The role of law in public health preparedness: opportunities and challenges

We report the results of a study designed to assess and evaluate how the law shapes the public health system's preparedness activities. Based on 144 qualitative interviews conducted in nine states, we used a model that compared the objective legal environment with how practitioners perceived the laws. Most local public health and emergency management professionals relied on what they perceived the legal environment to be rather than on an adequate understanding of the objective legal requirements. Major reasons for the gap include the lack of legal training for local practitioners and the difficulty of obtaining clarification and consistent legal advice regarding public health preparedness. Narrowing the gap would most likely improve preparedness outcomes. We conclude that there are serious deficiencies in legal preparedness that can undermine effective responses to public health emergencies. Correcting the lack of legal knowledge, coupled with eliminating delays in resolving legal issues and questions during public health emergencies, could have measurable consequences on reducing morbidity and mortality.     

The future of public health law

Developments in medicine and constitutional law dictate modification of public health legislation in the United States. Traditionally overlooked by legislators, present public health laws provide inadequate decision-making criteria and inappropriate procedures for dealing with issues. Revised legislation should provide health care officials and agencies with the tools to balance individual rights against public health necessities. This Article makes four recommendations for legislative reform: (1) remove artificial legislative distinction between venereal and other communicable diseases; (2) provide criteria defining "public health necessity" to limit discretionary exercise of police power by health officials; (3) provide strong confidentiality protections in the collection and storage of public health information; (4) empower public health officials to select from a graded series of less restrictive alternatives in dealing with public health problems.     

Alaska public health law reform

The Turning Point Model State Public Health Act (Turning Point Act), published in September 2003, provides a comprehensive template for states seeking public health law modernization. This case study examines the political and policy efforts undertaken in Alaska following the development of the Turning Point Act. It is the first in a series of case studies to assess states' consideration of the Turning Point Act for the purpose of public health law reform. Through a comparative analysis of these case studies and ongoing legislative tracking in all fifty states, researchers can assess (1) how states codify the Turning Point Act into state law and (2) how these modernized state laws influence or change public health practice, leading to improved health outcomes.     

Immigrant workers: health, law, and public policy

Immigrant workers are a large segment of the lower echelon of the U.S. labor force, and as many as 3.6 to 6 million of these workers and their families are living in the U.S. illegally. This paper examines who the recent immigrants are: explains why their current situation in the U.S. is an important public health matter; discusses the ethical and policy issues stemming from their health needs and from illegal status; and concludes with a brief look at some implications of the Simpson-Mazzoli Immigration and Reform Act, currently before Congress. The paper suggests that the illegal status of undocumented workers intensifies their health risks; that the immigrants' responsibility for budget short-falls in public services is not as clearcut as frequently assumed; and that legislation aimed at regulating the status of immigrant workers in the U.S. is unlikely to solve many of the central problems.     

Cluster munitions: public health and international humanitarian law perspectives

As a result of civilian deaths in Vietnam, Cambodia, Laos, Chechnya, Kosovo, Afghanistan, Iraq and Lebanon, cluster munitions have been recognised to pose a grave threat to civilian populations because of their limited precision and problematically high rate of initial failure to explode. Efforts are intensifying to ban cluster munitions and to mandate those who have discharged them to defuse them effectively so as to reduce the risks to civilians. This editorial reviews these efforts and identifies a need for them to be actively supported by both the legal and medical communities.     

The form and context of federalism: meanings for health care financing

This article examines the meaning of federalism for health care financing (HCF) and is based on two considerations. First, federal institutions are embedded in their national context and interact with them. The design and performance of HCF policy will be influenced by contexts, the workings of the federal institutions, and the interactions of these institutions with different elements of the context. This article unravels these influences. Second, there is no unique model of federalism, and so we have to specify the particular form to which we refer. The examination of the influence of federalism and its context on HCF policy is facilitated by using a transnational comparative approach, and this article examines four mature federations: the United States, Australia, Canada, and Germany. The relatively poor performance of the U.S. HCF system seems associated with the fact that it operates in a context markedly less benign than those of the other national HCF systems. Heterogeneity of context appears also to have contributed to important differences between the United States and the other countries in the design of HCF policies. An analysis of how federalism works in practice suggests that, while U.S. federalism may be overall less favorable to the development of well-functioning HCF policies, the inferior performance of these policies is to be principally attributed to context.     

Internet service providers as law enforcers and adjudicators. A public role of private actors

Private actors have become increasingly involved in the law enforcement process in recent years, taking up more proactive roles and being increasingly engaged in choices between conflicting rights and freedoms. The development and spread of information and communication technology (ICT) created a set of conditions in which the participation of private actors (service providers in this case) appears to be a necessity. These conditions include, for example, a lack of physical borders for ICT technologies, the speed and width of the spread of information on the Internet, as well as the growth of technological behemoths. The resulting reaction can be seen in various sectors, such as combatting illicit content online or gathering digital evidence. While executing these roles they may be compelled – de jure or de facto – to make value judgments which traditionally belong to the public authorities. At the same time the legal framework is either lacking or it does not fully cover the consequences of this fundamental paradigm shift, to the detriment of the authorities, private actors and persons concerned.The objective of this article is to examine the most important features of these developments and analyse resulting key legal problems. The author demonstrates that the legal landscape of cooperation between law enforcement and service providers must be rethought and offers a direction for this reflection.     

The economic analysis of public law

Law and economics in the United States and Europe focuses on private law. With the exception of work on antitrust and corporate finance, public law has been largely ignored. Yet economics is central to the understanding of social problems, such as environmental protection and occupational health and safety. Lawyer-economists need to study the relationship between government structure and policy outcomes. Economists must consider goals, such as democratic accountability and participation, which do not fit an efficiency framework.Lawyers and public officials need to recognize the social benefits of efficiency. Such legal-economic analysis can reveal failures in the way public law accommodates the practical reality of today's pressing social problems. It can also suggest solutions. In particular, economics can help with the design of substantive policies and with the analysis of government structures and process.     

Concussions and youth football: using a public health law framework to head off a potential public health crisis

Concussion from sport is increasingly recognized as a public health priority. In response, all states and the District of Columbia have enacted youth concussion legislation. This paper first examines key developments in concussion-related policy and legislation and then uses the findings from recent scientific studies to highlight the need to incorporate evolving scientific evidence into concussion legislation in order to better protect youth and adolescent athletes. Next, the paper discusses the framework of empirical health law research and why it should be applied in the case of concussion legislation. Finally, this paper argues that empirical health law research should be considered in any decision about whether legislation can help improve the health and safety of young players, a particularly vulnerable population whose unique needs have not yet been adequately addressed.     

Public health law in the new century

Public health law is a broad and sometimes nebulous field which has undergone extensive reform and rethinking over the past decade. This article provides a survey of current issues in public health law, highlighting these reforms and the potential for public health legislation to deal with upcoming threats, notably bioterrorism. While recognising the anxieties bioterrorism brings, public health responses must be grounded in a coherent philosophy of risk management. Its administrators must also be aware that large-scale threats to public health are not unprecedented and that past experience can provide an important guide for future strategies.     

The invention of health law

By default, the courts are inventing health law. The law governing the American health system arises from an unruly mix of statutes, regulations, and judge-crafted doctrines conceived, in the main, without medical care in mind. Courts are ill-equipped to put order to this chaos, and until recently they have been disinclined to try. But political gridlock and popular ire over managed care have pushed them into the breach, and the Supreme Court has become a proactive health policy player. How might judges make sense of health law's disparate doctrinal standards? Scholars from diverse ideological starting points have converged toward a single answer: the law should look to deploy medical resources in a systematically rational manner, so as to maximize the benefits that every dollar buys. This answer bases the orderly development of health care law upon our ability to reach stable understandings, in myriad circumstances, of what welfare maximization requires. In this Article, I contend that this goal is not achievable. Scientific ignorance, cognitive limitations, and normative disagreements yield shifting, incomplete, and contradictory understandings of social welfare in the health sphere. The chaotic state of health care law today reflects this unruliness. In making systemic welfare maximization the lodestar for health law, we risk falling so far short of aspirations for reasoned decision making as to invite disillusion about the possibilities for any sort of rationality in this field. Accordingly, I urge that we define health law's aims more modestly, based on acknowledgement that its rationality is discontinuous across substantive contexts and changeable with time. This concession to human limits, I argue, opens the way to health policy that mediates wisely between our desire for public action to maximize the well being of the many and our intimate wishes to be treated noninstrumentally, as separate ends. I conclude with an effort to identify the goals of health law, so constructed, should pursue and to suggest how a strategy of accommodation among these goals might apply to a variety of legal controversies.