Faculty Sampler: From medical tourism to the system of the Constitution

A glimpse into new research by 5 HLS faculty

Global justice, medical tourism and the cruel ironies of care
Assistant Professor I. Glenn Cohen ’03

Harvard Medical

Credit: Andy Martin

“Medical tourism—the travel of patients who are residents of one country (the ‘home country’) to another country for medical treatment (the ‘destination country’)—represents a growing and important business. For example … in 2005, Bumrungrad International Hospital in Bangkok, Thailand, alone saw 400,000 foreign patients, 55,000 of whom were American (although these numbers are contested). By offering surgeries such as hip and heart valve replacements at savings of more than eighty percent from that which one would pay out of pocket in the United States, medical tourism has enabled underinsured and uninsured Americans to secure otherwise unaffordable health care. …

“While the growth of medical tourism has represented a boon (although not an unqualified one) for U.S. patients, what about the interests of those in the destination countries? From their perspective, medical tourism presents a host of cruel ironies. Vast medico-industrial complexes replete with the newest expensive technologies to provide comparatively wealthy medical tourists hip replacements and facelifts coexist with large swaths of the population dying from malaria, AIDS, and lack of basic sanitation and clean water. …

“How likely is medical tourism to produce negative consequences on health care access in less developed countries? If those effects occur, does the United States (or other Western countries or international bodies) have an obligation to discourage or regulate medical tourism to try to prevent such consequences? How might governments do so?

“I examine those questions in this article, the first in-depth treatment in the literature focusing on the normative question of home countries’ obligations.”

From “Medical Tourism, Access to Health Care, and Global Justice,” 52 Virginia Journal of International Law (November 2011) Read the entire article.

Cohen is co-director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at HLS.

A sea change in legal theory
Professor Jon D. Hanson

Harvard legal theory

Credit: Andy Martin

“As legal academics began to explore new fields, they soon encountered discoveries with far-reaching implications for law and legal theory. Indeed, while economists, lawmakers, and legal theorists were embracing the rational actor model (or the law’s reasonable person norm) in the late 20th century, social psychology, social cognition, cognitive neuroscience, and other mind sciences were demonstrating its flaws. …

“More specifically, researchers amassed a sizable and still burgeoning body of evidence showing that the commonsense presumption that a person’s behavior is the product of stable preferences … was based on an illusion or ‘attribution error.’ More than people’s disposition and conscious decision-making, mind scientists demonstrated that people’s situation—that is, hard-to-see forces within us (such as knowledge structures, subconscious motives, and implicit associations) and nonsalient forces outside of us—is shaping behavior and outcomes. The mind sciences turned commonsense legal theory on its head by recognizing ideology—construed broadly to include numerous internal influences outside the norm of reasoning—as foundational to human behavior and ‘reasoning’ as a potential façade behind which ideology operates.

“Looking back just a decade or two, we appear to be in the midst of a fundamental shift in the direction and trajectory of legal theory and the law itself. It is as if the legal world had been operating on geocentric assumptions and has only now begun to confront the heliocentric discoveries of modern astronomy. In projects ranging from modest to enormous in scope, legal theorists are increasingly attempting to grapple with a new way of understanding the world.”

From the introduction to “Ideology, Psychology, and Law,” edited by Hanson (Oxford University Press, November 2011)

Hanson directs the Project on Law and Mind Sciences at HLS and edits the award-winning blog The Situationist.

The role of international law in constitutional interpretation
Professor Vicki C. Jackson

Harvard Supreme Court

Credit: Andy Martin

“Should the United States seek to bring its constitutional law into harmony with that of a transnational community of nations? Should it resist efforts to do so as a matter of first principle, rejecting even the consideration of foreign or international sources as bearing on constitutional meaning? The first approach, a convergence posture, risks ignoring the singular and long history of the U.S. Constitution; the second, a posture of general resistance, would deny to our judges the many benefits of considering foreign and international law arising from constitutions, treaties, and human rights instruments to which the United States has contributed. Engagement offers important insights for constitutional adjudication, both from a deliberative perspective concerned with improving the decision-making of the U.S. Supreme Court, and from a relational perspective in accommodating and mediating the developing relationships among and between constitutional and supranational legal systems.

“[T]he U.S. Court and its justices have been involved in deliberative engagements with foreign and international law episodically over the course of our constitutional history, and in many of our most important constitutional decisions. It is thus emphatically not ‘foreign to our Constitution’ to engage with the constitutional approaches of other nations. And there is more reason in the twenty-first century to look to outside sources as an aid to interpretation than in the past, both because there are more transnational legal resources that bear on problems of constitutional interpretation in the United States and because the legitimacy of national states in the international community depends more than in the past on their adherence to transnational norms of democracy, the rule of law, and the protection of individual rights.”

From “Constitutional Engagement in a Transnational Era,” Chapter 4, P. 103 (Oxford University Press, 2010)

Jackson is a renowned contributor to the field of comparative constitutional law.

A more nuanced story
Professor Richard J. Lazarus ’79

Harvard Environment2

Credit: Andy Martin

“The Supreme Court has decided 17 cases arising under the National Environmental Policy Act (NEPA) and the government has not only won every case, but won them almost all unanimously. Commentators routinely cite the drubbing that environmentalists have received in NEPA cases as evidence of the Court’s hostility toward environmental law and environmentalism. But a close look at the cases, extending beyond what appears in the U.S. Reports, suggests a very different and more nuanced story. First, as revealed by the briefs and oral arguments of the advocates and by the papers documenting the internal deliberations of the Justices in those cases, the government’s ‘perfect record’ came at a significant cost: the Solicitor General abandoned lower court arguments and offered concessions about NEPA’s requirements. The Court’s rulings consequently frequently included language favorable to environmentalists in future litigation. Indeed, in some instances, the NEPA plaintiffs won more than they lost. Second, the NEPA cases underscore the difference that skilled advocacy makes on either side of the lectern: by the advocates before the Court and by the Justices during the Court’s own internal deliberations. The significance of a Court opinion turns on the particular wording of its reasoning far more than on whether it ends with an ‘affirmed’ or ‘reversed.’ And the better advocates before and within the Court are exceedingly effective at shaping that reasoning. In NEPA cases, the Solicitor General has generally outlitigated NEPA plaintiffs and within the Court, no Justice was more influential than Justice, later Chief Justice William Rehnquist.”

From an article tentatively titled “The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains”

Lazarus, a preeminent expert in environmental law and Supreme Court litigation, has argued 40 cases before the Court.

A system of systems
Professor Adrian Vermeule ’93

Harvard systems2

Credit: Andy Martin

“This book attempts to trace out the ultimate implications of a single premise: any complex constitutional order, including our own, is best understood as a system of systems. Constitutional analysis examines the interaction among institutions, which are themselves equilibrium arrangements that result from the interaction of their individual members. So there are always two levels of aggregation in the picture: from individuals to institutions, and from institutions to an overall constitutional order. I use the term systems to designate such aggregates, whose properties are determined by the interaction of their components; those components may themselves be institutions as well as individuals. Hence constitutional orders are aggregates of aggregates—nested systems of systems.

“These ideas draw upon a loosely related family of approaches called systems theory, variants of which can be found in fields as distant as computer science, biology, engineering, sociology, management, and organization theory. Political scientists have made some use of systems theory, but legal applications are few and far between. A premise of the book is that systems theory, interpreted in pragmatic terms, is a natural and fitting tool for legal theory in general and constitutional theory in particular. Because legal systems arise from the interaction of institutions, which themselves arise in turn from the interaction of individuals, systems theory asks questions from which legal and constitutional theory can profit.”

From the introduction to “The System of the Constitution” (Oxford University Press, forthcoming December 2011)

Vermeule, a leading public law scholar, recently co-wrote “The Executive Unbound” with Eric Posner ’91 (Oxford University Press, 2011).