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Duncker & Humblot




Health law, a fast growing field of scholarship, appears to consist largely of two schools. One focuses on health care antitrust, taking as its fundamental premise the notion that health care markets should be distinguished from and treated differently than other markets. This premise underlying health care antitrust is based on a few recurring features of health care markets, such as informational asymmetry, that are taken as sufficient bases for treating them differently.1 The other school of health law is biomedical ethics, which has taken on increasing importance in view of the many tradeoffs that arise when health care intersects with the law. Should, for example, a physician be required to disclose all of the risks of a procedure to the patient, even though disclosure might discourage the patient to his detriment? Should a physician proceed with a kidney transplant after discovering that the patient has offered the donor a financial reward, or refuse to go forward on ethical grounds? The view of biomedical ethicists is that they can develop a science of ethics that can be applied to answer these and many other tradeoff questions in health care law.

This essay will focus on the biomedical ethics school of health law. I am doubtful of the prospects for a science of ethics, based on the prevailing mode of analysis, that really helps resolve difficult health care policy tradeoffs in a manner that provides useful guidance for courts. I will suggest that the best direction for society is toward greater reliance on property rights and recognized spheres of autonomy, coupled with freedom of contract within specified limits; and that as a result, the role of the biomedical ethicist should be diminished over time rather than enhanced. Moreover, to the extent that the biomedical ethicist's recommendations are needed as guidance for the law, they should be based on an empirically-grounded social welfare analysis rather than the invocation of ethical principles.


Updated with published version of paper on 9/25/22

Working paper available on SSRN

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Working paper available on SSRN

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