Risk governance and deliberative democracy in health care

Georgetown Law Journal

Volumn 97, Issue 1, 2008, Pages 1-60

  Hunter, Nan D ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 57149115185     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (385)

1. According to the Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services, total health care expenditures for 2007 are projected to reach $2.3 trillion. CTRS. FOR MEDICARE AND MEDICAID SERVS., U.S. DEP'T OF HEALTH AND HUMAN SERVS., NAT'L HEALTH EXPENDITURE PROJECTIONS 2006-2016 tbl.1, http://www.cms.hhs. gov/NationalHealthExpendData/downloads/proj2006.pdf (last visited May 24, 2008).
2. Sooner or later in any discussion of the intellectual viability of health law as a field, someone trots out the analogy of "the law of the horse."
3. See, e.g., Henry T. Greely, Some Thoughts on Academic Health Law, 41 WAKE FOREST L. REV. 391, 404 (2006) ("If a specter is in fact haunting health law, that specter appears to be "The Law of the Horse.""). The reference is to an essay by Judge Frank Easterbrook using the phrase to describe cyberlaw.
4. See Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207. Easterbrook argued that cyberlaw was simply another industry-specific category, not a coherent doctrinal field. Id. As with horses, one could collect and analyze cases dealing with transactions that happened to concern the industry - sales of its products or services, licensing, liability for accidents involving it, etc. - and call that a field, but he argued that law professors instead should "study general rules" such as torts or contracts, and apply them to cyberspace or horses (or the health care system). Id. at 208.
5. My argument about the political and intellectual dominance of risk analysis in health care draws on an emerging body of work in legal theory and the sociology of law that examines how the framework of risk has developed into an explanatory model extending to fields such as criminal law and social welfare policy. Two leading scholars in the field, Tom Baker and Jonathan Simon, have analyzed the spread of risk discourse from the insurance context into a variety of legal mechanisms for "governing through risk." Tom Baker & Jonathan Simon, Embracing Risk, in EMBRACING RISK: THE CHANGING CULTURE OF INSURANCE AND RESPONSIBILITY 1,11 (Tom Baker & Jonathan Simon eds., 2002). I share Baker and Simon's orientation in focusing on the social construction of risk: "we are less interested in what is a risk than we are in what is done in the name of risk." Id. at 18.
6. Perhaps the most comprehensive single treatment of the impact of risk analysis on jurisprudence is JENNY STEELE, RISKS AND LEGAL THEORY (2004). Steele, a British law professor, explores a number of different approaches to risk, including its usefulness as a "collective technology" relevant to issues of distributive justice. Id. at 33-38, 57.
7. Jonathan Simon's work examines risk discourse in criminal law, arguing that it constitutes a "powerful" tool "with which to interpret and frame all forms of social action as a problem for governance."
8. JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR 17 (2007). Commenting on future directions, Mariana Valverde et al. call for more study of "what kinds of risk knowledge moves are made by the various participants in particular legal networks, and with what legal, social and epistemological effects." Mariana Valverde et al., Legal Knowledges of Risks, in LAW AND RISK 86, 87 (Law Comm'n of Can. ed., 2005). This Article offers a response to Valverde, in the context of health law.
9. My analysis of risk governance in health care is also a friendly amendment to the characterization by several health policy experts that the late-twentieth-century period marked the "industrialization" of American health care.
10. See Gary S. Belkin, The Technocratic Wish: Making Sense and Finding Power in the "Managed" Medical Marketplace, 22 J. HEALTH POL. POL'Y & L. 509, 510 (1997);
11. J.D. Kleinke, The Industrialization of Health Care, 278 JAMA 1456 (1997). While many of the elements of industrialization, such as standardization, apply to the changes in the health care system that I will analyze, others, such as greater division of labor, do not. Moreover, I would argue that understanding the changes as a shift from the primacy of concern with clinical risk to at least an equal concern with financial risk provides a stronger framework for analyzing health care than the industrialization model, which is better suited for manufacturing enterprises.
12. See generally Nan D. Hunter, "Public-Private" Health Law: New Directions in Public Health, 10 J. HEALTH CARE L. & POL'Y 89 (2007) (describing governance and governmentality theories both generally and specifically within health care).
13. Colin Gordon, Governmental Rationality: An Introduction, in THE FOUCAULT EFFECT: STUDIES IN GOVERNMENTALITY 1, 2 (Graham Burchell et al. eds., 1991) (quoting Michel Foucault).
14. See Hunter, supra note 5, at 91-92. This description captures the strand of governance best categorized as governmentality theory. See id. at 90-92 (making distinctions between three concepts of governance: dominant state authority; public-private models for administrative governance [often called "new governance" or "administrative governance"]; and governmentality). For purposes of this Article, I draw from both administrative governance and governmentality literature.
15. 3 MICHEL FOUCAULT, The Subject and Power, in POWER: ESSENTIAL WORKS OF FOUCAULT, 1954-1984, at 326, 341 (James D. Faubion ed., 2000).
16. See ALAN HUNT & GARY WICKHAM, FOUCAULT AND LAW: TOWARDS A SOCIOLOGY OF LAW AS GOVERNANCE 46-50 (1994); Hugh Baxter, Bringing Foucault into Law and Law into Foucault, 48 STAN. L. REV. 449, 452-63 (1996) (book review).
17. Medicare covers slightly more than 44 million persons. See StateHealthFacts.org, Total Number of Medicare Beneficiaries, 2008, http://www.statehealthfacts.org/comparemaptable.jsp?ind=290&cat=6 (last visited May 24, 2008).
18. Medicaid covers just under 43 million. See StateHealthFacts.org, Monthly Medicaid Enrollment, Dec. 2006, http://www.statehealthfacts.org/ comparemaptable.jsp?ind=201&cat=4 (last visited May 24, 2008). Both numbers include more than six million "dual eligibles," persons enrolled in both programs, an overlap structured so that the Medicaid program pays Medicare premiums for persons who qualify for Medicare but lack the funds to pay the premiums. See http://facts.kff.org/chart.aspx?cb=50&sctn=136 (last visited Aug. 8, 2008).
19. See ALLEGRA N. KIM, CAL. RESEARCH BUREAU, FEDERAL TAX INCENTIVES FOR HEALTH INSURANCE 1-4 (2007), available at http://www.library.ca.gov/crb/07/02/07-002.pdf;
20. see also U.S. CONG., JOINT COMM. ON TAXATION, PRESENT LAW AND ANALYSIS RELATING TO THE TAX TREATMENT OF HEALTH SAVINGS ACCOUNTS AND OTHER HEALTH EXPENSES (2006), available at http://www.house.gov/jct/x-27-06. pdf. In 2004, the total federal and state tax subsidy for employment-based coverage amounted to just under $210 billion.
21. See John Sheils & Randall Haught, The Cost of Tax-Exempt Health Benefits in 2004, HEALTH AFF., w4-109 exh.1 (Feb. 25, 2004), http://content.healthaffairs.org/cgi/content/full/hlthaff.w4.106v1.
22. See Jill R. Horwitz, Why We Need the Independent Sector: The Behavior, Law, and Ethics of Not-for-Profit Hospitals, 50 UCLA L. REV. 1345, 1346-48 (2003).
23. See ROBERT I. FIELD, HEALTH CARE REGULATION IN AMERICA: COMPLEXITY, CONFRONTATION, AND COMPROMISE 22-24 (2007).
24. See id. at 44-46; see also Eleanor D. Kinney, Private Accreditation as a Substitute for Direct Government Regulation in Public Health Insurance Programs: When Is It Appropriate?, 57 L. & CONTEMP. PROBS., Autumn 1994, at 47, 54-55.
25. See Nan D. Hunter, Managed Process, Due Care: Structures of Accountability in Health Care, 6 YALE J. HEALTH POL'Y L. & ETHICS 93, 93 (2006).
26. I use this phrase to mean a broadly conceptual mechanism for framing our understanding of how systems and institutions function and toward what ends.
27. See STEELE, supra note 3, at 6-7, 18-20; Francois Ewald, Norms, Discipline and the Law, 30 REPRESENTATIONS, Spring 1990, at 138, 142-44.
28. See Alain C. Enthoven, Shattuck Lecture - Cutting Cost Without Cutting the Quality of Care, 298 NEW ENG. J. MED. 1229 (1978).
29. Id. at 1236.
30. Id. at 1229.
31. See, e.g., MICHAEL L. MILLENSON, DEMANDING MEDICAL EXCELLENCE: DOCTORS AND ACCOUNTABILITY IN THE INFORMATION AGE 49-50, 128-36, 336-40 (1997).
32. See Trisha Greenhalgh, Narrative-Based Medicine in an Evidence-Based World, 318 BRIT. MED. J. 323 (1999);
33. Marshall B. Kapp, "Cookbook" Medicine: A Legal Perspective, 150 ARCHIVES INTERNAL MED. 496 (1990). But see KATHRYN MONTGOMERY, HOW DOCTORS THINK: CLINICAL JUDGMENT AND THE PRACTICE OF MEDICINE 206 (2006) (defending the role of statistical studies in clinical judgment). The impact on the profession has spread beyond the United States.
34. See MICHAEL POWER, THE AUDIT SOCIETY: RITUALS OF VERIFICATION 104-09 (1997) (describing the adoption of "clinical audit" systems by Britain's National Health Service).
35. In general, moral hazard refers to the incentive provided by insurance to engage in actions that, without insurance, one would be reluctant to take. Insurers thus prefer to offer policies protecting against risks over which an insured lacks control rather than those which an insured can decide to assume. CAROL A. HEIMER, REACTIVE RISK AND RATIONAL ACTION: MANAGING MORAL HAZARD IN INSURANCE CONTRACTS 9, 149-50 (1985).
36. One of countless possible examples would be a newspaper advertisement by an insurance company exhorting readers "to be healthier in mind and body" and "to change your life for the better and the good." See Sarah Nettleton, Governing the Risky Self: How to Become Healthy, Wealthy and Wise, in FOUCAULT: HEALTH AND MEDICINE 207, 207 (Alan Peterson & Robin Bunton eds., 1997). The health narrative fits into a long history of insurance companies relying on eligibility criteria that turn on the good or bad "characters" of those applying for coverage.
37. See Tom Baker, Insuring Morality, 29 ECON. & SOC'Y 559, 561 (2000);
38. Brian J. Glenn, The Shifting Rhetoric of Insurance Denial, 34 LAW & SOC'Y REV. 779, 785 (2000).
39. The inflation rate in the medical sector compared to the overall U.S. inflation rate was 8.7% versus 5.5% from 1980 to 1985; 7.5% versus 4.0% from 1985 to 1990; and 6.3% versus 3.1% from 1990 to 1995. See André Hampton, Resurrection of the Prohibition on the Corporate Practice of Medicine: Teaching Old Dogma New Tricks, 66 U. CIN. L. REV. 489, 502 n.78 (1998). As Henry Aaron and Joseph Newhouse pointed out, it is important to note that "inflation" can be a misleading term with regard to health care because, although medical sector expenses have unquestionably shot up, the data do not tell us how much of the increase is attributable to inflationary prices for essentially the same product and how much reflects increased prices for increased quality.
40. See HENRY J. AARON, SERIOUS AND UNSTABLE CONDITION: FINANCING AMERICA'S HEALTH CARE 41-42 (1991) (quoting in part Joseph New-house).
41. Thomas Bodenheimer & Kevin Grumbach, The Reconfiguration of U.S. Medicine, 274 JAMA 85, 87 (1995).
42. John K. Iglehart, Changing Health Insurance Trends, 347 NEW ENG. J. MED. 956, 957 (2002); Bradley C. Strunk et al., Tracking Health Care Costs, HEALTH AFF., ¶ 9 & exh.1 (Sept. 26, 2001), http://content.healthaffairs.Org/cgi/content/ full/hlthaff.wl.39vl/DC1 (showing that the rate of increase in health care spending dropped below the growth rate in gross domestic product during 1994-1997, but outpaced it in subsequent years).
43. KAISER FAMILY FOUND. & HEALTH RESEARCH AND EDUC. TRUST, EMPLOYER HEALTH BENEFITS: 2007 ANNUAL SURVEY 18, 19 exh.1.1 (2007), available at http://www.kff.org/insurance/7672/upload/ 76723.pdf.
44. Daniel M. Fox, Health Policy and the Politics of Research in the United States, 15 J. HEALTH POL. POL'Y & L. 481, 496 (1990).
45. Id. at 489.
46. See id. at 495; see also Bodenheimer & Grumbach, supra note 26; Peter Swenson & Scott Greer, Foul Weather Friends: Big Business and Health Care Reform in the 1990s in Historical Perspective, 27 J. HEALTH POL. POL'Y & L. 605, 609-10 (2002).
47. In the fee-for-service system, insurers deferred to the certification by providers that the treatments and services that they had provided were medically necessary and reimbursement followed. See MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS & ECONOMICS OF RATIONING MECHANISMS 66-67 (1997). This is not to say, of course, that physicians had no awareness of the financial incentives that were created by the indemnity method of reimbursement.
48. See Deborah A. Stone, The Doctor as Businessman: The Changing Politics of a Cultural Icon, 22 J. HEALTH POL. POL'Y & L. 533, 534 (1997) (arguing that "the role of money in the doctor-patient relationship" has long been controversial).
49. A typical definition of utilization review is the following, taken from the Maine Department of Insurance: "[a] program used in managed care plans... [involving reviews of] the necessity, use, appropriateness, efficacy or efficiency of health care services, procedures, providers, or facilities." Maine Bureau of Insurance, Glossary of Insurance Terms, http://www.maine.gov/ pfr/insurance/glossary.htm.
50. See Mark A. Hall & Gerard F. Anderson, Health Insurers' Assessment of Medical Necessity, 140 U. PA. L. REV. 1637, 1652-54 (1992).
51. See, e.g., Wickline v. California, 239 Cal. Rptr. 810, 811 (Ct. App. 1986).
52. PETER D. JACOBSON, STRANGERS IN THE NIGHT: LAW AND MEDICINE IN THE MANAGED CARE ERA 8 (2002).
53. See Bodenheimer & Grumbach, supra note 26, at 87-88; JACOB S. HACKER, THE ROAD TO NOWHERE: THE GENESIS OF PRESIDENT CLINTON'S PLAN FOR HEALTH SECURITY 14-15 (1997).
54. See R. Adams Dudley & Harold S. Luft, Managed Care in Transition, 344 NEW ENG. J. MED. 1087, 1087 (2001).
55. HMOs are one form of managed care organization. They are more tightly structured and more closely regulated than other forms. See GEORGE D. POZGAR, LEGAL ASPECTS OF HEALTH CARE ADMINISTRATION 412 (8th ed.2003).
56. See Thomas Rice, Financial Incentives as a Cost-Control Mechanism in Managed Care, in THE PRIVATIZATION OF HEALTH CARE REFORM: LEGAL AND REGULATORY PERSPECTIVES 99, 103 (M. Gregg Bloche ed., 2003).
57. See id. at 101.
58. See Alice A. Noble & Troyen A. Brennan, Managing Care in the New Era of "Systems-Think": The Implications for Managed Care Organizational Liability and Patient Safety, 29 J.L. MED. & ETHICS 290, 292 (2001).
59. Id.
60. In 1983, 75.8% of physicians were self-employed, including 40.5% in solo practices; 24.2% were employees of managed care or other organizations. In 1999, the self-employed figure had dropped to 61.8%, with only 28.4% in solo practice. The percentage of physicians who were employees had risen by more than 50%, to 38.2%. The trend is even more pronounced among new practitioners. See Dudley & Luft, supra note 38, at 1089. Another study examined the number of physicians who practiced either alone or with one other physician, and found that there was a decrease from 40.7% in 1996-1997 to 32.5% in 2004-2005.
61. See Allison Liebhaber & Joy M. Grossman, Physicians Moving to Mid-Sized, Single-Specialty Practices, 18 CTR. FOR STUDYING HEALTH SYS. CHANGE TRACKING REPORT 1 Fig.l (Aug. 2007), available at http://www.hschange.com/CONTENT/941/941.pdf.
62. See JAMES C. ROBINSON, THE CORPORATE PRACTICE OF MEDICINE: COMPETITION AND INNOVATION IN HEALTH CARE 211 (1999).
63. Id. at 91.
64. See Bodenheimer & Grumbach, supra note 26, at 88-89; Dudley & Luft, supra note 38, at 1088.
65. The American Medical Association (AMA) established a Physicians Capital Source project in 1994 to match doctors with investors and to furnish assistance in writing business plans and on general management questions. One AMA official stated that "[p]hysicians are very concerned about whether they will have a place in the market of the future." Alicia Ault Barnett, Do Health Plans Change Course When Doctors Take the Helm?, 13 Bus. & HEALTH 32, 32 (1995).
66. See Brant S. Mittler & André Hampton, The Princess and the Pea: The Assurance of Voluntary Compliance Between the Texas Attorney General and Aetna's Texas HMOs and Its Impact on Financial Risk Shifting by Managed Care, 83 B.U. L. REV. 553, 563-67 (2003).
67. See ROBINSON, supra note 45, at 232; Ericka L. Rutenberg, Managed Care and the Business of Insurance: When Is a Provider Group Considered To Be at Risk?, 1 DEPAUL J. HEALTH CARE L. 267, 267 (1996). In 1995, the National Association of Insurance Commissioners issued guidelines for the regulation of such arrangements under state insurance codes. Id. For a case study of how one state used its regulatory powers to cope with medical practices assuming financial risk, see Mittler & Hampton, supra note 49, at 572-77.
68. Noble & Brennan, supra note 42, at 292.
69. The term "actuarial medicine" has not previously been used in legal scholarship.
70. Kleinke, supra note 4, at 1457.
71. See KENNETH S. ABRAHAM, DISTRIBUTING RISK: INSURANCE, LEGAL THEORY, AND PUBLIC POLICY 83-89 (1986).
72. See Karen A. Clifford & Russel P. Iuculano, AIDS and Insurance: The Rationale for AIDS-Related Testing, 100 HARV. L. REV. 1806, 1809-12 (1987).
73. A team of researchers from George Washington University reviewing the literature found dozens of different definitions in legal and extra-legal sources. See SARA ROSENBAUM ET AL., DEP'T OF HEALTH & HUMAN SERVS., MEDICAL NECESSITY IN PRIVATE HEALTH PLANS: IMPLICATIONS FOR BEHAVIORAL HEALTH CARE 45-63, 66-69 (2003). In addition to the materials covered by the Rosenbaum study, federal law allows the insurance companies that act as fiscal intermediaries or contractors in the Medicare system to define what is medically necessary in varying ways.
74. See Timothy P. Blanchard, Medicare Medical Necessity Determinations Revisited: Abuse of Discretion and Abuse of Process in the War Against Medicare Fraud and Abuse, 43 ST. LOUIS U. L.J. 91, 102 (1999). State Medicaid programs employ yet additional definitions.
75. See, e.g., TENN. CODE ANN. § 71-5-144 (West 2007). Yet other definitions emerged from the settlement of a class action brought by physicians who alleged that insurers misrepresented their payment policies in violation of RICO. Each of the major insurance companies settled on terms that included both definitions of "medically necessary" and special arbitration systems for resolving disputes.
76. See, e.g., CAL. MED. ASS'N., HEALTH NET SETTLEMENT OVERVIEW 1 (2005), available at http://www.cmanet.org/upload/ FinalSettementOverviewHealthNet.pdf.
77. ROSENBAUM ET AL., supra note 56, at 7, 26.
78. See ROBINSON, supra note 45, at 115.
79. See, e.g., AARON, supra note 25, at 31-33; ABRAHAM, supra note 54, at 91.
80. See Arnold J. Rosoff, Evidence-Based Medicine and the Law: The Courts Confront Clinical Practice Guidelines, 26 J. HEALTH POL. POL'Y & L. 327, 328 (2001).
81. See William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, 60 LAW & CONTEMP. PROBS., Spring 1997, at 159, 204-05.
82. See J. Rosser Matthews, Practice Guidelines and Tort Reform: The Legal System Confronts the Technocratic Wish, 24 J. HEALTH POL. POL'Y & L. 275, 279-83 (1999).
83. See Lars Noah, Medicine's Epistemology: Mapping the Haphazard Diffusion of Knowledge in the Biomedical Community, 44 ARIZ. L. REV. 373, 417-18 (2002).
84. The Institute of Medicine defines CPG's as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." COMM. TO ADVISE THE PUB. HEALTH SERV. ON CLINICAL PRACTICE GUIDELINES, INST, OF MED., CLINICAL PRACTICE GUIDELINES: DIRECTIONS FOR A NEW PROGRAM 38 (Marilyn J. Field & Kathleen N. Lohr eds., 1990) [hereinafter CLINICAL PRACTICE GUIDELINES].
85. When Congress created the Agency for Health Care Policy and Research (AHCPR) in 1987, the agency's primary mission was to use outcomes research to produce national guidelines for common medical procedures. See Matthews, supra note 62, at 282. One can now view hundreds of guidelines through the agency's website. (AHCRP was renamed the Agency for Health Research and Quality.) Agency for Health Research and Quality, Clinical Practice Guidelines, http://www.ahrq.gov/clinic/cpgsix.htm (follow "National Guideline Clearinghouse" hyperlink).
86. The Institute of Medicine issued a laudatory report on CPGs in 1990, CLINICAL PRACTICE GUIDELINES, supra note 64, and dozens of professional societies have issued their own guidelines. See Michelle M. Mello, Of Swords and Shields: The Role of Clinical Practice Guidelines in Medical Malpractice Litigation, 149 U. PA. L. REV. 645, 650 (2001).
87. For managed care organizations and other insurers, guideline development grew easily out of the methodology of utilization review. See id. at 651-52.
88. "[M]odern health plans virtually cannot operate without using some sort of clinical guidelines to decide which care is covered under the plan." E. Haavi Morreim, Playing Doctor: Corporate Medical Practice and Medical Malpractice, 32 U. MICH. J.L. REFORM 939,1001 (1999). Gary Bekin argues that only a scientific rationale could have succeeded in threading the needle of cost-reduction pressure and professional pride. See Belkin, supra note 4, at 518.
89. A number of courts have allowed a physician to defeat a malpractice claim by demonstrating that she followed the professional norm in her treatment decisions; fewer courts have allowed their use by plaintiffs to establish a breach of the standard of care. See Andrew L. Hyams et al., Medical Practice Guidelines in Malpractice Litigation: An Early Retrospective, 21 J. HEALTH POL. POL'Y & L. 289, 295-96 (1996);
90. see also Noah, supra note 63, at 462-63.
91. See, e.g., David A. Hyman & Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution?, 90 CORNELL L. REV. 893, 990 (2005) (endorsing judicial reliance on CPGs in malpractice litigation);
92. Mello, supra note 66, at 708-10 (opposing);
93. William R. Trail & Brad A. Allen, Government Created Medical Practice Guidelines: The Opening of Pandora's Box, 10 J.L. & HEALTH 231, 251-58 (1996) (endorsing their use only as an affirmative defense).
94. Hyams et al., supra note 69, at 292.
95. See Valverde, supra note 3, at 93 (describing best-practices guides as "normalizing knowledge formats" (internal quotation marks omitted)).
96. See Mark A. Hall, The Death of Managed Care: A Regulatory Autopsy, 30 J. HEALTH POL. POL'Y & L. 427, 441-3 (2005);
97. Bradley C. Strunk & James D. Reschovsky, Kinder and Gentler: Physicians and Managed Care, 1997-2001, 5 CTR. FOR STUDYING HEALTH SYS. CHANGE TRACKING REPORT (Nov. 2002), available at http://www.hschange.com/CONTENT/486/486.pdf.
98. Strunk & Reschovsky, supra note 73, at 3-4.
99. Cf. Arti K. Rai, Health Care Fraud and Abuse: A Tale of Behavior Induced by Payment Structure, 30 J. LEGAL STUD. 579, 583-85 (2001) (explaining the role of financial incentives in changing physician behavior).
100. Insurers stung by the cost in goodwill from the backlash against managed care increasingly have developed product lines that shift elevated levels of financial risk to patient-consumers, through health savings accounts and higher co-pays and deductibles. See ROBINSON, supra note 45, at 83-87.
101. Symposium, Rethinking Health Law, 41 WAKE FOREST L. REV. 341 (2006).
102. Einer R. Elhauge, Can Health Law Become a Coherent Field of Law?, 41 WAKE FOREST L. REV. 365, 365 (2006).
103. Carol A. Heimer, Responsibility in Health Care: Spanning the Boundary Between Law and Medicine, 41 WAKE FOREST L. REV. 465, 466 (2006).
104. Rethinking Health Law, supra note 77.
105. Mark A. Hall, The History and Future of Health Care Law: An Essentialist View, 41 WAKE FOREST L. REV. 347, 354 (2006).
106. See AM. SOC'Y LAW AND MED., HEALTH LAW AND PROFESSIONAL EDUCATION: THE REPORT OF THE TASK FORCE ON HEALTH LAW CURRICULA OF THE AMERICAN SOCIETY OF LAW AND MEDICINE (1985).
107. See BARRY R. FURROW ET AL., HEALTH LAW: CASES, MATERIALS, AND PROBLEMS 195-97 (5th ed. 2004).
108. See, e.g., Kitzmiller v. Henning, 437 S.E.2d 452, 454 (W. Va. 1993) (duty of confidentiality); Stigliano v. Connaught Labs., Inc., 658 A.2d 715, 720 (N.J. 1995) (duty to testify about treatment rendered to patient).
109. See Barry R. Furrow, From the Doctor to the System: The New Demands of Health Law, 14 HEALTH MATRIX 67, 69-80 (2004).
110. See Jeffery Boyd & Lauren Kelley, Health Law 2000: Regulation, Litigation, or Stagnation?, 15 HEALTH AFF. 31, 33 (1996).
111. Hall, supra note 81, at 357-62.
112. Mark A. Hall & Carl E. Schneider, Where Is the "There" in Health Law? Can It Become a Coherent Field?, 14 HEALTH MATRIX 101, 103 (2004).
113. See generally CARL SCHNEIDER, THE PRACTICE OF AUTONOMY: PATIENTS, DOCTORS, AND MEDICAL DECISIONS 9-32 (1998);
114. Janet L. Dolgin, The Evolution of the "Patient": Shifts in Attitudes About Consent, Genetic Information, and Commercialization in Health Care, 34 HOFSTRA L. REV. 137 (2005).
115. See generally CLARK C. HAVIGHURST, HEALTH CARE CHOICES: PRIVATE CONTRACTS AS INSTRUMENTS OF HEALTH CARE REFORM (1995).
116. See generally Kenneth J. Arrow, Uncertainty and the Welfare Economics of Medical Care, 53 AM. ECON. REV. 941 (1963).
117. See M. Gregg Bloche, The Invention of Health Law, 91 CAL. L. REV. 247, 303 (2003).
118. See generally Rand E. Rosenblatt, Health Care Reform and Administrative Law: A Structural Approach, 88 YALE L.J. 243 (1990).
119. See generally PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE (1982).
120. See generally NORMAN DANIELS, JUST HEALTH CARE (1985).
121. See Elhauge, supra note 78.
122. Id. at 379.
123. See id. at 384-86.
124. See Blum v. Yaretsky, 457 U.S. 991, 1005 (1992) (finding no state action when the decision of a private nursing home had the effect of reclassifying level of Medicaid services);
125. see also Clyde W. Summers, The Privatization of Personal Freedoms and Enrichment of Democracy: Some Lessons from Labor Law, 1986 U. ILL. L. REV. 689.
126. See Canterbury v. Spence, 464 F.2d 772, 787 (D.C. Cir. 1972); Joan H. Krause, Reconceptualizing Informed Consent in an Era of Health Care Cost Containment, 85 IOWA L. REV. 261, 267-68 (1999).
127. Shea v. Esensten, 107 F.3d 625, 629 (8th Cir. 1997) (ERISA fiduciary duty includes obligation to disclose financial incentive when advising patient not to seek specialist care). In many states, statutes impose disclosure requirements on health plans.
128. See Tracy E. Miller & William M. Sage, Disclosing Physician Financial Incentives, 281 JAMA 1424, 1427 & n.33 (1999);
129. see also, e.g., Neade v. Portes, 710 N.E.2d 418, 425-27 (Ill. App. Ct. 1999).
130. See generally Bloche, supra note 92, at 271-74; Krause, supra note 100, at 346-61; David Mechanic & Mark Schlesinger, The Impact of Managed Care on Patients' Trust in Medical Care and Their Physicians, 275 JAMA 1693, 1694 (1996).
131. See Johnson v. Kokemoor, 545 N.W.2d 495 (Wis. 1996) (holding surgeon liable in part for not informing patient that he had not previously performed the procedure to which the patient consented);
132. see also Aaron D. Twerski & Neil B. Cohen, The Second Revolution in Informed Consent: Comparing Physicians to Each Other, 94 NW. U. L. REV. 1 (1999).
133. See, e.g., Consumers Checkbook v. Dep't of Health and Human Servs., 502 F. Supp. 2d 79 (D.D.C. 2007).
134. LAWRENCE O. GOSTTN, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT 3-5 (2000).
135. See JACOB S. HACKER, THE DIVIDED WELFARE STATE: THE BATTLE OVER PUBLIC AND PRIVATE SECTOR BENEFITS IN THE UNITED STATES 7 (2002).
136. See TIMOTHY STOLTZFUS JOST, HEALTH CARE COVERAGE DETERMINATIONS: AN INTERNATIONAL COMPARATIVE STUDY 1-5 (2005).
137. See, e.g., Jerome P. Kassirer, Managing Care - Should We Adopt a New Ethic?, 339 NEW ENG. J. MED. 397, 398 (1998).
138. See generally JACOBSON, supra note 36, at 222-25.
139. See National Library of Medicine, The Hippocratic Oath, http://www.nlm.nih.gov/hmd/greek/greek-oath.html (last visited May 25, 2008); see also Declaration of Geneva: Physician's Oath, http://www.cirp.org/ library/ethics/geneva ("The health... of my patient will be my first consideration ....") (last visited May 25, 2008); General Medical Council, Good Medical Practice (2006), http://www.gmc-uk.org/guidance/good-medical- practice/duties-of-a-doctor.asp ("Make the care of your patient your first concern.") (last visited May 25, 2008).
140. See supra note 84; see also Moore v. Regents of the Univ. of Cal., 793 P.2d 466, 469 (Cal. 1990);
141. Mary Anne Bobinski, Autonomy and Privacy: Protecting Patients from Their Physicians, 55 U. PITT. L. REV. 291, 349 n.211 (1994). Courts will sometimes simply make flat statements that a fiduciary duty exists between physician and patient, indicative of a kind of judicial notice of the fiduciary relationship, without requiring evidence or citing to authority.
142. See, e.g., Lockett v. Goodill, 430 P.2d 589, 591 (Wash. 1967). Marc Rodwin has argued that the concept of doctors as fiduciaries for their patients is "a dominant metaphor" in health law, but that courts enforce it in only limited circumstances.
143. See Marc A. Rodwin, Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System, 21 AM. J.L. & MED. 241, 242 (1995).
144. ERISA governs all employee benefit plans in the private sector, including health insurance as well as pensions. See 29 U.S.C. § 1002(1) (2000). For a history of how it evolved to become such a critical component of health law, see infra notes 148-62 and accompanying text.
145. "ERISA's fiduciary duty provisions do not readily accommodate the professional norm of fidelity to individual patients." M. Gregg Bloche & Peter D. Jacobson, The Supreme Court and Bedside Rationing, 284 JAMA 2776, 2778 (2000).
146. See 29 U.S.C. § 1002(21)(A) (2000).
147. See 29 U.S.C. § 1104(a)(1)(A) (2000); see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110-11 (1989).
148. AUSTIN WAKEMAN SCOTT ET AL., 3 SCOTT AND ASCHER ON TRUSTS § 17.8, at 1215-1220 (2006).
149. Id. § 17.15, at 1257-62.
150. See Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 510 (1981) (finding that Congress was concerned with workers actually receiving rights which had vested).
151. See 29 U.S.C. § 1002(1) (2000).
152. Pegram v. Herdrich, 530 U.S. 211 (2000).
153. Id. at 215.
154. The plaintiff's first strategy was to plead only state law claims and avoid ERISA, doubtless because of the very limited remedies available under ERISA. There are no provisions for economic or non-economic damages in ERISA, only a right to restitution of the benefit. 29 U.S.C. § 1132 (2000 & Supp. 2005).
155. Pegram, 530 U.S. at 216. The plaintiff, Cynthia Herdrich, had coverage with the HMO through her husband's employer. The HMO had contracted with the employer who sponsored the group health plan to both provide medical services and administer the group plan. Thus, the HMO was responsible for assessing whether particular services were covered under a medically necessary standard, as well as for delivering the care. The patient alleged that the assessment regarding the exigency of her need for a diagnostic test was tainted by the physician's awareness that her own year-end bonus would be based on how successfully she reduced expenditures by, in part, directing that auxiliary services such as testing be performed by the in-network facilities which charged reduced rates. Id. at 226-27.
156. Id. at 214.
157. Id. The district court had concluded that Pegram and the HMO were not acting as fiduciaries under ERISA and dismissed the ERISA claim. Herdrich was then permitted to try her original malpractice counts to a jury, where she
158. Id. at 237.
159. Id. at 211, 237. The Court suggested that physicians could still be held individually liable on common law grounds if their standard of care, including their clinical assessment of what was medically necessary, fell below the professional norm standard for malpractice. Id. at 224.
160. Id. at 219.
161. Id. at 221.
162. Id. at 232-33. The Court declined to undertake an assessment of whether the structure of the defendant's financial inducements system exceeded "socially acceptable medical risk," id. at 221, because that judgment would require determination of the appropriate trade-offs between the risk of under-treatment and the amount of expenditures to be allocated for health care. See id. Such an analysis, the Court said, was for the legislature to make. See id.
163. Id. at 234-35.
164. See id. at 235.
165. Id.
166. Id.
167. See Gail B. Agrawal, Resuscitating Professionalism: Self-Regulation in the Medical Marketplace, 66 MO. L. REV. 341, 359-62 (2001) (distinguishing between an allowance for some consideration of the expense of different treatments and allocating resources across populations).
168. For a similar argument as to the distinction between fiduciary and malpractice standards in the context of informed consent law, see Bobinski, supra note 109, at 343-44.
169. Cf. William M. Sage, UR Here: The Supreme Court's Guide for Managed Care, 19 HEALTH AFF. 219, 222 (2000) (characterizing the Court's decision in Pegram as "render[ing] irrelevant" the distinction between ERISA's duty of loyalty and the professional standard for physician loyalty to a patient's interest).
170. See Aetna Health Inc. v. Davila, 542 U.S. 200 (2004).
171. Id. at 204-05. Davila consolidated cases involving denial of a specific medication recommended by a treating physician but for which the MCO denied approval, and denial of additional in-patient time, also recommended by the plaintiff's personal physician. In both instances, the MCO decisions allegedly caused illnesses that would have been averted had the original recommendations been accepted. See id.
172. Id. at 205 (describing claims under the Texas Health Care Liability Act).
173. See id. at 206.
174. See id.
175. See id. at 204.
176. The practical ramification of this classification was the sharp curtailment of potential relief for plaintiffs. See supra note 120.
177. Davila, 542 U.S. at 219.
178. Id. at 220.
179. Id.
180. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
181. Unlike the 1952 steel mill seizure, Truman in 1946 had statutory power under the War Labor Disputes Act (which expired in 1947) to take this action. See RAYMOND MUNTS, BARGAINING FOR HEALTH: LABOR UNIONS, HEALTH INSURANCE AND MEDICAL CARE 33 (1967).
182. See JENNIFER KLEIN, FOR ALL THESE RIGHTS: BUSINESS, LABOR, AND THE SHAPING OF AMERICA'S PUBLIC-PRIVATE WELFARE STATE 178, 213-17 (2003).
183. After Truman seized the mines, the Secretary of the Interior signed an agreement with the president of the United Mineworkers Workers (UMW) that included establishment of funding for health benefits. When operating control was returned to the owners, the health benefits system was continued and management's funding for it increased. See id. at 198; MUNTS, supra note 147. For a discussion of the UMW's efforts after 1946, see M
184. The number of individuals with health insurance through their workplaces rose from 2.7 million in 1948 to more than 7 million in 1950. See JOSEPH W. GARBARINO, HEALTH PLANS AND COLLECTIVE BARGAINING 19 (1960).
185. See Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960) (describing labor-management relations as a "system of industrial self-government").
186. See generally Katherine van Wezel Stone, The Post-War Paradigm in American Labor Law, 90 YALE L.J. 1509, 1511-15 (1981). The Supreme Court cleared the field for health insurance to be part of the demands made within a system of industrial self-government when it left standing a court of appeals decision ruling that benefit plans fell within the "conditions of employment" subject to collective bargaining under the National Labor Relations Act. See Inland Steel Co. v. Nat'l Labor Relations Bd., 170 F.2d 247, 250-51, 254-55 (7th Cir. 1948), cert. denied, 336 U.S. 960 (1949). The Supreme Court's denial of review effectively killed further litigation by employers arguing that health insurance benefits were not within the scope of collective bargaining.
187. See KLEIN, supra note 148, at 231-32.
188. The CBA functioned as "essentially an instrument of government." Archibald Cox, Reflections upon Labor Arbitration, 72 HARV. L. REV. 1482, 1492 (1959).
189. See id.
190. GARBARINO, supra note 150, at 22; MUNTS, supra note 147, at 33-35, 51.
191. STARR, supra note 94, at 334. Classifying health benefits as not part of compensation began as a temporary measure during World War II when wage controls were in effect. See FIELD, supra note 13, at 77-78.
192. GARBARINO, supra note 150, at 1-2.
193. KLEIN, supra note 148, at 220;
194. see also MARIE GOTTSCHALK, THE SHADOW WELFARE STATE: LABOR, BUSINESS, AND THE POLITICS OF HEALTH CARE IN THE UNITED STATES 48 (2000);
195. KLEIN, supra note 148, at 210-11, 221-23, 239-40.
196. See Alan Derickson, Health Security for All? Social Unionism and Universal Health Insurance, 80 J. AM. HIST. 1333, 1350 (1994).
197. See KLEIN, supra note 148, at 188. In a number of industries, unions still sponsor and administer the health insurance plans.
198. See GOTTSCHALK, supra note 157, at 44-53. In those instances, it is union-selected agents that are responsible for resolving disputes when a worker asserts that she was improperly denied coverage of a medical service recommended by her physician.
199. See, e.g., Jones v. Laborers Health & Welfare Trust Fund, 906 F.2d 480, 482 (9th Cir. 1990) (upholding denial by the union fund of a claim on the ground that the treatment sought was not medically necessary: "The language of the collective bargaining agreement provides the means by which the Trust Fund operates .... We will not upset the review process the parties have bargained for.").
200. Union leaders believed that the plans provided "an important sense of identity and cohesion for union members who may have few other real attachments." GOTTSCHALK, supra note 157, at 52;
201. see also id. at 42-44, 51. Klein describes a UMW program that transported injured workers from the mines to prestigious hospitals as creating dramatic scenes that carried the message that "the union would take care of its own."
202. KLEIN, supra note 148, at 197-99.
203. See GARBARINO, supra note 150, at 7, 19.
204. See Derickson, supra note 158, at 1356.
205. See KLEIN, supra note 148, at 224-26, 237.
206. See id. at 247; MUNTS, supra note 147, at 107-08.
207. 72 Stat. 997, 999-1000 (repealed 1976); see also KLEIN, supra note 148, at 250-53;
208. JAMES A. WOOTEN, THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974: A POLITICAL HISTORY 45-49, 81-83 (2004).
209. The single, most-powerful triggering event mobilizing demand for further reform was the default of the Studebaker-Packard Pension Plan in the early 1960s. See WOOTEN, supra note 165, at 51-79.
210. "ERISA represented the culmination of the disclosure act struggle.... " KLEIN, supra note 148, at 261.
211. One of the prime congressional supporters of ERISA, Senator Jacob Javits, called it "the greatest development in the life of the American worker since social security." See WOOTEN, supra note 165, at 1. President Ford scheduled the signing ceremony for Labor Day, to highlight its "really ... historic" importance. See id.
212. See id. at 7-8; Daniel M. Fox & Daniel C. Schaffer, Semi-Preemption in ERISA: Legislative Process and Health Policy, 7 AM. J. TAX POL'Y 47, 51 (1988);
213. James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 2, 14 J. PENSION BENEFITS 5, 10 (2007). Pro-union advocates routinely sought to reinforce federal power: Archibald Cox noted in 1954 that "[l]abor union lawyers are the strongest advocates of federal preemption, both in court and before congressional committees."
214. Archibald Cox, Federalism and the Law of Labor Relations, 67 HARV. L. REV. 1297, 1302 (1954). Catherine Fisk suggested that "some in Congress may have believed that making employee benefits an area of exclusive federal concern [through ERISA preemption] was merely the first part of a new phase in the construction of the American welfare state."
215. Catherine L. Fisk, Lochner Redux: The Renaissance of Laissez-Faire Contract in the Federal Common Law of Employee Benefits, 56 OHIO ST. L.J. 153, 163 (1995).
216. Wooten, supra note 169, at 10 (emphasis added).
217. Katherine Van Wetzel Stone, The Legacy of Industrial Pluralism: The Tension Between Individual Employment Rights and the New Deal Collective Bargaining System, 59 U. CHI. L. REV. 575, 579 (1992).
218. News Release, Bureau of Labor Statistics, Union Members in 2006, at 1 (Jan. 2007), http://www.bls.gov/news.release/pdf/union2.pdf.
219. See supra text accompanying notes 25-28.
220. See GOTTSCHALK, supra note 157, at 48-49, 116.
221. See SWENSON & Greer, supra note 31, at 620-21; Eduardo Porter, Cost of Benefits Cited as Factor in Slump in Jobs, N.Y. TIMES, Aug. 19, 2004, at Al.
222. See, e.g., Corey Kilgannon, Union Dissidents Say Transit Leader Gave Away Too Much, N.Y. TIMES, Jan. 3, 2006, at B2.
223. See GOTTSCHALK, supra note 157, at 126-27; Paul Fronstin, Sources of Health Insurance and Characteristics of the Uninsured: Analysis of the March 2007 Current Population Survey, 310 EMPLOYEE BENEFIT RESEARCH INSTITUTE ISSUE BRIEF 4 (2007) (reporting that percentage of nonelderly population with employment-based insurance fell from 64.4% in 1994 to 62.2% in 2006);
224. KAISER FAMILY FOUND. & HEALTH RESEARCH AND EDUCATIONAL TRUST, supra note 28 (60% of employers offered health benefits in 2007, compared to 69% in 2000; among firms with three to nine employees, the offer rate fell from 57% to 45%).
225. Beginning with their 2007-2008 contract, GM and the UAW have negotiated for the establishment of a Voluntary Employee Benefits Association (VEBA), which will operate as a trust fund to cover claims for health benefits by retired workers. See Sholnn Freeman & Frank Ahrens, GM, Union Agree on Contract to End Strike, WASH. POST, Sept. 27, 2007, at Al.
226. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995).
227. I intend "rationing" to denote both setting the terms of what services the plan covers and adjudicating disputes that arise over those terms.
228. Justice Ginsburg has now taken up the point. See Aetna Health Inc. v. Davila, 542 U.S. 200, 222 (2004) (Ginsburg, J., concurring).
229. See Lockheed Corp. v. Spink, 517 U.S. 882, 887 ("Nothing in ERISA requires employers to establish employee benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan.").
230. See 29 C.F.R. § 2560.503-1 (2001).
231. At the last minute, congressional conferees included a broad federal preemption clause to stave off multiple state standards. See WOOTEN, supra note 165, at 256, 258-59. The preemption clause satisfied concerns by employers that they not have to conform to differing state criteria in establishing benefit plans and the desire of labor unions to maintain benefits as a bargaining chip which could be freely negotiated up or down, vis-à-vis other issues such as wages, without mandated minimums or other requirements set by state legislatures.
232. 29 U.S.C. § 1144(a) (2000).
233. Id. § 1144(b)(2)(A).
234. 59 Stat. 34 (1945).
235. See Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 429-31 (1946) (finding that the congressional purpose behind enactment was to "give support to ... state systems for regulating ... the business of insurance").
236. 29 U.S.C. § 1144(b)(2)(B).
237. See Self-Insurance Institute of America, Inc., Self-Insured Group Health Plans, http://www.siia.org/i4a/pages/index.cfm?pageid=3339 (last visited May 25, 2008).
238. See, e.g., FMC Corp. v. Holliday, 498 U.S. 52, 65 (1990) (preempting state law prohibiting subrogation of the payment of the proceeds from a tort action to an insurer where the plan was self-insured); NGS Am., Inc. v. Barnes, 805 F. Supp. 462, 475-76 (W.D. Tex. 1992) (holding that ERISA preempted Texas statute which imposed regulations, fees, and taxes upon self-funded ERISA plans and their administrators).
239. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983). Because section 514 was a late addition during the passage of ERISA, and because Congress's primary concern during the legislative process of ERISA was with pension plans rather than with health plans, the legislative history offers little to clarify congressional intent with regard to this phrase.
240. Id. at 98.
241. Id. at 104-05.
242. 29 U.S.C. § 1132(a)(9) (2000).
243. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54-56 (1987).
244. H.R. REP. No. 93-1280, at 327 (1974), as reprinted in 1974 U.S.C.C.A.N 4639, 5107.
245. See Fox & Schaffer, supra note 169.
246. N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654-55 (1995).
247. In Kentucky Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 341-12 (2003), the Court "ma[d]e a clean break" from its prior rulings that limited application of the savings clause to laws that satisfied all three factors derived from the McCarran-Ferguson statute previously used to define insurance. The Court ruled that a statute requiring health benefit plans to include "any willing provider" in their provider networks "substantially affect[ed] the risk pooling arrangement between the insurer and the insured," and thus was covered by the savings clause and not preempted by ERISA. Id. at 330.
248. Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983).
249. Congress adopted the Pregnancy Discrimination Act (PDA) after the litigation began but prior to the Court's decision. Although ERISA did not preempt or preclude the PDA, the case was not moot because of the claim for benefits due before the PDA took effect and because the state law reached smaller employers that were not subject to the PDA. See id. at 92-93.
250. 29 U.S.C. § 1144(a) (2000).
251. Shaw, 463 U.S. at 96.
252. Id. at 97.
253. Id. at 105 n.25.
254. Brief for the U.S. as Amicus Curiae Supporting Respondents at 17, Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) (No. 81-1578).
255. Id. at 22.
256. See id. at 28.
257. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987).
258. Id. at 43-44.
259. Transcript of Oral Argument at 9-10, Pilot Life, 481 U.S. 41 (1987) (No. 85-1043).
260. Id. at 14.
261. Id.
262. Pilot Life, 481 U.S. at 57 (describing ERISA's enforcement and remedies provisions as the "most important[]" consideration in the Court's preemption analysis).
263. See Aetna Health Inc. v. Davila, 542 U.S. 200, 208-09 (2004).
264. Pilot Life, 481 U.S. at 52.
265. Id. at 54.
266. Pegram v. Herdrich, 530 U.S. 211 (2000).
267. In Pegram, the defendant was the HMO, not the employer. But the Court's comments foreswearing a judicial role in "draw[ing] a line between good and bad HMOs," id. at 221, ultimately reinforce the authority of the plan sponsor to adjust levels of financial risk by selecting an HMO or other provider network with whom to contract for services. As the Court noted, "whatever the HMO, there must be rationing and inducement to ration." Id. Deferring to the superior capacity of the legislative process to assess trade-offs, the Court concluded that "courts are not in a position to derive a sound legal principle to differentiate [HMOs]." Id. at 222.
268. Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 379 (2002).
269. See FMC Corp. v. Holliday, 498 U.S. 52, 61 (1990).
270. Justice Blackmun noted the apparent illogic, but deferred to ERISA's explicit declaration of a distinct category. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 746-47 (1985).
271. N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 662 (1995) ("Cost uniformity almost certainly is not an object of pre-emption.").
272. Massachusetts v. Morash, 490 U.S. 107, 115-16 (1989).
273. See, e.g., State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 419-29 (2003) (noting that jury award of punitive damages may violate guarantee of procedural due process if excessive).
274. See M. Gregg Bloche & David M. Studdert, A Quiet Revolution: Law as an Agent of Health System Change, 23 HEALTH AFF. 29, 36-38 (2004).
275. Had President Clinton's proposal for heath care reform been enacted, of course, the changes would have been enormous: for example, employees who are not now covered would have been incorporated into regional health insurance alliances and certain minimum criteria would have applied to the package of benefits offered through workplace health insurance. See HACKER, supra note 37, at 124-27.
276. Pilot Life, Pegram, and Davila were all decided without dissents.
277. Modest changes to enhance portability and to require issuance of small group plans (with no caps on cost) emerged from enactment of the Health Insurance Portability and Accountability Act, 29 U.S.C. § 1161 (1994). In addition, regulations issued in 1998 reformed some of the procedural problems in the process for appealing denials of claims. See 29 C.F.R. § 2560.503-1 (2001).
278. Peter Jacobson's study of the relationship between the legal system and managed care entities concluded that courts have consistently developed common law principles in support of market arrangements, shifting from doctrines reinforcing physicians' professional dominance to those protecting the contractual provisions negotiated by MCOs as the balance of power in the health care system has shifted. See JACOBSON, supra note 36, at 177-78. I argue that the courts are doing more than reading weathervanes to see the changes in prevailing powers, but are also affirmatively protecting entities that have undertaken the social function of rationalizing financial risk.
279. The Court developed its interpretation of ERISA during the same time period as its renaissance of deference to state as opposed to federal law. Especially under Chief Justice Rehnquist, the Court reclaimed and elaborated upon the concept of state sovereignty. ERISA jurisprudence, however, seemingly confounds this standard interpretation of the politics of federalism. While facilitating employer interests fits with a simple model of outcome-driven federalism, the ideological cost to conservatives from favoring federal law was significant. Enforcement of ERISA preemption provisions produced a massive undercutting of state government policymaking at the intersection of two traditionally state domains: insurance regulation and the police power of the state to regulate the health care system. See Michael S. Greve & Jonathan Klick, Preemption in the Rehnquist Court: A Preliminary Assessment, 14 SUP. CT. ECON. REV. 43, 50-53 (2006);
280. Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 51-53 (2007);
281. Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353, 1376-80 (2006);
282. Caleb Nelson, Preemption, 86 VA. L. REV. 225, 227-29 (2000).
283. See, e.g., Donald T. Bogan, Protecting Patient Rights Despite ERISA: Will the Supreme Court Allow the States to Regulate Managed Care?, 74 TUL. L. REV. 951, 1023-25 (2000);
284. Henry H. Drummonds, The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace, 62 FORDHAM L. REV. 469, 543-52 (1993);
285. James E. Holloway, Revisiting Cooperative Federalism in Mandated Employer-Sponsored Health Care Programs Under the ERISA Preemption Provision, 8 QUINNIPIAC HEALTH L.J. 239, 286-87 (2005);
286. Edward A. Zelinsky, Travelers, Reasoned Textualism, and the New Jurisprudence of ERISA Preemption, 21 CARDOZO L. REV. 807, 863-70 (1999).
287. See Richard Briffault & Sherry Glied, Federalism and the Future of Health Care Reform, in THE PRIVATIZATION OF HEALTH CARE REFORM: LEGAL AND REGULATORY PERSPECTIVES 49, 65-71 (M. Gregg Bloche ed., 2003).
288. See THE FEDERALIST No. 11 (Alexander Hamilton); THE FEDERALIST No. 22 (Alexander Hamilton).
289. The common interests of an employer and employees in strong corporate sovereignty, at least in unionized workplaces where there is not a democracy deficit, was strikingly evident during oral argument in Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724 (1985), a case in which both employers and unions joined in challenging a Massachusetts law that required all health insurance plans in the state to include coverage for mental health coverage. In that case, counsel for plaintiffs argued that: [J]ust as there is no such thing as a free lunch, there is no such thing as a free benefit. The mandated benefit has to be paid for. So, to offset the additional expense you either have to reduce wages or you have to sacrifice a benefit that you want for a benefit that you don't want....One union had to give up dental benefits and eyeglass benefits that they very badly wanted and had to increase eligibility requirements in order to get mental health benefits about which they were less concerned [but which had been mandated by the State].
290. Transcript of Oral Argument at 6, Metropolitan Life Ins., 471 U.S. 724 (1985) (No. 84-325). When Justice Rehnquist probed why the state's policy forcing these kinds of trade-offs should not be enforced, counsel responded: Because Congress made it quite clear that it wanted the benefit package to be a matter of private choice. To take an example, a coal miner has different health priorities, different needs, different desires than an airplane pilot would have. And, Congress very clearly left that part to private regulation. Id. at 7.
291. See, e.g., Retail Indus. Leaders Ass'n v. Fielder, 475 F.3d 180, 183-84 (4th Cir. 2007). These externalized costs are the primary reason states struggle against ERISA preemption, as they seek to regulate access and cost in ways that can encompass persons in private employment-based insurance.
292. See JILL QUADAGNO, ONE NATION UNINSURED: WHY THE U.S. HAS NO NATIONAL HEALTH INSURANCE 146-49 (2005);
293. Robert Galvin & Arnold Milstein, Large Employers' New Strategies in Health Care, 347 NEW ENG. J. MED. 939 (2002);
294. SHARON SILOW-CARROLL & TANYA ALTERAS, COMMONWEALTH FUND, VALUE- DRIVEN HEALTH CARE PURCHASING: FOUR STATES THAT ARE AHEAD OF THE CURVE (Aug. 2007), http://www.commonwealthfund.org/usr-doc/1052-Silow-Carroll-value- driven-purchasing.pdf.
295. As I noted at the outset, this is only a partial defense of workplace federalism. Apart from the costs that have already been outlined by various commentators, see supra note 232, infra notes 244, 245, ERISA federalism affects political dynamics in health policymaking in negative ways. Large employers obviously have tremendous influence in Congress. As a practical matter, no reform of the health insurance/care system will go forward without significant employer support. But employers do not have a legal entitlement to block reform should a proposal garner sufficient legislative and executive support to enable its enactment. By contrast, at the state level, employers have what amounts to an ERISA-given veto that they bring to the bargaining table. The practical effects of this legally created veto can be seen in the efforts of two states to require large employers to offer health insurance. In Maryland, a trade association challenged legislation requiring a "pay or play system" (known as the "Walmart law") as preempted by ERISA.
296. See Retail Indus. Leaders Ass'n v. Fielder, 475 F.3d 180, 183 (4th Cir. 2007). The Fourth Circuit Court of Appeals ruled that the effect of the state law was to mandate the terms of EBPs in Maryland and therefore the law was preempted by ERISA. See id. at 198. In Massachusetts, by contrast, a reform effort in the state was undertaken together with employer representatives and produced a law that employers chose to support.
297. See Sidney D. Watson et al., The Road from Massachusetts to Missouri: What Will It Take for Other States To Replicate Massachusetts Health Reform?, 55 U. KAN. L. REV. 1331, 1331-32 (2007). What might well have been a successful ERISA challenge has never been filed.
298. See Edward A. Zelinsky, The New Massachusetts Health Law: Preemption and Experimentation, 49 WM. & MARY L. REV. 229 (2007) (arguing that the Massachusetts health reform law that took effect in 2007 could not survive an ERISA preemption challenge).
299. See HACKER, supra note 37, at 16-20.
300. QUADAGNO, supra note 238, at 30-46; STARR, supra note 94, at 283-89.
301. See Mark A. Peterson, Introduction: Politics, Misperception, or Apropos?, 24 J. HEALTH POL. POL'Y & L. 873, 875 (1999).
302. See David Mechanic, The Managed Care Backlash: Perceptions and Rhetoric in Health Care Policy and the Potential for Health Care Reform, 79 MILBANK Q. 35, 37-38 (2001).
303. Drawing data from multiple public surveys, researchers found that on average, only 36% of persons surveyed could correctly answer knowledge questions regarding a range of health-related issues and only 30% gave correct answers for questions addressing health policy. See Mollyann Brodie et al., Health News and the American Public, 1996-2002, 28 J. HEALTH POL. POL'Y & L. 927, 939 tbl.4 (2003).
304. This situation is not unique to health policy, but is part of a larger socio-political landscape, in which many citizens express little trust in participatory forms of democratic politics because they are too busy, uninterested, or repelled by politics to want to participate. See JOHN R. HIBBING & ELIZABETH THEISS- MORSE, STEALTH DEMOCRACY 85-128 (2002). Levels of participation are also sharply skewed by economic class. A 1990 citizen participation study found that those with the highest incomes ($125,000 or more) were three times as likely to be involved in a civic organization as those with the lowest incomes ($15,000 or less).
305. See Kay Lehman Schlozman et al., Civic Participation and the Equality Problem, in CIVIC ENGAGEMENT IN AMERICAN DEMOCRACY 427, 446-47 (Theda Skocpol & Morris P. Fiorina eds., 1999).
306. In American legal scholarship, "democratic experimentalism" is most closely associated with an approach to public law that emphasizes collaborative regulatory initiatives and uses principles of
307. decentralization and stakeholder participation to develop new and less bureaucratic models of regulation and program administration. See generally Michael C. Dorf, Legal Indeterminacy and Institutional Design, 78 N.Y.U. L. REV. 875, 886 (2003) (stating that democratic experimentalism is "principally a model of participatory administration");
308. Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267 (1998).
309. Even defenders of workplace-based health insurance recite a litany of its shortcomings. See, e.g., David A. Hyman & Mark Hall, Two Cheers for Employment-Based Health Insurance, 2 YALE J. HEALTH POL'Y L. & ETHICS 23, 26-30 (2001).
310. Accord THEODORE R. MARMOR, U NDERSTANDING HEALTH CARE REFORM 179-94 (1994);
311. Judith Feder, Crowd-Out and the Politics of Health Reform, 32 J.L. MED. & ETHICS 461 (2004);
312. Steffie Woolhandler et al., Proposal of the Physicians Working Group for Single-Payer National Health Insurance, 290 JAMA 798 (2003).
313. See JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 360 (1995).
314. Id. at 409.
315. Id.
316. See Jonathan Simon, The Ideological Effects of Actuarial Practices, 22 L. & SOC'Y REV. 771, 772-74(1988).
317. The potential advantage from building participatory models from the ground up is evident from the recurrent stalemate on reform options. Public opinion polls document that although there is supermajoritarian support for "universal health care," the consensus falls apart when individuals are asked to choose between methods for achieving that goal. See Jennifer Prah Ruger, Health, Health Care, and Incompletely Theorized Agreements: A Normative Theory of Health Policy Decision Making, 32 J. HEALTH POL. POL'Y & L. 51, 72-73 (2007).
318. To that extent, they would offer the potential for "practical discourse," which Habermas describes as engagement with specific issues of immediate concern to those participating in the discussion. HABERMAS, supra note 249, at 60-61. In his conceptualization, however, ideal practical discourse requires a deep commitment to egalitarian rules of participation. I am not claiming that risk-pool governance groups would necessarily satisfy those criteria.
319. See JÜRGEN HABERMAS, JUSTIFICATION AND APPLICATION: REMARKS ON DISCOURSE ETHICS 163 (1993);
320. cf. Michael Froomkin, Habermas@Discourse.Net: Toward a Critical Theory of Cyberspace, 116 HARV. L. REV. 749 (2003) (arguing that internet standard setting does satisfy Habermas's criteria for ideal practical discourse).
321. For example, group participants might choose to prioritize cost controls more than is currently typical. If one major problem in health care consumption patterns is that individuals are too shielded from the real costs of care by the role of employer-subsidized insurance, the active engagement of individuals in grappling with cost/coverage trade-offs can only be helpful. Employees who are organized and well informed could provide a powerful constituency for cost containment mechanisms. Long before managed care, unions that were significantly involved in health insurance policy in the 1950s sought to curb costs by arranging for prepaid medical services but were unable to overcome the combined opposition of insurers and the medical profession. See MUNTS, supra note 147, at 159, 164-69, 172-76.
322. See Deborah A. Stone, Beyond Moral Hazard: Insurance as Moral Opportunity, 6 CONN. INS. L.J. 11, 16(1999).
323. Id. at 21.
324. Leonard Fleck has made a similar argument focusing on participation by individuals in the role of patients rather than as citizens or members of a risk pool. See Leonard M. Fleck, Just Health Care Rationing: A Democratic Decisionmaking Approach, 140 U. PA. L. REV. 1597 (1992).
325. See, e.g., STEELE, supra note 3, at 4.
326. Pat O'Malley, Experiments in Government: Government Analytics and a Strategic Knowledge of Risk 3 (2003) (unpublished manuscript, on file with author).
327. See CYNTHIA ESTLUND, WORKING TOGETHER: HOW WORKPLACE BONDS STRENGTHEN A DIVERSE DEMOCRACY 114-16 (2003);
328. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 80 (2000).
329. DAVID U. HIMMELSTEIN ET AL., BLEEDING THE PATIENT: THE CONSEQUENCES OF CORPORATE HEALTH CARE 19, 49-53, 118-19 (2001);
330. MARMOR, supra note 248, at 153-58; Briffault & Glied, supra note 234, at 65;
331. David U. Himmelstein & Steffie Woolhandler, National Health Insurance or Incremental Reform: Aim High, or at Our Feet?, 93 AM. J. PUB. HEALTH 102 (2003).
332. See HIMMELSTEIN ET AL., supra note 262, at 15-20, 49-53, 118-19; Briffault & Glied, supra note 234, at 74.
333. HACKER, supra note 105, at 9.
334. To be clear: I do not argue for any goal less than universal coverage of the population. Proposals for how to achieve such universal coverage, however, often include building on the workplace-based system; an example would be the new system in Massachusetts. See John Holahan & Linda Blumberg, Massachusetts Health Care Reform: A Look at the Issues, HEALTH AFF., w432 (Sept. 14, 2006), http://content.healthaffairs.Org/cgi/ content/full/25/6/w432. One factor in the political reluctance to jettison the workplace system is the high level of satisfaction reported by participants.
335. See SARA R. COLLINS ET AL., C OMMONWEALTH FUND, WHITHER EMPLOYER- BASED HEALTH INSURANCE? THE CURRENT AND FUTURE ROLE OF U.S. COMPANIES IN THE PROVISION AND FINANCING OF HEALTH INSURANCE 2 (Sept. 2007), http://www.commonwealthfund.org/usr-doc/Collins-whitheremployer- basedhltins-1059.pdf; Sherry A. Glied & Phyllis C. Borzi, The Current State of Employment-Based Health Coverage, 32 J.L. MED. & ETHICS 404, 408 (2004). Large employers also resist abandoning a workplace-based system, although they eagerly seek ways to curb their expenses.
336. See John A. MacDonald, The Future of Employment-Based Health Benefits: Will Employers Reach a Tipping Point? EBRI NOTES (Emp. Benefit Res. Inst., Wash., D.C.), Feb. 2008, at 2.
337. COLLINS ET AL., supra note 265; see also Glied & Borzi, supra note 265, at 407.
338. See Michael H. Gottesman, In Despair, Starting Over: Imagining
339. See ESTLUND, supra note 261, at 119 (people discuss such issues more with coworkers than with any category of acquaintance other than relatives, and as much as with spouses).
340. Id. at 7.
341. Id. at 60.
342. Id. at 114 (quoting PUTNAM, supra note 261, at 19).
343. Id. at 115; see also GUIDO CALABRESI & PHILIP BOBBITT, TRAGIC CHOICES (1978); Arrow, supra note 91.
344. See Russell Korobkin, Determining Health Care Rights from Behind a Veil of Ignorance, 1998 U. ILL. L. REV. 801, 802-04.
345. JAMES F. FISHKIN, DEMOCRACY AND DELIBERATION: NEW DIRECTIONS FOR DEMOCRATIC REFORM 3, 93 (1991). Fishkin's approach seeks to create a structure that can serve as a mediating institution between opinion and policy, while at the same time fostering greater deliberative interaction among citizens. Although interesting gatherings have occurred, the products of these intensive sessions have not punctured the crust of established policy formation mechanisms.
346. BRUCE ACKERMAN & JAMES S. FISHKIN, DELIBERATION DAY (2004).
347. In another context, that of uninsured persons being organized into a risk pool and provided with access to a menu of health insurance policies offered through a goverament-administered marketplace, similar questions arise concerning how democratic the process will be in setting the ground rules for participation. The Massachusetts Insurance Connector, which sets rates and other terms of enrollment under that state's new individual mandate to purchase health insurance, has developed impressive mechanisms to provide for public input. See Watson et al., supra note 239.
348. Joshua.Cohen, Democracy and Liberty, in DELIBERATIVE DEMOCRACY 185, 193 (Jon Elster ed., 1998).
349. Workplace safety and health committees mandated by state law have demonstrated effectiveness as third-party regulators. See David Weil, Individual Rights and Collective Agents: The Role of Old and New Workplace Institutions in the Regulation of Labor Markets, in EMERGING LABOR MARKET INSTITUTIONS FOR THE TWENTY-FIRST CENTURY 13, 30-37 (Richard B. Freeman et al. eds., 2005).
350. One survey of American workers found that a large majority of those who favored unions also wanted additional mechanisms (e.g. employee associations) that would allow them to influence decisionmaking. See RICHARD B. FREEMAN & JOEL ROGERS, WHAT WORKERS WANT 141-3 (1999).
351. Leslie E. Nulty, Retrospective on Collective Bargaining in the 1980s, in CONTEMPORARY COLLECTIVE BARGAINING IN THE PRIVATE SECTOR 541, 545 (Paula B. Voos ed., 1994).
352. See Mark Barenberg, Democracy and Domination in the Law of the Workplace, 94 COLUM. L. REV. 753, 762-64 (1994).
353. See Stephen F. Befort, Labor and Employment Law at the Millenium: A Historical Review and Critical Assessment, 43 B.C. L. REV. 351, 446-48 (2002) (arguing for development of employee participation initiatives);
354. Charles B. Craver, Mandatory Worker Participation Is Required in a Declining Union Environment To Provide Employees with Meaningful Industrial Democracy, 66 GEO. WASH. L. REV. 135, 146-56 (1997) (reviewing non-union worker democracy institutions in European countries and existing models in the United States);
355. Matthew W. Finkin, Bridging the "Representation Gap," 3 U. PA. J. LAB. & EMP. L. 391 (2001) (expressing skepticism about non-union mechanisms).
356. See Nelson Lichtenstein, Epilogue: Toward a New Century, in INDUSTRIAL DEMOCRACY IN AMERICA: THE AMBIGUOUS PROMISE 275, 279-81 (Nelson Lichtenstein & Howell John Harris eds., 1993).
357. Under the Americans with Disabilities Act, employers can exclude specific medical conditions from coverage in a grouṕ health insurance plan, 42 U.S.C. § 12201(c) (2000), but the law is unsettled as to whether they must justify such an exclusion by demonstrating that there is an actuarial basis for it, compared to other covered diseases. Some courts have followed the agency's interpretation in requiring that insurers justify disability-based distinctions with actuarial data. See World Ins. Co. v. Branch, 966 F. Supp. 1203, 1208-09 (N.D. Ga. 1997); Cloutier v. Prudential Ins. Co., 964 F. Supp. 299, 304-07 (N.D. Cal. 1997). The majority of courts, however, have concluded that the anti-discrimination mandate is satisfied if every enrollee in the plan is offered the same coverage package. Ford v. Shering-Plough Corp., 145 F.3d 601, 608-10 (3d Or. 1998).
358. See generally Sharona Hoffman, AIDS Caps, Contraceptive Coverage, and the Law: An Analysis of the Federal Anti-Discrimination Statutes' Applicability to Health Insurance, 23 CARDOZO L. REV. 1315, 1324-30 (2002) .
359. See generally Susan Dorr Goold et al., Choosing Healthplans All Together: A Deliberative Exercise for Allocating Limited Health Care Resources, 30 J. HEALTH POL. POL'Y & L. 563 (2005).
360. Id. at 591-92; see also Marjorie Ginsburg et al., (De)constructing "Basic" Benefits: Citizens Define the Limits of Coverage, 25 HEALTH AFF. 1648, 1650-53 (2006) (presenting selected findings of study regarding compromises and tradeoffs in health benefits packages).
361. See Susan Dorr Goold et al., Will Insured Citizens Give Up Benefit Coverage To Include the Uninsured?, 19 J. GEN. INTERNAL MED. 868, 870-71 (2004).
362. See, e.g., ARCHON FUNG, EMPOWERED PARTICIPATION: REINVENTING URBAN DEMOCRACY 5-7, 22 (2004) (describing successful community empowerment project in Chicago centered in an urban school district);
363. NEIL GUNNINGHAM & PETER GRABOSKY, SMART REGULATION: DESIGNING ENVIRONMENTAL POLICY 101-03 (1998) (describing mechanisms and resources that can be made available to less powerful groups participating in collaborative regulation projects).
364. Ericson et al. note that insurance, the most common technology for risk distribution, "quantifies and commodifies moral commitments in every detail of underwriting, loss prevention, and indemnification." RICHARD V. ERICSON ET AL., INSURANCE AS GOVERNANCE 69 (2003); accord Baker, supra note 24.
365. Commenting on the use of actuarial reasoning in the case of City of L.A. Dep't of Water and Power v. Manhart, Jonathan Simon described actuarial techniques as a "regime of truth [and] a way of exercising power" experienced as familiar and neutral methods of computation. Simon, supra note 252, at 772 (arguing that the unobtrusiveness of actuarial techniques is one basis of their importance because it diminishes political reaction to exercises of power).
366. Here I am simply bracketing the rich literature on positive rights. See, e.g., ROBIN WEST, RE-IMAGINING JUSTICE (2003);
367. Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REV. 2271 (1990).
368. See generally Sara Rosenbaum & Joel Teitelbaum, Civil Rights Enforcement in the Modem Healthcare System: Reinvigorating the Role of the Federal Government in the Aftermath of Alexander v. Sandoval, 3 YALE J. HEALTH POL'Y L. & ETHICS 215 (2003).
369. The "basic policy" of a civil rights approach "requires that we focus on fairness to individuals rather than fairness to classes." City of L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702, 709 (1978) (invalidating a requirement that women employees contribute more than male employees to the pension fund because, on average, women live longer than men).
370. See CTR. ON BUDGET & POL'Y PRIORITIES, MORE AMERICANS, INCLUDING MORE CHILDREN, NOW LACK HEALTH INSURANCE 2 (Aug. 31, 2007), http://www.cbpp.org/8-28-07health.pdf.
371. See generally JOHN HOLAHAN ET AL., KAISER COMM'N ON MEDICAID AND THE UNINSURED, CHARACTERISTICS OF THE UNINSURED: WHO IS ELIGIBLE FOR PUBLIC COVERAGE AND WHO NEEDS HELP AFFORDING COVERAGE 1-16 (Feb. 2007), http://www.kff.org/uninsured/upload/7613.pdf.
372. See generally Gavin Mooney,"Communitarian Claims" as an Ethical Basis for Allocating Health Care Resources, 47 SOC. SCI. MED. 1171 (1998).
373. The issue is not subtle: 47 million Americans lack health insurance. See CTR. ON BUDGET & POL'Y PRIORITIES, supra note 294, at 1. Of those, the Agency for Health Research and Quality has categorized 17 million as "continuously uninsured" because they have lacked coverage for at least four consecutive years. See Agency for Healthcare Research & Quality, More than 17 Million Continuously Uninsured; One-Third Are Middle Income, AHRQ NEWS AND NUMBERS (Oct. 2007), http://www.ahrq.gov/news/nn/nnl00307.htm. Americans without insurance are far more likely to receive inferior and inadequate care. See INST, OF MED., CARE WITHOUT COVERAGE: TOO LITTLE, TOO LATE 3 (May 2002), http://www.iom.edu/Object.File/Master/4/160/ Uninsured2FINAL.pdf. Indeed, there is a spillover effect beyond the uninsured: in communities with large numbers of uninsured persons, even those who have insurance experience less availability of services and receive lower quality of care than persons who live in communities with few uninsured persons.
374. See Mark V. Pauly & José A. Pagán, Spillovers and Vulnerability: The Case of Community Insurance, 26 HEALTH AFF. 1304, 1309-12 (2007).
375. See Susan H. Williams, A Feminist Reassessment of Civil Society, 72 IND. L.J. 417, 423-24 (1997).
376. See Clifford & Iuculano, supra note 55, at 1809-10.
377. See Sharona Hoffman, Unmanaged Care: Towards Moral Fairness in Health Care Coverage, 78 IND. L.J. 659 (2003); Deborah A. Stone, The Struggle for the Soul of Health Insurance, 18 J. HEALTH POL. POL'Y & L. 287 (1993). Opinion surveys document that most Americans believe that a right to health care exists in some form, but there is no consensus as to its scope or how to achieve it.
378. See Robert J. Blendon et al., Americans' Views of Health Care Costs, Access, and Quality, 84 MILBANK Q. 623, 638-42 (2006);
379. Mark Schlesinger, Reprivatizing the Public Household? Medical Care in the Context of American Public Values, 29 J. HEALTH POL. POL'Y & L. 969, 989 (2004);
380. Robin Toner & Janet Elder, Most Support U.S. Guarantee of Health Care, N.Y. TIMES, MAR. 2, 2007, at Al.
381. Tom Baker, Constructing the Insurance Relationship: Sales Stories, Claims Stories, and Insurance Contract Damages, 72 TEX. L. REV. 1395, 1400-16 (1994).
382. Stone, supra note 300, at 287-89.
383. Indeed, a risk-centered frame, while necessary, can also be problematic. From a progressive political perspective, a shortcoming of risk talk is that it does not carry the same intrinsic egalitarian valence as rights talk.
384. Dorf & Sabel, supra note 246, at 274-75.
385. UNTS, supra note 147, at 29-47.