In his early years at Duke, Havighurst was for a time the faculty editor of Law and Contemporary Problems, a symposium-oriented journal founded at Duke in 1933. Fortuitously, that editorship contributed to his obtaining in the late 1960s a long-running (until the early 1980s) government contract to develop health care law as a scholarly field, which he did by persuading a number of national luminaries to join a “Committee on Legal Issues in Health Care.”[1] Those associations, that work, and the availability of “L&CP” to publish relevant symposia helped to foster the growth of interdisciplinary scholarship in health care law and policy.
Havighurst's own work in health care law soon led to several high-profile opportunities, including sabbatical leaves first as scholar-in-residence at the Institute of Medicine of the National Academy of Sciences in 1972-73 (its inaugural year); at the Federal Trade Commission in 1978–79; at a Washington law firm in 1988–89, and at the Rand Corporation in Santa Monica in 1999.[7] He was also elected to membership in the Institute of Medicine in 1982, serving on its Board of Health Care Services from 1987 to 1997; the IOM is now the National Academy of Medicine, where Havighurst is an inactive member because so much of his work, originating in his initial teaching and research interests in antitrust law, has been critical of the medical establishment.[8]
In the early 1980s, Havighurst became Duke's William Neal Reynolds Professor of Law. In 1999, he served briefly as the Law School's Interim Dean.[1]
After writing very early about health maintenance organizations,[9] Havighurst found an occasion in 1973 to propose a selective "no-fault" system for medical malpractice;[10] although clearly appealing to both consumers and many doctors, this program, while never adopted by statute or contract, was still being discussed seriously in 2005.[11] The obstacle to its adoption appeared to be that the medical profession preferred to address patient safety by prescriptive regulation rather than by incentivizing the prevention of injuries by requiring providers to compensate patients suffering recognizably avoidable ones. Havighurst later observed that doctors could expect to be paid for taking required measures, whereas automatically compensating injured patients would affect their bottom lines.
In 2009, he had occasion to show how the “right” liability rule—strict no-fault liability for injuries caused by defective products—would probably have ameliorated the HIV-AIDS crisis.[12]
In the mid-1970s, Havighurst, whose original legal specialty was antitrust law, wrote a brief that seemed to prompt the Supreme Court to review (and later reverse) a lower-court ruling endorsing implied antitrust exemptions for the so-called “learned professions.” Although the case itself, Goldfarb v. Virginia State Bar,[13] involved only the legal profession, Havighurst's brief reminded the Court that other professions, especially medicine, should not necessarily be immune from antitrust enforcement. According to one source,[14] Justice Blackmun, who was once a lawyer for the Mayo Clinic, supplied the justices with a clerk's memo calling attention to Havighurst's argument, possibly determining the final result. The cited book's index includes references to Havighurst's other engagements with legal, especially antitrust, issues of the early years.
For several years after Goldfarb, Havighurst wrote about the many implications of its holding for the organized medical profession and for regulation in the health care sector. His ultimate concern, however, was not so much specific antitrust violations as the profession's overall stewardship in its controlling role.[15]
This latter conern also prompted Havighurst to question about the prevailing assumption that the medical profession itself establishes sound legal “standards of care,” either by declaring “clinical policies” or by its own, observable custom and practice. Both sources, he observed, are almost certain to incorporate and sanction the cost-increasing influence of “moral hazard”—that is, the temptation for doctors and patients to spend insurers’ money more freely than they would spend their own.
Havighurst's idea, first advanced in consulting with policy experts engaged in developing the Clinton Health Security Act proposal in 1993, was that health plans should use private contracts with providers and consumer/patients to integrate the entire transaction, possibly adopting a less costly, scientifically grounded “standard of care.”[16] In 2013, Wall Street Journal columnist Holman W. Jenkins Jr. cited Havighurst for demonstrating how “Americans end up with a ‘Hobson’s choice’: either coverage for ‘Cadillac’ care or no health coverage at all”; if economizing contracts are feasible (a still open question), consumers may eventually find safe, lower-cost options available.[17]
Havighurst's 1995 book, Health Care Choices, which was prompted in part, though not explicitly, by his work on the Clinton Health Security Act, was a fairly strong endorsement of contracts as “instruments of health reform.” A review by James C. Robinson, then a young business school professor, began by declaring, “Clark Havighurst is a radical.[18] Havighurst was naturally pleased when Robinson won a Nobel Prize in Economics in 2025.
In the 1990s, the medical profession, seeking to prove its commitment to “science” and particularly to evidence of efficacy from controlled clinical trials, undertook to create “clinical practice guidelines,” which Havighurst thought might permit contracts to incorporate elements of cost/benefit analysis.[19]
The guidelines “movement” went nowhere, however, perhaps because professional interests, seeing what Havighurst was up to, preferred to keep costs out of the equation
Havighurst remained actively engaged with health policy scholarship through at least 2011, finally writing two ambitious articles focusing on monopolies and other regressively redistributive features of the health care marketplace.[20] The first of these—both were written with Barak Richman—was entitled "Distributive Injustice(s) in American Health Care" and served as the lengthy lead article in a symposium entitled "Who Pays? Who Benefits? Distributional Issue(s) in Health Care."[21]
The editors’ Foreword was entitled “Health Policy’s Fourth Dimension,” which they identified as “fairness” or “equity,” to supplement the usual themes of “access, cost, and quality.
A key point in this and other of Havighurst's later works was that employers and labor unions both prosper by providing Cadillac-quality health coverage to their workers without letting the latter know that they bear a significant share of its cost in reduced take-home pay and other benefits. In 2018, he published a timely and provocative op-ed in the Wall Street Journal dramatizing there "Health-Care Conspiracy of Silence."[22] No wonder, he thought, that consumers have only Hobson's choices.
Havighurst's other late article, on "The Provider Monopoly Problem in Health Care,"[23] emphasized how hospitals bundle their services to hide monopoly's effects while health insurance gives working people deep pockets that steepen demand curves and hence the profitability of the numerous non-profit and other monopolies in health care markets.