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Sunday, June 18, 2006

The Future of Health Law

The HealthLawProf blog has posted a nice set of links to the recent Wake Forest symposium on the future of health law.  There are plenty of insightful essays there, but I'd just like to focus on two topics.

1) A few essays ask the question "is health law a coherent body of law," implicitly (and sometimes explicitly) responding to Easterbrook's 1996 article on the "law of the horse."  Easterbrook challenged "cyberlawyers" by claiming that their field wasn't a proper legal field at all, but just a mishmash of legal doctrines that happened to relate to computers and the internet.  Lessig long ago offered an intricate and well-reasoned response to Easterbrook, but here Einer Elhauge offers a more straightforward dismissal:

The last I checked, horses do not minister to sick persons in ways that others do not, are not governed by separate standards of care and professionalism . . .do not constitute staff that run large institutions in a uniquely decentralized fashion, are not thought to deserve special tax breaks and antitrust solicitude in their joint dealings, [and] are not thought to implicate moral rights to access . . . .

In other words, like family law, health law is an important field simply by virtue of its human significance.  It may not be "coherent," but how much of law truly is?  Moreover, I'd encourage any law student to take courses on how different areas of law interact (albeit incoherently) in a given industry. 

(As the last page of this article shows, it's instructive just to track the different degrees of attention given to certain topics in health law textbooks over time.  Many different stories could be told about the colonization of an ostensibly private health care system by administrative law.)

2) Timothy Jost offers a fascinating take on how to fix our broken health care system.  If you are at all intrigued by the bipartisan Massachusetts compromise for universal health coverage, take a look at this article.  Jost brings a comparativist's lens to the American system, offering a surprisingly hybrid approach to assuring access and containing costs.  (And finally, if "comparativism in health law" intrigues you, this book is a must-read.)

Posted by Frank3 on June 18, 2006 at 11:18 AM in Legal Theory | Permalink


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Frank, Jeff,

It seems to me that Easterbook was quite right based on the claims of a "new cyberlaw" being made in 1996. Indeed, I think Easterbrook has won out more generally: If I'm not mistaken, "cyberlaw" as a distinct field is mostly dead today.

Posted by: Orin Kerr | Jun 19, 2006 11:58:20 PM

I don't know much about Easterbrook's outlook, say, compared to Judge Posner's (whose approach can stirrup my thinking), though I think they are in roughly the same neigh-borhood. I have thought about the scientific view of the world (and tried to make some hay of it in my writing). I think you are right, but the scientific approach can either be a self-contained doctrinal system, or what I think is more likely in Chicago quarters, a theory of human interaction, like economics (with the in-bred consequential assumptions), which in its most extreme form attempts to explain everything (look at the rational actor theorists like Posner and behavioralists like Sunstein jockeying for position). Personally, I bridle at that level of scientism, but I think he's saying it's the globality not the class-icism that should decide wither the subject is taught. I sure wouldn't want to have to sit through criminal law furlong, even at Chicago. Though it might be better at Pace.

I hope you can read this and maintain your equinimity. Once I get going on puns I have a hard time reining myself in.

Posted by: Jeff Lipshaw | Jun 19, 2006 10:28:16 PM

And as for equine law--that's a horse of a different color!

Posted by: Frank | Jun 19, 2006 8:48:26 PM

That's a very interesting array of "law and" courses. And I like your interpretation of Easterbrook via the Nobel-to-CLE spectrum. I guess I should take more seriously the Euro-practice of having people just take a law undergraduate degree (and thereby perhaps according to law the same place in the "status hierarchy" as other, less practical, "majors").

That said, I worry that Easterbrook is suggesting an overly "scientific" approach to law...i.e., to try to see law as a self-enclosed system to be rationalized via purely doctrinal analysis. Certainly doctrinal analysis is important. But it pains me to think that certain fields may eclipse others simply because they have been deemed "classic" topics of purely legal study. For example, one might suggest that if 95% of a law school's graduates will never touch a criminal case, it might be odd to require them to take criminal law and not to require them to take admin, statutory interpretation, etc.

Posted by: Frank | Jun 19, 2006 8:47:25 PM

Interesting to note that if you look at the Spring and Autumn 2006 2006 University of Chicago catalog, you find implicit or explicit "law and ..." courses as follows:

Electronic Commerce Law
Poverty and Housing Law
Legal Aspects of China's Economic Transition
Law and Science
Civil Liberties and National Security
Law, Policy and Politics of Policing Strategies
Regulation of Sexuality
American Law and Rhetoric of Race
Law and Technology

Anyway, what I think Easterbrook was really saying ten years ago was, on the continuum between the kind of things a Nobel laureate teaches and a CLE course, this particular field approached the latter, and hence was not worthy of study at a place like Chicago. If I put aside Judge Easterbrook's usual self-confidence(?)in his own knowledge of how the world is ordered, there is a speck of insight available here.

I have this vague recollection of a linguistics professor explaining the evolution of distinct languages. What makes Yiddish a distinct language and not a dialect of German? (There was something called stammbaum split - but that exhausts my memory.) There is something organic about the development of the complexity (not the coherence, a term I find incomprehensible as applied to law unless I transport myself back to study with Dean Langdell) of the law as it relates to an area of social institutions that makes it worthy of study on its own, whether it is a collection of other doctrines or something to which particular legal doctrines apply. Take sports or entertainment law as an example. I think Easterbrook could have said the same thing about those areas forty or fifty years ago - what is really but the application of contract, agency and antitrust law to a particular field? But I think we've gone beyond that to say it is a body of law worth studying because the social institution is worth studying.

To flip to the other side of the stammbaum split, I taught a two hour course on venture capital and technology startups a couple of years ago (by the way, a similar course is taught at Chicago, but by an adjunct, Jack Levin). To Easterbrook's point, it WAS a challenge to find much in the way of unique law qua law of startups and venture capital, and most of it was in the area of the so-called "down round": when the pie is shrinking instead of growing, who gets cut out (i.e. diluted)? The rest was largely an amalgam of basic corporations, business planning, employment law that could very much have had the feel not of an academic course, but of a CLE "how-to" presentation.

BTW, I did once have a partner who was an expert on, and presented at CLE seminars devoted to, equine law. It was a wonderful source of bad puns.

Posted by: Jeff Lipshaw | Jun 18, 2006 11:59:30 AM

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