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The Supreme Court’S Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail R. Moncrieff

Law Faculty Articles and Essays

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 …