Procedural Triage

53 Pages Posted: 18 Jun 2015 Last revised: 12 Mar 2019

See all articles by Matthew B. Lawrence

Matthew B. Lawrence

Emory University School of Law; Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

Date Written: June 17, 2015

Abstract

Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, it introduces and demonstrates the usefulness of procedural triage.

This Article demonstrates the real world potential of procedural triage by showing how Medicare should use this new tool to address its looming administrative crisis. In the methodological tradition of Jerry Mashaw’s seminal studies of the Social Security Administration, this Article uses its in-depth study of Medicare to develop a theoretical framework that can be used to think through where and how other adjudicatory processes should engage in procedural triage. This Article concludes by applying this framework to survey other potential applications for procedural triage, from the Department of Veterans’ Affairs to the Federal Rules of Civil Procedure.

Keywords: Medicare, Procedural Justice, Behavioral Economics, Adjudication, Administrative Process, Civil Procedure

JEL Classification: K41

Suggested Citation

Lawrence, Matthew B., Procedural Triage (June 17, 2015). 84 Fordham Law Review 79 (2015), Available at SSRN: https://ssrn.com/abstract=2619864

Matthew B. Lawrence (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

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