
Defense lawyers frequently suggest reforms of the law which would make their job easier
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Dr. Fisher
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It seems entirely possible that malpractice insurance, by
creating an irresistibly attractive "deep pocket", might well be the root cause of the malpractice crisis. Insurance can certainly cause harm, at times. It can induce people to do unnatural things, like using their own brother. Graphically termed "the moral hazard of insurance," perverse incentives create a principle: society must be vigilant against insurance benefits becoming more attractive than the covered event. It's unsafe to assume people will never sink ships or torch houses to collect insurance. If they are over-insured there is still a greater temptation. Meanwhile, salesmen have a
commission incentive to sell more coverage. Frightened physicians would buy unlimited
malpractice coverage if they could get it.
So, it is legitimate to wonder if excessive malpractice insurance might actually have
stimulated malpractice claims, converting over-insured physicians into attractive targets. One of the clear duties of insurance regulators is to forestall such effects.
That can be achieved by imposing top limits on insurance coverage, regardless of outcry to buy more, or eagerness of insurers to provide it. In the past thirty years, however,
state insurance commissioners have undoubtedly turned away from their traditional goal of preventing insurance company default, and now somewhat adopt the role of consumer advocate, holding down premiums. By itself, the resulting impairment of insurance reserves may have contributed to waves of market exodus during dips in the premium cycle. Permitting unwisely higher levels of coverage to be sold to worried customers may then have been an extended consequence. Regardless
of the causative effect of these changes, however, they are too politically charged,
too difficult to prove, and too far advanced to reverse in any reasonable time, for
relief of the present malpractice difficulties.
A number of other problems exist in the malpractice insurance mechanism, which will be
discussed next. However, they all are too intertwined with conflicting issues to have realistic hope of fixing them. Compared with a mandatory cap on pain and suffering,
insurance tinkering is unlikely to have a useful effect very soon.
Mandatory Coverage. Unfortunately, many states
have sought to create more insurance coverage, not less, an unfortunate stimulus if overgenerous insurance is already creating enticement to sue. The commonest method is to make insurance coverage mandatory for those holding a license to practice. Using the self-defeating argument that the public needs to be promised restitution, mandatory coverage surely dispenses with sales resistance. It imposes premium charges on people whose personal assessment is they don't need insurance, and raises the potential limits of coverage on those who feel they can't afford more. It thus spreads premium costs from people truly at risk, out to bystanders. But ensuring people unnecessarily may
itself create a risk of their now becoming the target of suit.
The claims-made type of policy. Under this
a system, there are really two policies -- one for any claims made (filed) during the current year, and a second "tail" policy for claims that straggle in later. Whether by
genius or accident, malpractice insurance companies introduced this technical "reform"
on their own devising, and like most solutions, it generates new issues. The idea
revolves around a peculiarity of professional liability insurance: few malpractices
claims are ever filed during the first year after the event.
That makes the premium charged for the first year pretty arbitrary. Potentially, it's a
loss-leader to attract new sales, or an emergency solution for some political crisis.
Therefore, "claims-made" policies obscure underlying cost trends. Deferring the rest of
the premium into a second ("tail") policy reduces the amount available for investment,
and therefore increases the final total cost. Those are the bad features, which are
emphasized by discovering instances when the tail is more than four times as large as
the "basic" policy.
On the other hand, the risks for the insurance company are greatly reduced by the
potential to adjust most of the premium in retrospect. An industry subject to demolition every thirty years surely needs some reduction of risk. It's true that much of the risk is transferred from the company to the doctors, but ultimately the customers to pay for all costs of any vendor. By smoothing out unexpected volatility in the court environment, the legitimate costs of financing this lottery are actually reduced, although it is not known by how much. Since 60% of malpractice insurance is
sold by companies owned by medical societies, the reduction of company cost probably mostly
comes back to the doctors.
However, that may be too complacent a view. Individual doctors come and go as
customers and an opportunity to game the system is potentially created. Long-term
deferral of true costs can be adjusted to some degree, creating a temptation to market-time investments but prove wrong in the timing. Timing of these revenue flows can be used to out-guess the tax system and creates the opportunity to squeeze out competitors who have less capital. Since the tail is seldom accumulated as a single payment but is rather fed out in partial surcharges to future basic premiums, the companies have the latitude to forgive the tail completely if they happen to choose.
Since the companies are comparatively small, the potential is there for
intergenerational cost-shifting, or cross-specialty subsidies, raising an issue of how the officers are chosen. In short, this complicated obscurity can get doctors involved in considerations they do not understand, making decisions for which they have no training, amateurs playing poker with professional card sharks. For emphasis, throw in some tricky accounting, with GAP for one set of books and SAP for another, and you begin to wonder why you ever got involved. It's a way to lose your shirt, ending up
with the blame for ruining your own respected profession.
The insurance company antitrust
exemption. Considerable uneasiness revolves around the position of the
insurance industry and its federal antitrust exemption, effectively established in 1945
by the Scarring Ferguson Act. No federal agency (the Justice Department and the Federal
Trade Commission in particular) may interfere in the business of insurance except "to
the extent such business is not regulated by State law." All states passed regulatory laws, but for twenty years there were loopholes of one sort or another, gradually closed. We now face the fact that repeal of this law, which is generally an undesirable one, would very likely generate another long period of loophole closures. Whatever the merits of repeal in other fields of insurance, the potential for regulatory turmoil in professional liability insurance seem to outweigh the desirability of introducing this issue. In particular, the repeal might lead to subsidies of states with unsatisfactory court systems, by states with good ones. No one would claim that repeal of the Act would solve the malpractice problem, or that passage of the law caused it. There's
quite a difference between noticing the existence of insurance created a very tempting
target and hoping the correction of flaws in insurance management, however numerous,
would help very much.
Linking Malpractice Insurance to Health Insurance:
Don't Even Consider It.
While tinkering with insurance cannot rescue this problem, one wrong kind of tinkering
could utterly disrupt the three professions in conflict. From time to time, a lawyer
will suggest to a physician that we could all be friends again if we just got health
insurance companies to pay malpractice premiums as a "pass through." The lawyers would then have a direct pipeline into the insurance companies or better still Medicare, and the physicians wouldn't have to care how much the awards were. Strictly no hard feelings, and we all march arm in arm to the bank. Such proposals actually do get floated in medical society meetings, and there are people so desperate they actually consider them. However imperfect other proposals may be, they do not compare with this
one in betrayal of the public.
Don't get to the root of it, please. If we were
writing a scholarly thesis about the root causes of the malpractice crisis, instead of just trying to keep it from wrecking the health delivery system, the surmises might go as follows. The malpractice insurance business is inherently cyclic and tends to drive nearly every insurance company out of the field, about every thirty years. That strongly suggests the insurers are undercapitalized, unable to accumulate adequate reserves for severe downturns in the lean years. And the reason for this is probably political. The reserves needed to withstand cyclic downturns cannot be accumulated during the fat years when state governments (in the form of the Insurance
Commissioners) experience strong political pressure to force premiums down. State involvement in the Medicaid system possibly provides special incentives to hold down overhead costs like malpractice premiums, and competition from insurers based outside the state boundaries may provide another. If this analysis is near the correct explanation, unraveling it entails an impossibly complex agenda. At a time when
straight-forward limitation of non-economic awards is probably adequate for the purpose
at hand, a top-to-bottom insurance reform would involve the repeal of the McCarran Ferguson
Act, higher premiums in the face of huge existing reserves, a reversal of attitudes by
fifty state governments, revision of the Medicaid financing process, and patient
re-education of the public to accept all this. Such an agenda is so ambitious it
amounts to a decision in advance to do nothing effective about the problem.
Furthermore, the internal problems of the insurance industry are probably only part of
the main causes for instability.
Pointing fingers and blaming others is considered counter-productive in solving
problems, but that's not always so. "Getting to the root of it" is often quite a good way to isolate a single simple cause to be remedied. In the case of medical ability,
the root cause may well have been the creation of malpractice insurance, but that analysis leads nowhere. Physicians eagerly purchased the insurance when it was cheap,
and would now quit practice rather than go without it. Placing a cap on pain and suffering awards is not only politically achievable, but it also has a proven record of success in California and Indiana. At the moment, we are more in need of something which will work than something which advances the borders of justice. If we get twenty years of respite, perhaps pell-Melli medical progress will slow down so we can learn whether the drugs in common use have unanticipated good or bad effects, and how best to use them. Or perhaps some genius will devise a fair and reasonable judicial approach. In football, that's what is known as playing for the breaks. An insurance approach to what
may well be mostly an insurance problem is not presently visible.
Desirable Technical Reforms of the Tort System
Itself
This paper takes the position that procedural reforms, whether in the insurance
industry or the legal system is not likely to be much help in bringing the disrupted system to prompt stability, or will not do so in a reasonable time. Compared with a cap
on pain and suffering, small reforms are not worth the political cost of fighting for
them. However, there are a few other reforms that are desirable in themselves, and
since they involve money, might just prove to contribute importantly to a quick
stabilization.
Pre-trial awards bargaining. Those who might
prefer caps on insurance coverage to caps on awards, should be aware of some practices which undercut the practicality of simply limiting total awards without first subdividing them into economic and non-economic components. It is not unusual for both sides in a court case to agree in advance of the trial to setting both maximum and minimum awards. The maximum is usually the utmost limit of insurance coverage, paid if the jury finds for the plaintiff. If the jury rules in favor of the defendant, an agreed minimum amount is nevertheless paid to the plaintiff. This system holds out the promise that the actual award will not attack the defendant's personal assets even if
he loses the case, in return for which he agrees to let his insurance company pay consolation awards to the plaintiff and his attorney if they lose. This seemingly
the collusive arrangement is justified by arguing that the minimum amount is specifically
aimed at the economic damages, leaving the pain and suffering part for the jury to
decide.
Unfortunately what it does is increase the willingness of both sides to go to trial,
and it drives the award to the extreme upper limits of the policy. It has the additional bad feature of rewarding the plantiff's attorney whether he wins or loses the case, thus creating an incentive to take weak cases to court. Speaking broadly,
this system has the effect of letting the insurance limits set the award, and behind that, the insurance commissioner setting the policy limits, artificially high because of the political pressures on him. The objective fact is that plaintiff attorneys are overwhelmingly members of one political party and heavy contributors to it. Election of a governor (who appoints the insurance commissioner) from that party results in a
safe prediction of higher coverage limits, awards, and premiums. This subtlety could
not continue without at least the tacit permission of the insurance industry to the
pre-trial agreements.
Double-dipping true economic damages
(
The Collateral Source Rule). Even a quick look at medical malpractice data shows the non-economic awards called "pain and suffering" are as preponderant as they are nebulous. Some describe awards for pain and suffering as capricious and arbitrary, but at the least, they appear emotional. Awards correlate better with the degree of disability than with the degree of negligence. Awards for true economic damages are viewed more sympathetically by the public, who are unaware they are mostly already covered by health insurance, a doubling effect which juries are not permitted to know.
Furthermore, in the settlements which determine most of the overall costs of this
process, the amount set aside for pain and suffering is traditionally a multiple (seven
or eight times) of the "medicals". Since, if you dig into it, it can easily be shown
that hospital, drug and equipment charges are already highly inflated above cost, there
is a serious multiplier effect at work with the "economic damages".
The outcome of these technical quirks is that both economic and non-economic damages
are often excessive, but for different reasons under differing circumstances. For this
the reason, it is not a completely satisfactory solution to place a single combined top
limit on overall awards, or on insurance coverage limits.
Structured Payment of Damages (Periodic
Payments).
The payment of damages is an attempt to put a money value on injuries so that dispute
will come to an end. When a plaintiff is disabled, however, it is not possible to know in advance how long he will live, and what he will need. Calculations are therefore made about probable life expectancy and probable costs of long-term disability care.
The resulting damage award can sometimes be very large, be paid in a lump sum, and the plaintiff attorney is awarded a third of it. However, the plaintiff has the
responsibility to save money and invest it wisely, but that does not always happen.
An insurance company is understandably unhappy to pay out an award which is invested to
return less money than the insurance company was earning through its own investment department. And the defense side is even more understandably upset when the plaintiff dies in a few months, but his estate retains large sums that were calculated for his care but now will be spent at the pleasure of the heirs. It would be of value to have longitudinal studies of the disposition of these awards, for the guidance of future courts. Current awards could just as easily prove to be too small as too large.
Assuming the money could be placed in safe hands, it seems likely to be invested better
and last a longer period of time, if the money calculated to be a certain amount each month, were actually paid out at that rate, month by month, instead of in a lump sum. A
the more careful and more efficient system would surely prove to lower costs.
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Germantown Map
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Germantown Avenue goes continuously uphill from its start at the Philadelphia waterfront until it reaches Sugarloaf in Chestnut Hill. It follows an old Indian Trail, and that's where the Indians apparently wanted to go. From Sugarloaf northward, it's all downhill.
The name derives from the shape of the hill at that point and is a fanciful description of the sudden shift from Wissahickon gorge to the Whitemarsh Valley, which occurs at that point. The underlying rock changes from hard "gneiss" to limestone. In early times, this was the location of the farm of William D.Stroud, whose son was Teddy Roosevelt's doctor and the first one to introduce the electrocardiogram to this country. Around 1928, James Page built an imposing mansion with a wrap-around porch at the top of the 40-acre estate, naming it Wycliffe. Around twenty years later, the real estate magnate Albert M. Greenfield acquired the property, which eventually was given to Temple University as a conference center, although a fire destroyed the wrap-around building. That's Sugarloaf, and you can visit it.
Two stories about Greenfield, himself, still circulate around town. The first concerns a banker who met Greenfield at the corner of 15th and Walnut Streets.
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Albert Greenfield
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The real estate man was looking up at the massive old Drexel building, where Anthony Drexel and J.P.Morgan were partners, and where Edward T. Stotesbury made lots of waves during the 1920s. Stotesbury acquired a personal wealth of about $100 million as "the richest Morgan partner" and was determined to spend every penny of it before he died in 1938. The stories of the extravagance of this birthright Quaker, and particularly his wife, are legendary. Anyway, Stotesbury held court at a big desk, just inside the door at 15th and Walnut. Greenfield was standing outside that door, chatting with his banker friend.
"Do you remember that big desk where Stotesbury used to sit?" Yes.
"Well, I used to sell newspapers at the corner here and watched Stotesbury go in and out. I want you to know I just bought that building, myself, and I'm going to put my desk right where Stotesbury used to sit."
Unfortunately, he never did. Within two months, he was dead of pancreatic cancer.
The other story was told of Greenfield's integrity, the sort of thing that was central to the long-standing success of Philadelphia businessmen in commerce and banking. When bargains are stuck in a conversation, the deal is sealed with a handshake, and you better be as good as your word.
Hubert Horan, the Chairman of the Broad Street Trust, was interested in a piece of property, and over lunch agreed to pay Greenfield three million dollars for it. Before any papers were signed, another man came rushing into Greenfield's office and excitedly announced he wanted to buy the property. "I'm sorry," said Greenfield, "I just sold it to Hubert Horan". How much? "He agreed to pay three million for it." Did you sign anything? "No." Fine, I'm willing to pay you FOUR million for it."
"Well," said Greenfield, "I suggest you go see Hubert Horan. He owns it."
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Comm Volu In Medicine
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Mary Wirshup has a very different medical background from mine, but she's my kind of doctor. I couldn't help wishing, as she addressed our urban luncheon club, there could be thousands more like her, even while understanding more fully than she seems to, the reasons why doctors are driven from her behavior model. As we parted, it felt like saying a last goodbye to the Spartans marching to Thermopylae.
As 46,000 medically uninsured persons in Chester County get sickness and injuries, they know that a Federal Law prohibits a hospital accident room from refusing to see them, so ways are found to shunt patients to the CVIM free clinic, run by volunteers. This law is, in turn, a response to a government-created situation where a hospital which "accepts" patients must keep them. Any economics teacher can tell you that supply/demand issues are best addressed by price adjustment, so price controls in whatever guise lead to shortages. I must say I have little sympathy with the devious strategies which hospitals often employ to disguise their rejection of uninsured patients. At the same time, I know a lifeboat will sink if too many climbs aboard. Nevertheless, the semantic switch from lack of insurance to lack of care implies that only more insurance can surmount the barriers to care, which is absurd. For one thing, I know too many hospital administrators who are paid a million dollars a year, and one who is paid two million. And at least two health insurance executives are in the newspapers with a net worth over a billion -- yes, that's billion with a b. We have reached a point where reducing all physician income to zero would only reduce "healthcare" costs by 10%. As I look at Dr. Wirshup's modest clothing I can only surmise she plans to continue her modest living until she is 80 years old, after which her savings might see her out. Squeezing physician reimbursement is not intended to save significant money, nor intended to restore physician incomes to more equitable levels. It is intended to address the oversupply of physicians without confronting either the universities or the foreign trained lobby.
The elite tranche of medical schools do their part to relieve physician oversupply without reducing class size, through the encouragement of their students to go into research. I was well along at the National Institutes of Health before I finally decided I had not gone into medical school with that goal, and returned to teaching and patient care in a more satisfying model not too different from CVIM's obviously Pennsylvania Dutch spirit. The Amish at the far western end of Chester County reject the whole idea of insurance; their most characteristic statement is "Don't send me no bills." That attitude is rather a contrast with the shiny housing and automobiles in the Silicon Valley developments of Southern Chester County, or even with some rather bewildered Quaker farm families scattered over the rest of the county next to the horsey set. Chester County is America.
On Second Street in Society Hill, next to the park where William Penn's house stood and a few feet from Bookbinders, is the house of Dr. Thomas Bond. Bond conceived the idea of building the first hospital in America and with Franklin's publicity machine succeeded in getting it built, to care for the "sick poor". Dr. Bond started a second enduring tradition as well. When the Legislature expressed doubt that the institution was sustainable, he pledged to convince the local medical profession to serve the poor without charge. Some of the legislators who voted for the measure did so in the belief that charity care would never appear so the gesture would be without cost. The physicians did indeed come forward, in sufficient numbers to run many institutions for two hundred years. In 1965 health insurance made its national appearance and has regarded the benchmark low costs of charity care as a threat, ever since.
MEETING OF THE SHAKSPERE SOCIETY OF PHILADELPHIA AT THE FRANKLIN INN CLUB, JANUARY 9, 2008:
Dean Wagner in the chair. Other members present Ake, Bartlett, Bornemann, Di Stefano, Dobson, Dunn, Dupee, Fallon, Fisher, Friedman, Green, Hopkinson, Ingersoll, King, Madeira, and Peck. We were happy to welcome Mr. Dunn's guest Celeste Di Nucci, a graduate student in English at Penn, and a winner of large sums on TV for her vast fund of general knowledge. Her dissertation studies the history of performance of Shakspere's plays. We also welcomed Mr. Madeira's guest Luigi Sottile, a local actor who will appear this spring in the Lantern Theater's eagerly awaited production of Othello, starring Pete Pryor as Iago and Frank X as the noble Moor. Frank was a remarkable Prospero in Lantern's Tempest a year or two ago; Pete was a riveting Richard III in a fine recent Lantern production.
The hosts for the annual meeting and dinner on Shakspere's birthday will be the same group who hosted our 1997 dinner: Messrs. Cheston, Ingersoll, and Wheeler. The venue will be announced shortly. Many thanks to these kind friends!
The Shakspere Festival of Philadelphia will stage Romeo and Juliet and Pericles in repertory from March till May of this year. This will be the first production of Pericles in our city in at least 150 years perhaps the first in Philadelphia history.
The Dean had a recent visit with our fellow member Spencer Ervin, a Maine resident who seldom has the chance to attend meetings, unhappily for all of us.
The Bartlett committee has met to discuss a plan for choosing a new Vice Dean; Dr. Fallon has urged the Society to find a successor for him in this post. We will try to identify likely academic candidates and invite them to lead some discussions next season.
The Vice Dean asked us how we respond to the "wringer/rollercoaster effect" of Lear's career in the tragedy that bears his name. Lear is absent from the stage from 3.6till 4.6. Meanwhile, in 4.2, the Bard underlines Albany's angry attack on his wife ("Thou changed and self-covered thing!")and her sister and brother in law for their savage treatment of the old king, out in the terrible storm, the gates shut on him and his few companions. His wife sneers: "Marry, your manhood, mew!" She privately expresses her lust for the macho bastard (in every sense) Edmund. Albany sees heavenly justice (a central concern of this play, the Vice Dean reminds us) in the killing of Cornwall by a servant after the nasty duke has gouged out Gloucester's eyes. Goneril denounces him for failing to form an army to attack the invading French. The Vice Dean suggested that many spectators in 1605 might have agreed with her! But the French come to protect the abused English king, not to take power from him.
4.3'Kent hears of Cordelia's landing in England with a French army to succor her father. He wonders how to explain the moral contrast between Cordelia and her vicious sisters: "The stars above us govern our conditions."
Lear feels "A sovereign shame" that "elbows him" because he had "stripped her from his benediction": a striking moral change for the better in the blustering autocrat of Act One.
4.4'Cordelia appears for the first time since Lear's denunciation of her in Act One; she says to herself, "O dear father, It is thy business that I go about": a striking reference, Dr. Fallon reminded us, to Christ's words in the Gospels. Is this loving daughter is a Christ figure? Surely not, he declared! Cordelia comes, not to sacrifice herself for others, but to win a military victory on her father's behalf!
Lear, we are told, has bedecked himself with wildflowers and weeds; as he becomes less rational, Dr. F. thinks, he becomes more sensitive to nature, and when he appears on stage so bedecked, he looks to us like a part of the natural world, the opposite of the vainglorious egotist obsessed with proclaiming his power in Act One. Madness is morally acute. We remember that the king has said when he first began to sympathize with the weak and poor, "See better, Lear; / Expose thyself to feel what others feel."
4.6---Edgar in disguise leads his father to the cliff's edge so that he may kill himself, and then assures the dazed old man that his life has been saved: "'the clearest gods'have preserved the'Bear free and patient thoughts." The Vice Dean reminded us how hard it is to make this episode palatable on stage, but it makes sense thematically: the son uses shock therapy to reconcile his father to life. Vigorous discussion ensued! Edgar robs dad of his dignity, said, one member. Another: The old man is reduced to an even more pitiable figure, even by the son who loves him.
WE MEET NEXT ON JANUARY THE TWENTY-THIRD. WE WILL RECOMMENCE READING AT THE POINT OF LEAR'S ENTRANCE IN ACT FOUR, SCENE SIX.
Respectfully submitted Robert G. Peck Secretary
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William Penn
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WILLIAM Penn and Oliver Wendell Holmes, both lawyers, can be imagined debating fiercely across two centuries, about The Inner Light. Holmes famously stated his position at the opening of his book The Common Law : "The life of the law has not been logic, it has been experience." Penn, on the other hand, urged his Quaker followers to strip away centuries of books, teaching, and traditions, viewing in quiet contemplation their individual Light Within. Since the other central Quaker belief is that "there is that of God in every man", the implication is that it is open to everyone to know the right behavior by thinking hard enough about it. No books, preachers, ceremonies needed, and in fact, such tokens of society's experience can be badly misleading. Penn did not forcefully pursue how much of the outcome came directly from God and how much was then elaborated by logic; his point was the truth is most readily discovered by contemplation, uncluttered by the world's discussion.
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Oliver Wendell Holmes
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That Penn would have acknowledged some truth to Holmes' position can be surmised from the struggle he had with the argument that solitary contemplation cannot lead to an organized moral code of behavior within a society. The example of his time was the Hippie generation, is a more familiar example. What is to prevent a society which depends on silent introspection from concluding that monogamy,personal Hygiene,, and recreational drug avoidance are useless intrusions into the joy of personal freedom? Responses having to do with sexually transmitted disease, harm to the education and welfare of unparented children, disagreeable responses to the undesirable body odors of others, and the spread of addiction by example to those who wish to minimize unnecessary temptations, are all examples of hostility by others who may not have achieved equal illumination from their inner lights. Over centuries of observed experience, societies have reached comparatively similar views on what behavior should be prohibited by force, or discouraged by social pressure. Societies which reach these conclusions may hold themselves open to discussion, but often assert a right to punish those who violate the codes without offering plausible arguments beyond merely mystical ones, closed to debate.
Penn's response to such critiques was of the nature of insisting that Quakers obey the law unless the law insists on behavior prohibited by their religion. Within the realm of unwritten societal pressures, Penn was more relaxed. Sometimes he urged bizarre behavior having to do with hats and clothing, as a silent reproach to society on some issue, but in general, he urged that Quakers consider themselves Protestant Christians as a general guide to behavior. A century after he died, most Quakers were abandoning plain dress and plain speech as not plain at all, but ostentatious. Pointless and therefore ostentatious eccentricity could be harmful to the occasional truly important witness about such things as conscientious objection to war. If the considered purpose is to be taken seriously, eccentric behavior about trivial issues is to be avoided.