Health Law as Private Law: Pathology or Pathway

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Health Law as Private Law: Pathology or Pathway

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Health Law as Private Law delves into the complex relationship between private law and health care. During the COVID-19 pandemic, the importance of public ordering and state-created rules was evident, yet this work reveals the equally important role of private agreements in shaping health care policy. The volume's five sections - theory and structure, reproductive care, costs and financing, innovation and institutions, contracts and torts - include innovative conceptualizations and approaches to applying private law to health law. Chapters authored by leading experts explore how private law can be utilized to address significant health care and public health problems, and to achieve much-needed health care reform.

Comprehensive and timely, Health Law as Private Law opens new pathways that will influence future policy, jurisprudence, and regulation.
Introduction Susannah Baruch, I. Glenn Cohen, Wendy Netter Epstein, Christopher Robertson, and Carmel Shachar

Part I. What is Private Law? Theory and Structure:
1. Public funds, public functions, private actors: the cognitive dissonance of US health law William Sage
2. Private ordering is ubiquitous in health care, but why? Barbara J. Evans
3. Abandoning fiduciaries in health care Lauren R. Roth
4. European distinctions between private and public law in health care and the emerging influence of private lobbies Barry Solaiman

Part II. Tools of Private Law: Torts, Contracts, and Property as Vehicles of Health Policy
Introduction Wendy Netter Epstein
5. Data transparency, ERISA preemption, and freedom of contract Craig Konnoth
6. States as contractor: attempts to drive health care cost containment through state purchasing power Christine H. Monahan, Maanasa Kona and Madeline O'Brien
7. Adaptation of tort law to modern health care delivery in the restatement of medical malpractice Mark A. Hall
8. Pandemic harms and private law's limits: a proposal for tort replacement Jill R. Horwitz, Alberto De Diego Carreras and Daniel B. Rodriguez
9. The human body commons: a private law contribution for the advancement of the right to health Enrique Santamaría Echeverría

Part III .Russian Dolls, Reproduction, and Private Law
Introduction I. Glenn Cohen
10. Employer-sponsored abortion coverage: private law's role in reproductive freedom Valarie K. Blake and Elizabeth Y. McCuskey
11.
Reproductive innovation and reproductive exceptionalism: how private health insurance coverage of fertility treatment compliments hostile governmental action and expands access to assisted reproduction in the United States Myrisha Lewis
12. Business Responses to Dobbs: the return to a 'reproductive rights' approach, and suspicions around corporate care Asees Bhasin
13. Privatizing the creation of equity in women's health Thomas Williams

Part IV. Controlling Costs: Private Law's Impact on Health Care Financing and Pricing
Introduction Christopher Robertson
14. Federalism, private law, and medical debt Erin C. Fuse Brown
15. Paying for health care and private law's internal point of view James Toomey
16. Health law's sheathed sword: why hasn't civil litigation dented health care costs? Jackson Williams
17. The canary in the coal mine: private antitrust law and new dynamics in health care markets Jaime S. King 18. Health care finance law's relational bias Jessica Mantel

Part V. Private Law Applied: The Pharmaceutical Industry, Nursing Homes, and the End of Life
Introduction Carmel Shachar
19. Private equity firms and digital clinical trials: tensions between efficiency and drug evidence access Ximena Benavides
20. Shareholder resolutions and access to medications Rebecca E. Wolitz
21. The hollowed-out American nursing home: using private law to police poor quality care and expand owner responsibilities Barry Furrow
22. Health Care organization policies about the California end of life option act: the paper victory of the medical aid in dying movement Megan Wright and Cindy L. Cain

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