February 2014 Vol. 112 No. 4 THE REVIEW
ARTICLES

Comparative Effectiveness Research as Choice Architecture: The Behavioral Law and Economics Solution to the Health Care Cost Crisis

Russell Korobkin

With the Patient Protection and Affordable Care Act ("ACA") set to dramatically increase access to medical care, the problem of rising costs will move center stage in health law and policy discussions. "Consumer directed health care" proposals, which provide patients with financial incentives to equate marginal costs and benefits of care at the point of treatment, demand more decisionmaking ability from consumers than is plausible due to bounded rationality. Proposals that seek to change the incentives of health care providers threaten to create conflicts of interest between doctors and patients. New approaches are desperately needed.

This Article proposes a government-facilitated but market-based approach to improving efficiency in the private market for medical care that I call "relative value health insurance." This approach focuses on the "choice architecture" necessary to enable even boundedly rational patients to contract for an efficient level of health care services through their health insurance purchase decisions. It uses comparative effectiveness research, which the ACA funds at a significant level for the first time, to rate medical treatments on a scale of one to ten based on their relative value, taking into account expected costs and benefits. These relative value ratings would enable consumers to contract with insurers for different levels of medical care at different prices, reflecting different cost-quality trade-offs.

The Article describes both the benefits of relative value health insurance and the impediments to its implementation. It concludes with a brief discussion of how relative value ratings could also help to rationalize expenditures on public health insurance programs.

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Judicial Independence and Social Welfare

Michael D. Gilbert
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NOTES

Plausible Absurdities and Practical Formalities: The Recess Appointments Clause in Theory and Practice

David Frisof

The recent controversy surrounding President Obama's recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was holding pro forma sessions illustrates the need to reach a new understanding of the Recess Appointments Clause of the Constitution. For the Recess Appointments Clause to be functional, it must fulfill two essential constitutional purposes: it must act as a fulcrum in the separation of powers, and it must ensure the continued exercise of the executive power. Achieving this functionality depends not only on the formal constructions of the Clause but also on the ways in which powers conferred under the Clause are exercised-in other words, on the constitutional expectations that the president and the Senate bring to recess appointments practice. The practical constitutional expectations that have governed recess appointments practice have largely prevented the active use of the Clause's many textually plausible absurdities that would utterly disrupt the Clause's functionality. In light of the role that constitutional expectations play in the functionality, and therefore constitutionality, of the Clause, the recent pro forma appointments controversy should not be resolved by the courts. Instead, both the pro forma sessions held by the Senate and the pro forma session recess appointments made by the president present a nonjusticiable political question. By declining to decide the constitutionality of these actions, courts will provide the executive and legislative branch the opportunity to ensure agreement as to both the construction ofthe Recess Appointments Clause and the attendant constitutional expectations that assure its functionality.

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Toward a Child-Centered Approach to Evaluating Claims of Alienation in High-Conflict Custody Disputes

Allison M. Nichols
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