11,228 research outputs found

    Antitrust and Nonprofit Hospital Mergers: A Return to Basics

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    Courts reviewing proposed mergers of nonprofit hospitals have too often abandoned the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition. This Article suggests that courts’ misapplication of antitrust law in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have rejected challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protects nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the core principles of antitrust law—preventing supracompetitive prices, optimizing output, and maximizing allocative efficiency—that have been absent from, if not violated by, the rulings in these merger cases

    The King of Rockingham County and the Original Bridge to Nowhere

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    This chapter, reveals the story -- the clash of personalities, the economic tensions, and the political significance -- behind Rockingham County v. Luten Bridge Co. Since its publication in 1929, the opinion has proceeded to leave an impression on generations of law students. Luten Bridge, a staple in most contracts casebooks, is known today as the paradigmatic case that demonstrates the duty to mitigate damages in contract law, whereby a nonbreaching party is not compensated for performance that occurs after the other party announces an intention to breach. This chapter takes on three objectives: it identifies the case\u27s original importance, uncovers the opinion\u27s political and jurisprudential significance, and tells a remarkable story, one that arose within a heated tax revolt pitting the county\u27s farmers against its most celebrated industrialist. Much more than a crisp illustration of the duty to mitigate, Rockingham County v. The Luten Bridge Co. offers a window into a southern community\u27s struggles with a divided social order, the introduction of wealth into local politics, and a changing economy

    Norms and Law: Putting the Horse Before the Cart

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    Law and society scholars have long been fascinated with the interplay of formal legal and informal extralegal procedures. Unfortunately, the fascination has been accompanied by imprecision, and scholars have conceptually conflated two very different mechanisms that extralegally resolve disputes. One set of mechanisms might be described as the shadow of the law, made famous by seminal works by Professors Stewart Macaulay and Marc Galanter, in which social coercion and custom have force because formal legal rights are credible and reasonably defined. The other set of mechanisms, recently explored by economic historians and legal institutionalists, might be described as order without law, borrowing from Professor Robert Ellickson\u27s famous work.1 In this second mechanism, extralegal mechanisms—whether organized shunning, violence, or social disdain—replace legal coercion to bring social order and are an alternative to, not an extension of, formal legal sanctions. One victim of conflating these mechanisms has been our understanding of industry-wide systems of private law and private adjudication, or private legal systems. Recent examinations of private legal systems have chiefly understood those systems as efforts to economize on litigation and dispute-resolution costs, but private legal systems are better understood as mechanisms that economize on enforcement costs. This is not a small mischaracterization. Instead, it reveals a deep misunderstanding of when and why private enforcement systems arise in a modern economy. This Essay provides a taxonomy for the various mechanisms of private ordering. These assorted mechanisms, despite their important differences, have been conflated in large part because there has been a poor understanding of the particular institutional efficiencies and costs of the alternative systems. Specifically, enforcement costs have often been inadequately distinguished from procedural or disputeresolution costs, and this imprecision has produced theories that inaccurately predict when private ordering will thrive and when the costs of private ordering overwhelm corresponding efficiencies. The implications for institutional theory are significant, as confusion in the literature has led to overappreciation of private ordering, underappreciation of social institutions, and Panglossian attitudes toward both lawlessness and legal development

    Firms, Courts, and Reputation Mechanisms: Towards a Positive Theory of Private Ordering

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    This Essay formulates a positive model that predicts when commercial parties will employ private ordering to enforce their agreements. The typical enforcement mechanism associated with private ordering is the reputation mechanism, in which a merchant community punishes parties in breach of contract by denying them future business. The growing private ordering literature argues that these private enforcement mechanisms can be superior to the traditional, less efficient enforcement measures provided by public courts. However, previous comparisons between public and private contractual enforcement have presented a misleading dichotomy by failing to consider a third enforcement mechanim: the vertically integrated firm. This Essay develops a model that comprehensively addresses three distinct types of enforcement mechanisms--firms, courts, and reputation-based private ordering. The model rests on a synthesis of transaction cost economics, which compares the efficiencies of firms versus markets, and the private ordering literature, which compares the efficiencies of public courts versus private ordering. It hypothesizes that private ordering will arise when agreements present enforcement difficulties, high-powered market incentives are important, and the costs of entry barriers are low. The Essay then conducts an illustrative test by comparing the model\u27s predictions to documented instances of private ordering

    The Antitrust of Reputation Mechanisms: Institutional Economics and Concerted Refusals to Deal

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    An agreement among competitors to refuse to deal with another party is traditionally per se illegal under the antitrust laws. But coordinated refusals to deal are often necessary to punish wrongdoers, and thus to deter undesirable behavior that state-sponsored courts cannot reach. When viewed as a mechanism to govern transactions and induce socially desirable cooperative behavior, coordinated refusals to deal can sustain valuable reputation mechanisms. This paper employs institutional economics to understand the role of coordinated refusals to deal in merchant circles and to evaluate the economic desirability of permitting such coordinated actions among competitors. It concludes that if the objective of antitrust law is to promote economic efficiency, then per se treatment-or any heightened presumption of illegality-of reputation mechanisms with coordinated punishments is misplaced

    Concentration in Health Care Markets: Chronic Problems and Better Solutions

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    Health care providers with market power enjoy substantially more pricing freedom than monopolists in other markets, for a reason not generally recognized: US-style health insurance. Consequently, monopolies in health care cause undesirable redistribution of wealth and inefficient allocation of resources, both of which burden consumers at levels beyond those of other monopolists. The unusual costliness of monopoly power in health care markets demands far more policy attention than it has received. For starters, the health sector needs a more aggressive antitrust policy that effectively prevents the creation of new provider market power through mergers, alliances, or government immunity. An immediate need is ensuring that the formation of accountable care organizations under the Patient Protection and Affordable Care Act (PPACA), which in theory might achieve efficiencies through vertical integrations, do not primarily lead to horizontal integrations that give providers additional market power. Because antitrust policy has been so inadequate for so long in the health sector, and because it remains unlikely that courts or enforcement agencies will undo past mergers that created these powerful provider monopolies, policymakers should pursue additional strategies for contesting existing monopolies. One approach is to apply antitrust rules against “tying” arrangements so that purchasers can combat providers’ profit-enhancing practice of overcharging for large bundles of services instead of trying to exploit separately any monopolies they possess in various submarkets. Another strategy is to use antitrust or regulatory rules to prohibit anticompetitive provisions, such as “antisteering” or “most-favored-nation” clauses, in provider-insurer contracts. Policymakers could also help restore price competition in monopolized markets by enabling private payers to negotiate prices for specific provider services and encouraging insurers to expand the scope of competition — via medical tourism, for example, or configuring innovative health care delivery that bypasses many of the embedded costs in the current system. Some commentators have suggested that the provider monopoly problem is severe enough to warrant consideration of a more radical alternative: regulating provider prices. By restricting how insurers can purchase health services, the PPACA might effectuate a regulatory regime that significantly limits price and nonprice competition. However, even under the PPACA room remains for creative regulatory policies that enhance competition in health care markets and encourage better uses of our increasingly scarce health care dollars

    Changing the Tax Code to Create Consumer-Driven Health Insurance Competition

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    Because current tax laws exclude employer-paid health insurance premiums from employees’ taxable wages and income, employer-sponsored insurance remains the primary source of health insurance for most employed Americans. Economists have long blamed the employer-based insurance tax exclusion for inflating health care costs, and, more recently, for constraining income growth and exacerbating income inequality. We execute a simulation to test the effect of permitting employees to receive their employers’ premium contribution directly and then purchase health insurance themselves, using tax-free funds. Employees could deduct for income tax purposes the amount used for insurance and, if they spend less than the amount transferred, take the remainder as taxed income. Our simulation indicates that in this consumer-driven system many workers would trade some insurance dollars for higher income, even if the latter is taxed. Our alternative tax treatment causes annual after-tax household income to grow by more than 160billionandfederaltaxrevenuesbymorethan160 billion and federal tax revenues by more than 46 billion. Along the way, take-home pay inequality is reduced, and the greater take-up of slimmed down policies could lead to greater cost control. We conclude that a simple change in the tax treatment of employer-sponsored health insurance can give workers the flexibility to economize on health insurance purchases. With this flexibility, many workers will select health plans that are less expensive than those now chosen for them. This will inject much-needed price competition in health insurance markets. It will also allow workers to enjoy more take-home pay, thereby counteracting the negative and regressive effects of escalating health care inflation. These results cannot be achieved from granting tax credits for the purchase of health insurance because such credits do not permit workers to trade insurance dollars for wages

    N.C. Medicaid Reform: A Bipartisan Path Forward

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    The North Carolina Medicaid program currently constitutes 32% of the state budget and provides insurance coverage to 18% of the state’s population. At the same time, 13% of North Carolinians remain uninsured, and even among the insured, significant health disparities persist across income, geography, education, and race. The Duke University Bass Connections Medicaid Reform project gathered to consider how North Carolina could use its limited Medicaid dollars more effectively to reduce the incidence of poor health, improve access to healthcare, and reduce budgetary pressures on the state’s taxpayers. This report is submitted to North Carolina’s policymakers and citizens. It assesses the current Medicaid landscape in North Carolina, and it offers recommendations to North Carolina policymakers concerning: (1) the construction of Medicaid Managed Care markets, (2) the potential and dangers of instituting consumer-driven financial incentives in Medicaid benefits, (3) special hotspotting strategies to address the needs and escalating costs of Medicaid\u27s high-utilizers and dual-eligibles, (4) the emerging benefits of pursuing telemedicine and associated reforms to reimbursement, regulation, and Graduate Medical Education programs that could fuel telemedicine solutions to improve access and delivery. The NC Medicaid Reform Advisory Team includes: Deanna Befus, Duke School of Nursing, PhD ‘17Madhulika Vulimiri, Duke Sanford School of Public Policy, MPP ‘18Patrick O’Shea, UNC School of Medicine/Fuqua School of Business, MD/MBA \u2717Shanna Rifkin, Duke Law School, JD ‘17Trey Sinyard, Duke School of Medicine/Fuqua School of Business, MD/MBA \u2717Brandon Yan, Duke Public Policy, BA \u2718Brooke Bekoff, UNC Political Science, BA \u2719Graeme Peterson, Duke Public Policy, BA ‘17Haley Hedrick, Duke Psychology, BS ‘19Jackie Lin, Duke Biology, BS \u2718Kushal Kadakia, Duke Biology and Public Policy, BS ‘19Leah Yao, Duke Psychology, BS ‘19Shivani Shah, Duke Biology and Public Policy, BS ‘18Sonia Hernandez, Duke Economics, BS \u2719Riley Herrmann, Duke Public Policy, BA \u271
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