Robert Wood Johnson Foundation. I When most people think of Kartell, they recall Justice Breyer's... more Robert Wood Johnson Foundation. I When most people think of Kartell, they recall Justice Breyer's opinion when he sat on the First Circuit. That decision, however, came at the end of a seven-year legal battle. The district court originally dismissed the complaint in light of the state action doctrine. Kartell v. Blue Shield, 1979-1 Trade Cas. (CCH) 62,480 (D. Mass. 1978) (KartellI). That decision was reversed by the First Circuit with instructions to abstain from exercising federal jurisdiction until a parallel state court suit was resolved. Kartell v. Blue Shield, 592 F.2d 1191 (1st Cir. 1979) (Kartell II). The federal district court ultimately certified the state statutory questions to the SupremeJudicial Court of Massachusetts for its determination. Kartell v. Blue Shield, 425 N.E. 2d 313 (Mass. 1981) (Kartellll). Based on the state court's ruling, Blue Shield received summary judgment under the state action doctrine on all alleged anticompetitive conduct with the one exception of its prohibition against balance billing. Kartell v. Blue Shield, 542 F. Supp. 782 (D. Mass. 1982) (Kartell V). The First Circuit declined to review the district court's refusal to permit plaintiffs to amend their complaint after it permitted the Massachusetts Medical Society to intervene in the law suit. Kartell v. Blue Shield, 687 F.2d 543 (lst Cir. 1982) (Katell V). After trial, the district court held that Blue Shield's ban on balance billing violated Section 1 of the
Antitrust law represents the principal legal tool that the United States employs to police privat... more Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports the results of a comprehensive empirical review of judicial opinions in health care antitrust litigation between 1985 and 1999, with specific attention to courts' handling of quality and other nonprice concerns. Professors Hammer and Sage conclude that, although antitrust law cannot be expected to serve as the sole oversight mechanism for industries as complex and quality dependent as health care, courts have been successful incorporating some nonprice factors into antitrust analysis.
Wayne State University Law School 471 W. Palmer Avenue DETROIT, MICHIGAN 48202 Peter J. Hammer Pr... more Wayne State University Law School 471 W. Palmer Avenue DETROIT, MICHIGAN 48202 Peter J. Hammer Professor of Law Office: (313) 577-0830 [email protected] September 1, 2014 The Honorable Stephen W. Rhodes United States Bankruptcy Court Eastern District of Michigan 211 West Fort Street Detroit, Michigan 48226 Dear Judge Rhodes: In response to your Order Regarding the Solicitation of Applications to Serve as the Court's Expert Witness on the Issue of Feasibility (April 2, 2014), 1 submitted my name for consideration. You were generous enough to include me in the final list of candidates interviewed in open court. In my application and interview, I raised a number of methodological concerns about the types of analyses and qualifications required to make a meaningful assessment of 1) the reasonableness of the assumptions that underlie the City's cash flow forecasts and projections and 2) the feasibility of the City's Plan of Adjustment (POA). (1) I was particularly concerned t...
HEALTH EVOLUTION so lacking in intra-system rationality or coherence that it fails to satisfy the... more HEALTH EVOLUTION so lacking in intra-system rationality or coherence that it fails to satisfy the basic characteristics of a unified system. 2 Moreover, if one imagines how the health care "system" interacts with other systems from a general equilibrium perspective, such as the food system, the job system, the education system, the environmental system and the housing system, one finds a comparable story of inter-system irrationality. Biomedical understandings of health stand in isolation from the broader social and economic determinants of health. The biomedical health care system does not even interface effectively with the public health "system," such that there is one. These failures are so well established that they need only be briefly outlined here.
This book has been part of a personal pilgrimage. In 1993, I traveled to Cambodia for the first t... more This book has been part of a personal pilgrimage. In 1993, I traveled to Cambodia for the first time with the International Human Rights Law Group to monitor national elections run by the United Nations Transition Authority for Cambodia (UNTAC). For the rest of the decade, I was involved with various Cambodian projects under the rubric of "Law & Development"-first the Cambodian Defender's Project, later Legal Aid of Cambodia, and finally founding and directing of the Program for Cambodian Law & Development at the University of Michigan Law School. This work was similar to other projects taking place across the globe in so-called transition countries. While there was discussion in Cambodia about the appropriate blend of civil (French) and common law (English/American) traditions, the template we were working from was clearly a Western legal template. We were seeking to enforce rights and breathe life into the paper institutions created by Cambodia's new Constitution; a document that itself was modeled after contemporary best Western practices for establishing free markets and an open liberal democracy. The year 1993 also marked the beginning of what would be an 11-year accession process for Cambodia to become a member of the World Trade Organization (WTO). In the summer of 2003, I found myself back in Cambodia. I had burned out on the near-impossible and perhaps ill-conceived venture of Law & Development. I was transitioning between academic positions and starting a new research agenda focusing on international public health and economic development. When not in the field, I spent most of my time on an old riverboat moored on the Tonle Sap River. The riverboat had its own interesting history, having previously served as a nightspot, dance hall, and brothel. It was now the headquarters of the Cambodian operations of an International Nongovernmental Organization (INGO), whose generous director let me share desk space and intermittent internet access. The boat was a whirl of activity. It was home to a wonderful union of sex workers, proudly organizing under a banner that declared "Sex Work is Work." As a lawyer, they looked to me to advise them about their "rights," but what do legal rights mean when one of the greatest sources vi
HEALTH EVOLUTION so lacking in intra-system rationality or coherence that it fails to satisfy the... more HEALTH EVOLUTION so lacking in intra-system rationality or coherence that it fails to satisfy the basic characteristics of a unified system. 2 Moreover, if one imagines how the health care "system" interacts with other systems from a general equilibrium perspective, such as the food system, the job system, the education system, the environmental system and the housing system, one finds a comparable story of inter-system irrationality. Biomedical understandings of health stand in isolation from the broader social and economic determinants of health. The biomedical health care system does not even interface effectively with the public health "system," such that there is one. These failures are so well established that they need only be briefly outlined here. A. General lndictment of Health Care: Cost, Quality and Access The iron triangle of cost, quality and access provides a standard means of evaluating health system performance. Boldly stated, the American system fails with regard to each measure. It costs too much. We get too little and we exclude too many. The Commonwealth Fund has produced a number of comparative studies of Organization for Economic Cooperation and Development (OECD) countries in terms of health care costs and outcomes: Health care spending in the U.S. in 2008 towered over the comparison countries, both per capita and as a percentage of gross domestic product (GDP).. .. With regard to quality, U.S. performance on a limited set of measures was 2013).
Presidency (1968-81). 4 SAPs were macro-level economic reforms designed to minimize the role of t... more Presidency (1968-81). 4 SAPs were macro-level economic reforms designed to minimize the role of the state and maximize the role of private markets in developing countries. 5 In almost whispered, conspiratorial tones, SAPs were associated with the AWashington Consensus@ and ANeo-Liberalism.@ 6 Regardless of the label, SAPs were an unmitigated public relations disaster, 7 triggering a global backlash against the Bank and throwing it into a state of internal crisis and drift. 8 Just when the Bank was ready to celebrate its fiftieth anniversary in 1994, it was facing opposition campaigns calling for its elimination, the slogan 4 See generally, ROBERT L. AYRES, BANKING ON THE POOR: THE WORLD BANK AND WORLD POVERTY (1983) (evaluating the Bank=s policies during the McNamara years).
Everyone knows that what happened in Flint is connected to race, but we lack the necessary framew... more Everyone knows that what happened in Flint is connected to race, but we lack the necessary frameworks to fully understand the multiple ways that race and racism contributed to the Flint Water Crisis. This article introduces the notion of Strategic–Structural racism, the manipulation of the forces of intentional racism, structural racism and unconscious bias for economic or political gain. This construct is applied to critical aspects of the Flint Water Crisis: the imposition of emergency management, the approval of the Karegnondi Water Authority (KWA) pipeline, the decision to use the Flint River as an interim source of drinking water and how municipal finance rules were manipulated to obtain financing for the KWA pipeline but not to fund necessary upgrades to the Flint Water Treatment Plant (WTP). Tragically, the strategic racism embedded in the KWA approval process created an environment of denial, cover-up and complicity as aspects of the public health crisis began to emerge.
Hospital mergers challenge basic assumptions about the effects of market power in the health care... more Hospital mergers challenge basic assumptions about the effects of market power in the health care industry. Antitrust courts have struggled with claims that hospital mergers may in fact reduce costs and lower prices. This Article assesses the validity of these economic claims in the context of an industry that has undergone radical transformations in recent years. The Article also explores how such arguments should be treated as a matter of antitrust doctrine in an area of the law that relies heavily on market share presumptions and rule-based decision making. The Article contends that courts should employ a total welfare standard of merger review and attempt to directly assess the value of non-price competition. The Article further argues that courts should avoid focusing exclusively on consumer surplus and should reject hospital overtures to entertain a variety of non-economic justifications for merger.
As American health care moves from a professionally dominated to a marketdominated model, concern... more As American health care moves from a professionally dominated to a marketdominated model, concerns have been voiced that competition, once unleashed, will focus on price to the detriment of quality. Although quality has been extensively analyzed in health services research, the role of quality in competition policy has not been elucidated. While economists may theorize about non-price competition, courts in antitrust cases often follow simpler models of competition based on price and output, either ignoring quality as a competitive dimension or assuming that it will occur in tandem with price competition. This unsystematic approach is inadequate for the formulation of policy in the health care industry, where quality is a central concern of both consumers and society. Instead, courts need a framework with which to analyze the implications for quality of various market structures and to understand the welfare implications of proposed market changes. A competition policy would seek to evaluate the potential for private markets to protect and improve quality in the health care system. This Article describes the present role of antitrust law in medical markets, explores the issues that would be confronted in developing a competition policy and outlines a research agenda that would begin to accomplish that task.
Diligent reader, in this work, which has just been created and published, you have the motions of... more Diligent reader, in this work, which has just been created and published, you have the motions of the fixed stars and planets, as these motions have been reconstituted on the basis of ancient as well as recent observations, and have moreover been embellished by new and marvelous hypotheses. You also have most convenient tables, from which you will be able to compute those motions with the utmost ease for any time whatever. Therefore buy, read, and enjoy [this work].
Contemporary Sociology: A Journal of Reviews, 2006
Page 1. KENNETH ARROW AND THE CHANGING ECONOMICS OF HEALTH CARE Peter J. Hammer. ... Page 6. n CO... more Page 1. KENNETH ARROW AND THE CHANGING ECONOMICS OF HEALTH CARE Peter J. Hammer. ... Page 6. n CONTENTS Foreword Mark V. Pauly vii Preface Victor R. Fuchs xiiiKenneth Arrow and the Changing Economics of Health Care: ''Why Arrow? ...
Robert Wood Johnson Foundation. I When most people think of Kartell, they recall Justice Breyer's... more Robert Wood Johnson Foundation. I When most people think of Kartell, they recall Justice Breyer's opinion when he sat on the First Circuit. That decision, however, came at the end of a seven-year legal battle. The district court originally dismissed the complaint in light of the state action doctrine. Kartell v. Blue Shield, 1979-1 Trade Cas. (CCH) 62,480 (D. Mass. 1978) (KartellI). That decision was reversed by the First Circuit with instructions to abstain from exercising federal jurisdiction until a parallel state court suit was resolved. Kartell v. Blue Shield, 592 F.2d 1191 (1st Cir. 1979) (Kartell II). The federal district court ultimately certified the state statutory questions to the SupremeJudicial Court of Massachusetts for its determination. Kartell v. Blue Shield, 425 N.E. 2d 313 (Mass. 1981) (Kartellll). Based on the state court's ruling, Blue Shield received summary judgment under the state action doctrine on all alleged anticompetitive conduct with the one exception of its prohibition against balance billing. Kartell v. Blue Shield, 542 F. Supp. 782 (D. Mass. 1982) (Kartell V). The First Circuit declined to review the district court's refusal to permit plaintiffs to amend their complaint after it permitted the Massachusetts Medical Society to intervene in the law suit. Kartell v. Blue Shield, 687 F.2d 543 (lst Cir. 1982) (Katell V). After trial, the district court held that Blue Shield's ban on balance billing violated Section 1 of the
Antitrust law represents the principal legal tool that the United States employs to police privat... more Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports the results of a comprehensive empirical review of judicial opinions in health care antitrust litigation between 1985 and 1999, with specific attention to courts' handling of quality and other nonprice concerns. Professors Hammer and Sage conclude that, although antitrust law cannot be expected to serve as the sole oversight mechanism for industries as complex and quality dependent as health care, courts have been successful incorporating some nonprice factors into antitrust analysis.
Wayne State University Law School 471 W. Palmer Avenue DETROIT, MICHIGAN 48202 Peter J. Hammer Pr... more Wayne State University Law School 471 W. Palmer Avenue DETROIT, MICHIGAN 48202 Peter J. Hammer Professor of Law Office: (313) 577-0830 [email protected] September 1, 2014 The Honorable Stephen W. Rhodes United States Bankruptcy Court Eastern District of Michigan 211 West Fort Street Detroit, Michigan 48226 Dear Judge Rhodes: In response to your Order Regarding the Solicitation of Applications to Serve as the Court's Expert Witness on the Issue of Feasibility (April 2, 2014), 1 submitted my name for consideration. You were generous enough to include me in the final list of candidates interviewed in open court. In my application and interview, I raised a number of methodological concerns about the types of analyses and qualifications required to make a meaningful assessment of 1) the reasonableness of the assumptions that underlie the City's cash flow forecasts and projections and 2) the feasibility of the City's Plan of Adjustment (POA). (1) I was particularly concerned t...
HEALTH EVOLUTION so lacking in intra-system rationality or coherence that it fails to satisfy the... more HEALTH EVOLUTION so lacking in intra-system rationality or coherence that it fails to satisfy the basic characteristics of a unified system. 2 Moreover, if one imagines how the health care "system" interacts with other systems from a general equilibrium perspective, such as the food system, the job system, the education system, the environmental system and the housing system, one finds a comparable story of inter-system irrationality. Biomedical understandings of health stand in isolation from the broader social and economic determinants of health. The biomedical health care system does not even interface effectively with the public health "system," such that there is one. These failures are so well established that they need only be briefly outlined here.
This book has been part of a personal pilgrimage. In 1993, I traveled to Cambodia for the first t... more This book has been part of a personal pilgrimage. In 1993, I traveled to Cambodia for the first time with the International Human Rights Law Group to monitor national elections run by the United Nations Transition Authority for Cambodia (UNTAC). For the rest of the decade, I was involved with various Cambodian projects under the rubric of "Law & Development"-first the Cambodian Defender's Project, later Legal Aid of Cambodia, and finally founding and directing of the Program for Cambodian Law & Development at the University of Michigan Law School. This work was similar to other projects taking place across the globe in so-called transition countries. While there was discussion in Cambodia about the appropriate blend of civil (French) and common law (English/American) traditions, the template we were working from was clearly a Western legal template. We were seeking to enforce rights and breathe life into the paper institutions created by Cambodia's new Constitution; a document that itself was modeled after contemporary best Western practices for establishing free markets and an open liberal democracy. The year 1993 also marked the beginning of what would be an 11-year accession process for Cambodia to become a member of the World Trade Organization (WTO). In the summer of 2003, I found myself back in Cambodia. I had burned out on the near-impossible and perhaps ill-conceived venture of Law & Development. I was transitioning between academic positions and starting a new research agenda focusing on international public health and economic development. When not in the field, I spent most of my time on an old riverboat moored on the Tonle Sap River. The riverboat had its own interesting history, having previously served as a nightspot, dance hall, and brothel. It was now the headquarters of the Cambodian operations of an International Nongovernmental Organization (INGO), whose generous director let me share desk space and intermittent internet access. The boat was a whirl of activity. It was home to a wonderful union of sex workers, proudly organizing under a banner that declared "Sex Work is Work." As a lawyer, they looked to me to advise them about their "rights," but what do legal rights mean when one of the greatest sources vi
HEALTH EVOLUTION so lacking in intra-system rationality or coherence that it fails to satisfy the... more HEALTH EVOLUTION so lacking in intra-system rationality or coherence that it fails to satisfy the basic characteristics of a unified system. 2 Moreover, if one imagines how the health care "system" interacts with other systems from a general equilibrium perspective, such as the food system, the job system, the education system, the environmental system and the housing system, one finds a comparable story of inter-system irrationality. Biomedical understandings of health stand in isolation from the broader social and economic determinants of health. The biomedical health care system does not even interface effectively with the public health "system," such that there is one. These failures are so well established that they need only be briefly outlined here. A. General lndictment of Health Care: Cost, Quality and Access The iron triangle of cost, quality and access provides a standard means of evaluating health system performance. Boldly stated, the American system fails with regard to each measure. It costs too much. We get too little and we exclude too many. The Commonwealth Fund has produced a number of comparative studies of Organization for Economic Cooperation and Development (OECD) countries in terms of health care costs and outcomes: Health care spending in the U.S. in 2008 towered over the comparison countries, both per capita and as a percentage of gross domestic product (GDP).. .. With regard to quality, U.S. performance on a limited set of measures was 2013).
Presidency (1968-81). 4 SAPs were macro-level economic reforms designed to minimize the role of t... more Presidency (1968-81). 4 SAPs were macro-level economic reforms designed to minimize the role of the state and maximize the role of private markets in developing countries. 5 In almost whispered, conspiratorial tones, SAPs were associated with the AWashington Consensus@ and ANeo-Liberalism.@ 6 Regardless of the label, SAPs were an unmitigated public relations disaster, 7 triggering a global backlash against the Bank and throwing it into a state of internal crisis and drift. 8 Just when the Bank was ready to celebrate its fiftieth anniversary in 1994, it was facing opposition campaigns calling for its elimination, the slogan 4 See generally, ROBERT L. AYRES, BANKING ON THE POOR: THE WORLD BANK AND WORLD POVERTY (1983) (evaluating the Bank=s policies during the McNamara years).
Everyone knows that what happened in Flint is connected to race, but we lack the necessary framew... more Everyone knows that what happened in Flint is connected to race, but we lack the necessary frameworks to fully understand the multiple ways that race and racism contributed to the Flint Water Crisis. This article introduces the notion of Strategic–Structural racism, the manipulation of the forces of intentional racism, structural racism and unconscious bias for economic or political gain. This construct is applied to critical aspects of the Flint Water Crisis: the imposition of emergency management, the approval of the Karegnondi Water Authority (KWA) pipeline, the decision to use the Flint River as an interim source of drinking water and how municipal finance rules were manipulated to obtain financing for the KWA pipeline but not to fund necessary upgrades to the Flint Water Treatment Plant (WTP). Tragically, the strategic racism embedded in the KWA approval process created an environment of denial, cover-up and complicity as aspects of the public health crisis began to emerge.
Hospital mergers challenge basic assumptions about the effects of market power in the health care... more Hospital mergers challenge basic assumptions about the effects of market power in the health care industry. Antitrust courts have struggled with claims that hospital mergers may in fact reduce costs and lower prices. This Article assesses the validity of these economic claims in the context of an industry that has undergone radical transformations in recent years. The Article also explores how such arguments should be treated as a matter of antitrust doctrine in an area of the law that relies heavily on market share presumptions and rule-based decision making. The Article contends that courts should employ a total welfare standard of merger review and attempt to directly assess the value of non-price competition. The Article further argues that courts should avoid focusing exclusively on consumer surplus and should reject hospital overtures to entertain a variety of non-economic justifications for merger.
As American health care moves from a professionally dominated to a marketdominated model, concern... more As American health care moves from a professionally dominated to a marketdominated model, concerns have been voiced that competition, once unleashed, will focus on price to the detriment of quality. Although quality has been extensively analyzed in health services research, the role of quality in competition policy has not been elucidated. While economists may theorize about non-price competition, courts in antitrust cases often follow simpler models of competition based on price and output, either ignoring quality as a competitive dimension or assuming that it will occur in tandem with price competition. This unsystematic approach is inadequate for the formulation of policy in the health care industry, where quality is a central concern of both consumers and society. Instead, courts need a framework with which to analyze the implications for quality of various market structures and to understand the welfare implications of proposed market changes. A competition policy would seek to evaluate the potential for private markets to protect and improve quality in the health care system. This Article describes the present role of antitrust law in medical markets, explores the issues that would be confronted in developing a competition policy and outlines a research agenda that would begin to accomplish that task.
Diligent reader, in this work, which has just been created and published, you have the motions of... more Diligent reader, in this work, which has just been created and published, you have the motions of the fixed stars and planets, as these motions have been reconstituted on the basis of ancient as well as recent observations, and have moreover been embellished by new and marvelous hypotheses. You also have most convenient tables, from which you will be able to compute those motions with the utmost ease for any time whatever. Therefore buy, read, and enjoy [this work].
Contemporary Sociology: A Journal of Reviews, 2006
Page 1. KENNETH ARROW AND THE CHANGING ECONOMICS OF HEALTH CARE Peter J. Hammer. ... Page 6. n CO... more Page 1. KENNETH ARROW AND THE CHANGING ECONOMICS OF HEALTH CARE Peter J. Hammer. ... Page 6. n CONTENTS Foreword Mark V. Pauly vii Preface Victor R. Fuchs xiiiKenneth Arrow and the Changing Economics of Health Care: ''Why Arrow? ...
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