Transparency Trade-Offs: Priority Setting, Scarcity, and Health Fairness

This chapter argues that rather than viewing transparency as a right, we should regard it as a finite resource whose allocation involves tradeoffs. It then argues that those tradeoffs should be resolved by using a multi-principle approach to distributive justice. The relevant principles include maximizing welfare, maximizing autonomy, and giving priority to the worst off. Finally, it examines some of the implications for law of recognizing the tradeoffs presented by transparency proposals

Justice and Public Health

This chapter discusses how justice applies to public health. It begins by outlining three different metrics employed in discussions of justice: resources, capabilities, and welfare. It then discusses different accounts of justice in distribution, reviewing utilitarianism, egalitarianism, prioritarianism, and sufficientarianism, as well as desert-based theories, and applies these distributive approaches to public health examples. Next, it examines the interplay between distributive justice and individual rights, such as religious rights, property rights, and rights against discrimination, by discussing examples such as mandatory treatment and screening. The chapter also examines the nexus between public health and debates concerning whose interests matter to justice (the “scope of justice”), including global justice, intergenerational justice, and environmental justice, as well as debates concerning whether justice applies to individual choices or only to institutional structures (the “site of justice”). The chapter closes with a discussion of strategies, including deliberative and aggregative democracy, for adjudicating disagreements about justice

Sufficiency, Comprehensiveness of Health Care Coverage, and Cost-Sharing Arrangements in the Realpolitik of Health Policy

This chapter explores two questions in detail: How should we determine the threshold for costs that individuals are asked to bear through insurance premiums or care-related out-of-pocket costs, including user fees and copayments? and What is an adequate relationship between costs and benefits? This chapter argues that preventing impoverishment is a morally more urgent priority than protecting households against income fluctuations, and that many health insurance plans may not adequately protect individuals from health care costs that threaten to drop their financial status below a decent minimum. A design that places greater emphasis on preventing impoverishment and finances the achievement of that goal by reducing unnecessary subsidies to better-off households would better accord with a sufficientarian approach to health care

Cost-Effectiveness in Animal Health: An Ethical Analysis

This chapter evaluates the ethical issues that using cost-effectiveness considerations to set animal health priorities might present, and its conclusions are cautiously optimistic. While using cost-effectiveness calculations in animal health is not without ethical pitfalls, these calculations offer a pathway toward more rigorous priority-setting efforts that allow money spent on animal well-being to do more good. Although assessing quality of life for animals may be more challenging than in humans, implementing prioritization based on cost-effectiveness is less ethically fraught

Expensive Patients, Reinsurance, and the Future of Health Care Reform

In 2017, Americans spent over $3.4 trillion—nearly 18$10 million per year. Part II then examines the normative question of how the costs of treating expensive patients’ medical conditions should be shared and identifies three different dimensions of sharing: (1) scope, from narrow (plan members only) to broad (all of society); (2) boundedness, whether there are limits on the costs others can be asked to bear; and (3) progressivity, whether wealthier individuals are asked to bear more costs (similar to progressivity in tax). Part III then considers how health care reform choices could advance or hamper the adoption of broad, bounded, progressive sharing, with a focus on recent state-level reinsurance programs that legal scholarship has not yet analyzed in depth. This Article contributes to the literature on health care reform in three interlocking ways. First, it develops a novel proposal for fairly sharing the cost of expensive patients’ care that could usefully inform state- and federal-level policy discussions. Second, it provides a normative, rather than purely political or economic, analysis of existing and proposed options for sharing expensive patients’ costs. Third, it bridges the disconnected literature on reinsurance, limit setting, and health care financing, identifying how proposals in these different areas intersect

Pricing Drugs Fairly

Dissatisfaction with drug prices has prompted a flurry of recent legislation and academic research. But while pharmaceutical policy often regards fair pricing as a goal, the concept of fairness itself frequently goes undefined. Legal scholarship—even work ostensibly focused on fairness—has not defined and defended an account of fair pricing. Recent legislative proposals in the House and Senate have similarly avoided a determinate position on fairness. This Article explains and defends an account of what makes a price for a drug fair (identifying fair price with social value), argues for implementing fair pricing through a price ceiling grounded in social value, and examines how the proposed price ceiling could overcome legal and political obstacles. By focusing on fairness, this Article pursues a goal that complements, rather than duplicates, recent legal scholarship on pharmaceutical pricing. This Article makes three contributions. First, it identifies, makes explicit, and categorizes the most prominent conceptions of fairness in drug pricing. Second, it advances an account of fair pricing that centers on a drug’s value to society. Third, it proposes the implementation of fair pricing via a price ceiling that ensures that the price of a drug does not exceed its value to society and explains how this price-ceiling approach would address a variety of legal and political obstacles. In Part I, the Article categorizes conceptions of fair pricing. It first considers procedural fairness and critically evaluates the view that any price reached in a procedurally fair negotiation is substantively fair. It then reviews four comparators used for assessing substantive fairness: (a) the cost of developing the drug, (b) the drug’s affordability to patients, (c) the drug’s customary price, and (d) the drug’s social value. Part I concludes that social value should be used to identify when a price is unfair, although the other factors can indicate procedural unfairness or serve to justify other policies, such as subsidized insurance. Part II then takes on the task of defining social value. It explains how cost-effectiveness analysis could be used to define social value and argues that cost-effectiveness analysis should be modified to incorporate factors other than overall costs and health benefits, such as fairness to patients with preexisting disabilities and reduction of health disparities. However, this analysis should not be modified to provide greater incentives to treat rare diseases or diseases lacking other treatments. Part III turns to implementation, arguing that fair pricing can best be achieved through a price ceiling that tracks social value. It explains how such a price ceiling could incentivize the production of socially valuable treatments and describes the legal, ethical, and political advantages of price ceilings over other options, such as reimbursement ceilings. In particular, the availability of treatments whose price exceeds the reimbursement ceiling will lead to administrators enforcing the reimbursement ceiling taking the blame when patients die or suffer illness. In contrast, while price ceilings may discourage the development of costly drugs, they do not require payers to reject identifiable patients who could benefit from existing treatments or families to refuse those treatments. Price ceilings also avoid the legal limitations that private and public insurers face when they attempt to deny coverage for expensive treatments. Part IV identifies potential legal obstacles to the implementation of a price ceiling and explains how to avoid them. Some obstacles, like preemption and the Dormant Commerce Clause, apply only to state-level efforts. Other obstacles, such as the Takings Clause and a potential revival of Lochner-era freedom of contract, also apply to federal initiatives

The Medical Cost Pandemic:Why Limiting Access to Cost-Effective Treatments Hurts the Global Poor

Medical innovation in developed countries like the U.S. leads to an ever-changing medical standard of care. This innovation frequently also brings rising costs. While these costs strain even the sizeable health care budgets of developed countries, imposing them on developing countries would be much more burdensome. Yet a variety of commentators and legal actors, such as the World Health OrganiZation and UNAIDS, have argued that the same standards of care must be provided worldwide, and have enforced mandates to that effect. Interpretations of the human rght to health as a tight to the highest attainable standard of health similarly advance the idea of a uniform worldwide standard of care and threaten to produce excessive costs. This Article has two objectives: first, to identif, describe, and criticize the legal mandates and norms that threaten to produce increased medical costs and reduced access to cost-effective care in developing countries, and, second, to suggest how we can prevent these outcomes

Law, Science, and the Injured Mind

Even while we widely recognize legal liability for physical injury, we frequently discount mental, emotional, and psychological injury. We disfavor tort liability for emotional distress; we prohibit prisoners from suing for purely psychological injuries; and we tax the damages victims of emotional injury receive even while leaving damages for physical injury untaxed. This Article argues that neuroscientific, psychological, and technological advances challenge our traditional ideas about the set of injuries that are possible and that merit legal redress. The Article goes on to contend that, while these advances challenge our traditional ideas, they do not inevitably overturn traditional distinctions within tort law. Rather, they present the task of critically examining and clarifying the normative foundations of distinctions we have historically taken for granted, and considering whether those distinctions survive that searching examination. Part I defines what I call “mind-dependent” injury and presents a set of test cases that challenge current legal approaches to injury and compensation, and discusses the neuroscientific, psychological, and technical underpinnings that moved these cases from science fiction into scientific reality. Part II reviews and examines several legal contexts that distinguish different types of injury and that provide legal remedies for some but not others. Part III considers normative justifications that might be offered for this differentiation, particularly in light of the new information we have. Ultimately, I argue that while new knowledge may require us to reevaluate the distinctions we traditionally have drawn, it does not completely undermine the possibility of normative distinctions between different types of injury. However, it challenges us to better defend those distinctions and ultimately should lead us to abandon the bifurcation between “emotional” and “physical” injuries in favor of a more nuanced approach

Libertarian Patriarchalism: Nudges, Procedural Roadblocks, and Reproductive Choice

Cass Sunstein and Richard Thaler\u27s proposal that social and legal institutions should steer individuals toward some options and away from others-a stance they dub libertarian paternalism -has provoked much high-level discussion in both academic and policy settings. Sunstein and Thaler believe that steering, or nudging, individuals is easier to justify than the bans or mandates that traditional paternalism involves. This Article considers the connection between libertarian paternalism and the regulation of reproductive choice. I first discuss the use of nudges to discourage women from exercising their right to choose an abortion, or from becoming or remaining pregnant. I then argue that reproductive choice cases illustrate the limitations of libertarian paternalism. Where choices are politicized or intimate, as reproductive choices often are, nudges become not much easier to justify than traditional mandates or prohibitions. Even beyond the context of reproductive choice, it is not obvious how much easier nudges are to justify than bans or mandates. Part I of this Article briefly introduces Sunstein and Thaler\u27s libertarian paternalism. Part II then turns to the context of reproductive choice. Part II.A reviews restrictions on the right to choose an abortion-particularly post-Casey regulations such as waiting periods, requirements that women receive certain types of information, and requirements that women undergo ultrasound-that pitch themselves as steering choice without entirely closing off the right to choose an abortion. This distinction between nudges and prohibitions echoes Sunstein and Thaler\u27s proposals, but works to subordinate women\u27s choices to the judgment of (often male) experts and administrators-hence my term libertarian patriarchalism. Part II.B reviews efforts to nudge women-particularly teenagers, HIV-positive women, and others thought to be unsuitable mothers-to avoid pregnancy. Part III considers the normative implications of nudging reproductive decisions. In Part III.A, I argue that the political nature of reproductive choices presents a problem for nudges. I do so by considering a parallel with voting rights. Empirical research shows that voters are more likely to choose the candidate listed first on the ballot. Yet we do not empower the administrator in charge of ballot design to choose a default rule that nudges individuals toward the candidate he sincerely believes would promote choosers\u27 welfare. Given the political nature of reproductive choices, a policymaker\u27s attempting to nudge reproductive decisionmaking in the direction he prefers-or indeed in any direction-fails to show adequate respect for the chooser\u27s agency. In Part III.B, I offer an argument that targets the use of nudges in the context of pregnancy. Finally, in Part III.C, I argue that nudges do not merely add choices to an existing menu, but change the substantive choices available to individuals and thereby impose more-than-trivial costs on them. I conclude by exploring the implications of my arguments for nudges more generally

Beyond Administrative Tunnel Vision: Widening the Lens of Costs and Benefits

Choices in one sector or department of public policy, such as health, frequently produce costs and benefits in other sectors, such as education or the environment. In this article, I argue that administrators should not make decisions in ways that ignore effects on other policy sectors, and arguablythough more debatably-should not give special priority to the interests of their own sector In Part I, I review contexts where administrators are directed to ignore or give a lower priority to effects on other policy sectors. In Part II, I lay out an argument that agencies should not ignore these effects (using an example from health policy), and consider potential responses to that argument. In Part III, I consider some strategies to remedy the problem of agencies giving insufficient weight to wide-scope costs and benefits