My comment on doctor NDAs
filkertom has a discussion on his LJ about a new evil corporate tactic being tried by some doctors. I made this comment there, which I'd like to preserve for my own amusement.
I'm not a lawyer, but I've spent a few decades watching the impenetrable
antics of the legal system. In general, I see that the courts can find
a way to argue that any proposition, no matter how perverse it may seem
to some of us, is unassailably anchored in the Constitution, precedent,
and existing law. It comes down to what they want the law to be. This
is why we make such a fuss about who gets to be judges, even though if
the system worked the way we tell our children in school that it's
supposed to, it wouldn't matter that much.
From a liberal
prospective, individual rights matter, and a contract that gives up
indefinite rights is repugnant and in some cases invalid on its face.
From
a libertarian prospective, contracts matter, and any contract entered
into legitimately is valid and supersedes the rules that would otherwise
apply.
From a conservative* prospective, the rights
of the rich matter, so a case would tend to come down to whether the
individual getting bad treatment has more money than the medical
establishment.
How the dispute is settled depends on which prospective is in control.
*The
original definition of conservative is seeking to conserve the rights
of the aristocracy. We don't have a hereditary aristocracy in America,
but we do have a privileged rich class which is functionally equivalent,
and if we try to explain what conservative means today in terms of
advancing the interests of that rich class, we get a very good match of
what they actually do -- certainly better than the definitions they tend
to espouse in their propaganda.
I'm not a lawyer, but I've spent a few decades watching the impenetrable
antics of the legal system. In general, I see that the courts can find
a way to argue that any proposition, no matter how perverse it may seem
to some of us, is unassailably anchored in the Constitution, precedent,
and existing law. It comes down to what they want the law to be. This
is why we make such a fuss about who gets to be judges, even though if
the system worked the way we tell our children in school that it's
supposed to, it wouldn't matter that much.
From a liberal
prospective, individual rights matter, and a contract that gives up
indefinite rights is repugnant and in some cases invalid on its face.
From
a libertarian prospective, contracts matter, and any contract entered
into legitimately is valid and supersedes the rules that would otherwise
apply.
From a conservative* prospective, the rights
of the rich matter, so a case would tend to come down to whether the
individual getting bad treatment has more money than the medical
establishment.
How the dispute is settled depends on which prospective is in control.
*The
original definition of conservative is seeking to conserve the rights
of the aristocracy. We don't have a hereditary aristocracy in America,
but we do have a privileged rich class which is functionally equivalent,
and if we try to explain what conservative means today in terms of
advancing the interests of that rich class, we get a very good match of
what they actually do -- certainly better than the definitions they tend
to espouse in their propaganda.