Health Law and Administrative Law: A Marriage Most Convenient
Timothy Stoltzfus Jost
Washington and Lee University - School of Law
Saint Louis Law Journal, Vol. 49, pp. 1-34, 2004
Washington & Lee Legal Studies Paper No. 2005-09
This symposium explores the complex relationship between health law and administrative law. It is based on the observation that these two fields of law are peculiarly intertwined. It attempts to understand why this is so, as well as whether it is necessary and whether it is desirable. Would we as a society, that is, be better off if health law were less permeated by administrative law? Even if we would be better off, is it indeed possible to extricate health law from administrative law? This essay begins by defining health law and administrative law. It then proceeds to describe the function of law, the institutions through which law is made and applied, and how law is made and applied in the health - care industry, demonstrating the prominent role of administrative entities in health care. It next examines why the close relationship between health law and administrative law exists. In particular, it considers and rejects the thesis that this close relationship is an artifact of history. The article goes on to develop an alternative hypothesis that administrative entities play a major role in overseeing the delivery and finance of health care because of the need for such oversight and the lack of superior institutional alternatives. This essay concludes by considering why this permeation of health law by administrative law is likely to continue, and why this may not be such a bad result.
Accepted Paper Series
Date posted: July 22, 2005
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