Big, expensive fights often have potential future unintended consequences that attract little attention in the heat of battle. Take the Michael Jackson/AEG trial, for instance. The Jackson plaintiffs claimed that AEG was liable for Conrad Murray’s criminal negligence because AEG had allegedly “demanded and required” that Jackson hire Murray. AEG denied their claims; its general counsel, Shawn Trell, described the company’s arrangement with Jackson to me as a “payment accommodation.”
The jury, as I’m sure anyone who cared to follow the trial remembers, found that while AEG had hired Murray, the doctor wasn’t incompetent or unfit (an act of criminal negligence doesn’t necessarily render someone generally incompetent), and AEG was found not liable.
It’s interesting to think about what might have happened if the company had lost. Would other entities therefore resist making similar types of payment “accommodations”? Alternatively, would they have felt compelled to start asking questions about the medical protocols their partner’s chosen physician employs? And what if the doctor was in financial trouble? Would that mean that he would be more likely to dishonor his oath by dangerously bending appropriate protocols to suit the whims of a demanding patient? If you and I are making a deal where I end up having to pay for your doctor, do I first need to run a credit check to make sure your chosen physician pays his bills on time?
In a courtroom, a judge or jury may contain those consequences or at least take pains to address and perhaps forestall them. In the real world, it’s far more difficult.
Obamacare has had its “kinks.” (This is what is known as partisan understatement. Unlike others, I don’t disavow all partisanship when undertaking discussion of certain matters, and while I don’t agree with the president’s approach toward everything, it certainly would be fair to say that I am among his partisans.) Part of the reason some of the plan’s “kinks” may not have been worked out earlier may be that we were spending a lot of time arguing against the proposition that increased access to medical care for Americans is socialism, or that wanting to ensure the availability of an affordable doctor to those with preexisting conditions makes President Obama the “welfare president” (as he’s often referred to by those in certain states of unnamed color, which find themselves getting a lot of public welfare while their residents bash those of the other states who often get a lot less), or that his plan includes so-called “death panels” and the rounding up of freedom-loving white people (and their guns), after which their wealth would be redistributed to the allergic-to-work brown horde. (And a lot of time was spent in precisely these kinds of discussions because a lot of people believed these things, or at least some version of them, and a lot of media platforms spent a substantial number of minutes “decoding” — this is probably a euphemism — those views.)
Of course, we should applaud the dissemination of a broad variety of viewpoints, if that’s what you think this was, but given the attention spans of busy, working people whose jobs don’t involve drafting national policy, some selective sifting about what type of information is “newsworthy” is perhaps in order.
Because the jury in the court of American public opinion might not be as deliberate and focused as a jury evaluating a high-profile, closely watched, multibillion-dollar case, the inch given in an argument — or any reasonable “accommodation” of those of the opponent’s positions that might be valid — might easily become a mile.
For example, if one conceded that more time might be needed to work out the “kinks” in Obamacare and anticipate new ones, those determined to make the bill the president’s “Waterloo” might then bandy that “accommodation” about as a laurel of victory, a vindication of their grand view about the inevitable calamity that would ensue if every American had reasonable access to (non-emergency-room) medical care.
Partisans of the idea that Americans should not have to choose between food and primary care were not going to give any more than they already had — particularly when the desire to obstruct the president at every turn was so firmly entrenched in the other side. The AEG “payment accommodation” became the basis of a multibillion-dollar lawsuit. In today’s political climate, policy “accommodations” to opponents become a sign of blood in the water. It makes for very imperfect lawmaking.
Working out the necessary processes involved in implementing something we don’t like — whether it be a court order requiring “reasonable cooperation” (this is not a reference to the AEG case but simply a rehash of my own experience, where my clients are sometimes required to work things out with opponents they find despicable) or a health care plan whose passage was approved by a majority of Congress (and implicitly ratified by the decision of the American people, who voted to reelect a president who expressly campaigned on it) — involves a certain measure of good faith on both sides.
Good faith is in short supply these days; given all the lawyers in D.C., most lawmakers probably know what the term means, although it is not always politically advantageous to act like it. Until they decide that they have a greater responsibility to the American republic than to their very savvy sound bytes, however, the policy road ahead will be an increasingly bumpy one indeed.