Oliver J. Richards

Saving the republic one rant at a time
Just a brief textual analysis from the “Rules of Decorum” of a federal courthouse.  You’d think that a court charged with textual analysis would perhaps do a better job of making sure that its rules are internally consistent.  (Note: I am 100% sure that the judges on the court have never seen this document.)
Just two things that immediately spring to mind:
1. I like that only “exaggerated” gesticulating is prohibited.  I am going to mildly gesticulate all over the place.  Expressio unius est exclusio alterius.
2.  Cameras, including those contained in computers and other electronic devices, are prohibited, but clearly phones are allowed (“Phones must be kept off”).  So are computers used by counsel.  I guess we all have to travel back to the 90’s to find phones and computers that don’t contain cameras? 

Just a brief textual analysis from the “Rules of Decorum” of a federal courthouse.  You’d think that a court charged with textual analysis would perhaps do a better job of making sure that its rules are internally consistent.  (Note: I am 100% sure that the judges on the court have never seen this document.)

Just two things that immediately spring to mind:

1. I like that only “exaggerated” gesticulating is prohibited.  I am going to mildly gesticulate all over the place.  Expressio unius est exclusio alterius.

2.  Cameras, including those contained in computers and other electronic devices, are prohibited, but clearly phones are allowed (“Phones must be kept off”).  So are computers used by counsel.  I guess we all have to travel back to the 90’s to find phones and computers that don’t contain cameras? 

We’re all living off of our parents

Hello all— it’s been a while I know.  But whatever. I’m writing something now, and that’s what matters, I guess … 

I got bored last night because the sports bowl turned out to be a major bust and HBO didn’t broadcast a new episode of True Detectives, so I decided to watch a couple of episodes of Girls.  Yea, embarrassing (is it?) I guess, but whatever.  I’m not ashamed.  I watched a few episodes.  I just moved to New York City and I’m still really confused by the people here and maybe I thought the show could give me some insight.  

If you haven’t seen the show, it’s meh, okay I guess.  The lead character seems to get naked at every opportunity.  Whatever.  But it’s about a bunch of people in NYC who just seem to mope around not really doing anything—the malaise of being mid twenties in New York.  I guess its a modern show about my generation—the generation of perpetual unpaid internships and the “we’ll make it eventually, no hurry, our parents worked hard and made a bunch of money, and let’s all talk about our feelings.”

What I realized is that our generation is really just living off of the exploits of our parents—both financially and socially.  The financial thing is easy to see, but we can’t even get our own social movements.  Chanting and protesting is so 1960’s.  Modern movements all use rhetoric from the 1960’s too—rhetoric borrowed from the great social movements of recent American history. 

We live in a different time.  Instead of sticking to old tactics (tactics that don’t really work—what happened Occupy?), try something new.  Instead of staging people to get arrested to make it on the news, make persuasive arguments on the news.  Instead of running campaigns to embarrass those that disagree with you, try changing some minds.  Instead of changing your profile picture for “solidarity,”  get up and actually do something.  

Come on compadres,  let’s all cure our malaise and apathy.  Or not.  whatever.

(BTW, I know this piece sucks—I have 11 drafts waiting polishing that I have never gotten back around to.  I didn’t really have time to fully form my thoughts before putting them down.  As it turns out, law school is pretty time consuming.)

Also, malaise is an amazing word.  It just rolls off the tongue like butter.  It’s probably one of the best words that sounds exactly what it means.  Another good word—murine.  It means from a mouse.  For medical stuff.)

I am a libertarian and I support social programs

There, I said it.  Kick me out of the club, or whatever, I guess.  But I do not think that supporting national social programs is at all at odds with libertarian principles: after all the right to life is the first thing in the list in the declaration of independence.  Life cannot be mere existence—it is the right to actually live rather than just survive.

I’ll explain further how I think this whole thing ought to be structured, but I’ll begin with a story:

Many opponents of social programs (“entitlements”) claim that they encourage moral hazard—that by giving them to people we are encouraging them to be lazy and live off the government.  That by giving people basic subsistence, we encourage irresponsibility.  I doubt if anyone really clamoring to live on the average $130/month for food, but for the moment let’s pretend that someone is on food stamps because they are irresponsible and lazy: perhaps that is true some of the time.

So, just for a second, pretend that you have a family member who is irresponsible with money—most of you won’t have to pretend as every family has got one.  Now this family member may be an alcoholic, may be irresponsible, etc, but would you really tell them “No, I’m not going to buy you food so you have to starve on the streets.”  Certainly you wouldn’t give them a bunch of money, but I don’t think that you would let them starve and freeze on the streets—that would be heartless.  Sure, the person is irresponsible, but despite their irresponsibility you would still have compassion for them (or at least I would hope that you would).  

So should we as a country.  We as a society have done pretty well—well enough that we shouldn’t see our fellow citizens starving and dying on the streets. Yes, some of them may be drug addicts etc., but out of our compassion, we should still provide them with a basic subsistence.  

But what about the masses out there that cannot provide for themselves through no fault of their own?  People with disabilities that cannot work, homeless veterans that have war-related mental illness?  Certainly we can do better than this, and it is certainly not a moral hazard for as part of the cost of compassion to provide these people with a place to live, healthcare, and food.  I don’t think that we should let these people live “high on the hog” as they say where I’m from, but certainly we can do better for our poor than the Swede’s do for their prisoners?

Now, I know that there are those of you out there who are going to say “We can’t afford it!”  I challenge that statement.  There is plenty of federal waste elsewhere, such as eliminating the "use it or lose it" form of budgeting.  Or maybe we could, you know, stop trying to be the world’s policemen and close down some of the 900 military bases we have in 130 different countries.  I bet we could find some money somewhere to cover our social obligations and cut the budget if we really tried and prioritized.

First off, we need to rethink through how Social Security is administered: why are people who don’t need it getting social security?  (They will respond “Well, I paid into it, I should get something out of it”)  This view is looking at Social Security in entirely the wrong way—it is not a pension program nor should it be—they should rename the program the “let’s not let people eat cat foot” program—that is what it is designed to do.  I would pay a social security tax (which could be smaller if not everyone expected to get something out of it) so that people can have a basic subsistence if they can’t otherwise. 

The trick is to find the right amount to provide a livable situation but not to incentivize people into just relying on it for retirement—not that I really think people look forward to trying to live on $1200/month (hell, my rent is more than that).  But make it a program that is livable—so that we don’t have to have old or poor people suffering on the streets.  People will still want to live better—and will continue to work hard to live better and not live on Social Security.

Additionally, we need to wrap all social programs into social security: make medicare, welfare, etc all part of the social security program—because all of these programs provide security for those that have had bad luck or for whatever reason—those members of our society that cannot or have been unable to take care of themselves.  The social security program should be a soft cushion for those that fall on hard times—providing all of the basics of modern life (food, shelter, health care).  Social Security should be nothing more than a welfare program—that provides the basics of modern life: food, shelter, health care.  I don’t think that my individual liberty will suffer because of it.

Lastly, and I know this will be controversial—we need universal single-payer healthcare.  I’m not saying we need to have a government take-over of the health care system, but again we should all pay into a system that provides an adequate minimum level of care for all.  People who want to and can afford to should be able to purchase private coverage for better care, as I’m sure many would.  But it is not moral hazard to let people die from curable diseases—it is a moral travesty.

Listen, I believe in individual liberty and minding my own business as much as the next libertarian.  I hate paying taxes as does every American.  But I know that if I saw my taxes doing something good—rather than force democracy on a people who don’t want it—I would feel better about paying them.  

I also think the free market is great—but I’m not blind.  I know that a free market that will never work to it’s theoretical best will always have holes—and I do believe that it is the role of government to protect people from falling through the holes of the free market.  

bayesian statistics and drug testing

I want to start this essay with what seems like a simple question: What are the chances that a potential employee who tests positive for an illegal substance during a pre-employment drug-screening actually uses that illegal substance? 

Let me start with some background information: 

The “accuracy” of drug testing

The first thing to note is that the term “drug-test” is a misnomer.  Drug tests don’t actually test for the presence of drugs, but test for the presence of metabolites that the human body produces to process a drug when it enters the body.  However, the human body can produce those same metabolites in response to non-illegal substances.  For example, taking Ibuprofen can cause your body to produce the metabolite that will cause you to test positive for marijuana; certain antihistamines can result in metabolites for LSD; and yes, poppy seeds can cause your body to produce metabolites that test positive for opiates.

The second important thing to note is what exactly we mean when we talk about the accuracy.  Generally, any test can fail in one of two ways: (1) either the test can produce a positive result falsely (a false-positive) or (2) the test can fail to produce a positive result when it is warranted (a false-negative).

In the technology world, there is a common joke: “Fast, cheap, good: you only get to choose two.”  The same rule seems to apply in the world of drug testing.  Generally, the cheaper a test is, the less accurate it is likely to be.  Generally, two main types of drug tests exist for urinalysis: Immunoassay tests and chromatography tests.  The first is cheaper and less accurate, the latter thought to be more accurate and is correspondingly more expensive.

Though several kinds of Immunoassay tests exist, one of the most common is the Enzyme Multiple Immunoassay test (EMIT).  While under ideal conditions with properly trained personnel the tests claims to have a 96% accuracy rate, independent studies have shown that under typical conditions the EMIT test yields false positives up to 37% of the time.  Because of how cheap the EMIT test is, it is the most widely used for pre-employment screening.  A brochure from Siemens claims that this test is used 87-90% of the time.  

The gas chromatography/mass spectrometry (GC/MS) test, the most common gas chromatography drug test, is largely believed to be much more accurate, although clearly the accuracy of this test is reliant on proper collection and laboratory techniques.  This test is also considerably more expensive, costing roughly $80/test.  

This measure of accuracy is not the point of my essay, and we can leave it to the medical professionals to fight about how accurate or not accurate these tests are.  Lest my eyes glaze over from searching through and trying to understand articles from Pubmed, let’s move on.  

Even if a test is accurate, is it worth it?

Well, that depends.  We first have to start this discussion with a discussion of Bayesian statistics.  Before you stop reading, don’t worry, this is not going to be as bad as you think: just hold on. 

As background information on Bayesian statistics, I will quote myself from an earlier post

I recently read Nate Silver’s book The Signal and the Noise, and the primary topic of that book is Bayesian statistics.  For those that haven’t read the book, shame on you, but let me summarize briefly.  Bayesian statistics is a mathematical model that helps us determine truth by looking at both past data, our assumptions, and new data.  Silver argues convincingly that we tend to over sample new data and ignore old data, and that doing so skews our perception of what current reality is.  We, as a modern society obsessed with the new, tend to throw out the old for the new when the old provides important context and relevant data for interpreting the present.  This book changed the way I think about the world significantly.  

As an example that is particularly clarifying, I will take one directly out of his book.  Let me set up the background data for you: a woman in her forties has a 1.4% chance of getting breast cancer.  Mammograms will incorrectly claim that a woman has breast cancer 10% of the time (false positives), and will fail to detect she has breast cancer 25% of the time (false negatives).  Given this data, what is the chance that a woman in her forties that tests positive for breast cancer from a mammogram has breast cancer?  Take a second to actually come up with a guess before you read on.

What did you come up with?  Seriously, try to come up with something.  If you are like me, you went with more than 90%.  My reasoning was that if the test only has a 10% of being a false positive (so like 90% of the time a positive test is actually positive) and that not every cancer is detected, my brain immediately concluded that it had to be more than 90%.  Had to be.

So what is the answer?  10 percent.  10 PERCENT, that a woman in her forties that tests positive for breast cancer actually has breast cancer.  Yes really.  If your reasoning was like mine, you completely threw out the old data (the 1.4% chance of a woman in her forties getting cancer) for the new data.  Luckily for us (perhaps unluckily for society), we are not alone.  Only 3% of people actually came up with the correct result when presented this scenario, and there’s no guarantee that all of that three percent didn’t arrive there purely by chance.  

So while “accuracy” can be described as a function of false-positives and false-negatives, the true “accuracy” of a drug test will largely depend on an estimation of the initial condition, i.e. the percent of the population an employer is dealing with that uses a particular drug.  Putting aside all of the controversy about how “accurate” a drug test is aside, let’s just for a moment assume that the test is fairly “accurate,” with only a 4% false positive rate, and a 10% false negative rate.

Let’s for a moment focus on adults aged 26 or older. Among this overall population, one study indicates that 0.6% of this population uses cocaine.  Let’s say you are hiring some older than 26, and you want them to take a pre-employment drug-screen and the test comes back positive for cocaine.  What is the probability that that person actually uses cocaine?

The Bayesian formula is pretty simple, but this is not a math essay, so I’m not going to necessarily explain how to get to this result, but you can fairly easily do this on your own.  The answer: 5%.  Again, given that the test only gives false positives 4% of the time, gives false negatives 10% of the time, a person over the age of 26 who tests positive for cocaine is only 5% likely to actually have done cocaine.  Among adults over 26, the incidence of any illicit drug use is 6.3%, so a positive test for any drug would only indicate that that individual is 38% likely to be a drug user.

So what did the drug test actually tell you?  Only that your potential employee is more likely to be doing cocaine than the general population.  Perhaps testing positive warrants additional questions or another test, but on its own it is by no means conclusive. And I would argue that you are might be excluding a potentially good employee than to be preventing a drug-using employee from coming onto your work force.  

(Note that multiple tests are likely to be more conclusive than one test alone.  For example, the random over 26-year-old was only .6% likely to be using cocaine before the first test, but is 23% likely to be using cocaine after the first test.  Thus 23% becomes our initial estimation for the second test.  If the person tests positive again, (s)he becomes 74% likely to be using cocaine.  A third positive test will mean that the potential employee is 96% likely to be using cocaine.)


Should an employer do pre-employment drug screening?  I’m not here to answer that question.  But the point I’m trying to make here is that if an employer does the drug screens, (s)he ought to put them in the proper prospective, and know exactly what information a positive test yields   Sure, information deemed from drug-screening can add additional information, but the information gleaned from a single drug test is not completely conclusive.  Employers who do drug testing might consider the drug test as part of a totality test when hiring an employee (with other factors such as prior experience, interview, etc), but it shouldn’t be completely disqualifying test.  Employers who are serious about maintaining zero-tolerance drug policies should perform more than one test if they want accurate information.

Employers (and lawyers who advise employers) ought to carefully consider their estimation of the incidence of drug use among the type of employees they are trying to hire in deciding whether or not to use pre-employment drug screens—the lower the incidence in the population they are trying to target, the less information a positive drug test is likely to give. Given the costs of testing, certain employers may find that the cost of the test outweighs the information given from the test.    Costs of drug-testing are not only the costs of the actual test, but costs of compliance with federal regulations on medical record-keeping.

Employer’s certainly don’t want to have employees that use illicit drugs—drug-using employees can be less productive and especially in safety-conscious fields can be a hazard in the work-place.  But how should employers prevent this?  I would argue that habitual illicit drug use will manifest itself in ways that are pretty easily picked up without the use of drug-testing: habitual illicit drug users are more likely to have problems with breaks in their resume etc.  And I would say that if you can’t pick up whether someone is a habitual cocaine or heroin user during an interview, you should seriously re-consider how you do interviews.  

Bottom line: I’m not trying to argue that drug-testing is worthless, but only that pre-employment drug tests only reveal so much information: that the information gleaned from a single positive test ought not be viewed as dispositive of whether that potential employee is using drugs.  Employers should be fully informed and make careful decisions as to the procedures for drug-testing and in evaluating the information that drug tests give as part of an overall evaluation of whether to hire someone.  


The information about the types of drug tests and the accuracy of the drug tests come from:

Scott S. Cairns & Carolyn V. Grady, Drug Testing in the Workplace: A Reasoned Approach for Private Employers, 12 Geo. Mason L. Rev. 491 (1990)

Kenneth G. Dau-Schmidt et al., Legal Protection for the Individual Employee (4th ed. 2011).