Academic journal article Law and Contemporary Problems

Getting the Haves to Come out Behind: Fixing the Distributive Injustices of American Health Care

Academic journal article Law and Contemporary Problems

Getting the Haves to Come out Behind: Fixing the Distributive Injustices of American Health Care

Article excerpt

When government does, occasionally, work, it works in an elitist fashion. That is, government is most easily manipulated by people who have money and power already. This is why government benefits usually go to people who don't need benefits from government. Government may make some environmental improvements, but these will be improvements for rich bird-watchers. And no one in government will remember that when poor people go bird-watching they do it at Kentucky Fried Chicken. (1)



It is unusual to find the words "social justice" in an article written by market-oriented policy scholars (MOPS) and startling to find those words in the first paragraph of that article. (2) MOPS generally use words like "efficiency" and "liberty," and spend most of their time cataloging the virtues of the invisible hand. "Social justice" is historically the province of the collectivist-oriented policy scholars (COPS), the political and ideological opposites of MOPS. COPS generally use words like "fairness" and "equality," and spend most of their time trying to deploy the visible hand (and invisible foot) of government. (3)

This market division between MOPS and COPS was neither inevitable nor desirable. Adam Smith may be the father of modern economics, but he held a chair in moral philosophy at the University of Glasgow. Smith's first book was titled The Theory of Moral Sentiments, (4) and he did not publish The Wealth of Nations until seventeen years later. (5) More recently, both Milton Friedman and Walter Williams have argued that the real comparative advantage of markets is not their efficiency and wealth-creation, but their promotion of individual autonomy and freedom. (6) Larry Summers has similarly suggested that "properly functioning markets are the best way to organize human activity" and "advocates of market-based solutions have nothing to concede at the moral level." (7)

Havighurst and Richman's brief against our current health-care system bridges this long-standing gap and offers an explicitly normative MOPS perspective on American health policy. However, their rhetoric goes well beyond the garden-variety normative into what can only be described as white-hot rhetorical territory: industry and other elites "manipulate people's thinking" and the system is "rigged against the true interests of the political majority." (8) This "systematic exploitation of the majority by affluent minorities" (9) is both an "injustice" of "breathtaking magnitude" (10) and an "extortion-like protection scheme." (11) The rhetoric is so inflammatory, I expected Havighurst and Richman to offer "Old Testament Wrath of Godtype" remedies as the necessary corrective to the injustices they identify. (12)

They don't. Indeed, Havighurst and Richman do not say much of anything about concrete reforms they want enacted, except by negative implication from the market failures they identify. Worse still, Havighurst and Richman say nothing at all about how to get there from here. Both are important failings. As Professor Ted Marmor has aptly observed, "the expected value of a policy option is ... its idealized results times the likelihood of achieving them." (13) Havighurst and Richman have plenty of company in ignoring the ways and means of policy, but even if they are right in every detail of their bill of particulars, their indictment is not going to have the intended effects (or, dare one say it, any effect whatsoever) without a concrete plan for implementation.

Accordingly, this article offers a "how to" guide for those interested in moving from diagnosis to treatment. Part II briefly recapitulates Havighurst and Richman's analysis. Part III offers tactics and logistics for implementing the policy reforms that one might pursue based on Havighurst and Richman's diagnosis. Part IV briefly addresses whether government or the private market should be in charge of Havighurst and Richman's brave new world of health policy. …

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