Random Law Review # 2

Christopher Newdick's Preserving Social Citizenship in Health Care Markets: There May Be Trouble Ahead, 2 McGill Journal of Law & Health 93 (2008).

Newdick, a Professor at the University of Reading in the UK, looks at three recent cases from England, Canada, and the EU to suggest an unravelling of what he calls "social citizenship" in the area of health care law. In his view, individualist and market-based understandings of civil rights are being used to undermine the common good as embodied in welfare/universal health care regimes. For example, courts are increasingly allowing individuals to buy private health insurance or seek private treatment abroad (and then be reimbursed domestically), which can put enormous burdens on a state health system. It's a moderately interesting article, though the thesis is an obvious one to draw from the three cases discussed and there's nothing new here that would make one think this will be an enduring piece of legal literature: it's more of a "look what's happening" type of article. From what I've read here and elsewhere, health care law certainly seems to be a fascinating intersection of economics, ethics, administrative law, constitutional law, and more.

As it relates to my own interests, I've always found the distinction discussed in this article between "negative" rights (rights against the state, like traditional freedoms of speech, religion, etc.) and "positive" rights (demands citizens can make to the state for welfare, education, health care, etc.) to be an important and enduring dividing line between competing conceptions of the proper role of constitutional rights in democracies. I've always thought the former belonged in bills of rights and the latter was something to be dealt with by legislatures, but there's an interesting case to be made for more inclusion of positive rights in constitutional documents.