Two anecdotes, and then I’ll get to my point (and the anecdotes do relate to that point):
Anecdote 1: I get my medical care from Kaiser and feel that I get great care. Within its four walls, Kaiser is an extremely efficiently run organization that takes surprisingly good care of vast numbers of people. Kaiser has a weakness, though, and that’s outside contractors. Here’s a story illustrating that problem:
Years ago, a doctor figured out that one of the contributing factors to my fairly chronic headaches was bruxism. In plain English, I grind my teeth at night. The treatment for bruxism is a plastic jaw guard that one wears at night. Kaiser doesn’t (or didn’t then) make those guards itself. Instead, I was given a prescription to take to a Kaiser-selected orthodontist, who would cast the mold and arrange for the guard. Kaiser would pay for the orthodondist; I would pay for the cost of the jaw guard itself (which came from a separate lab). I dutifully went along to the orthodondist.
My first visit, I said hello to the orthodondist. Then, a a tech put a mold in my mouth, came back ten minutes later, and removed the mold. That was it. My second (and last visit), the tech fitted the jaw guard in my mouth, the orthodondist spent a couple of minutes making some adjustments, and I walked away with my jaw guard, never to see those people again.
I received a $210 bill for the jaw guard, which I promptly paid. My records showed that Kaiser received a $750 bill for the orthodondic services, which it promptly paid.
While I was outraged that Kaiser would pay $750 for 20 minutes of time, Kaiser apparently didn’t care. It had no idea, it seemed, what it was actually paying for, and made no effort to control outside costs. I later learned that outside providers consider Kaiser an unending source of funds, since it will pay any bills, no matter how outrageous, without question — and keep sending Kaiser patients to the same outside provider.
Anecdote 2: Lawyers are an unending source of mean-spirited jokes for the ordinary American. Here, I’ve got a few:
Why didn’t the sharks eat the lawyer who fell off a ship? Professional courtesy.
What’s the difference between a dead lawyer in the middle of the road and a dead armadillo in the middle of the road? There are skid marks in front of the armadillo’s corpse.
What do you call 25 sky-diving lawyers? Skeet.
I could go on, but I won’t. It’s just too painful — and too unfair, because the problem really lies with the judges.
Our legal system (and by this, I’m referring to the adversarial trial system) is meant to be a clashing of two opponents. It’s the crucible theory: Each side in a case, armed with his lawyer, goes into court to do battle. In the heat of the battle, the truth is supposed to emerge. The lawyers have to follow procedural rules, they have to abide by the law, and they have to be honest with the court.
Even sticking with these rules, though, things can get out of hand. I’ve seen $10,000 disputes mushroom into cases lasting years, with the attorney’s fees roaring into the high six digits. In the heat of battle, the lawyers just pound away at each other. Even though they’re supposed to be their client’s agents (cool professionals, if you will), they often start taking it personally, and use every bit of firepower legally available to them to attack.
Under those circumstances, there is one person uniquely well situated to bring the situation to heel: The judge. For those of you who are not lawyers, I cannot tell you how much power a judge has to control a case. He can slap down ill-taken motions, sanction over-zealous lawyers (who may be technically correct but who have violated the spirit of good faith, reasonable litigation), and even throw lawyers in jail if they get completely out of hand. Interestingly, few judges exercise these powers in cases run amok. They just let things roll — because it really doesn’t affect them.
If Lawyer X and Lawyer Y aren’t fighting in the court, Lawyers A and B will be. The judge sees his job as just ruling on any given motion before him, without bothering to take note of the fact that Lawyer X and Lawyer Y have each filed 15 really expensive motions over the deposition of a file clerk and that the case has become a runaway freight train, sucking up judicial resources and destroying people’s lives. Judges are like circus ring masters in a cage full of fighting lions who put down their whips and just watch the show. It is a complete abandonment of judicial responsibility (usually spelled out in statutes) calling for a judge to keep control of cases.
And lastly, before I get to the meat of my post, one old saying: “He who pays the piper calls the tune.”
What sparked these anecdotes is an opinion piece in the Wall Street Journal today entitled “Conservatives and their Carnival of Fraud,” by Thomas Frank. In it, Frank points rightly to the fact that many private contractors in Iraq and Afghanistan have committed fraud and to the fact that there have been vast cost overruns. I don’t quarrel with those facts. They are what they are. However, it’s his conclusion to those facts that strikes me as just wrong: He wants to have all those jobs handed right back to the government, something he hopes will happen instantly under an Obama presidency.
What Frank doesn’t realize is that the problems in Iraq and Afghanistan are less of a contractor failure and more of a complete government failure. Handing a task over to someone else doesn’t mean that you lose responsibility for oversight. Whether you’re Kaiser outsourcing jaw guards, or a judge responsible for lawyers complying with both the letter and the spirit of the law, if something goes wrong with the jawguard process or the case, it’s your fault. You had the ultimate responsibility. There are always going to be lazy, inefficient or corrupt people taking on tasks. It’s the overseer’s responsibility to quash those negative behaviors.
Here, I would certainly convene the task force that Frank demands to examine the corruption, but I would make sure government heads roll. That is, I wouldn’t just look into punishing those contractors who committed out and out fraud, or those who simply took advantage of a lax system. I would examine the myriad government failures that saw the government pay the piper, but utterly fail to call the tune.
And frankly, if the government isn’t even up to the task of watching someone else do the job, how can we possibly trust the government to do the job itself? All that Frank has done is to highlight the government’s complete inefficiency, ineffectiveness, and failure to shoulder responsiblity. I’d feel very uncomfortable giving it the even harder task of actually getting things done.