Peter H. Schuck

The limits of law : essays on democratic governance

Three cases making dramatic headlines in the Australian Doctor recently (online) demonstrate how practice can be scrutinised in a variety of venues - a civil court, the Health Care Complaints Commission and the Health Practitioners Tribunal that lead to different outcomes.

Public Law Litigation and Social Reform

* Assistant Professor of Political Science and Instructor in Law, University of Chicago. ** Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School. t Simeon E. Baldwin Professor of Law, Yale Law School. The author wishes to thank Owen Fiss, Jerry Mashaw, and Rogers Smith for their comments on an earlier draft. 1. For the first time since 1933, the same party controls the Presidency and both houses of Congress after a long period (twelve years in both cases) during which the other party had the opportunity to appoint much of the federal judiciary. Indeed the expansion of, and turnover within, the judiciary during the Reagan-Bush years meant that, between them, the two Presidents appointed nearly 600 judges (the total number of federal judgeships is 828). On the other hand, the accumulation of an unusually large backlog of judicial vacancies, coupled with a continuing high turnover rate, is expected to give President Clinton the opportunity to name many more judges to the federal bench during his first term than President Bush

The Graying of Civil Rights Law: The Age Discrimination Act of 1975

Nondiscrimination laws have come to play a central role in the design of public policy in the modem welfare state. Such laws place those who administer them in the difficult business of allocating scarce resources, regulating conflicting interests, and attempting to shape complex institutional behavior. The egalitarian vision that inspires such laws and the rhetorical and political energy that generate their enactment, however, are not easily accommodated to the underlying moral and decisional complexities of the regulatory task. These complexities inevitably disturb the tranquil surface of the law where formal simplicity and moral clarity dwell. This Article examines the Age Discrimination Act of 19751 (ADA), and explores the conflict between the criteria of social choice that decisionmakers wish to employ, and the moral and legal constraints that nondiscrimination laws seek to impose upon such criteria. The Article consists of four parts. Part I describes the ADA and contrasts it with earlier nondiscrimination laws, especially the prohibition on race discrimination in Title VI of the Civil Rights Act of 1964. A critical analysis of the putative analogy between race discrimination and age discrimination reveals the distinctive characteristics of age and the principal considerations that ought to govern the use of age as a criterion of classification. I argue that the ADAs attempt to fuse two distinct types of group protection statutes has yielded a hybrid form that constitutes a problematic policy instrument. Part II traces the evolution of the ADA: the legal and political contexts out of which it emerged; its legislative history; the Civil Rights Commission study on age discrimination mandated by the ADA; and

Government Funding for Organ Transplants

This paper examines the role of the federal and state governments in paying for organ transplants. The first section, descriptive in nature, presents data on the past, current, and projected payment patterns for different kinds of organ transplants under various federal and state programs. The second section, which is normative, considers the three principal arguments for and against government payment for organ transplants. These arguments revolve around efficiency, equity, and communitarian claims, and none of them is wholly satisfactory. The final section, which is policy-oriented, assumes that government financing of organ transplants will continue but will be fiscally constrained, and goes on to analyze a number of important payment policy issues in the light of broader principles. These issues relate to eligibility, comprehensiveness of benefits, reimbursement formulas, entitlement, and level of government. The paper concludes by predicting that as transplant procedures become less constrained by organ supply and more routinely performed, they will lose the privileged political position that they now enjoy and will instead be obliged to compete for scarce governmental resources with other social goods on more equal terms. Government policy should be designed to encourage this competition.

Valuing Health Care: Improving Productivity and Quality

This report addresses a deceptively simple question: How can the productivity of American health care be substantially improved? Productivity, in lay terms, is the ratio of output to inputs. A more colloquial rendition of the question might be: how can we get a lot more bang for our health care buck?By design, we have brought together a varied assortment of ideas and suggestions, illustrating the messy, grab-bag nature that effective changes often need to take. Yet our proposals do fall (albeit with some overlap) into four broad categories, which structure the recommendations section of this report.Harnessing information: how systematically gathering and sharing data can unlock knowledge that produces systematically better choices. The key here is to incentivize a new corps of data entrepreneurs to collect and analyze existing medical data to discover and then disseminate the use of new therapies.Improving research: encouraging more collaboration across institutions and funding more translational research (aimed at “translating” basic scientific discoveries into medicines and therapies). Legal and regulatory reform: modernizing medical malpractice systems, removing counter-productive restrictions on health insurance premiums, and streamlining new drug approvals.Empowering patients: there are large benefits of giving more power to the people who matter most — patients — to make informed decisions about their own care.The ideas here are not new, though many of them are familiar only to the cognoscenti. To the contrary, we have sought ideas that have showed promise in the field, and then attempted to set them in a context that exploits the adjacent possible.If this report can focus more minds in the health policy community and general public on finding and implementing those changes, in everything from clinical practices to regulatory structures, it will have succeeded.From the Kauffman Task Force on Cost-Effective Health Care Innovation.

Taking Immigration Federalism Seriously

Largely because of the immense shadow cast by the plenary power doctrine, immigration policy is overwhelmingly the domain of federal law. This article casts doubt on some of the premises of this legal centralism, including the myth of greater state hostility to immigrants and calls on Congress to delegate greater authority to the states in several areas of immigration policy: employment-based admissions, enforcement, and employer sanctions. A concluding section analyzes the legal standards that states must meet in order to overcome federal preemption challenges to their immigration-related statutes.

Tort Liability to those Injured by Negligent Accreditation Decisions

From a public policy perspective, there is much to be said for using private accrediting bodies to help government agencies provide, subsidize, or regulate social service programs. Information about the nature of health, educational, and other social services is a public good; unless the government develops and disseminates this information itself or provides sufficient incentives for private entities to do so, not enough of it will be produced. These services, moreover, are usually supplied in an intensely politicized environment in which powerful interests are motivated to distort and even suppress programmatic information. Hence, policies to enlist private, nonprofit groups1 in producing and distributing information about the quality of social services may be highly desirable. Private accreditation has other potential advantages. Efficiency gains due to lower personnel or process costs may be possible, especially if the government encourages competition in the provision of accreditation services; superior quality of accreditation may also result. Even more important in the long run are the effects of private accreditation on the quality of the underlying social services, as it can encourage more diverse and innovative approaches to their design, delivery, and appraisal. Private accreditation can also help to make government providers, payors, and regulators more accountable and responsive to the general public than is likely when they in effect evaluate their own efforts.

Should Those Who Attack the Nation Have an Absolute Right to Remain Its Citizens

Macklin is certainly right to worry about the possible abuses of denationalisation. But a liberal constitutional regime can control such abuses by scrupulously controlling the state’s exercise of this power through a variety of familiar institutions and practices. These include a careful definition and exacting limitation of the grounds for revocation; demanding procedural and evidentiary requirements before such a power can be exercised; a right to legal counsel; and an independent judiciary accustomed to challenging state power in the name of protecting individual rights. We have entrusted our precious liberties to the faithful working through of these institutions and practices. Some of these liberties are even more precious than our right to retain our citizenship when we have knowingly acted in horrendous ways that make it justifiable, under the safeguards I describe, for the state to declare that status forfeited.

Suing Our Servants: The Court, Congress, and the Liability of Public Officials for Damages

... it is mentioned, that the Lord Mayor of London, in 1666, when that city was on fire, would not give directions for, or consent to, the pulling down 40 wooden houses, or to the removing the furniture, &c. belonging to the Lawyers of Temple, then on the Circuit, for fear he should be answerable for a trespass; and in consequence of this conduct half that great city was burnt. [Respublica v. Sparhawk, 1 Dall. 357, 363 (Pa. Sup. Ct. 1788)]

Crisis and Catastrophe in Science and Law: Mapping the Terrain

This paper, written to set the intellectual stage for a conference on the subject, attempts to conceptualize and frame the subject of catastrophe. Part I elaborates definitions and paradigmatic features: magnitude, pervasiveness, uncertainty, preventability, irreversibility, and crisis. Part II develops some additional variables or distinctions relating to catastrophe: public recognition, community of concern, identifiable vs. statistical victims, telegenicity, winners and losers, and buffering institutions. Part III presents four frameworks used to explain catastrophe. After a brief discussion of the religious framework, I discuss science, law, and politics at greater length. For each, I analyze its distinctive values, incentives and techniques, and biases and orientations. Part IV analyzes three different frameworks for regulating catastrophe: legal-governmental institutions (planning, research, regulation, tort law, and social insurance), markets, and social norms. The final Part discusses the inter-penetration of science into law, and of law into science, using examples drawn from different fields.