A graveyard for grand theory.

We have failed as a nation to make decent medical care available to all and to control costs. Competing, entrenched interests, more focused on what they have to lose than what they stand to gain, have stymied successive visions of reform. The American public's aversion to risk has compounded the challenge. There is an urgent need for aspiring health system reformers to chart navigable courses through the cross-currents of interest-group power, anxiety, and ambition that have kept reform from succeeding. Some recent proposals offer reason for hope.

Consumer-directed health care and the disadvantaged.

Broad adoption of "consumer-directed health care" would probably widen socioeconomic disparities in care and redistribute wealth in "reverse Robin Hood" fashion, from the working poor and middle classes to the well-off. Racial and ethnic disparities in care would also probably worsen. These effects could be alleviated by adjustments to the consumer-directed paradigm. Possible fixes include more progressive tax subsidies, tiering of cost-sharing schemes to promote high-value care, and reduced cost sharing for the less well-off. These fixes, though, are unlikely to gain traction. If consumer-directed plans achieve market dominance, disparities in care by class and race will probably grow.

Race, money and medicines.

Taking notice of race is both risky and inevitable, in medicine no less than in other endeavors. On the one hand, race can be a useful stand-in for unstudied genetic and environmental factors that yield differences in disease expression and therapeutic response. Attention to race can make a therapeutic difference, to the point of saving lives. On the other hand, racial distinctions have social meanings that are often pejorative or worse, especially when these distinctions are cast as culturally or biologically fixed. I argue in this essay that we should start with a presumption against racial categories in medicine, but permit their use when it might prolong lives or meaningfully improve health. Use of racial categories should be understood as an interim step; follow-up inquiry into the factors that underlie race-correlated clinical differences is important both to improve the efficacy of clinical care and to prevent race in itself from being misunderstood as a biological determinant. If we pursue such inquiry with vigor, the pernicious effects of racial categories on public understanding can be managed. But perverse market and regulatory incentives create the danger that use of race will be "locked-in," once drugs or other therapies are approved. These incentives should be revisited.

Tax preferences for nonprofits: from per se exemption to pay-for-performance.

Defenders of tax preferences for nonprofit hospitals and health plans, including Mark Schlesinger and Brad Gray, contend that nonprofits deserve government support because they provide greater "community benefit" than their for-profit counterparts. This argument is unconvincing. There is some evidence that nonprofits deliver marginally more "community benefit" but no evidence that tax exemption is the cause. Absent proof that tax expenditures, including exemption, "buy" social benefits that are worth the cost to taxpayers, these expenditures are unjustified. The better course would be to pay nonprofits for performance, by tying tax benefits to accomplishments (beyond current achievements) in health promotion, quality, and care for the needy.

American medicine and the politics of race.

Straw men play a major role in the debate over racial disparity in American medicine. Most have been deployed by the disparities-denying right, but progressives intent on "outing" racism have sent forth their share. This essay flushes out the straw men while attempting to understand the competing moral premises that drive the politics of health care disparity. At bottom, arguments about the scope of disparity and discrimination in medical care are disputes about the appropriate scope of personal responsibility for life circumstances. Further research into the factors that correlate with racial differences in health care can shed light on the circumstances that bring about these differences. Whether these circumstances, once understood, should be deemed acceptable is a moral and political matter, and sharp differences over the scope of personal and public responsibility for these circumstances are inevitable. Such disagreements, however, distract us from efforts to reach common ground solutions to agreed-upon inequities in health care.

A quiet revolution: law as an agent of health system change.

This paper considers law's impact on health system change. Federal courts and state regulators have remade the rules of the medical marketplace, restricting the methods available to managed care organizations to control costs. Legal conflict, however, has had a larger effect through its influence on market actors' perceptions and expectations. In anticipation of adverse legal outcomes and in response to consumers' and investors' anxiety, health plans changed business strategies, backing away from aggressive cost management. We conclude with four lessons about law's role in the health sphere-lessons that stress the power of legal conflict to shape perceptions and to thereby change behavior before legal change occurs.

The politics of public health: a response to Epstein.

Conservatives are taking aim at the field of public health, targeting its efforts to understand and control environmental and social causes of disease. Richard Epstein and others contend that these efforts in fact undermine people's health and well-being by eroding people's incentives to create economic value. Public health, they argue, should stick to its traditional task--the struggle against infectious diseases. Because markets are not up to the task of controlling the transmission of infectious disease, Epstein says, coercive government action is required. But market incentives, not state action, he asserts, represent our best hope for controlling the chronic illnesses that are the main causes of death in industrialized nations. In this article, we assess Epstein's case. We consider his claims about the market's capabilities and limits, the roles of personal choice and social influences in spreading disease, andthe relationship between health and economic inequality. We argue that Epstein's critique of public health over-reaches, oversimplifies, and veils his political and moral preferences behind seemingly objective claims about the economics of disease control and the determinants of disease spread. Public health policy requires political and moral choices, but these choices should be transparent.

The invention of health law.

By default, the courts are inventing health law. The law governing the American health system arises from an unruly mix of statutes, regulations, and judge-crafted doctrines conceived, in the main, without medical care in mind. Courts are ill-equipped to put order to this chaos, and until recently they have been disinclined to try. But political gridlock and popular ire over managed care have pushed them into the breach, and the Supreme Court has become a proactive health policy player. How might judges make sense of health law's disparate doctrinal standards? Scholars from diverse ideological starting points have converged toward a single answer: the law should look to deploy medical resources in a systematically rational manner, so as to maximize the benefits that every dollar buys. This answer bases the orderly development of health care law upon our ability to reach stable understandings, in myriad circumstances, of what welfare maximization requires. In this Article, I contend that this goal is not achievable. Scientific ignorance, cognitive limitations, and normative disagreements yield shifting, incomplete, and contradictory understandings of social welfare in the health sphere. The chaotic state of health care law today reflects this unruliness. In making systemic welfare maximization the lodestar for health law, we risk falling so far short of aspirations for reasoned decision making as to invite disillusion about the possibilities for any sort of rationality in this field. Accordingly, I urge that we define health law's aims more modestly, based on acknowledgement that its rationality is discontinuous across substantive contexts and changeable with time. This concession to human limits, I argue, opens the way to health policy that mediates wisely between our desire for public action to maximize the well being of the many and our intimate wishes to be treated noninstrumentally, as separate ends. I conclude with an effort to identify the goals of health law, so constructed, should pursue and to suggest how a strategy of accommodation among these goals might apply to a variety of legal controversies.