assuming that the fees went to the lawyer directly which, if there was a contingent fee agreement (which is standard in malpractice cases), would only benefit the lawyer.

          It’s possible to settle one claim and allow others to go to trial. I’ve never heard, though, of taking partial payment in return for lowering the requested award. I guess such an agreement could be ethical if it was a $30,000 payment to the client not the lawyer. Again though maybe this is some practice specific to med mal cases in Scott’s state? In any event, though, a settlement would be paid (up to the policy limit) by he insurance company not, as the story had it, by the doctor directly.

    • Multiheaded says:

      I know absolutely nothing about law of any kind, but holy shit, how did the doctor view it as anything else but criminally soliciting a bribe? Why didn’t he go to any authorities at all about that? Why didn’t he record it?

      • nydwracu says:

        That part doesn’t surprise me. Why did Sherman McCoy introduce false evidence? If you don’t realize that you can record it and get the guy disbarred, you’ll suck it up and stop thinking like you’re in a civilized country — since, in a civilized country, one would premuse that people wouldn’t get shafted in court by experts offering blatantly false testimony.

    • James Miller says:

      The malpractice insurance provider probably paid the $30,000 and told the neurologist that if he didn’t agree to the $30,000 side agreement then he would be voiding some clause of his insurance policy and be personally liable for any damages at trial.

      • Anonymous says:

        [By JRM from not my normal computer]

        I find this extremely unlikely.

        Let us re-parse this story. Neurologist gets sued. Plaintiff’s lawyer, who may or may not be an idiot, violates canons of ethics to directly contact a represented person. Laws are different in different states, but in every US state, this is a big no-no, and will have the state bar’s attention right quick if they found out about it.

        Neurologist consults his lawyer, who says something other than, “I am going to file a motion regarding this and call the court’s attention to this plainly improper behavior.” Neurologist’s lawyer is paid by an insurance company to avoid large amounts of liability and insurance company probably likes competent people to do this.

        Neurologist pays the money. There is either a written agreement or no written agreement. Neither of those is good. How does the insurer avoid liability?

        Now, let me say something that DOES happen: There’s a high-low agreement between the parties. Parties agree that if plaintiff gets awarded less than $30K, he gets $30K. If more than $800K, he gets $800K. That’s legal in most jurisdictions and people do it. That’s a real thing.

        As to the evidentiary issues, more information is necessary. If you give the judge a book and ask that it be admitted into evidence without more, you lose.

        As to the insurer making Dr. Neurologist do this…. no. I mean, insurers are sometimes horrible. But this is how you end up with bad faith lawsuits against you. Which you will lose.

        Aside to the Google Scholars: Google Scholar is dead awesome on published appellate cases, but you won’t find most cases there.

        Finally, I could be wrong. I am not an expert on every jurisdiction in the US. But I am probably right.

        • S says:

          On further review Anonymous is right and what probably happened is that the parties made a high-low agreement and the doctor has transmuted that into some personal shakedown by the lawyer in the version of the story Scott.

        • Scott Alexander says:

          What is the difference between a high-low agreement and the way the neurologist described it? (other than that presumably the malpractice insurance and not the doctor pays)

        • JRM says:


          Differences in proper high-low and neurologist’s account:

          1. The lawyers discuss it. Neurologist is informed, but plaintiff’s lawyer doesn’t speak to him directly. Generally, the insurer’s duty is duel: To the financial interests of the company and the neurologist. See below.

          2. There’s no up-front money.

          3. The agreement is written and clear.

          4. The request to the jury is still for $47 million or whatever. When the jury comes back with $40 million, it’s reduced pursuant to the agreement.

          5. As you note, the neurologist is not on the hook personally.

          Other notes:

          The insurance defense lawyer has a dual duty to the insurer and the neurologist’s financial interests. If the plaintiff is willing to take a cap of policy limits, I can pretty much guarantee you that they’d make an offer at or below policy limits in writing, possibly in a great big font.

          If the insurer rejects that offer, they are typically on the hook for any excess judgment. (There are exceptions that vary by jurisdiction and I haven’t practiced insurance defense since 2001 and I have never done medical malpractice, so if you want to take this as legal advice, please send me a very large check first. No, much larger than that.)


    • Lesser Bull says:

      Lots of doctors aren’t technically employed by the hospital or whatnot, but mostly they are or belong to a practice group, in which case they would be covered by their employer’s malpractice insurance. And usually the hospital gets sued anyway.

      Here’s some other weird parts of that story. $800k sounds like a really small amount for malpractice insurance for a doctor.

      Here’s another. It is very, very unusual in a malpractice case for the amount of damages to be determined separately from liability. Further, even when they are determined separately, the plaintiff has to disclose before trial what they think the damages are and how much they are worth.

      Here’s another. Plaintiffs usually don’t go after doctors personally. They want the insurance cash, they do discovery about the limits of the insurance policy, and they usually don’t bother going after more than that.

      I do believe the part about the expert being a lying crapweasel.

    • ADifferentAnonymous says:

      I didn’t think there was any intent to imply that the plaintiffs’ attorney’s offer was anything but an unethical bribe demand, but the fact that it’s illegal doesn’t prove it didn’t happen and doesn’t proved it doesn’t happen regularly. If the doctor tried to report the offer, would he be going word against word with the lawyer? Would this work?

      • Anonymous says:

        At the offer stage, it sounds hard to prove. If the doctor paid in cash, the detail that should have been included in the original story, if only for color.

  6. I’m going to cherry-pick one thing you mentioned because I have an axe to grind about it: prison abuses. Basically, I think that the public actively relishes the notion of prison abuses because these abuses give prison the punitive aspect that it otherwise seems to lack after decades of humanizing prison reform.

    I’ve done several weekend retreats in prison as part of Kairos, and the prison I was in is officially quite comfortable. The prisoners have access to a library, the internet, a workshop, a wide variety of religious services, and they can work in the prison industries, have televisions in their cell, and wear street clothes as long as they conform to dress code. An outsider casually visiting or reading about the prison will get the impression that it’s very nice, and that the prisoners are getting a pretty good deal. This conflicts with the intuitive belief that most people have that prison is supposed to be punitive, which remains the majority view of the legal system outside of a few bleeding hearts.

    In this scenario, people hearing about prison abuses are likely to think, “Well, at least some of them are getting what they deserve.” People openly joke about murderers, rapists, drug lords, pedophiles, and other undesirables being anally raped, the implicit understanding being that if the legal system has lost the cojones to actually punish people, at least we can get the prisoners to punish each other.

    I find this abhorrent, but not because I’m a bleeding heart. I agree with the majority that the legal system should be punitive, but I just think that the legal punishments should match the actual punishments, rather than ostensibly sentencing people to rehabilitative imprisonment which actually is a traumatic ordeal of violence, rape, and deprivation.

    • Multiheaded says:

      Just how there being no atheists in foxholes is an argument against foxholes (there are plenty of other arguments against atheism), a mass belief in retributive justice doesn’t indicate that it is an acceptable goal to strive for, it indicates that people – certainly including you and me specifically! – are horrible, bloodthirsty adaptaion-executors and should, through vigorous public discourse, be made enlightened enough to repress such vindictiveness. I think there is a place for unjust actions against a public enemy in self-defense, and maybe even a place for a victim to take it out on the offender, but retributive justice as a whole is a horrifying, sick idea and people need this shit slapped out of them! I’m guilty of this mindset myself, that’s why I’m so adamant that it should be forbidden from existing.

      (I think Scott would agree here.)

      • Just out of curiosity, what do you think about corporal punishments as a replacement for imprisonment? I maintain that getting a vigorous caning (or any other corporal punishment which isn’t permanently disabling or disfiguring) is far less dehumanizing and debilitating than long-term imprisonment, as well as being cheaper to administer, more gratifying to the victims, and arguably more deterrent. The only reason we don’t do it is because we have an irrational and indefensible moral taboo against it.

        • Oligopsony says:

          The general taboo against deliberately inflicting physical pain on people is both rational and defensible, even if corporal punishment would be better for the reasons you list (and I suspect it is.) Of course maybe it is worth breaking that taboo in this case – I feel like our existing zoo of terms-for-moral-systems are bad in that deontology or rule utilitarianism say you should never apply exceptions to good-general-rule taboos while act utilitarianism has at least the gut sense of not caring at all, while the obvious answer is that rule violation for good reasons imposes a cost which should be measured (even if imperfectly.)

          I wonder if bringing back something like the stocks might be useful. Criminals with the right sort of mental discipline could look pretty badass taking physical punishment – moreover, people (especially I imagine criminals) tend to imagine themselves tougher than they actually are – whereas everybody looks pretty stupid in the stocks. And I think people are social approbation-minimizing agents more than anything else.

          If ten years down the road everybody is wearing Google Glass, you could do some sort of Scarlet Letter/Mark of Cain thing. Actually I suspect people will start doing that in a decentralized way and for all sorts of things anyway, and which will only accelerate the exit into thedish clusters that’s been happening for the last couple decades. Centralized state implementation might be able to ensure some sort of due process.

          The original idea behind the GULAG system was that if you had penal colonies that were organized more like normal life things would be more humane and rehabilitative. That’s a less drastic change from the prison model of punishment but still a step up, I suspect. Australia seemed to work pretty well aside from the whole genocide thing.

        • Daniel H says:

          It also doesn’t “get these people off the streets”. Suppose I steal something, get caught, get caned, and then get set free. Then I can spend a week recovering, then steal something else (presumably getting a larger punishment for a repeat offense). This can continue until either I get sentenced to prison or death, or it exceeds my pain tolerance.

          I’m not arguing for the current system (I dislike it on both the grounds you say and on the bleeding-heart grounds), but there are reasons for prison which aren’t covered by corporal punishment.

        • Douglas Knight says:

          Oligopsony, a taboo on violence so general that it covers corporal punishment is extremely new. I don’t think the phrase is that accurate a description of even contemporary western Europe. We have lots of data on societies that carved rules differently. Maybe you can argue that this is closely tied up with other changes and that reversing it risks them, but that is an argument to made explicitly, not snuck in the word “taboo.”

        • Alrenous says:

          @ Daniel H,

          Current prisons seem obviously retributive and deterrent to me. Specifically, they spend a lot of time and energy on retributions framed as deterrence for some and deterrence framed as retribution for others. If we could settle on prisons as mainly for incapacitation, it could be easier all around.

          “…Shams may cease

          Or alternatively, simply allow someone to offer prison-as-incapacitation, let that compete against what we have, and thus let it win on its merits rather than on fallible argument.

        • Oligopsony says:

          Oligopsony, a taboo on violence so general that it covers corporal punishment is extremely new. I don’t think the phrase is that accurate a description of even contemporary western Europe. We have lots of data on societies that carved rules differently.


          Maybe you can argue that this is closely tied up with other changes and that reversing it risks them, but that is an argument to made explicitly, not snuck in the word “taboo.”

          Well, it seems that you just made it yourself! But yeah, it seems clear to me that increasing abhorrence of physical punishment is an effect (not much of an independent cause) of the increasing wussification of society, of us being less big manly men making hard choices blech cetera, and that this process, noted with lamentation by terrible people everywhere, has at least some rather salutary effects.

        • Oligopsony says:

          (My tone above was less polite than it ought have been; I apologize.)

        • Douglas Knight says:

          My comment was very confused. There is a standard argument that all kinds of violence are related. I shouldn’t have demanded that you reiterate it.

          What bothered me was the word “taboo.” To me that implied two things, both of which I don’t believe. One is that people consciously associate different kinds of violence. The other is the idea that a taboo is a sharp line and breaking it is an abrupt act that will send all mores into chaos and who knows where we will end up. But it’s just moving back fifty years.

        • Oligopsony says:

          Ah, I see what you mean. I perhaps unthinkingly used the word “taboo” because Mai did, although their usage was arguably more appropriate than my own.

          Actually your fifty years comment gives us something of an empirical thing to test: if Mai’s theory is incorrect and mine is not (though both, or neither, could also be correct) then we’d expect more public concern about abuses in the past when they arise, rather than more. Is this the case? My expectation is not, but I know little about the subject so it might surprise me (or for that matter all of us.)

        • Douglas Knight says:

          I’m not sure I even noticed Mai’s use. It doesn’t bother me as much because it isn’t general, but even if we narrow in on corporal punishment, it isn’t unitary: people are capable of holding disparate beliefs about corporal punishment in court, in school, and at home.

          One thing that I know about corporal punishment is how wide are people’s beliefs about laws and common practices. Americans from Chicago move to exurbs of Raleigh and are shocked to find it practiced n the schools. They didn’t know it was legal anywhere, even though it was in the state they left.

        • if Mai’s theory is incorrect and mine is not (though both, or neither, could also be correct) then we’d expect more public concern about abuses in the past when they arise, rather than more. Is this the case? My expectation is not, but I know little about the subject so it might surprise me (or for that matter all of us.)

          I’m sorry, but there’s too many negatives there for me to follow, and I don’t think that I can figure out what you mean.

          I will just point out that I have two theories in this thread: (1) that public tolerance of prison abuses is directly correlated with public perception of prison luxuries, and (2) that corporal punishment is superior to imprisonment for most purposes. I hold to (2) pretty strongly, but (1) is just a speculative mechanism. In fact, I only came up with (1) while pondering the bizarre fact that society’s revealed preference is apparently that prisoners be anally raped in jail but not given thirty lashes in public. So which theory is the quote above referring to?

        • Armstrong For President 2020 says:

          I think it’s a bit simpler than you’re making it out to be. This is really more about effort than principles.

          Bringing back corporal punishment means pushing a cause upstream against hostile elite opinion and the general inertia of very large systems. Basically, you’d need a decently large political campaign to do it and even then you’d risk having any new ordinance overturned by the courts.

          On the other hand, keeping prison conditions horrible is just a question of looking the other way every now and then, maybe at most turning down an expensive and unpopular bill every few years. Since the elites only care about looking good they’ll tolerate it, and while it’s unimaginably wasteful it’s at least better than having a completely resort-based penal system like the Scandinavians.

          If you want proof, look at the areas where people don’t have to worry about elite disapproval like local courts out in the sticks or in laws targeting sex offenders. All the old ‘medieval’ punishments like public shaming and writs of outlawry come out in full force. Hell, given popular opinion on Guantanamo we’ve got at least a plurality of the populace on board with the modern equivalent to breaking-on-the-wheel, at least where terrorists are concerned.

        • Ialdabaoth says:

          while pondering the bizarre fact that society’s revealed preference is apparently that prisoners be anally raped in jail but not given thirty lashes in public.

          Simpler solution: People’s weird notions about agency and culpability mean that they’re unwilling to explicitly call for people to be raped OR caned, but will happily cheer when it winds up happening due to effects they set up.

        • spree says:

          Armstrong, what do you mean when you say that sex offender laws are not subject to elite disapproval?

        • Armstrong For President 2020 says:


          If you want to see what elite disapproval looks like in action, the utter destruction of American opposition to gay marriage is the best example this century.

          Just a decade ago, the idea of gay marriage was considered a joke and was opposed by 60% of the population. But the elites wanted it, and evidently wanted it pretty badly.

          The media went out full force on the Civil Rights movement comparison, not to mention broadcasting images of ‘nutty’ fundamentalist picketers and photogenic gay couples as often as they could. The courts repeatedly struck down laws and amendments passed against it, while pro-gay marriage laws were brought up for vote again and again until they passed. People were fired, are still being fired, for having publicly opposed it. Caterers and wedding photographers have been sued, successfully, for not offering their services at gay ceremonies.

          Today a slim majority claims to support it and the federal government is probably just a few years away from making it the law of the land.

          That’s the kind of power we’re talking about here; our society’s definition of it’s most fundamental social unit was completely overturned in a single decade, despite massive and intense popular resistance until the final hour.

          If the elites cared about pedophiles as much as they do about gays, we would probably have Roman Polanski running in the 2016 primaries by now.

        • Hainish says:

          I remember, in the early 1990s, wondering why I was the only one who considered marriage equality to be the moral position. As it turns out, I wasn’t. It’s been brewing for a while, and changing demographics have pushed support to over 50% (and I think the trend will continue). I don’t think you need a conspiracy theory about the media to explain what happened.

        • spree says:

          Armstrong, I still have no idea what sex offender laws are supposed to be an example of. In your first comment, you seemed to say that they were an example of medieval punishments desired by the common people that the elites dislike but are unable to notice or stop. I find it pretty hard to believe that elites don’t notice these laws, but maybe they are too popular to stop.

          In your new comment, you seem to say that these are an example of elites punishing a group they hate. Maybe, but that’s doesn’t fit in your original pairing with laws in the sticks. If elites desire medieval laws against people they hate, why aren’t there other examples than pedophiles? How about rednecks? Instead, rednecks are free to have their own laws in the sticks, even medieval ones.

          It is an interesting fact of history that gay liberation involved pedophiles 40 years ago, but the trajectories of the two groups has so strongly diverged, but the comparison has nothing to do with the topic of corporal punishment.

        • houseboatonstyx says:

          @ Armstrong 2020 June 24, 2014 at 6:21 pm

          Just a decade ago, the idea of gay marriage was considered a joke and was opposed by 60% of the population. But the elites wanted it, and evidently wanted it pretty badly.

          Elite pressure could explain the quick change. But can you speculate as to why the elites wanted it, and why in this decade rather than sooner?

        • Armstrong For President 2020 says:


          Ah, okay, that’s where the confusion is. I meant originally that elites disapprove of caning and other ‘barbaric’ punishments, while ordinary people prefer them. That’s why you only see them meted out in small towns the elites don’t pay attention to, or to extraordinarily unpopular groups like terrorists / pedophiles who the elites don’t care to defend.

          BTW, sorry to everyone else for the derail. Didn’t intend to drag us into a gay marriage discussion; the penal reform thing is much more interesting.

      • Hainish says:

        “retributive justice as a whole is a horrifying, sick idea and people need this shit slapped out of them!”

        This is really surprising . . . I feel the exact same way about the idea of incapacitation.

    • peppermint says:

      soooooo what’s your grand scheme?

      The prison system is the way it is because of the decisions of people who have power over it. Think about the last few times the prison system has been reformed and the effects of those reforms.

      And check out this perspective from 1850 regarding the same issue, Model Prisons, chapter 2 of Thomas Carlyle’s Latter-day Pamphlets.

  7. The Anonymouse says:

    My suspicion (which, together with $4, will get you a latte) is that your neurologist/speaker either heard a horror story that got mutated coming through the medical grapevine, or saw something that appeared unjust and filled in the blanks coincidental with his preconceived biases. Law is complex, frequently counterintuitive, and often completely baffling from the outside.

    Or, there was a travesty of justice. That happens too.

  8. Flesym says:

    Some comments, in no particular order.

    1. The textbooks and studies were not hearsay. As S says, perhaps some states have wonky rules, but I’d be quite surprised to hear of a state where learned treatises are not admissible as evidence.

    2. State judges are almost always elected, and as a result their quality is…variable. At least here in Texas, defendants (usually the corporations) always, always remove to federal court when they can, because the state courts do whatever the hell.

    3. I don’t know that people are apathetic about civil suits. Tort reform in general is quite a hot-button political issue, and here in Texas hospitals are difficult to sue. (Source:

    6. However, I do agree with you that our justice system contains numerous flaws, though I know more criminal than civil flaws. It’s very difficult to sue police or their employers with any success, no matter how atrocious their conduct. Prosecutors focus on winning, and have nearly unlimited power: they can read laws broadly and throw the book at you, they can threaten to charge your spouse unless you confess. The DOJ has tried – twice – to count the number of federal criminal laws, and failed, and many offenses which used to carry civil penalties now carry criminal penalties. The opportunities for police misconduct with impunity, prosecutorial immunity, and the proliferation of criminal laws, mean that it’s easier to get charged than ever. Further, juries, in general, cannot apply the “beyond a reasonable doubt” standard correctly, so people go to jail under a preponderance of the evidence standard. And what Mai said for inside prison.

    Put it this way. 96% of the time, defendants take a plea bargain and go to jail. I submit to you that the probability that the police and prosecutor have beyond-a-reasonable-doubt evidence 96% of the time is quite low. That low probability suggests to me the government wields inordinate power within the criminal justice system.

    • LRS says:

      I agree with nearly all of this, but I don’t think the prevalence of plea bargain resolutions to criminal cases necessarily means that the government wields inordinate power. Why isn’t the risk mitigation inherent in plea bargains enough to explain their popularity?

      I actually think it is true that the government wields inordinate power in the criminal justice system – I just don’t think this particular observation about the prevalence of plea bargains is evidence in favor of that proposition.

      • Matthew says:

        The missing context here is that the “right to a speedy trial” doesn’t really exist in practice, especially if you are relying on a court-appointed defense attorney. You can languish in jail for a long time without having been convicted of anything, waiting for your day in court.

        In fact, if the actual prisoners could cooperate in their actual prisoners’ dilemma by all refusing plea bargains, they could bring the already overburdened judicial system to its knees.

        • LRS says:

          That’s a good point. I agree that in many cases, criminal defendants in pretrial detention plead guilty to charges that the state could not prove beyond a reasonable doubt at trial, because they want to escape the misery of jail.

          However, that seems to me to be separate from the original contention, which was that the mere high percentage of cases that end in plea bargains demonstrates prosecutorial abuse.

          Incidentally, in one American jurisdiction where I have some experience, criminal defendants have in fact brought the overburdened justice system to its knees over the course of the last year or so, by taking cases to trial against inexperienced and overworked prosecutors and winning acquittals at trial at a high rate. Word got around the jailhouse. Now, court dockets are hopelessly backlogged with pending trials and the prosecutors’ and public defenders’ offices are in disarray.

        • AJD says:

          Between this and the fact that there’s a shortage of job openings for lawyers, it seems like an obvious solution presents itself, which will probably not be acted upon.

    • suntzuanime says:

      Is it really that implausible that 96% of the cases brought do have beyond-a-reasonable-doubt evidence? Remember that the prosecution gets to pick and choose which cases to prosecute: if they don’t think they can win, they can (and indeed are ethically obligated to!) just not bother bringing charges.

      Probably we underestimate how solid the average criminal case is, because we only see the totality of a criminal case when it’s brought to trial. If the cops have you dead to rights there’s no point in insisting on a trial you’ll only lose, when you can get a little leniency by pleading guilty. The cases that defendants will fight will tend to be the ones where the evidence is weak, where the prosecutor made a bad judgment call in laying charges (or was forced to do so by political pressure).

      • Matthew says:

        Per the Wall Street Journal Article quoted here (original is paywalled), the Federal plea bargain rate went from 84% in 1990 to 97% in 2012. Do you think Federal prosecutors were pushing weaker cases in 1990?

        • Samuel Skinner says:

          Yes. We had an increase in the ability of the police to test blood and other physical evidence, a relative drop in the crime rate and a focus on crimes that are more amenable to plea bargaining (the article mentions fraud and drugs which I imagine are easier to get people to admit than more severe crimes).

          The probably doesn’t account for the whole change, but I do imagine the police are better now than they were 24 years ago, if only because they have fun new toys to use.

      • James Miller says:

        You are right, but for a very unfortunate reason. There are so many laws in the United States that almost every adult American has committed a crime for which he could go to prison, so if the police look hard enough they will probably be able to find something to put you in prison for.

        • Berna says:

          I’ve heard people saying that before, but I wonder if it’s really true. Can you get sent to prison for driving a little over the speed limit, or for parking where it isn’t allowed? That’s the only law I can imagine *most people* breaking. I know the laws in the US are different from here, but surely they can’t be *that* different… or can they? In the Netherlands, I’m pretty sure less than 90% of people have ever done anything that could put them behind bars.

        • Randy M says:

          Yes, my saying is that anyone who is a law-abiding citizen is only so by happenstance unless they can name every law they are subject to, which, of course, no one can. Reality is that people try to do what they think is right and stay beneath the notice of the law, and the prosecuters and police have immense discretion (not necessarily any individual in particular, but the whole apparatus).

        • Ialdabaoth says:

          The tax code is sufficiently byzantine that a lot of low-hanging ‘gotchas’ exist right there.

          That said, I will relate a different tale, from my own youth in California:

          One evening, I decided to take a walk through the Kern River as it flows through Oildale (a particularly “white trash” suburb of Bakersfield). I had only made it about two blocks from my house when I was stopped by a police officer.

          He informed me that it was a city ordinance, for safety reasons, that a pedestrian could not be out after sundown without a flashlight.

          I told him that didn’t seem plausible, and he began to get a little rough with me, so I acquiesced and headed home to grab a flashlight.

          I stepped back out the door two minutes later, and walked down to the end of the street – where the officer was waiting to arrest me.

          Having a flashlight after dark is possession of breaking & entering tools.

          I learned a valuable lesson about the police that weekend.

        • Randy M says:

          That is hillarious. Have you checked the actual ordinances yourself? He might have been lying or just wrong about either.

          But it is probably a money making scheme for the city.

          Also, Kern river has some neat places to go camping.

        • Ialdabaoth says:

          Have you checked the actual ordinances yourself? He might have been lying or just wrong about either.

          The frustrating thing, as I recall (note this was 18 years ago), was that the ordinances were vague and confusing enough that they actually *could* be construed that way.

        • Anonymous says:

          Lying to a federal agent does not require that you ever meet the agent, only that the agent eventually hear your claim.

        • Ialdabaoth says:

          It also does not require that you intend to lie, only that your statements contain a representation that is not truthful. (I.e., “I misremembered” is not a valid defense).

        • nydwracu says:

          if the police look hard enough they will probably be able to find something to put you in prison for.

          Or they just plant drugs on you.

          I’ve heard rumors that there have been incidents of law enforcement planting certain files of a very illegal nature, but I’m not sure if those are true or not.

        • James Miller says:

          Reply to Berna “I’ve heard people saying that before, but I wonder if it’s really true”

          Yes when you consider laws concerning drugs, taxes, copyright, drunk driving, sex, and unauthorized computer use

      • Quixote says:

        The reasons for the high rate of guilty pleas is well studied and well known.

        First, as you note, a lot of cases really are open and shut cases that are pretty clear.

        Second and far more importantly legal changes over the past several decades have moved sentencing discretion from judges to prosecutors. Prosecutors then say if you plea guilty I will give you the minimum and you will be out in six months, if you make me do the work I will give you the maximum and you’ll be in for 20 years.

        The differential between min and max sentences is such that even if you were innocent and fairly confident you could prove it, it might still be rational to plea guilty.

        • Ialdabaoth says:

          And since prosecutors get re-elected based on conviction rates, there’s a MASSIVE perverse incentive.

        • Douglas Knight says:

          The sentencing discretion that judges have lost has gone to the legislature, not to prosecutors. In fact, the prosecutors have lost the same discretion of what sentence to request from the judge. The discretion they keep is which crimes to press, discretion that they always had. What has changed is that the judge can no longer be suspicious that the flimsy charges were tacked on as a threat and give a low sentence. But the judge has many other ways of undermining a trial, so I am suspicious of this explanation.

        • ADifferentAnonymous says:

          I also know that at least one state has decided that they don’t need to provide a free public defender unless the defendant is unable to pay for one. Obviously the people who can barely afford a lawyer get completely screwed by this.

    • Flesym says:

      I’ll try to respond, briefly, with both theory and fact.

      In theory, I think neither the rational incentives to plea bargain, nor the ability of prosecutors to choose their own cases, adequately explain the extraordinarily high prevalence of defendants taking plea bargains. I agree both those factors explain some plea bargains. But if defendants were bargaining in an equal position of power, prosecutors should win the negotiation less often. And though prosecutors can choose their own cases, so can other attorneys who don’t win 96% of the time – and prosecutors are just as prone to “trial blinders” (seeing only the merits of the case) as anyone.

      In fact, the implications which arise from the Actual Innocence project bear some weight here. The number of actually innocent defendants on death row is estimated, based on past exonerations, at around 4%. Of these actually innocent exonerees, 50% confessed to their guilt. So we know that a significant number of defendants with the greatest incentive to fight, don’t.

      See also:

      • suntzuanime says:

        Just because you’re actually innocent doesn’t mean you’re not guilty beyond reasonable doubt based on the evidence. Sometimes true evidence leads to false conclusions and it sucks, but what can you do? Well, you can invent DNA testing and all these other criminology techniques people use for these exonerations.

        Note that the threshold of the “ok, this evidence is convincing” in the sciences is p<0.05, and a 4% false positive rate falls neatly under that threshold. (Disclaimer, bayesianism priors, apples to oranges, science doesn't exactly work right either, and all that good stuff.) You're never going to have a perfect system, that's why it's "reasonable doubt" not "shadow of a doubt".

        • Matthew says:

          There are also plenty of things one can do before conviction, such as requiring interrogations to be videotaped. Also, since crime labs work for the state and are therefore effectively on the side of the prosecution, you would ideally have dummy samples to send to the crime labs for comparison along with samples from the actual suspect, and the testing would be blind.

        • suntzuanime says:

          Yes, absolutely. I didn’t mean to privilege scientific advancement over good old-fashioned good governance.

        • Douglas Knight says:

          It’s not 4%, but 22%. That is, 22% of the time that DNA evidence was available, the convicted was misidentified. But only 18% of the time was DNA evidence available. Multiply them together and you get the worthless 4% figure. In the case of rape, it’s the similar figure of 15% innocent, with much smaller error bars, since there’s more data because DNA is usually available.

          Matthew: the lab should commit to its analysis of the crime scene samples before taking any sample from the suspect.

        • Flesym says:

          Maybe I’m grappling with some priors here. I think if the police lined up the right evidence 96% of the time, and the prosecutors put together the case correctly 96% of the time, and defendants assessed the case against them accurately 96% of the time, then we should see that sort of accuracy elsewhere in society. And I think other parts of the profession, and other professions, have nowhere near that high a success rate. Do doctors get it right that often? I don’t know. Civil attorneys don’t. Stockbrokers and traders don’t, and their information flow is pretty good. Startup CEOs make correct decisions about 20% of the time, which is why they have to keep scrambling to correct themselves. I find it implausible that the messy criminal world yields the government such better evidence, and that the police and prosecutors are so much more adept at exploiting it, than occurs elsewhere.

          In addition, police have a disproportionate amount of power to shape the facts of the case during and after the arrest, and prosecutors have an absurdly higher amount of power at the bargaining table. If that power difference were equalized, and the success rate remained that high, then the case might be different.

          By way of comparison, the UK (a common law system with similarities to our own) has an 80-83% conviction rate, China and Russia 99%.

        • suntzuanime says:

          You can add Japan to your list of authoritarian hellholes with a 99% conviction rate.

          There are at least a dozen reasons why the conviction rate might be higher in one state than in another, only a few of which imply fascism. Give the issue some more thought.

          Note that 96% is considered a really terrible success rate in much of the business world. You may have heard the buzzword “six sigma”? That means failure is six standard deviations outside the norm, for a 99.9999998% success rate. We are far from having a factory-efficient system for convicting the accused.

        • Matthew says:

          I can’t tell if you were trying to be sarcastic with the “authoritarian hellhole” phrasing, but in the case of police investigative methodology, Japan is, in fact, an authoritarian hellhole. And they get testy in international fora when this is pointed out.

        • Douglas Knight says:

          It is problematic to compare the conviction rates in Japan and America. Roughly speaking, in Japan, you confess or they let you go. The 1% acquittal rate is confessions thrown out by the judge. I’m pretty sure that the rate of confessions or guilty pleas thrown out by the judge or rejected by the jury is smaller in America than Japan.

        • Flesym says:

          Doesn’t the lean six sigma figure you reference apply to quality control in manufacturing? I think my priors still point to a lower success rate in human decision-making in general, particularly in institutional contexts: colleges, schools, the VA (okay, low blow).

          It’s true that justice systems differ widely, as do populations, making it difficult to draw simple comparisons (in Germany, the prosecutor conducts the investigation, which does grant a certain latitude, but does not have the same power at sentencing). But I believe the United States is alone in granting its prosecutors the amount of discretion which they enjoy here.

          Consider: the prosecutor decides whether to indict you or not (grand juries are rather vestigial, not much of a check anymore). The prosecutor decides with which crime to charge you, which has a huge influence on the amount of time you could be facing. Within that crime, the prosecutor can ask for (and almost always receives) greater or lesser leniency. Turn it around: the prosecutor can threaten to add more charges or time should you prove uncooperative, and of course can then do so. The prosecutor can often freeze the assets with which you would have hired a competent, focused attorney. The prosecutor can threaten to charge your spouse if you refuse to plead. The prosecutor holds all the police evidence, and while the prosecutor has the duty to turn over exculpatory evidence to the defense, this does not always happen (Brady violations differ in frequency by DA’s office; some not at all, while I think the New Orleans office went twice to the Supreme Court in four years). The prosecutor may (and does) review the case with who may be the principal witnesses against you, the police, with predictable results at solidifying the case (remember that the evidence can consist of police testimony only, and often does). The prosecutor can also offer to drop the charges if you drop a civil rights lawsuit. Prosecutors are highly motivated to win, in my observation; they are litigators to the core (and would be proud to say so). I am not saying they are unethical, but I do think they have multiple motivations, several of which push them to see guilt and fight to prove it beyond what may be warranted. The defense has only one card to play: if every case goes to trial, the system will break, because there isn’t time for everyone to have a trial. It is literally a Prisoner’s Dilemma.

          Perhaps the above examples do not strike you the way they do me. I found them surprising and distressing (several are Supreme Court cases). Many legal scholars argue this system of plea bargaining invests far too much power in the prosecutor, essentially removing the adversarial aspect of our system, turning it into an inquisitorial system, negating defense counsel’s input, and leading to the temptation of overcharging. It is possible to have an inquisitorial system – France – but our system of review is predicated on the notion that the trial level uses an adversarial system.

          If a defendant does get beyond plea bargaining and go to trial (relatively rare), the trial itself has its own flaws. Trial is theater, which is inevitable, but usually the impresario is again the prosecutor. The police receive an excellent buildup, basically as expert witnesses, and often receive more credibility from the jury. The defendant cannot afford an O.J. Simpson attorney. And I think (and I’ve heard others say the same) that juries don’t really use the “beyond a reasonable doubt” standard. They don’t know how, even when they try. It’s hard (I mean, even I find it difficult). They often use “preponderance of the evidence” instead.

          So while I continue to believe that a 96% success rate in this context is prima facie implausible, there are other reasons why our conviction rate might be higher than it ought to be.

      • ACS says:

        Douglas Knight: You are wildly mischaracterizing those findings. When explicitly challenged in postconviction, which is only available, to a first approximation, to people who plead innocent, DNA evidence is exculpatory.

        The other way to state that fact is, “Only 15% of convicted rapists who explicitly select DNA evidence as a tactic in postconviction have exculpatory DNA evidence.”

        • Douglas Knight says:

          I’m referring to the Virginia data-set of every rape and murder assigned to a particular forensic examiner in a 15 year period and thus subject to no such bias.

      • Desertopa says:

        Whatever legal leverage prosecutors may or may not have to compel the accused to accept plea bargains, it’s important not to forget the social power they have to compel them. Theoretically, the accused always has access to a defense lawyer, but in practice the justice system is often so overtaxed that public defenders barely have time to meet all the people they’re supposed to be representing, let alone familiarize themselves with the details of the cases before it’s been determined whether they’ll go to trial. Prosecutors pressure people who are frequently confused and lacking in good counsel to accept plea bargains which they might well reject if they had a clearer understanding of their situations.

        This book discusses (among other subjects) how it’s often applied in practice; in some cases, the accused aren’t even properly aware of what the consequences of accepting the plea bargain will be until they’ve already done so.

    • peppermint says:

      I submit to you that the probability that the police and prosecutor have beyond-a-reasonable-doubt evidence 96% of the time is quite low


    • Matt S Trout says:

      For low level offenses, most defendants are guilty and the high plea rate reflects that – at least in the UK, where I met a criminal solicitor who focused on ensuring those defendants got a sentence that included probation and rehabilitation because she worked out that was the thing in their interests.

      So, the number I remember but haven’t looked up, is a 93% guilty plea rate in magistrates’ court – 96 still sounds troublingly high, but I would expect it to be close to that high anyway.

  9. Zathille says:

    I just wonder what the opinion of the folks over at would be. I’m sure they’d be able to contribute to a discussion of this. Has this post been linked on their page?

  10. drethelin says:

    Another example of the legal system being owned to society’s detriment: According to my dad, who runs a biotech company but is not a lawyer, recent changes to patent law mean it’s perfectly legal to file a patent on someone else’s product (or interpret one of your existing extremely broad patents to cover it), and then sue them out of existence over it. This doesn’t happen to the big dogs because the lawsuit is of course in favor of the defendant, and the reason it can work at all is that a multibillion dollar company can simply afford to pay their lawyers far better for far longer than any small-scale inventor. By the time the case would’ve gotten to the point where someone could look and go “obviously you had this idea first”, the lone inventor is bankrupt.

    • Anonymous says:

      “recent changes”? I don’t believe it.

      • rich says:

        Actually the USA did switch patents from first-to-invent to first-to-file in 2011, to match the rest of the world.

        However, the idea of bigger companies having more money to pay better lawyers is rather older…

        • Anonymous says:

          Oh, that’s probably what he’s thinking of. It doesn’t actually have any relevant effects, but the names are quite suggestive. And I didn’t mean to dispute the claim about the system as it is, only that it was due to a recent change. It has been a slow process of people figuring out how to abuse the system.

  11. Dave says:

    ” This is an extremely basic point. All stroke doctors know it. I know it.”

    Hell, I was just a stroke _patient_, who first had this explained to me when I was suffering traumatic brain damage and significant difficulty forming memories (which may be redundant, but I’m told a lot of the memory issues were a side-effect of anti-anxiety meds they had me on rather than a result of the brain damage itself) and even _I_ know it! (As mine was a hemorrhagic stroke, it’s an important part of the “why I’m not dead” narrative.)


  12. FYI, there’s a <font size="0"> tag in your post for no apparent reason.

  13. Daniel H says:

    I tried to track this case down using Google Scholar, and got no relevant results (although I did see malpractice cases where herapin was used and it caused complications). I have three non-exclusive hypotheses, each reasonably likely: 1. It didn’t happen, 2. Google Scholar’s index of legal cases is incomplete, or 3. I fail at using Google Scholar.

    • LRS says:

      As a longtime user of Google Scholar as a legal research tool, I can confirm that Google Scholar’s index of cases is incomplete. It indexes most published appellate court decisions of the past 50 or so years, some published federal trial court decisions, and a handful of other things like unpublished entry orders. It does not purport to be a comprehensive index of legal proceedings. Nonetheless, it’s still superior in many ways to Lexis and Westlaw, the incumbent duopoly of legal research engines.

    • Anonymous says:

      At least in Canada, it would be very unlikely that any publisher would have a decision decided by a jury, since juries don’t give any reasons. The best you could hope for in Canada would be interlocutory decisions on motions, like the one to exclude evidence. Even then, it probably won’t get published if it is delivered orally, which it usually would be in a jury case since it would be really inconvenient to the jury if the trial had to adjourn for a few days for the judge to write a decision.

      That said, all trials are public. If you knew the jurisdiction and the defendant’s name, you would probably be able to find some record of it.

    • Fezziwig says:

      #2 is definitely true. #1 and #3 could _also_ be true, but #2 is a certainty. You want WestLaw or Lexis, I guess. Any readers here have a subscription?

      • Jordan D. says:

        Yeah. I browsed about a bit this morning, and while I found plenty of cases involving heparin and malpractice, I didn’t see anything which looked substantially like this case. That could easily be down to the sheer number of malpractice cases and the fact that I don’t know the jurisdiction or party names, though.

      • Lesser Bull says:

        I wouldn’t expect to find it on Westlaw or Lexis either, if it was a state trial court. Those courts rarely enter substantive opinions in jury cases and rarely have their dispositions indexed either.

    • Scott Alexander says:

      Doctor’s name is (rot13) Gnuve

      • Daniel H says:

        Putting that name, “malpractice”, and “stroke” in the Google Scholar search box gives no results (same with that name, “malpractice”, and “heparin”). Can anybody check elsewhere?

  14. Deiseach says:

    This post is stirring up a lot of unresolved emotions in me, and I apologise in advance but I’m going to rant here. I’m about half convinced our local hospital killed my father, who died of a stroke.

    Let me walk you through the events of six years ago. My father had a leaky heart valve since his 20s, which was only discovered in his later 40s when he was undergoing a medical examination for heart arrhythmia. Treatment was basically “Ah sure, you’re doing fine as you are” until his late 60s/70s, when he was put on a course of warfarin because his blood tended to clot (I’m fuzzy on the details because nobody bothered their arses to explain to him or us what was going on and we were too bloody worried to ask hard questions and we trusted the medical profession to know their arses from their elbows). This course was discontinued eventually – again, don’t know why.

    Anyway, the valve problems meant occasional blood clots. Not really a problem all round, until he had to go on dialysis after sudden kidney failure. Regularly they had to stop the dialysis and start all over again, because the blood clots would clog up the machine.

    Okay, this is going on for a couple of years. Then one day he notices his lower leg is a bit swollen (he has problems putting on his sock on that leg) and he thinks (and we think) “Get this checked out at the A&E next time he’s down for dialysis”.

    Comes back home with a compression bandage on the ankle and tells us “They said I sprained my ankle”. We wonder about this, but think nothing of it: after all, they’re medical professionals, they know more about this than us, right?

    Leg continues to swell. Massively. Goes dead white and icy cold (I am not exaggerating here, this is what happened). We’re worried. He has to take off the compression bandage because it hurts too much. Luckily, he’s due another round of dialysis in a couple of days so we’ll get it seen to then, right? After all, it looks bad, but it’s only a sprained ankle and nothing more serious.

    Yeah. And then I walk in to help him get ready the morning he’s due for dialysis and find him fallen out of bed on the floor, unable to speak or move. He’s had a stroke.

    Turns out it wasn’t a sprained ankle. It was a blood clot in the leg which broke free, travelled to the brain, caused the stroke which ended up killing him. Which we stupid lay people assumed the medical staff had all this about the leaky valve and the blood clots and the problems with dialysis in his medical notes, and read them, and could damn well tell the difference between a sprained ankle and a venous embolism.

    And that is why I wouldn’t willingly send a rabid dog to our local regional hospital if I had a choice in the matter. Also, don’t talk to me about consultants: of the three different consultants in that same hospital that I unfortunately had to see for my own health problems, one of them treated me as if I were a human being, one of them wouldn’t listen to me when I tried to tell him pertinent information which he later bloody well needed, and one of them was such a pig that I ended up throwing a tantrum and storming out.

    I’m not proud of that last and I’ve never behaved like that in my life. But you wouldn’t treat the same rabid dog the way he acted to me.

    And that is why I don’t take the word of your nice neurologist consultant about how he did everything he could for the patient but a shyster lawyer convinced a grieving family to sue his backside off.

    Actually, when my father had the kidney failure, the hospital was quite prepared to let him die since he was – by their view – already elderly (in his late 70s) and wouldn’t come out of it, so did we want him resuscitated if he crashed say ‘no’. We said “Hell yes we do want that” instead, they had to do it twice, and they sent him home to us obviously convinced he was going home to die.

    Well, he got better and got another six years of life. His consultant nephrologist, who was a genuinely nice man, used to refer to him as “my miracle man” for his survival and recovery and we family cynically said amongst ourselves “That’s only because we wouldn’t let you lot kill him”.

    • Armstrong For President 2020 says:

      Stupid question, but did this take place in the UK?

    • Phil Goetz says:

      I’ve been to a frightful number of doctors for different reasons. Here’s a simple test for a doctor:

      – Does he or she flatly contradict the other doctors I’ve consulted for the same problem? (ALWAYS consult at least 2 doctors for major problems. ALWAYS ALWAYS.)

      – Does he deny that I have the symptoms I claim to have?

      – Can I discover critical, non-controversial facts relevant to my treatment that he is unaware of by spending one hour on google? Ask him to list the treatment possibilities, then name the options he didn’t list and ask why he didn’t mention them.

      – Is there a mechanism in place for me to send a message to the doctor and get a response within a few days?

      When you find doctors who pass all these tests, stick with them.

  15. Hugh Jass says:

    > I have ensmallened the post below

    Er, don’t you mean “debigulated”?

  16. triage says:

    And anticoagulants like heparin should never be given until a haemorrhagic stroke has been radiologically ruled out, or they might kill the patient.

    Has anyone actually done a QALY calculation on the triage between ischemic and hemorrhagic strokes? Would it be such a loss to just kill all the hemorrhagic victims? They are rare, much more likely to die, and much more likely to have brain damage. (Sorry, Dave, I can do that.)

    • triage says:

      Actually, the fact that ischemic strokes aren’t actually that bad is an argument for choosing not to treat them. If hemorrhagic strokes are 1/10 as common as ischemic strokes and kill 50%, then immediate heparin has to reduce the death rate in ischemic strokes by 5 points to make up for killing the hemorrhagic victims. But google tells me that only 10% of ischemic stroke victims die, so the break even point is saving half of their lives. That’s not very plausible.

    • Dave says:

      > “Sorry, Dave, I can do that”

      So, it’s an interesting thing.

      On the one hand, I endorse asking these sorts of questions and doing the consequentialist math, and I endorse supporting policies that screw over a group I’m in when they favor a group I care about and the math works out.

      On the other hand, my stroke was traumatic in a big way, and I have trouble thinking clearly about it.

      The upshot of which is that while the usual collection of earnest do-gooders who show up for town-hall meetings in my head are in there agreeing that this is totally a question we ought to ask, they are almost completely drowned out by a large contingent of cranks who are parading up and down waving barely coherent signs, yelling slogans, pelting speakers with rotten fruit, and generally obstructing the process while they insist we arm the battlements and tell you to fuck off.

      This tension is not too uncommon, but this question puts it in _particularly_ sharp relief. I mostly identify with the “earnest do-gooder” parts of my mind, so the subjective result is more or less of my mind being invaded and held hostage by outside forces.

      All of which is to say, you’re right that it’s a question worth asking, and you shouldn’t trust anything I say on the matter, since mostly I want to respond by becoming outraged and partisan.

      That being said: my understanding is that there’s a roughly 3-hour window for administering anti-coagulants in which administering them earlier doesn’t make too much difference, so waiting to identify hemorrhagic strokes in most cases doesn’t do much damage (if any) to the ischemic stroke victims.

      (Caveat: IANAD, not even a little bit, though I’ve read a lot about strokes for obvious reasons. And, as above, I’m largely irrational on this question and neither you nor I should trust me too much.)

      • triage says:

        screw over a group I’m in

        This ought not to be controversial because it is not about a trade-off between existing groups. It’s not standard triage between two patients in front of the doctor, but all about the doctor not knowing what group the patient is in. When the doctor faces this choice, he has a patient in front of him and is trying to save that very patient, and has to make a decision under uncertainty. Ex post, you know what group you are in and it is very scary. But that’s like being disappointed in Newcomb’s problem.

        roughly 3-hour window

        I’m pretty skeptical of this claim. A window sounds too convenient for avoiding the triage problem. If I were to do this calculation, I’d assume that the cost to ischemics of the relevant 1 hour delay is 1/3 of the claimed claimed cost of delaying 3 hours. That factor of 3 almost certainly decides things in favor of the hemorrhagic victims and not administering heparin immediately.

  17. Phil Goetz says:

    I wonder if, in the same way nobody expects to find themselves in prison, nobody expects to find themselves in court. Or at least, the probability of finding yourself in court is sufficiently low that no one has the energy to solve the collective action problem of getting a thousand people with a tiny chance of ending up in court to petition to make the courts fairer. So lawyers and witnesses and plaintiffs can do whatever the heck they want, because everyone assures themselves they’ll never be a defendant and so they have no reason to care.

    That’s a straw man. A better starting point is: Given the odds of finding yourself in court or in prison, would it be rational to do anything about the problems with them? And also: Can someone who’s never been in court or prison know enough about them to do anything about them?

  18. Douglas Knight says:

    nobody expects to find themselves in court

    But doctors should expect to find themselves in court! Indeed, wasn’t the point of this seminar to mold your expectations?

    Every 12 years. Neurologists are average. Psychiatrists only every 30 years. Well, actually, those are claims, not ones that make it to court, but court costs and rules are what determine this. I thought most claims were tuned to produce a settlement without going to court. If that’s true and only 20% pay out, most must be called bluffs, a detail I’ve never heard.

    Also, insurance companies expect to find themselves in court. But if price on a cost plus basis, maybe they don’t have an incentive to keep costs down.

    Trivia: neurology and ophthalmology are the only specialties where the mean payout is close to the median.