Antitrust, health care quality, and the courts

Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports results of a comprehensive empirical review of judicial opinions in health care antitrust litigation between 1985 and 1999, with specific attention to courts' handling of quality and other nonprice concerns. Professors Hammer and Sage conclude that, although antitrust law cannot be expected to serve as the sole oversight mechanism for industries as complex and quality dependent as health care, courts have been successful incorporating some nonprice factors into antitrust analysis.     

Policing Medicaid and Medicare managed care: the role of courts and administrative agencies

The much-publicized 2000 case of Frew v. Gilbert, in which a federal judge castigated the State of Texas for deficiencies in its Medicaid program, brought renewed attention to the issue of regulating the quality of care in Medicaid and Medicare HMOs. Frew and other recent cases highlight both the promise and the pitfalls of relying on courts to correct deficiencies in public managed care programs. This article argues that while litigation over inadequacies in Medicare and Medicaid managed care can serve an important signaling function in alerting agencies and legislatures about the need for reform, the role of the courts in policing public managed care is circumscribed by several constraints. Barriers to class action litigation and differences in the institutional capacities of courts and administrative agencies mean that litigation is best viewed as a supplement, not an alternative, to a renewed commitment to strong quality monitoring on the part of Centers for Medicare and Medicaid Services and state Medicaid agencies.     

Social context and racial disparities in punishment decisions

Although the social context of a court is often claimed to be important to understanding the effect of the offender's race on punishment decisions, the links between context and racial disparities in punishment decisions are not well understood. I propose and test four hypotheses involving elements that may link social context to racial disparities in punishment decisions: urbanization, racial threat, economic threat, and crime control. I test these four hypotheses with sentencing data from the Pennsylvania Commission on Sentencing for the period 1991 to 1994. The main findings are as follows: (1) punishment severity varies by court jurisdiction, even after controlling for offender and case characteristics; (2) racial disparities vary by court jurisdiction, with controls for other offender and case characteristics; (3) measures of social context explain little of the contextual variation in punishment decisions for all offenders; and (4) measures of social context do not explain racial disparities in punishment decisions. Thus, I find convincing evidence of contextual variation in punishment decisions, but typical indicators of social context do not explain these variations.     

AIDS-related risks in the health care setting: HIV testing of health care workers and patients

Do patients and health care workers have the legal right to know each other's HIV status? Professor Flanagan argues that they do not. Given that with appropriate precautions the risk of transmitting HIV in the health care setting is extremely small and that the discriminatory consequences of HIV disclosure can be extremely high, it is suggested that the right of a patient or a health care worker not to disclose their HIV status must outweigh the other's "right to know."     

Diversion from youth courts in five Asia Pacific jurisdictions: welfare or restorative solutions

Since the 1970s, there has been a trend to move away from punitive and retributive approaches to reintegrative practices. This article provides an account of how young offenders in five Asia Pacific jurisdictions are diverted from being prosecuted in the youth courts and of to where they are diverted. The five cases demonstrate that diversionary measures in the Australasian jurisdictions tend to be more restorative in their practices than are those in Chinese-dominated jurisdictions, which adopt welfare responses. It is concluded that although there is some progress in the areas of decarceration and delegalization, the diversion goals of decategorization and deprofessionalization in Chinese-dominated jurisdictions have yet to be achieved. Such diversionary strategies carry the risk that many more young people committing minor offences may be subject to more intrusive measures and disguised social control in the name of diversion, welfare, or the prevention of future offending.     

Occupational health ethics: OSHA and the courts

Recent court decisions have stressed the necessity for cost-benefit analysis in evaluating Occupational and Safety Health Administration (OSHA) standards, thus raising difficult ethical questions which this paper analyzes using classical approaches of deontology and teleology. Since both modes of analysis have deficiencies, the need for a synthesis using economic and noneconomic measures is suggested.