Wednesday, March 4, 2009

Personal Authority (Part I)

Last Friday one of my law school classes took a field trip to the federal Court of Appeals for the 7th Circuit in Chicago to hear oral arguments. The second case of the morning involved a woman who was suing her health insurance company for breach of contract. The key issue was whether the insurance company had actually authorized the surgery. This may sound like an easy factual question to resolve—just look for a letter or some other record—but what made it difficult was the fact that even though the insurance policy seemed to state that it did not cover surgeries related to the woman’s condition, this policy was nearly impossible to decipher, a customer representative gave oral authorization for the surgery in question, and the insurance company had approved a surgery relating to the same condition just a year earlier.

The insurance company’s lawyer tried to make the case that this was an ordinary insurance policy; she even said to the three judges that this 50-page contract was probably just like their health insurance policy. This move backfired, however. All three judges looked rather uncomfortable at this comparison, and one of the judges even asked: “But, counsel, what about the ordinary person reading this contract? Would he know that this procedure wasn’t covered?” From then on, the judges’ questions seemed to indicate that they wanted to rule in the woman’s favor.

This made me wonder about two things. First, these three federal appellate judges appeared not to have read their own health insurance policies. They seemed uneasy—if I may extrapolate a bit from their reactions—with the realization that some of the most important aspects of our lives are governed by contracts and regulations which even the finest legal minds in the nation have a hard time understanding. Health insurance, taxes, Social Security, probate, etc., these are all areas of law whose details are nearly incomprehensible to a non-specialist.

Second, lurking behind all this was the question whether a mere customer service representative can speak for the insurance company and whether a patient should rely on that representative’s word. This is a completely natural question for a vast bureaucracy, such as an insurance company or a government agency. When an organization is made up of thousands of people, many of whom do little more than answer phones and look up answers to simple questions on their computers, it’s obvious that not everyone can speak with authority for the entire organization. But, who speaks with authority then?

These two considerations, I would submit, point to the conclusion that one of the main problems with modern bureaucracy lies in the anonymity of authority. Authority is nowhere to be seen. When we deal with authority, we naturally look for a person to exercise that authority. But that’s simply not how the world works today. Rather, today we try to compensate for this lack of personal authority by weaving an ever denser web of contractual and regulatory obligations to give the appearance of authority, but don’t really succeed.

This is not to say that we should breach all our contracts or disregard state and federal regulations. All this means is that in a world of impersonal bureaucracy, supported by impersonal law, we will remain deeply dissatisfied because of the lack of personal authority. Laws and contracts are not enough, and can often make us unhappy, but it’s nearly impossible to rebel against just a law. Rebels and revolutionaries understand this quite well. They don’t fight against abstractions. What did American colonists do to protest the Stamp Act? They went out and tar-and-feathered the first British official they could find. What did they do to protest the taxes on tea? They dumped crates of tea into Boston harbor. Even today, when members of one political party in Congress express their opposition to a particular bill, they denounce “Senator X’s bill” or “President Y’s proposal.” The ad hominem attack may be bad logic, but it’s indispensable to the way people think. Authority needs to be personal.

Part II tomorrow...
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