Empirical Health Law Scholarship: The State of the Field

The last three decades have seen the blossoming of the fields of health law and empirical legal studies and their intersection, empirical scholarship in health law and policy. Researchers in legal academia and other settings have conducted hundreds of studies using data to estimate the effects of health law on accident rates, health outcomes, health care utilization and costs, and other outcome variables. Yet the emerging field of empirical health law faces significant challenges—practical, methodological, and political. The purpose of this Article is to survey the current state of the field by describing commonly-used methods, analyzing enabling and inhibiting factors in the production and uptake of this type of research by policymakers, and suggesting ways to increase the production and impact of empirical health law studies. In some areas of inquiry, high-quality research has been conducted and the findings successfully imported into policy debates and used to inform evidence-based lawmaking. In other areas, the level of rigor has been uneven and the best evidence has not translated into policy making. Despite challenges and historical shortcomings, empirical health law studies can and should have a substantial impact on regulations designed to improve public safety, increase access to and quality of health care and foster technological innovation. † Mello is the C. Boyden Gray Associate Professor of Health Policy and Law in the Department of Health Policy and Management of the Harvard School of Public Health. Zeiler is Professor of Law at the Georgetown University Law Center. The authors thank Kevin Davis, Daniel Fox, Glenn Cohen, Lawrence Gostin, and Charles Silver for helpful comments, and Isaac J. Wheeler and Alexander Parachini for excellent research assistance.