Public Health Literacy for Lawyers

See, e.g., Guide to Community Preventive Services , at <http://www.thecommunityguide.org> (last visited October 8, 2003) (showing legal interventions as among the most effective proven interventions for community health). In recognition of this, the Centers for Disease Control and Prevention established a Public Health Law Program in 1999. See Centers for Disease Control and Prevention, Public Health Law Program , at <http://www.phppo.cdc.gov/od/phlp/about.asp> (last visited October 8, 2003).

Robbins A. Freeman P. , “Public Health and Medicine: Synergistic Science And Conflicting Cultures,” The Pharos, (Autumn 2002): 22–28.

See generally Martin M.W. Schinzinger R. , Ethics in Engineering 3d ed. (New York: McGraw Hill, 1996): 304–18.

National Institute for Occupational Safety and Health, NIOSH Education and Resource Centers, <http://www.niosh-erc.org/academic/> (last visited October 30, 2003); National Institute for Occupational Safety and Health, NIOSH Safety and Health Topic, Engineering Education, <http://www.cdc.gov/niosh/topics/SHAPE/> (last visited October 30, 2003).

Parmet W.E. Robbins A. , “A Rightful Place for Public Health in American Law,” Journal of Law, Medicine & Ethics, 30 (2002): 302–04. See also Goodman R.A. , “Other Branches of Science Are Necessary to Form a Lawyer: Teaching Public Health Law in Law Schools,” Journal of Law, Medicine and Ethics, 30 (2002): 298–301.

Although we draw from the discussions at the April conference, the views and errors here are solely are own.

A list of JD/MPH programs appears at CDC, Public Health Program, Public Health Practice Program Office, Training and Education in Public Health Law, at <www.phppo.cdc.gov/od/phlp/education.asp> (last visited October 8, 2003). For a discussion of the growth of combined degree programs in general, see Crane L.R. , “Interdisciplinary Combined-Degree and Graduate Law Degree Programs: History and Trends,” John Marshall Law Review, 33 (1999): 47–80.

Goodman , supra note 5, at 298–301.

See University of the Pacific, McGeorge School of Law, Capital Center, Bioterrorism, National Security & Public Health Law Initiative: Models for Teaching, at <http://www.mcgeorge.edu/government_law_and_policy/bioterrorism/models_for_teaching.htm> (last visited October 8, 2003).

The Public Health Advocacy Institute, intends, as part of its public health literacy for lawyers project, to produce model materials for one or more core law school courses. See http://www.PHAIonline.org (last visited July 14, 2003).

Holmes O.W. , “The Path of the Law,” Harvard Law Review, 10 (1897): 457–79, at 468.

Wetlaufer G.B. , “Systems of Belief in Modern American Law: A View from Century's End,” American University Law Review, 49 (1999): 1–80, at 17; Gordon B. , “Legal Education Then and Now: Changing Patterns in Legal Training and in the Relationship of Law Schools to the World Around Them,” American University Law Review, 47 (1998): 747–74.

Landes W.M. , “The Empirical Side of Law and Economics,” University of Chicago Law Review, 70 (2003): 167–80, at 167.

For example, Menkel-Meadow C.J. , “When Winning Isn't everything: The Lawyer as Problem Solver,” Hofstra Law Review, 28 (2000): 905–11.

Tebo M.G. , “New Frontier for Affirmative Action: Many See Challenges to Programs Outside the Classroom,” A.B.A. Journal E-Report 2, no. 25 (June 27, 2003), at 3.

Macurdy A.H. , “Commentary - Disability, Ideology and the Law School Curriculum,” Boston University Public International Law Journal, 4 (1995): 443–457, at 2.

Minow M. , “Education for Co-Existence,” Arizona Law Review, 44 (2001): 1–29.

Parker D.J.P. Rose G. , Epidemiology in Medical Practice (New York: Churchill Livingston, 1990); at 3–10; Daniels N. Kennedy B.P. Kawachi I. , “Why Justice is Good for Our Health: The Social Determinants of Health Inequalities,” Daedelus, 28, no. 1 (Fall 1999): At 215–51.

McNeil W.H. , Plagues and People (New York: Anchor Press/Doubleday, 1976): At 143.

198 U.S. 45 (1905).

Strauss D.A. , “Why Was Lochner Wrong?,” University of Chicago Law Review, 70(2003): 373–86; 373.

See Parmet W.E. , “From Slaughter House to Lochner. The Rise and Fall of the Constitutionalization of Public Health,” American Journal of Legal History, 40(1996); at 500.

Parmet , supra note 22, at 499.

Kens P. , Judicial Power and Reform Politics: The Anatomy of Lochner v. New York (Lawrence, Kansas: University of Kansas Press: 1900): At 115–18.

Lochner, 198 U.S. at 57.

Strauss D.A. , supra note 21, at 384.

514 U.S. 514 U.S. 549 (1995). See, e.g., Hodge J.G. Jr. , “The Role of New Federalism and Public Health,” Journal of Law and Health, 12 (1997/1998): 309–57; Graglia L.A. , “United States v. Lopez: Judicial Review Under the Commerce Clause,” Texas Law Review, 74 (1996): 719–771 at 719, 749–771; Regan D.H. Althouse A. , “Inside the Federalism Cases: Concern About the Federal Courts,” The Annals of the American Academy of Political and Social Science, 574 (2001): 128–139, at 132, 133–34.

Lopez, 514 U.S. at 567.

Gostin L.O. Koplan J.P. Grad F.P. , “The Law and the Public's Health: The Foundations,” in Goodman R.A. , Law in Public Health Practice, (Oxford: Oxford University Press, 2003): 3–22, at 12–15.

Exec. Order No. 13295, (April 4, 2003) (“Revised List of Quarantinable Communicable Diseases”) (adding SARS to the list of quarantinable diseases); Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, “MMWR - Severe Acute Respiratory Syndrome (SARS) and Coronavirus Testing - United States, 2003,” reported in JAMA, 289 (2003): 2203–06.

See, e.g., Ismach R.B. , “Unintended Shootings in a Large Metropolitan Area: An Incident-Bases Analysis,” Injury Prevention and Trauma/Original Research, (2003):32–34; Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, MMWR 2003; 52–172, “Sources of Firearms Used by Students in School-Associated Violent Deaths - United States, 1992–1999” JAMA, 289 (2003): 1627.

Parmet W. E. , “After Sept. 11: Rethinking Public Health Federalism,” Journal of Law, Medicine and Ethics, 30 (2002): 201–211, at 201, 204–09.

124 N.E. 137 (1919). Many thanks to my colleague Daniel Givelber for offering this example during the April conference.

124 N.E. at 138.

See text accompanying notes 61–73 infra.

Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, “MMWR-Ten Great Public Health Achievements - U.S. 1900–1999” reported in JAMA, 281(16) (1999): 1481.

B. Turnock, Public Health: What It Is and How it Work, (Gaithersburg, Maryland: Aspen, 1997): At 3.

Id. at 4.

See text accompanying notes 61–73 infra.

Gostin sees this as the heart and soul of public health law. Gostin L. O. , Public Health Law: Power, Duty, Restraint (Berkeley: University of California Press, 2000): At 5–11, 14–16.

Parmet W.E. , “Health Care and the Constitution: Public Health and the Role of the State in the Framing Era,” Hastings Constitutional Law Quarterly, 20 (1992): 267–335, at 281–85; Tobey J.A. , “Public Health and the Police Power,” New York University Law Review, 4 (1927): At 126–133; Walzer M. , Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983): At 87.

Gostin L.O. , supra note 42, at 47–51.

Parmet W.E. , “After September 11: Rethinking Public Health Federalism,” Journal of Law, Medicine and Ethics, 30 (2002): 201–211.

Fidler D.P. , “Public Health and International Law: Bioterrorism, Public Health and International Law,” Chicago Journal of International Law, 3 (2002): 7–26 (discussing the importance of international law to public health in light of emerging infections and bioterrorism).

Gordon , supra note 12, at 764.

Bob Gordon notes that the New Deal lawyers hoped to bring just such reforms to legal education. But while public law courses were introduced during the New Deal, they were maintained only as upper-level electives and they rapidly came to emphasize case analysis, thus copying the pedagogical methodologies traditionally applicable to private, common law courses. Id. at 764–765.

Mariner W.K. , “Review Essay: Public Health and Law: Past and Future Visions,” Journal of Health Politics, Policy and Law, 28 (2003): 524–52, at 548–51.

Parmet W.E. supra note 22, at 481.

See e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (judicial review of FDA authority to regulate tobacco products as “drugs”); Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980) (review of OSHA standards regulating occupational exposure to benzene).

Yick Wo v. Hopkins, 118 U.S. 356 (1886) (city violated the Fourteenth Amendment when in the name of public health, San Francisco officials refused permission to operate a laundry to Chinese owned businesses).

Robbins A. Oldmixon B. , Public Health Literacy for Lawyers: Selecting the Content , paper presented at Public Health Literacy for Lawyers, Boston, April 11, 2003.

Green M. Freedman D. Gordis L. , “Reference Guide on Epidemiology,” in Reference Manual on Scientific Evidence, 2d ed. (Washington D.C., Federal Judicial Center, 2000): 333–400, at 338–47.

Id. at 336, 387–97.

Goodstein D. , “How Science Works,” in Reference Manual on Scientific Evidence, 2d ed. (Washington D.C., Federal Judicial Center, 2000): 73–75.

Greenland S. Robins J.M. , “Epidemiology, Justice, and the Probability of Causation, Jurimetrics, 40 (2000): 321–40; Annas G.J. , “Burden of Proof: Judging Science and Protecting Public Health in (and Out of) the Courtroom,” American Journal of Public Health, 89 (1999): 490–93.

Ozonoff D. , “A Fish Out of Water: Scientists in Court,” Workshop on Scientific Evidence in Court, National Academies of Science. (Washington, D.C.: September 6, 2000).

See, e.g. Angell M. , “Shattuck Lecture - Evaluating the Health Risks of Breast Implants: The Interplay of Medical Science, the Law, and Public Opinion,” N. Engl. J. Med. 334 (1996): 1513–1518, at 1516; Huber P. , Galileo's Revenge: Junk Science in the Courtroom, (New York: Basic Books, 1991).

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); General Electric Co. v. Joiner, 522 U.S. 136 (1997).

Berger M. , “Complex Litigation at the Millennium: Upsetting the Balance Between Adverse Interests; the Impact of the Supreme Court's Trilogy on Expert Testimony in Toxic Tort Litigation,” Law & Contemporary Problems, 64 (2001): 289–327.

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Daubert, 509 U.S. at 589.

Id. at 598–601 (Rehnquist C.J., joined by Stevens, J. concurring in part and dissenting in part).

Tellus Institute, Project on Scientific Knowledge and Public Policy, “Daubert: The Most Influential Supreme Court Ruling You've Never Heard of,” (Boston: Tellus Institute, June 2003), at 7–10.

Id. at 12–13.

Consolidated Appropriations Act, Pub. L. 106–554 (2001); Office of Management and Budget, “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Dissemination by Federal Agencies,” 67 Fed. Reg. 8452–60 (Feb. 22, 2002).

See generally, Green , supra note 54.

Black B. , “Expert Evidence in the Wake of the Daubert-Jones-Khumo Tire Trilogy,” American Law Institute, American Bar Association Continuing Legal Education, July 22, 1999, at 125–194; Annas , supra note 58, at 490–93.

Egilman D. Kim J. Biklen M. , “Proving Causation: The Use and Abuse of Medical and Scientific Evidence Inside the Courtroom: An Epidemiologist's Critique of the Judicial Interpretation of the Daubert Ruling,” Food and Drug Law Journal, 58 (2003): 223–50 at 223; Faigman D.L. , “Is Science Different for Lawyers?” Science, 197 (2002): 339–40.

Breyer Stephen , The Vicious Cycle: Toward Effective Risk Regulation (Cambridge: Harvard University Press, 1993).

The Science, Technology and Law Panel Created by the Policy Division of the National Research Council was established to “bring the science and engineering community and the legal community together.” Science, Technology and Law Program at <http://www.nationalacademies.org/stl.> (last visited October 30, 2003).

Gardbaum S.A. , “Law, Politics, and the Claims of Community,” Michigan Law Review, 90 (1992): 685–760, at 692; Glendon M.A. , Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991): At 47; Taylor C. , “Atomism,” in Avineri S. de-Shalit A. , eds., Communitarianism and Individualism (Oxford: Oxford University Press, 1996): 29–50.

Benthan J. , The Theory of Legislation , Ogden C.K. , ed, (Littleton, CO: F.B. Rothman, 1987): At 96–99; Locke J. , Of Civil Government: Two Treatises, Rhys E. ed. (London: J.M. Dent, 1924): At 116–18.

Bartlett K.T. , “Feminist Perspectives and the Ideological Impact of Legal Education on the Profession,” North Carolina Law Review, 72 (1994): 1259–1270, at 1259, 1263; Zimmerman C. S. , “Thinking Beyond My Own Interpretation: Reflections on Collaborative and Cooperative Learning Theory in the Law School,” Arizona State Law Journal, 31 (1999): 957–1019.

Jacobi J.V. , “Book Review - Lawrence O. Gostin's Public Health Law, Power, Duty, Restraint,” Seton Hall Law Review, 31 (2001): 1089–98, at 1089.

Id. at 1094.

Glendon M.A. , supra note 74, at 5.

Id. at 47, 66.

Fiss O.M. , “Groups and the Equal Protection Clause,” Philosophy & Public Affairs, 5 (1976): 107–77, at 157–64.

Brown J.O. Parmet W.E. Baumann P.T. , “The Failure of Gender Equality: An Essay in Constitutional Dissonance,” Buffalo Law Review, 36 (1987): 573–644 (discussing the implications of individualism for women's equality); Parmet W.E. , “Individual Rights and Class Discrimination: The Fallacy of an Individualized Determination of Disability,” Temple Political and Civil Rights Law Review, 9 (2000): 283–301 (discussing the prevalence of individualism in the analysis applied to the ADA).

Grutter v. Bollinger, _U.S._, 123 S. Ct. 2325, 2003 (upholding use of race conscious admissions policy by state law school where the school set no precise quote and gave no pre-determined weight to an applicant's race); Gratz v. Bollinger, 71 _U.S._, 123 S. Ct. 2411, 2003 (striking down admissions program for state university in which applicants were given specific admissions points based upon their race).

Massachusetts v. Feeney, 442 U.S. 256, 278–79 (1979) (holding that state policy that foreseeably disadvantaged women did not violate the Constitution).

Id.; Washington v. Davis, 426 U.S. 229 (1976) (holding that police exam that disparately excludes African American applicants from police force does not violate the Constitution unless the defendant city intended to discriminate).

Wells M. , “Scientific Policymaking and the Torts Revolution: The Revenge of the Ordinary Observer,” Georgia Law Review, 26 (1992): 725–55, at 740, 742.

See, e.g., PNC Bank v. Green, 30 S.W. 3d 185 (Ky. 2000) (holding that landowner has no duty to invitee to protect against obvious, natural outdoor hazards); Hale R.L. , “Prima Facie Torts, Combination, and Non-feasance,” Columbia Law Review, 46 (1946): 196–218, at 214 (attributing the rule to an ideology of individualism).

The most influential scholar/judge advocating this view has been Judge Richard Posner. See, e.g., Landes W.M. Posner R.A. , Economic Analysis of the Law (Cambridge: Harvard University Press, 1987): At 312; Halek v. United States, 178 F.3d 481 (7th Cir. 1999) (Posner, J., framing decision in tort case in terms of economic efficiency).

Feldman H.L. , “Science, Reason, & Tort Law,” in Reece Helene , ed. Law and Science 1 (Oxford. Oxford University Press, 1998): 35–54, at 35.

Minow M. , “Keeping Students Awake: Feminist Theory and Legal Education,” Maine Law Review, 50 (1998): 337–43.

Delgado R. Stefancic J. , “Hateful Speech, Loving Communities: Why Our Notion of “A Just Balance” Changes So Slowly,” California Law Review, 82 (1992): 851–69, at 862.

MacIntyre A. , After Virtue (South Bend: University of Notre Dame Press, 1981): At 244–45; Taylor C. , Philosophy and the Human Sciences: Philosophical Papers, vol. 2 (New York: Cambridge University Press, 1985): At 257–89; Walzer M. , Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983): At 28–30.

Ortiz D. , “Categorical Community,” Stanford Law Review, 51 (1999): 769–806, at 772.

Jacobi , supra note 77, at 1089.

Gostin L.O. , supra note 42, at 13.

Rose G. , The Strategy of Preventive Medicine (New York: Oxford University Press, 1992): At 53–63.

Burris S. Kawachi I. Sarat A. , “Integrating Law and Social Epidemiology,” Journal of Law, Medicine and Ethics, 30 (2002): At 510–21.

See, e.g. Krieger N. Sidney S. , “Racial Discrimination and Blood Pressure: The CARDIA Study of Young Black and White Adults,” American Journal of Public Health, 86 (1996): 1370–76(finding that differences between African American and Caucasian blood pressure levels may be attributable to discrimination).

Twenty-five states have repealed mandatory helmet laws for motorcycle riders over twenty-one years of age since the Highway Safety Act of 1976 removed the Department of Transportation's authority to condition federal highway funding on helmet-use laws. National Highway Safety Administration, Traffic Safety Facts: Laws, Motorcycle Helmet Use Laws 1 (May 2003), at <http://www.nhtsa.dot.gov/people/injury/New-fact-sheet03/Motorcyclehelmet.pdf> (last visited October 29, 2003).

Beauchamp D.E. Steinbock B. , “Population Perspective,” in Beauchamp D.E. Steinbock B. , eds., New Ethics for the Public's Health (New York: Oxford University Press, 1999): 25–27, at 27.

Centers for Disease Control and Prevention, “Obesity: A Modern Day Epidemic,” at <http://www.cdc.gov/washington/overview/obesity.htm> (last visited October 15, 2003) (noting that obesity has become an epidemic in the United States and listing associated health problems). The Public Health Advocacy Institute, with which the authors are affiliated, has recently initiated a project to develop and explore the legal approaches to the obesity epidemic. See Public Health Advocacy Institute, Law and Obesity, at <http://www.phaionline.org/projects/obesity.html> (last visited October 15, 2003).

See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 587 (2001) ( O'Connor J. , using the absurdity of regulating the marketing of fast food because of its impact on obesity as a justification for denying the state the right to regulate the marketing of tobacco); Pelman v. MacDonald's Corp., 237 F.Supp.2d. 512, 533, 536 (S.D.N.Y. 2003) (holding that consumers could not bring a claim against MacDonald's holding it responsible for their weight, as their decision to eat there was their own free choice, but plaintiffs could amend their complaint if the product sold was more dangerous than a consumer could be expected to know).

Pelman, 237 F.Supp. 2d at 533. This is the claim made by the Center for Consumer Freedom, an industry-supported group that objects to legal liability for the food industry. See Center for Consumer Freedom, What is the Center for Consumer Freedom , http://www.consumerfreedom.com/main_faq.cfm (last visited October 30, 2003).

Goode E. , “The Gorge Yourself Environment,” New York Times, July 22, 2003, at D1; U.S. Department of Health and Human Services, Public Health Service, Office of the Surgeon General, The Surgeon General's Call to Action to Prevent and Decrease Overweight and Obesity 2001, available at <http://www.surgeongeneral.gov/topics/obesity/calltoaction/CalltoAction.pdf> at 12–14

See Rose , supra note 96, at 73–80 (discussing the value of focusing on the population as a whole and noting that “the ideal population policy would be a substantial and general weight reduction.”) See also Centersfor Disease Control and Prevention, National Center for Health Statistics, Prevalence of Overweight and Obesity Among Adults In the United States, at <http://www.cdc.gov/nchs/products/pubs/pubd/hestats/3and4/overweight.htm>(last visited October 30, 2003) (showing increases in numbers of overweight Americans and fact that more than twice as many Americans, are overweight than are obese).

Hill O. Peters J.C. , “Environmental Contributions to the Obesity Epidemic,” Science, 280 (1998): At 1371–74; Taubes G. , “As Obesity Rates Rise, Experts Struggle to Explain Why,” Science, 280 (1998): At 1367–68.

For a discussion of the relative merits and demerits of tort litigation and regulatory approaches to public health, see Daynard R.A. Parmet W.E. “The New Public Health Litigation,” Annual Review of Public Health, 14 (2000): 437–454.

See Board of Education of Independent School Dist. No. 92 v. Earls, 536 U.S. 822 (2001); Yamaguchi R. Johnston L.D. O'Malley P.M. , “The Relationship Between Student Illicit Drug Use and School Drug-Testing Policies,” Journal of School Health, 73, no. 4 (2003): 159–64.

Gostin , supra note, 42 at 9.

See text accompanying notes 96–99 supra.

Mann J. , “Medicine and Public Health, Ethics and Human Rights,” Hastings Center Report 27, no. 3 (1997): 6–13.

Parmet W.E. Smith J.A. , The Inclusion of Non-Legal Disciplines in the Legal Curriculum: What We Can Learn from the Integration of Other Disciplines, at <http://phaionine.org> (last visited October 30, 2003).

Coase R.H. , “The Problem of Social Cost,” Journal of Law and Economics, 3 (1960): 1–44 at 1; Coase R.H. , The Firm, the Market, and the Law (Chicago: University of Chicago Press, 1988).

Landes W.M. Posner R.A. , The Economic Structure of Tort Law (Cambridge: Harvard University Press, 1987); Posner R.A. , The Economics of Justice (Cambridge: Harvard University Press, 1981); Posner R.A. , Economic Analysis of Law (Boston: Little Brown, 1992).

Indeed, even their critics felt it necessary to discuss and analyze their work. See e.g., Note, “The Inefficient Common Law,” Yale Law Journal, 92 (1983): 862–87 (discussing the criticism directed at an economic analysis of the law); Dworkin R.M. , “Is Wealth a Value?” Journal of Legal Studies, 9 (1980): 191–226 (arguing that a system of law designed to promote efficiency is immoral); Latin H.A. , “Problem-Solving Behavior and Theories of Tort Liability,” California Law Review, 73 (1985): 677–746 (rejecting deterrent effect of tort liability because economic approach to human behavior is flawed).

Gostin , supra note 42; Goodman R.A. , Law in Public Health Practice (Oxford: Oxford University Press, 2003).

See, e.g., Annas G. , “Bioterrorism, Public Health and Civil Liberties,” New Engl. J. Med., 346 (2002): 1337–41; Gostin L. , “Public Health Law in the Age of Terrorism: Rethinking Individual Rights and Common Goods,” Health Affairs, 21 (2002): 79–93; Kellman B. , “Biological Terrorism: Legal Measures for Preventing Catastrophe,” Harvard Journal of Law and Public Policy, 24 (2001): At 417–88.

See text accompanying note 6 supra.

This is not to say that any of these measures can or should be the sole way of judging welfare maximization. But they do provide an interesting alternative to the economist's tendency to reduce all issues to questions of wealth, judged solely in terms of monetary units.