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Pondering things that shouldn't be
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Forsyth County News

We live in a strange world. Things exist all around us that most of us agree should not be, and yet they persist.

It’s like a mosquito, buzzing around your head while you try to sleep, causing you to toss and turn. You know you’re likely to receive several annoying bites and the probability is low that the futile swipes you make in the dark will end the discomfort. But you lie there, continuing to slap at the sounds, rather than turning on the lights, tracking down the critter and resolving the problem once and for all.

There are probably several factors leading to this behavior. One is a sense that you probably won’t find the pest, and when you turn off the lights and try to go back to sleep, it will start all over.

Another is hope that it will just go away ... fat chance.

Still another is the known and immediate consequence of taking action versus the uncertainty of the outcome. Turning on the light means that you are likely to have difficulty getting back to sleep and you may not have accomplished anything.

Still another may be the unwillingness to allow this tiny nuisance to force you to do something that you would rather not. Whatever reasons, there seem to be many parallels in life.

Let’s look at a few illustrations. I am sure you can come up with many more, but let’s begin with the “fine print.” We’ve all received frequent “communications” from credit card companies, providing information about changed rates, other terms and conditions and privacy policies.

This seems to preserve their rights and satisfy the law, but is it fair and reasonable? Hardly anyone reads the documents (many of which require a powerful magnifying glass, untold amounts of time and the rare ability to translate arcane legaleese into simple English).

Legislators and businesses that use such “communications” seem to be the only ones that are happy with the process, yet it persists, and countless people find the terms and conditions that apply to their situations are quite different from what they had anticipated.

Who is to blame? One school says that the information has been provided, and it is up to the recipient to familiarize himself with it. But there is another school that says communication is an art that depends on the realities of the system. Communicating something in a manner that one knows will not be received is no communication at all.

However, the realities of behavior seem to be relatively unimportant compared to the need to satisfy legal strictures.

The aural equivalent of the fine print that one finds in credit card, insurance, mortgage and other documentation is the ad that is aired on radio or TV where the speaker qualifies the promotional claims with two minutes of disclaimers, crammed into an earsplitting five seconds. Can anyone actually absorb what is being said? Yet that seems to satisfy some legal doctrine that says the listener has been given adequate notice.

Let’s switch to the pharmaceutical industry and the way it advertises drug products. The list of all the wonderful things the product will do (things which only your doctor really could know, if she made the effort), is followed by an array of potential side effects. Some of these may be minor, but the list often goes all the way to death.

Why spend all that money (increasing the cost of the products) to tell you that you put some aspect of your health, or life, at risk by taking this product? Because somehow that is supposed to give you notice that will reduce the liability of the manufacturer, all of this with a product that most of us have no capability to evaluate.   

One final example. Recently physicians have begun to have people sign “evaluation” waivers. The patient agrees, as a condition of receiving medical services not to discuss or evaluate the care received and post opinions publicly in the media or on the Internet.

There is a strong ethical question here, but there is also an issue relating to suspending First Amendment rights. There may be a parallel in constitutional law where fundamental rights take on a special status under the 14th Amendment. Although this applies to the formulation of laws, under the due process and equal protection clauses, the Supreme Court has held that some rights are so fundamental, that any law restricting such a right must serve a compelling state purpose and be narrowly tailored to that purpose.

Increasing numbers of medical practitioners seem to be following the waiver path as no one objects. Granted, a lack of constraints can lead to abuses, but clearly the public good is not served by restricting information.

In each of these illustrations, we have situations which, I believe, most people find objectionable. But they persist. Even more telling, most of them are sustained by the legal structure which provides a key structural element of our society.

Too many laws are enacted to protect special interests, at the expense of the general population. Sometimes popular demand does force the enactment of protective laws, but many lack the teeth for enforcement (like the no-call legislation).

These remove politicians from the immediate pressures brought by their constituents while preserving the practices of those who provide campaign funding. But other laws are clearly designed to serve these special interests, without even an attempt at camouflage.     

Somehow, we need to make sure that our laws reflect normal standards of human behavior and a sense of “reasonableness.” Providing information in ways that will not be received, or in a manner that is unintelligible to the recipient should be considered as non-communicative.

If we truly believe that the Bill of Rights is fundamental to our society, then anyone practicing under a license granted by the state who demands that such rights be surrendered as a condition for exercising that license should have that license suspended.

Nothing will happen, and we will keep swatting at mosquitoes in the dark unless people demand change. Unfortunately, inaction in many of these cases results in more than just a few sleepless hours and some itchy swelling. Getting involved is fundamental to the long range health of our nation.

Open dialog is critical. And recognizing the realities of life in everything we do is essential to long-term success.

Dr. Melvyn Copen lives in both Georgia and Arizona. He is an educator and businessman who has worked and lived in many foreign countries and provides consulting services throughout the world. His column appears every other Wednesday. Please share your comments with him via e-mail at melcopen@hotmail.com.