The Collateral Source Rule

One of the more subtle but key underpinnings of the tort law system for compensating people for accidents is the collateral source rule. 

While it is somewhat more involved, the basic idea is that when your own insurance covers you for an injury, for example, for medical bills, or to replace your damaged car or house, or paying you disability payments when you lose income for a period of time, that you can sue for the full amount of the harm without deducting insurance covered losses.

Closely related are the doctrines that say that medical providers have a lien against what you recover in a lawsuit to recover damages that they paid for, and the right of an insurer to bring a lawsuit, called a subrogation claim, against someone whose tortious actions gave rise to the insurance claim to get back what it paid to the insured for that loss, if the insured doesn't sue.

As a practical matter, subrogation claims are uncommon and the lawyers who usually defend insureds who are sued hate bringing them, because the dollar amounts are often modest and they are loss motivated to bring them (and have less of the relevant information in many cases) than an insured who actually suffered the loss.

In substance, a very large share of personal injury and property damage tort cases are cases where the defense lawyers and defense judgment are paid for by one insurance company, and where the medical expenses and property damage claims were mostly paid by another another insurance company or credit extending medical provider with a lien on what was paid for those damages, and where a large share of the non-economic damages awarded go towards paying a contingent fee of the Plaintiff's attorney.

The system provides rough justice, but the benefits of this convoluted system that arises from the collateral source rule, over the system that would evolve without it, are dubious. 

A variety of reforms have been proposed and tried to rework this arrangement, but they're beyond the scope of this post.

Labor Day Musings

* The state of labor in one chart:

The failure of businesses to share productivity increases with their workers starting in the early 1970s is the root cause of a lot of the current political reality in the United States. In my view, the decline of private sector union membership is more a product of declining worker economic power than a cause of this shift, but that's an open question in economics.

* The number of immigrants in the U.S. labor force has fallen by 1.2 million since Trump started his second term. According to the Wall Street Journal: "With zero net immigration, Apollo Chief Economist Torsten Slok estimates, the U.S. economy would be able to sustainably add only about 24,000 nonfarm jobs a month, compared with an average 155,000 from 2015 through 2024."

Agriculture (overwhelmingly in "red America") in the U.S. is particularly suffering both due to tariffs and due to the immigration crackdown that is cutting into the agricultural labor workforce. Nebraska and Iowa saw their state GDPs fall at an annualized rate of 6.1% in the first quarter of 2025.  Those tariffs were found to be mostly illegal by the U.S. Court of International Trade in a ruling affirmed by the U.S. Court of Appeals for the Federal Circuit in a 7-4 ruling. The effect of the ruling is on hold until mid-October pending a petition for certiorari to the U.S. Supreme Court which has consistently ruled in favor of Trump despite his weak legal arguments.

The anti-immigrant fervor is driven by two main factors: (1) the economic stagnation of working age men without any college education who native born white men attribute to immigrants, international trade, and civil rights for women and minorities, and (2) the fear of white protestants in places with few immigrants that their culture will cease to be dominant.

* Courts in India are very slow.

[I]n one recent example a Delhi court concluded a property dispute after 66 years. Both the original litigants were dead. Still, the lawyer for one of the warring parties cautioned that the conclusion was in fact not the end, as the ruling would be appealed.

Three years ago, after pondering a dispute for 16 years, the supreme court sent back a 60-year-old land case for fresh adjudication to a lower court, which had already taken over 30 years to give its judgment in 2006.

A 2021 study of Mumbai real estate found that more than a quarter of the projects under planning or construction and 43 per cent of all “built-up spaces” in the city were under some litigation. My apartment block was one of them.

…One of the reasons for this accumulation is human resources. India has around 16 judges per million people, compared to over 150 for the US. In 2016, the issue brought the country’s chief justice, TS Thakur, to tears during a speech as he requested that the government hire more judges to wade through the “avalanche” of backlog.

For what it is worth, there are far fewer judges per capita in the U.S. than in Europe, even though the total number of legally trained professionals in the U.S. and in Europe per capita are similar.

The lack of state capacity in the area of courts means that property and contract rights and other forms of private law are weaker, which is bad for the economy.

* Adults in the U.S. are having sex less often (the decline is at least as great among high school students). It is basically a coincidence, but my children were conceived right around "peak sex" in the recent history of the United states.

* Wildfires are at record high in Europe due to climate change.

* The U.S. housing market is starting to favor smaller single family homes again after a peak in roughly 2014. Single family houses in the U.S. are still, on average, much larger than they were 30 years ago.

* A mere 6.0 magnitude earthquake in Afghanistan, shortly before midnight on August 31, 2025, was enough to cause at least 800 deaths and 2500 injuries.

* "Flukewarm": That feeling when you're reluctant to make a recipe, because the last time you made it, it came out perfectly. But it was a fluke, you're not sure what you did right, and you're worried you won't be able to repeat your past success.

* Last Saturday, I went to a store to buy a blind spot warning system for my car. They weren't available in 2015 when I bought it. But, I couldn't. Tariffs have delays shipments of cars parts like that one by more than a month and have greatly increased the price of those parts.

* As our country devolves into a civil war, ICE agents in unmarked cars wearing masks and not displaying their badges are unlawful combatants, and are thus they are not entitled to the protections of the Geneva Conventions. Instead, they are terrorists who are not entitled to the protections of legitimate combatants under the laws of war. They also aren't entitled to the peacetime protections and privileges of law enforcement officers.

* Rhode Island has the lowest state murder rate in the United States. Louisiana has the highest (or very nearly so) and has about ten times as many murders per capita.

* The lion's share of the counties in the U.S. with life expectancies lower than North Korea are (1) in the South and majority black or nearly so, (2) include Indian Reservations (or the Alaskan equivalent), or (3) are in Appalachia. The outliers are still in the South.

* Non-U.S. central banks are substituting gold for U.S. Treasury Bonds.

* The U.K. electrical wall plug design is safer than the U.S. design.

* People are dying on overloaded boats trying to emigrate from Gambia (in West Africa) to Europe. "More Than 130 People Are Feared Dead in West Africa Boat Tragedy: Around 150 people boarded a boat in Gambia that was thought to have been headed for Europe. The boat capsized after traveling about 380 miles."

* A judge ordered Alligator Alcatraz in Florida closed on the petition of an Indian tribe with an interest in the land, because an environmental impact statement wasn't done. The debacle cost $250 million. All detainees at the location which was inhuman and defective have been moved to other detention centers in Florida.

* Finland (which is the source of about half of my genetic ancestry) is a genetic outlier in Europe (for reasons that are well understood and closely related to the fact that it is also a linguistic outlier). 23andme was able to correctly pinpoint the place of origin of my Finnish ancestors to a region about the size of a U.S. county. The other half of my ancestry (which I know to some detail due to genealogy) is basically a European mutt that can't be localized from genetics much at all.

Other places with significant Uralic populations, Basque country, historically Celtic areas (despite the putative cultural origin of the Celts in the vicinity of Czechia which is being used as a baseline in the chart above), and places with significant Islamic migration since the 700s CE, also stand out in  this map. Sardinia is the closest modern match to the genetics of Europe prior to the arrival of the Indo-Europeans.

* It doesn't take a history genius to understand why South America, in general, and Argentina, in particular, has so much Italian ancestry (to a significant extent, because a lot of Italian Nazis fled there after World War II).

* The Holocaust has an immense effect:

* New Mexico is, by a variety of measures like education and poverty, much more like red states than blue states. But it has stayed blue because the GOP has historically made its Hispanic and Native American residents feel unwelcome and tried to persecute them. 

Utah is, by a variety of measures like education and poverty, much more like blue states than red states. But, its predominantly Mormon religion's conservative tenets have kept it out of the Democratic party fold.

* The cost of living is about 30% greater in the highest cost of living states in the U.S. than in the lowest cost of living state (Arkansas). Most of the difference is due to real estate prices.

* A plausible observation:

* Louisiana still hasn't recovered from Hurricane Katrina twenty years ago. It permanently reduced the population of the state, and of New Orleans, in particular (predominantly due to migration away from it, not due to the fatalities themselves).

* Almost every country in Western Europe has supplied Ukraine with military equipment. So have quite a few other countries (mostly in what could be called the Western European diaspora).

* Most of North America was once home to Buffalo, although the size of the herds may have been exceptionally large because the Native American populations that hunted them were decimated by European diseases not long before European migrants first documented them.

* Almost all of the land on Earth was connected about 200 million years ago.

* Republicans in Congress have grown less likely to have attended elite universities (while Democrats have grown more likely to have done so), mirroring the shift in college educated people towards the Democratic party.

* Data centers v. office building construction.

* Soil quality in Europe.

* Firefighting employment in Europe.

The U.S. figure is 0.2% (there are about 1.019 million firefighters out of 163.3 million employees, but two-thirds of them, who are not included in the 0.2%, are volunteers). This is similar to the European average.

* The twenty years from 1807 to 1827 did a lot to shape the political map of the Americas.

* Squirrels v. people.

* Women didn't start wearing underwear (i.e. panties and bras) in Europe until the 19th century, for the most part.

* Modern musical notation was invented by a Benedictine monk, Guido of Arezzo in 1025 CE and he also invented the Do-Re-Me system. Recognizable modern musical notation is older than Middle English.

* Billionaires have lower effective tax rates than the upper middle class and even less than for the average person.

We estimate income and taxes for the wealthiest group of US households by matching Forbes 400 data to the individual, business, estate, and gift tax returns of the corresponding group in 2010–2020. In our benchmark estimate, the total effective tax rate—all taxes paid relative to economic income—of the top 0.0002% (approximately the “top 400”) averaged 24% in 2018–2020 compared with 30% for the full population and 45% for top labor income earners. 

This lower total effective tax rate on the wealthiest is substantially driven by low taxable individual income relative to economic income. First, the C-corporations owned by the wealthiest distributed relatively little in dividends, limiting their individual income tax unless they sell their stocks. Second, top-owned passthrough businesses reported negative taxable income on average in spite of positive book income, further limiting their individual income tax. The top-400 effective tax rate fell from 30% in 2010–2017 to 24% in 2018–2020, explained both by a smaller share of business income being taxed and by that income being subject to lower tax rates. 

Estate and gift taxes contributed relatively little to their effective tax rate. Top-400 decedents paid 0.8% of their wealth in estate tax when married and 7% when single. Annual charitable contributions equalled 0.6% of wealth and 11% of economic income in 2018–20.

* Japan has the lowest housing prices in its major metropolitan areas of any comparable cities in the world. It isn't clear to me how much of this is due to lax land use laws arising from handling that function at a regional level rather than locally, and how much of this is due to its low birthrates and modest immigration rates.

A Non-Constitutional Revolution

The Founders in their ignorance, made the U.S. Constitution extremely hard to amend. This post is a quick recap of some of the more transformative way our constitutional and political order could be remade without constitutional amendments.

Disposition Of U.S. Territory Outside U.S. States

* Admit the District of Columbia, which has a population of roughly 679,000, as a U.S. state (once this was done, repealing the 23rd amendment to the U.S. Constitution that gives the District of Columbia three electoral votes would be easily passed).

* Require Puerto Rico, which has a population of roughly 3.2 million, to choose between independence and becoming a U.S. state. Deprived of an option to continue its current Commonwealth status, it would choose statehood.

* Grant statehood to the U.S. Virgin Islands, which has a population of approximately 104,000.

* Return the Guantanamo Naval Base to Cuba.

* Admit Guam and the Northern Mariana Island as a single new U.S. state (they are basically contiguous) with a population of approximately 221,000.

* Transfer American Samoa with a population of 44,000 to the adjacent sovereign country of Samoa, if it will accept it. Anyone dissatisfied with this could migrate to the United States and retain their citizenship.

* Collectively, this would mean that there would be 108 seats in the U.S. Senate (excluding the U.S. Vice-President's role as a tie breaker) and that there are no permanently inhabited U.S. territories that are not within U.S. states.

Congress

* Expand the U.S. House from 435 seats plus six non-voting delegates to a fixed 991 seats with no non-voting delegates. This would mean that there would be roughly 340,000 people per average seat in the U.S. House of Representatives (compared to a current average of about 790,000 people per seat), so only the Virgin Islands would have more house seats than the number it would be entitled to without a minimum of one seat per state rule, and even then, only by about a factor of three less than the average. This would also increase the size of the Electoral College to 999 electors (with the four new U.S. states), would greatly reducing the risk of a tie vote in the Electoral College (since it is an odd number), and would roughly cut in half the benefit that small states have relative to large states in the Electoral College. The number of U.S. House seats would not be changed if a state were allowed to split into more than one state or was merged with another state.

* Enact a statute requiring U.S. states with more than one seat in the U.S. House of Representatives to elect those seats in a party list proportional representation system (with each party's list determined in primary elections held in advance of the election). States with 50 seats or more would be required divide themselves into two or more regions with a number of seats proportional to the region's population of at least 20 seats and not more than 50 seats each. Currently, those states would be California (98 seats) with 2 to 4 regions, Texas (90 seats) with 2 to 4 regions, Florida (67 seats) with 2 to 3 regions, and New York (57 seats) with 2 regions. Smaller population states would be "at large". This would end gerrymandering of all kinds and would make the federal government a multi-party democracy. Doing this for Congressional delegations on a state by state level rather than nationally, would eliminate the need for a constitutional amendment, would de facto create a minimum threshold that would be much higher than it would be in a national proportional representation election, and would keep the states in charge of election administration.

* Enact a statute requiring candidates for U.S. House in states with just one representative (probably only the Virgin Islands and Guam), and for U.S. Senate, to win a majority of the vote to be elected in a general election and to hold a runoff election of the two two candidates if no candidate receives a majority of the vote in the first round. This would largely end spoiler effects as the shift in the House to what would become a multi-party system would increase the likelihood non-majority first round results.

* End the filibuster and Senatorial holds in the U.S. Senate.

Presidential Elections and Disability

* Require states to allocate their electoral votes proportionately to each candidate's popular vote, rather than by a winner take all method for a whole state, or by Congressional district.

* Pass a law implementing Section 4 of the 25th Amendment to the United States Constitution (concerning Presidential disability), to create a Presidential disability commission in connection with the language giving "the Vice President and a majority of either the principal officers or the executive departments or of such other body as Congress may be law provide" the authority to determine that the President is "unable to discharge the powers and duties of his office" and to keep that determination in force pending a Congressional determination of the question if the President disputes it. This commission might be made up the active judges, collectively, of the U.S. Court of Appeals for the District of Columbia and would have subpoena power in connection with carrying out its duties in this capacity, and would act on the Petition of the Vice President delivered under seal to the clerk of that court.

Qualifications For Public Office

* Enact a law implementing the insurgency disqualification from office in the 14th Amendment (or on any other ground) allowing any court or tribunal with jurisdiction over election administration to determine this by a preponderance of the evidence in a civil action, and allowing states courts and U.S. District Courts from a state where the official was elected to determine this after an election or appointment. For the President and Vice President, the U.S. District Court for the District of Columbia would have exclusive jurisdiction after they were elected (and even before they were sworn in). For federal appointed officials, the U.S. District Court with jurisdiction over the place where the official's primary office address is located would have exclusive jurisdiction. For state and local appointed officials, the state courts of general jurisdiction and U.S. District Courts with jurisdiction over the place where the official's primary office address is located would have exclusive jurisdiction.

Election Administration 

* Restore the protections of the Voting Rights Act expanding the protections historically applied only in places with a history of discrimination to the entire country.

* Create a right to have a state ID issued free of charge at some government office within their county at least every five years, with replacement costs limited to the actual direct cost of preparing a new ID between times. Automatically register anyone who is a citizens with a state ID or driver's license to vote. 

* Allow citizenship for voting purpose to be proven by means including any record of a previous voter registration, a passport, an expired passport, a birth certificate, a naturalization document, a tribal membership, a Social Security number, a marriage certificate to a U.S. citizen, or an affidavit establishing facts necessary to prove U.S. citizenship.

* Establish a right to an absentee ballot without proof of need for any registered voter, if a mail-in ballot is not otherwise made available to them.

* Encourage states to reduce the voting age in federal elections to sixteen years old.

* Classify people who are incarcerated as residents of their domicile immediately prior to their incarceration for purposes of state and local redistricting and for census purposes.

* Allow U.S. citizens who have no previous domicile in any U.S. state as residents of the U.S. state of their choice for purposes of federal elections.

* Prohibit election administration by elected officials (partisan or not), and also by partisan political appointees for whom one party controls the highest governing body of the election administration agency.

Courts

* Pack the court. Add another seven justices to the U.S. Supreme Court to end the distortions arising from having a 6-3 ultraconservative and hyper-conservative majority there. This should be done before any of the rest of this agenda is enacted.

* Establish criminal penalties that include disqualification from office for ethics violations by U.S. Supreme Court judges and other judges, with special venue provisions.

* Repeal the general federal diversity jurisdiction statute. 28 U.S.C. § 1332. As a result, federal court diversity jurisdiction would be allowed only in very specialized cases like class actions and cases where the parties claim ownership of land under the laws of two different states.

* Repeal the general federal question statute. 28 U.S.C. § 1331. This would end federal court jurisdiction over most lawsuits arising under federal law between private parties outside some very specific circumstances such as civil rights, election laws, intellectual property, and bankruptcy cases. The biggest impact of this would be to limit employment discrimination lawsuits to state court.

* Abolish the federal Article I immigration courts and give the U.S. District Courts exclusive jurisdiction over all immigration cases.

* Create a specialized national U.S. District Court for Indian Country which would have jurisdictions from multiple venues in cases where the U.S. District Courts currently have jurisdiction (i.e. felonies committed in Indian territory) and over other civil matters of Indian law, from which appeals would be taken to the U.S. Court of Appeals for the Federal Circuit.

* Statutorily end qualified immunity to lawsuits filed under 42 U.S.C. § 1983.

* End a law parallel to 42 U.S.C. § 1983 for violations of civil rights under color of federal law, thus codifying and expanding the scope of Bivens actions.

* Establish vicarious liability for the employers of government officials or contractors held liable under 42 U.S.C. § 1983 or its new federal counterpart.

* Enact a federal law entitling someone to relief in the form of compensatory money damages, injunctive relief, and declaratory relief from governmental entities that deprive someone of a constitutional or federal statutory right, even in the absence of fault or an intent to do so, including any deprivation of liberty arising from pre-conviction or post-conviction incarceration from someone who was wrongfully convicted, either due to procedural violations giving rise to the conviction or due to their innocence of the charges giving rise to their conviction.

* Enact a law creating a private right of action to seek injunctive relief enforcing the Posse Comitatus Act (which prohibits the use of the federal military to enforce laws domestically) in the appropriate U.S. District Court, to any person impacted by it or to any governmental entity within whose territory military personnel are used for this purpose, with expedited proceedings.

* Prohibit the activation and deployment of national guard troops in a state without the permission of its Governor, absent a notice to the Governor that troops will be deployed at least twenty-four hours in advance and a showing that law and order have collapsed to a point where civilian efforts are insufficient, or that an insurgency is in progress, or that the state is defying federal court orders. If a Governor contests this within twenty-four hours in the relevant U.S. District Court, this activation and deployment shall be stayed until an expedited hearing on the merits can be held to determine if the President has the authority to do so.

* Give U.S. District Court judges broad statutory authority to impose national injunctions against the U.S. federal government.

* Establish a judicial process required to claim the state secrets doctrine in an adversarial proceeding with a specially qualified bar of people having national security clearance at the time of their admission.

* Require an adversarial proceeding affording a personal with national security clearance with due process to revoke a national security clearance for more than five weeks (if this is not done, the temporary revocation would automatically expire).

* A U.S. District Court should be granted the authority to place any federal government agency whose senior officer has defied a court order to place that agency under court receivership, and to remove that government official from office, until a replacement who acknowledges the authority of the court and personally commits to obey that court order can be appointed. 

* Prohibit "bounty" laws that allow someone who would otherwise have no standing to bring a civil action to sue someone for a fine that enforces a state law (which are designed to circumvent judicial review of such laws).

Immigration Laws

* Immediately and automatically grant U.S. citizenship to all legal permanent residents of the U.S. (i.e. green card holders) and to all U.S. nationals who are not U.S. citizens. Allow anyone qualified to get a green card now to immediately get U.S. citizenship.

* Immediately and automatically grant U.S. citizenship to the spouse of any U.S. citizen.

* Grant automatic U.S. citizenship to any member of any recognized Native American tribe, regardless of place of birth, in accordance with the membership rules of the tribe.

* Grant citizenship at birth to a child anyone who is a U.S. citizen, or is serving in the U.S. military at the time of conception or birth. Proof of paternity may be established from the DNA records of the U.S. military kept for people serving in the U.S. military for post-humous identification purposes without the consent of the service member alleged to be a parent (or from a comparison to the DNA of all U.S. service members if the identity of the service member is not known).

* Establish a ten year statute of limitations from first entry into the U.S. (even if interrupted by period abroad of less than one year at a time) on deportations, and allow anyone for whom the statute of limitations has passed to apply for U.S. citizenship on that basis without any civics and English language test.

* Make a passport available free of charge a first time and every time it expires to every U.S. citizen.

* Eliminate authority to denaturalize someone for fraud in the immigration process for any reason, and replace that with criminal penalties for doing so that do not deprive someone of their U.S. citizenship.

* Allow a visa to be revoked after clearing an immigration checkpoint upon entry to the U.S. only with a civil action filed by the United States government in a U.S. District Court at which a valid legal basis to do so, that is not unduly vague and does not violate constitutional rights such as the right to free speech, is established by a preponderance of the evidence.

* Allow someone with a valid visa who is denied entry to the U.S. at an immigration checkpoint to obtain an award of money damages and injunctive relief if the denial of entry is without probable cause to do so, and to obtain injunctive relief reinstating the visa with no right of immigration officials to deny entry if entry is denied with probable cause but the articulated probable cause concern is later overcome. A person with a valid visa who is denied entry could elect to litigate the matter either from a temporary detention center near the place of entry, or from a U.S. embassy in another country such as the country from which they arrived.

* Prohibit deportation of someone, even when valid grounds exist to deport them, to a country where the person is not a national without their consent.

* Establish by statute (regardless of any constitutionally permissible alternatives) that probable cause that someone is deportable is requires to detain someone for immigration violations and that no one may be deported for any reason without notice and a hearing in an Article III court.

* State and local elected officials with immigration detention facilities located in their government's territory, and members of Congress from any state, shall have the right to enter and inspect an immigration detention facility and record by any meaning the people there, what the detainees have to say, and the conditions of the facility, and to demand responses from any person employed there to their questions about the facility, the authority for operating the facility, and the status of the people in the facility.

* The location and status of everyone detained for immigration purposes shall be available to the public.

* Immigration officials and any other private or public person working with them or on their behalf on on their authority shall have a duty to immediately release anyone detained for immigration purposes who presents to them proof that they are U.S. citizens or have a valid visa that has not been revoked by a court. 

Health Care

* Expand Medicare to everyone (without requiring any proof of eligibility), financing it with an increased Medicare payroll tax rate and an Obamacare tax on investment income at the same rate as for self-employed persons. Failure to make a required copayment would not be a basis for denying care but would give rise to an unsecured debt that could be discharged in bankruptcy. Convert VA Hospitals to non-profit independent hospitals financed with Medicare. Repeal Medicaid. End private for profit insurance Medicare providers. Reduce all employee health benefits to Medicare supplemental plans. Require Medicare supplemental plan providers to use standardized claim forms with providers and insureds to simplify provider paperwork.

* End lawsuits seeking to recover the costs of medical care paid for by Medicare brought by any party but the Medicare subrogation division in each state, which could bring subrogation lawsuits in state court to recover medical costs caused by tortious conduct when it determined that it was cost effective to do so.

* Expand Medicare to include long term nursing home care with a deductible not to exceed the median rent in the metropolitan area (or outside of metropolitan areas, in the rural area of that state), which can be paid with a federally guaranteed loan at the one year U.S. Treasury bond interest rate with no payments due until death, secured by a junior mortgage on the patient's personal residence, if any, if the patient is unable to pay.

Labor Laws

* Increase the federal minimum wage to $16 per hour ($32,000 per year for a full-time employee which is roughly the federal poverty line outside Alaska and Hawaii), index it to the consumer price index, and extend it to independent contractors who are providing personal services.

* The Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees to twelve workweeks of leave in a 12-month period for the birth of a child and to care for the newborn child within one year of birth, the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement,  to care for the employee’s spouse, child, or parent who has a serious health condition (a serious health condition that makes the employee unable to perform the essential functions of his or her job), any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or twenty-six work weeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave). Extend FMLA coverage to include being seven months pregnant or more. Expend the duration to up to eight months in a two year period. Create a federal grant equivalent to full-time minimum wage to anyone taking time off under the FMLA.

* Mandate a prorated 80 hours per year of paid time off for employees working 2,000 hours per year (i.e. 1 hour per 25 hours worked).

Controlled Substances

* End the status of marijuana as a federally controlled substance.

Reproductive Rights

* Statutorily clarify that states may not prohibit someone from prescribing and mailing abortion or contraception drugs across state lines or from crossing state lines to obtain an abortion drug or contraception drug obtained from out of state.

* Clarify that federal government health care facilities (e.g. prison medical centers, military hospitals, historically veteran's hospitals) can provide abortions and other reproductive health care notwithstanding state or local law.

* Clarify that the Emergency Medical Treatment Act requires states to allow abortions as part of a medical emergency, pre-empting state law. 

The Safety Of Trains v. Cars and Trucks

Understanding Rail Accident Risks With Appropriate Context

Honestly, it is surprising that so many railway deaths are not in the right of way (ROW). The defining characteristic of rail transportation is that it travels on fixed tracks which have a right of way.

There are extremely rare incidents of someone getting killed from a train while not being on the tracks - like when it falls off a bridge and kills someone below as one did not so long ago on I-25 near Pueblo, or when an accident releases a poisonous gas that kills people outside the ROW but nearby which happened to the parents of one of my first clients - but those are vanishingly rare.

Of course, what they are really doing in these statistics is distinguishing between deaths in the ROW at highway crossings and deaths in the ROW at something other than highway crossings, and basically ignoring the tiny percentage of deaths that fall in neither category.

The regulatory focus on highway crossings to the near exclusion of safety measures in railroad railways isn't unreasonable.  According to the Federal Railway Administration:

Highway-rail grade crossings are intersections where highways cross railroad tracks at-grade. Approximately 212,000 highway-rail grade crossings exist on the approximately 140,000 miles of track that make up the United States’ railroad system.

If we conservatively assume that the average highway rail grade crossing is 105.6 feet (i.e. 0.02 miles), then there are 4,240 miles of track in highway-rail grade crossings, which is about 3% of the total miles of track in the U.S. (and realistically the truth is probably closer to 1-2%). 

While only 30% of rail deaths nationally are at highway crossings, the number of deaths per mile of track are 10-30 times greater at highway crossings than they are away from them. But, the cost of safety measures to prevent rail deaths is roughly proportional to the length of the track when they are put in place.

Also, both passenger rail and freight rail cause far few deaths per passenger-mile than cars, to both passengers (who are safer by a factor of seventeen) and bystanders like pedestrians and bicyclists and people other cars, and per freight ton-mile than trucks carrying freight to both operators and bystanders.

In the U.S., in 2024, there were 954 railroad deaths and 6,542 nonfatal railroad injuries.

(Source)

There is about 1 fatal rail death away from highway crossings per 196.5 miles a track away from highway crossings, and there is about 1 fatal rail death per 806 highway crossings at highway crossings. Vanishing few fatal rail deaths are to people on the train itself 

People on railroad tracks who shouldn't be (i.e. trespassers) account for 69% of railroad deaths, but only about 10% of nonfatal railroad injuries, because 51% of rail accidents involving trespassers that make it into official statistics are deadly. 

The vast majority of rail traffic in the U.S. is freight. U.S. freight rail carried 1.71 trillion ton-miles per year with about 100 tons per train car. So, about 17,000 million train car-miles per year. 

Amtrak provides 6544 million passenger miles per year of transportation. About 35% of those are in the Northeast Corridor which run about 80% full on average and about 65% are outside the Northeast Corridor which run closer to 50% full on average. A coach car holds about 74 people which is about 59 people per car in the Northeast Corridor and about 37 people outside it. So, about 39 million train car miles per year in the Northeast Corridor and about 115 million train car miles per year outside the Northeast Corridor, for a total of about 152 million train car miles per year.

So, about 0.9% of train car miles are passenger train car miles and about 99.1% of train car miles are freight train car miles.

If rail deaths are no more likely, per train car mile, to be caused by freight train cars than by passenger train cars (although arguably the risk is per train and not per train car, in which cars passenger trains which have far fewer cars per train are much more dangerous, even though this is harder to estimate), we can reasonably estimate that passenger trains kill about 12 people per year on average (2 passengers and 10 other people), while freight trains kill about 942 people per year on average. Adjusting for train car length who shift this somewhat from freight trains to passenger trains, but even so, freight trains would be the dominant issue.

Do Existing Rules Reflect The True Nature Of The Problem

Of course, it only makes sense to take measures to reduce right of way deaths away from highway crossings if there is an effective (and cost effective) way to do so. 

People walk across and along train tracks all the time, and since trains are noisy, and you only need to move a few feet away from train tracks to avoid being hit by one, normally walking across or along train tracks is pretty safe, so long as you are able to hear them coming, you pay attention, you don't fall asleep on them, you don't get stuck on them, and you get out of the way when they come. And, it isn't really clear what the statistics use to define a trespasser, and we can't really understand the statistics without knowing this definition.

Is a trespasser merely someone who is in the right of way at all? Is a trespasser someone who tries to hitch a ride on a train that isn't using it like a passenger on a typical passenger train? Or what?

Common intuition wouldn't consider crossing over a train track when there is no indication that a train is coming, away from a highway crossing, to be trespassing, nor would common intuition consider walking along a train track in the right of way when there is no indication that a train is coming to be trespassing. I did that on my walk to and from school in junior high school almost every school day for two years without anyone even suggesting that I was trespassing.

Crossing a highway crossing when there are indications that a train is coming such as flashing lights or barriers that come down probably is trespassing, but that obviously doesn't apply when you aren't at a highway crossing.

The Federal Railway Administration, however, begs to differ, stating:

It is illegal to access private railroad property anywhere other than a designated pedestrian or roadway crossing. Trespassers are most often pedestrians who walk across or along railroad tracks as a shortcut to another destination. Some trespassers are loitering or are engaged in recreational activities such as taking photographs, jogging, bicycling, hunting, or operating recreational off-highway vehicles (ROVs). Riding ROVs along railroad tracks leads to the erosion of an important part of the track foundation known as ballast, or the rock and soil material that supports the ties and rail.

But, this definition is awfully harsh. From a pedestrian's perspective, it is often much safer to walk across or along railroad tracks away from a designated roadway crossing, than it is to cross at a highway crossing where there is much more frequent and less noisy car traffic, or across open ground away from the railroad right of way (indeed, railroads that are no longer in use are often converted to pedestrian trails for just this reason) which may constitute trespassing on private property (which is dangerous in much of rural America) and is sometimes uncleared brush. 

Sticking to official pedestrian routes is challenging. Many rural areas have no sidewalks, and walking along rural roads at night can be much more dangerous than walking along railroads. 

Designated pedestrian crossings are extremely very rare outside of dense urban areas and resort areas, because they aren't cost effective in places with little pedestrian traffic and only marginal safety risks to the pedestrians who do without them. 

But train tracks have to be crossed somewhere to get from point A to point B in many cases, because tracks often split whole states in two. 

In flat farmland, highway crossings are often a mile to six miles apart, and highway crossings can be even more sparse in mountains, forests, wetlands, and deserts. 

These detours can be tolerable in a car or a motorcycle, but represent immense delays relative to crossing a train track away from a highway crossing for a pedestrian who may have to cross that track to get to school or work or a friend's house on a regular basis.

So, simply writing off people who are simply meeting the strict FTA definition of rail right of way trespassing as "at fault" is really unreasonable, blames the victim, and unreasonably protects railroad operators from legal liability when the common law "Learned Hand" test for negligence liability (i.e. that the probability adjusted risk of harm is greater than the cost of a measure that would prevent that harm) would hold railroad operators liable for these injuries if they didn't take reasonable and cost effective measures to prevent them.

In the face of unreasonable trespassing definitions and regulations of pedestrians near train tracks, even extremely expensive preventative measures, like tall fences, will be routinely circumvented. And, authorities won't do much to prevent the harm, because the authorities seeing the situation up close will be aware that these work arounds that circumvent overkill prevention measures like tall fences, will mostly do more good than harm.

Also, my intuition is that ordinary pedestrians walking across or along railroad tracks, especially in rural and suburban areas, are not at all typical of people who are killed in rail accidents, because it is so easy to hear trains coming and because it is so easy in most cases to get out of the way. I suspect that these cases probably actually make up less than 10% of rail accidents involving pedestrians, even though the FTA itself admits on its own website that this is the predominant form of "trespassing" in rail right of ways.

Instead, I suspect that the typical cases that result in serious injury or death are very different. 

Maybe the pedestrian is a young child to little to appreciate the risk of being on train tracks when one can hear a train coming. Maybe the pedestrian is deaf or wearing headphones. 

Maybe the pedestrian falls asleep on the tracks while drunk, on drugs, or homeless, mistakenly thinking that this particular track which has low frequency traffic has been abandoned entirely. Maybe the pedestrian has been assaulted or knocked unconscious and left on the tracks. 

Some of these cases may be close to the boundary between reckless behavior indifferent to the grave risk that they will be killed and full fledged intentional suicide a bit like playing Russian roulette. 

Maybe the pedestrian is trying to hitch a ride on a freight train and stumbles. 

Maybe the pedestrian is on a rail bridge or other part of the right of way where there is no easy place to move and get out of the way of the train when it is coming. Maybe the pedestrian somehow gets stuck on the tracks with a foot wedged into a gap or is trying to rescue someone else.

Ideally, better data would add insight that the official statistics do not, and we wouldn't have to rely on intuition. But, relying in intuition grounded in common sense and lived experience until better data is available, is usually better than taking no action at all until better data is available, especially if the measures suggested by that intuition aren't terribly expensive or difficult to implement.

If my intuition is right and these are the predominant cases of result in rail deaths or injuries to "trespassers", then the broad FTA definition in addition to blaming the victim, also undermines its effectiveness by being so broad that it fails to distinguish between reasonable conduct that is only dangerous in the most freak circumstances and unreasonable conduct that really does pose an extraordinary risk of death which should be actively policed to prevent rail deaths and injuries. By not tolerating reasonable conduct, the overbroad definition undermines its own effectiveness at preventing the harms it is designed to discourage.

Distinguishing between "safe trespassing" within the FTA definition and "unsafe trespassing" within the FTA is also critical to determining what kind of preventative measures could reduce rail right of way deaths and injuries.

Possible Infrastructure Based Solutions To Reduce Harm

If the real problem is predominantly people who fall asleep or are otherwise unconscious or stuck or inert on train tracks away from highway crossings, then the solution might be to periodically put something like a LIDAR sensor along active train tracks that warn the train operator of the obstruction in time to stop the train (which could take more than a mile of warning about a minute before the train reaches that point), which would prevent not only deaths to trespassers, but also train collisions with fallen trees, large sleeping wildlife (for which "cow catchers" were designed in an earlier era), and debris carried there by a storm. These preventative measures weren't really technologically feasible or cost effective in the late 19th century and early 20th century when existing freight rail systems were invented. But now, these kinds of sensors and a way to send their signals to trains on the routes are cheap and easy to retrofit commercial off the shelf technologies that require only minor modifications for this application.

At crossings, something like a LIDAR system, or even just an "emergency stop" switch that someone could activate in the highway crossing infrastructure, could reduce the number of collisions arising from vehicles stuck at a highway crossing. Even if the warning was transmitted to the train when it was too late to come to a full stop, on oncoming train aware of an imminent collision could slow down as much as possible and activate maximum warning sirens to mitigate the magnitude of the harm from an unstoppable collision and could alert first responders so that they could on their way to the scene of the nearly inevitable collision before it even happened, in situation where every moment counts in saving someone's life. 

If a big part of  the problem is people who are deaf or wearing headphones, bright, flashing, motion sensor activated lights that only go off when trains are actually coming, located away from highway crossings, which are also cheap, easy to retrofit, commercial off the shelf technologies could do the trick, and might even reduce the need for loud train horns in the middle of the night.

The solutions above would be cheap, and could be implemented at a very manageable cost by railroad operators in response to newly adopted safety regulations (which would prevent a race to the bottom by profit minding companies competing with each other) over a period of perhaps five or ten years.

If the problem is people trying to hitchhike on train cars, hobo style, maybe a partial solution would be to design train cars so that they are difficult to ride or mount, without ladders or anything else to grip, and with the top of enclosed freight cars designs with pitched roofs that are too steep to rest upon for any length of time.

This would be very expensive to retrofit, but if the new design standards were imposed only prospectively to newly purchased freight cars as they were replaced over their useful lives, the new design would probably not be much more expensive than the old one, and as the percentage of new design cars increased over time, the entire strategy of hobo style hitchhiking on freight trains would grow increasingly less popular.

This gradual replacement would also dovetail with reduces consumption of coal, which is the single largest component of of rail freight, in favor of renewables, nuclear, and natural gas transported by pipeline, and declining consumption of liquid fossil fuels (another major component of rail freight) as electric vehicles gradually replace internal combustion engine vehicles, with freight rail instead being used to ship more containerized cargo.

Regular underpasses or overpasses for wild animals might not save many human lives but might prevent train collisions with wild (or domestic) animals that are unable to get out of  the way in time or don't realize the risk, which is surely something that both conservationists and train operators would appreciate, which is fundamentally, very low tech, like Roman Empire class civil engineering. But these measured could potentially be quite expensive to retrofit into existing rail lines. Still, good data on "rail kill" could identify the areas where these kinds of collisions are most common so that the investment in these solutions could be implemented first where it would do the most good, and these standards could be established for new rail lines (mostly proposed high speed rail lines).

Admittedly, none of these measures would be very effective against someone who is simply reckless to the point of being virtually suicidal, or someone who is actually suicidal. 

For these cases, a highly targeted campaign of public service announcements, that focuses only on the conduct that other preventative measures can't deal with, that actually is high risk, in channels that the people most likely to act this way are most likely to hear and take seriously may be the best possible solution - a bit like the campaigns in the 1980s about drunk driving and the importance of having a designated driver. A PSA campaign probably wouldn't be as effective as some of the new safety infrastructure suggested in this post, but it would almost surely make some difference if it was well done.

Simple Solutions To Big Problems

I'm a "Fox" and not a "Hedgehog". I know many things and focus on details rather than "one big thing" that solves every problem. 

But, I'm going to try to put on my hedgehog hat and come up with ways to address some of the biggest problems facing the U.S. today if forced to suggest just three solutions to each of them. The point of this exercise is partially to force prioritization of lists of proposals that can get bogged down with good ideas to solve small problems or to make lower priority reforms to big problems.

Affordable Housing and Homelessness

Housing prices in major metropolitan areas are high. What is the single biggest thing we can do to address that?

Eliminate virtually all zoning regulations of residential density, parking requirements,  minimum lot sizes, and regulation of the purposes for which buildings can be used. This primarily reduces the land value part of housing costs which is the main factor that makes housing in big cities so much more expensive. 

What is another big thing that we can do to address that?

End all property tax funding of public schools and replace the lost revenue, dollar for dollar, with increased state income taxes. This will typically reduce property taxes by more than 50% freeing up income for making principal and interest payments. It would also reduce inequities in school funding and would be more progressive as a tax source.

What is a third big thing we can do to address that?

Spend whatever it takes to provide basic housing first, immediately, to every single homeless person in the United States. Housing first is cheaper than letting people live on the street and paying the costs of that. This is less burdensome on the health care system, reduces crime, and improves quality of life for both the people who would be homeless and the people that their being homeless in their neighborhoods would impact.

Health Care

The U.S. pays far more per person for healthcare than any other country on the planet and gets poor results for its money, while inflicting great financial hardship on people. What is the single biggest thing we can do to address that?

Adopt "Medicare for All" financed with a higher Medicare payroll tax and a higher Obamacare tax on investment income. Roll in long term care coverage currently paid for, for many people, with the Medicaid long term care program. 

End Medicaid. End the Medicaid Estate Recovery System (i.e. the poor man's death tax). End private health insurance. End worker's compensation coverage of medical expenses. End the separate veteran's healthcare programs. End Obamacare insurance premium subsidies. End health insurance tax deductions and employer health insurance mandates and private health insurance mandates. End lawsuits by private individuals to pay for medical expenses. End casualty insurance policies designed to cover liability for medical expenses in lawsuits. This would greatly reduce administrative cost waste, bad debt, denial of care, linkage of health care to employment, would reduce health insurance and worker's compensation and CGL insurance expenses for businesses, would simplify tax returns for individuals, and would facilitate more effective cost control on provider payments. It would also increase use of preventative care thereby reducing more expensive acute care and would shift expensive ER care for the currently uninsured to more appropriate lower cost providers. This would especially help working class people who are mostly likely to have inadequate health insurance and to struggle with paying medical bills.

In round numbers, the U.S. federal and state governments spend about $2 trillion a year on Medicare, Medicaid, and VA health care, private health insurance policy premiums are about $1.5 trillion a year, and out of pocket health care expenses are about $0.5 trillion a year, for a total of $4 trillion a year of spending on health care, which still leaves about 27 million people without health insurance (in a country with about 336 million people). Cutting administrative costs, profits, marketing, provider level health insurance claim processing, bad debt expenses for providers, shifting ER care for the uninsured as a last resort to primary care and urgent care, price negotiation with providers from drug providers to hospitals to physicians and nurses, since the U.S. pays higher prices for everything than anyplace else in the world, substitution of preventative care that is foregone for cost reasons for later acute care, reduced worker's compensation, car insurance, homeowner's insurance, and other casualty liability insurance premium rates since they don't have to cover health care expenses, state and local public hospital funding, public employee health care funding, and reduced personal injury litigation costs associated with shifting payment obligations for medical expenses, could cut that $4 trillion to $3 trillion (about 25%). So, public expenditures for health care at all levels of government combined would increase by about 50% over current levels (some of which would be covered by eliminating tax exclusions, tax deductions and credits for health care under existing tax law) while largely eliminating household level and business level health care expenses, ending medical expense driven bankruptcies and collect litigation costs, and lower other household and business insurance premiums, and covering all 27 million of the uninsured. Tax bills for households and businesses would go up, but a lot of wasted time in households and businesses dealing with health insurance and medical bill related issues would disappear.

What is another big thing we can do to address that?

Legalize "recreational" drugs in a highly regulated and controlled manner similar to Colorado's marijuana legalization to reduce harm, while providing strong support for substance abuse treatment including drug based therapies and inpatient treatment funded with Medicaid for All resources. This would dramatically reduce the overdose epidemic, and would improve recovery rates for alcoholics and drug addicts, something that takes a particular toll on the poor and working class. This would also dramatically reduce gang crime and organized crime and would cripple cartels, and would reduce crime by addicts and would reduce incarceration costs associated with controlled substance users and jail deaths from drug withdrawal. The reduced demand would also dramatically reduce crime abroad from Columbia to Mexico, which would reduce the flow of refugees and migrants to the U.S. and would reduce corruption in the affected governments.

What is a third big thing we can do to address that?

Double the number of medical student slots for educating physicians by expanding medical school capacity and building new medical schools. We shouldn't have the same number of MD education slots as we did fifty years ago, with twice the population, and there is no shortage of highly qualified premed graduates to fill those slots. Limited supply also drives ups provider costs. Ending student loans for medical students and Medicaid for All ending bad debt issues and administrative costs for self-employed doctors and lowering malpractice insurance coverage due to not having to pay for malpractice related medical bill compensation would also allow reduced MD charges without undue hardship for MDs.

Higher Education

It is very expensive to go to college and many people leave college with large student loans that can't be discharged in bankruptcy. Many kids who are ready for college don't go, but many kids who aren't ready for college go at great expense in public funds and for themselves. What is the single biggest thing we can do to address that?

Provide 100% grant based funding for tuition, room, board, and books to students pursuing higher education whose grades and test scores and other factors show that they have at least a 50% chance of completing the higher educational program that they are enrolled in. Do not fund higher education for people who have a low chance of completing the higher educational program that they are enrolled in. End government sponsored or guaranteed student loans. This would much better utilize our nation's supply of academically competent students while reducing dropouts and failures by people who aren't currently ready for college at great expense and undermining personal self-worth. The status quo of indiscriminate state subsidies to in state students and very low admission thresholds that insure that huge percentages of students admitted at public and for profit colleges drop out without degrees is wasteful while still excluding poor and working class students at high levels from the system. Some of the political alienation towards higher education also comes from people who tried and had bad experiences since they weren't ready and dropped out and from people who were shut out of the system when they were prepared and take a sour grapes attitude towards it.

What is another thing we can do to address that?

Improve apprenticeship systems and vocational education programs, both for high school aged students whose academic performance indicates that traditional liberal education programs in a four year program don't make sense for them, and through community colleges. Adopt occupational specialty identification and training approaches used by the U.S. military for enlisted recruits for civilians. This would provide a path to missing middle occupations and recognize that not going to college doesn't have to mean that there is no path to the American dream.

What is a third big thing we can do to address that?

Forgive all existing federally guaranteed or federally provided student loans, and end the prohibition on discharging student loans in bankruptcy for all other student loans ten years after the repayment period begins if a degree is earned and professional certification is obtained in a pre-professional program, and after five years in all other cases. This would provide intergenerational justice to struggling Millenials and Gen Xers and Gen Z. These students could then better afford the American dream and could better afford to get married and have kids.

Poverty

Lots of people, especially children and single parents, but also many older adults with little education or skills, are poor and struggling. What is the single biggest thing we can do to address that?

Make the large, per child tax credit, that was available during the pandemic, permanent, and replace the complicated and audit prone earned income tax credit with a simple income tax credit equal to Social Security taxes (for both employers and employees) up to the minimum wage times thirty hours a week (or an equivalent amount of credit against self-employment taxes - reflected in not having those taxes withheld. The usefulness of the child tax credit in reducing child poverty in a simple way was demonstrated in the pandemic, and the EITC is far too complicated and has bad incentives for people trying to climb out of low income jobs and is too expensive to administer. This would make it more affordable for Millennials and Gen Z to marry, have kids, and achieve the American Dream.

What is another big thing that we can do to address that?

Reduce the regular Social Security retirement age to 55 years to people who do not have college degrees, without a reduction in benefits, and pay for any shortfalls in social security from existing obligations or new coverage, by increasing the payroll tax cap by however much is necessary to pay for it. Consider this payback for not imposing higher education costs on the public, and well as a rough justice categorical recognition that jobs that require less education are frequently more physically demanding and harder to continue to perform in late middle age. This would particularly help the Trump demographic. Many people in this demographic are already voting with their feet by leaving the work force and often applying for disability benefits which wouldn't be necessary with this categorical benefit that is much cheaper to administer and has better incentives.

What is a third big thing we can do to address that?

Provide paid maternity leave, at public expense, from six months of pregnancy to fifteen months after birth, as a short form, temporary, Social Security disability benefit. Add an additional six months to this time period for twins. Pay for this as well with an increased payroll tax cap. This greatly reduces the need for infant daycare, and increase the health of mothers and babies especially for working class families without unduly burdening employers. The pandemic proved that not being at work in late pregnancy out of economic necessity increases maternal and infant health. This would make it more affordable for Millennials and Gen Z to marry, have kids, and achieve the American Dream.

Transportation

Internal combustion engines are polluting and make up dependent upon oil. What is the single biggest thing we can do to address that?

Reduce trade barriers to importing foreign EVs and batteries, and subsidize high speed charging networks. There are lots of good EVs out there that aren't being exported to the U.S. due to trade barriers, especially from China. EVs reduce pollution and reduce fossil fuel dependency with petroleum dependency creating national security issues.

What is the second biggest thing we can do to address that?

Build dedicated high speed rail in interstate highway corridors where there is high traffic volume on medium distance routes (and upgrade medium speed rail corridors that already exist like the one in the Northeast Corridor), and use that high speed rail not only for passengers but for mail and package delivery by the USPS. Pay for this, in part, by shutting down low speed AMTRAK routes with the heaviest subsidies per passenger-mile. This could reduce pressure to expand highways, is environmentally sound, reduces highway maintenance costs, and provides mutual support between the rail system and the postal system. It would improve speed on these routes relative to both cars and to commercial flights. But it only makes sense where it makes some sort of economic sense based upon cost and demand. Medium distance, high volume routes are the sweet spot for high speed rail. Reducing petroleum dependency in addition to being environmentally and climate sound would increase national security and economic stability by reducing exposure to global oil production shocks.

What is a third big thing we can do to address that?

Convert short haul government fleet vehicles like garbage trucks, intracity and school buses, and urban postal delivery vehicles to EVs. This is a perfect niche for EVs even before charging networks are built out, reducing pollution and reducing oil demand with the benefits described above.