Health Law
The Continuing Viability of Medicaid Rights After the Deficit Reduction Act of 2005
Weight Discrimination: One Size Fits All Remedy?
117 Yale L.J. 1900 (2008). Being fat is one of the most devastating social stigmas today. In seeking a legal remedy, commentators and advocates appeal to existing models of employment discrimination: disability, race, sex, and more recently, appearance. Fat people do face discrimination along these fronts. Weight discrimination, however, is a distinct form of discrimination. Weight discrimination blames fat people for their excess weight. Commentators fail to address the central problem when they ignore this unique psychological mechanism. More broadly, commentators miss the boat by focusing entirely on weight discrimination in employment. To really aid fat people, commentators and advocates should begin with an even more harmful area of weight discrimination: health care and health insurance.
Medicaid and Beneficiary Enforcement: Maintaining State Compliance with Federal Availability Requirements
117 Yale L.J. 1374 (2008). When states accept federal funding to administer a joint federal-state program, what assurance is there that they will conform to the requirements of governing federal law? This question takes on a new urgency in the Medicaid context since the § 1983 lawsuits that have historically monitored state compliance with fundamental federal Medicaid requirements may now be impermissible due to recent legislative developments. Anticipating a scramble to find alternative means of enforcement, a novel solution—using administrative hearings to compel states to conform to the federal requirements—may prove to be the most appropriate remaining mechanism for bridging the impending accountability gap.
Defining the Protected Class: Who Qualifies for Protection Under the Pregnancy Discrimination Act?
117 Yale L.J. 1215 (2008).
Just Semantics: The Lost Readings of the Americans with Disabilities Act
117 Yale L.J. 992 (2008). Disability rights advocates and commentators agree that the Americans with Disabilities Act (ADA) has veered far off course from the Act’s mandate of protecting people with actual or perceived disabilities from discrimination. They likewise agree that the fault lies in the language of the statute itself and in the courts’ so-called literalist reading of its definition of disability. As a result, many disability rights advocates have pinned their hopes for doctrinal reform on the proposed ADA Restoration Act, now in congressional committee. Although the Act would likely be a boon to plaintiffs, its chances of passage are uncertain. This Article tells a very different story of the problem and its solution. I agree that blame should fall on the courts, but not for reading the statute too closely. Rather, they have not read it closely enough. A truly rigorous interpretation of the ADA would expose a structural ambiguity in the regarded-as prong of the disability definition, with important consequences for interpretation. Although this ambiguity is a basic one—the kind that we resolve every day without thinking about it—it creates what is in fact a nine-way ambiguity in the statute. The courts have to date overlooked all but one of a corresponding nine readings; the other eight are effectively lost. Drawing on ordinary intuitions about sentence meaning, and borrowing some basic conceptual tools from formal linguistics, this Article aims to make ambiguity in the regarded-as prong visible to the reader. This opens the door to invoking the ADA’s rich legislative history for the purpose of resolving the ambiguity. Such history favors a broad reading of the statute and would mark a departure from an era of increasingly narrow interpretation of the ADA’s disability definition. Thus, while it may be a surprising alliance to consider, formal linguistic rigor in the hands of civil rights advocates holds the potential to realign ADA jurisprudence with the statute’s purpose.
The South Dakota Referendum on Abortion: Lessons from a Popular Vote on a Controversial Right
Adverse Selection in Insurance Markets: An Exaggerated Threat
113 Yale L.J. 1223 (2004) The phrase "adverse selection" was originally coined by insurers to describe the process by which insureds utilize private knowledge of their own riskiness when deciding to buy or forgo insurance. If A knows he will die tomorrow (but his insurer does not), life insurance that is priced to reflect the average risk of death in the population as a whole will look like a very good deal to him. Conversely, if B knows she will live for much longer than the average person with her observable characteristics (age, gender, medical condition), insurance that is priced to reflect the average risk of death will seem like a bad deal to her, and she will be unlikely to buy it. When A buys lots of insurance and B buys none, insurers find themselves charging an average rate to a population that contains only the worst risks, and end up losing money by virtue of having their product selected only by high-risk individuals. But informational asymmetry may not just be bad for insurers. When insurers cannot distinguish between good and bad risks, theory predicts that it is possible (although not necessary) to end up with no coverage for anyone: As the good risks begin to exit, the average quality of those insureds remaining falls and prices rise in a vicious circle, ending in a so-called "death spiral" where no one is covered. Even when insurance is available, it may be inefficiently distorted by the presence of adverse selection. Many theoretical models conclude that when adverse selection is a problem, good risks will be rationed: They will be allowed to purchase only limited coverage in an attempt to make such coverage less attractive to the bad risks, who would otherwise be eager to purchase it given its favorable price. As we will see, courts, policymakers, and legal academics routinely--and often uncritically--discuss adverse selection as a major issue in the design and regulation of insurance markets. In addition, economists have devoted scores of articles to the subject over the last decade. But the thesis of this Essay is that although theory demonstrates that adverse selection can occur, and some instances have certainly been documented, neither the theoretical models nor the empirical studies provide much support for its widespread importance in insurance markets. The nature of selection pressures turns out to be vastly more complicated than the rhetoric of courts and academic commentators would suggest. And while the economic theory of adverse selection in insurance markets has become enormously sophisticated, much of it is devoted to rarified analysis of the nature and existence of equilibria. It has thus managed to obscure some essential features of insurance demand that may undercut or even reverse the typical adverse selection results. In short, while adverse selection in insurance markets is clearly a possibility, it is often not the serious problem that it is taken to be. Courts, policymakers, and legal academics need to do much more than trumpet a concern for adverse selection as a justification for their preferred course of action. And economists need to develop less obscure and more realistic models, and pay more attention to the empirical issues (as indeed they are beginning to do). This Essay is organized as follows. Part I describes the importance ascribed to adverse selection in insurance markets by courts, regulators, and legal commentators. The common theme of these actors' analyses is that adverse selection is an extremely significant problem--one that justifies deference to longstanding common law doctrines in tort and contracts and a hands-off attitude with regard to insurance regulation. In Part II, I briefly explain the theory of adverse selection as developed in the economics literature, and discuss its implications for the behavior and efficiency of insurance markets. Economic models suggest that adverse selection can cause the outright collapse of insurance markets and will always produce rationing and various other forms of inefficiency. But while enormously sophisticated, these economic theories are, I suggest, ill-suited for the (often rather casual) reliance that is placed on them by courts and commentators. Part III considers the assumptions and predictions of the adverse selection model and compares them with the existing empirical evidence. After some preliminary questions, I focus on three issues: First, can insureds actually outpredict their insurers, as adverse selection theory requires, and does this lead the worst risks to buy more insurance? Second, are adverse selection "death spirals" a serious real-world phenomenon? And third, are good risks typically rationed in the amount of insurance they can buy, as adverse selection theory predicts? I answer all three questions largely in the negative. Part IV considers an alternative model of selection in insurance markets, in which it is the good risks who buy more insurance. The standard adverse selection models assume that insureds are homogenous except for differences in the probability of loss. In particular, everyone is assumed to be equally risk-averse, and there is therefore no relationship between an insured's risk aversion and her riskiness. Once the assumption of homogenous risk aversion is relaxed, however, alternative selection mechanisms become possible. I therefore discuss the theoretical and empirical support for a model of "propitious selection," in which low-risk individuals are willing to buy insurance even at "unfair" rates. I conclude that propitious selection is at least as plausible as the standard adverse selection story in many cases.
Simple Fairness: Ending Discrimination in Health Insurance Coverage of Addiction Treatment
111 Yale L.J. 2321 (2002)
Drug Designs are Different
111 Yale L.J. 151 (2001) In an essay published in this Journal entitled Is There a Design Defect in the Restatement (Third) of Torts: Products Liability?, George Conk criticizes the American Law Institute and the Reporters of the new Restatement for immunizing prescription drug manufacturers from liability for defective design. In doing so, he joins other commentators who have been critical of this aspect of the new Restatement, upon which we served as Reporters. Because Conk claims to have history on his side, and because this most recent criticism may prove to be disproportionately influential, we offer a response both to him and to other critics. Conk praises the general product-design standard adopted by the Restatement, which predicates liability for almost all nonprescription products upon proof that a reasonable alternative design could have been adopted that would have avoided or reduced harm to the plaintiff. However, he criticizes the Restatement's provisions relating to defective drug design for not applying the same "reasonable alternative" standard. (The Restatement deems a drug defective in design only if it would not be prescribed for any class of patients.) In his view, the Restatement test for defective drug design would protect prescription drug manufacturers from liability even if a plaintiff could show that an alternatively designed drug would have avoided unnecessary risk. Conk argues that during the late 1970s and early 1980s, the absence of a reasonable alternative design standard for prescription drugs allowed distributors of blood to escape liability for supplying blood products contaminated with the hepatitis C virus and that the Restatement test would condone such noxious results in the future. Claiming this regrettable history as support for his position, Conk urges that the defectiveness of prescription drug designs should be determined by the same standard as is generally applicable to nonprescription products. Our critics have misread the prescription drug design provision of the new Restatement. It does not immunize prescription drug manufacturers for defective design. Plaintiffs may establish defectiveness by showing that safer alternative drugs were available on the market that reasonable health care providers would have prescribed in place of a defendant's drug for all classes of patients. Moreover, Conk's premise that the blood cases in the 1980s would have been decided differently if blood products had been subject to the reasonable alternative design rule of the new Restatement is false. Finally, the purportedly pro-plaintiff approach he advocates, which would require courts to deny classes of patients access to a particular drug that provides them unique benefits in order to protect other patients from the risks of misprescription by negligent physicians, is both unfair and inefficient. In short, the Restatement is quite correct in treating prescription drug designs differently from other product designs, although it does not treat them as differently as Conk supposes. Drug designs are different from other product designs, and they deserve different treatment under the new Restatement. Part I of this Essay summarizes Conk's thesis, including his interpretation of the new Restatement. Part II identifies significant errors in Conk's critique: He has read the Restatement incorrectly, and his reliance on the blood cases is misplaced. Part III explains and justifies the substantive differences between the new Restatement's treatment of prescription drug design and its treatment of defective product design generally. These differences include the Restatement's refusal to allow courts to consider alternative, safer prescription products that have not yet received FDA approval (under the general design provisions, courts routinely consider not-yet-marketed alternative designs) and its refusal to sacrifice the welfare of one class of patients to enhance the welfare of another class of patients (under the general design provisions, such cross-consumer sacrifices of welfare are routinely condoned). Part III also explains why drug design litigation cannot legitimately be made more plaintiff-friendly by reducing its complexity and why the rule in the new Restatement should not significantly reduce manufacturers' incentives to discover new and safer prescription products.