In Defense of Circular Reasoning: The Affordable Care Act and the Resilience of Law and Self-Reference

Note from the Digital Editor: In order to highlight the high-level of research and scholarship from the authors who have published in the William & Mary Policy Review’s peer-reviewed print journal, we have reproduced the abstracts from Volume 5, Issue 1 along with a link to an electronic copy of the full form of the piece. 

Self-referential, circular phenomena abound in modern life. Markets plunge based on investors’ fear of a bear market. When a song is declared a hit, it is played on heavy rotation and therefore becomes well-known and popular. Broken windows beget more community disorder. In not only these but many other examples, self-reference rears its head. In each instance, the input generates the output which then itself constitutes an input. This paper looks specifically at self-referential phenomena in the health system as a means of understanding the functions self-reference may serve, and how law, itself a self-referential system, interacts with social ordering of a circular nature. This article examines two examples of circular decisions in the health system, and the two corresponding provisions of a particular legal regime, the health reform enacted by the Affordable Care Act of 2010 (ACA), that address these recursive patterns.

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Christina Ho is an Associate Professor of Law at Rutgers University.