The state action doctrine and the Local Government Antitrust Act: the restructured public hospital model

This Article analyzes the development and complexities of the antitrust state action doctrine and the Local Government Antitrust Act as these doctrines apply to both "municipalities" and private entities. The restructuring of a public hospital is used as a model to facilitate the antitrust analysis. The restructuring model, which typically involves the leasing of a hospital facility by a public entity to a private nonprofit corporation, offers the unique opportunity to compare the different standards employed under the state action doctrine and the Local Government Antitrust Act. As a practical matter, the Article provides a framework for a public hospital to evaluate the impact of corporate restructuring on its antitrust liability exposure and to develop strategies to minimize antitrust risks.     

Resolving university landlord-tenant disputes

Conclusion The housing arbitration system used by Brigham Young University's Housing Arbitration Board (HAB) has been widely used at the school for many years. It has not worked perfectly. Some landlords are critical of the school's laxness in enforcing arbitral awards.In general, students prefer the process over small claims court (chiefly, it appears, because of cost factors). The school administrators prefer mediation over arbitration but recognize that mediation does not always resolve impasses. Legal questions exist about BYU's potential restraint of trade in using the obligatory contracts the school mandates for landlords. The process relies upon persons of goodwill to serve on the tribunals, but has a long enough track record to demonstrate the HAB concept works quite well. Because of annual turnover, the need for training of mediators/arbitrators is always critical. Other universities may well wish to emulate (or modify) the HAB model in resolving their landlord and student-tenant disputes. William M. Timmins is Professor of Personnel Administration and Labor-Management Relations at the Graduate School of Management, Brigham Young University, Provo, Utah 84602. Among his recent publications isThe International Economic Policy Coordination Instrument: The OECD Experience (London: The University Press, 1985).     

Special report on liability and insurance. An update on assignment of patient benefits under ERISA

While the holdings in Davidowitz and Arkansas Blue Cross & Blue Shield arose in different contexts, they both reflect the courts' increasing willingness to consider the importance of cost containment in the health insurance arena, even though patient accessibility to health care may be restricted as a result. If the holding in Davidowitz is not successfully appealed, providers may need legislative relief in order to retain their ability to take valid assignments of patient claims for payment from ERISA plans. It is uncertain whether such legislation can be sought at the state level or must instead come from Congress due to ERISA preemption of state legislation. Clearly, the district court decision on remand in Arkansas Blue Cross & Blue Shield will be closely watched for any light it may shed on this question. On a pragmatic note, providers who have not entered into "participation" agreements with insurers or other private payors may now have a greater incentive to do so, and "nonparticipating" providers who continue to obtain assignments from patients in order to collect directly from insurers or other private payors should determine on a case-by-case basis whether the source of the patient's benefits is a group health plan--which is likely to fall under ERISA and may contain nonassignment provisions--or some other form of coverage. For an additional perspective on insurers' responses to copayment waivers, see Newsletter, Vol. 6, No. 10, October 1991, at 7.     

Facing the powers that be

Lobbyists, entrenched forces in congress and self-interested friends will try to stymie Clinton's efforts. A look at four key arenas of combat.     

Situational variation in moral judgment: In a stage or on a stage?

Two issues were examined in this study—the consistency of moral judgment across different types of dilemma and different social contexts, and the relationship between the structure (stage) of moral judgment and the content of moral decisions. Forty subjects were given two hypothetical dilemmas about business decisions and two standard Kohlberg dilemmas. Half the subjects directed their responses to a business audience, half to a philosophical audience. Responses to the moral dilemmas were scored in accordance with the Colby and Kohlberg (1987) scoring manual. Stage of moral reasoning was found to be significantly higher on the Kohlberg dilemmas than on the business dilemmas. A significant interaction between type of dilemma and audience was attributed to the tendency of subjects directing their responses to a business audience to interpret one of the business dilemmas in terms of the moral order of business, but for subjects directing their responses to a philosophy audience to treat it as a philosophical dilemma. The other business dilemma evoked uniformly low-level moral judgments. The amount of selfishness intrinsic in subjects' moral choices on the business dilemmas was significantly negatively correlated with moral maturity on the business dilemmas, but not with their moral maturity on Kohlberg's test. These results are interpreted as more consistent with models of moral development such as those advanced by C. G. Levine ([1979] Stage Acquisition and Stage Use: An Appraisal of Stage Displacement Explanations of Variation in Moral Reasoning, Human Development, Vol. 22, pp. 145–164), J. Rest ([1983] Morality, in: P. H. Mussen [ed.], J. H. Flavell and E. Markman [Vol. eds.], Handbook of Child Psychology [Vol. 3, 4th ed.], John Wiley & Sons, New York), and R. Harré ([1984]) Personal Being: A Theory for Individual Psychology, Harvard University Press, Cambridge, Massachusetts), which posit a relatively wide range of within-person stage use and emphasize the determining power of social situations, than with the more constructivistic model of moral development of Colby and Kohlberg (1987).This research was supported by Grant No. 410-87-1115 from the Social Sciences and Humanities Research Council of Canada.Received B.A. and M.A from Simon Fraser University. Research interests include moral development, and the influence of social interaction and language on the development of reasoning.Received Ph.D. from Harvard University. Research interests include moral development, altruism, and self-deception.