By Mark D. White

We have another call for papers from a conference in which I've proudly participated in the past (2014), this one on the subject of "Health Law as Private Law" presented by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. and to be held in late June 2023. From the conference description:

In the pursuit of public health and universal coverage, health law scholars have long focused on the role of government, and especially the federal government. Yet, whether it is health plan coverage of reproductive services or exclusions of gender affirming care, consumer medical debt or physician practice agreements, hospital mergers or private equity acquisitions, medical negligence waivers or informed consent violations – U.S. healthcare is also substantially governed by private relations, enforced by law. Is private law – the law circumscribing the relations between individuals and institutions – a pathology or a potential fix for the U.S. health care system? In what ways might private law be used as a catalyst for health care reform, separate from federal or state initiatives?

Since at least Kenneth Arrow’s Nobel Prize-winning work in economics, we have understood that there are clear market failures in health care, including agency problems, collective action problems, and information problems. Clarity on these problems can motivate reform. At the very least, understanding the limits of the private law approaches, including those imposed by legislation, regulation, and litigation – sheds light on the potential opportunities for structural reform.

This conference seeks to explore the intersection of private law and health care, especially regarding how private law can be a tool for achieving health care reform or addressing a significant health care or public health problem. Overall, this conference and subsequent book project seek to map out the challenges and opportunities of using private law and the tools it provides to govern and shape our health care system. Contributions that explore the interaction of government initiatives and regulatory reform with private law actions in the health care space are within the scope of this project as long as the contributions focus on the private law aspects.

More details, including suggested topics and submission details (one-page abstracts due October 17, 2022), can be found at the Petrie-Flom website.

By Mark D. White

Courtesy of Klaus Mathis, I'm pleased to present the call for papers for the tenth Law and Economics Conference at the University of Lucerne in Switzerland (in collaboration with the University of Notre Dame Law School), from March 17-18, 2023. This year's theme is one near and dear to this blogger's heart: Law and Economics of Justice: Efficiency, Reciprocity, Meritocracy. I participated in the conference in 2015 (on nudging) and it was one of my favorite conference experiences ever—I highly recommend it.

The call elaborates on the three subtopics:

Efficiency: Traditionally, the economic analysis of law was guided by the goal of efficiency. Economists usually define efficiency as Pareto efficiency or Kaldor-Hicks efficiency. Any change that puts one member of society in a better position without making somebody else worse off is a Pareto improvement. A change is a Kaldor-Hicks improvement if the gainers value their gains more than the losers their losses, whereby only hypothetical compensation is required. Efficiency as a normative goal is heavily contested. In particular, many authors see an antagonism between efficiency and distributive justice, which they qualify as the greatest socioeconomic goal conflict. Other authors view efficiency not as a goal itself but rather as an instrument to achieve social goals. In any case, the economic analysis of law has to differ between two steps: the positive analysis and the evaluation of the results by normative criteria.

Reciprocity: Economists have traditionally based their models on the self-interest hypothesis of the homo oeconomicus. In this model, an individual maximizes his own utility without showing altruistic or jealous behaviour. Behavioural economics calls into question the theorem of self-interest. Many people do, in fact, stray away from exclusively self-interested behaviour. There are also signs that the consideration of fairness and mutual benefits are important to bilateral negotiations and the functioning of markets. For example, in the ultimatum game, two players have to agree on the division of a fixed sum of money, with one player proposing the division and the other accepting or rejecting the division and with that the money for both players. Empirical evidence shows that offers with only a small share of the available sum are considered unfair and therefore rejected.

Meritocracy: The concept of meritocracy refers to a system, organization or society in which people are chosen and moved into positions of success, power and influence on the basis of their abilities and merits. This means that through hard work, an individual is able to climb the social ladder. Moreover, meritocracy directs the most talented people into the most functionally important positions and thereby enhances a society’s efficiency. However, the equalizing function of meritocracy has been criticized. Rather than reducing inequality, meritocracy is seen as the cause of racial, economic, and social inequality.

Submissions take the form of a short (1-2 pages) description of the topic and a short CV, and should be sent to Klaus Mathis ([email protected]) by September 30, 2022. Papers will be chosen by October 15, and draft papers are due February 28, 2023. (A conference volume is planned, and final papers will be expected soon after the conference.)

Accommodations are provided for the speakers courtesy of the conference, but they are responsible for arranging their own travel. (I remember the train ride from Zurich to Lucerne well—such breathtaking scenery!)

For complete details, please see the call for papers PDF here.

By Mark D. White

New from the University of Chicago Press is The Tragic Science: How Economists Cause Harm (Even as They Aspire to Do Good) by George DeMartino (University of Denver), the foremost expert in the professional ethics of the economics profession. (See, for instance, his wildly successful book The Economist's Oath as well as The Oxford Handbook of Professional Economic Ethics, co-edited with Deirdre McCloskey.)

From the publisher's blurb:

The practice of economics, as economists will tell you, is a powerful force for good. Economists are the guardians of the world’s economies and financial systems. The applications of economic theory can alleviate poverty, reduce disease, and promote sustainability.

While this narrative has been successfully propagated by economists, it belies a more challenging truth: economic interventions, including those economists deem successful, also cause harm. Sometimes the harm is manageable and short-lived. But just as often the harm is deep, enduring, and even irreparable. And too often the harm falls on those least able to survive it.

In The Tragic Science, George F. DeMartino says what economists have too long repressed: that economists do great harm even as they aspire to do good. Economist-induced harm, DeMartino shows, results in part from economists’ “irreparable ignorance”—from the fact that they know far less than they tend to believe they know—and from disciplinary training that treats the human tolls of economic policies and interventions as simply the costs of promoting social betterment. DeMartino details the complicated nature of economic harm, explores economists’ frequent failure to recognize it, and makes a sobering case for professional humility and for genuine respect for those who stand to be harmed by economists’ practice.

At a moment in history when the economics profession holds enormous power, DeMartino’s work demonstrates the downside of its influence and the responsibility facing those who practice the tragic science.