Oct 6, 2026 Christina S. Ho
Gabriel Scheffler, Affordable Care Act Retrenchment, 102 Ind. L. J.___ (forthcoming, 2026), available at SSRN (July 15, 2026).
Even as the horrors of the Trump Administration mount to benumbing proportions, I’d wager we can still recall the gut punch that was the “The One Big Beautiful Act (OBBBA)” which Trump signed it into law last July 4. More properly known as H.R.1, this vehicle was the behemoth reconciliation package that contained the signature items of the early Trump agenda. The size of the omnibus makes it hard to describe fully, but media accounts typically highlight a few characteristic contours: OBBBA spent lavishly on tax cuts from Trump I’s Tax Cuts and Jobs Act of 2017 and on immigration enforcement, and it paid for that spending spree by slashing Medicaid, Obamacare, and SNAP. A definitive accounting of the abuses and atrocities is a necessary transitional justice function that Gabe Scheffler’s new Indiana Law Journal article prepares us to perform. Scheffler’s forthcoming Affordable Care Act Retrenchment piece documents the scope and detail of the health provisions in OBBBA, relates how those provisions came to be as well as where their implementation stands, and divulges insider accounts of how the implementation is expected to proceed in the coming period.
First, kudos to Scheffler on the cogency and efficiency of his account; anyone who can deliver such a clear layperson’s explanation of state Medicaid Provider Taxes and related financing devices is a treasure! (Pp. 28-43.) Rather than digest for the reader what is already so well digested, I will use my JOTWELL space for some comments on the article’s methodology. It is methodologically ambitious in at least 3 ways that I want to flag here.
The first methodological feature that the article wears on its sleeve is its use of qualitative interview techniques. Scheffler used snowball sampling resulting in 34 qualitative interviews with various experts and actors in the passage and implementation of OBBBA. These interviewees have cycled in and among state and federal government, interest groups, industry associations, lobbying firms, nonprofits, and the academy. Scheffler’s research gives us rich first-hand insider accounts that would be beyond our ability to access otherwise.
My second observation is that this set up allows Scheffler to employ frames and models from both political science and from law, which gives this type of legal scholarship a “binocular” gaze, looking at law from both the outside, in terms of what outputs the black box of the institution of law spits out, but also from the inside, in terms of how actors within the legal system understand the activity. This kind of empiricism does not restrict Scheffler merely to external observation of the legal phenomena of making and executing law, but allows room for the internal understanding—sometimes doctrinal, sometimes political—of those who make and implement the law.
Third, I found myself looking beyond the article’s debate over alternative substantive conclusions, such as whether the OBBBA represents a relatively permanent shift away from robust health benefits, or if its ill-effects would be rendered temporary through mitigation or reversal. Instead, Scheffler convinced me that the stakes could be sublimated into methodological terms. Running parallel to the debate over the possibility of mitigation is the article’s debate over the worth of the mode of inquiry it is proposing, namely, that of applying to OBBBA the clarifying lens of welfare retrenchment developed by political scientists through a well-elaborated reservoir of prior examples.
In ordinary times, an article might simply apply the conceptual frame of welfare retrenchment to generate some conclusions about OBBBA and its trajectory. This frame would tap an entire literature that both 1) documents the remarkable tenacity of social programs against rollback or retrenchment, and 2) catalogs the narrow circumstances under which that resilience has buckled. But Scheffler is doing something more interesting here. The article features a productive tension throughout as to whether Scheffler is claiming that we should extrapolate from the retrenchment model to OBBBA’s circumstances, or whether the circumstances to which the predictions and patterns of that model are tethered have now changed so much that the reality outpaces and demands a major updating of the model. Are the effective methods of retrenchment the three that the literature canonizes, namely obfuscation, division, and compensation (P. 35), or must we account for new forms of leverage, like the spell Trump holds over the organs and constituencies of the right? (P. 46.) Thus, part of Scheffler’s contribution is a metacommentary on the question of the methodological usefulness of the welfare entrenchment/retrenchment model and what might need to be reconsidered.
Do we judge OBBBA as continuous with the project of good faith political contest over the contours of the liberal welfare state? In normal times, such contest might have involved spasmodic efforts to rein in health programs, as witness the Newt Gingrich-led budget slashing of the 1990’s. But any excesses of contraction would have been subject to correction, which indeed took place through the Balanced Budget Act giveback bills passed in the Gingrich aftermath? Or do we view OBBBA as a discontinuity, an orgy of unreason and an irrevocable breaking of political community with fellow Americans? Scheffler and his interviewees provide examples on both sides. On the one hand, policies are reversed with shifting political winds all the time, as happened with the Medicare Catastrophic Coverage Act and the National Health Planning and Resources Development Act of 1974. (P. 60.) On the other hand, interviewees emphasize how “brazenly” the Administration’s supporters lied about OBBBA (P. 36), how the vote was rushed to completion before even the final CBO score came out (P. 44), and how Jimmy Kimmel, who made a difference during the ACA debate by sharing his son’s story, now finds his show subject to suspension by the Trump FCC for criticism of the Administration. (P. 48.)
This tension in Scheffler’s aims, between normalizing and catastrophizing, is not just a tension between two contrasting substantive conclusions, or two contrasting methodological postures. It is also the tension that is fracturing our anti-Trump politics far beyond Scheffler’s article. Should we conduct ordinary politics or should we prepare for extraordinary political transition? Centrist establishment figures cast the current situation as a temporary anomaly from which we can snap back to the status quo ante. But we may well, as I have been mulling over in an as-yet-unreleased manuscript, require a bigger, more intentional reset: a Project 2029 guided by transitional justice norms to usher in the next phase of the American project.
Sep 8, 2026 Amy Monahan
Jennifer D. Oliva,
Regulating Healthcare Coverage Algorithms in the Shadow of ERISA, 125
Mich. L. Rev. __ (forthcoming 2027), available at
SSRN (May 21, 2026).
Ever since health insurers began engaging in utilization review, consumers have expressed frustration and anger over the process. Decades ago when HMOs were widespread, the frustration and anger tended to be directed toward the faceless bureaucrats or “bean counters” who were overruling the patient’s treating physician. Today, as Professor Oliva establishes in her article, Regulating Healthcare Coverage Algorithms in the Shadow of ERISA, coverage denials are often generated by a proprietary AI rather than a human reviewer. These coverage algorithms process prior authorization requests and claims at a speed no human could match, trained on data optimized for cost containment, shielded from scrutiny by trade secret claims, and subject to essentially no regulatory oversight.
When algorithmic coverage denials are combined with ERISA’s notoriously limited remedies and broad preemption of state law, consumers find themselves in a Kafka-esque situation with limited ability to obtain the coverage to which they are entitled. And this situation is not rare. As Professor Oliva’s article carefully explains, one recent survey found that 84% of health insurers utilize AI or machine learning, with most using these tools for utilization management and prior authorization. Further, some widely-used coverage algorithms are alleged in litigation filings to have overturn rates of ninety percent on appeal.
Against this backdrop, Professor Oliva makes the case for a novel solution to the problem: state products regulation of the software platforms used to make algorithmic coverage decisions. The specific proposal borrows various elements of the FDA’s approach to high-risk medical devices, arguing that coverage algorithms should be subject to a form of pre-market review and post-market surveillance because, like medical devices, these algorithms may cause potentially serious risks to life or health.
I found the products-regulation proposal to be an extremely clever solution to a difficult legal problem. First, it arguably avoids the ERISA preemption concerns that ordinarily doom state health reform efforts. By regulating the software product, rather than the activities or actions of an employer-sponsored health plan, the state law should at least arguably be analyzed as a law of “general applicability” rather than a state law that “relates to” an employee benefit plan. And laws of general applicability, including product safety regulation, have never been understood to fall within ERISA’s preemptive reach, even when the products in question are purchased and used by ERISA plans. States regulate the practice of pharmacy, impose taxes on insurers and employers, and regulate software used by plan administrators and medical providers, without anyone seriously arguing that ERISA displaces those requirements. Coverage algorithms, Oliva argues, are no different.
Second, the article situates the issue of AI coverage denials within a consumer protection frame, rather than as a problem of insurance regulation which, among other things, influences the institutional design of the proposal. Rather than assigning regulatory authority to state insurance commissioners — who are both ill-suited to evaluate complex AI systems and structurally constrained by ERISA’s jurisdictional limits — Oliva proposes a model Algorithm Validation Act implemented by specialized state Algorithm Policy Offices, staffed with data scientists, biostatisticians, health services researchers, and civil rights lawyers. The framework requires premarket validation before any coverage algorithm may be deployed, ongoing post-market surveillance, transparency obligations sufficient to support patient appeals, and meaningful enforcement including a private right of action. Crucially, the regulatory obligations attach to algorithm vendors, not to health plans, ensuring that the same algorithm is subject to the same standards whether deployed by a Medicare Advantage plan, a fully-insured commercial plan, or a self-insured ERISA plan.
Oliva is admirably candid about the limits of her argument. She acknowledges that ERISA preemption doctrine is notoriously indeterminate and that courts could read it expansively against state algorithm regulation. Her point is not that such regulation is litigation-proof, but that it is more defensible than alternatives — particularly given that waiting for federal action is not a viable alternative. Even under a more skeptical preemption analysis, she notes, state algorithm regulation would reach state and local government health plans, church plans, Medicaid managed care organizations, Medicare Advantage plans, and fully-insured ERISA plans — leaving a regulatory gap only for self-insured employer plans, which is a meaningful improvement over the current regime of nothing.
I also admired the article’s willingness to forcefully counter some specious arguments that might be made by insurers and software vendors against the article’s proposal. For example, in responding to the potential objection that her proposal will “stifle innovation,” Oliva plainly states that if pre-market validation of a coverage tool deters development of a product, that is innovation that should be deterred, “If validation requirements make it uneconomical to market a clinically unsound algorithm, that is a regulatory success.”
This article is important and timely in the most straightforward sense: automated systems are already governing access to chemotherapy, post-surgical rehabilitation, and life-sustaining medication, with nearly no meaningful external checks. Oliva offers states a legally grounded, institutionally coherent framework for changing that.
Jul 27, 2026 Zack Buck
In Do Nothing Preemption, Professor Lauren Roth takes on the legal thicket of preemption—the all-too-familiar hornet’s nest within the federalism-dominated landscape of health law. Roth’s project is particularly timely. Considering policy goals by the Trump administration as well as the recent assault on the agency-based administrative law order, preemption—where the federal government has largely impeded states from regulating in a particular space—is salient and important during a highly deregulatory era.
While telling a story about preemption, Professor Roth uses as a case study the effort to prevent predatory marketing by agents selling Medicare Advantage plans. This, which she presents as posing a real threat to access to health insurance for Medicare beneficiaries, serves as the lens for deeper observations about the structure and gridlock that produce a regulatory vacuum. Indeed, in this space, the federal government has prevented states from preventing pernicious marketing, but has had its own rules struck down by the judiciary.
Roth’s article, forthcoming in the Administrative Law Review, consults several important voices in the preemption professoriate while weaving in the story of Medicare Advantage, a highly regulated private version of the public crown jewel of Medicare. The harm is that its agents, due to profit interests, are incentivized to distort and misrepresent the upsides of the plans they are trying to sell, a problem that harms the elderly beneficiaries who are in the Medicare Advantage market. And without a federal solution, while preemption blocks state intervention, there is effectively no regulation.
On the doctrine, Roth defines the problem as she sees it as “do nothing preemption,” which fits next to work done previously on “null preemption” by Jonathan R. Nash and ERISA preemption done by Elizabeth McCuskey and Erin Fuse Brown. Differentiating Nash’s “null preemption,” Roth notes that “do nothing preemption does not involve an affirmative decision by the federal government both not to regulate itself and also to preempt state regulation.” Instead, in “do nothing” preemption, Roth says “courts are typically the villains—striking down federal regulation and forcing the federal government to do nothing even when state regulation cannot take its place.” In her story, it is the Northern District of Texas who plays this role, blocking reasonable federal regulation that would prevent deceptive marketing of these Medicare Advantage products—indeed, the only pathway to make real headway when state law options are blocked by federal law. Of course, one is left to wonder if, under her telling, the court’s action is sufficiently “villainous,” or if it was CMS’s failure to try again to regulate that led to the vacuum of regulation in this space; indeed, Professor Roth mentions that “CMS did not take further action” after the court’s action. Perhaps it’s both the courts and CMS—a realization that may supplement her argument.
Regardless of who’s to blame, the victim in this saga is the Medicare Advantage population, and the harm is the vicious actions undertaken by third-party marketing organizations that are incentivized to sell plans that may not benefit beneficiaries. The result, of course, is the stifling of state power and an increasingly concentrated and active role by the judiciary. Further, this inability to initially regulate allows industries to become entrenched and harder to restrict; in the interim, it becomes harder to uproot the powerful interests and activities that have embedded themselves in the marketplace.
In the way of solutions, Professor Roth suggests that states may be able to regulate using typical state law powers that govern licensing laws and plan solvency. Further, she highlights the importance of state efforts in counseling and information distribution. She also mentions how AI and technology can help clarify and improve this space. Interestingly, on the doctrinal side, Roth suggests a “conditional preemption doctrine,” which in theory would allow states to regulate until the federal agency is able to or chooses to do so. It is here where her work makes a real contribution.
Critics of Professor Roth’s thesis might argue that this state of affairs—the courts’ ability to block federal activity in this area that leaves no room for regulatory activity—is not a bug at all, but a feature of a system that prioritizes cautious regulatory interventions and fears an overbearing state. In this vein, a federal solution that is struck down may suggest the need for a better or more defensible federal solution—again, the fact that CMS did not try again may not be due to a complete regulatory clog going forward, but may be due to some other reason (i.e., a lack of political will). To be sure, it may also be difficult to blame the federal regulatory agencies for this undesirable situation, as they may not be able to foresee how their regulatory architecture may ultimately get eviscerated.
Still, Professor Roth’s contribution is a timely and thought-provoking contribution at a time when so much of the health law regulatory schema is up for debate. Preemption has been a particularly pernicious policy problem for years, and Roth’s coverage of the Medicare Advantage challenge is a clarion call for better policy. At the very least, her treatment of the topic is a reminder that policy design—no matter how defensible in the crucible of the halls of power—needs to be constantly attentive to its impact on the real world and on real people.
Jun 25, 2026 Nadia Sawicki
Prof. Zack Buck’s scholarship regularly focuses on the tension that health care providers and institutions face between ensuring their own financial sustainability and serving the needs of vulnerable patients. In Patients as Stakeholders, Prof. Buck turns to the challenges posed by for-profit acquisitions of non-profit hospitals, and introduces the corporate governance theory of stakeholderism as a potential solution. Recognizing patients as core stakeholders in hospital operations and governance, Prof. Buck argues, will allow health care institutions to achieve both mission and margin.
Stakeholderism is the theory that a corporation’s duty to maximize shareholder wealth should be balanced against its obligations to other actors who are meaningfully affected by its decisions. Corporate law scholars are engaged in ongoing debates about the merits and implementation of stakeholderism – and the rise of the environmental, social, and governance (ESG) movement across industries suggests that many companies are already putting elements of stakeholderism into practice. In this article, Prof. Buck persuasively shows that stakeholderism as a governance model is particularly well suited to the health care industry, especially as a tool for filling regulatory and oversight gaps that arise when nonprofit hospitals convert to for-profit status.
Prof. Buck observes that the modern American hospital has become “targeted as a source of capital for the modern American investor.” He cautions that the expansion of for-profit health care systems can harm patients, providers, employees, payers, and surrounding communities, offering two recent examples demonstrating this phenomenon: Hospital Corporation of America’s acquisition of Mission Hospital in North Carolina and Prospect Medical Holdings’ acquisition of two community hospitals in Rhode Island. Despite promises that these acquisitions would maintain the viability of financially struggling community hospitals by increasing efficiencies and reducing costs, they instead led to higher prices, reduced staffing, unpaid bills, and lower quality of care.
As Prof. Buck recognizes, once nonprofit hospitals convert to for-profit status, state regulators generally have fewer tools to safeguard the scope and quality of medical services those institutions provide. Transactions such as those in North Carolina and Rhode Island are subject to attorney general review to ensure they advance the non-profit hospital’s original charitable purposes and effectively serve the public good. Importantly, attorneys general can impact the structure of these transactions, conditioning them on the acquiror’s satisfaction of key conditions. However, after a conversion is complete, shareholder oversight largely replaces state oversight. Whereas state attorneys general are, at least in principle, attuned to the needs of the local community and serve taxpayers and patients relying on these hospitals, shareholders in the for-profit acquirors are geographically diverse and often have no connection with the community or its needs. Shareholders’ primary interest is in maximizing the value of their investment, not ensuring quality of care or garnering community support and patient trust.
Prof. Buck effectively demonstrates that this regulatory approach is problematic for the patients and communities served by the formerly non-profit hospitals. Health care institutions’ primary operational function is providing high-quality medical care to residents of the local community, and so patients are their foremost stakeholders. But at for-profit hospitals, the financial interests of shareholders may be at odds with the needs of patients and the community. And traditionally, Prof. Buck argues, shareholders have had few incentives to prioritize patient interests – or even seek out “important feedback from the patients on the ground” that would help shareholders gain context and information about the communities these hospitals are serving.
Prof. Buck’s core argument is that for-profit corporations that acquire and convert nonprofit hospitals should recognize patients as key stakeholders and govern in ways that reflect their interests. He identifies three principal benefits from such a move. First, it would help bridge the gap between for-profit and nonprofit institutions by incorporating patient interests into corporate governance and major decisions. Second, it would enhance the perceived legitimacy of a health care industry that depends heavily on public funding as part of its reimbursement model. Finally, Buck argues that, unlike ESG-driven stakeholderism, which has faced significant backlash, a patient-centered approach is less likely to provoke resistance because its benefits flow directly to vulnerable populations. While there is no guarantee that these potential benefits will be sufficient to actually incentivize the adoption of stakeholderism at for-profit hospitals, Prof. Buck’s article makes a compelling case for doing so.
Advocates of stakeholderism recognize that the concept does not define precise standards for implementation. Prof. Buck, too, leaves open the question of what specific pathways might be created to allow patient stakeholder interests to influence corporate decision-making, and I hope his future work expands on this issue. Overall, however, Patients as Stakeholders sets a foundation for important future discussions about how to better integrate the needs of patients and communities within the governance structure of for-profit hospitals.
May 26, 2026 André den Exter
Caught in Language. The importance of speech and language therapy for the Youth Justice System is the result of a PhD research project examining how juveniles with speech, language, and communication needs participate in the criminal justice system. The research’s findings have important implications for health law, including informed consent and shared decision-making in health care.
The research focuses on combining different perspectives, including criminal law, speech therapy, and health law, also known as forensic speech therapy (science involving speech and language disorders, providing testimony in legal cases on diagnoses, treatment protocols, and patient prognoses). This multidisciplinary approach, combined with the unique findings, makes this book highly relevant to legal professionals in law enforcement, the judiciary, and juvenile care institutions in the Netherlands and abroad. The book’s bilingual approach makes it accessible for non-Dutch readers. For most lawyers, forensic speech therapy is currently uncharted territory. It is a relatively new discipline, primarily known in common-law countries such as Australia and the United Kingdom.
Literature reviews show that juveniles face significant language impairments and problems in contact with the criminal justice system. For example, language research on delinquent youths in the United Kingdom shows that 73% of them struggle with a language disorder, i.e. persistent difficulties in understanding or using spoken language, (P. 222.) Outcomes in different legal systems confirm the high prevalence of language disorders in this group. It appears that language disorders and learning and behavioral problems hinder a young person’s ability to navigate the juvenile justice system successfully. Also, language disorders are generally overshadowed by other issues such as low literacy and comorbidities (i.e., mental health, fetal alcohol syndrome, and traumatic brain injury, P. 223).
Juveniles with a language disorder often struggle to understand the jargon commonly used in the criminal justice system. Juveniles can also make the wrong decisions that can change the outcomes of the criminal process (to their detriment). Language expression disorders can lead to problems with so-called narrative skills, which can cause a juvenile to be misunderstood or even disbelieved by interrogators. Finally, the literature review shows that juveniles with a language disorder are more than twice as likely to recidivate as their delinquent peers without a language disorder. A language disorder thus appears to be a strong predictor of recidivism, in addition to and on top of other known risk factors (P. 223). The author’s empirical research among juvenile detainees in the Netherlands confirmed findings from recidivism in the international literature.
Based on the frequent use of jargon during hearings, the lack of experts in the criminal process, and the lack of specialized training and knowledge among professionals, the author concludes that the Dutch interrogation situation of juveniles does not respect juvenile’s procedural rights under both the UN Convention on the Rights of the Child (art. 12 CRC, the right to be heard and the use of “Child-Friendly Language”), General Comment No 24, and European Directive (EU) 2016/800 on procedural safeguards for children who are suspected or accused in criminal proceedings (P.225). As a result, young people with language problems cannot participate effectively in a way that does justice to the concept of “Child-Friendly Justice”, regardless of whether “Child-Friendly language” is used at all (P. 225).
Finally, the book addresses how to enhance and facilitate communication with juvenile defendants who have speech, language, and communication disorders. Here, the book concludes with several meaningful recommendations related to developing training, changing procedures or regulations, and conducting new research. Speech, language, and communication disorders (SLCN) are common among young people who encounter the criminal justice system, but they can be challenging to identify.
Given the absence, the author recommends developing specialized training for all criminal justice professionals to recognize SLCN in juvenile defendants. Although lawyers can take their clients’ language problems into account, bottlenecks often occur during interrogations. Therefore, training in skills and methods has been recommended to help interrogators, judges, and other professionals within the criminal justice system recognize SLCN (P. 231).
As the research focuses on forensic speech therapy in the criminal justice process, it may have significant consequences for the entire detention and treatment chain, including forensic care in youth care institutions. Relevant questions to be addressed include defining mandatory care plans, understanding recommended therapies and optional remedies, respecting the concept of informed consent, and promoting shared decision-making in youth care. Clearly, this research has opened new avenues of multidisciplinary research, also relevant to health lawyers.
Apr 29, 2026 Emma Cave
Health law does not have the luxury of standing still. Scientific advances, clinical practice changes, and entirely new technological possibilities are on the horizon. Technology, Health and Law in Life and Death is a collection edited by Dr. Neera Bhatia that asks what it means for law to keep pace with innovation without slipping into either uncritical enthusiasm or anxious prohibition. It is an agenda-setting question, and the book handles it with unusual range, across birth, life, and death.
The collection illustrates how technological change is not a series of isolated events but a continuing pressure. When law lags behind, governance tends to relocate rather than disappear altogether. Professional guidance, standards, litigation, commercial risk management strategies, and researcher governance practices can end up doing the work that legislation or formal regulation has not yet done. In controversial domains like reproduction, medical device safety, and end-of-life practices, these forms of governance can distribute risk unevenly and entrench inequalities before they have been properly debated.
Some chapters in the collection deal with technologies that are already familiar in practice but legally under-analysed, while others examine emerging possibilities whose pace of development and regulatory salience is variable and difficult to gauge. Ectogestation, for instance, invites law to revisit assumptions about pregnancy, embodiment, and responsibility. FemTech turns intimate bodily processes into data streams, creating new privacy and consent problems. Stem cell-based embryo models complicate the question of what counts as an embryo for legal and ethical purposes, because the novel entities are increasingly difficult to classify using inherited categories.
Some of the contributions explore what happens when innovation is driven outside standard regulatory pathways. The discussion of do-it-yourself artificial pancreas systems for children – open-source systems used by some families to manage type 1 diabetes – demonstrates that, motivated by unmet need, patient and family communities can be capable innovators. Yet their work unsettles conventional assumptions about regulatory responsibility, device approval, and oversight, and it has implications for safety, justice, and access. Who can build, maintain, and benefit from these systems, and what does it mean for the law when solutions emerge through informal networks rather than through standard clinical trials? Some neurotechnologies raise parallel questions about regulatory fit. They invoke ethico-legal issues where interventions impact cognition and agency, which can destabilise the boundary between treatment and alteration and expose gaps in rights-based frameworks.
The later-life and post-mortem discussions avoid treating death as an afterthought. Instead, they show how technology increasingly mediates what death involves as a legal and social process. Cryonics sits on contested foundations, raising classic consumer-protection concerns in conditions where vulnerability may be acute and posing new questions about posthumous disposal. It raises legal and ethical questions about the definition of death and property in the deceased body, and social questions about reanimation at a time when society has moved on.
Across these varied topics, the book reiterates a set of recurring fault lines. Regulatory categories wobble–research versus treatment, clinical device versus consumer tool, therapy versus enhancement, death as an event versus death as a process. Consent becomes harder to interpret, and responsibilities diffuse across clinicians, platforms, manufacturers, and users. Technology, Health and Law in Life and Death captures a defining feature of contemporary health governance, namely that medicine is a moving frontier which the law struggles to govern in real time. The volume does not promise neat solutions, but it equips readers to understand the disruptive impact of emerging health technologies and makes clear that keeping pace with change is one of health law’s central tasks.
Mar 30, 2026 Maya Manian
For more than forty years, HIV/AIDS has been understood as a paradigmatic public health crisis. The HIV/AIDS crisis generated extraordinary social movement activism and resulted in significant public health reforms. Yet, the dominant narratives of AIDS too often marginalize women’s experiences and obscure how deeply feminist advocacy reshaped not only the law but also the science of AIDS. In Risk and Resistance, Aziza Ahmed offers a powerful corrective to the historical narrative surrounding AIDS while also provoking broader questions about the nature of scientific knowledge itself.
Risk and Resistance is history, theory, and warning. The book is at once a rich archive of feminism and AIDS, a sharp challenge to the myth of science as a purely objective, neutral domain, and a conceptual lens for understanding contemporary public health crises in the MAHA era. Through a meticulously researched genealogy of feminist AIDS activism from the early 1980s through the 2010s, Ahmed shows how feminist social movements reshaped scientific consensus, transformed public health law, and altered the material distribution of life-saving resources.
At its core, the book advances a deceptively simple but profoundly destabilizing claim: law and science are not objective domains that merely respond to disease. Rather, scientific and legal knowledge are co-produced through social struggle, and the “facts” that emerge from this co-production have concrete distributional consequences for who lives and who dies. Feminist AIDS activists, Ahmed shows, recognized that changing the law required redirecting scientific inquiry in new directions—and that changes in both science and law were necessary to redistribute health resources towards women living with HIV.
Feminist Activism and the Production of Scientific Knowledge
Ahmed begins the book with the story of Patricia Nalls and her family, a devastating account that anchors the book’s broader theoretical claims. Nalls, diagnosed with AIDS at a time when women were routinely excluded from clinical trials and diagnostic criteria, survived despite the profound failures of medicine and public health. Nalls survived not because the medical system recognized her needs, but because she mobilized community-based care, advocacy networks, and sheer persistence to secure treatment and benefits in a legal and scientific landscape that largely denied that women could even have AIDS. (Pp. 1–2.) Her story illustrates the book’s central historical theme: the systematic erasure of women from scientific and legal understandings of AIDS, and the life-and-death consequences of that erasure.
The book traces feminist AIDS activism from 1982 through 2013, documenting how women with HIV, feminist health advocates, lawyers, and activist organizations challenged the male-centric scientific framing of the epidemic. Women’s apparent increase in HIV/AIDS numbers was produced by changes in CDC definitions and surveillance practices, driven by feminist advocacy, which corrected systematic undercounting of women. (Pp. 1–3, 52-60.)
One of the book’s most compelling chapters follows the litigation and advocacy efforts that ultimately forced the Centers for Disease Control and Prevention to revise the medical definition of AIDS to include conditions experienced by women, such as gynecological conditions. This was not, Ahmed emphasizes, a case of law belatedly catching up to scientific progress. Instead, feminist legal advocacy actively reshaped medical knowledge itself.
This intervention disrupts a familiar trope in health law and social movement scholarship—that law lags behind science. As Ahmed demonstrates, feminist activists believed precisely the opposite: that litigation, regulatory advocacy, and legal framing could alter scientific knowledge production. Ahmed notes that: “For feminists organizing in the context of AIDS, the belief that law and advocacy can alter science (rather than simply rely on it) is central to the success of redistributional efforts in the context of public health activism.” (P. 34.) For feminists fighting AIDS, destabilizing claims of medical objectivity was essential to expanding eligibility for disability benefits, access to treatment, and recognition within public health institutions.
Law, Science, and Redistribution
Uncovering the story of how feminist health social movement activists changed the scientific and policy response to AIDS is a feat in itself. Yet, Risk and Resistance delves beyond historical recovery. Ahmed uses feminists’ long fight against AIDS as a case study to develop a broader theoretical account of how the fields of science and law co-produce new forms of knowledge and mutually reinforce choices about the distribution of resources. Drawing on science and technology studies and critical legal theory, she challenges the idea that legal regulation and scientific expertise occupy separate domains, with the former simply reliant on the latter. Instead, she adopts the framework of co-production, showing how governance and scientific knowledge mutually constitute one another.
This insight has particular force in public health law. As Ahmed explains, scientific framings of disease risk—such as attributing HIV vulnerability to individual behavior—can obscure structural determinants of health and justify interventions focused on personal responsibility rather than systemic, redistributional reforms such as harm reduction policies or expanding access to care. These scientific narratives, once stabilized through law and policy, legitimate unequal distributions of resources while appearing neutral and inevitable. Ahmed describes this process as a “legal-scientific settlement.” Her definition of this concept is important:
The term legal–scientific settlement describes how the stabilization of particular truth-claims results in new legal and regulatory regimes. I use the term ‘settlement’ to reflect the contingency and possibility for disruption. In these moments of legal–scientific settlement, law and science are coproductive of new facts and new knowledge ecosystems that are then generative of distributional outcomes (Pp. 145-146).
Ahmed’s aim in critically analyzing legal-scientific settlements is not to exacerbate mistrust in science. Rather, Ahmed asks readers to look behind the curtain of how scientific knowledge is produced—or co-produced—through its interaction with legal domains.
One of the book’s most striking contributions is its attention to how claims of scientific objectivity were mobilized during the Reagan era to contract the welfare state. By requiring physicians to validate disability claims, the federal government transformed medical expertise into a gatekeeping mechanism for benefits—rendering science itself a target of feminist activism. Feminist AIDS advocates understood that redistributive justice required contesting not only legal rules, but the epistemic foundations on which those rules rested.
Legal–Scientific Settlements and Contemporary Public Health
Ahmed’s conceptual framework of social contestation leading to “legal-scientific settlements” resonates far beyond AIDS. These settlements describe moments in which particular scientific claims become temporarily stabilized through lawmaking and regulation, generating new regimes of governance and distribution. Crucially, these legal-scientific settlements are contingent and thus remain contestable rather than fixed. The book illuminates how such settlements reflect political and economic choices, not natural facts.
Ahmed’s theorizing provides a remarkably generative tool for analyzing today’s public health conflicts in the MAHA era—whether over vaccine schedules, autism, or gender-affirming care—by exposing how claims of scientific neutrality are forged through law and revealing how law and science co-produce authoritative knowledge. Ahmed draws explicit connections to COVID-19, where scientific claims about risk and mitigation directly shaped the allocation of resources and the acceptance of mass death and disability. Narratives emphasizing personal responsibility, she argues, enabled the state to disclaim obligations to provide care—echoing earlier AIDS-era dynamics that stigmatized marginalized communities.
The book’s closing pages are especially haunting. As Ahmed notes, declarations that COVID-19 now poses a “diminished threat” coexist with the ongoing reality that thousands continue to die each week. These outcomes are not inevitable. They are the product of legal–scientific settlements that distribute vulnerability unevenly across populations. HIV, too, remains an unfinished epidemic—still without a vaccine or cure, still shaped by inequality.
Conclusion
Risk and Resistance makes major contributions to public health law, feminist and social movement theory, science and technology studies, and sociolegal scholarship. By centering feminist AIDS activism, Ahmed not only recovers a crucial history but also provides a toolkit for analyzing contemporary public health debates. The book challenges scholars to take seriously the ways social movements shape scientific knowledge and the ways law and science together legitimate that knowledge—and to confront how appeals to neutrality can entrench inequality.
For legal scholars accustomed to treating science as an external constraint, Ahmed’s account is bracing. It insists that redistribution often requires epistemic struggle, and that the law’s role in stabilizing knowledge carries profound ethical stakes. At a moment when public trust in expertise is failing, and public health crises are pitched battles, Risk and Resistance offers both historical insight and conceptual clarity. It is essential reading for anyone interested in how law, science, and social movements shape who is allowed to survive—and under what conditions.
Feb 27, 2026 Myrisha Lewis
The second episode of HBO’s Emmy-winning series, The Pitt, included a storyline where paramedics bring in a woman they describe as “drug-seeking,” “uncooperative,” and “combative” after she was removed from the city bus “for disrupting and disturbing passengers.” After a tense scene in the Emergency Department, where the patient was threatened with a police call, she excruciatingly noted that her pain medicine was not working, and she has sickle cell anemia. Dr. Mohan, unlike the other healthcare professionals that the patient encountered, quickly recognizes a vaso-occlusive crisis and changes the trajectory of the patient’s treatment for the better, while informing fellow healthcare providers of the symptoms of sickle cell anemia.
Hopefully, this episode raises awareness, as shockingly, even today, reports indicate that health care providers and others remain unfamiliar with sickle cell disease, and those with the disease or trait often face mistreatment and racism in the healthcare space, increasing health disparities. Similar to The Pitt episode, Professor Britney Wilson’s article, Predisposed: Race, Disability, and Death Investigations, draws attention to a related context where those with sickle cell and other diseases face discrimination—death investigators’ use of the trait and other related conditions “as a justification for the deaths of Black people who die due to state violence or neglect” even when such a justification is not convincing.
The first part of the article provides a theoretical background that situates the paper within the literature of racism, ableism, state violence, and state neglect. The terms “state violence” and “state action” are broadly defined and encompass phenomena like deaths in police custody and even the impacts of neglect during natural disasters, including Hurricane Katrina, the subject of numerous documentaries, with the hurricane landfall’s 20th anniversary occurring last year.
Part II “explores the history of the death investigation system.” Part II (A) provides information on the colonial origins of the death investigation system in the United States, and Part II (C) discusses the current roles of coroners and medical examiners. Part II.B briefly explains how legal causation, which “consists of two primary elements: actual cause and proximate cause,” connects to the decisions of coroners and medical examiners to cite “disability” in death investigations. Sections D and E of Part II, as well as Part IV, briefly describe the procedures governing autopsies and proposed reforms, which often focus on insulating death investigators from political pressure, hopefully, to facilitate a neutral determination of cause of death.
Part III, “Disability, Underlying or Preexisting Conditions as Causes of Death” addresses many specific examples from recent history in which death determinations have specifically referenced health conditions or genetic conditions that do not seem to have actually caused the death. Current law provides inadequate protections for individuals with genetic conditions like sickle cell anemia, Tay-Sachs, and Huntington’s disease. While the law provides some protections of individuals’ genetic information with respect to health insurance and employment, it does not adequately address the use of that information in death investigations.
Notably, as Professor Wilson’s article shows in Part III, simply having a genetic trait but not the genetic condition can impact causation in a death investigation, even when it should not. In turn, this can reduce the liability of an actor, especially a state actor. Despite the prevalence of sickle cell anemia, many individuals have the sickle cell trait, meaning one copy of the gene, not the two required for the disease. Moreover, generally, “people with sickle cell trait enjoy normal life spans with no medical problems related to sickle cell trait. Sickle cell trait can never become sickle cell disease.” For this reason, citing the mere existence of the sickle trait in death investigations is often unexpected and insufficient in articulating clear causation in a death investigation.
Similarly, in Part III, Professor Wilson’s article contributes to the environmental justice and disability literatures by noting that “people of color and people with disabilities are both disproportionately affected by the hazardous consequences of natural diseases…[and] are disproportionately likely to have preexisting or underlying conditions, such as heart disease or diabetes, to which death investigators often attribute their deaths even in the wake of natural disasters.” This observation should give everyone pause as the American Heart Association’s annually issued reports continue to indicate that “[h]eart disease kills more people than any other cause.” The Centers for Disease Control and Prevention note that “[h]igh blood pressure, high blood cholesterol, and smoking are key risk factors for heart disease.” Nearly half of all Americans have high blood pressure, and at least 10% of the American population either has high blood cholesterol or is a smoker, meaning many Americans have pre-existing conditions that investigators could inaccurately deem to be their causes of death. Moreover, climate change is expected to increase the number of natural disasters, which could harm individuals and property, with a disparate impact on minorities. It is worth noting that when including the Great Lakes and U.S. territories, “more than 129 million people, almost 40% of the nation’s total population, live in coastal counties.”
While poor health outcomes can clearly result from genetic conditions, as deaths of individuals, whether due to actions in state custody, natural disasters or simply poorer health outcomes continue (or possibly increase), Professor Wilson’s article reminds us of how important it is to be aware of how the legal system will ultimately allocate liability, whether in investigations, civil lawsuits, or criminal proceedings.
Jan 28, 2026 Jessica Lind Mantel
The phrase “hospital desert” sanitizes a brutal reality for millions of rural Americans: the closure of a local hospital means longer journeys for life-saving care, worse health outcomes, and the hollowing out of fragile local economies. While many commentators point to demographic changes and strained budgets as primary causes of this growing crisis, in her compelling new article, The Healing Power of Antitrust, Theodosia Stavroulaki argues that we have been misdiagnosing the problem. She shows that hospital deserts are also the product of anticompetitive practices and enforcement failures—noncompete clauses that drive clinicians away, hospital mergers that strip rural communities of services, and regulatory blind spots that treat closures as unavoidable. Stavroulaki calls for antitrust enforcers to embrace their “healing power” by addressing these practices head-on, proposing reforms that expand merger analysis to labor markets, ban healthcare noncompete agreements, and condition rural hospital mergers on commitments to preserve services. Stavroulaki thus shows that antitrust is not simply a tool for protecting consumer welfare, but can also advance health equity by addressing the geographic disparities that leave rural patients behind.
Stavroulaki begins by powerfully situating what is at stake with the rural hospital closure crisis. Rural hospitals serve communities that are poorer, older, sicker, and more likely to be uninsured. These communities also experience higher rates of chronic conditions, disability, and substance use. Unsurprisingly, rural communities rely heavily on their hospitals to meet their healthcare needs. Moreover, because hospitals are often the largest local employer—generating jobs, purchasing goods and services, and sustaining community life—many rural hospitals serve as their community’s economic anchor. When a rural hospital closes, the resulting hospital desert can devastate the community, endangering lives and destabilizing the local economy.
Part II of the article then reviews various policy interventions designed to ameliorate the hospital-closure epidemic, namely telemedicine, Medicaid expansion, and health-promotion programs. While acknowledging their importance, Stavroulaki concludes that these measures are ultimately insufficient because they fail to address the deeper, structural causes of these closures —hospitals’ anticompetitive business practices.
Part III turns to the article’s distinctive contribution: reframing the rural health crisis as an antitrust problem. Stavroulaki traces hospital deserts to both the output and input markets. On the output side, she explains that while hospital systems may justify their acquisition of smaller rural competitors on efficiency grounds, in reality, many wish to eliminate their rural competitors and consolidate market power. Post-merger, acquiring facilities are often closed or stripped of essential services like obstetric, psychiatric, or emergency care.
On the input side, Stavroulaki delivers an astute analysis of labor market monopsony, showing how consolidation gives hospital systems immense leverage as the primary employer of clinicians in a region. That power is used to suppress wages and impose burdensome working conditions, fueling physician burnout. It also enables the widespread use of noncompete agreements that trap doctors and nurses. By preventing clinicians from simply moving to nearby healthcare facilities, noncompetes exacerbate the very staffing shortages that make rural hospitals so vulnerable, often forcing unhappy professionals to either leave the region or the healthcare workforce altogether.
By weaving together these output and input effects, Stavroulaki underscores how consolidation and anticompetitive practices contribute to the hospital desert crisis, setting the stage for the antitrust remedies she develops in Part IV.
Part IV turns from diagnosis to prescription, showing how antitrust enforcers can use existing law to stem the rise of hospital deserts. Stavroulaki begins with noncompete clauses, offering a nuanced analysis as to why restraints that prevent clinicians from practicing in nearby communities should be treated as per se violations of Section 1 of the Sherman Act. Importantly, her arguments enrich the ongoing debate over noncompete agreements sparked by the Federal Trade Commission’s 2024 proposal to prohibit such agreements and a federal district court decision striking down the FTC’s rule.
Turning to hospital mergers, Stavroulaki argues that Section 7 of the Clayton Act should be interpreted to capture monopsony power in healthcare labor markets, and not simply monopoly power in output markets like the price and quality of hospital services. She therefore calls for hospital merger reviews to assess the merger’s impact on clinicians’ wages, working conditions, and flight from rural communities. Stavroulaki further urges antitrust regulators to broaden their focus beyond price effects alone and condition approval of rural mergers on commitments to keep acquired facilities open and preserve essential services. These proposals are especially timely as the Department of Justice and the Federal Trade Commission reconsider their hospital merger framework following the withdrawal of their long-standing healthcare merger guidelines.
Over 130 rural hospitals have closed since 2010, with experts warning that more than 600 others are at risk of closure. In this moment of profound crisis for rural health, The Healing Power of Antitrust shows how antitrust law can be more than a safeguard for excessive prices—it can be a tool for preserving the hospital institutions that are the lifeblood of rural communities. By both showing how anticompetitive practices can lead to hospital deserts and offering a concrete agenda for enforcement, Stavroulaki shifts the conversation around rural healthcare beyond demographic changes and reimbursement to the hidden role of market power. Doctrinally innovative and profoundly timely, her article offers a compelling vision of how antitrust law can help close the geographic gaps that perpetuate inequities in health access and outcomes.
Dec 16, 2025 Wendy Epstein
Sharona Hoffman & Ishani Ganguli,
Access to Primary Care and Health Care Fragmentation, __
U. Ill. L. Rev. __ (forthcoming 2026), available at
SSRN (Feb. 01, 2025).
Primary care has long been described as the cornerstone of a functioning health system. Yet, in the United States, it is a cornerstone under strain. Patients who seek appointments with primary care physicians (PCPs) often wait weeks or months before they can be seen. Faced with these delays, many turn to urgent care centers, retail clinics, direct-to-consumer telemedicine platforms, or even at-home testing kits. While these alternatives offer quick access, they come at a price: fragmented care that sacrifices continuity, coordination, and comprehensiveness.
Sharona Hoffman and Ishani Ganguli’s article, Access to Primary Care and Health Care Fragmentation, argues that long wait times and the resulting fragmentation are not only health policy problems but also legal problems. They make the case that the combination of shortages and fragmentation undermines equity, drives up costs, and creates liability exposure under both tort and anti-discrimination law. Their insightful dual framing is compelling: primary care access failures threaten patient outcomes, but they also expose providers and health systems to lawsuits and regulatory scrutiny.
Traditionally, delayed or missed diagnosis claims arise where a patient has an ongoing relationship with a physician who fails to detect or follow up on concerning symptoms. But Hoffman and Ganguli argue that excessive wait times and fragmented care might create liability risks even when no such continuous relationship exists. A patient bounced among urgent care, retail clinics, and telemedicine providers may never have a single physician responsible for their longitudinal care. In those cases, fragmentation complicates questions of duty and causation — who, if anyone, is accountable when no one provider “owns” the patient’s trajectory? The authors suggest that under the right set of facts, these structural access barriers could create legal exposure.
They also identify anti-discrimination law as a potential source of liability. Long wait times do not burden all patients equally. Low-income individuals, racial and ethnic minorities, and those in rural areas are disproportionately affected, since they often have fewer PCPs in their communities and less flexibility to seek out alternatives. Hoffman and Ganguli suggest that if health systems or insurers are aware that their appointment practices disproportionately disadvantage vulnerable populations, yet do nothing to address the problem, that indifference could expose them to liability under federal civil rights statutes. Here, their analysis dovetails with broader debates in health law about structural discrimination and disparate impact. It also raises provocative questions about whether equity can be achieved in a system that places timely primary care out of reach for many of those who need it most.
Beyond liability, the authors also note that fragmentation in primary care is a hidden cost driver. Policymakers often assume that urgent care or telemedicine saves money by diverting patients from emergency departments. On the contrary, the article shows that fragmented encounters frequently duplicate tests, generate overlapping prescriptions, and increase downstream costs when preventive opportunities are missed. The economic argument reinforces the doctrinal one: when health systems push patients into disjointed care pathways, they not only compromise safety and quality but also waste resources and erode trust. This framing challenges conventional wisdom about “convenience care” and highlights how systemic incentives, left unchecked, may undermine the very efficiency they purport to achieve.
But running throughout the article is also an insistence that equity must remain at the forefront. The burden of long wait times falls hardest on those with the least access to resources, amplifying disparities that already exist in American health care. Fragmentation is not neutral: it disproportionately affects patients who already struggle to navigate the system, resulting in disjointed, duplicative, and ultimately less effective care. By centering these inequities, Hoffman and Ganguli remind us that primary care shortages are not only a cost and liability issue, but also a justice issue.
Hoffman and Ganguli thoughtfully explore solutions. They suggest that value-based payment models can give PCPs the resources and incentives to shorten appointment wait times and reduce fragmentation, for example by supporting the use of artificial intelligence to ease documentation burdens or by encouraging more effective scheduling strategies. They also examine state laws that directly regulate appointment wait times, critiquing their limitations and recommending clearer standards, potentially through federal legislation. Finally, they address structural capacity issues — including the limited number of primary care residencies and the financial and professional disincentives that make the field less attractive — and propose reforms to build the workforce over time. While the article acknowledges that no single intervention will suffice, it calls for a multi-pronged approach in which legal and regulatory levers play a central role.
Access to Primary Care and Health Care Fragmentation makes a valuable contribution by drawing connections between primary care shortages, liability exposure, systemic costs, and policy reform. The crisis of primary care is often framed as a problem of supply and efficiency, but Hoffman and Ganguli show it to be equally about liability, the true financial costs of fragmented care, and, most importantly, justice. For health law scholars, the piece highlights emerging doctrinal questions about malpractice and discrimination in fragmented care environments. For policymakers, it offers a roadmap for using law to rebuild primary care as the true foundation of U.S. health care.
Hoffman and Ganguli thus deliver both a warning and a vision. The warning: that without reform, primary care shortages will deepen inequities, raise costs, and undermine trust in the health system. The vision: that law can be harnessed to realign incentives, protect vulnerable patients, and restore primary care to its rightful place at the heart of American health care.
