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June 23, 2023, 9am-5pm

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The 2023 Petrie-Flom Center Annual Conference: Health Law as Private Law will be a closed writers’ workshop. We invite public attendees to join the event virtually through a livestream of the workshop day. Register now to keep up to date with the event and receive livestream information.

Conference Description

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is pleased to announce plans for our 2023 annual conference: “Health Law as Private Law.” This year’s conference is organized in collaboration with Wendy Netter Epstein, Professor of Law and Associate Dean of Research and Faculty Professional Development at DePaul University College of Law and Visiting Professor at Arizona Law, and Christopher Robertson, N. Neal Pike Scholar and Professor of Law at Boston University School of Law.

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.

Agenda

9-9:15am, Welcome Remarks

  • I. Glenn Cohen, Petrie-Flom Center Faculty Director, James A. Attwood and Leslie Williams Professor of Law, and Deputy Dean, Harvard Law School
  • Wendy Netter Epstein, Professor of Law and Associate Dean of Research and Faculty Professional Development, DePaul University College of Law
  • Christopher Robertson, N. Neal Pike Scholar and Professor of Law, Boston University School of Law
  • Carmel Shachar, Executive Director, The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School

9:15-10:15am, Panel One: Theory and Structure

  • Moderator: David Rosenberg, Lee S. Kreindler Professor of Law, Emeritus, Harvard Law School
  • Enrique Santamaria, Postdoctoral researcher and project coordinator, Rebalancing Public & Private Interests, Department of Law and Markets, Erasmus School of Law - Advancing The Right to Health: Private Law-Based Models for The Construction of Commons on Health Data, Human Biological Materials and Scientific Knowledge
  • Lauren Roth, Assistant Professor of Law, Touro Law Center - Abandoning Fiduciaries in Favor of Naked Self-Interest in Health Care
  • William Sage, Professor of Law, Texas A&M University - Public Funds, Public Functions, Private Actors:  The Cognitive Dissonance of US Health Law

10:15-11:35am, Panel Two: Innovation and Institutions

  • Moderator: Carmel Shachar, Executive Director, The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School
  • Rebecca Wolitz, Assistant Professor of Law, Moritz College of Law, The Ohio State University - Shareholder Resolutions and Access to Medications
  • Ximena Benavides, Lecturer & Postdoctoral Associate EP&E, Yale Department of Political Science, Affiliated Faculty, Yale Institute of Global Health, and Resident Fellow, Information Society Project, Yale Law School - The Need for Health Equity-Driven CROs: A Stakeholderism Approach to Biopharmaceutical Innovation
  • Barry Furrow, Professor of Law and Director, Health Law Program, Drexel University Kline School of Law - The Hollowed-Out American Nursing Home: Using Private Law to Police Poor Quality and Expand Owner Responsibilities
  • Megan Wright, Associate Professor, Penn State Law, Assistant Professor, Department of Humanities, Penn State College of Medicine, Assistant Professor, Department of Public Health Sciences, Penn State College of Medicine, Affiliate Faculty, Department of Sociology & Criminology, The Pennsylvania State University, and Affiliate Faculty, Rock Ethics Institute, The Pennsylvania State University; and Cindy Cain, Associate Professor, Department of Sociology, University of Alabama at Birmingham - Healthcare Organization Policies about the California End of Life Option Act: The Paper Victory of the Medical Aid in Dying Movement

11:35-11:45am, Break

11:45am-12:45pm, Panel Three: Costs and Financing 

  • Moderator: Christopher Robertson, N. Neal Pike Scholar and Professor of Law, Boston University School of Law

  • Erin Fuse Brown, Catherine C. Henson Professor of Law, Director, Center for Law, Health & Society, Georgia State University College of Law - Federalism, Private Law, and Medical Debt—The Role of State Private Law in Consumer Protections Against Medical Debt

  • James Toomey, Assistant Professor of Law, Elisabeth Haub School of Law at Pace University - Juries and “Reasonable” Healthcare Prices - How the Common Law Can Legitimately Restrain Balance Billing

  • Jackson Williams, Vice President, Public Policy, Dialysis Patient Citizens - Health Law’s Sheathed Sword: Why Hasn’t Civil Litigation Dented Health Care Costs?

12:45-1:45pm, Lunch

1:45-3:25pm, Panel Four: Reproductive Care

  • Moderator: I. Glenn Cohen, Petrie-Flom Center Faculty Director, James A. Attwood and Leslie Williams Professor of Law, and Deputy Dean, Harvard Law School
  • Barbara Evans, Professor of Law and Stephen C. O’Connell Chair, University of Florida Levin, College of Law; Professor of Engineering, University of Florida Wertheim College of Engineering - Does ERISA protect private ordering of out-of-state abortion access by employer-sponsored health plans in the post-Dobbs era?
  • Elizabeth McCuskey, Professor, Boston University School of Public Health, Boston University School of Law; and Valarie K. Blake, Associate Dean for Faculty Development and Research Professor of Law, West Virginia University College of Law - Employer-Sponsored Reproduction: Employee Benefit Plans as Gatekeepers of Access to Reproductive Care
  • Myrisha Lewis, Associate Professor, William & Mary Law School - Insurance Coverage as a Complement To or Substitute For Direct Governmental Reproductive Regulation
  • Asees Bhasin, Law and Policy Fellow at the Center for Antiracist Research, Boston University - Business Responses to Dobbs: The Return to a “Reproductive Rights” Approach, and Suspicions Around Corporate Care
  • Thomas Williams, Assistant Professor of Law, American University, Washington College of Law - Privatizing Equity: FemTech as a Market Based Solution Private Ordering in Maternal Health Care

3:25-3:40pm, Break

3:40-5pm, Panel Five: Contracts and Torts

  • Moderator: Wendy Netter Epstein, Professor of Law and Associate Dean of Research and Faculty Professional Development, DePaul University College of Law
  • Craig Konnoth, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law - Data Transparency, ERISA Preemption, and Freedom of Contract
  • Christine Monahan, Assistant Research Professor, Center on Health Insurance Reforms, Georgetown University’s McCourt School of Public Policy; Maanasa Kona, Assistant Research Professor, Center on Health Insurance Reforms, Georgetown University’s McCourt School of Public Policy; and Madeline O’Brien, Research Fellow, Center on Health Insurance Reforms, Georgetown University’s McCourt School of Public Policy - The State as Contractor: Driving Health Care Reform Through State Purchasing Powers
  • Mark Hall, Professor of Law and Public Health, Wake Forest University - Tort Law’s Responses to Changes in Health Care Finance and Delivery
  • Jill Horwitz, David Sanders Professorship in Law & Medicine, UCLA Law School; Dan Rodriguez, Harold Washington Professor, Northwestern University Pritzker School of Law; and Alberto De Diego Carreras, UCLA Law School - COVID-19 and Tort Law’s Limits

5-5:15pm, Closing remarks

  • I. Glenn Cohen, Petrie-Flom Center Faculty Director, James A. Attwood and Leslie Williams Professor of Law, and Deputy Dean, Harvard Law School
  • Wendy Netter Epstein, Professor of Law and Associate Dean of Research and Faculty Professional Development, DePaul University College of Law
  • Christopher Robertson, N. Neal Pike Scholar and Professor of Law, Boston University School of Law
  • Carmel Shachar, Executive Director, The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School

Video

PLAYLIST: 2023 Petrie-Flom Center Annual Conference: Health Law as Private Law

Tags

bioethics   biotechnology   health information technology   health law policy   public health   regulation