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Boston University Law Review


Medicaid, employer-sponsored insurance, medical devices, medical malpractice


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, although certainly not limited to health law, has had a significant impact on the field; the Court's decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped non-economic and punitive damages for medical malpractice litigation, weakening the tort system's deterrent capacity in those states. This Article suggests that the trend of eliminating private rights of action should be evaluated not as an elimination of legal enforcement (and creation of a "regulatory vacuum") but rather as a shift of regulatory authority from state judicial forums to federal executive forums. The Article then argues that such a shift might be a wise one for healthcare, given the particular market failures that justify the regulatory intervention. In all four stories, federal executive regulators are poised to take over the regulatory job, and federal executive regulators have the capacity to do a better job than courts. The Article therefore urges completion rather than reversal of the reallocation—a consolidation of regulatory authority in the federal executive and a further disarming of state judicial enforcement power.