Academic

Ruger on the Coherenece of Health Law

By Lawrence Solum

Theodore Ruger (University of Pennsylvania Law School) has posted Health Law's Coherence Anxiety (Georgetown Law Journal, Vol. 96, pp. 625-648, 2008) on SSRN. Here is the abstract:

Academic health law is often said to suffer from a law of the horse problem, or, more particularly, to lack various dimensions of theoretical coherence. In conventional legal academic discourse, the coherence ideal prioritizes a cluster of attributes, all of which health law lacks: sparse conceptual singularity, a reductionist focus on particular legal forms, institutional centralization, and historical determinism and orderly development of a legal field. Health law is a singularly poor fit with this traditional model of field coherence. It is a mishmash of various legal forms, applied by divergent and often colliding institutions, and has developed much more often through external pressures and even historical accidents than from any determinate internal evolution or refinement. This alleged theoretical deficiency has troubled many of the academy's leading health law scholars, who have endeavored to identify one or more foundational principles around which to center and unify the field.

This essay argues that the quest for classical coherence as applied to health law is both quixotic and misplaced. Not all legal fields cohere to the same degree, or fit within the same off-the-rack conception of coherence. To a great extent the standard paradigm of field coherence, and the organization of the twentieth-century legal academy itself, reflect contested historical choices that ought not be applied uncritically to developing fields of study. Moreover, the very attributes that cause health law to flunk the classical coherence standard themselves represent fruitful avenues of scholarly focus. For instance, the fact that health law coheres not around reducible elements of legal form but rather around a set of primary interests and relationships protected by an inconsistent jumble of law invites close theoretical inspection of those foundational interests themselves. That such interests are protected and mediated by multiple and occasionally conflicting institutions is a feature that itself is partially field-defining and opens up promising avenues for comparative analysis from both theoretical and empirical perspectives. Finally, the fact that health law is a creature of history - and a history that is contested, uncertain, and nonlinear in its development over time - ought to invigorate rather than demoralize scholarship, inviting the kind of complex interdisciplinary study of legal change that has lately brought fresh insight to other fields such as constitutional law and torts. In sum, the dimensions of health law that distance it from the classical coherence paradigm - its mix of legal forms, its institutional multiplicity, its permeability to external political pressures and change over time - are themselves generalizable features worthy of detailed scholarly examination.

Full post as published by Legal Theory Blog on May 05, 2008 (boomark / email).