Curriculum Vitae

Clark C. Havighurst

Personal Information

Business Address:	Duke University School of Law Box 90360 Science Drive & Towerview Road Durham, North Carolina 27708-0360 Telephone: 919.613.7061 Fax: 919.613.7231 Internet: hav@law.duke.edu
Home Address:	6 Caswell Square 1109 Fearrington Post (mailing address) Pittsboro, NC 27312 Telephone: (919) 542-5084
Born:	May 25, l933, Evanston, Illinois
Marital Status:	Married, two children

Education

A.B., Princeton University, 1955, magna cum laude
J.D., Northwestern University, 1958, Order of the Coif

Experience and Employment

Professor of Law, Duke University, l968-86, 2002-05
William Neal Reynolds Professor of Law, Duke University, 1986-2002 (Emeritus since 2002)
Interim Dean, Duke University School of Law, July-December 1999
Professor of Community Health Sciences, Duke University Medical Center, l974-2005
Associate Professor of Law, Duke University, l964-68
Faculty Member, Institute of Policy Sciences and Public Affairs, Duke University, l973-77
Editor, Law and Contemporary Problems, Duke University, l965-70
Scholar in Residence, RAND Institute of Civil Justice and RAND Health, RAND Corporation, Santa Monica, Spring 1999
Consultant, Epstein, Becker & Green, P.C. (resident in Washington, D.C.), 1989-90
Consultant, Federal Trade Commission (resident in Washington, D.C.), 1978-79
World Health Organization Fellow, United Kingdom and Sweden, Summer l976
Scholar in Residence, Institute of Medicine, National Academy of Sciences, l972-73
Visiting Senior Scientist, Health Services Research Center, InterStudy, Minneapolis (resident in Washington, D.C.), l972-73
Visiting Tazewell Taylor Professor of Law, Marshall-Wythe School of Law, College of William & Mary, Spring Semester 1988
Visiting Professor of Law, University of Michigan, Fall Semester l983
Visiting Professor of Law, Northwestern University, Spring Semester l970
Visiting Associate Professor of Law, Stanford University, Spring Semester l968
Private practice of law, Debevoise, Plimpton, Lyons & Gates, New York, l958, l96l-64
Research Associate, Duke University School of Law, l960-61
U.S. Army, l958-60 (legal clerk)
Comment Editor, Northwestern University Law Review, l957-58

Teaching

Later: Health Care Law and Policy; Antitrust Law; Health Care: Emerging Issues
Earlier: Regulated Industries; Seminar on Air Pollution; Seminar on Decision Making on Health and Environmental Hazards; Securities Regulation; Corporate Finance; Seminar on Corporate Insiders' Problems; Administrative Law; Legal Accounting

Honors, etc.

Member, Institute of Medicine, National Academy of Sciences, since l982
Listed in Who's Who in America and International Who's Who
Recipient, McDonald-Merrill-Ketcham Award, Indiana University (2000)
A. Kenneth Pye Award, Duke Law School (2005)
Lifetime Achievement Award, Health Law Teachers Section of the American Society of Law, Medicine & Ethics (2008)

Selected Activities

Member, National Advisory Committee, Robert Wood Johnson Foundation Investigator Awards in Health Policy Research, 2003-08.
Chair, Steering Committee, Center for Genome Ethics, Law, and Policy, Duke University Institute for Genome Sciences and Policy, 2000-03
Member, Board of Health Care Services, Institute of Medicine, 1987-97
Adjunct Scholar in Law and Health Policy, American Enterprise Institute for Public Policy Research, l976-
Executive Director, Private Adjudication Center, Inc., 1988-89
Director, Program on Legal Issues in Health Care (pursuant to grants from National Center for Health Services Research, DHHS), l974-87
Director, Committee on Legal Issues in Health Care (pursuant to Contract No. HSM ll0-69-2l4, DHEW), l969-74
Chair, Health Committee, American Bar Association Section of Administrative Law and Regulatory Practice, 1990-94
Chair, Management Committee and Board of Editors, Journal of Health Politics, Policy and Law, 1985-94; Member, Board of Editors, 1975-94
Chair, Board of Editors, Law and Contemporary Problems, 1986-88
Chair, Section on Law and Medicine, Association of American Law Schools, l985-86
Bar admissions: Illinois (1958) and New York (1961)
Chairman, Triangle Opera, 1994-98
Member, Board of Directors, North Carolina Opera, 2002-

Selected Publications (Health Care)

“Still Unfair to the Working Class: Health Care under the Affordable Care Act” (working paper 2011)
(in press) “Who Pays? Who Benefits? Unfairness in American Health Care,” Notre Dame Law Review (forthcoming 2011) (with Barak D. Richman)
“The Provider Monopoly Problem in Health Care,” 89 Oregon Law Review 847-83 (2010) (with Barak D. Richman)
“Private Health Plans: Where Is the Value? What Is the Point?” (Health Policy Outlook, American Enterprise Institute, Oct. 2009)
“Trafficking in Human Blood: Titmuss (1970) and Products Liability,” Law and Contemporary Problems, Summer 2009, pp. 1-15.
“Destructive Innovation: The Demand Side,” 27 Health Affairs 1341-44 (2008)
“Who Pays for Health Insurance?” Wall Street Journal, Sept. 8, 2007 (op-ed, with Barak D. Richman)
2007-08 Supplement for C. Havighurst et al., Health Care Law and Policy: Readings, Notes, and Questions (Foundation Press 1998) (with James Blumstein and David Hyman)
“Distributive Injustice(s) in American Health Care,” 69 Law and Contemporary Problems 7-82 (Autumn 2006) (with Barak D. Richman) http://law.bepress.com/alea/15th/bazaar/art27
“Foreword: Health Policy’s Fourth Dimension,” 69 Law and Contemporary Problems 2-6 (Autumn 2006) (with Barak D. Richman)
Special Editor, Symposium, “Who Pays? Who Benefits? Distributional Issues in Health Care,” 69 Law and Contemporary Problems (Autumn 2006) (with Barak D. Richman)
“Libertarian Health Policy,” 25 Health Affairs 1740-41(2006) (book review)
“Contesting Anticompetitive Actions Taken in the Name of the State: State Action Immunity and Health Care Markets,” 31 Journal of Health Politics, Policy and Law 587-607 (2006)
“Reviving Managed Health Care with Health Savings Accounts,” 24 Health Affairs 1490-1500 (2005) (with Mark A. Hall)
“Medical liability reform--the case for creativity,” DukeMed Magazine (Spring-Summer 2005)
“Monopoly Is Not the Answer,” 24 Health Affairs W5-373-75 (Web Exclusive, Aug. 9, 2005)
“Starr on the Corporatization and Commodification of Health Care: The Sequel,” 29 Journal of Health Politics, Policy and Law 947-68 (2004)
“I’ve Seen Enough! My Life and Times in Health Care Law and Policy,” 14 Health Matrix 107-30 (2004)
2002-03 Supplement for C. Havighurst et al., Health Care Law and Policy: Readings, Notes, and Questions (Foundation Press 1998) (with Blumstein and Brennan)
“An Apology for Professionalist Regimes,” 28 Journal of Health Politics, Policy and Law 159-64 (2003) (Book Review of Eliot Freidson, Professionalism: The Third Logic)
Special Editor, Symposium, “Is the Health Care Revolution Finished?,” Law & Contemporary Problems, Autumn 2002
“Is the Health Care Revolution Finished? A Foreword,” in id., pp. 1-9
“How the Health Care Revolution Fell Short,” in id., pp. 55-101
“Health Care as a (Big) Business: The Antitrust Response,” 26 Journal of Health Politics, Policy and Law 939-55 (2001)
“Evidence: Its Meanings in Health Care and in Law,” 26 Journal of Health Politics, Policy and Law 195-211 (2001) (summary of a workshop) (with Peter Barton Hutt, Barbara McNeil, and Wilhelmine Miller)
“Consumers versus Managed Care: The New Class Actions,” Health Affairs, July-Aug. 2001, pp. 8-27
“The Backlash Against Managed Care: Hard Politics Make Bad Policy,” 34 Indiana Law Review 395-417 (2001)
2000-01 Supplement for C. Havighurst et al., Health Care Law and Policy: Readings, Notes, and Questions (Foundation Press 1998) (with Blumstein and Brennan)
“American Health Care and the Law – We Need to Talk!”, Health Affairs, July-Aug. 2000, pp. 84-106, reprinted in M. Gregg Bloche, ed., The Privatization of Health Care Reform: Legal and Regulatory Perspectives 1-21(Oxford U. Press 2002)
“Vicarious Liability: Relocating Responsibility for the Quality of Care”, 26 American Journal of Law and Medicine 7-29 (2000)
“Freedom of Contract: The Unexplored Path to Health Care Reform,” in American Health Care: Government, Market Processes and the Public Interest (Independent Institute, San Francisco, 2000)
Teacher’s Manual (1999) for C. Havighurst et al., Health Care Law and Policy: Readings, Notes, and Questions (Foundation Press 1998) (with Blumstein and Brennan)
“Foreword: Managed Care -- Work in Progress or Stalled Experiment?, 35 Houston Law Review 1385-92 (1999)
“Legal Issues in Collaboration,” in Collaboration Among Competing Managed Care Organizations for Quality Improvement 9-29 (conference proceedings, Institute of Medicine, 1999)
Health Care Law and Policy: Readings, Notes, and Questions, The Foundation Press, Inc., Westbury, N.Y. (2d ed. 1998) (with James F. Blumstein & Troyen A. Brennan)
“Perspective: ‘Putting Patients First’: Promise or Smokescreen?,” Health Affairs, Nov.-Dec. 1997, pp. 123-25
“Making Health Plans Accountable for the Quality of Care,” 31 Georgia Law Review 587-647 (1997)
“Are the Antitrust Agencies Overregulating Physician Networks?,” 8 Loyola Consumer Law Reporter 78-97 (1996)
"Antitrust Issues in the Joint Purchasing of Health Care," 1995 Utah Law Review 409-50
Health Care Choices: Private Contracts as Instruments of Health Reform, AEI Press, Washington, D.C. (330 pp., 1995)
Special Editor, Symposium, "Private Accreditation in the Regulatory State," Law and Contemporary Problems, Autumn 1994
"Foreword: The Place of Private Accrediting Among the Instruments of Government," in id. at 1-14
"Accrediting and the Sherman Act," in id at 199-242 (with Peter M. Brody)
"Contract Failure in the Market for Health Services," 29 Wake Forest Law Review 47-70 (1994), reprinted in A Health Law Reader: An Interdisciplinary Approach 566-81 (J. Robinson et al., eds., 1999)
"Why Preserve Private Health Care Financing?," in R. Helms (ed.), American Health Policy: Critical Issues for Reform 87-115 (AEI Press 1993)
"Taxing Health Benefits: Snake Oil . . . or Smart Health Policy," 3 Journal of American Health Policy 33ff. (1993) (debate, with Lane Kirkland)
"By Fiat or By Choice? -- How Practice Guidelines Might Become Legal Standards," in D. Hadorn (ed.), Defining Health Care Needs and Basic Benefits Using Clinical Guidelines (California Public Employees Retirement System 1992)
"Accreditation Competition Needed," Modern Healthcare, Nov. 16, 1992 (editorial)
"American Federalism and American Health Care: Lessons for the European Community?," in H. Hermans, A. Casparie & J. Paelinck (eds.), Health Care in Europe After 1992 37-46 (Erasmus University, Rotterdam 1992)
Health Care Law and Policy: Readings, Notes, and Questions (1992 Supplement), The Foundation Press, Inc., Westbury, N.Y. (125 pp., 1992)
"Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow?," 140 U. Pa. L. Rev. 1755-1808 (1992)
"Practice Guidelines as Standards Governing Physician Liability," 54 Law and Contemporary Problems 87-117 (Spring 1991)
"S.1232: A Late Entry in the Race for Malpractice Reform," 54 Law and Contemporary Problems 179-97 (Spring 1991) (with Thomas B. Metzloff)
"The Art of Paying Physicians," in H. Frech (ed.), Regulating Doctors' Fees: Competition, Benefits, and Controls Under Medicare 132-36 (American Enterprise Institute, 1991), reprinted in Duke Law Magazine, Fall 1992
"Practice Guidelines for Medical Care: The Policy Rationale," 34 St. Louis University Law Journal 777-819 (1990)
"The Quality of Medical Care: Resolving Controversies Over a Sacred Cow," in Medical Quality and the Law 53-72 (Proceedings of the 1989 Chief Justice Earl Warren Conference on Advocacy, The Roscoe Pound Foundation, 1990)
"The Professional Paradigm of Medical Care: Obstacle to Decentralization," 30 Jurimetrics Journal 415-29 (1990)
"The Antitrust Challenge to the Professional Paradigm of Medical Care," The 1990 Michael M. Davis Lecture, Center for Health Administration Studies, Graduate School of Business, University of Chicago (May 4, 1990) (also published as part of the Proceedings of the 32nd Annual George Bugbee Symposium on Hospital Affairs)
"Malpractice Reform: Getting There by Private Vehicle," in M. Halley et al. (eds.), Medical Malpractice Solutions: Systems and Proposals for Injury Compensation 115-26 (1989)
"Applying Antitrust Law to Collaboration in the Production of Information: The Case of Medical Technology Assessment," Law and Contemporary Problems, Spring 1988, pp. 341-79
Teacher's Manual for C. Havighurst, Health Care Law and Policy: Readings, Notes, and Questions (Foundation Press 1988)
"Foreword," Symposium on Law and Medicine, 1989 U. C. Davis Law Review 269-73.
"Practice Opportunities for Allied Health Professionals in a Deregulated Health Care Industry," 18 Journal of Allied Health 9-32 (1989)
"Developing Noninstitutional Health Services: The Role of Certificate-of-Need Regulation," in F. Sloan & J. Blumstein (eds.), Cost, Quality, and Access in Health Care: New Roles for Health Planning in a Competitive Environment 71-90 (1988)
"Health Care As a Laboratory for the Study of Law and Policy," 38 Journal of Legal Education 499-504 (1988)
"Applying Anti-Monopoly Law to Doctors," in American Health Care: What Are the Lessons for Britain? 49-64 (Institute of Economics Affairs, London 1988)
Health Care Law and Policy: Readings, Notes, and Questions, The Foundation Press, Inc., Mineola, N.Y. (1293 pp., 1988)
"The Questionable Cost-Containment Record of Commercial Health Insurers," in H. Frech (ed.), Health Care in America: The Political Economy of Hospitals and Health Insurance 221-58 (1988)
"Liver Transplantation in Massachusetts: Public Policymaking as Morality Play," 19 Indiana Law Review 955-87 (1986) (with Nancy M. P. King), reprinted in J. Blumstein & F. Sloan (eds.), Organ Transplantation Policy: Issues and Prospects (Duke Univ. Press, 1989)
"The Lithotripsy Game in North Carolina: A New Technology Under Regulation and Deregulation," 19 Indiana Law Review 989-1024 (1986) (with Robert S. McDonough)
"Professional Peer Review and the Antitrust Laws," 36 Case Western Reserve Law Review 1117-69 (1986)
"The Changing Locus of Decision Making in the Health Care Sector," 11 Journal of Health Politics, Policy and Law 697-735 (1986), reprinted in L. Brown (ed.), Health Policy in Transition: A Decade of Health Politics Policy and Law 129-67 (Duke Univ. Press, 1987)
Co-editor, Symposium, "Medical Malpractice: Can the Private Sector Find Relief?" Law and Contemporary Problems, Spring 1986 (with Randall R. Bovbjerg)
"Private Reform of Tort-law Dogma: Market Opportunities and Legal Obstacles," in id. at 143-72
"Altering the Applicable Standard of Care," in id. at 265-75
"Medical Malpractice: An Update for Noncombatants," Business & Health, Sept. 1985, pp. 38-42 (with Randall R. Bovbjerg)
"Reforming Malpractice Law through Consumer Choice," Health Affairs, Winter 1984, pp. 63-70
"Doctors and Hospitals: An Antitrust Perspective on Traditional Relationships," 1984 Duke Law Journal 1071-1162
"The Structure of Hospital/Physician Relationships: The Interplay of Law and Policy," in D. Yaggy & P. Hodgson (eds.), Physicians and Hospitals: The Great Partnership at the Crossroads 113-38 (Proceedings of the Ninth Private Sector Conference, Duke University Medical Center, l984)
"The Debate over Health Care Cost-Containment Regulation: The Issues and the Interests," in J. Meyer (ed.), Incentives vs. Controls in Health Policy 9-25 (American Enterprise Institute, 1985)
"Private Credentialing of Health Care Personnel: An Antitrust Perspective" (pts. 1 & 2), 9 American Journal of Law & Medicine l3l-20l, 264-334 (1983) (with Nancy M. P. King)
"Health Planning and Antitrust Law: The Implied Amendment Doctrine of the Rex Hospital Case," l4 North Carolina Central Law Journal 45-74 (l983), reprinted in Specialty Law Digest: Health Care (Bureau of National Affairs), Sept. 1984, pp. 7-36
"The Doctors' Trust: Self Regulation and the Law," Health Affairs, Fall l983, pp. 64-76
"Decentralizing Decision Making: Private Contract versus Professional Norms," in J. Meyer (ed.), Market Reforms in Health Care: Current Issues, New Directions, Strategic Decisions 22-45 (American Enterprise Institute, l983)
"The Contributions of Antitrust Law to a Procompetitive Health Policy," in J. Meyer (ed.), Market Reforms in Health Care: Current Issues, New Directions, Strategic Decisions 295-322 (American Enterprise Institute, l983)
Book Review of Paul Joskow, Controlling Hospital Costs: The Role of Government Regulation, in 18 Health Services Research 93-97 (Spring 1983)
Deregulating the Health Care Industry: Planning for Competition, Ballinger Publishing Company, Cambridge, MA (492 pp., 1982)
"Enforcing the Rules of Free Enterprise in an Imperfect Market: The Case of Individual Practice Associations," in M. Olson (ed.), A New Approach to the Economics of Health Care 377-406 (American Enterprise Institute, l982) (with Glenn Hackbarth)
"Increasing Competition's Role in the Market for Health Services," in I. Ehrlich (ed.), National Health Policy: What Role for Government? 292-322 (Hoover Institution, l982)
"A Comment: The Antitrust Challenge to Professionalism," 41 Maryland Law Review 30-37 (1981)
"Competition in Health Services: Overview, Issues and Answers," 34 Vanderbilt Law Review lll7-58 (l98l)
"Health Planning for Deregulation: Implementing the l979 Amendments," 44 Law and Contemporary Problems 33-76 (l98l)
"Prospects for Competition under Health Planning-cum-Regulation," in National Health Insurance: What Now, What Later, What Never? 329 (American Enterprise Institute, l980)
"Competition and Health Care: Planning for Deregulation," Regulation, May/June l980, at 39 (with Glenn Hackbarth)
"The Antitrust Laws, the Federal Trade Commission, and Cost Containment," 56 Bulletin of the New York Academy of Medicine l69 (l980)
"Health Insurers and Health-Care Costs: Can the Problem Be Part of the Solution?" 5 Health Communications and Informatics 3l9 (l979)
"Antitrust Enforcement in the Medical Services Industry -- What Does It All Mean?" 58 Milbank Memorial Fund Quarterly 89 (l980)
"Private Cost Containment," 300 New England Journal of Medicine l298-l305 (l979) (with Glenn Hackbarth)
"The Antitrust Implications of Relative Value Studies in Medicine," 3 Journal of Health Politics, Policy and Law 48-86 (l979) (with Philip C. Kissam)
"More on Regulation: A Reply to Stephen Weiner," 4 American Journal of Law & Medicine 243-53 (l978)
"Private Cost Containment -- Medical Practice Under Competition," Socioeconomic Issues of Health l979 4l-65 (l979)
"Professional Restraints on Innovation in Health Care Financing," l978 Duke Law Journal 303-87
"Health Maintenance Organizations and the Health Planners," l978 Utah Law Review l23-54
"Advertising and Medical Ethics," in Encyclopedia of Bioethics (l978)
"The Role of Competition in Containing Health Care Costs," in Competition in the Health Care Sector 359-406 (Federal Trade Commission, l978)
"Health Care Cost-Containment Regulation: Prospects and an Alternative," 3 American Journal of Law & Medicine 309-22 (l977)
"Controlling Health Care Costs: Strengthening the Private Sector's Hand," l Journal of Health Politics, Policy and Law 47l-98 (l977); reprinted as American Enterprise Institute Reprint No. 68 (June l977)
"Strategies in Underwriting the Costs of Catastrophic Disease," 40 Law and Contemporary Problems l22-95 (l976) (with James F. Blumstein & Randall Bovbjerg)
"Legal Responses to the Problem of Poor-Quality Blood," in Blood Policy: Issues and Alternatives 2l-37 (American Enterprise Institute, l977)
"The Ethics of Cost Control in Medical Care," 60 Soundings 22-39 (Winter l977)
"Coping with Quality/Cost Trade-offs in Medical Care: The Role of PSROs," 70 Northwestern University Law Review 6-68 (l975) (with James F. Blumstein)
"Professional Standards Review Organizations and Health Maintenance Organizations: Are They Compatible?" 1975 Utah Law Review 38l-42l (with Randall Bovbjerg)
"Federal Regulation of the Health Care Delivery System -- A Foreword in the Nature of a `Package Insert,'" 6 University of Toledo Law Review 577-90 (l975); reprinted as American Enterprise Institute Reprint No. 43 (August l976)
"`Medical Adversity Insurance' -- Has Its Time Come?" l975 Duke Law Journal l233-80; revised and reprinted in Medical Malpractice: The Duke Law Journal Symposium (Ballinger Publishing Company, l977)
Editor, Regulating Health Facilities Construction: Proceedings of a Conference on Health Planning, Certificate of Need, and Market Entry, American Enterprise Institute, Washington, D.C. (314 pp., 1974)
"Speculations on the Market's Future in Health Care," in id. at 249-69
"Regulation of Health Facilities and Services by `Certificate of Need,'" 59 Virginia Law Review 1143-1232 (October 1973), summarized in Controls on Health Care 75-83 (Institute of Medicine, National Academy of Sciences, Washington, D. C., 1975) and in Hospitals (JAHA), June 16, 1974, pp. 65-71
"`Medical Adversity Insurance' -- A No-Fault Approach to Medical Malpractice and Quality Assurance," 51 Milbank Memorial Fund Quarterly: Health and Society 124-68 (Spring 1973) (with Dr. Laurence R. Tancredi), reprinted in Insurance Law Journal, Feb. 1974, pp. 69-100
"Appendix D: Separate Views of Professor Havighurst," in The Totally Implantable Artificial Heart, a report of The Artificial Heart Assessment Panel of the National Heart and Lung Institute (June 1973), DHEW Publication No. (NIH) 74-191
"Mechanisms for Compensating Persons Injured in Human Experimentation," in HEW Secretary's Task Force on the Compensation of Injured Research Subjects (Appendix A, January 1977), Publication No. OS-77-004
"Government's Increasing Involvement in the Health Care Sector: The Hazards of Regulation and Less Hazardous Alternatives," in National Health Council, Inc., The Changing Role of the Public and Private Sector in Health Care 34-49 (Report of the 1973 National Health Forum)
"Public Utility Regulation for Hospitals," American Enterprise Institute Reprint No. 17 (August 1973)
Special Editor and author of Forewords, Symposium, "Health Care" (parts I and II), 35 Law and Contemporary Problems Nos. 2 and 4 (1970, published 1971), reprinted as Health Care (Oceana Publications Inc. 1972)
"Health Maintenance Organizations and the Market for Health Services," in id. at 716-95
"Compensating Persons Injured in Human Experimentation," 169 Science 153-57 (10 July 1970), reprinted in Wertz, ed., Readings on Ethical and Social Issues in Biomedicine Prentice-Hall, Inc. (1973)
Editor and author of Foreword, Symposium, "Medical Progress and the Law," 32 Law and Contemporary Problems No. 4 (1967)
Congressional testimony on various topics, 1971-

Other Significant Publications

“Antitrust Law: Cases Before High Court,” National Law Journal, Jan. 15, 2007, p. 7
Deferred Compensation for Key Employees, pp. xi, 383, Callaghan & Co., Mundelein, Illinois (1964)
"Relative Priority of Federal Tax Liens and Assignments of Rents in Lease Financings," 19 Business Lawyer 939-54 (1964)
"The Continuing Inutility of Employee Stock Options in Closely Held Businesses," 18 University of Florida Law Review 215-69 (1965), reprinted in 7 Corporate Practice Commentator 103-24 (1965)