International and domestic public law, in the common law tradition, conceive of the state in fundamentally different ways: the former as a permanent unified entity and the latter as a disaggregated set of competing institutions. The strategies for transnational government most likely to be successful are those that can assimilate these conceptions and apparently eliminate the differences between them. One such strategy is for domestic administrative law courts to enforce the executive's commitments made at international law when the executive exercises its discretion domestically. However, in some cases, even this strategy will have to confront crucial differences in how international and domestic law view a state's fundamental constitutional commitments. Further, and paradoxically, the paper suggests that some of the very strategies that eliminate the conceptual differences between the archetypes of the international and domestic state (thus enhancing the prospects for transnational government) may also threaten the applicability of administrative law techniques and values in the newly created global administrative space.
{"title":"Divergent Legal Conceptions of the State: Implications for Global Administrative Law","authors":"J. McLean","doi":"10.2139/ssrn.723166","DOIUrl":"https://doi.org/10.2139/ssrn.723166","url":null,"abstract":"International and domestic public law, in the common law tradition, conceive of the state in fundamentally different ways: the former as a permanent unified entity and the latter as a disaggregated set of competing institutions. The strategies for transnational government most likely to be successful are those that can assimilate these conceptions and apparently eliminate the differences between them. One such strategy is for domestic administrative law courts to enforce the executive's commitments made at international law when the executive exercises its discretion domestically. However, in some cases, even this strategy will have to confront crucial differences in how international and domestic law view a state's fundamental constitutional commitments. Further, and paradoxically, the paper suggests that some of the very strategies that eliminate the conceptual differences between the archetypes of the international and domestic state (thus enhancing the prospects for transnational government) may also threaten the applicability of administrative law techniques and values in the newly created global administrative space.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"21 1","pages":"167-187"},"PeriodicalIF":0.0,"publicationDate":"2005-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88850954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article examines the potential for drawing on U.S. administrative law in the development of a global administrative law to secure greater accountability for the growing exercise of regulatory authority by international or transnational governmental decision-makers in a wide variety of fields. It discusses how U.S. administrative law and practice might form one useful point of departure for developing both "top down" and "bottom up" approaches for understanding and further developing global administrative law. A global administrative law must, of course, draw on legal principles and practices from many domestic and regional legal systems and traditions, as well as sources in international law. Accordingly, the U.S.-based perspective offered in this Article is only one of many that must be considered.
{"title":"U.S. Administrative Law: A Model for Global Administrative Law","authors":"R. Stewart","doi":"10.2139/SSRN.723147","DOIUrl":"https://doi.org/10.2139/SSRN.723147","url":null,"abstract":"This Article examines the potential for drawing on U.S. administrative law in the development of a global administrative law to secure greater accountability for the growing exercise of regulatory authority by international or transnational governmental decision-makers in a wide variety of fields. It discusses how U.S. administrative law and practice might form one useful point of departure for developing both \"top down\" and \"bottom up\" approaches for understanding and further developing global administrative law. A global administrative law must, of course, draw on legal principles and practices from many domestic and regional legal systems and traditions, as well as sources in international law. Accordingly, the U.S.-based perspective offered in this Article is only one of many that must be considered.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"46 1","pages":"63-108"},"PeriodicalIF":0.0,"publicationDate":"2005-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79728255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper, a distillation of findings from the NYU Global Administrative Law Research Project, considers the emergence and the need for further development of administrative law mechanisms to promote greater accountability in decisionmaking and rulemaking in the rapidly proliferating variety of global regulatory structures. These include formal international organizations (such as the WTO, the Security Council, World Bank, the Climate Change regime, etc), informal intergovernmental networks of domestic regulatory officials (such as the Basel Committee of national bank regulators), domestic authorities implementing global regulatory law, hybrid public-private and purely private transnational regulatory regimes. The subjects of such global regulatory systems include individuals, firms and other economic actors, states, and occasionally NGOs. These regimes and subjects, we argue, are part of a single global administrative space distinct from the domains of international law and domestic administrative law. We define global administrative law as the principles, procedures, and review mechanisms that are emerging to govern decisionmaking and regulatory rulemaking by these bodies. We identify a number of structural mechanisms that have arisen to develop and apply global administrative law, including domestic courts and legislatures reviewing domestic implementation of global standards and national officials' participation in global administrative decisions, and new mechanisms developed at the global level for governance of international and transnational regulatory bodies. We examine the sources and content of the various doctrinal principles and requirements that have been developed and enforced by these mechanisms (such as transparency, participation, reasoned decisionmaking, review, and substantive standards such as proportionality), and their sources. We next consider the normative foundations of global administrative law, including intra-regime control, liberal notions of protection of the rights of individuals and of economic actors, protection of the rights of states, and securing democracy with respect to global regulation. We examine these normative foundations in relation to three conceptions of international ordering - pluralist, solidarist, and cosmopolitan - and in relation to North-South differences. We then consider different strategies for constructing global administrative law, including bottom-up approaches that seek to extend domestic administrative law to global regulatory decisions and top-down approaches that develop new administrative law mechanisms at the global level. We also examine the positive political theory of global administrative law. We conclude that the field of global administrative law is an important emerging phenomenon, distinct from international law and from domestic administrative law, that deserves systematic study and development.
{"title":"The Emergence of Global Administrative Law","authors":"B. Kingsbury, Nico Krisch, R. Stewart","doi":"10.2139/SSRN.692628","DOIUrl":"https://doi.org/10.2139/SSRN.692628","url":null,"abstract":"This paper, a distillation of findings from the NYU Global Administrative Law Research Project, considers the emergence and the need for further development of administrative law mechanisms to promote greater accountability in decisionmaking and rulemaking in the rapidly proliferating variety of global regulatory structures. These include formal international organizations (such as the WTO, the Security Council, World Bank, the Climate Change regime, etc), informal intergovernmental networks of domestic regulatory officials (such as the Basel Committee of national bank regulators), domestic authorities implementing global regulatory law, hybrid public-private and purely private transnational regulatory regimes. The subjects of such global regulatory systems include individuals, firms and other economic actors, states, and occasionally NGOs. These regimes and subjects, we argue, are part of a single global administrative space distinct from the domains of international law and domestic administrative law. We define global administrative law as the principles, procedures, and review mechanisms that are emerging to govern decisionmaking and regulatory rulemaking by these bodies. We identify a number of structural mechanisms that have arisen to develop and apply global administrative law, including domestic courts and legislatures reviewing domestic implementation of global standards and national officials' participation in global administrative decisions, and new mechanisms developed at the global level for governance of international and transnational regulatory bodies. We examine the sources and content of the various doctrinal principles and requirements that have been developed and enforced by these mechanisms (such as transparency, participation, reasoned decisionmaking, review, and substantive standards such as proportionality), and their sources. We next consider the normative foundations of global administrative law, including intra-regime control, liberal notions of protection of the rights of individuals and of economic actors, protection of the rights of states, and securing democracy with respect to global regulation. We examine these normative foundations in relation to three conceptions of international ordering - pluralist, solidarist, and cosmopolitan - and in relation to North-South differences. We then consider different strategies for constructing global administrative law, including bottom-up approaches that seek to extend domestic administrative law to global regulatory decisions and top-down approaches that develop new administrative law mechanisms at the global level. We also examine the positive political theory of global administrative law. We conclude that the field of global administrative law is an important emerging phenomenon, distinct from international law and from domestic administrative law, that deserves systematic study and development.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"21 1","pages":"15-62"},"PeriodicalIF":0.0,"publicationDate":"2005-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87819454","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this paper, I argue that one can make a good case for the continuing immaturity of international law in the failure of international organizations to provide the controls of the rule of law which are the mark of a mature legal order. These controls are anchored in the values of fairness which in common law legal orders have been developed by judges in the cause of showing how public administration can be subject to the rule of law. The failure to put in the place the controls is then the way in which this kind of immaturity is self-incurred. But, as I will also argue, how one conceives fairness depends fundamentally on one's answer to the question, What is law? It follows that the question which international lawyers hoped had been settled - Is international law, law? - reemerges within international law, perhaps because of the very maturity which it has achieved. Indeed, I will claim that the necessity of this question, the fact that it will reemerge whether one is confronting the phenomenon of international law or law in general, shows that any distinction between the legitimacy and the justice of international law cannot be firmly drawn.
{"title":"The Rule of (Administrative) Law in International Law","authors":"D. Dyzenhaus","doi":"10.2139/SSRN.692762","DOIUrl":"https://doi.org/10.2139/SSRN.692762","url":null,"abstract":"In this paper, I argue that one can make a good case for the continuing immaturity of international law in the failure of international organizations to provide the controls of the rule of law which are the mark of a mature legal order. These controls are anchored in the values of fairness which in common law legal orders have been developed by judges in the cause of showing how public administration can be subject to the rule of law. The failure to put in the place the controls is then the way in which this kind of immaturity is self-incurred. But, as I will also argue, how one conceives fairness depends fundamentally on one's answer to the question, What is law? It follows that the question which international lawyers hoped had been settled - Is international law, law? - reemerges within international law, perhaps because of the very maturity which it has achieved. Indeed, I will claim that the necessity of this question, the fact that it will reemerge whether one is confronting the phenomenon of international law or law in general, shows that any distinction between the legitimacy and the justice of international law cannot be firmly drawn.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"67 1","pages":"127-166"},"PeriodicalIF":0.0,"publicationDate":"2005-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81601567","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We are in the middle of a second enclosure movement. It sounds grandiloquent to call it "the enclosure of the intangible commons of the mind," but in a very real sense that is just what it is. True, the new state-created property rights may be "intellectual" rather than "real," but once again things that were formerly thought of as either common property or uncommodifiable are being covered with new, or newly extended, property rights. In this article, I try to develop the vocabulary and the analytic tools necessary to turn the tide of enclosure. I offer an historical sketch of various types of skepticism about intellectual property, from the antimonopolist criticisms of the Framers of the U.S. Constitution, through the emergence of affirmative arguments for the public domain, to the use of the language of the commons to defend the possibility of distributed methods of non-proprietary production. In many ways, it turns out, concepts of the public domain show the same variation in assumptions, and the same analytic differences, as the concept of property itself. I conclude by arguing that, for a number of reasons, the appropriate model for the change in thinking which I argue for comes from the history of the environmental movement. The invention of the concept of "the environment" pulls together a string of otherwise disconnected issues, offers analytical insight into the blindness implicit in prior ways of thinking, and leads to perception of common interest where none was seen before. Like the environment, the public domain must be "invented" before it is saved. Like the environment, like "nature," the public domain turns out to be a concept that is considerably more slippery than many of us realize. And, like the environment, the public domain nevertheless turns out to be useful, perhaps even necessary.
{"title":"The Second Enclosure Movement and the Construction of the Public Domain","authors":"J. Boyle","doi":"10.2139/SSRN.470983","DOIUrl":"https://doi.org/10.2139/SSRN.470983","url":null,"abstract":"We are in the middle of a second enclosure movement. It sounds grandiloquent to call it \"the enclosure of the intangible commons of the mind,\" but in a very real sense that is just what it is. True, the new state-created property rights may be \"intellectual\" rather than \"real,\" but once again things that were formerly thought of as either common property or uncommodifiable are being covered with new, or newly extended, property rights. In this article, I try to develop the vocabulary and the analytic tools necessary to turn the tide of enclosure. I offer an historical sketch of various types of skepticism about intellectual property, from the antimonopolist criticisms of the Framers of the U.S. Constitution, through the emergence of affirmative arguments for the public domain, to the use of the language of the commons to defend the possibility of distributed methods of non-proprietary production. In many ways, it turns out, concepts of the public domain show the same variation in assumptions, and the same analytic differences, as the concept of property itself. I conclude by arguing that, for a number of reasons, the appropriate model for the change in thinking which I argue for comes from the history of the environmental movement. The invention of the concept of \"the environment\" pulls together a string of otherwise disconnected issues, offers analytical insight into the blindness implicit in prior ways of thinking, and leads to perception of common interest where none was seen before. Like the environment, the public domain must be \"invented\" before it is saved. Like the environment, like \"nature,\" the public domain turns out to be a concept that is considerably more slippery than many of us realize. And, like the environment, the public domain nevertheless turns out to be useful, perhaps even necessary.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"161 1","pages":"33-74"},"PeriodicalIF":0.0,"publicationDate":"2003-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90424030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation and informal deployment of images, metaphors, scripts and frames of understanding. Third, I examine the frame of institutional conflict, an especially powerful rhetorical strategy that appears not only in federalism cases, but also in speech cases. Finally, I examine the psychological dimension of this language device, the underlying script that is played out when the frame is invoked in our minds, and the relationship between the metaphor of conflict and enduring cognitive ideals.
{"title":"Speech and Strife","authors":"Robert L. Tsai","doi":"10.2139/SSRN.440985","DOIUrl":"https://doi.org/10.2139/SSRN.440985","url":null,"abstract":"The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation and informal deployment of images, metaphors, scripts and frames of understanding. Third, I examine the frame of institutional conflict, an especially powerful rhetorical strategy that appears not only in federalism cases, but also in speech cases. Finally, I examine the psychological dimension of this language device, the underlying script that is played out when the frame is invoked in our minds, and the relationship between the metaphor of conflict and enduring cognitive ideals.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"67 1","pages":"83-104"},"PeriodicalIF":0.0,"publicationDate":"2003-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77844082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the standard arguments asserted by those who have challenged the efficacy, propriety, and even legality of bias crime laws, is that these laws will end up hurting the very people they are designed to protect. This disproportionate enforcement critique argues that bias crime laws, as implemented, will disproportionately be used against minority defendants and will otherwise cause disproportionate harm to minority groups. This paper addresses the disproportionate enforcement critique on a number of levels, concluding at the very least that there is insufficient basis to accept the critique, that the critique is to a large extent based on a misunderstanding of the goal of bias crime laws, and that, although the critique should make us watchful of the potential for disproportionate enforcement of the criminal laws generally, with bias crime law no exception, it ought not to call into serious question the overall project of enforcing laws against bias-motivated violence. After introducing the overall context of bias crime laws, the paper first reviews the disproportionate enforcement critique and offers a typology of the criticisms that have been brought. Some of these criticisms are not based on a concern with disproportionate enforcement, but ironically with a concern for proportionate enforcement. The common difficulty facing most of the critics, however, is the absence of empirical support for their assertions and concerns. Nor is this absence surprising. There are serious and systemic difficulties in obtaining support for any sustained empirical argument where bias crimes are concerned. This is the subject of the next part of the paper. After reviewing these difficulties, the paper proceeds to analyze the data that are available from Federal statistics and those compiled by three major cities to evaluate the strength of the disproportionate enforcement critique. I suggest that there is reason to reject the critique and that the one significant effort to support the critique empirically is ultimately unpersuasive. In addition, I suggest that there is reason, albeit softer, affirmatively to support the converse of the disproportionate enforcement critique: subject to the general concerns of disproportionate representation of minorities in our criminal justice system, bias crimes can indeed be prosecuted and punished without discrimination. Simply put, if we are to seek to root out the effects of racism - conscious and unconscious - in the criminal justice system, the area of bias-motivated violence is the wrong place to start, and perhaps even the wrong place to look altogether.
{"title":"Enforcing Bias Crimes Laws Without Bias: Evaluating the Disproportionate Enforcement Critique","authors":"Frederick M. Lawrence","doi":"10.2139/SSRN.412360","DOIUrl":"https://doi.org/10.2139/SSRN.412360","url":null,"abstract":"One of the standard arguments asserted by those who have challenged the efficacy, propriety, and even legality of bias crime laws, is that these laws will end up hurting the very people they are designed to protect. This disproportionate enforcement critique argues that bias crime laws, as implemented, will disproportionately be used against minority defendants and will otherwise cause disproportionate harm to minority groups. This paper addresses the disproportionate enforcement critique on a number of levels, concluding at the very least that there is insufficient basis to accept the critique, that the critique is to a large extent based on a misunderstanding of the goal of bias crime laws, and that, although the critique should make us watchful of the potential for disproportionate enforcement of the criminal laws generally, with bias crime law no exception, it ought not to call into serious question the overall project of enforcing laws against bias-motivated violence. After introducing the overall context of bias crime laws, the paper first reviews the disproportionate enforcement critique and offers a typology of the criticisms that have been brought. Some of these criticisms are not based on a concern with disproportionate enforcement, but ironically with a concern for proportionate enforcement. The common difficulty facing most of the critics, however, is the absence of empirical support for their assertions and concerns. Nor is this absence surprising. There are serious and systemic difficulties in obtaining support for any sustained empirical argument where bias crimes are concerned. This is the subject of the next part of the paper. After reviewing these difficulties, the paper proceeds to analyze the data that are available from Federal statistics and those compiled by three major cities to evaluate the strength of the disproportionate enforcement critique. I suggest that there is reason to reject the critique and that the one significant effort to support the critique empirically is ultimately unpersuasive. In addition, I suggest that there is reason, albeit softer, affirmatively to support the converse of the disproportionate enforcement critique: subject to the general concerns of disproportionate representation of minorities in our criminal justice system, bias crimes can indeed be prosecuted and punished without discrimination. Simply put, if we are to seek to root out the effects of racism - conscious and unconscious - in the criminal justice system, the area of bias-motivated violence is the wrong place to start, and perhaps even the wrong place to look altogether.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"75 1","pages":"49-70"},"PeriodicalIF":0.0,"publicationDate":"2003-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80427725","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Consenting to a contract containing an arbitration clause or a jury-waiver clause alienates or waives the Seventh Amendment jury-trial right in federal court. The standards of consent in arbitration law, however, tend to be lower than the standards of consent in the federal caselaw governing jury-waiver clauses. The Federal Arbitration Act (FAA) requires courts to apply contract law's standards of consent to arbitration agreements, while certain commentators argue that courts are instead constitutionally required to apply the higher standards of consent (knowing consent) found in the caselaw governing jury-waiver clauses. This article responds to these commentators and argues that the FAA's contract-law standards of consent are constitutional.
{"title":"Arbitration Clauses, Jury-Waiver Clauses and Other Contractual Waivers of Constitutional Rights","authors":"S. Ware","doi":"10.2139/SSRN.337121","DOIUrl":"https://doi.org/10.2139/SSRN.337121","url":null,"abstract":"Consenting to a contract containing an arbitration clause or a jury-waiver clause alienates or waives the Seventh Amendment jury-trial right in federal court. The standards of consent in arbitration law, however, tend to be lower than the standards of consent in the federal caselaw governing jury-waiver clauses. The Federal Arbitration Act (FAA) requires courts to apply contract law's standards of consent to arbitration agreements, while certain commentators argue that courts are instead constitutionally required to apply the higher standards of consent (knowing consent) found in the caselaw governing jury-waiver clauses. This article responds to these commentators and argues that the FAA's contract-law standards of consent are constitutional.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"99 1","pages":"167-205"},"PeriodicalIF":0.0,"publicationDate":"2002-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81555551","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Beginning in the 1970s, some reformers envisioned something like a true revolution in American health care, one that would install "a truly democratic regime based on competition and real consumer choice." This article explains why that revolution never achieved its most ambitious goals. After noting some ground gained by consumers as a result of antitrust enforcement and other reforms leading to the managed-care movement, it considers the complex reasons why modern health plans ultimately failed (1) to effectively integrate the provision of health care with its financing, enabling them to manage trade-offs in the interest of their subscribers; (2) to offer consumers a full range of health care options, including not only expensive, ostensibly high-quality care and coverage but also appreciably cheaper versions of possibly lesser quality; and (3) to earn consumers' trust as their post-revolutionary representatives and allies in the battle against high health care costs and entrenched professional power. The article then turns to an appraisal of the political economy of American health care law and policy to show why the health care revolution never had a realistic chance to empower ordinary consumers. Whereas most analysts believe that health care markets are doomed to fail because consumers are ignorant concerning the quality of care, the article argues that a much greater problem is consumers' ignorance concerning the cost of their health coverage an ignorance that is not inevitable but is instead fostered by the way government subsidizes health care (either through direct public financing or indirectly through the tax system). The result of this contrived ignorance, at least in the private sector, is a special kind of moral hazard not the unavoidable kind inherent in third-party health insurance but the "one that operates when employers, government, and the legal system write prescriptions [with hidden costs] which consumers must pay." The article includes an innovative model of majoritarian and interest-group politics that explains not only "over-regulation" that is, cost-increasing legal requirements that benefit the majority at the expense of the (lower-income) minority but also "hyper-regulation," which (once hidden costs are counted) diminishes the welfare of the great majority of voters while benefitting only the health care industry and its upper-income patrons. The article then identifies some additional respects in which the American health care system, especially since the successful counter-revolution against managed care, appears to be scandalously regressive. Among other likely sources of systematic regressivity besides regulatory standards biased against low-income consumers are the following: employers' tendency to design benefits to serve the interests and preferences of their higher-income employees; providers' tendency to tailor clinical choices according to patient expectations, which may vary according to income
从20世纪70年代开始，一些改革者设想了一场类似于美国医疗保健的真正革命，一场将建立“一个基于竞争和真正的消费者选择的真正民主制度”的革命。这篇文章解释了为什么这场革命从未实现其最雄心勃勃的目标。在注意到消费者因反垄断执法和其他导致管理式医疗运动的改革而取得的一些进展之后，它考虑了现代健康计划最终失败的复杂原因(1)未能有效地将医疗保健的提供与其融资结合起来，使他们能够为订户的利益管理权衡;(2)为消费者提供全方位的医疗保健选择，不仅包括昂贵的、表面上高质量的医疗服务和覆盖范围，还包括质量可能较低的、价格明显较低的医疗服务;(3)赢得消费者的信任，作为他们革命后的代表和盟友，与高昂的医疗成本和根深蒂固的专业权力作斗争。然后，文章转向对美国医疗保健法律和政策的政治经济学的评估，以说明为什么医疗保健革命从来没有一个现实的机会赋予普通消费者权力。尽管大多数分析人士认为，医疗保健市场注定要失败，因为消费者对医疗质量一无所知，但这篇文章认为，更大的问题是消费者对医疗保险成本的无知——这种无知并非不可避免，而是由政府补贴医疗保健的方式(通过直接公共融资或间接通过税收系统)助长的。这种人为无知的结果，至少在私营部门，是一种特殊的道德风险——不是第三方医疗保险固有的那种不可避免的道德风险，而是“当雇主、政府和法律体系开出处方(带有隐性成本)，消费者必须支付的那种道德风险”。这篇文章包含了一个多数主义和利益集团政治的创新模型，它不仅解释了“过度监管”——即以牺牲(低收入)少数人为代价而使大多数人受益的成本增加的法律要求——而且解释了“过度监管”(一旦计算隐性成本)，它减少了绝大多数选民的福利，而只使医疗保健行业及其高收入赞助人受益。这篇文章接着指出了美国医疗保健系统的一些其他方面，特别是自从对管理式医疗的成功反革命以来，似乎是可耻的倒退。除了对低收入消费者有偏见的监管标准之外，系统回归的其他可能来源包括:雇主倾向于设计福利，以服务于高收入员工的利益和偏好;提供者倾向于根据患者的期望来调整临床选择，而患者的期望可能因收入而异;高收入和低收入患者在“系统运作”方面的能力差异，特别是现在消费者拥有广泛的上诉权(例如，Rush-Prudential HMO, Inc. v. Moran);成本分担对高、低收入个人保险服务消费可能产生的差异影响;以及侵权制度分配成本(平均)和收益(不平均，至少在补偿收入损失方面)的方式。可以肯定的是，缺乏经验证据表明，某些收入群体的医疗支出比他们的支出多多少或少多少。但这篇文章观察到，在许多方面，美国的医疗体系似乎以牺牲大多数无知的消费者/雇员/选民的利益为代价，为精英们的利益服务，他们不仅被法律剥夺了选择廉价医疗保险的机会(公共补贴确保了基本的充足性)，而且经常被迫完全放弃医疗保险。文章最后推测了重启医疗改革的前景(大部分令人沮丧)，这样美国的医疗体系才能最终为所有美国人提供良好的服务。
{"title":"How the Health Care Revolution Fell Short","authors":"C. Havighurst","doi":"10.2307/1192280","DOIUrl":"https://doi.org/10.2307/1192280","url":null,"abstract":"Beginning in the 1970s, some reformers envisioned something like a true revolution in American health care, one that would install \"a truly democratic regime based on competition and real consumer choice.\" This article explains why that revolution never achieved its most ambitious goals. After noting some ground gained by consumers as a result of antitrust enforcement and other reforms leading to the managed-care movement, it considers the complex reasons why modern health plans ultimately failed (1) to effectively integrate the provision of health care with its financing, enabling them to manage trade-offs in the interest of their subscribers; (2) to offer consumers a full range of health care options, including not only expensive, ostensibly high-quality care and coverage but also appreciably cheaper versions of possibly lesser quality; and (3) to earn consumers' trust as their post-revolutionary representatives and allies in the battle against high health care costs and entrenched professional power. The article then turns to an appraisal of the political economy of American health care law and policy to show why the health care revolution never had a realistic chance to empower ordinary consumers. Whereas most analysts believe that health care markets are doomed to fail because consumers are ignorant concerning the quality of care, the article argues that a much greater problem is consumers' ignorance concerning the cost of their health coverage an ignorance that is not inevitable but is instead fostered by the way government subsidizes health care (either through direct public financing or indirectly through the tax system). The result of this contrived ignorance, at least in the private sector, is a special kind of moral hazard not the unavoidable kind inherent in third-party health insurance but the \"one that operates when employers, government, and the legal system write prescriptions [with hidden costs] which consumers must pay.\" The article includes an innovative model of majoritarian and interest-group politics that explains not only \"over-regulation\" that is, cost-increasing legal requirements that benefit the majority at the expense of the (lower-income) minority but also \"hyper-regulation,\" which (once hidden costs are counted) diminishes the welfare of the great majority of voters while benefitting only the health care industry and its upper-income patrons. The article then identifies some additional respects in which the American health care system, especially since the successful counter-revolution against managed care, appears to be scandalously regressive. Among other likely sources of systematic regressivity besides regulatory standards biased against low-income consumers are the following: employers' tendency to design benefits to serve the interests and preferences of their higher-income employees; providers' tendency to tailor clinical choices according to patient expectations, which may vary according to income","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"24 1","pages":"55-102"},"PeriodicalIF":0.0,"publicationDate":"2002-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90270157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I INTRODUCTION Revolutions that result in sudden and radical change to a society's essential attributes are rare occurrences. Rather, from biology to social policy, the present is the result of an evolutionary progression of interrelated phenomena. The forces that prompt a period of rapid evolution are often not apparent, except in hindsight. The evolutionary process, once begun, is difficult to orchestrate, and the results hard to predict. The evolution of the managed care industry is a case in point. Initiatives by the private sector and government to make medical care accessible to a larger percentage of the population exacerbated, rather than ameliorated, the costs of health care services. The market-based reforms that followed were intended to provide consumers with information and financial incentives to make wise economical choices, but instead gave rise to a clamor of consumer complaints, while posting only temporary gains in controlling health care costs. The nation is once again faced with calls for reform of its patchwork system of health care delivery and financing. This article provides an overview of the interrelated events that led to the present-day managed care system. We begin with the stimuli for change to the longstanding medical model status quo. A paradigmatic shift from a physician-dominated professional model to a market-based system characterized the revolutionary period that followed. Before that shift could occur, however, Congress had to abandon its regulatory zeal to create a political climate in which policy-makers perceived market-based reform as a viable alternative to both regulatory fiat and professional control. Equally important to legislative willingness was the elimination of systemic impediments to market reforms, principally the organized resistance of the professionals who controlled the system. These events opened the way for suggestions about the direction that market-driven evolution should follow and the translation of scholarly insight into political reality. In this article, we revisit these events, describe the system that evolved, and conclude with some suggestions for future directions. II THE PAST AS PRELUDE The story of the pre-managed care era is one of miscues and well-intentioned missteps. Although the stirrings of the health care revolution became readily apparent shortly after the enactment of the Medicare and Medicaid programs, both the events that gave rise to the need for change and the form that change took had much earlier origins. The years that preceded the managed care era were remarkable for the juxtaposition of the relative stability and lack of diversity among the organizational arrangements for the delivery and financing of health care services, and the rapid changes in society and medical science. As third-party financing grew and physicians expanded their sphere of influence to include payment mechanisms as well as health care delivery, attempts to expand access to health care
{"title":"Back to the Future: The Managed Care Revolution","authors":"G. Agrawal, H. R. Veit","doi":"10.2307/1192279","DOIUrl":"https://doi.org/10.2307/1192279","url":null,"abstract":"I INTRODUCTION Revolutions that result in sudden and radical change to a society's essential attributes are rare occurrences. Rather, from biology to social policy, the present is the result of an evolutionary progression of interrelated phenomena. The forces that prompt a period of rapid evolution are often not apparent, except in hindsight. The evolutionary process, once begun, is difficult to orchestrate, and the results hard to predict. The evolution of the managed care industry is a case in point. Initiatives by the private sector and government to make medical care accessible to a larger percentage of the population exacerbated, rather than ameliorated, the costs of health care services. The market-based reforms that followed were intended to provide consumers with information and financial incentives to make wise economical choices, but instead gave rise to a clamor of consumer complaints, while posting only temporary gains in controlling health care costs. The nation is once again faced with calls for reform of its patchwork system of health care delivery and financing. This article provides an overview of the interrelated events that led to the present-day managed care system. We begin with the stimuli for change to the longstanding medical model status quo. A paradigmatic shift from a physician-dominated professional model to a market-based system characterized the revolutionary period that followed. Before that shift could occur, however, Congress had to abandon its regulatory zeal to create a political climate in which policy-makers perceived market-based reform as a viable alternative to both regulatory fiat and professional control. Equally important to legislative willingness was the elimination of systemic impediments to market reforms, principally the organized resistance of the professionals who controlled the system. These events opened the way for suggestions about the direction that market-driven evolution should follow and the translation of scholarly insight into political reality. In this article, we revisit these events, describe the system that evolved, and conclude with some suggestions for future directions. II THE PAST AS PRELUDE The story of the pre-managed care era is one of miscues and well-intentioned missteps. Although the stirrings of the health care revolution became readily apparent shortly after the enactment of the Medicare and Medicaid programs, both the events that gave rise to the need for change and the form that change took had much earlier origins. The years that preceded the managed care era were remarkable for the juxtaposition of the relative stability and lack of diversity among the organizational arrangements for the delivery and financing of health care services, and the rapid changes in society and medical science. As third-party financing grew and physicians expanded their sphere of influence to include payment mechanisms as well as health care delivery, attempts to expand access to health care","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"133 1","pages":"11-54"},"PeriodicalIF":0.0,"publicationDate":"2002-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78188539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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