It's nice to have an argument with someone about politics, and then have that person come back later and admit that they were wrong. In 2006, I told "Bob from Phoenix" that the fees for Arizona's 90-10 boards were really taxes, and that those revenues could be swept at any moment by a desperate legislature and governor. Bob wrote this to me today:

You and I had a discussion regarding the licensing fee for doctors being a hidden tax. I told you the doctor licensing boards were not a hidden tax since they were 90/10 government entities. 90% of fees kept by the board for its use and when the board had sufficient funding to pay its bills for 10 to 2 years the fees were lowered. How naive could I have been. I still believe it is necessary to test medical (generic) professionals but the fee/tax situation is very clear to me now. I would expect that you already know that a couple of years ago the state legislature under the republican leadership with the democratic governor raided the treasuries of the 90/10 boards to pay for the socialistic activities of the state government. This meant that the boards could not lower their fee structure to real operating costs. How nefarious was that in foisting a hidden tax on the Arizona public?

But in the category of "What's good for the goose," I have been re-thinking many of my assumptions about the desireability of tort reform, in part because of some comments my friend Dave (a freshly-minted lawyer) made when I visited him last week in Connecticut. We were talking about tort reform in the context of health care reform, and Dave argued that the purported need for tort reform in general has been greatly over-hyped.

I responded that I was not under any illusions about the relative size of the impact of malpractice litigation in driving up health care and health insurance costs. (The overwhelming source of medical price inflation is not litigtion, but rather, government-subsidized or tax-code-subsidized third-party payments by Medicare, Medicaid, and employer-provided insurance plans.)

I had recently read a Cato piece suggesting that federal tort reform, if it becomes inevitable, should attempt to preserve incentives for providers to improve the quality of care they provide, by encouraging them to reward providers for reporting errors and punishing them for hiding errors:

http://www.cato.org/pub_display.php?pub_id=10476

And some time ago, I had read some Cato pieces suggesting that federal (as opposed to state-level) tort reform may not be a great idea. For example:

http://www.cato.org/pub_display.php?pub_id=2914

But now I'm taking on the project of re-thinking tort reform in general, thanks to Dave's comments, and thanks to a very interesting and very fundamental critique of tort reform, written by an old friend from my Georgetown days:

http://faculty.msb.edu/hasnasj/GTWebSite/TortReformFinalDraft.pdf

--Tom