Private Law Theory

ABSTRACT
Although private law has been dominated for over a century by theories that deflate legal concepts to policy reasoning, in recent decades a growing range of theories have come to take the conceptual language of common law reasoning seriously. This Chapter shows what these theories look like – and what their benefits might be – in a case study drawn from American healthcare finance. There are two sets of circumstances – one in tort and one in contract – where courts might be called on to adjudicate the ‘reasonableness’ of healthcare prices. Because of the peculiarities of the American healthcare system, there is no obvious way to do this. But a growing number of courts in the tort context, reasoning about the fundamental concept of ‘reasonableness’ in private law, have endorsed an approach of sending this question to the jury to consider on all relevant evidence. It would make a lot of sense for courts to apply this same reasoning in the contract context – and conceptual theories of private law, rather than deflationist ones, make the most direct sense of this move.

Toomey, James, Conceptual Private Law Theory in Healthcare Finance (June 23, 2023). Forthcoming in Health Law as Private Law (Cambridge University Press, I Glenn Cohen, Wendy Netter Epstein, Christopher Robertson and Carmel Shachar, eds, 2024).