Cost-shifting: the discount dilemma

Cost-shifting, the practice by hospitals of raising their prices to make up for reimbursement shortfalls from payers that do not pay full charges, is an important and controversial issue. Concerns about cost-shifting, particularly its effects on payment equity and cost escalation, have led many insurers, business groups, and legislators to advocate rate-setting regulation for hospitals. This article seeks to clarify the definition of cost-shifting, and quantifies its magnitude in Minneapolis/St. Paul. We believe that cost-shifting is the consequential result of the failure of both public and private payers to structure payment policies that reward cost-effective hospitals, and we outline a market-oriented alternative to rate-setting to address the discount dilemma caused by cost-shifting.     

Elmer's case: A legal positivist replies to Dworkin

Conclusion I have argued that Legal Positivism can accommodate the existence oftheoretical disagreements in law and that Ronald Dworkin is wrongto claim otherwise. As far as Legal Positivists are concerned, evenjudges who differ over both the truth of propositions of law and thegrounds or sources of law can have a legal duty to resolve their dis-agreements on the basis of legal arguments. The duty exists whenconventional legal practice creates it. Moreover, all Anglo-Americanlegal systems impose the duty on judges because all such systemscontain legal practices of the right sort: practices creating expectationsthat cases will be decided on the law even when they raise doubtsabout the content or proper formulation of a rule of recognition.Thus, Elmer's Case poses no threat to Legal Positivism. To the con-trary, it reveals the richness of that theory as few other cases can.Only if Elmer's Case is detached from the context of Anglo-American adjudication can it be said to undermine Legal Positivism.But then no theory of positive law could withstand its challenge.A draft of this essay was presented at a political theory workshop at the University of Chicago. I am grateful for comments received from Russell Hardin, Leo Katz, Steven Fletcher and Thomas Christiano on that occasion. I also thank Steven Walt and Jules Coleman, two of the better dressed philosophers I know.     

The Davis dilemma: how to prevent battles over frozen preembryos

Cryopreservation of preembryos, or the freezing of fertilized human eggs, is a procedure increasingly used by infertile couples to improve the odds of success of advanced reproductive technologies. As a consequence, divorcing couples are finding themselves in dispute over the disposition of frozen preembryos that have not been implanted. Courts have been called on to decide to whom the frozen preembryos should be awarded, but the law is unclear whether frozen preembryos should be treated as marital property, as children, or as something else. The author analyzes various arguments concerning the appropriate legal status of frozen preembryos, and suggests a new rule to settle such disputes.