Professor Stavroulaki of Saint Louis University School of Law and a PhD graduate of the European University Institute has made an important contribution to the fields of health law, United States antitrust law, European competition law, and economic analysis of markets in this broad-reaching and potentially game-changing book. For the purposes of the International and Comparative Law JOTWELL section, her book is also a major work of comparative law, setting forth elegantly comparative features of US and European competition laws as applied to health care markets. The book as a whole and the last three chapters that take a deep dive into comparative law make Professor Stavroulaki’s work one I like a lot.
Framing this monograph is a critique of current approaches to competition law in the United States. Professor Stavroulaki starts from the traditional criticism of economic analyses of competition issues as focusing too much on the promotion of efficiency. Not only is efficiency gauged in stark quantitative terms, but it is also shaped in terms of consumer welfare, specifically the benefits to consumers from improved market competition. These benefits, under the current approach, are measured in terms of price reductions which allow for more consumers to be served with larger gains to individual purchasers. Professor Stavroulaki does not fully reject the consumer welfare approach, which has been the object of criticism by the Neo-Brandeisians (a criticism that underlay the alternate approach of the Federal Trade Commission under the Biden Administration). The Biden effort has been stopped by the new Administration, but it is not clear what has come into place. Professor Stavroulaki offers an approach that builds on the consumer welfare to consider the quality of what consumers receive in the marketplace in addition to the market’s ability to generate lower prices.
Quality is at the heart of Professor Stavroulaki’s analysis. That concept aids not only in disassembling the underpinnings of United States antitrust law, but also in highlighting the contrast between the United States and European approaches to competition law. With healthcare industries her focus, Professor Stavroulaki advocates for defining “quality in a way that reflects the notion that healthcare quality is a multidimensional concept consisting of the notions of effectiveness, safety, and acceptability” (P. 97). This wider definition “would incentivize the antitrust enforcers to create an analytical framework under which they would be able to balance the multiple components of healthcare quality against the harms caused to competition” (Id.) The Professor’s conception of quality to improve United States antitrust enforcement would harmonize it with the holistic approach of European competition authorities.
Put concisely, Professor Stavroulaki contrasts the market approach within United States competition law enforcement with the holistic approach within European competition law enforcement. The first emphasizes cost effectiveness and lowered prices; the latter takes into consideration questions of equity and access. Under the holistic approach, “competition authorities may extend the notion of consumer welfare in healthcare so that they can balance conflicts between the goals of competition and the non-economic facets of healthcare quality” (P. 185). An institutional split between the European Commission and European courts facilitates this holistic approach. The Commission initiates investigations of the factual basis for alleged competition law violations and makes legal determinations of anticompetitive behavior. The European courts review the Commission’s findings through appellate review. The courts also provide a forum for limited private disputes. As Professor Stavroulaki observes, the Commission takes an economic approach in its work while the courts take a pluralistic approach. The two institutions together make the holistic approach viable. Operating against the institutional backdrop of the Commission and the courts is the role of national and European legislation, what Professor Stavroulaki labels the regulatory approach. Competition legislation is more prominent in Europe than in the United States. For example, the Competition and Markets Authority in the United Kingdom established regulations for mergers and acquisitions. Professor Stavroulaki recommends that such regulations as they apply to the healthcare industry should transparently and effectively take into consideration the objectives of healthcare policy in guiding the industry to provide quality and accessible healthcare.
Professor Stavroulaki offers an approach to competition policy in the health care industry that builds on traditional antitrust principles from the United States and lessons from Europe. She emphasizes that the market-based approach to price competition is consistent with the promotion of quality. It is also valuable for transparency and correcting political or other biases in competition law enforcement. But the market-based approach is incomplete. The approach needs to be broadened to include the perspectives of other actors in healthcare in addition to patients, such as medical professionals and health care policies. The holistic and regulatory approaches serve to complement and expand the market-based approach. While offering flexibility and coordination between competition and healthcare policies, the holistic and regulatory approaches can be complex which can work against transparency. But these two approaches expand the ambit of competition law beyond narrow economic considerations to recognize the ways in which the market shapes the provision of health care.
Professor Stavroulaki’s analytical framework to assess antitrust issues in the healthcare industry is dense and rigorous. Its relevance is emphasized by her application at the end of the volume on issues related to the current issue of data privacy in health care mergers. The two examples presented are the Google/Fitbit merger, cleared by the European Commission in 2020, and the United Healthcare/Clear Care merger, challenged unsuccessfully by the United States Department of Justice in 2022. In each case, a critical issue was the potential anticompetitive effects of access to patient data. Also in each case, the reviewing body considered issues of data privacy in addition to the market effects of the merger. The approaches were holistic and guided by relevant legislation, as appropriate under the regulatory approach. Even if the mergers were approved partly on the grounds that data privacy would be protected by governing legislation, the analytical frameworks used in the two cases illustrate the approach Stavroulaki advocates. Against the politics of large tech mergers and hospital mergers, Professor Stavroulaki’s approach is analytically rich and outcome neutral. Whether it might ultimately be no different from a pure market analysis in terms of result is a point of debate. But it is hard to question Professor Stavroulaki’s contributions to the debate.
This monograph is worthy of several close reads. It contributes not only to the field of competition law but also through several chapters uses comparative analysis to construct a more comprehensive approach to the intersection of health law and competition law, offering a contrast between the United States and Europe. Scholars and students of these varied and overlapping fields should take note of this work. Within its pages is an invaluable method for comparative competition and health law. Professor Stavroulaki has laid a profound foundation for future work. The fruitfulness of her approach is illustrated by her forthcoming article in Northwestern Law Review on health care deserts in the United States, another piece of scholarship worth reading. This book is not only about quality, but also an exemplar of scholarship we like lots.
