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Medicine and law as model professions: the heart of the matter (and how we have missed it).

ABSTRACT

This article has two coordinate goals: to undergird the functionalist understanding of professionalism with classical normative theory and to advance the classical theory of civic virtue with the insights of modern social science. More specifically, this article seeks to connect classical theories about the care of the body and the soul with modern theories of market and government failure, The first step is to distinguish two kinds of professions, caring professions like medicine and public professions like law, by identifying the distinctive virtue of each. The distinctive virtue of the caring professions is single-minded commitment to those in their care, their principals, to the virtual exclusion of all other concerns; the distinctive virtue of the public professions is commitment to the common good, sometimes even at the expense of their principals' self-defined interest. The next step is to show how these two distinctive professional virtues, the one principal-protecting, the other public-protecting, branch from the same root, the common function of all proper professions: guaranteeing the delivery of socially essential but necessarily esoteric knowledge when the usual protections of both private contracts and government regulation systematically fail. The third and final step is to map out the implications of this neo-classical understanding of professionalism, beginning at its core in the paradigmatic caring and public professions of medicine and law, through putative professions that take these as their models, to the kind of republican society that places care of individuals and concern for the public welfare at the center of its value system. The result of this analysis should be not only a fuller theoretical appreciation of professionalism's proper function, but also a practical guide to professionals themselves for better service to both the individuals in their care and the common good of all humankind.
TABLE OF CONTENTS

Introduction

I.   The Fundamental Faux Pas: Mistaking Liberal Learning as
     Essential to All Proper Professions
    A. The Functionalist Thesis: Professions as a Response to
       Both Market and Government Failure in the Provision of
       Necessary Specialized Knowledge
      1. Market Failures in the Provision of Specialized
         Knowledge
        a) Information Asymmetries: The Threat of Professionals
           to their Own Principals
        b) Externalities: The Threat of Professionals and their
           Principals to Third Parties and the Public
         (1) Undercompetence
         (2) Excessive Zeal
        c) Summary
      2. Government Failure in Regulating the Provision of
         Specialized Knowledge
      3. Professional Institutions as Superior Guarantors of
         Specialized Knowledge
      4. Summary
    B. Focusing the Functionalist Thesis: Narrowing the Field of
       Professional Knowledge
      1. The Line Between Artisans and Technicians:
         Distinguishing Informal from Formal Specialized
         Knowledge
      2. The Line Between Technicians and Professionals:
         Connecting Formal Occupational Knowledge
         General Cultural Knowledge
    C. Finding the Crucial Link with Liberal Learning
      1. The Law and Liberal Learning
      2. The Missing Link Between the Practice of Medicine and
         the Application of Liberal Learning

II.  Toward a Refined Functionalist Understanding
     Professionalism
    A. Professional Knowledge and Professional Virtue:
       Mapping Their Proper Relationship
       1. The Locus of Virtue in Public-Protecting
          Professions
       2. The Locus of Virtue in Principal-Protecting
          Professions
       3. Summary
    B. Professional Virtues and Professional Institutions:
       Re-Mapping the Boundaries Between the Professions, the
       Market, and the State
    C. Re-Integrating Professional Knowledge, Virtues, and
       Institutions: Refining the Ideal-Type Profession
      1. A New Taxonomy of Professional Virtue: One Genus,
         Two Species
      2. Comparison with the Prior Definition
       a) The Basic Agreement: A Common Focus on
          Professional Function
       b) The Critical Distinction: A New Focus on
          Professional Virtue
        (1) Specialized Knowledge as an Insufficient
            Condition
        (2) Market Control as an Unnecessary Condition
      3. Summary

III. The Implications of Neo-Classical Professionalism
    A. Revisiting Medicine and Law: Refining the Basic
       Concepts, Reforming the Paradigmatic Professions
      1. At the Core of the Legal and Medical Professions:
         Preserving the Critical Virtues
      2. In Between the Principal-Protecting and Public-Protecting
         Professions
       a) Hybrids: Double Doses of Professional Virtue
       b) Exceptions that Prove the Rules: Branches of
          Profession with the Virtues of the Other
       c) On the Frontiers of the Paradigmatic Professions
        (1) False Positives: Faux Professions
        (2) False Negatives: Unrecognized Professions
    B. The Professions and Other Occupations
      1. Professional Virtue as Neo-Classical, not Retro-Victorian
      2. Professional Virtue, the Virtues of Other Occupations,
         and Other Occupational Virtues
      3. Comparative Perspective: Professionalism in Other
         Times and Places
       a) The Necessary Knowledge Base
       b) The Relative Strength of Complementary Social
          Institutions
       c) The Social Ranking of the Values Professions
          Serve
    C. Paradigm Professions and Our Society: Law and
       Medicine as Both Limiting Cases and Cultural
       Mirrors
  Conclusion: From the Virtues of the Professions to the Values
              of the Republic


"Now I'll put my meaning in a clearer light, if I can. I maintain that these two, body and soul, have two arts corresponding to them; that which deals with the soul I call government, but though the subject of physical welfare constitutes a unity I cannot find a single name for the art which deals with the body, which has two branches, training and medicine. In the art of government what corresponds to training is called legislation and what corresponds to medicine is called the administration of justice. The members of each of these pairs, training and medicine, legislation and justice, have something in common, because they are concerned with the same object, but they are different from one another nonetheless. We have then these four arts, constantly concerned with the highest welfare of the body and

soul respectively...."

Plato (1)

"The secret of the care of the patient is in caring for the patient."

Dr. Francis Weld Peabody (2)

"[A] lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may call himself an architect."

Sir Walter Scott (3)

INTRODUCTION

Nearly everyone takes the three classic professions to be law, medicine, and the clergy. (4) By virtually all accounts--professional and lay, practical and theoretical, favorable and critical--this trinity of occupations, holy or otherwise, shares the core of what a profession should be. The breadth of this agreement is hardly an accident; it contains more than a grain of truth. But this agreement needs deeper analysis, because it also contains a fundamental mistake: the assumption that all three classic professions, and by extension all proper modern professions, rest on the same foundation of liberal learning. That assumption is demonstrably false, and its consequences have been pernicious.

From that bad seed has grown many a thorny problem in the academic study, self-perception, and public appreciation of the professions. We need to learn about the three classic professions what Sesame Street teaches about other incongruous catalogings: "One of these things is not like the others; one of these things doesn't belong." (5) The odd one out among the classic professions, this article argues, is medicine; once we see why the practice of medicine does not necessarily entail liberal learning, we can appreciate not only medicine's distinctive and legitimate claim to professional status, but also the common function of all proper professions.

By contrast, the practice of law, properly understood, closely approximates functionalist theory's ideal type of the classic profession: an occupation that serves an essential social value by combining esoteric technical knowledge with general cultural knowledge in a way that neither the regulatory state nor for-profit firms can guarantee as well, alone or together, as the occupation's own institutions. (6) With necessary adjustments for the clergy's place in modern secular societies, an equally plausible case can be made for that occupation's professional standing as well. (7) The problem lies with medicine, the third member of the classic professional trinity that is now very much primus inter pares.

Medicine's status as a profession poses this basic dilemma. On the one hand, the practice of medicine is not only a supremely important occupation, as Socrates anciently insisted; it is also the paradigmatic profession in our modern world. Physicians now eclipse lawyers and the clergy in what, at least for the laity, are the hallmarks of professional status: income, prestige, and power. In explicit recognition of this standing, theorists of professionalism have tended to take the practice of medicine as our society's closest approximation to the ideal-type profession, the model of what a profession should be if it were to function properly. (8)

On the other hand, the practice of medicine today lacks what professionalism's most sophisticated defenders take to be one of an ideal-type profession's defining attributes: an essential link between highly technical, socially valuable knowledge and a university-level liberal education. Put less abstractly, this is the rub: to serve you well, your lawyer, when you really need one (and your clergy-person, should you ever want one) must have not only a deep knowledge of the humanities, but also at least a passing familiarity with both the physical and the social sciences; your physician need only know the "hard" sciences (unless it is your psyche that is sick). (9)

This article addresses the dilemma of medicine's professional status with a double thesis: (1) the common core of all proper professions is a peculiar genus of occupational virtue; and (2) that genus has two main species, the principal-protecting, or caring, and the public-protecting, or public. That is the heart of the matter we have missed: the practice of medicine is the proper paradigm, not of professionalism in general, but of the caring professions in particular. Medical doctors need not master liberal learning to perform their social function properly.

But that function itself is literally vital: preserving and promoting life itself, the very foundation of all other human values. To perform that function properly, medical doctors must take the care of their individual patients as wholly to heart as is humanly possible. We, both as individuals and as a society, deeply want our doctors, day in and day out, to be caring and careful, to care for our lives as much and as well as they can, to the very limits of human capability. Doctors routinely hold our very lives, sometimes quite literally our hearts, in their hands. The kind of care appropriate to that situation is precisely what sets medicine apart as a profession and makes it the paradigm of all caring professions.

Again, to put the matter less abstractly, if your lawyer is a bit careless in handling your case (and if your plea is not for an eleventh-hour stay of execution), you'll most likely live to have a second lawyer amend any mistakes your first may have made. But if your family doctor fails to notice that that mold just above your hairline has taken an angry turn since your last routine check-up, you may very well die of metastatic melanoma, quite soon and quite painfully. (10)

Medicine, then, is better seen as the model, not of a learned profession, but of a caring profession. We certainly need doctors, and we need those doctors to be deeply committed to our care, not just rigorously trained and closely regulated. But those doctors do not generally need, as an essential part of their job-performance, a thorough grounding in the humanities and social sciences.

Failing to appreciate this distinction between a learned profession and a caring profession has had the most profound of consequences, in both theory and practice. On the theoretical side, it has fundamentally distorted our understanding of professionalism itself. On the practical side, it has seriously jeopardized the proper education of professionals. And that, in turn, has jeopardized the proper rendering of professional services, and thus the good of both individuals and society, not least our professionals themselves. We have made a very big mistake about medicine, and we need to fix it fast.

Part I of this paper begins this reassessment of medicine's unique status as a profession by sketching the necessary background: the broader debate over whether any occupation, in order to apply specialized knowledge to an essential social function, must be organized along the lines of the classic professions, with its members' performance guaranteed in important part by institutions internal to the occupation itself and distinct from the institutions of both the market and the state. The second section of Part I isolates the problem of medicine under the prevailing definition. Although classic professionalism theory holds that the professions must entail a wedding of technical knowledge and general knowledge, (11) the need for that "wedding" is dubious in the case of medicine. This section shows why the practice of medicine, in contrast to law, does not really require a liberal education, and thus why medicine's distinctive occupational status must be found elsewhere.

Part II undertakes that more positive task. The first step is to distinguish two kinds of professions---caring professions like medicine and public professions like law--by identifying the distinctive virtue of each. The distinctive virtue of the caring professions is single-minded commitment to those in their care, their principals, to the virtual exclusion of all other concerns; the distinctive virtue of the public professions is commitment to the common good, sometimes even at the expense of their principals' self-defined interest. The next step is to show how these two distinctive professional virtues branch from the same root, the common function of all proper professions: guaranteeing the delivery of socially essential but necessarily esoteric knowledge when the usual protections of both private contracts and government regulation systematically fail. Building upon these insights--the fundamental structure of professional virtue and the essential role of professional institutions in promoting that virtue--the final section of Part II outlines a refinement of the functionalist theory of the professions.

Part III works out the implications of that refined theory of the professions, in principle and in practice, from the specific to the general. Its first section applies that theory to the paradigmatic caring and public professions, medicine and law. The second section widens the focus of the revised theory to examine the professional claims of other occupations and to compare professional virtues with other occupational virtues. The final section turns the analytic lens around and raises, albeit only in a tentative way, the converse question: What kind of society does the neo-classical theory of the professions imply? Answering that question highlights the neo-classical republican elements in our present society, shared norms beyond both majority will and consumer preference.

And that, in turn, brings us around to understanding the problem with which we began: mistaking liberal learning as an essential element of the practice of medicine. A neo-classical republic honors wisdom above all other virtues. Its lawyers must make that virtue the foundation of their profession, if they are to protect the common good; all of its ablest citizens--doctors as well as lawyers, layfolk as well as professionals--must make wisdom not only the goal of their personal lives, but also the measure of their commonwealth.

I. THE FUNDAMENTAL FAUX PAS: MISTAKING LIBERAL LEARNING AS ESSENTIAL TO ALL PROPER PROFESSIONS

Certain occupations in our society have secured especially high social, economic, and political status by successfully claiming that they alone can best provide socially essential esoteric knowledge, and only under conditions of considerable occupational autonomy. These are the professions. The professions pose to those who study them two basic questions, one descriptive, the other normative. The descriptive question is this: What identifiable aspects of an occupation qualify it as a profession? The answer to that descriptive question, in turn, poses the normative question: Does a given profession--or any profession at all--actually merit its special status?

Students of the professions have tended to agree on the answer to the basic descriptive question, what an ideal-type profession would look like, even as they radically divide in their answer to the basic normative question, whether professions are a necessary mode of organizing the provision of certain services essential to the common good, or whether professions are the means by which certain occupations have been able to gain control of the provision of certain services to their own advantage as suppliers and to the detriment of the public as consumers. (12) Functionalists believe the professions serve the common good; (13) revisionists insist that they subvert it. (14)

All scholars, functionalists and revisionists alike, agree that any occupation's claim to professional status rests on applying a body of specialized knowledge in the provision of an essential service, the proper delivery of which can only be guaranteed by institutions internal to the occupation itself and relatively independent of both the market and the state. (15) This claim has three distinct components: (1) certain occupations provide essential services that entail a distinctive kind of knowledge; (2) optimal provision of those services cannot be guaranteed by ordinary contracts between service providers and service consumers, even with the routine intervention of the regulatory state; but (3) institutions within the occupation itself can, given sufficient power and autonomy, ensure optimal provision (or, more precisely, provision that is superior to any feasible alternative). (16) Functionalist defenders of professionalism affirm all three of these propositions; revisionist critics challenge one or more.

But, again, all scholars implicitly agree that, if there are to be legitimate professions, these three conditions must all be met. What is more, scholars also generally agree that medicine is the paradigmatic profession. (17) If any occupation deserves to be a profession, it is medicine; if medicine cannot be shown to warrant professional status, neither can any other occupation. Part I shows how both halves of this double claim come a cropper when we look closely at medicine and law under the prevailing paradigm: on the one hand, not all classic professions are necessarily learned, because medicine cannot be shown to require liberal learning; on the other hand, liberal learning is essential to at least one other classic profession, the law.

Part I.A sets out the general understanding of professions as uniquely effective providers of specialized knowledge, using the classic professions of law and medicine as examples. Part I.B narrows the focus on professional knowledge to isolate what is supposed to separate proper professions from other occupations that entail special knowledge, traditional artisans on the one hand and modern technicians on the other. Unlike artisans and technicians, proper professions are said to be "learned"; their members must master not only a body of special occupational knowledge, but also the advanced cultural knowledge associated with a college-level liberal education. (18) Part I.C then looks for that hybrid of special and general knowledge in two paradigmatically learned professions, law and medicine. This search yields decidedly different results for law and medicine. The general assumption that professional services necessarily entail liberal learning nicely fits the practice of law but poses insurmountable problems when applied to medicine. A central aspect of the practice of law--making plausible appeals to the public good--requires just that integration of advanced occupational and cultural knowledge. But the same cannot be said of medicine; its claim to professional status, as Part II shows, must lie elsewhere.

A. The Functionalist Thesis: Professions as a Response to Both Market and Government Failure in the Provision of Necessary Specialized Knowledge

As we have seen, all students of the professions, from the most optimistic functionalist to the most skeptical revisionist, agree on this: the legitimacy of any occupation's claim to be organized as an ideal-type profession rests on that occupation's delivery of a particular kind of specialized knowledge. To qualify as a profession, an occupation must deliver a form of esoteric knowledge that is essential to the performance of an important social function but that cannot be guaranteed by either the market or the state, but only by largely autonomous institutions of the occupation itself. (19)

This is, admittedly, both a complex and an abstract formula. The first step in unpacking it is to notice that it entails implicit claims of superiority to two other sources or guarantors of that specialized knowledge, the market and the state. The professions, in other words, are a double default mode in our basic system of state-regulated capitalist markets. In that system, consumers' first recourse for knowledge beyond their ken is to enter into ordinary contracts with private, for-profit firms; if those for some reason fail, consumers then look to government intervention in the market. Only when routine market provision and state regulation both fail do consumers look to professions as the appropriate providers. To understand the claims of professionalism to provide special knowledge, then, we need to look first for the kind of special knowledge that would not be readily available by purchase from private firms through garden-variety, two-party contracts.

But that is just the first step to showing why the occupation must be organized as a profession. Having identified this specialized knowledge, we must then identify reasons why government intervention is not an appropriate remedy. The professions' claim to provide specialized knowledge, in other words, will require both a market failure theory and a government failure theory. And so it does. (20)

1. Market Failures in the Provision of Specialized Knowledge

The claim that professions provide specialized knowledge unavailable from ordinary private firms involves two common forms of market failure identified by neo-classical economists, information asymmetries and externalities. (21) The former market failure occurs between the consumer and the provider; the latter occurs between the consumer and provider, on the one hand, and third parties, strangers to the transaction between the provider and consumer, on the other. (22) To illustrate both kinds of problems, let's consider a paradigmatic medical activity, surgery, and a paradigmatic lawyerly activity, medical malpractice litigation.

a. Information Asymmetries: The Threat of Professionals to their Own Principals

With respect to consumers of professional services, the problem is information asymmetry. (23) Remember the underlying facts in Hawkins v. McGee, (24) the contracts casebook classic. (25) A young man needs a skin transplant to restore a badly injured hand. He can neither perform the operation himself nor learn how at reasonable cost. Even if he knew how, it would be devilishly difficult to do the work himself, literally single-handedly. What is more, he cannot assess at reasonable cost whether anyone who purports to have the necessary knowledge and skill actually does have it and can be trusted to use it properly. He seems to need a professional, someone whom knowledgeable and trustworthy third parties certify has the necessary skills and applies them appropriately.

That was not, of course, quite what Mr. Hawkins got. Either because Dr. McGee lacked the relevant knowledge or because he failed to apply that knowledge properly to Mr. Hawkins's hand, the hair follicles of the skin transplanted to his palm were not destroyed; Mr. Hawkins was left, as every first-year law student knows, with a "hairy hand," the basis for a malpractice suit against Dr. McGee. (26)

Mr. Hawkins sought from his lawyer, as from his doctor, the proper application of specialized knowledge. Here, too, he would have met information asymmetries. A litigator must be able to assess the relative merits of the client's case, the likely gains from prevailing in that case over against the costs of prosecuting it, and the relative advantages of other modes of pursuing relief. And this is only the beginning. Once the case is underway, the lawyer must make a host of similarly complex assessments: whether to call a particular witness, whether to make an especially novel argument, whether to invoke an obscure line of precedent. The appropriate answer to each of these questions is difficult for lay-folk like Mr. Hawkins to assess. He cannot know whether a particular claim or strategy will succeed without studying law himself or taking other self-protective measures that are prohibitively expensive. As with Mr. Hawkins's doctor, then, so too with his lawyer: the services he needs from the one, like those from the other, are so unusual or complex that ordinary consumers like him cannot, at reasonable cost to themselves, independently evaluate whether the service actually delivered is of the quality promised or reasonably expected. (27) To assess whether their lawyers and doctors get these decisions right, clients and patients would need to have precisely the kind of knowledge that they lack, the kind of knowledge that leads them to need, and to hire, a lawyer or doctor in the first place. (28)

Conversely, both surgeons and litigators have an incentive to trade on their superior knowledge--and consumers' relative ignorance--to the consumers' disadvantage, in either of two basic ways. They can claim to have special expertise they lack, or they can cut corners and fail to take proper care in providing the knowledge they do have. The usual rule of the market, caveat emptor, would work badly in such cases; here the buyer may not know what to beware of, or even to beware at all. The fundamental problem for the consumers of services involving esoteric occupational knowledge, then, is one of information asymmetry--buying, not the proverbial pig in a poke, but the performance of a service in a black box. In the case of lawyers, that black box is the camera obscura of litigation; in the case of doctors, it may literally be the client's own skull, rib cage, or abdominal cavity.

b. Externalities: The Threat of Professionals and their Principals to Third Parties and the Public

Information asymmetries, we have seen, are the problem that putative professionals pose to the purchasers of their services. The purchase of professional services poses a second set of problems, externalities, to those outside the transaction. Because some costs and benefits of a transaction do not affect the parties to the transaction, but are in that sense "external" to them, the parties tend to ignore them. As a result, they tend to produce and consume the service in socially non-optimal amounts, and the consequences of their less than ideal consumption decisions fall on others. (29) In our paradigmatic medical and legal services (surgery and litigation), two recurrent problems--undercompetence and overzealousness--nicely illustrate the basic externality problems.

(1) Undercompetence

Let's consider first the simpler problem, undercompetence. As we have already seen, undercompetence is often a problem for the purchaser of the service; Dr. McGee's undercompetence is probably what caused Mr. Hawkins's "hairy hand." But that will not always be the case. If a consumer is in a position to recognize undercompetence or minimize its risks, that consumer may well use it to his or her advantage. Thus a client might well be willing to hire a lawyer relatively lacking in basic professional knowledge, on the assumption that such a lawyer will be comparatively cheap, even though the client knows the quality of service delivered will be correspondingly low. Assuming the client can assess the quality of the service delivered (in other words, there is no information asymmetry), and looking only at the transaction in terms of the lawyer and client, this is not particularly troubling. Some go to orthopedists with their back pain, others consult chiropractors or Christian Science healers, still others self-medicate with alcohol or other drugs. Similarly, some discuss the viability of their legal claims with lawyers, others never get past their bar tenders, or file pro se in small claims court. All, we can assume for present purposes, get what they pay for.

But the costs of undercompetence may not always be so nicely self-contained within the relationship of consumer and supplier, the client and lawyer in our example. If the ill-preparedness of the lawyer causes delays in court, or requires the judge to spend time and energy prompting or correcting the lawyer, then some of the costs of undercompetence are borne, not by the consumer (the lawyer's client), but by the rest of us, in the form of docket crowding or additional judges. So, too, with at least some forms of health care. If my faith healer fails to reduce my back pain, the discomfort is pretty much limited to me (although I may remain a pretty grouchy co-worker). But if my doctor dismisses my cough as the symptom of a common cold, rather than diagnosing it as an early sign of tuberculosis, you too may suffer, particularly if I'm your caterer or barista. Thus society, on purely efficiency grounds, has a legitimate interest in preventing consumers from externalizing such costs, whether they be associated with legal assistance or health care. (30)

(2) Excessive Zeal

Excessive zeal, the second source of externalities relevant to our analysis, is essentially the converse of undercompetence. Service providers can be excessively as well as insufficiently attentive to their clients, and this excessive zeal can produce external costs of its own. (31) Suppose litigational delay on the lawyer's part is not a by-product of undercompetence, but a carefully calculated strategy to achieve client advantage at the expense of another party. The client will, to be sure, have to pay the lawyer to undertake these "hard-ball," "pit-bull," "scorched-earth" tactics. "But," as I have argued elsewhere, "if the client does not also have to pay either the opposing party's legal fees in responding to such measures or society's costs in wasted judicial time and general fraying of the social fabric, the client has a perverse economic incentive to engage in tactics that no neutral observer would believe conducive to a resolution of the case on its merits." (32)

Medical care can pose parallel problems. If my physician over-prescribes antibiotics to me, the super-bugs that evolve may become a scourge to you as well. (33) More generally, if someone other than the patient pays for medical care, the doctor and patient may be tempted to pursue more therapies than might be appropriate if benefits were more objectively balanced against their full costs.

c. Summary

These examples of information asymmetries and external costs all suggest that at least some of the paradigmatic services rendered by both lawyers and doctors are not likely to be optimally provided by ordinary contracts between providers and consumers, lawyers and doctors on the one hand and clients and patients on the other. In the case of information asymmetries, providers have incentives to give consumers less than they are paying for. In the case of externalities, producers and consumers together tend to pass costs onto third parties or the public. To avoid these market failures, lawyers and doctors must be induced to deploy specialized knowledge in ways that ordinary market forces may not optimally reward.

2. Government Failure in Regulating the Provision of Specialized Knowledge

The standard response to these classic market failures is governmental intervention. That intervention, mapped along a spectrum from the least intrusive to the most, includes subsidizing or penalizing suppliers, imposing mandatory government standards, or even outfight government provision of the product in question. In the context of professional services, these regulatory measures typically include the following: special educational requirements, to ensure that the professionals are capable of providing the service in question; special fiduciary duties, to ensure that the services of the requisite quality are provided; and third-party monitoring of both training and service delivery. (34) Broadly stated, these market-correcting regulatory measures must ensure that the unqualified do not deliver services and that the qualified deliver them as promised, at an appropriate level of quality, and without excessive costs to either clients or third parties. (35) In principle, these regulatory correctives should be applied so long as their costs are lower than the benefits gained, so long, that is, as the prescribed regimen of governmental regulation isn't a cure more costly than the market malfunction it is intended to correct.

Why, we have to wonder, wouldn't these routine regulatory measures work to correct the market failures we have identified in the delivery of medical and legal services? Here proponents of traditional professions like law and medicine interpose a critical objection: All the problems with market provisions of professional services have correlates on the government side; when we look for regulatory corrections for these particular market failures, we run into corresponding government failures. In these cases, in other words, the regulatory correctives generally prescribed for market failures are either unsafe or ineffective.

All these government failures trace back to what functionalists take to be an essential feature of genuinely professional work. The proper use of professional knowledge includes the ability to apply general principles or techniques to the particular case at hand, very like what the ancients called "phronesis," or practical wisdom. (36) This necessarily requires a large element of discretion which is, by its very nature, difficult to cabin with bright-line, categorical rules. (37) Law, according to professionalism's defenders, is distinctly ill-equipped to ensure that this kind of discretion is properly exercised.

Consider, from this perspective, our earlier medical and legal examples. As we have seen, the litigating lawyer must know, not only the substantive laws in which clients' claims are grounded and the procedural laws by which those claims are asserted, but also subtle, difficult to calibrate matters such as what witnesses to call, how to question them, when to press on and when to leave off. So, too, with doctors in the examination and treatment of particular patients. (38)

Lawyers and doctors may omit some such measures because they do not know that those measures are critical in the case at hand; if you'll pardon the pun, that may well have been the problem in Hawkins v. McGee. Lawyers and doctors may also omit certain essential measures as a means of cutting costs without corresponding fee reductions, thus improperly increasing their private gains. In either case, capturing the proper measure of effort in a mathematically precise rule is quite problematic. (39)

Excessive zeal presents a parallel problem in both fields: Just as it takes an expert to know when professional knowledge is being applied poorly on the client's behalf, so it takes an expert to know whether that knowledge is being applied over-zealously, even maliciously, at the expense of the client's opponent or the general public. It is difficult to reduce the applicable standard to bright-line rules or protocols. The point, for example, at which a line of appropriately probing cross-examination veers toward harassment of a witness is impossible to specify with Euclidian clarity, even though an expert may be able to mark it, in practice, to a single moment or to detect it in a steady but subtle undercurrent of tone. (40) So, too, it may be apparent to any medical expert which suspicious "lumps" are dark or hard or otherwise abnormal enough to require a further battery of tests, even though these factors may not be possible to state literally "on paper" in generally applicable protocols or guidelines.

These considerations, according to functionalist theory, make it impossible for fungible state functionaries to measure professional performance by standardized, bureaucratic protocols. (41) Professional practice must, instead, be evaluated by the professional cognoscenti themselves with inevitably hazily-stated, "know it when I see it" standards rather than "hard and fast," bright-line rules. (42) Such standards are doubly difficult: On the one hand, their very looseness leaves lots of wiggle-room for the incompetent or unscrupulous; on the other hand, that same vagueness may force the conscientious to be overly cautious, doing sometimes more, sometimes less, than their best professional judgment dictates, lest they incur legal penalties. (43)

3. Professional Institutions as Superior Guarantors of Specialized Knowledge

Professional knowledge, then, poses dual problems: With their limited grasp of matters within the special purview of professionals, consumers cannot guarantee proper professional service through private contracts with suppliers; with its routine range of regulatory remedies, the state can neither prevent professionals from exploiting those information asymmetries nor prevent clients and their professionals from externalizing costs. (44) These two problems bring us to professionalism's third and final claim: Only institutions internal to the professions themselves can adequately guarantee proper acquisition and deployment of the relevant knowledge. The cure for abuses by ignorant or unscrupulous individual practitioners, in other words, is regulation by knowledgeable and conscientious professional groups.

In the face of the two besetting sins we have identified, undercompetence (taking advantage of the clients' relative ignorance) and externalities, (helping clients' externalize costs upon third parties and the public), the professions claim to provide two distinct virtues. The first involves placing the client's interests above the professional's own; the second, placing the public interest above the interests of both the client and the professional. (45) In the words of Justice O'Connor, "One distinguishing feature of any profession ... is that membership entails an ethical obligation to temper one's selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal fiat or through the discipline of the market." (46)

In functionalist theory, the organized, autonomous profession achieves proper deployment of professional knowledge through three basic means. First, the profession inculcates a commitment to the core professional virtues, particularly in the course of professional education, which it therefore needs to control. (47) Second, the profession denies admission into its ranks to those lacking in the relevant virtues, under its "character and fitness" requirements. (48) Third, the profession maintains a system of sanctions, positive and negative, that encourages its members to practice the requisite virtues and eschew the corresponding vices, upon pain of penalties that range from collegial reprimands to formal expulsion from the profession's ranks. (49) In combination, these professional institutions--education, admission, and regulation--ensure a level of performance above what consumers could obtain from any array of private contracts or public regulations. Or so the proponents of professionalism claim.

4. Summary

Functionalists claim that the necessarily discretionary application of professional knowledge presents difficulties of both ordinary market provision and routine state regulation. Relatively autonomous professional institutions are supposed to fill this double gap with special professional virtues. We will skeptically assess that claim in Part II; as we will see there, the claimed need for professional institutions proves rather too little. (50) The case for the superiority of professional self-regulation over state regulation is, at best, badly focused. The institutions of professionalism are neither necessary to guarantee the acquisition of professional knowledge nor sufficient to guarantee the exercise of professional virtue. Before turning to those problems with functionalist theory, however, we need to focus on a more basic problem, in the other direction: The functionalist definition of specialized professional knowledge tends to prove too much. Many occupations other than the classic professions seem to involve the kind of knowledge that requires considerable discretion in its application, which should lead to the same kinds of market and regulatory failures. Functionalism must thus distinguish professional services from a wide array of services that seem to require equally esoteric knowledge and an analogous regulatory regime.

B. Focusing the Functionalist Thesis: Narrowing the Field of Professional Knowledge

A complex economy involves many forms of specialized knowledge, from computer programming to auto repair; most of us can neither acquire that knowledge for ourselves at reasonable cost nor adequately assess it in others. To distinguish professionals from the wider range of those who provide these specialized knowledge-based services, scholars of the professions draw two critical lines. The first separates artisans from technicians; the second separates technicians from professionals. The requirement of university-based specialized education marks the first line; the necessary combination of university-based specialized education and university-based liberal education marks the second. As we shall see, scholars of the professions have never drawn either line very clearly and have blurred the second quite badly. (51)

1. The Line Between Artisans and Technicians:

Distinguishing Informal from Formal Specialized Knowledge

Functionalists concede that occupations other than professions also involve specialized knowledge, and that that knowledge, in turn, requires a measure of discretion on the part of practitioners that is hard to restrain with black-letter laws. (52) Remember Jerry Seinfeld and George Costanza's despair about over-priced auto mechanics:

George: Well, of course they're trying to screw you. What do you think? That's what they do. They can make up anything. Nobody knows. 'By the way, you need a new Johnson rod in there.' 'Oh, a Johnson rod. Yeah, well, you better put one of those on.' (53)

Furthermore, many non-professional services entail not only information asymmetries, but also externalities. If the providers of these non-professional services fail, it is not just consumers who will suffer, but also third parties, and sometimes more than in the case of improperly performed professional work. A poorly drafted will may cost the client's beneficiaries a fortune in the relatively distant future; a poor brake job on my pickup truck could easily cost both you and me our lives, later this very afternoon. Yet we leave the latter situation to an essentially unregulated market in auto repair, reinforced post hoc by the tort system (assuming the injured party can afford a private lawyer). If some combination of private market and government regulation is adequate for other services that entail the application of esoteric knowledge, why not in putative professions like law and medicine, as well?

How is putatively professional knowledge distinguishable from other esoteric knowledge that functionalist theory does not see as requiting professional institutions? If professional knowledge isn't distinguishable, then functionalist defenders of the professions face a dilemma: Either, on the one hand, professionals need no more special occupational organization than other occupations providing equally complex and essential forms of knowledge, or, on the other hand, many more occupations qualify as professions than functionalist theory and social practice have acknowledged. Thus functionalist theory should either "elevate" these other knowledge-based occupations into professional status, or reconsider the possibility that the classic professional mode of organization could be replaced by some combination of governmental and market mechanisms. Either way, the implication of this criticism is that functionalist theory proves too much.

Functionalism has answered this over-breadth critique, although, as we shall see, that answer raises questions of its own. Functionalists insist that the specialized knowledge of professionals is distinct from that of artisans and technicians in several related ways. Most fundamentally, professional education requires a university foundation. (54) This critical distinction is already traceable in Brandeis's century-old outline: "A profession is an occupation for which the necessary preliminary training is intellectual in character, involving knowledge and to some extent learning, as distinguished from mere skill." (55) Unlike craft training, which takes place largely in the workplace, and technical training, which "typically takes place in para-secondary and post-secondary institutions that are sometimes called technical institutes," (56) the ideal-type professional "school is attached to institutions of higher education." (57) What's more, "in contrast to those involved in both craft and technical training, the faculty of the ideal-typical professional school is expected not only to teach, but also to be active in the codification, refinement, and expansion of the occupation's body of knowledge and skill by both theorizing and doing research." (58) Thus "[t]he prestige that distinguishes the professions from the crafts stems from the connection of their training with higher education." (59)

Both medicine and law readily meet this first half of functionalism's dual test. The specialized knowledge of physicians is literally proverbial: "The doctor's knowledge gives him high standing and wins him the admiration of the great." (60) Even revisionist critics of medicine's status as a profession concede that its practice is essentially rooted in the advance of experimental sciences after the Enlightenment. These critics cite that scientific grounding as essential to medicine's success in obtaining and retaining a uniquely large measure of occupational autonomy and market control. (61) This scientific knowledge is both inaccessible to laypeople and functionally related to providing a fundamental social value--individual physical health. And the scientific foundation of modern medical practice is itself based in the modern research university, as opposed to technical or occupational schools. (62) As a result, medicine exhibits the kind of specialized knowledge required of an ideal-type profession. (63)

So, too, with the law. The need for inter-disciplinary education is apparent, even in simple, first-year curriculum cases like Hawkins v. McGee. At least since the time of Learned Hand's famous standard of negligence, (64) lawyers and judges have recognized that determining liability for non-contractual damages necessarily involves both cost/benefit analysis and risk calculation. In more complex cases, the interdisciplinary foundation of modern law is even more apparent. The structuring of mass torts, for example, implicates not only economics, but also sociology, psychology, and political and moral philosophy, (65) all university-based academic disciplines. These two examples come from private law; the academic foundations of public law are even more obvious. As Judge Posner points out, "[i]t is fair to say that at the beginning of its second century antitrust law has become a branch of applied economics.... (66) And so, too, "administrative law scholarship ... draws more on economics and political science than on law [traditionally defined]." (67) Private law itself is now seen to rest ultimately on the same foundations as public law; (68) modern law, private and public, is thus thoroughly grounded in advanced, university-based studies in the social sciences and humanities.

Both doctors and lawyers, then, can be shown to need a specialized knowledge that is not only beyond the ken of layfolk, but also grounded in the university. That grounding of both medicine and law in the university takes care of Seinfeld and Costanza's auto mechanic (at least for now); knowledge of the Johnson rod may indeed be important and esoteric, and there may be a certain "zen" about all vehicular maintenance, automobile as well as motorcycle. But mechanics do not acquire either that knowledge or that skill in college, and its foundations do not lie in university-based research. Thus it is not merely, as one prominent scholar of professionalism has suggested, that "[p]eople don't want to call automobile repair a profession because they don't want to accord it that dignity." (69)

2. The Line Between Technicians and Professionals: Connecting Formal Occupational Knowledge and General Cultural Knowledge

Even as the identification of university-based education essential to medicine and law promises to distinguish these paradigmatic professions from "crafts," it poses another problem. It leaves a large and growing number of occupations on the professional side of the line: accounting, engineering, and business management, for example. As Louis Brandeis pointed out, business management is the subject of highly esoteric bodies of knowledge, in several quite disparate disciplines in both the physical and social sciences, (70) and it is taught at the university level. (71)

To distinguish such occupations as these, theorists of the professions point to a distinction traditionally drawn by the professions themselves. Professions do not merely involve a university-based theoretical foundation of their teachers; they also require a more broad-based liberal education on the part of their students and practitioners. Thus, according to Freidson,
      The ideology of professionalism asserts knowledge that is not
   merely the narrow depth of the technician, or the shallow breadth
   of a generalist, but rather a wedding of the two in a unique
   marriage. This wedding of liberal education to specialized training
   qualifies professionals to be more than mere technicians. It
   qualifies them to serve in managerial positions where they can
   establish policy as well as organize and control their own work and
   the work of their colleagues independently of both managers and
   consumers. By grounding a functionally specific specialization in
   the advanced, elite generalism that provides executives and
   politicians with a mandate to command consumers, subjects, and
   citizens, the professional ideology creates a basis for claiming
   legitimacy that goes beyond the technical. (72)


And this elite generalism, according to Friedson, "provides or requires prior exposure to high culture." (73)

But outlining the basis for professions' claim to a kind of esoteric knowledge above the merely technical simply raises another question: Is that foundation substantial enough to sustain the edifice that has been erected upon it? To put the question in functionalism's own terms: Is this university-based training in the liberal arts as well as in a particular occupational specialty functionally related to professionals' performance of their socially necessary and knowledge-based tasks?

Revisionist critics of functionalism have a ready response: no. Liberal education of professionals is a pseudo-necessity, either another costly and artificial barrier to entry, (74) or simply a high-status consumption item or social ornament. (75) The real function of the requirement is thus to dominate the market for certain services, either by restricting supply of qualified practitioners or by creating demand for what amounts to little more than mystifying pseudo-science. (76) As even the leading defender of professionalism concedes, the professions may cloak themselves in the status-enhancing allure of university education because it associates them, in various ways, with powerful elites. (77)

To answer these criticisms and defensibly distinguish the professions from other occupations that rely on university-based technical knowledge, proponents of professionalism must establish a necessary link between technical professional knowledge and a university-level education in the liberal arts. This case, we shall see in the next section, can be made for the practice of law, but the case for the practice of medicine is a very different matter.

C. Finding the Crucial Link with Liberal Learning

To distinguish the professions from other occupations that deploy university-based bodies of knowledge, functionalist sociologists have identified an additional kind of knowledge that professionals need: the kind of generalist knowledge associated with a liberal, not just a university, education. As we have seen, however, functionalism has been more than a little vague about what this link is, and what function it serves. Without more precision on this point, functionalism leaves itself open to the revisionist charge that this asserted link is really a distinction without a difference, a makeweight that serves the interest of the occupation rather than its consumers or the public.

Into that gap in functionalist theory this section brings both good news and bad. The good news is that a closer analysis of the legal profession shows that it entails exactly the kind of hybrid general and specialized knowledge that functionalism is looking for. The bad news is that no such link is to be found in the practice of medicine. We begin, accordingly, by considering law as a paradigm of this kind of knowledge, the better to notice its apparent absence in the practice of medicine.

1. The Law and Liberal Learning

To see why lawyers need this special hybrid knowledge, let's reconsider our medical malpractice example. We noticed that the standard of tort liability, as currently understood in the law, implicates the kind of economic analysis that is based in university economics departments. (78) This link and others like it, according to functionalist theory, distinguishes the lawyer's specialized knowledge from that of the automobile mechanic or even the master artisan.

It does not, however, distinguish lawyers from actuaries. (79) Their grounding in university-based economic theory is at least as clear as that of lawyers; quite likely, the typical actuary will need a much more sophisticated appreciation of economics than the average lawyer. Thus, the critical distinction between actuaries and lawyers must lie elsewhere. On the functionalist argument, it lies in the lawyer's wedding of specialized, university-based knowledge with general, liberal learning.

And so, indeed, it does. This linkage becomes clear if we imagine the aftermath of the Hawkins case from the perspective of a lawyer representing Dr. McGee's malpractice insurance carrier. Suppose that, having lost the Hawkins case under the existing standard of care, the medical malpractice insurer asks for help dealing with a more general problem: burgeoning medical malpractice claims. What the insurance company wants now, in other words, is "tort reform."

Although this issue could have come up in the trial itself, (80) the setting for seeking such legal change would more likely be either administrative or legislative. (81) More ambitiously, the insurance company might seek federal preemption of state standards or some other sweeping "tort reform" plan; more mundanely, it might merely apply for an increase in permitted premiums to cover expanding liability under the existing regime.

At each of these levels, one thing is clear: the lawyer's argument for the insurance company cannot be that the proposed change is good for just that company, or for the insurance industry as a whole, or even for American companies generally. The insurance company must argue that its proposal is good for society at large. So it was with all the recent bail-outs: the banks, GM and the automobile industry, and AIG. (82) Corporate lawyers cannot prevail in these settings based on corporate profitability or even broader business interests. They must invoke some other standard because the relevant decisionmakers--legislatures, administrative agencies, and ultimately the courts--have protection of the public interest as their constitutional mission. (83)

This is the central point: to argue for any change in the law, the insurance company's lawyers, qua lawyers, must engage in the discourse of public interest, as distinct from their client's particular interests. The lawyer cannot simply argue that the change in law would be good for the client; the lawyer must also argue that the change in law would be good for the public as well. To serve their client's interest, the insurance company's lawyers must be able to speak in terms that transcend both what is technically legal under current law and what is in the client's own interest.

This brings us to the larger point. Law is ultimately grounded in claims of justice, and justice invariably involves resolving conflicts of particular interests consistently with the public interest. Law's origin as a profession precisely coincided with the need of European monarchs for just such an occupation and the offering of legal training in the earliest European universities (with England as a notable exception). (84) As a matter of basic competence, then, at least some lawyers must know how to make public-benefit based arguments. (85)

Thus, when we examine a basic element of the lawyer's role--arguing on behalf of private clients for changes in the law--we discover that they need precisely the combination of technical and general knowledge that functionalists say the ideal-type profession requires. In order to argue for changes in the law that are in their clients' interests, they must be able to make the case that those changes are in the public interest, too, that what is good for GM really is good for the country. And, in order to make these arguments, they must be able to identify and balance core social values. On this process rests the legal profession's best claim to require a foundation of university-level liberal learning. Here we have an account that both links the technical with the liberal arts in legal education and shows how the practice of law necessarily implicates that link.

2. The Missing Link Between the Practice of Medicine and the Application of Liberal Learning

In Part I.A, we saw that the essential element of an ideal-type profession is provision of a service that, on account of the specialized knowledge it entails, must be regulated by an essentially autonomous occupation. In Part I.B, we saw that that the specialized knowledge that distinguishes professions from other knowledge-based occupations must be generated and conveyed in a research-oriented university and must be functionally related to the kind of general knowledge included in a liberal arts education. The practice of law, we saw in Part I.C. 1, offers a paradigm of just this sort of knowledge-based occupation. By contrast, as we shall see in the rest of Part I.C, the practice of medicine, long the paradigmatic learned profession, lacks precisely the link between technical knowledge and liberal education needed to make a profession "learned" in the relevant way.

As a start, let's compare the role of medical and legal experts in the example that we just considered, changing the standard of care relevant to doctors. Doctors' specialized knowledge would, of course, be essential to making that case. Only medical experts could supply necessary data about what results various procedures are likely to produce, at what costs, and at what risks. But those are only the empirical predicates to answering the ultimate question, what the appropriate standard of care should be. Actually answering that question involves not just knowing what to do to achieve a particular result, but also whether the cost of doing that is warranted when compared with other considerations. It is making the case for just such decisions that requires lawyers to rely, not only on a specialized knowledge of law as a body of rules and procedures, but also on the kind of general appreciation of social values that is the core of both a liberal arts education and law understood more broadly as a system for the rational resolution of disputes over just such values--law understood as judges understand it, as a "system of justice."

As we have seen, competent delivery of a wide range of legal services requires just such knowledge; lawyers must be able to ground client claims in the public interest. To do this, they must be able to articulate the shared values that are said to form the public interest. Knowledge of these shared values can only be obtained from a liberal education.

By contrast, it is difficult to see why a medical doctor would need a deep appreciation of such values in order to deliver competent medical care. Doctors, to be sure, need to know that health is a value, but they could presumably either infer the value of health from the fact that consumers are willing and able to pay for it or accept its value as a "given" of our legal and social systems more generally. With respect to other social values, doctors need know even less. The Hippocratic Oath itself implies that all doctors need to know about other values is that doctors are always to subordinate the pursuit of those values to that of the individual patient's health. (86) Someone, of course, needs to know why this subordination is appropriate, but it need not include all doctors (and could conceivably include no doctors). By contrast, to the extent that this subordination is legally binding, part of the minimally acceptable level of medical care, at least some lawyers would need to understand it: those who would effectively argue that the client-first standard has been met in a particular case, or needs to be changed across the board.

And we can see this same distinction between doctors and lawyers much more broadly, in the general debate over how health care is to be weighed against other social values. In a purely market economy, consumers alone would decide how to weigh health care against other social values. They would budget for health care according to two considerations, willingness and ability to pay: how much they could afford to pay for that service, and how much they value it relative to other goods and services they might purchase instead. In this purely laissez-faire system, doctors would certainly convey esoteric information to consumers about how healthy they are, and what they would need to stay that healthy or get healthier. That would be the essence of the service they provide; they would fail to provide it at peril of malpractice liability, loss of licensure, and other legal penalties.

But the doctor's service would include no essential role--and, unless asked, perhaps no proper role--in advising patients whether to value a given level of health higher or lower than anything else (e.g., a given level of pastry or tobacco consumption or, for that matter, donations for the benefit of those who cannot afford basic health care). This is emphatically not to say that social values are not in the balance when one decides whether to undergo a tummy-tuck or send one's plastic surgeon off to a Third World country to mend a child's cleft palate. It is just to say that, in weighing these alternatives, the opinion of one's doctor, as a doctor, is professionally irrelevant. Or, to put the point a bit more precisely, the opinion of one's doctor could be made irrelevant, legally or functionally, without undermining that doctor's delivery of optimal medical care.

No modern health-care system, of course, operates on so purely a market model, with medical services allocated strictly on the basis of individual patients' willingness and ability to pay. We not only regulate to ensure that patients get the kind of treatment they are paying for, we also redistribute wealth, in various ways, to make sure that some people receive at least some treatments they want but cannot afford. (87) And the law sometimes intrudes even more into individuals' consumption of medical care, by overriding an unwillingness to pay. The government sometimes mandates that people receive medical care that they can readily afford but would emphatically refuse. The paradigm of this today, of course, is mandatory vaccination; (88) not too long ago, it was mandatory sterilization. (89) And, conversely, the law sometimes forbids medical procedures that some are willing and able to pay for: extremely late-term abortions today; (90) virtually all abortions in the recent past (91) (and, perhaps, in the near future). (92)

All these examples, of course, involve the weighing of health-care costs and benefits against each other and against competing social values. And all these examples necessarily implicate knowledge that only the medically trained can provide: the technical feasibility of various therapies and procedures, perhaps the relative costs and effectiveness of various alternatives. But, once that data is in, we do not need doctors, qua doctors, to help us weigh it. That balancing of values is not, strictly speaking, a medical decision. It will, by contrast, always be a legal decision: what to fund, what to allow, what to require, what to forbid.

Consider a recent but already classic case, the much-discussed "death panels" of President Obama's Affordable Care Act. (93) The function of those panels, contrary to the rumors, was not to decide whether to save particular individuals or to let them die. Instead, their function was to give the terminally ill the basis on which to make an informed decision about whether or not to elect potentially life-prolonging treatment. On any such panel, doctors would surely have a place, to explain what the relevant treatment options were, in terms of their likely success, side-effects, quality of life, and costs. Someone other than a doctor might deliver that information, but its ultimate source would have to be someone trained in the science of medicine itself. But, to the extent that the patient wanted to know what he or she should do, whether he or she should elect a given therapy or any treatment option at all, the doctor, qua doctor, need have no role. Such counseling could be given by someone specially trained to weigh such values, quite possibly someone of the patient's own religious or political faith. That person would be, in essence, a kind of chaplain; that kind of chaplain need not be any kind of medical doctor.

The same is potentially true, if less politically dramatic, in the case of all end of life decisions. The law has long since removed these decisions from the unilateral discretion of doctors; doctors now "play God" in that sense only at the peril of malpractice liability, loss of licensure, or even conviction for homicide. (94) The role of the doctor, qua doctor, is now to diagnose terminal illness, inform the patient, and identify possible modes of treatment. But the choice of treatment, though often not the patient's alone, need never be the doctor's at all. (95) You can, of course, ask your doctor for his or her opinion about whether you should pursue a life-extending course of treatment, but that opinion would be personal, not professional. Again, we can structure the delivery of health care in a way that makes the doctor's rendering of that opinion unnecessary to the delivery of medical care.

Nor is this distinction merely theoretical; the Supreme Court's abortion cases have effectively written it into constitutional law. To see how this is so, consider two landmark Supreme Court cases, Roe V. Wade (96) and Rust v. Sullivan. (97) The former, of course, affirmed a woman's basic constitutional right to terminate a pregnancy with a doctor's assistance. The latter upheld a federal regulation that forbids doctors in federally-funded family planning clinics from giving advice about non-therapeutic abortions. Opponents of the regulatory prohibition argued that it unconstitutionally interferes with patients' right to have non-therapeutic abortions, in effect overturning Roe v. Wade. In analyzing this challenge, the members of the court isolated a distinction at the core of our analysis: therapeutic as opposed to non-therapeutic advice.

Justice Blackmun, in dissent, nicely set out the critical premises of the challenge to the regulatory ban: "In our society, the doctor-patient dialogue embodies a unique relationship of trust. The specialized nature of medical science and the emotional distress often attendant to health-related decisions requires that patients place their complete confidence, and often their very lives, in the hands of medical professionals." (98)

This, as we shall examine in detail later, eloquently states the core of the case for medicine as a caring profession. (99) As Blackmun points out, the majority itself was careful to note that the regulation in question did not impinge upon doctors' delivery of health-related advice, specifically, advice about therapeutic abortions. (100) And both Blackmun and the majority noted that earlier Supreme Court decisions had struck down laws forbidding all doctors to discuss abortions even in cases where the patient's physical health was at stake. (101)

But Justice Blackmun's next assertion, which tried to link protected therapeutic advice with the non-therapeutic advice at issue in Rust, is a normative non sequitur that the majority refused to write into constitutional law: "One seeks a physician's aid not only for medication or diagnosis, but also for guidance, professional judgment, and vital emotional support. Accordingly, each of us attaches profound importance and authority to the words of advice spoken by the physician." (102)

As an empirical matter, this second assertion may well be true; many of us may often rely on our doctors for just such non-medical advice. But this latter form of advice can be separated, both logically and legally, from advice that is purely diagnostic and therapeutic. That separation, in essence, is precisely what the Supreme Court majority recognized in upholding the regulation: the Constitution protects therapeutic advice about abortions much more strongly than non-therapeutic advice.

We do not know, except along that rather extreme frontier, how the constitutional rights of patients shape the content of the doctor-patient relationship. But we do know enough to make several important observations. First, both the Rust majority and Blackmun's dissent treat the diagnostic and therapeutic function of doctors as very socially significant; in the case of pregnant women, that function is so closely related to a fundamental legal right as to enjoy constitutional protection. Second, the majority in Rust was unwilling to extend that constitutional protection, on the facts before it, to doctors' more general, non-therapeutic counseling, even when that counseling would involve discussions of the exercise of a constitutionally protected right, reproductive autonomy. Third, in deciding what elements of the doctor-patient relationship are subject to legislative regulation, and to what extent, it is members of the legal profession, not the medical profession, who decide.

Again, in making decisions like these, members of the legal profession--not only judges, but also the lawyers who prepare such cases--must be able to draw on the most basic sources of our shared social values. And so in Roe v. Wade itself, Blackmun, writing then for the Court's majority, reviewed the history of abortion in Western culture all the way back to the classics and the scriptures. (103) Nothing could more nicely make the point we need to see here. The Supreme Court recognizes the importance of the service that doctors alone have the knowledge to provide. But protection of the right to receive what doctors alone can provide is conferred only by our courts, and only on the basis of their knowledge of the deepest norms of our culture.

Having an abortion may sometimes literally save a woman's life, as a medical matter; having either an abortion or a baby may very well ruin her life, as a moral or psychological matter. Roe forbids the elected branches of government from depriving a woman of medical advice, even medical assistance, in the first matter; Rust allows those branches to deny her medical advice on the second matter when that advice would be publicly funded. The point for us to see is, again, that therapeutic and non-therapeutic advice about even the most fundamental medical matters can be, and often are, separated, in law as well as in logic.

Consider a possible exception that helps clarify, if not prove, that rule: weighing an individual patient's good against public cost, especially where that cost is being borne by third parties. Let's assume that we want doctors to make these calls in individual cases, under more or less strict guidelines. What they would need to know is the reason for the balancing, not the public good more broadly conceived. They might need to know how to strike the balance between benefits and costs to individual patients, on the one hand, and the benefits and costs to the public, on the other. But they would not need to know, beyond that, how these balances are struck, or why. They would not need to know, for example, the classic debates over the good of the few versus the good of the many. (104) These decisions are, ultimately, for the popular branches of government, subject to constitutional review by the courts.

As the examples in this section remind us, many decisions about health care, public as well as private, implicate the most profound balancing of social values we can imagine: who we as a society decide to save by providing subsidized health care, and who we are willing to watch die without it; whose most profoundly held religious beliefs must yield to the interests of others and to the common good. But neither these value choices nor advice about how to make them is part of the services that physicians, as physicians, provide. Although we must look to doctors for the technical medical expertise necessary for making all these decisions, we do not need to look to doctors for the weighing of social values in any of these decisions. What is more, it is not clear why we would ever need doctors, in the delivery of routine health-care services, to appreciate fundamental social values or to help us resolve conflicts among them. And so it seems that the asserted link between specialized medical knowledge and a general liberal education is, at best, not proved.

If so, then the practice of medicine cannot be, as it is generally assumed to be, the prime example of the ideal-type profession, an occupation that essentially weds specialized technical knowledge with general cultural knowledge in the provision of an essential social service. vice. If medicine is to sustain its claim to a distinctive professional status, it must rest that claim on something else. As we shall see in Part II, it has just such a claim, founded on the particular kind of care we need doctors to take when they apply their specialized occupational knowledge in serving patients. What is more, recognition of that claim points to a significant refinement in our understanding, not only of medicine as a profession, but also of professions more generally.
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Title Annotation:Introduction through I. The Fundamental Faux Pas: Mistaking Liberal Learning as Essential to All Proper Professions, p. 345-383
Author:Atkinson, Rob
Publication:Health Matrix
Date:Jan 1, 2013
Words:11821
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