The Supreme Court's Assault on Litigation: Why (and How) it Could Be Good for Health Law

60 Pages Posted: 4 Nov 2009 Last revised: 9 Jan 2011

See all articles by Abigail R. Moncrieff

Abigail R. Moncrieff

University of Texas at Austin School of Law

Date Written: November 4, 2009


In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least four important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in the four stories I consider is actually a trend of shifting regulatory authority from state judicial forums to federal executive forums, which is (I argue) a wise reallocation of authority for healthcare regulation. In all four stories, federal executive regulators are (and have been, throughout the stories’ timelines) poised to take over the regulatory job, but they have not yet done so. The Article urges completion of the shift - a consolidation of regulatory authority in the federal executive and a full disarming of state judicial enforcement power.

Keywords: health law, law and economics, litigation, tort, regulation, administrative law

Suggested Citation

Moncrieff, Abigail R., The Supreme Court's Assault on Litigation: Why (and How) it Could Be Good for Health Law (November 4, 2009). Boston University Law Review, Vol. 90, p. 2323, 2010, Available at SSRN:

Abigail R. Moncrieff (Contact Author)

University of Texas at Austin School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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