Thanks again
to Dan and Al for letting me hang out here this month. I hope that those of you who have stayed for
the whole ride through the field of veterans law have found some food for
thought.
I want to
end back where I began, with the big picture. Just three years before the Veterans Judicial
Review Act ended the veterans benefits system’s splendid isolation from
judicial review, the Supreme Court, speaking through Chief Justice Rehnquist,
observed:
It is scarcely open to doubt that, if
claimants [in the veterans benefits system] were permitted to retain
compensated attorneys, the day might come when it could be said that an
attorney might indeed be necessary to present a claim properly in a system
rendered more adversary and more complex by the very presence of lawyer
representation. . . . And this
additional complexity will undoubtedly engender greater administrative costs . . . .
Walters
v. Radiation Survivors, 473 U.S. 305, 326 (1985). Twenty-five years after the passage of
judicial review, this prediction of Walters
has arguably come true.
There are
plenty of problems to attack in veterans law, but the defining
problem is too much complexity. As
I recently argued to the House Veterans Affairs Committee, the most
important project for VA, Congress, and the stakeholders to undertake is trying
to find a way to combat the excess of complexity. It will be a phenomenally hard task.
The first
element of the problem is simply reducing the rate at which complexity is
growing in the system. The ever-growing
complexity of medical knowledge already drives an increase in complexity for a
system that is based upon determinations of medical causation. On top of that, there are the additional
problems of attorney
incentives to increase complexity and the political habit of “solving”
problems by adding more rules, steps, and reviewers to the process. Merely combating these forces will be a
challenge.
The harder part
of the problem is actually moving the needle in the opposite direction. As J.B. Ruhl and James Salzman brilliantly
illustrated in Mozart and the Red Queen: The Problem of Regulatory Accretion in the
Administrative State, 91 Georgetown L.J. 757 (2003), it is very, very hard to remove rules when each
individual one can be justified on its own terms and appears to have a de
minimus effect by itself. Nevertheless, a
problem of burdensome system effects is created by the accumulation of
countless little effects that each seem reasonable in isolation.
The obvious
way to avoid 10,000 fights over removing 10,000 rules is to start with a blank
sheet of paper and build something completely new. However, the stars have to align just right
before you can throw out thousands of pages of statutes and regulations that
have accumulated over a century.
Nonetheless, there is some hope that we might identify pockets of the
system that could be rewritten. Veterans
law is not particularly modular, but you could begin the process of reinventing
it by chunking it into manageable pieces:
pieces small enough to handle, but large enough to make a difference.
Even with much
smaller blank sheets of paper, you must first take a careful look at your
baseline assumptions. Is the operational
budget of the adjudication machinery taken as a given or a variable? What about the number of employees performing
each type of work? What about the
qualification of those employees ‑‑ should we continue to try to handle
everything with non-attorney adjudicators on the frontlines? What are the targets for processing time,
accuracy, and granularity of outcomes?
These are really big questions that you need to at least begin to wrap
your arms around, or your aim may well be either too ambitious or too limited.
Beginning to
answer the big questions leads you back to the
issue at the heart of veterans law: What
does it mean for the system to be veteran friendly? Most of us would agree that the current
system that is mercilessly
mocked by Jon Stewart is not living up to that ideal. However, we need to get past the negatives
and have a positive discussion about what it is we want in our veterans
benefits system and how much we are willing to invest to obtain it. This might be the hardest step.
If we are to
come to a new understanding of veteran friendliness, which recognizes the
limits imposed by complexity and system effects without a crisis forcing a
breaking point, then we need to start a robust conversation about the system
now before the tide rises any further. I
firmly believe that the challenges of veterans law are not really that
different from many others facing the legal academy, and therefore the academy
can help a great deal.
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