The Emergent Logic of Health Law
The American health care system is on a glide path toward ruin. Health spending has become the fiscal equivalent of global warming, and the number of uninsured Americans is approaching fifty million. Can law help to divert our country from this path? There are reasons for deep skepticism. Law governs the provision and financing of medical care in fragmented and incoherent fashion. Commentators from diverse perspectives bemoan this chaos, casting it as an obstacle to change. I contend in this Article that pessimism about health law’s prospects is unjustified, but that a new understanding of health law’s disarray is urgently needed to guide reform. My core proposition is that the law of health care provision is best understood as an emergent system. Its contradictions and dysfunctions cannot be repaired by some master design. No one actor has a grand overview—or the power to impose a unifying vision. Countless market players, public planners, and legal and regulatory decisionmakers interact in oft-chaotic ways, clashing with, reinforcing, and adjusting to each other. Out of these interactions, a larger scheme emerges—one that incorporates the health sphere’s competing interests and values. Change in this system, for worse and for better, arises from the interplay between its myriad actors. By quitting the quest for a single, master design, we can better focus our efforts on possibilities for legal and policy change. We can and should continuously survey the landscape of stakeholders and expectations with an eye toward potential launching points for evolutionary processes—processes that leverage current institutions and incentives. What we cannot do is plan or predict these evolutionary pathways in precise detail; the complexity of interactions among market and government actors precludes fine-grained foresight of this sort. But we can determine the general direction of needed change, identify seemingly intractable obstacles, and envision ways to diminish or finesse them over time. Dysfunctional legal doctrines, interest group expectations, consumers’ anxieties, and embedded institutional and cultural barriers can all be dealt with in this way, in iterative fashion. This Article sets out a strategy for doing so. To illustrate this strategy, I suggest emergent approaches to the most urgent challenges in health care policy and law—the crises of access, value, and cost.