Despite recent reforms, “balance billing” – the practice of charging patients exorbitant list prices for out-of-network or uninsured care – remains a potentially devastating feature of American healthcare. Most proposed solutions have been statutory or regulatory. But the common law offers an important intervention, consistent with private law theory, through a doctrine developed by a number of state courts and recently endorsed by the Eleventh Circuit in an adjacent area of law. Under traditional tort principles, injured plaintiffs are entitled to recover the “reasonable” costs of their medical expenses, regardless of whether they were covered by insurance. Reasoning that because, in the contemporary healthcare market, neither the amount billed by healthcare providers nor the amount paid by insurers is necessarily reasonable, these courts hold that the question of reasonable damages is for the jury, on consideration of the amount billed, the amount paid, and any other relevant evidence the parties present. A similar approach could be imported into the balance billing context, leaving to juries to determine the reasonable price of services, considering all relevant evidence. This wouldn’t solve all problems related to balancing billing, and the “reasonable price” determined by juries may still be out of reach of many patients. But unlike other judicial solutions, this proposal is thoroughly consistent with common law theory, translating basic private law principles to new contexts, rather than policy reasoning. Moreover, it may even improve the public legitimacy of the industry, ensuring that providers can never collect arbitrary post-facto amounts.

This chapter addresses the suggestion that for a special regime to exist, community members must have a shared repertoire. In the context of international law, to claim that a group of international law specialists have a shared repertoire is to assert that they consider the use of certain rhetorical tools appropriate. As Chapter 5 argues, the existence of such a presupposition can be inferred from, amongst others, the use by specialists of distinct concepts, a distinct terminology, a distinct method, and distinct theories.

This chapter proposes an inquiry into the surface of EU law. This implies a non-formalist study of legal forms such as legal sentences, concepts and techniques, a rich field of inquiry in itself. These are not mere tools, totally under control, used to achieve certain ends defined in other terms, outside the law. They are far more intriguing and fascinating than that. These legal forms participate to the constitution of legal and social realities that they pretend to regulate. They enable and limit what participants of a language-game can do, and they can even influence what they may want to do. The proposed methodology to study the CJEU implies focusing on law and legal concepts as a set of knowledge practices and inquiries on the transformative power of legal techniques. It should be distinguished from classical studies on the court, mainly dealing with interpretation, as well as from works focusing on power relations between legal actors. Through the presentation of some cases in EU citizenship case law, this chapter focuses on the constitutive dimension of the legal controversy surrounding the Court of Justice of the European Union’s rulings.

This chapter establishes the gap between reasoning from authority and the resolution of promisoory disputes,whether authority is found in rules, doctrine, standards, legal concepts, or theory.