An American View: Federalism and Health Law
11 Pages Posted: 14 Sep 2008
Date Written: September 13, 2008
This essay is adapted from a talk presented at the symposium sponsored by the Institut Droit et Sante in Paris, celebrating the 50th anniversary of the Code de Sante Publique, the French national health law. The essay outlines differences in how the French and American legal systems approach regulation of health care. The starting point for analysis is the stark difference between the strong centralization of French national law and the federalist diffusion of legal authority in the United States. I argue that, despite the power of federalism, American health law is becoming more centralized through the operation of three forces: the convergence of state common law tort principles; the impact of federal funding programs, which indirectly regulate by the criteria they set for various actors; and the particularly strong role in health care of private sector governance organizations, such as JCAHO, which are also national in scope. The increasing development of a national market for various aspects of health care delivery will continue to create pressure for adoption of national laws.
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