Rethinking the New Public Health

Washington and Lee Law Review, May 2012

This Article contributes to an emerging theoretical debate over the legitimate scope of public health law by linking it to a particular doctrinal debate in public nuisance law. State and local governments have been largely stymied in their efforts to use public nuisance litigation against harmful industries to vindicate collectively-held, common law rights to non-interference with public health and safety. The ways in which this litigation has failed are instructive for a broader movement in public health that is only just beginning to take shape. In response to evolving scientific understanding about the determinants of health, public health advocates are rapidly implementing new law and policy tools to alter our environments and behaviors in ways that improve health at the population level. Critics of this “new public health” movement seek to safeguard individual liberty by disconnecting the law and politics of public health from its science. They argue that modern health threats such as heart disease and diabetes are individual concerns not sufficiently public in nature to trigger doctrines that privilege state intervention over individual rights. Public health scholars engaged in this theoretical debate have overlooked a related doctrinal debate within public nuisance law in which courts have struggled to define the scope of “public rights,” including the right to non-interference with public health. In both debates, critics have rightly insisted that the public must be more than the mere aggregation of private interests. But the narrower conceptions of the public that critics have put forth fail to account for the full scope of the state’s authority and responsibility for public health. This Article stakes out a middle position by adopting the classically liberal view of public health law critics—that state interference with individual liberty requires robust justification—while also defining the public broadly so as to justify considerable state intervention under the banner of public health. Drawing on analysis of public nuisance litigation as a public health tool, I propose that epidemiological harms—which I define as those for which causation can be established at the population level, but not necessarily at the individual level—should be understood as public bads. This conception of the public provides a more robust justification for the new public health law movement that more firmly grounds it in the science of social epidemiology.

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Rethinking the New Public Health

Lindsay F. Wiley, Rethinking the New Public Health Rethinking the New Public Health Lindsay F. Wiley 0 0 Thi s Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA - This Article contributes to an emerging theoretical debate over the legitimate scope of public health law by linking it to a particular doctrinal debate in public nuisance law. State and local governments have been largely stymied in their efforts to use public nuisance litigation against harmful industries to vindicate collectively-held, common law rights to non-interference with public health and safety. The ways in which this litigation has failed are instructive for a broader movement in public health that is only just beginning to take shape. In response to evolving scientific understanding about the determinants of health, public health advocates are rapidly implementing new law and policy tools to alter our environments and behaviors in ways that improve health at the population level. Critics of this “new public health” movement seek to safeguard individual liberty by disconnecting the law and politics of public health from its science. They argue that modern health threats such as heart disease and diabetes are individual concerns not sufficiently public in nature to trigger doctrines that privilege state intervention over individual rights. Public health scholars engaged in this theoretical debate have overlooked a related doctrinal debate within public nuisance law in which courts have struggled to define the scope of “public rights,” including the right to non-interference with public health. In both debates, critics * Assistant Professor of Law and Director of the Health Law and Justice Program at American University, Washington College of Law. The author thanks the participants in the New Scholars Panel of the Southeastern Association of Law Schools, the American University Washington College of Law Junior Faculty Workshop, and American University’s Center for Health, Risk and Society where early versions of this paper were presented. Thanks are also due to Lawrence Gostin, Mark Hall, Elizabeth Weeks Leonard, Roger Magnusson, Thaddeus Pope, and Steve Vladeck for their insightful comments on drafts and suggestions of useful sources, and to Kristen Barry and Thaddeus Flood for their valuable research assistance. have rightly insisted that the public must be more than the mere aggregation of private interests. But the narrower conceptions of the public that critics have put forth fail to account for the full scope of the state’s authority and responsibility for public health. This Article stakes out a middle position by adopting the classically liberal view of public health law critics—that state interference with individual liberty requires robust justification— while also defining the public broadly so as to justify considerable state intervention under the banner of public health. Drawing on analysis of public nuisance litigation as a public health tool, I propose that epidemiological harms—which I define as those for which causation can be established at the population level, but not necessarily at the individual level—should be understood as public bads. This conception of the public provides a more robust justification for the new public health law movement that more firmly grounds it in the science of social epidemiology. II. Public Health Law ...........................................................214 A. The Evolution of Public Health Law .........................215 B. The Emerging Critique of Public Health Law’s Expanding Scope .............................................226 I. Introduction Public health is rapidly becoming a more invasive part of our everyday lives. Walk into a Starbucks in New York City and you’ll now see calorie counts listed on the menu.1 Buy a Coke in Washington, D.C. and you’ll pay a sin tax on it.2 A cupcake from your local bakery might taste a little different now that trans fats have been banned from the baker’s recipe.3 A session in your local tanning salon is now subject to a 10% federal excise tax.4 Soon, if you pick up a pack of cigarettes purchased in the United States, you might be brought face-to-face with a large, graphic image of a diseased lung, an autopsied corpse, or a mouth full of sores and rotten teeth.5 Public health is also becoming a more prominent 1. See generally Bryan Bollinger et al., Calorie Posting in Chain Restaurants, STANFORD GRADUATE SCH. BUS. NEWS (Jan. 2010), http:// www.gsb.stanford.edu/NEWS/StarbucksCaloriePostingStudy.pdf (presenting a study of data from Starbucks finding that calorie labeling on menus in compliance with New York City law decreased average calori (...truncated)


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Lindsay F. Wiley. Rethinking the New Public Health, Washington and Lee Law Review, 2012, Volume 69, Issue 1,