A Copernican View of Health Care Antitrust

Sage and Hammer use the analogy of Copernican astronomy to suggest that understanding the dramatic change wrought by managed care requires a conceptual reorientation regarding the meaning of competition in health care and its appropriate legal and regulatory oversight. Both share the belief that misperceiving the world limits potential for technical and social progress

Free Speech and the Acid Bath : An Evaluation and Critique of Judge Richard Posner\u27s Economic Interpretation of the First Amendment

Part I of this Note introduces the mechanics of the model Judge Posner has developed to determine whether restrictions upon speech should be upheld. Part II evaluates and critiques Posner\u27s method from an internal perspective. This is first done by examining the theoretical foundations and assumptions of his economic perspective. This part then turns to testing the output and conclusions of the model to determine how successfully the theory can be turned into practice. Part III constitutes an external critique of Posner\u27s model. This part addresses the question of whether the first amendment should be thought of in economic terms. After addressing the institutional problems associated with judicial adoption of the model, the limitations inherent in the economic methodology itself, and the potential dangers of implementing the method, the part concludes that an economic perspective can be a useful tool in the hands of the constitutional decisionmaker, but only when used in full recognition of its limitations. Part IV presents some final remarks on the costs and benefits of an economic perspective

The Individual, the Community, and Physician-Assisted Suicide

This excerpt is adapted from the upcoming bookPhysician-Assisted Suicide, to be published in October 2000 and copyrighted by University of Michigan Press. The forthcoming book, edited and with an introduction by Professor of Law Carl E. Schneider, \u2779, incorporates papers delivered at the conference Courting Death: A Constitutional Right to Suicide, held at the Law School in November 1997. The conference was devoted to follow-up discussion of two decisions in summer 1997 in which the U.S. Supreme Court rejected the right to physician-assisted suicide, Washington v. Glucksberg 117 S Ct 2258 (1997), and Vacco v. Quill 117 S Ct 2293 (1997). The following excerpt appears with permission from University of Michigan Press

Markets as social actors

In healthcare, the role and scope of markets as a means of resource allocation is contestable. The role of markets as opposed to current backlash against managed care illustrates the continued contestability of markets in healthcare

Antitrust beyond Competition: Market Failures, Total Welfare, and the Challenge of Intramarket Second-Best Tradeoffs

Should antitrust law ever sanction the accumulation of market power or permit other restraints of trade if such conduct would increase social welfare? This is the challenge raised by intramarket second- best tradeoffs. The lesson of second-best analysis is that one market failure can sometimes counteract the effects of another market failure. In the presence of multiple market failures, it is conceivable that mergers or other restraints traditionally viewed as anticompetitive may be welfare-enhancing. A social planner, given the mandate of maximizing total welfare, would permit such restraints. Could an antitrust judge come to the same result under a defensible application (or extension) of existing legal doctrine? This question highlights the tensions between an antitrust policy dedicated to preserving competition and an antitrust policy dedicated to maximizing total welfare. In doing so, the question tests the theoretical and practical limits of antitrust law, asking whether it is time for antitrust law to move beyond structural understandings of competition and into the realm of express welfare analysis. This Article argues (1) that antitrust law should recognize a defense for private acts that restrain competition under the traditional antitrust analysis but advance total welfare, (2) that courts are competent to administer this defense, and (3) that the framework of existing antitrust statutes permits courts to recognize this defense. Today, most judges and scholars would reject intramarket second-best arguments as a justification for otherwise impermissible acts that enhance or maintain private market power, regardless of the credibility of the underlying economic analysis. The reasons given for rejecting such claims, however, would vary with the commentator. Some would argue that intramarket second-best claims have no statutory basis. Others would argue that maximizing total welfare is not the goal of the antitrust laws. Still others, who might be sympathetic to an efficiencyoriented antitrust doctrine, would be skeptical of the ability of the courts to implement a total welfare standard