Eric Rasmusen’s Weblog

I’m still happy with Dreamworks as a server and Wordpress for blogging software now that I’ve had a few weeks’ experience with them. Some notes:

Dreamworks: It really is good having shell access. I am able to do delete of entire directories using unix commands, and to do batch uploads and downloads of multiple files easily, which is much better than using WSFTP (which times out after a half an hour) or web software (which at Powweb only allowed one-by-one file ftping). Shifting over my domain took a while, but that was as much my fault as anything, I think.

Wordpress: Wordpress style files are harder to use than Movable Type, but updating is much much quicker– no lengthy rebuilds. The problem is not so much the software itself, I think, as poor documentation. Also, the posting box is much better, and the categorization, and my spam problem has vanished due to the built-in anti-spam precautions of wordpress (I haven’t gotten trackbacks working yet, though– I need to figure out the style command for that.)

Style CSS: This code is a pain. Customization is not easy, and I still haven’t figured out how the various commands interact and which take priority. I’ve put my Wordpress main style files in the header of this blog. I hope that may help others. One can download “themes” of other people, but it is hard to just see a style file up on the web and compare it to the weblog that uses it, because the weblog’s own VIEW SOURCE doesn’t have the style file.

We were talking about whether Supreme Court judges should be help in respect or not at lunch, and some people thought that it was good to have one part of government that was unelected and with life tenure. I’m not completely opposed to that idea, but I think the system of having nine lawyers, all having been required to pass consitutional law classes at liberal law schools and relying mainly on discussions with a few staffers just two years out of law schools (their clerks) is a bad idea, if we are to let them make policy on issues ranging from abortion to homosexuality to tax law to environmental regulation. Here are a few alternatives:

1. Elect the Supreme Court to six-year terms, three of them every two years, like senators, and with no requirement of a law degree. They would then have to justify themselves to voters and the 99.9% of us who aren’t lawyers would have a chance to put our policy desires into action. Also allow each judge 10 staffers, so lack of expertise in particular areas of the law or of policy wouldn’t matter.

2. Instead of appointing nine lawyers to the Supreme Court, appoint nine people who, like me, have PhDs in economics. If you’re making broad policy, leaving the details to be worked out by other people, you don’t need people who like lawyers have skills in argument and document-drafting. Instead, you need experts who are good at trading off costs and benefits, analyzing data, and eeing indirect consequences of laws– that is, economists. Plus, our training is less ideological and we’re more academic and less politically involved than lawyers.

3. Instead of appointing nine lawyers in mid-life, make the Supreme Court hereditary, with a retirement age of 60, but give the judges a staff of 10 lawyers each. Our current system has old people making decisions using youthful, inexperienced, advisors. My system would have a mix of young and old people making decisions using wise, experienced, advisors. It would make the Court more representative of America generally, since hereditary succession will produce more random results than choosing justices from the Bar. It will also appoint people who since youth have been prepared to assume their hereditary duties, instilled with a sense of duty and fairness, as opposed to appointing lawyers, cynical people who are trained in winning arguments regardless of morality or truth and who are used to winning battles for their clients and crushing everybody else.

While I’m on the subject of radical reform, might I suggest a milder option? It is now suggested that we adopt the “nuclear option” or “Byrd option” of eventually confirming any judicial nominee who can get the votes of a majority of senators, returning the old system we had before we adopted the requirement of needing 60% of senators in 2000. This would slowly reform the court system.

But that this is called the “nuclear option” shows people’s lack of imagination. How about the “thermonuclear option”: pass legislation to increase the size of the court to 21, so Bush can appoint 12 new justices?

That, of course, is court-packing, but calling it by that name is not the same as arguing against it. Roosevelt’s court-packing in the 1930’s was defeated because even Democrats were scared of Roosevelt’s vast power and his clear appetite for increasing it far beyond historical bounds. Bush certainly isn’t that scary to Republicans, and not, I think, even to Democrats. What would Bush do if the Supreme Court didn’t exist to strike down his legislation? Well, pretty much the same thing as he’s already been doing– the Supreme Court has not been striking down his legislative program. We might get laws like a ban on partial-birth abortion and more restrictions on pornography, but it’s nothing like Roosevelt’s radical innovations in trying to control every detail of the U.S. economy.

I rarely read Paul Krugman since he started writing so wildly a few years ago, but I saw his Schiavo column today and it exposes a common blindspot in liberals. He says:

There is a nationwide trend toward “conscience” or “refusal” legislation. Laws in Illinois and Mississippi already allow doctors and other health providers to deny virtually any procedure to any patient. Again, think of how such laws expose doctors to pressure and intimidation.

Without irony, he is saying that a law which allows doctors not to treat somebody exposes them to pressure. A law which required them to treat people on pain of fines and imprisonment, on the other hand, apparently would free them from pressure and intimidation.

The general fallacy that this illustrates is the idea that we have to fear oppression by other people, but never by government. If the government does it, it isn’t pressure and intimidation. By Professor Krugman’s logic, under Stalin, people had very little to fear from pressure and intimidation. Stalin made the government strong enough that nobody dared do such bad things.

At the end of this post is the abstract for an old article of mine on why managers are conservative. Here’s another possible reason. Suppose that a manager’s pay depends on his perceived skill as in the diagram above. If his skill is thought to be low, he isn’t hired and he earns $0 from the firm. If his skill is thought to be high enough, he is hired. If his skill is still higher, he is promoted to a higher salary step, all the way up to the CEO, who in the graph is given a maximum possible pay (a maximum not essential for the story I am going to tell).

I think a story can be told similar to the one in my JEMS article for why most managers in the firm will be nearer being fired to being promoted– that is, in the lower half of their step’s skill level, not the upper half. The reasoning would go something like this. Most people in the population are thought to have such low skill that they are not even hired– so they make no decisions for the firm. Some few people look good enough, so they are hired into the first step. But since most people are lower skill, most people hired are in the bottom half of the irst step, not the upper half. Similarly, most people don’t get promoted past the first step. So in the second step, more people are in the lower half than the upper half.

Here is why this creates managerial conservatism. If you are a manager in the lower half of your step, and are given a 50-50 gamble on whether to have your perceived skill rise or fall half a step, you will reject the gamble. If you rise, you still are not good enough to get a promotion. If you fall, you get fired or demoted. Most managers are in the lower half of their step, so most managers are conservative and avoid taking gambles.

Another stimulating lunch today. Loss aversion means not just that the person prefers no gamble to a 50-50 win-lose gamble, but that they strictly prefer no gamble even for vanishingly small risks. Here are three graphs that represent different ways of modelling loss aversion. In each, I suppose the person’s underlying utility function is risk neutral, to represent this idea that people shouldn’t care about trivial risks.

One graph is for prospect theory, which says that people treat the probability of a loss as being greater than its objective value and the probability of a gain as being less than its objective value. Prospect theory does not ask why this is true; it just accepts it as a given.

Another graph is for a regret cost model. In this story, people suffer a fixed cost utility loss from losing a gamble, in addition to the money they lose, but no fixed-benefit gain from winning.

The third aph, the top one, is for an adjustment cost model. In this story, people need to incur some thinking costs to adjust their behavior when they either win or lose. This means that (a) there is a fixed cost of losing, similar to regret, and (b) there is no gain from winning until the amount won exceeds the adjustment cost (I assume the person can just not collect the winnings if he doesn’t want to bother with them.)

Experiments could distinguish between these three model. Prospect theory, for example, says that if someone prefers (a) to (b) in

(a) no gamble

(b) 50% probability of winning $10, 50% probability of losing $9,

then he will also prefer (a) to (b) in

(a) Losing $100 for sure

(b) 50% probability of losing $90, 50% probability of losing $109

I’ve been puzzling over the Diff-in-Diffs method since a lunch discussion last week. I’ve clarified my thinking enough to get stymied, so I’ll record my thoughts here, and perhaps someone can explain it further. Non-economists: you will probably be mystified by this, but perhaps amused by the terminology.

Suppose we have 100 counties of data. We want to see if death rates for males depends on whisky consumption in a county. We are reasonably sure that death rates for females do not depend on whisky consumption. One regression we could run is

(1) Maledeath = B1*Femaledeath + B2*Whisky + Epsilon,

where there would be N=100 observations, one for each county, each with its own random disturbance Epsilon.

We would then test to see if B2 is significant, B1 having picked up the effect of most of the omitted relevant variables (e.g., proportion of elderly, income) that vary from county to county.

As I understand it, the standard Diff-in-Diffs approach does something different. It runs this regression:

(2) Deathrate = (County Dummies)+ D1*(Dummy for Maledeath) + D2*(Dummy for Maledeath)*Whisky + Epsilon,

where there would be N=200 observations, two for each county, where “Deathrate” would be Maledeath for 100 observations and Femaledeath for 100 observations, where (Dummy for Maledeath) would be 1 if Deathrate were Maledeath and 0 if it were Femaledeath, and where there would be 100 County Dummies.

We would then test to see if D1 were significant, the County Dummies having picked up most of the omitted relevant variables (e.g., proportion of elderly, income) that vary from county to county.

How do approaches (1) and (2) differ?

(A) How do they control for omitted variables?

Method (1) assumes that in the absence of whisky and Epsilon, the male death rate would be B1 times the female death rate in each county.

Method (2) assumes that in the absence of whisky and Epsilon, the male death rate in a county would equal the Constant plus D1 plus the county’s dummy. I think — but I might be wrong– that the county’s dummy equals its female death rate. D1 would add a constant amount to the female death rate to get the male death rate.

Thus, Method (1) says that to get the male death rate you start with the female death rate and scale it up using D1, whereas Method (2) says you start with the female death rate and add D1 to it.

(B) What do they assume about Epsilon?

Method (1) has 100 observations, with 100 independent county disturbances that add equally to male deaths and to female deaths. Method (2) has 200 observations, with 200 independent county/sex disturbances, but it also has 100 more variables– the county dummies– so it does not have any more degrees of freedom. Is there a difference, then? I think there must be, but I’m not sure what it is. Method (2) really says that there are three independent disturbances, one affecting male deaths, one affecting female deaths, and one common to them both. The County Dummies pick up the common disturbance.

George Neumayr at the American Spectator has a good column on the politics of the Schiavo case.

To embarrass the Republicans and ensure that everyone would feel good about killing Schiavo, the media dug down into their bag of malicious tricks, using tendentious polling, a smear job against Tom DeLay, reports of faux-concern about conservative division (worrying about a cohesive Republican Party is of course foremost in their minds), and flat-out Orwellian propaganda to confuse the matter as much as possible.

The reliance on euphemism was almost nonstop. Much of the coverage was cast in the passive terms of not “prolonging” a life rather than starving a woman to death.

Just to repeat, the tactics are:

1. Conduct a poll designed to make it look as if the action is unpopular.
2. Smear a Republican leader as a distraction.
3. Write articles about divisions in conservative or Republican ranks.
4. Use euphemisms to rephrase the issue to make the conservatives look unreasonable.

A recent issue has been whether Terri Schiavo is suffering from dying of thirst. Even if we accept that she is in a “persistent vegetative state”, that does not answer the question– not in the slightest. Many if not all animals lack consciousness, yet they can feel pain. Could it be that Terri Schiavo can feel pleasure and pain just as much as any of the rest of us? Indeed, if she lacks higher brain functions, could it not be that lying on a bed being kept warm and healthy is enough to make her blissfully happy, but that being cold or hungry would hurt her even more than it would hurt those of us who can take our minds off it by conscious thought?

I haven’t seen good discussion of this. What seems to be the case is that Terri’s brain is functioning fine as far as keeping her body healthy, but that the biggest part of the brain, the cerebrum, is mostly inactive. She was nowhere near being brain-dead; on that, everyone agrees. Since the brainstem and midbrain control such things as body temperature and heartbeat, do they also control such things as pain? In that case, I would think that Terri feels pain, even if she cannot express it.

As an indication for why we can’t trust doctors or other experts in cases such as Terri Schiavo, see the horrifying Medpage article, “Schiavo Feels No Pain”, which makes the claim of its title.

Patients in a persistent vegetative state like Terri Schiavo are a subgroup who suffer severe anoxic brain injury and progress to a state of wakefulness without awareness.

It is judged to be permanent after three months if induced nontraumatically. After 3 months, recovery is rare and life expectancy is approximately 2 to 5 years.

Patients in a persistent vegetative state do not feel pain, nor do they “suffer, ” says Michael De Georgia, MD, head of the neurology-neurosurgery intensive care unit at the Cleveland Clinic Foundation here.

Pain, as well as suffering, requires consciousness, which is lacking in a person in a persistent vegetative state, says Dr. De Georgia.

“Certainly these patients don’t suffer,” he adds. “Suffering is really that whole emotional aspect of pain: fear, anxiety, panic surrounding pain. You have to have consciousness to experience these emotions. So just as a person in a persistent vegetative state can’t experience pain because of a lack of consciousness, they also don’t suffer.” …

Dr. De Georgia says that a patient in a persistent vegetative state can experience arousal, meaning that the patient’s eyes may be open and the patient may laugh, cry or appear to track someone who is in the room.

And that is what can be confusing for people, especially relatives, he says. “For example, a patient in persistent vegetative state will grasp your hand. In fact if you put anything into the patient’s hand, the hand will grasp it. But this is a very primitive reaction. A newborn baby will grasp your finger, but there is no consciousness.”

It is consciousness that determines whether one can “feel” pain in the sense that most people understand when they talk about feeling pain.

This doesn’t mean that a patient like Terri Schiavo won’t respond to pain stimulus - if you pinch her arm, she is like to flinch away. “That is called nociception,” De Georgia says. “Tissue is damaged by the pinch, this generates a response in a receptor, which sends an impulse along the peripheral nerves. This impulse travels to the thalamus, which directs the arm to withdraw,” he said. It is what is commonly called a reflex.

Pain, on the other hand, is the recognition of nociception by the nervous system, which sends the impulse to regions of the brain where consciousness exists. In the case of a severely brain injured person - one in a persistent vegetative state - those areas of consciousness have been destroyed, and as result “they don’t ‘feel’ pain.”

Dr. De Georgia says that a new-born baby cannot feel pain. He says that someone might flinch from torture, but not be in pain. He says that they can be pinched, their skin can react by sending a signal to the brain, and the brain can process that signal in the thalamus– a part of the midbrain which may well have been undamaged in Terri Schiavo (all the discussion has been of the cerebral cortex)– and the brain can direct other parts of the body to react, but that still doesn’t count as pain. It is only pain if the patient is conscious.

Thus, when a doctor says that something won’t hurt, don’t count on him meaning that agonizing nerve impulses won’t travel up to your brain and be registered there. He just means you won’t be able to complain about it.

I just found a distressing medical article which seems to be saying that vegetative patients do feel pain, and even react to it in their cerebral cortex, and even react to noises there, despite showing no outward signs of consciousness:

Author: Dana
Short Link: http://www.houseoffusion.com/lists.cfm/link=m:5:16519:151206

http://www.jsmf.org/meetings/2003/nov/LaureysANB2002.pdf

Acta neurol. belg., 2002, 102, 177-185

Our group was the first to study pain perception in persistent vegetative state patients (Laureys et al., 2002a). Using PET, we measured changes in regional cerebral blood flow during high intensity electrical stimulation of the median nerve at the wrist compared to rest in fifteen non-sedated patients and in fifteen healthy controls. Evoked potentials were recorded simultaneously. Brain glucose metabolism was also quantified in each patient. The stimuli were experienced as highly unpleasant to painful in controls. In patients, overall cerebral metabolism was 40% of normal values. Nevertheless, noxious somatosensory stimulation activated midbrain, contralateral thalamus and primary somatosensory cortex in each and every vegetative patient, even in the absence of detectable cortical evoked potentials. Secondary somatosensory, bilateral insular, posterior parietal and anterior cingulate cortices did not show activation in any patient.

Note that the “primary somatosensory cortex” is part of the cerebral cortex, so even though these patients were vegetative, some of their cortex did survive and react to pain. In fact, their brains, if not their faces, even reacted to noises:

Similarly, auditory stimulation (95 dB clicks) activated bilateral primary, but not associative, auditory cortices in vegetative patients (Laureys et al., 2000b). Functional connectivity assessment revealed that the auditory association cortex was ‘disconnected’ from posterior parietal cortex, anterior cingulate cortex and hippocampus (Laureys et al., 2000a). Thus, despite an altered resting metabolism, primary cortices still seem to activate during external stimulation in vegetative patients whereas hierarchically higher-order multimodal association areas do not. The observed cortical activation is isolated and dissociated from higher-order associative cortices, suggesting that the observed residual cortical processing in the vegetative state is insufficient to lead to integrative processes thought to be necessary to attain the normal level of awareness (Schiff et al., 2002).

So even though these people may not be able to think, they can feel. But who are we to say that they cannot think? By “thinking” it seems we mean that certain parts of their brains react which in healthy people react during the activity we call thinking. In these patients, those parts of the brain do nothing, but other parts– the ones which in healthy people are associated with feeling stimuli– do react.

An electric pencil sharpener is a great toy for teaching how to take turns. Right now Benjamin (3 years) and Lily (1 1/2) are happily taking turns sharpening a pencil. The sharpener vibrates and makes a satisfying noise, and ends with a task accomplished. Benjamin sharpens for a little, and Lily says “Mytun”. Lily sharpens a little, and Benjamin says “My tone”. Every once in a while Benjamin would check to see if the pencil was sharp yet. And one person could hold onto the sharpener and feel its vibration even while the other held down the pencil to make it go.

Here is an important story about recovery from a “vegetative state”.

. In 1995, Kate Adamson was in a similar position. She was in a vegetative state after suffering a stroke.

For almost 70 days, she was totally unresponsive. Doctors finally pulled her feeding tube. And, for eight days, she was dying.

Then Ms. Adamson began responding on her own. Doctors quickly put the feeding tube back in, and she recovered.

Hume’s “miracle argument” is relevant here. He said that if apparent miracle X happens, you have to consider the possibility that whoever is telling you about X is wrong, lying or just misinformed. Here, keep in mind that whoever tells you that a patient is in a vegetative state might be wrong. Even if nobody every recovers from a true “vegetative state”, however that is defined, it is quite possible to recover from a state diagnosed as vegetative. And it is the diagnosis, not the reality, which must be used in decisionmaking.

Professor Bainbridge has a good summary post on Senator Biden’s misdeeds, which include at least three instances of plagiarism, including while at law school.

I found a wonderful article on 13 Anomalies in Science, via Marginal Revolution. It will be useful whenever I want to cite examples of how our accepted theories often are flawed, but still the best theories around, as well as being good for general education. Here’s one example:

2 The horizon problem

OUR universe appears to be unfathomably uniform. Look across space from one edge of the visible universe to the other, and you’ll see that the microwave background radiation filling the cosmos is at the same temperature everywhere. That may not seem surprising until you consider that the two edges are nearly 28 billion light years apart and our universe is only 14 billion years old.

Nothing can travel faster than the speed of light, so there is no way heat radiation could have travelled between the two horizons to even out the hot and cold spots created in the big bang and leave the thermal equilibrium we see now.

The 11th Circuit opinion on Schiavo is disgraceful.

The opinion clearly says that somebody can be put to death even if there is not clear and convincing evidence that such is their will. Indeed, the logic of the case is that a state could enable a judge to require removal of medical care from even temporarily incapacitated people– say, someone in the hospital for an operation– unless there was clear and convincing evidence that the person did *not* want to die. Florida law does not go that far, but the appeals court says it could.

.
Remember– in writing this opinion, the appeals court is accepting, for the moment, the factual assertions of the plaintiffs and the constitutionality of the federal law, and saying that the plaintiffs would lose anyway. Thus, the appeals court has said that even if the evidence indicates that Terri would have wanted to live and the Florida judge was clearly wrong when he claimed she would not, the new federal law requiring a de novo decision still does not allow a federal court to overrule the state judge, because the 14th Amendment does not prevent a state from blocking a person’s access to medical care on the basis of even a small amount of evidence that such was the person’s desire.

Keep in mind, too, that this case is not about whether a person’s husband is the one to make the decision. It has clearly established that it is *not*. Rather, it is a court-appointed guardian– in this case, the judge himself– who makes the decision based on his judgement of the person’s intent, regardless of the desires of the husband or anyone else in the family.

Suppose a woman was in a persistent vegetative state– legally alive, but unable to talk ever again. She is accused of having committed a heinous capital murder, one subject to the death penalty by slow starvation under state’s law. Her state says that to establish her guilt and penalty requires due process. This process consists of a trial before a judge, with appeal to a three-judge panel. If the trial judge thinks there is “clear and convincing evidence” that she committed the murder, she will be found guilty and executed. She can appeal to the three-judge panel, but they will reverse the trial judge only if they think he has made a gross error, not just if they think he is probably wrong in thinking the evidence is clear and convincing.

At the trial, there are six witnesses. One is an expert witness who says that it is very common for women of this age and race to commit crimes. The other five are testifying about conversations with the accused that took place several years before. The mother of the accused says she heard her say she didn’t commit the murder. A friend says that on Sunday, June 17 she heard the accused say she didn’t do it. The woman’s unfaithful husband and heir says he heard her say she did the murder. Two other witnesses, the husband’s brother and brother’s wife, who say that in separate conversations, one at a funeral, one while watching TV, they heard the accused say she’d murdered someone, though it didn’t seem to be quite the same victim as in the present case.

The judge says he won’t pay much attention to the mother and husband, because they are biased. He won’t pay much attention to the friend, because she was wrong in thinking June 17 was a Sunday– it was a Saturday– so her memory must not be very good. (It turns out later that the judge was wrong, though– June 17 was indeed a Sunday.) But the judge says he finds the testimony of the husband’s brother and brother’s wife clear and convincing evidence of murder, and orders the execution to take place.

An appeal is made. The appellate court says it is satisfied with the decision of the trial judge.

A filing is made in federal court, saying the accused is being deprived of life without due process of law. Should the accused win, or lose?

(We could add for Judge Whittemore’s sake that the trial judge didn’t actually order an agent of the state to execute the death sentence. The judge merely commands the hospice where the accused is staying to make sure no food and drink reaches her till she is dead.)

Andrew McCarthy has a good article in National Review Online in which he argues that existing law says a state cannot cause someone’s death without proof beyond a reasonable doubt, so the state of Florida cannot cause Terri Schiavo’s death. The point seems to me irrefutable. It does need slight elaboration:

1. Isn’t Terri already dead, legally? No. I think the Florida standard is probably that a person be brain-dead, and nobody argues that she is. Maybe you think the law should define “death” differently, but according to standard definitions, she is alive.

2. Is denying nutrition causing someone’s death? Yes, especially if in addition you stop anybody else from giving the person nutrition. If I starve myself to death, that is suicide, not death by illness. If you prevent food from reaching me, that is murder, not denial of medical care. Note that this case is not just about taking doctors away from Terri— no amateur is allowed to try to pour soup down a tube to her stomach either. And I doubt she’s needed a doctor for a long time anyway– she’s been in a hospice, not a hospital.

3. Isn’t it Terri’s own desire that she die now, not the state’s? Well, that’s the question. If you can establish that to a jury beyond a reasonable doubt, go ahead. But the evidence is scanty, and as Mr. McCarthy says, if it were the case that Terri were being charged with the crime of “Being in a Persistent Vegetative State”, the judge would throw out even a unanimous jury decision as being totally unreasonable. As it is, one judge has said that he thinks there is “clear and convincing evidence” that Terri wished to die, but that evidence is dubious and the judge based it on an undisputably wrong belief– that Karen Ann Quinlan was dead in 1982 and so witnesses remembering conversations about her must be unreliable.

Here is what Count 8 of the Amended Complaint says (Count 10 is the substantive due process version of the same thing, based on these same fact claims):

VIOLATION OF FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO SUBSTITUTED JUDGMENT DECISION BASED ON CLEAR AND CONVINCING EVIDENCE STANDARD…

91. The State trial court relied on the testimony of five individuals (Mary Schindler, Diane Christine Meyer, Michael Schiavo, Scott Schiavo, and Joan Schiavo) regarding comments made by Terri about artificial life support for incapacitated persons.

91. [Rasmusen– a typo, should have been 92] Mary Schindler, Terri’s mother, testified that Terri, commenting about the Karen Ann Quinlan case (Woman in pvs on a respirator), stated that the father should just leave her alone and not attempt to remove the life support.

93. Diane Christine Meyer, a friend of the family, testified about a similar “end-of-life” conversation with Terri in 1982 in which Terri stated that she did not approve of the parents’ attempts to remove life support from Quinlan.

94. Judge Greer discounted the Quinlan reference testimony of Mrs. Schindler and Ms. Meyer based on his erroneous personal belief that Karen Ann Quinlan had died in 1976, rather than June 11, 1985 when Quinlan actually died, stating in his February 11, 2000 Order that Ms. Meyer “appeared believable at the offset” [sic] but then became “mystified” when Ms. Meyer insisted on the fact that Quinlan was still alive in 1982.

95. Judge Greer’s personal error tainted the credibility of Mrs. Schindler’s and Ms. Meyer’s testimony even though it was his plain error and therefore, his lack of credibility (as surrogate) that was the “evidence” underlying his February 11, 2000, Order.

96. The testimony of Michael Schiavo was considered even though Terri’s guardian ad litem (until dismissed by the court), Richard Pearse, Jr., stated that Mr. Schiavo’s testimony was compromised by his conflict of interest.

97. The testimony of Scott Schiavo and Joan Schiavo, Mr. Schiavo’s brother and sister-in-law, respectively, only related to the artificial life support of a respirator. Their testimony said nothing about Terri’s views on the removal of a feeding tube.

98. Judge Greer impermissibly “bootstrapped” the testimony of Scott and Joan Schiavo with the irrelevant testimony of Ms. Beverly Tyler who testified as to the public opinion (improper under In re Browning, 568 So.2d 4, 13 (1990)) concerning being “hooked to a machine” for life support.

99. By discounting the otherwise creditable testimony of Mrs. Schindler and Ms. Meyer due to plainly erroneous personal information, and accepting the testimony of Scott and Joan Schiavo which did not relate directly to the issue and the irrelevant public opinion testimony of Ms. Beverly Tyler, the state trial court did not have the clear and convincing evidence necessary to remove Terri’s feeding tube under the Cruzan Fourteenth Amendment standard.

This is the strongest argument the plaintiffs have. Forget about the Michael Schiavo and Mary Schindler parts– Judge Greer says he didn’t put any weight on what they said, and they are obviously less trustworthy. The rest of it adds up to less than a “clear and convincing” case for Terri’s intent, especially given the judge’s undoubted error of fact– an error which puts into doubt the care with which he examined the rest of the evidence, including witness demeanor.

The complaint also says something interesting in the remedy part:

3. Hold a jury trial to determine the nature and extent of the deprivation of constitutional and statutory rights to Terri.

That was over-reaching, I think. They should also have said something about “And if not that, hold a bench trial on the facts and law. And if not that, the judge should review the record of the earlier trial and make his own conclusions of fact de novo.”

Judge Whittemore’s response is this Order of March 25. (I can’t extract text from the pdf file, so I won’t quote it.) I find it weird. Judge Whittemore refuses to reconsider the facts. He says that there was due process in finding the facts in the state courts (Count 8 rejected) and that there is otherwise no state action involved (Count 10 rejected).

His rejection of Count 8 is wrong, but it is rejection of Count 10 on these grounds that is weird. He is right that if it is a private person taking away somebody’s life without due process of law, there is no 14th Amendment violation. Thus, if Michael Schiavo or the hospice had simply removed the tube without asking a court, nobody could sue Michael Schiavo in federal court. But it is a judge who has ordered the tube removed, and, I gather, policemen are standing by to stop anybody from putting it back in. That sure sound like state action to me.

In fact, Judge Whittemore says outright in the ADA part of his opinion that the Hospice has no animus towards Terri, because it is only motivated by a state court order. It sure sounds to me as if the Hospice is an agent of the state with respect to that action.

I wonder, too, if the 14th Amendment can also apply to state inaction. Has Florida violated the 14th Amendment by refusing Terri police protection against ongoing attempted murder? Recall that the historical motivation for the 14th Amendment was mistreatment of blacks and carpetbaggers in the South with the tolerance or aid of the state governments. If police in Mississippi stoody by and watched while a black man was lynched, would that violate the 14th Amendment, or would it be mere private action?

I think I’ve learned something about argument and legal process here,though what I’ve learned wouldn’t have helped deal with the state action point. The special context is that the listener (the judge) must make up his mind very quickly. Thus:

1. Don’t throw every possible argument at the judge, because it will confuse him and make him spend less time on your strongest arguments. Usually in litigation you want to throw in every argument, because the court has lots of time to evaluate all of them, and even a weak one might work. Asking for a decision in 24 hours, though, it is not worth weakening your strongest argument.

2. Make your strongest argument very clear, and don’t give the court a chance to avoid addressing it. Use analogies and examples, and be blunt. Here, the strongest argument should have been Count 1, and it should have been explained in more depth. In a complaint, maybe analogies and examples are not permitted, but there could have been reference to more due process cases and quotes (even dicta) from judicial opinions. And the complaint should have made it so clear that a de novo review of the facts was what was most desired.

Now the save-Terri people have filed the motion they should have filed before, questioning the 2000 findings of fact and asking for a de novo review of whether (a) Terri is vegetative and (b) Terri would have wished to be killed. Matt Conigliaro at Abstract Appeal has an excellent blog on the technical legal meaning of “de novo”. Usually it means “de novo review”– the appellate court does not redo the trial, but looks over the trial transcript and makes its own evaluation of the evidence there, ignoring whatever the trial judge decided. It could also in this context mean “de novo trial”, which would allow new evidence to be introduced, and would have the witnesses appear personally before the new judges so they could gauge demeanor, ask new questions, and so forth. The statute is ambiguous as to which of these Congress meant.

I think Count 10 of the new filing is the key (which is the facts of Count 8, but with substantive due process instead of procedural– so read Count 8 too). Whether there is any new evidence introduced or not, I don’t think a new judge would think there was clear and convincing evidence that Terri would have wanted to die. The entire complaint is interesting for the bad light in which it puts Terri’s husband (it claims he stopped supporting her financially once he got the malpractice money, that he wouldn’t let a priest administer last rites, etc.), and the religious angle is an interesting one. There are still a lot of dubious counts, but Count 10 is pretty persuasive, especially since Judge Greer apparently discounted the testimony of a couple of witnesses because they said Karen Quinlan was alive in 1982 and Greer thought-wrongly– that she wasn’t.

I earlier posted that some liberals say that Congress, etc. should stay out of the Schiavo case because it is a private family matter. Should a husband be allowed to discontinue medical treatment for his unconscious wife?

That wrongly describes the situation, though. Suppose Michael Schiavo wanted to keep Terri Schiavo alive just as strongly as her parents did. That wouldn’t alter the legal situation one little bit. Judge Greer ordered Terri’s feeding ended not because her husband wanted it ended, but because Judge Greer ruled that ending the feeding was in Terri’s best interest. Michael Schiavo’s testimony as to Terri’s wishes played a small role in that decision, but only a small role, since Judge Greer took into account Michael’s bias. The key was Terri’s intent.

Thus, what the Schiavo case really stands for is the principle that if a single judge decides that someone should die, and an appellate court declines to second-guess him, then that person will die, regardless of the unanimous strong desire of the person’s family and friends.

As I think about it, the Schiavo case looks worse and worse. Recall that the crucial legal question is whether there is “clear and convincing evidence” that Terri Schiavo would have wanted to die if she ever found herself in the state she is now in, healthy but vegetative. The crucial evidence is from In re Guardianship of Schiavo , No. 90-2908-GD (Fla. Pinellas Cir. Ct. Feb. 11, 2000) (the first (I think) order that Terri’s nutrition be stopped, after the trial (hearing?) on the facts):

Also the statements she made in the presence of Scott Schiavo at the funeral luncheon for his grandmother that “if I ever go like that just let me go. Don’t leave me there. I don’t want to be kept alive on a machine.” and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that ever happened to her are likewise reflective of this intent.

Scott Schiavo is the brother of Terri’s husband, who wishes her to die, and Joan Schiavo is Scott Schiavo’s wife.

Here are some problems with this evidence:

1. The witnesses are the brother and sister-in-law of Michael Schiavo, the husband who receives large material benefits if Terri Schiavo dies. Michael has been unfaithful to Terri for many years, and would probably marry the woman he is living with once she dies. He sued the doctors who treated Terri on his own and her behalf, apparently on the grounds that Terri had bulimia and the doctors failed to diagnose that– and that Terri’s failure to mention it to them, and the failure of he, the husband, to notice it, and the failure of his brother and sister-in-law to notice it were irrelevant. This suit was settled for a large amount– $300,000 or so for Michael and $650,000 or so for Terri, if I recall rightly.

An important question is: Would Michael’s brother and sister-in-law perjure themselves in order to get Michael $500,000? I think many people would, especially if they thought the lie wouldn’t do any harm to anybody.

Remember: the evidence must be “clear and convincing”. If the evidence is just “probably accurate”, that is not strong enough.

2. Even if the witnesses are correct, Terri’s statements in casual conversation are not “clear and convincing evidence” that she would want to die. Terri’s current situation is not what we usually think of when we imagine being on life support and in a coma. Indeed, she is not on life support and she is not in a coma. Personally, I would like to have life support disconnected if I were in a coma and disconnecting would kill me in five minutes, but I wouldn’t want to be left to die of thirst if I were healthy but vegetative. Terri might well feel the same way. Or, she might not. But her statements about comas and life support machines would not be “clear and convincing evidence” even if she wrote them down and they were notarized. Statements made at funerals and while watching TV and recollected years later are even less convincing.

3. Terri was a Roman Catholic, though not an active one. That is common enough. Many, perhaps most Catholics are like that. When do they see priests? When they think they need one for a special purpose– for example, on a deathbed. If Terri had been told that she would be in a vegetative state in a week and we wanted to hear whether she wanted the tubes taken out, what would she do? I bet she’d ask a priest for advice. And I know he would tell her that she shouldn’t tell them to take the tubes out. He might even tell her that if she did, she would surely go to Hell and be in torment for eternity. For about two thousand years that was the church’s position, and it probably still is.

It seems to me that the judge must have reversed the presumption in his mind. He must have thought, “There is clear and convincing evidence thatthe average person would want to die in Terri Schiavo’s situation. (Indeed, he heard pseudo-expert testimony to that effect, and admits he gave it some weight.) Is there any equally strong evidence to refute that this was true of Terri as well as of the average person?” Such reasoning sounds dubious to me as a question of law.

I think various bloggers are wrong on the federalism question in Congress’s new “save-Schiavo” law. (See Bainbridge and Instapundit and this article and VC Comments for a variety of comments.)

For the sake of argument, accept the factual claims of the people backing the federal law. If you like, treat it as a hypothetical. The extreme version of their story is this:

1. A Florida judge has decided to cut off the food and drink of a hospital patient who did not express any desire for that ever to happen to her and who has a good chance of recovery if she is allowed to live.

2. The judge claimed that there was strong evidence for his decision, but there actually was not.

3. The Florida appellate courts refused to seriously review his decision, leaving him complete discretion.

I do not believe this story myself, but for the purpose of thinking about the constitutionality of the federal law, we need to think about this story.

If the federal law is unconstitutional, we are saying that federal law cannot prevent a state judge from deciding to kill someone.

An Indiana judge might declare that I, Eric Rasmusen, am hopelessly vegetative (since I’m conservative) and there is clear and convincing evidence that I would have wanted to die (since I’m smart, and any smart person would want to die if he were hopelessly vegetative). He could order the door of my office nailed up, so no food and drink would reach me, and forbid anyone to go in or out for three weeks. On appeal, the Indiana courts could say that they see no reason to overrule the trial judge.

(By the way, the judge would be careful not to say that the door was being nailed shut so I couldn’t get out. He would say that being vegetative, I couldn’t get out anyway, and the only purpose of nailing the door shut would be to keep other people from getting in.)

Would a federal law granting de novo review be constitutional? I think the pre-2005 federal laws would not help me, because they would defer to the Indiana trial judge’s findings of fact– that I was vegetative and wanted to die. If those facts could not be re- evaluated, I wouldn’t have a chance, would I?

I think I’ve convinced myself there is indeed a case for the constitutionality of the save-Schiavo law, under the 14th Amendment.