This paper examines public health law in the context of prospect theory, the leading behavioral account of risk aversion and risk-seeking. The paper first demonstrates how international environmental law can be mapped along prospect theory’s risk-seeking axis. It then completes this picture of prospect theory by examining National Federation of Independent Business v. Sebelius, which upheld the constitutionality of the Patient Protection and Affordable Care Act (“PPACA”). Although Sebelius upheld the PPACA as an exercise of the federal government’s taxing authority, it reasoned that a directive aimed at uninsured individuals to buy health insurance lay beyond the power of Congress to regulate interstate commerce. There is now at least a tacit liberty interest against being coerced to insure against health risks, enforced in constitutional doctrine through a limit on Congress’s power to regulate commerce. Applying that interest against coercion to defeat compulsory acceptance of annuity-like income streams would complete a legal axis that actively defends the right of the healthy, optimistic individual to refuse risk-averse hedges against improbable losses or against the comparably improbable failure to attain future wealth. For good or ill, therefore, the law of intellectual property and health care, as illustrated through international law on biodiversity conservation and through constitutional controversies involving universal health care coverage, appears to privilege private risk-seeking behavior over risk-averse public policy. So spins the law’s Pinwheel of Fortune.
James Ming Chen, Pinwheel of Fortune, 13 J. Marshall Rev. Intell. Prop. L. 761 (2014)