:: “Lumping And Slicing” – Efficient Allocation Of Finite Resources
Lawrence Solum at the Legal Theory Blog notes a recent publication by Lee Anne Fennell (University of Chicago Law School) that takes a look at some of the issues attending allocation of entitlements.
The essay provides analysis of the incentives and hindrances that are involved in reconfiguring resources. This issue has significant bearing on the health care reform debate. In a reconfiguration of the allocation of resources, one must begin with the acknowledgment that resources are finite.
For example, regardless of ultimate policy objectives, most should agree that the Fourth Circuit made this point aptly in the context of ERISA health plans in Fielder:
The undeniable fact is that the vast majority of any employer’s healthcare spending occurs through ERISA plans. . . . From the employer’s perspective, the categories of ERISA and non-ERISA healthcare spending would not be isolated, unrelated costs. Decisions regarding one would affect the other and thereby violate ERISA’s preemption provision.
While Fennell’s observations are not directed at any particular legislation, much less health care reform, her analysis alerts us to important concepts that are constitutive of any legislative allocation of entitlements.
For example, she writes:
One interesting and important choice is whether law arrives from the factory (legislature) presliced, so that rules of limited and precise applicability are generated, or whether instead the slicing is done in the field, through choices about application and enforcement. The lumping and slicing of law itself is a little different than that of private property entitlements, in that the protocol under which these reconfigurations takes place is typically political in nature, so that unanimous consent is not required for a change. Still, efficient lumping and slicing may be easier or harder in some contexts than in others, and we might want to know what institutional body is in the best position to do the job.
Entertaining to read, and thought-provoking, the essay supplies the reader with a helpful framework for approaching issues of aggregation and division of entitlements.
Thanks to Lawrence Solum for calling the article to our attention. (If you haven’t visited, he has a really sharp presentation with great content over there at Legal Theory Blog.)
Postscript: See this link where Solum is presenting at the American Philosophical Association’s meeting, Pacific Division:
Invited Symposium: Philosophy of Law: What Determines the Content of Law
9:00 a.m.-Noon
Chair: Deirdre Golash (American University)
Speakers:
Mark Greenberg (University of California–Los Angeles)
“Foundations of Law: Moral Facts or Social Factsâ€
Lawrence Solum (University of Illinois–Urbana-Champaign)
“The Content of Nomoiâ€
Scott Shapiro (University of Michigan–Ann Arbor)
“The Planning Theory of Lawâ€
