January 21, 2012
Lombardo on Legal Archaeology
Paul A. Lombardo published an essay "Legal Archaeology: Recovering the Stories behind the Cases" in the Fall 2008 issue of the Journal of Law, Medicine, and Ethics. It reminded me of the wonderful chapters in this volume of "health law stories." Here are some excerpts that may be of interest:
Every lawsuit is a potential drama: a story of conflict, often with victims and villains, leading to justice done or denied. Yet a great deal, if not all, that we learn about the most noteworthy of lawsuits — the truly great cases — comes from reading the opinion of an appellate court, written by a judge who never saw the parties of the case, who worked at a time and a place far removed from the events that gave rise to litigation.
Rarely do we admit that the official factual account contained in an appellate opinion may have only the most tenuous relationship to the events that actually led the parties to court. The complex stories — turning on small facts, seemingly trivial circumstances, and inter-contingent events — fade away as the “case” takes on a life of its own as it leaves the court of appeals.
How can a law professor correct this bias? Here are some of Lombardo's suggestions:
The best starting point for doing legal archaeology is the case record itself. We all begin our investigation of cases by reading an appellate opinion. With some extra effort, we can retrieve the records and briefs that the judges relied on as they wrote that opinion. Of course, the case record that is printed for submission to an appellate tribunal will include only a small portion of the documents that make up the lawsuit’s paper trail.
Much of the material contained in the case record is now filed electronically, and for recent cases, may be available on the Web. But even for most pre-Internet cases, finding the proper repository for all these records is not difficult. A visit to your school’s reference librarian with copies of the articles referenced here should get you started.
Lombardo also suggests consulting newspapers and magazines, professional journals, and material generated by the parties and their lawyers. Though some students may complain of "reading overload," skillful editing can make the effort to contextualize the cases well worth everyone's while. I also anticipate that internet archives of particular helpful case studies will accumulate over time.
Selected References from Lombardo
P. Brooks and P. Gewirtz, eds., Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1997).
J. L. Maute, “The Value of Legal Archaeology,” Utah Law Review 2000, no. 2 (2000).
D. L. Threedy, “Legal Archaeology: Excavating Cases, Reconstructing Context,” Tulane Law Review 80, no. 4 (2006)
C. Geertz, “Thick Description: Toward an Interpretive Theory of Culture,” in The Interpretation of Cultures: Selected Essays.[FP]
January 20, 2012
Worth Reading This Week
Ashutosh Avinash Bhagwat, Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy, SSRN/Vermont L.Rev.
James Bennett, Pandering for Profit: The Transformation of Health Charities to Lobbyists, SSRN
Andrew Koppelman, Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism, SSRN/Yale Journal Online
Reza Mirnezami et al, Preparing for Precision Medicine, NEJM
January 19, 2012
Is the Cost Curve Bending?
Perceptive analysis by Karen Davis over on the Commonwealth Fund Blog, here.
While the recession has played an important role in the reduced utilization of health care services, the efforts made over the last decade to transform health care delivery may also have contributed to slower spending growth. Private sector initiatives have been encouraging hospitals and physicians to adopt improved safety methods, reach performance benchmarks, and reorganize care to achieve greater value. Private insurers and Medicaid have begun to pay for care differently, creating opportunities for new models of health care delivery.
Difficult questions abound. How much of this shift can be credited to the Affordable Care Act? Will the Act be able to control expected insurance cost increases? Is this the beginning of cost bending or the end?
January 16, 2012
Disclosing Gifts from Industry to Physicians
Robert Pear reports in the New York Times about the recently proposed rules that will require drug and device manufacturers to disclose payments and gifts to physicians. The Centers for Medicare & Medicaid Services released the proposed regulations in December, and comment is due by February 17.
Disclosure often is an important first step in discouraging inappropriate payments from industry, but it is rarely an adequate step. Indeed, some physicians respond to disclosure requirements with a greater willingness to accept gifts from drug and device companies. The government needs to follow up with additional steps, including prohibitions on certain kinds of payments.
And the government can look to professional guidelines that have been in effect for more than twenty years in formulationg stricter regulations. For the AMA guidelines that were subsequently adopted by PhRMA, see the original guidelines and an update that were published in the Food and Drug Law Journal.
MLK's Legacy at a South Carolina Hospital
During the year after her husband’s assassination, Coretta Scott King made several visits to Charleston, S.C., where hospital aides at what was then the Medical College of South Carolina were involved in a protracted fight for decent wages. After a 113-day strike, the union won an agreement that led to wage increases and new grievance procedures.
The campaign was led by Mary Moultrie, a South Carolina native . . . In Moultrie’s telling, the gains that the union won lasted only for a few years. Because South Carolina is a right-to-work state, the union couldn’t manage to maintain much strength. But Moultrie didn’t give up: She was still organizing as recently as 2008.
A fascinating story, with historical documents at the link. [FP]