Document Type

Article

Publication Date

2004

Abstract

Gerturde Stein complained of Oakland, "There is no there there." Churchill complained of his pudding that "it has no theme." And everybody complains of health law that it lacks an organizing principle. Health law scholars bemoan the "pathologies" of health law and its contradictory and competing "paradigms'. which form a "chaotic, dysfunctional patchwork." But it should not surprise us that any field which grows by accretion lacks a unifying idea or animating concern. And health law certainly grew by accretion. It began in the 1960s, when the Law-Medicine Center was established, concerned with medical proof in litigation, physicians' malpractice, and public-health regulation. During the 1970s, bioethics was taken into the fold. And in the 1980s, economic and regulatory topics gained prominence in the field. Health law, then, is more the creature of history than of systematic and conceptual organization. It looks hardly more cohesive than a "law of horses." As Judge Easterbrook once quipped about cyberlaw: "Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on 'The Law of the Horse' is doomed to be shallow and to miss unifying principles."


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