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This chapter explores this last possibility but discounts the role federalism plays in forcing private ordering. Courts have generally proved unreceptive to arguments that the federal government lacks power to regulate the practice of medicine. Even if courts were receptive to such arguments, federalism merely divides responsibilities between federal public ordering and state public ordering; it is agnostic on whether private ordering is superior to both those alternatives. Federalism thus cannot explain the outsized role private ordering plays in health care. This chapter focuses instead on constitutional speech protections, which bind the federal and state governments alike and which leave room for private actors to oversee medical speech and information flows in ways public agencies cannot do.

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2 - Private Ordering Is Ubiquitous in Health Care, but Why?

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2 - Private Ordering Is Ubiquitous in Health Care, but Why?

Summary