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Volume 8, Issue 16: April 17, 2006

  1. Prosecution of Pain Doctors Worsens a Health Crisis
  2. High Home Prices Tied to Stricter Planning Laws
  3. Tabarrok Defends Contingent Fees
  4. When Generals Speak Out

1) Prosecution of Pain Doctors Worsens a Health Crisis

Overzealous state and federal drug officials are "waging an aggressive, intemperate, unjustified war on pain doctors" that has “frightened many physicians out of the field of pain management," according to political scientist Ronald T. Libby (University of North Florida), in an article appearing in the spring 2006 issue of THE INDEPENDENT REVIEW. Pain doctors have been indicted and prosecuted in increasing numbers since 2001, and, according to Libby, the prosecutions are exacerbating a health crisis: the undertreatment of pain.

Although an estimated 75 to 100 million Americans need treatment for pain (including pain from cancer, lower back disorders, arthritis, migraine and cluster headaches, HIV/AIDS, accidents, and other maladies), only 4,000 to 5,000 doctors specialize in pain management -- about one doctor for every 6,000 chronic pain patients, according to one industry expert. Libby's analysis of the undertreatment of pain is consistent with a 2001 study of California doctors, which found that 40 percent of California primary-care physicians reported that “fear of investigation affected how they treat chronic pain.”

Libby gives several reasons for believing that the government's campaign against pain doctors is unwarranted. First, many of the small number of patients whose deaths were attributed to painkillers containing oxycodone, an opioid, also had other drugs in their system, suggesting that this ingredient is not necessarily the primary cause of death. Second, many patients addicted to prescription painkillers have had prior drug-abuse problems before taking prescription painkillers. Third, government officials have underestimated the ease with which these drugs can be obtained without a doctor's prescription, including by theft and by purchasing over the Internet. Fourth, prosecutions have coincided with a change toward "self-financing" of some drug enforcement programs, such as the DEA's Diversion Control Program, suggesting that perverse incentives for law-enforcement authorities make overzealous prosecutions more likely.

See "Treating Doctors as Drug Dealers: The Drug Enforcement Administration's War on Prescription Painkillers,” by Ronald T. Libby (THE INDEPENDENT REVIEW, Spring 2006

Also see "Predatory Public Finance and the Origins of the War on Drugs, 1984-1989," by Bruce L. Benson and David W. Rasmussen (THE INDEPENDENT REVIEW, Fall 1996)

To subscribe to THE INDEPENDENT REVIEW: A Journal of Political Economy, a peer-reviewed journal edited by Robert Higgs, see


2) High Home Prices Tied to Stricter Planning Laws

Housing shortages caused by restrictive land-use planning have added hundreds of thousands of dollars to the cost of buying homes in California, says a new report from the Independent Institute, "The Planning Penalty: How Smart Growth Makes Housing Unaffordable." The report estimates that planning added anywhere from $69,000 to the cost of median homes in Bakersfield to $850,000 to the cost of median homes in the San Francisco metropolitan area (including Marin and San Mateo counties).

“How smart is 'smart growth' if it makes every home in a city cost $70,000 to $850,000 more so the city can save $11,000 on a few new homes?” asks the report's author, economist Randal O'Toole, a research fellow at the Independent Institute.

Statewide, the report finds that planning-induced housing shortages added $136 billion to homebuyer costs in 2005. This does not count the cost to renters or purchasers of retail, commercial, or industrial property. The planning penalties in California are almost as great as those in all other states combined.

The report also criticizes government-funded open-space programs that reduce the supply of land available for housing. “The 2000 census found that 94 percent of California's residents live on just 5 percent of the land,” says O'Toole. “Governments are abusing their power and misplacing their priorities when they create housing shortages by focusing on saving open space that is already abundant.”

O'Toole recommends that cities leave open space protection to private conservation organizations and that they relax planning rules so that homebuilders can meet the demand for new housing. He also recommends that city governments set user fees and taxes to make sure new development covers its costs and let people make their own choices about where they want to live.

See "The Planning Penalty: How Smart Growth Makes Housing Unaffordable," by Randal O'Toole

Also see "Is Urban Planning 'Creeping Socialism'?" by Randal O'Toole, chapter 15 in RE-THINKING GREEN: Alternatives to Environmental Bureaucracy, ed. by Robert Higgs and Carl P. Close. To purchase this book, see


3) Tabarrok Defends Contingent Fees

There is more agreement that the U.S. legal system needs repair than agreement about which reforms would help the most. Some have attacked contingent fees for lawyers (i.e., outcome-based compensation). But Eric Helland and Alexander Tabarrok, in their new Independent Institute book JUDGE AND JURY: American Tort Law on Trial, argue contingent fees are not a source of the problems in tort law; in fact, they have long pre-dated the tort explosion.

"Contingent fees have a number of benefits, such as helping to motivate lawyers, even when clients find it difficult to monitor their lawyers," Helland and Tabarrok write in chapter 5, "Two Cheers for Contingent Fees."

Tabarrok, director of research at the Independent Institute, defends contingent fees in a recent online debate with James R. Copland on

"Contingent fees allow injured but cash-poor individuals access to the legal system, they spread risk from plaintiffs to lawyers, and they act as an incentive system for lawyers who would otherwise be difficult for clients to monitor," Tabarrok explains. "It's the last point which explains why restrictions on contingent fees can actually increase the number of frivolous lawsuits."

See "Contingent Claims": James R. Copland vs. Alexander Tabarrok

To order JUDGE AND JURY: American Tort Law on Trial, by Eric Helland and Alexander Tabarrok, see

For a detailed summary, see


4) When Generals Speak Out

Civilian control of the military is a key pillar of a free and stable republic. The integrity of that pillar can be compromised, however, if active-duty military officers comment publicly on administration policy (rather than confining themselves strictly to military issues). Although their comments may enhance public debate in the short term, a military leadership that comments publicly on matters of policy may also politicize the military and thereby undermine civilian control of the armed forces, as Independent Institute Senior Fellow Ivan Eland argues in his latest op-ed.

It's a different matter entirely, however, when retired officers publicly praise or criticize administration policy. For example, the retired generals who have called recently for the resignation of Defense Secretary Donald Rumsfeld help strengthen the republic, Eland argues.

If, as many believe, the retired generals are a mouthpiece for many active-duty military personnel, then their public criticism is optimal for the republic, according to Eland, "because it alerts the public that many active military experts are critical of the administration's performance, but does not undermine civilian control over the armed forces by having active military officers publicly criticizing their civilian leadership."

"Perhaps one could ask why many of these retired generals have not taken a principled stand sooner. But, better late than never," Eland concludes.

See "Should Retired Generals Speak Out Against Rumsfeld?" by Ivan Eland (4/17/06)
¿Deberían los generales retirados pronunciarse en contra de Rumsfeld?

THE WAY OUT OF IRAQ: Decentralizing the Iraqi Government, by Ivan Eland

THE EMPIRE HAS NO CLOTHES: U.S. Foreign Policy Exposed, by Ivan Eland

Center on Peace & Liberty (Ivan Eland, director)


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