In this lively and creative debate, titled Medicare: Did the Devil Make Us Do It?, Professor David Hyman, of the University of Illinois College of Law, and Professor Jill Horwitz, of the University of Michigan Law School, argue, rather literally, about the virtues and vices of the federal Medicare program. While some predict a bleak future for the American governments ability (or inability) to continue paying for Medicare as the population ages, this debate illustrates genuine disagreement about the severity of the problem.

Courts reviewing proposed mergers of nonprofit hospitals have too often abandoned the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition. This Article suggests that courts’ misapplication of antitrust law in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have rejected challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protects nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the core principles of antitrust law—preventing supracompetitive prices, optimizing output, and maximizing allocative efficiency—that have been absent from, if not violated by, the rulings in these merger cases.