Populations, Public Health, and the Law

Populations, Public Health, and the Law

Copyright Date: 2009
Pages: 304
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  • Book Info
    Populations, Public Health, and the Law
    Book Description:

    aw plays a crucial role in protecting the health of populations. Whether the public health threat is bioterrorism, pandemic influenza, obesity, or lung cancer, law is an essential tool for addressing the problem. Yet for many decades, courts and lawyers have frequently overlooked law's critical importance to public health. Populations, Public Health, and the Law seeks to remedy that omission. The book demonstrates why public health protection is a vital objective for the law and presents a new population-based approach to legal analysis that can help law achieve its public health mission while remaining true to its own core values. By looking at a diverse range of topics, including food safety, death and dying, and pandemic preparedness, Wendy E. Parmet shows how a population-based legal analysis that recalls the importance of populations and uses the tools of public health can enhance legal decision making while protecting both public health and the rights and liberties of individuals and their communities.

    eISBN: 978-1-58901-605-7
    Subjects: Health Sciences

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-x)
    (pp. xi-xii)
    (pp. 1-4)

    The venerable common law maxim, salus populi suprema lex, expresses a principle long noted, even if infrequently followed, by American law: the well-being of the community is the highest law. The maxim reminds us that law exists, at least in part, to serve the common good. To do so, law must be understood in light of that goal.

    But what is the common good? In a diverse and complex society, such as our own, people disagree, often vehemently, about what constitutes the common good. Some citizens equate it with national wealth, others with military strength; some with godliness, others with...

  6. CHAPTER 1 Public Health and the Population Perspective
    (pp. 5-27)

    Public health issues are pervasive in the law. Every day in courtrooms throughout the United States, and indeed across the globe, courts hear cases that relate directly or indirectly to the public’s health. Judges in constitutional law cases ponder the state’s power to protect public health and the impact of that power on the rights of individuals. Administrative tribunals contemplate the meaning of statutes empowering them to regulate in the name of public health. Private parties contest the liability of individuals and firms that act in ways that endanger the health of others.

    Yet, despite the ubiquity of public health...

  7. CHAPTER 2 Public Health and American Law
    (pp. 28-50)

    It has been more than 100 years since Oliver Wendell Holmes Jr. declared that the future of the law lay not in legal doctrine but in the insights and understandings garnered by other disciplines. Since that time, lawyers, jurists, and legal scholars have become acquainted with, embraced, and sometimes abandoned a broad array of nonlegal disciplines. The teachings of sociology, psychology, literary theory, critical theory, and most frequently economics have all been applied, with varying degrees of influence and success, to criticize and augment American jurisprudence.

    One perspective now largely absent from this interdisciplinary buffet is public health. This absence...

  8. CHAPTER 3 Toward a Population-Based Legal Analysis: The Supreme Beef Case
    (pp. 51-77)

    After decades in the shadows, public health law has begun to reemerge as a vibrant field within American law, albeit one that remains largely in the margins of legal discourse and education.¹ In the wake of AIDS, the anthrax attacks on the U.S. mail, and the decades-long battle against tobacco, practitioners and scholars have come to appreciate both the importance and richness of public health law. Both ancient questions, such as the government’s power to quarantine, and new questions, such as the admissibility of epidemiological evidence in mass tort litigation, have become the subject of research, debate, legislation, and litigation....

  9. CHAPTER 4 Population Health and Federalism: Whose Job Is It?
    (pp. 78-108)

    What do infectious epidemics, hurricanes, cigarettes, and handguns have in common? First, each can harm the health and well-being of multiple populations. Second, the source of each of these threats extends beyond the boundaries of any single locality or state, yet each of these public health threats affects different regions differently. Third, optimal interventions for each of these threats would include local, statewide, national, and perhaps international components. Yet, in the United States, efforts to protect diverse populations from each of these dangers are hampered by uncertainty and confusion as to whether the job belongs primarily to the federal government...

  10. CHAPTER 5 Individual Rights, Population Health, and Due Process
    (pp. 109-140)

    In the fall of 2001, as the nation struggled to come to terms with the terrible events of 9/11, and anthrax spread through the United States mail, the CDC commissioned the Center for Law and the Public’s Health at Georgetown and Johns Hopkins Universities to draft a model state law updating and clarifying emergency powers that states could use during a public health emergency. The subsequent publication of the Model State Emergency Health Powers Act (MSEHPA), which sought to give governors extraordinary powers and contained substantial provisions authorizing isolation, quarantine, and mandatory medical examinations and treatment, prompted a heated debate...

  11. CHAPTER 6 A Right to Die? Further Reflections on Due Process Rights
    (pp. 141-165)

    Often the American legal and political systems seem to pay more attention to matters affecting the few than to threats endangering large populations.¹ So it seemed in 2005, when the fate of one woman in a persistent vegetative state, Terri Schiavo, commanded the attention not only of the media but also of all three branches of government in both Florida and Washington, D.C.² As legislators and courts debated Schiavo’s rights, countless other nameless and faceless individuals died from diseases and accidents that could have been, but were not, prevented. Likewise, surprisingly little attention or preparation was paid to a host...

  12. CHAPTER 7 The First Amendment and the Obesity Epidemic
    (pp. 166-190)

    Freedom of speech, secured by the First Amendment, is a bedrock principle of both American democracy and constitutional law.¹ It is a principle that courts, including the Supreme Court, have come to regard very seriously. Indeed, if any constitutional right is treated as creating a strict limit on the power of the state, it is the First Amendment’s protection of speech.

    Yet, in our so-called information age, speech is also a powerful determinant of population health. In myriad ways, speech can and does promote population health, providing individuals and populations with information they can use to keep themselves healthy and,...

  13. CHAPTER 8 A Population-Based Health Law
    (pp. 191-218)

    Since 2001, public health officials have focused much of their attention on preparing for and responding to a public health emergency, a grave crisis that could quickly wrack massive havoc on the public’s health.¹ Initially, in the wake of 9/11 and the subsequent anthrax attacks on the U.S. mail, bioterrorism received the lion’s share of attention. Government spending on research related to bioterrorism mushroomed, the regulation of laboratories using dangerous pathogens was enhanced, vaccines and antitoxins were stockpiled, and model laws were drafted to expand state authority to quarantine, isolate, and forcibly treat individuals.² Later, during the lead-up to the...

  14. CHAPTER 9 Tort Law: A Population Approach to Private Law
    (pp. 219-243)

    Asbestos, cigarettes, lead paint, and guns. In recent decades privately initiated tort litigation about each of these dangerous products and others has captured the headlines, occupied courtrooms, and provoked a heated debate about the role of tort law in protecting public health. On one side of the debate, critics of the tort system, such as Peter Huber, the author of Galileo’s Revenge, bemoan junk science and cry out against the high cost of frivolous litigation.¹ On the other side, trial lawyers and some public health advocates contend that tort law is a critical tool for promoting population health.

    This chapter...

  15. CHAPTER 10 Globalizing Population-Based Legal Analysis
    (pp. 244-266)

    It is banal but true to say that we live in a global age. Advances in communication technology (especially the Internet) and travel have combined with the integration of markets and the spread of capitalism to knit the world in new ways. This integration, or globalization as it is widely called, can create novel risks for population health, both by increasing health disparities around the world and by facilitating the spread of disease-causing vectors, either microbial or man-made. On the other hand, globalization also has the potential to promote population health, both by supporting the diffusion of health-promoting interventions and...

  16. CHAPTER 11 The Future of Population-Based Legal Analysis
    (pp. 267-276)

    This book began with the common law maxim, salus populi suprema lex. Its meaning is simple: the well-being of the community is the highest law. The maxim helps remind us of why we have law. Law exists not only to vindicate the interests and rights of individuals, nor simply to empower officials, but also to promote and ensure the well-being of populations. Central to that objective is promoting and enhancing population health. Only when that is secured can the well-being and interests of both individuals and the populations they form be realized.

    Population-based legal analysis is an approach to legal...

    (pp. 277-282)
  18. INDEX
    (pp. 283-292)