1 John Crowley, Little, Big 32 (Harper Perennial ed. 2006).

2 See generally George J. Annas, Health Law at the Turn of the Century: From White Dwarf to Red Giant, 21 Conn. L. Rev. 551 (1989) [hereinafter White Dwarf]; M. Gregg Bloche, , The Invention of Health Law, 91 Calif. L. Rev. 247 (2003)Google Scholar; Henry T. Greeley, Some Thoughts on Academic Health Law, 41 Wake Forest L. Rev. 391 (2006); Mark A. Hall, The History and Future of Health Law: An Essentialist View, 41 Wake Forest L. Rev. 347 (2006) [hereinafter Essentialist View]; Rand E. Rosenblatt, The Four Ages of Health Law, 14 Health Matrix 155 (2004); S. Sandy Sandbar et al., Legal Medicine and Health Law Education, in Legal Medicine 3 (S. Sandy Sandbar et al. eds., 7th ed. 2007); Walter Wadlington, Some Reflections on Teaching Law and Medicine in Law School Since the ‘60s, 14 Health Matrix 231 (2004).

3 Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207, 207-08 (1996) (mocking “law and …” courses dedicated to a particular subject matter as dilettantism, analogous to “Law of the Horse.”).

4 See Darian M. Ibrahim, & D. Gordon Smith, , Entrepreneurs on Horseback: Reflections on the Organization of Law, 50 Ariz. L. Rev. 71, 76 (2008)Google Scholar (arguing that “a new field of legal study is justified when a discrete factual setting generates the need for distinctive legal solutions.”).

5 Jay Katz, The Silent World of Doctor and Patient (1984). See generally Ruth R. Faden et al., A History and Theory of Informed Consent (1986).

6 See generally George J. Annas, The Rights of Patients (3d ed. 2004).

7 Wendy K. Mariner, , Informed Consent in the Post-Modern Era, 13 L. & Soc. Inquiry 385, 393 (1988).Google Scholar

8 See generally Group Life & Health Insurance Co. v. Royal Drug Co., Inc., 440 U.S. 205 (1979) (applying Sherman Act to Blue Cross); Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984) (applying Sherman Act to insurer). See also, Utah County v. Intermountain Health Care, Inc., 709 P.2d 265 (Utah 1985) (revoking hospital's state tax exemption).

9 See generally Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (liability for health insurance coverage denials under ERISA and state common law); American Manufacturers Mutual Insurance Company v. Sullivan, 526 U.S. 40 (1999) (insurers handling state worker compensation programs are not state actors for purposes of the 14th Amendment); Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965), cert. denied, 383 U.S. 946 (1966) (applying corporate liability for negligence to hospital).

10 See generally Alberts v. Devine, 395 Mass. 59 (1985) (physician's duty of confidentiality).

11 Am. Soc’y Law and Med., Health Law and Professional Education: The Report of the Task Force on Health Law Curricula of the American Society of Law and Medicine, 63 Det. L. Rev. 245, 254-55 (1985) [hereinafter Task Force].

12 See generally Joseph Raz, The Rule of Law and Its Virtue, in Liberty and the Rule of Law 3 (1979); Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (2004); The Rule of Law: Ideal or Ideology? (Allan C. Hutchinson & Patrick J. Monahan, eds., 1987).

13 See generally Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (2006).

14 See generally Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987); Brian Tamanaha, Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (Oxford 1997); Mary L. Dudziak, Freedom is Not Enough: The Opening Up of the American Workplace (2006).

15 See, e.g., Adam Wagstaff, Social Health Insurance Reexamined 20 (World Bank Policy Research Working Paper No. 4111, 2007); Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 501, 502 (1999).

16 See generally Wendy K. Mariner, , Social Solidarity and Personal Responsibility in Health Reform, 14 Conn. Ins. L. J. 199 (2008).Google Scholar

17 See, e.g., Maxwell J. Mehlman, Wondergenes: Genetic Enhancement and the Future of Society (Indiana University Press) 84-86 (2003); Ruth Fletcher et al., Legal Embodiment: Analysing the Body of Healthcare Law, 16 Med. L. Rev. 321, 324-331 (2008).

18 See, e.g., Eleanor D. Kinney, Protecting American Health Care Consumers 9- 10 (2002); Wendy K. Mariner, Standards of Care and Standard Form Contracts: Distinguishing Patient Rights and Consumer Rights in Managed Care, 15 J. Contemp. Health L. & Pol’y 1, 3-4 (1998).

19 See Economic Policy Comm., European Comm’n, The Impact of Aging on Public Expenditure: Projections for the EU25 Member States on Pensions, Health Care, Long-Term Care, Education and Unemployment Transfers 2004-2050 5 (2006), http://ec.europa.eu/economy_finance/epc/documents/2006/ageingreport_en.pdf; Obijiofor Aginam, Global Health Governance: International Law and Public Health in a Divided World 70 (2005); European Observatory on Health Sys. & Policies, Social Health Insurance Systems in Western Europe 4 (Richard B. Saltman et al. eds., 2004), http://www.euro.who.int/document/E84968.pdf.

20 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), Preamble, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966) [hereinafter ICESCR], available at http://www.unhchr.ch/html/menu3/b/a_cescr.htm.

21 The Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., 1st plen. Mtg., U.N. Doc. A/810 (Dec. 12, 1948), available at http://www.un.org/Overview/rights.html. The International Bill of Rights consists of The Universal Declaration of Human Rights, id., the ICESCR, supra note 20, and the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), at 52, U.N. GAOR, 21st Sess., Supp. No. 16 (1966), available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm. Article 25(1) of the Universal Declaration of Human Rights states: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” Other articles specify related rights and the universality of all the rights described in the Declaration. For example, Article 1 states: “All human beings are born free and equal in dignity and rights.” Article 2 states: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Article 5 states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 9 states: “No one shall be subjected to arbitrary arrest, detention or exile.” Article 12 states: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.” The Universal Declaration of Human Rights, supra.

22 U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm. on Econ., Soc., and Cultural Rights, Report on the Twenty-Second, Twenty-Third and Twenty-Fourth Sessions, Annex IV, ¶ 8, U.N. Doc. E/2001/22-E/C.12/2000/21 (2001) [hereinafter General Comment].

23 Eleanor D. Kinney, The International Right to Health: What Does This Mean for Our Nation and World?, 34 Ind. L. Rev. 1457, 1467 (2001).

24 General Comment, supra note 22.

25 Id. at Annex IV, ¶ 33.

26 Wendy K. Mariner, Law and Public Health: Beyond Emergency Preparedness, 38 J. Health L. 247, 250 (2005) (noting parallels); Wendy K. Mariner, Public Health and Law: Past and Future Vision, 28 J. Health Pol., Pol’y & L. 525, 536-37 (2003) (same).

27 Comment 14 from the twenty-second session distinguishes the three obligations primarily in terms of whether the State or third parties are providing or interfering with access to health services. General Comment, supra note 22, Annex IV, at ¶ 33. For example, Comment 14 mentions an obligation to refrain from marketing unsafe drugs as part of the duty to respect the right to health and the similar duty to control the marketing of medical equipment and medicines by third parties as part of the duty to protect the right to health, thereby accounting for countries with either public or private systems. Id. at ¶¶ 34, 35.

28 Id. at ¶ 33.

29 Id. at ¶¶ 34, 35.

30 See World Health Org., Patients’ Rights, http://www.who.int/genomics/public/patientrights/en/ (last visited Feb. 19, 2009) (collection of international and national documents on patient rights).

31 General Comment, supra note 22 at ¶¶ 35, 51. The General Comment also mentions the obligation to refrain from marketing unsafe drugs and polluting the environment as part of the duty to respect. See id. at ¶ 34.

32 See generally William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America 14-15 (1996).

33 See generally Kenneth R. Wing, The Law and the Public's Health (6th ed. 2004).

34 See General Comment, supra note 22, at ¶ 36.

35 See id. at ¶ 37.

36 See Sophia Gruskin & Daniel Tarantola, Health and Human Rights, in Perspectives on Health and Human Rights 3, 3 (Sophia Gruskin et al. eds., 2005) (describing the recognition of the synergistic relationship between health and human rights).

37 ICESCR, supra note 20, art. 4.

38 Id. at art. 5.

39 See generally Comm’n on Soc. Determinants of Health, World Health Org., Final Report: Closing the Gap in a Generation: Health Equity through Action on the Social Determinants of Health (2008), http://whqlibdoc.who.int/publications/2008/9789241563703_eng.pdf.

40 See generally Why Are Some People Healthy and Others Not? The Determinants of Health of Populations (Roger G. Evans et al. eds., 1994); Ichiro Kawachi et al., Income Inequality and Health: A Reader (1999); World Health Org., Social Determinants of Health (Michael Marmot & R.G. Wilkerson eds., 2003), http://www.euro.who.int/document/e81384.pdf; Nancy E. Adler et al., Socioeconomic Status and Health: The Challenge of the Gradient, 49 Am. Psychologist 15 (1994); Adam Wagstaff & Eddy van Doorslaer, Income Inequality and Health: What Does the Literature Tell Us?, 21 Ann. Rev. Pub. Health 543 (2000).

41 See generally Barry Zuckerman et al., Why Pediatricians Need Lawyers to Keep Children Healthy, 114 Pediatrics 224 (2004); Steven H. Woolf, et al., The Health Impact of Resolving Racial Disparities: An Analysis of US Mortality Data, 94 Am. J. Pub. Health 2078 (2004)Google Scholar.

42 See A. J. McMichael et al., Global Environmental Change and Health: Impacts, Inequalities, and the Health Sector, 336 Brit. Med. J. 191, 193 (2008) (arguing that “the greater public health preventative challenge lies is stopping the process of climate change.”).

43 White Dwarf, supra note 2, at 552-3; Sandbar, supra note 2, at 6.

44 White Dwarf, supra note 2, at 567-8.

45 Easterbrook, supra note 3, at 207-08.

46 Almost all recent articles examining applied fields of law refer to Easterbrook's essay on cyberlaw. Id. See also Hall, supra note 2, at 355; Greely, supra note 2, at 404-05; Lessig, supra note 15, at 501. Easterbrook's essay itself did not offer a definition for a field of law, apart from referencing an admonition that “‘Law and …’ courses should be limited to subjects that could illuminate the entire law.” Easterbrook, supra note 3, at 207.

47 Authors describe particular fields in different terms, often without specifying independent criteria. See, e.g., W. Cole Durham Jr., Revivifying the Field of Law and Religion, 57 Emory L. J. 1411, 1411 (2008); Brian Leiter, The End of Empire: Dworkin and Jurisprudence in the 21st Century, 36 Rutgers L. J. 165, 165 (2004) (taking “stock of the field of law and philosophy”); Lessig, supra note 15, at 502; Jacqueline Lipton, A Framework for Information Law and Policy, 82 Or. L. Rev. 695, 700 (2003) (arguing for a new field of “information law” that focuses on information, in contrast to cyberlaw, which the author argues focuses instead on the technology).

48 William Blackstone, Commentaries on the Laws of England: In Four Books 161 (London, A. Strahan for T. Cadell and W. Davies 1803). See also Thomas F. Gordon, A Digest of the Laws of the United States 553 (Philadelphia, printed for the author 1827) (including the chapter “Of Quarantines and Health Laws”). See generally Bertram Jacobs, A Manual of Public Health Law (1912); LeRoy Parker & Robert H. Worthington, The Law of Public Health and Safety (Albany, M. Bender 1892).

49 See J. H. Balfour Browne, The Medical Jurisprudence of Insanity (London, J. & A. Churchill 1871); James C. Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth Century America (1993); John Ordronaux, Jurisprudence of Medicine in its Relation to the Law of Contracts, Torts, and Evidence (Philadelphia, T. & J.W. Johnson 1869); Isaac Ray, A Treatise on the Medical Jurisprudence of Insanity (Boston, Little, Brown, & Co. 1838). See also Sandbar, supra note 2, at 2 (briefly describing the history of medical jurisprudence in the United States).

50 John Ordronaux, The Jurisprudence of Medicine in its Relations to the Law of Contracts, Torts, and Evidence (The Lawbook Exch., Ltd. 2006) (1869). See also Obituary Notes, January 21, 1908, N. Y. Times, http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9E0DE0DD113EE033A25752C2A9679C946997D6CF (detailing Ordronaux' teaching career at Columbia, Dartmouth, University of Vermont, and Boston University).

51 Joseph K. Angell & Thomas Durfee, A Treatise on the Law of Highways; (Boston, Little, Brown, & Co. 1857).

52 Isaac F. Redfield, Practical Treatise upon The Law of Railways. (Boston, Little, Brown, & Co. 1858) (Chief Justice of Vermont).

53 William L. Scott & Milton P. Jarnagin, A Treatise upon the Law of Telegraphs; (Boston, Little, Brown, & Co.1868).

54 G. A. Endlich, The Law of Building Associations: Being a Treatise upon the Principles of Law Applicable to Mutual and Co-operative Building, Homestead, Saving, Accumulating, Loan and Fund Associations, Benefit Building Societies, & c., in the United States (Jersey City, Frederick D. Linn & Co. Law Publishers and Booksellers 1882).

55 Joel Prentiss Bishop, The First Book of the Law; Explaining the Nature, Sources, Books, and Practical Applications of Legal Science, and Methods of Study and Practice. § 321, at 219 (Boston, Little, Brown, & Co. 1868).

56 Id. at 234.

57 Id. at 220-221.

58 Id. at 219.

59 William J. Prosser, Handbook of the Law of Torts 2 (3d ed. 1964).

60 See William Gregory, Gregory's Hornbook on the Law of Agency and Partnership 2 (2001).

61 An analogy might be the specialty (and department) of medicine in medical schools, which includes many subspecialties, including cardiology, pulmonology, oncology, infectious diseases, and many others.

62 Bishop, supra note 55, at § 327, 221.

63 See Steven F. Friedell, Benedict on Admiralty § 1, at 1-2 (7th ed. 2005).

64 See 1 Anne Gilson Lalonde et al., Gilson on Trademarks § 1.01[2], at 1-6 (Matthew Bender 2008).

65 Arthur Linton Corbin, Corbin on Contracts, §1.1, at 1 (Matthew Bender 2008).

66 See Prosser, supra at note 59, at 2-3 (“there is a central theme, or basis or idea, running through the cases of what are called torts, which, while difficult to put into words, does distinguish them in a greater or less degree from other types of cases.”). Prosser nonetheless objected to attempts “to reduce the entire law of torts to a single broad principle ….” Id. at 4. Yet he did define it as “a body of law which is directed toward the compensation of individuals, rather than the public, for losses which they have suffered in respect of all their legally recognized interests, rather than one interest only, where the law considers that compensation is required …. The law of torts, then, is concerned with the allocation of losses arising out of human activities ….” Id. at 6.

67 Aaron Caitlin et al., National Health Spending in 2005: The Slowdown Continues, 26 Health Affairs 142, 142 (2007); John A. Posal et al., Health Spending Projections Through 2016: Modest Changes Obscure Part D's Impact, 26 Health Aff. w242, w242 (2007) (projecting 19.6% of GDP by 2016). See also Thomas M. Selden & Merrile Sing, The Distribution of Public Spending for Health Care in the United States, 27 Health Aff. w349 (2008). For current statistics and the health care cost percentage of the gross domestic product, see DHHS, Centers for Medicare and Medicaid, Services, National Health Expenditure Data, http://www.cms.hhs.gov/NationalHealthExpendData/02_NationalHealthAccountsHistorical. asp#TopOfPage (last visited Mar. 18, 2009).

68 John P. Heinz et al., Urban Lawyers: The New Social Structure of the Bar 1-9 (2005); Robert Nelson, The AJD Project: The First National Longitudinal Study of Lawyer Careers, 36 Sw. U. L. Rev. 355, 357-58 (2007) (reporting a shift from professional firms to large firms and organizations, both public and private, an increase in specialization and business representation among practicing lawyers, and “a very stark prestige hierarchy across fields of law.”).

69 White Dwarf, supra note 2, at 554.

70 I confess to attempting the same thing when I began teaching health law. I initiated and chaired the Task Force on Health Law Curricula, which produced a report, “Health Law and Professional Education,” for the American Society of Law and Medicine. Task Force, supra note 11. The Task Force was charged with developing not a theory, but an overview of the health law field, describing the objectives of teaching health law, and making recommendations for curriculum content. It was a practical report for faculty. However, it claimed, perhaps presumptuously, to present a conceptual model of health law as a working definition of the field, but cautioned that its report was highly preliminary and expected the field to evolve with the subject matter, as it indeed has.

71 Wadlington, supra note 2, 160-64.

72 “Law and Medicine” is one of the 20 chapters in 3 The Cambridge History of Law in America, The Twentieth Century and After (1920- ) (Michael Grossberg & Christopher Tomlins eds., 2008).

73 See discussion of challenges, supra Part II.

74 Clark C. Havighurst, Health Care Law and Policy: Readings, Notes, and Questions 1 (1988). See generally George J. Annas et al., American Health Law (1990); William J. Curran & E. Donald Shapiro, Law, Medicine, and Forensic Science (3d ed. 1982); Barry R. Furrow et al., Health Law: Cases, Materials and Problems (6th ed. 2008); Mark Hall et al., The Law of Health Care Finance and Organization (2d ed. 2008); Mark Hall et al., Bioethics and Public Health Law (2d ed. 2008); Mark Hall et al., Medical Liability and Treatment Relationships (2d ed. 2008); Kenneth R. Wing, The Law and American Health Care (1998); Rand E. Rosenblatt et al., Law and the American Health Care System (1997); Walter Wadlington et al., Cases and Materials on Law and Medicine (1980).

75 A third category, by far the largest although not discussed here, might be theories about the application of particular legal principles or doctrines to specific health issues to achieve normative goals, but which do not purport to describe or apply to the entire field of health law, however defined. See generally Wendy E. Parmet, Populations, Public Health, and the Law (2009) (arguing for imbuing certain constitutional law doctrines with what she calls the public health perspective, without purporting to define the field); Nan D. Hunter, Managed Process, Due Care: Structures of Accountability in Health Care, 6 Yale J. Health Pol'y L. & Ethics 93 (2006).

76 See, e.g., Einer R. Elhauge, Can Health Law Become a Coherent Field of Law?, 41 Wake Forest L. Rev. 365, 365 (2006) (“health law, today, is not yet a coherent field of law.”); Greeley, supra note 2, at 398; Mark A. Hall et al., Rethinking Health Law: Introduction, 41 Wake Forest Law Review 341, 341 (2006) (health law is haunted by a “specter of exhaustion”); Clark C. Havighurst, , Health Care as a Laboratory for the Study of Law and Policy, 38 J. Legal Educ. 499, 499 (1988)Google Scholar (noting that health law does not have “a discrete body of legal doctrine.”); White Dwarf, supra note 2, at 555; Kenneth R. Wing, Letter to the Editors of Health Matrix, 14 Health Matrix 237, 238, 242 (2004) (“[t]here is no severable body of principles, or even a set of issues, defined by either circumstances or type of controversy …. I do not think that there is much out there that deserves to be called health law, let alone a whole field of it.”).

77 Greeley, supra note 2, at 402, 407.

78 Nan D. Hunter, , Risk Governance and Deliberative Democracy in Health Care, 97 Geo. L.J. (forthcoming 2008); Mark A. Hall, Law, Medicine, and Trust, 55 Stan. L. Rev. 463, 465 (2002)Google Scholar [hereinafter Trust]; Essentialist View, supra note 2, at 357.

79 Greeley, supra note 2, at 400; White Dwarf, supra note 2, at 553-54; Wing, supra note 76, at 237.

80 Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, N.Y. Times, Mar. 19, 2007, at A8.

81 See generally Samuel Williston, The Law of Contracts (1922).

82 Essentialist View, supra note 2, at 357-58 (discussing medicine, the relationship between physicians and patients, and the financing of medical care); Trust, supra note 78, at 469 (viewing the law pertaining to medical care through the lens of trust).

83 See, e.g., Clark C. Havighurst, Health Care Choices: Private Contracts as Instruments of Health Care Reform 89-103 (1995); Elhauge, supra note 76, at 372.

84 See, e.g., Bloche, supra note 2, at 299-301; Rand E. Rosenblatt, Conceptualizing Health Law for Teaching Purposes: The Social Justice Perspective, 38 J. Legal Educ. 489, 491- 94 (1988).

85 Barry R. Furrow, From the Doctor to the System: The New Demands of Health Law, 14 Health Matrix 67, 69 (2004).

86 See generally William J. Curran, Law and Medicine: Text and Source Materials on Medico-Legal Problems (1960) (describing earlier physician-centered doctrines on expert testimony, the locality rule, physician standards of disclosure, and confidentiality).

87 See, e.g., Roger G. Noll & Bruce M. Owen, The Political Economy of Deregulation: Interest Groups in the Regulatory Process 155 (1983); Dion Casey, Note, Agency Capture: The USDA's Struggle to Pass Food Safety Regulations, 8 Kan. J. L. & Pub. Pol’y 142, 154-56 (1998).

88 See Furrow, supra note 85, at 69-70 (describing the historical evolution in which “courts nipped and tucked the edges of the provider-patient relationship” and “judicially developed general legal and ethical principles governed the dyadic relationship of a sole practitioner and patient.”).

89 Compare, P. Sieghart, Professions as the Conscience of Society, 11 J. Med. Ethics 117, 117-20 (1985) (positing that the rule of conduct in professional ethics is “the service of a noble cause,” which differentiates true professions from other trades or occupations) with R. S. Downie, Professional Ethics, 12 J. Med. Ethics 64, 64 (1986) (challenging Sieghart's arguments and considering that “there is nothing to distinguish the professional from other occupations in terms of the criteria of self-interest and altruism.”).

90 See Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint 4 (2008) (arguing that law should serve the goal of public health).

91 See Wendy K. Mariner, Law and Public Health: Beyond Emergency Preparedness, 38 J. Health L. 247, 250 (2005).

92 See Rand E. Rosenblatt, , Health Care Reform and Administrative Law: A Structural Approach, 88 Yale L. J. 243, 258-259 (1990).Google Scholar

93 See Hunter, supra note 78, at 2.

94 Essentialist View, supra note 2, at 357.

95 Id. at 356 (defining comparative institutional analysis, generally, as “a method of inquiry that strives for a value-neutral reflection on which of several competing institutional, social, or theoretical approaches is best suited to the problem at hand.”). See generally Institutions and Public Law: Comparative Approaches (Tom Ginsburg et al. eds., 2005).

96 Hunter, supra note 78.