Charles Silver

What’s Up Doc Revisited…Again: A Second and Final Reply To Ted Frank (American Enterprise Institute)

When I signed on as a contributor to this blog, I agreed to spend an hour or so a month responding to comments. Answering Ted Frank’s comments has taken me well beyond both that cutoff and the point of diminishing returns. Frank seems to derive unlimited utility from online debating. I do not.

I also dislike Frank’s style of engagement, which is replete with rhetorical tricks and other practices academics disdain. Consider the following two sentences from his last comment:

"Perhaps your intent was solely to show that a lobbyist group made a relatively unpublicized statement that was imprecise. (You don't question my characterization that the thrust of their argument is correct.)"

By over-larding the first sentence with propositions of mixed truth values, Frank makes a succinct response impossible.

• Yes, my sole intent was to show that tort reformers made false claims (plural, not “a claim,” as Frank wrote).

• No, my intent was not to discuss a “relatively unpublicized statement.” The statements I criticized were disseminated widely and are still being publicized today. They can easily be found on tort reform websites.

• No, my intent was not to say that “a,” i.e., 1, lobbyist group made false statements. I identified TMA and TAPA. I could have added Texans for Lawsuit Reform (and possibly other organizations, had I made a thorough search) that republished these statements.

• No, it was not my intent to say the statements were “imprecise.” That’s Frank’s spin. The statements contained numbers or described the growth in Texas’ physician population as “staggering.” They were sufficiently precise. They were just wrong.

Now consider the second sentence quoted above, Frank’s parenthetical. Any fair-minded reader would see that I rejected his characterization of the “thrust” of the tort reformers’ assertions. Why did Frank infer otherwise? Because I did not reject his mischaracterization explicitly. Apparently, when exchanging views with Frank one must include a closing sentence denying all assertions not expressly endorsed.

Frank also points out that “[t]here are real issues of access to care that are not being captured by [my] single time-series.” Did I ever say otherwise? No. I said the time series, which describes the size of Texas’ doctor population, shows that tort reformers’ claims about the growth of that population are false. Not satisfied with mischaracterizing the tort reformers’ claims, Frank puts words in my mouth as well. Then he accuses me speaking falsely. Amazing.

Nor did I deny, as Frank implies, that a lower marginal growth rate in the number of doctors can affect patients’ access to care. Nothing in my column addressed this. The connection between the difference in marginal growth rates and access is, however, a complicated matter. Access depends not just on the number of new doctors, but on where they locate, the specialties they choose, the availability of insurance, the amount of charity care they provide, and probably other variables. Access must also be distinguished from quality and patient wellbeing. Researchers have identified volume/quality relationships in many areas of medicine. This creates the possibility that patients may be better served if fewer doctors or hospitals offer a service than if more do. A smaller number of providers with higher volumes per provider may mean less mortality rates, fewer infections, and healthier patients.

Frank also employs the weird tactic of condemnation by association. I’m referring here to the comments in which he impugns me or other contributors to this blog by pointing out that our opinions differ. Insofar as I am aware, other contributors have no duty to agree with me, and I have no duty to agree with them. Toeing the party line may be the order of the day at, but other blogs allow disagreement.

Now consider Frank’s slap-back tactic. Frank contends that I cannot criticize the tort reformers for misinforming the public because I published an op-ed in the New York Times that contradicted my published research. Assume for the sake of argument that I am guilty as charged. Does this have any bearing on the size of Texas’ physician population or the accuracy of the tort reformers’ claims? No. Frank is just throwing mud.

Moreover, the contradiction Frank claims to have found exists solely in his imagination. Insurance crises occur when premiums shoot up dramatically in the short-term, meaning a few years. In Texas, the rate spike for med mal coverage lasted roughly from 2000 to 2003. Both my op-ed and my published research showed that no short-term change in the cost of processing med mal claims preceded this premium spike. As stated in the op-ed:

"Malpractice premiums have risen sharply in Texas and many other states. But, at least in Texas, the sharp spikes in insurance prices reflect forces operating outside the tort system. The medical malpractice system has many problems, but a crisis in claims, payouts and jury verdicts is not among them."

Clearly, the op-ed focused on “sharp spikes” and “cris[e]s, i.e., significant short-term changes. Yet, the sentence in the article upon which Frank seized expressly focused on “the long run.” There is no contradiction in believing (1) that forces outside the tort system can generate significant short-term premium fluctuations, and (2) that over the long run, premiums charged in competitive markets should reflect underlying costs, including payments on claims.

John Maynard Keynes famously observed that “[i]n the long run, we’re all dead.” Frank asserts that what is true in the long-run must be true in the short-run as well. I therefore infer that we’re all dead already. The good news is that the inference forces this pointless exchange to end.

Charles Silver: Author Bio | Other Posts
Posted at 9:51 AM, Nov 13, 2006 in Civil Justice | Debunking Tort "Reform" | Health Care | Health Insurance | Medical Malpractice
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Professor Silver's response, where, inter alia, he (1) makes ad hominem attacks on me; (2) misquotes me; and (3) defends a false statement he made in his op-ed by pointing to a different, unrelated, argument that he claims is true, is beneath him.

For the record, this is a link to what I actually said, which bears little relationship to Professor Silver's characterizations of my argument, which he doesn't bother to link to.

Silver falsely states "Frank contends that I cannot criticize the tort reformers for misinforming the public." I never said that. I merely noted the irony of Professor Silver's double-standard in holding a lobbyist group's sound bite to a higher standard than that of a law professor's 800-word op-ed in the paper of record. I would think the reverse should be true, and I suspect Silver thinks so, too, judging by his sneering (and revealing) insults about those who dare to question what he writes on a weblog. I'm not sure what to think of Silver's mischaracterization and put-downs, other than perhaps they're some of those rhetorical tricks that academics do not "disdain."

I note that Professor Silver knows his smear "Toeing the party line may be the order of the day at, but other blogs allow disagreement" is false. How do I know that he knows this is a deliberate canard? Because his latest law review article, published in the Vanderbilt Law Review quotes and cites for an anti-reform proposition published on that site (and nowhere else) by Professor Saks, a reform opponent.

Silver, in the midst of complaining about mischaracterizations, falsely states that "Frank asserts that what is true in the long-run must be true in the short-run as well." A careful reader will find no such assertion, or anything that could remotely fairly be characterized that way. But perhaps this is again one of the rhetorical tactics that academics do not "disdain."

Silver also falsely accuses me of "condemnation by association." My remark was: "You [Professor Silver] acknowledge that, under reform, doctors come out ahead. (This is appreciated: there are numerous dishonest/disingenuous opponents of reform, including several who write on [the DMI] website, who argue nonsensically that malpractice insurance rates are unrelated to the expense of providing malpractice insurance. We are to believe, under these arguments, that the doctors who run nonprofit mutual insurance companies are conspiring to charge themselves too much money.)" That's hardly condemnation by association; it was contrasting an intellectually honest anti-reform argument (such as Silver's "Doctors should pay higher malpractice insurance rates") with a dishonest anti-reform argument ("Reform is not needed because it is insurers' fault that doctors do not have lower malpractice insurance rates"). Silver is being far too thin-skinned.

To conclude, there are two important issues:

(1) Silver claims that his "sole intent was to show that tort reformers made false claims." His concluding paragraph in the original post, however, made numerous false statements about the public-choice theory underlying the passage of reform in Texas that were completely unrelated to the argument that "reformers made false claims"; he is effectively complaining that I pointed out these fallacies, which he continues to refuse to defend.

(2) Liability reform increases the supply of doctors and improves access to health-care. In short, the lobbyist groups are fundamental ly correct on the underlying issue. (Silver adds a new claim for the first time in his third post, arguing that, even if reform increases the supply of doctors, increasing the number of doctors may not improve health-care quality, but doesn't support this proposition in any detail for one to determine if he's arguing that it has relevance to the reform discussion.) The lobbyists' oversimplification of data to support their arguments suffers from lack of nuance. But the lobbyists are more accurate than Silver's popular public contributions to the medical-malpractice debate in the New York Times and this blog.

Posted by: Ted | November 13, 2006 12:27 PM

Professor Silver's posting and Ted Frank's response are strong examples of the institutional advantage conservative ideology has in American discourse. Professor Silver is just making these postings when he can. It is not part of his job. Ted Frank on the other hand is making these postings as part of his job. Conservative think tanks like the American Enterprise Institute, Heritage Foundation, and the Manhattan Institute employ legions of intellectuals whose job it is to put forth propaganda and shape the discourse to their liking. While there are also liberal think tanks, they are much smaller, and therefore cannot have the same effect on public discourse. Conservative think tanks have the funding to employ huge numbers of people whose job it is to do nothing more than making postings like Ted has done here. This explains the "unlimited utility" which Ted Frank gets from making these postings--he's not making them outside of his work, like Professor Silver has to.

Posted by: Paul Speaker | November 14, 2006 8:05 AM

Frank has the luxury of never having to be right, he needs only to confuse and manipulate the discussion enough to make it appear as if the other side may be wrong.
He repeatedly attacks the offerings of contributors (he seems to have a special affinity for insulting Justinian Lane, which leads me to believe Lane may be on to something) while offering little substance of his own. the smoke and mirrors campaign is highly effective too, since the majority of topics become dominated by responses to his posts, much like this thread line.

I would like to see a description of a tort reform Frank is proposing on this site. It will give us all a sense of where he is coming from other than his usual barrage of statistics that fail to address key concerns such as justice, access to the courts, the right of the public to impose pealties on the businesses who serve their needs, how to preserve meritorious cases, protection of public interests, etc., etc.,

I have seen dozens of his posts explaining what he will not support, now I would like to see one where he tells us what he sees as the best alternative(s).

Posted by: John | November 14, 2006 11:48 AM

We see two ad hominem attacks, both of which are baseless and unsupported by reality, but no real critique of anything I've actually written. These postings are not "part of my job"; I'm submitting my quarterly research agenda today, and this website appears nowhere in the six-page-single-spaced document. In fact, posting on this website interferes with my job, because it means I'm spending my time writing for an audience of a couple of hundred people defending myself against misrepresentations instead of on the queue of projects I've proposed to do. Even as a hobby, I have more profitable endeavors than correcting the dozens of errors that get posted here daily, which is why I'm here much less often since my partner returned from her vacation.

I imagine Professor Silver is especially annoyed at me because I've been pointing out flaws in his academic research and op-eds since long before I worked at AEI. Unlike Professor Silver, I do not have tenure, so, in fact, he has considerably more luxury to be wrong than I do, because my credibility is on the line.

I have not attacked Mr. Lane; I've criticized the disregard for the facts and the law shown in his writing and the unwillingness of Mr. Lane to address real issues and his insistence on changing the subject whenever one tries to engage what he writes.

John, I have over three years of writings on liability reform in law reviews, newspapers, newsletters, working papers, and two different weblogs, and over a year's worth of public speaking appearances on the subject that are archived in multiple web-videos. This site has yet to address anything I've actually written, preferring instead insults and attacks on strawmen, so if it's the only website you're reading on the subject, I can understand why you think I haven't put forward anything affirmative. But it's not like what I've written on the subject is a secret.

Posted by: Ted | November 14, 2006 1:40 PM

The above comments hit the nail on the head regarding the debate between self-labeled tort “reformers” and those supporting access to justice.

The response of those supporting access to justice to the public relations onslaught of the tort “reform” movement and its immensely larger financial resources, has primarily been in the academic context, while tort “reformers” have dedicated the majority of their efforts to getting their message to the public by way of access to popular public media: events (that Frank mentions), radio interviews, tv appearances, blogging, institutional papers, and op-eds.

A quick search of his bio and lexis shows no law review publications under Ted Frank’s name. In contrast, in a quick lexis search Professor Silver’s name pops up in 100 law reviews – meaning that he is the author co-author and/or his scholarly work is mentioned in each. Other peers of Frank have published in legal academic publications, however far less frequently than their years of experience in the discussion would suggest, and far less than Professor Silver (I use him as the standard only because we are discussing his post here).

This observation reinforces the points made in the previous comments. While those who support access to justice often hale from the field of legal academia and are published in academic law reviews, tort “reformers” have focused more on making their arguments accessible to the general public than making them meet the standards of legal journals. Of course, I am sure that tort “reformers” are certainly able to publish in these types of academic forums, my point is that they make a strategic decision not to focus their efforts in that arena.

The success of fellows at think tanks’ like Frank’s are not based on the same measurement of success as the defenders of access to justice who are primarily based as professors at law schools who must teach and publish to ascend in that context.

Tort “reformers’ have owned the public discourse about the law and the civil justice system precisely because no matter how comprehensively the legal academic community responds with studies rebutting the tort “reform” movements arguments, few people can access or read thee scholarly works, and as such, these responses to tort “reform” assertions are often missed or ignored.

In addition, tort “reformers” enjoy an inherent communicative advantage in this debate. As stated in a comment about the discussion between Professor Silver and Frank, it became rather technical for many readers.

Arguments rebutting at times sensationalist tort “reform” pop torts or “wacky” lawsuits just aren’t as package able for media stories or the average American than these outlandish sounding stories of a system gone awry.

Stories or media hook stating that what a reformer said is wrong or misleading, just isn’t going to attract much media or public attention.

Moreover, arguments defending a system (or at least preferring it to the world as envisioned by tort “reformers” do not get the same kind of attention from media as the more easily packaged “pop tort” or so called jackpot justice stories that tort “reformers” latch onto.

The best parallel to the stories told by tort “reformers” are tort victim tragedies. These are instances in which the laws pushed through state legislatures by the tort” reform movement result in shocking miscarriages of justice in which victims are left with no, or only minimal compensation.

And yet, while sometimes effective in further startling people who may have some interest, these stories aren’t fun or funny to read in the same way as a “jackpot justice” or “wacky lawsuit” narrative pushed forward on and

This understanding of the tort “reform movement and the institutional, rhetorical, and financial disadvantages of those who oppose them and support access to justice is comprehensively discussed in the book “Distorting The Law” by Professors Haltom and McCann.

None of these observations are an attack on or in disrespect to Ted's abilities in his current position. He is a tireless advocate for his group's point of view.

While many who read this blog simply disgree with him, the larger point being made in these comments is that Ted and his peers have multiple institutional advanatges in this public debate that everybody should be aware of whenever reading this or any other blog or popular media source.

Posted by: Cyrus Dugger | November 14, 2006 4:31 PM

"A quick search of his bio and lexis shows no law review publications under Ted Frank’s name."

Maybe you should look under my full name instead of my nickname, but this is typical of the sloppy and careless assertions that Dugger makes without adequate research. (Especially since a quick search of my bio does show a law review publication.)

I fully admit that Professor Silver has a longer publication list than I do. Then again, I've been in academia for one year, and Silver has had 22 years to build his list. Still, I fail to see the relevance: if policy disputes were to be resolved by whoever was the most prolific, Richard Posner would be dictator.

Dugger's complaint about "pop torts" would have more resonance if he had ever written anything of significance, or ever substantively addressed anything I've ever written.

Posted by: Ted | November 14, 2006 6:50 PM

And, by the way, Cyrus, work on your research skills. I'm cited or quoted or referenced in at least four footnotes just in papers written or co-written by Charles Silver.

The discussion between me and Professor Silver became technical because I cited to empirical studies, while he relied on soundbites and his resume and insulting me.

Perhaps you can address the substance of what I said, rather than this ad hominem theory about the imaginary publicity advantage I have over Professor Silver, who was able to get Section 1 coverage of a draft of a flawed study in the New York Times and Washington Post and AP (as well as the Times op-ed page), and then several months later quietly retracted nearly every controversial statement from the paper that had previously made headlines.

Posted by: Ted | November 14, 2006 6:59 PM

Hi Ted,

If a search of "Ted Frank" is as you say "sloppy and careless," then I am sad to say that your think tank itself is sloppy and careless as your official bio on the American Enterprise Institute's website (your think tank) lists your name as "Ted Frank."

It's pretty silly to criticize someone for using your name as publicized on your own organization's official website in your official bio, but I guess you had to find some angle to try and criticize the larger point above that you have not yet addressed in your response (aside from a reference to the fact that Posner has published a lot when that doesn't even respond directly to my larger point).

I have to say whenever you make a pejorative comments as you do so predictably above, it makes me think that I’ve made a point that hit a nerve…… for whatever reason…...but I digress.

It’s also really interesting that you even criticize a comment that basically said that your peers and allied organizations have been SMARTER in advocating their views in this debate then have those who share my point of view, but to each their own.

Ted, have you read “Distorting The Law?” If you have, do you absolutely in every way disagree with its primary thesis? I would honestly really love for you to do a book review of it on, because I am honestly curious what you have to say about that very interesting thesis.

A link to a book review and short summary of distorting the law is here….

(A Tort Protector's Must Read: "Distorting the Law"

2 excerpts below

“The interesting question is where does legal knowledge come from? Even when lawyers have been polled about where they learn what is going on in the legal system they invariably say television and newspapers. What we are trying to say in our book is that these moralistic anecdote-based characterizations of civil litigation have come to dominate modern culture, and the fact that they don't seem to be supported by dozens and dozens of empirical studies doesn't seem to decrease the power of that anecdotal knowledge at all.”

“There are two reasons. One is the tort reform movement. They are themselves becoming more prominent and alleging an increase in litigation, and our interviews with reporters say they became more aware of the issue through the tort reformers' claims.”

Apologies that I missed your law review article amongst a listing of "short publications," during what I explicitly said was a “quick search,” although the idea of spending more time tracking down your publications sounds fun.

So to get the record straight, inside the listings of Ted’s short publications IS a law review article. During my quick search I stopped looking in this section because the first six were newspaper op-eds or non-law review periodicals.

Ted's law review article is called "A Taxonomy of Obesity Litigation,”University of Arkansas-Little Rock Law Review (Spring 2006), 427-441, Publication Date: August 1, 2006,pubID.24827/pub_detail.asp

Apologies to Ted.

All of this of course (and perhaps as was the goal of Frank’s response) misses the primary thrust of the comments above (which Ted Frank seems to protest), which is that the tort “reform” movement has some inherent advantages in this debate that I mentioned in my previous comment.

Again, this point is better spelled out in the more than three hundred page book “Distorting The Law” then I can do in a comments section of a blog… so give the book a read.

Just as an FYI... this is my last comment in this thread as I have written a good deal here.. but Ted and others.... please feel free to continue.

Posted by: Cyrus Dugger | November 14, 2006 8:01 PM

Cyrus, it seems you are incapable of honest discussion. You falsely state that I fail to address the issue of the alleged "inherent advantages" of the reform movement, when in fact I wrote "Perhaps you can address the substance of what I said, rather than this ad hominem theory about the imaginary publicity advantage I have over Professor Silver, who was able to get Section 1 coverage of a draft of a flawed study in the New York Times and Washington Post and AP (as well as the Times op-ed page), and then several months later quietly retracted nearly every controversial statement from the paper that had previously made headlines." And, indeed, instead of addressing the substance of what I write, you continue with your ad hominems.

"Distorting the Law" is wrong in just about every particular, and fails to consider overwhelming contradictory evidence against its thesis. There's no need to do a specific review: Overlawyered and PointOfLaw regularly covers pro-trial-lawyer media bias (which has, on multiple occasions, included the cooperation of the media in faking evidence), and every time there is a liability reform issue before the legislature, the litigation lobby has absolutely no trouble planting a story in the major newspapers featuring a bogus empirical study allegedly showing that the problem doesn't exist. The refutation of the study then never gets press coverage. The head of ATLA has no trouble hijacking a newspaper column space meant for academic analyses of policy issues to issue ad hominem attacks against someone who dares to point out abusive litigation, even though his response doesn't even address the critiques of the original column. Trial lawyers fund their own thinktanks that release entirely bogus analyses of issues (again to the point of faking data) that get continued to be cited in the media long after they're refuted. Legitimate conservative scholars are frozen out of law school hiring at large numbers of schools on ideological grounds, and generations of law students are being educated without any perspective that liability expansion is not an untrammelled good.

The fact that "Distorting the Law" thinks, contrary to law and facts, that the McDonald's coffee case is at all legitimate is all one needs to know about the book. Contrary to the book's thesis, nearly every major-newspaper reference to the McDonald's coffee case in the last five years has pushed the trial-lawyer's campaign of Big Lies about the case to "refute" the reformers' correct perspective (without at all including that perspective); this week's Miami Herald is the latest offender.

Posted by: Ted | November 15, 2006 7:55 AM