key: cord-345811-f0yt2a32
authors: Parmet, Wendy E.; Robbins, Anthony
title: Public Health Literacy for Lawyers
date: 2007-01-24
journal: J Law Med Ethics
DOI: 10.1111/j.1748-720x.2003.tb00136.x
sha: 
doc_id: 345811
cord_uid: f0yt2a32

nan

lic Health Advocacy Institute, with support from the Centers for Disease Control and Prevention, assembled experts froni legal education, public health practice and education, the judiciary, foundations, and the publishing industry to consider what changes would have to occur in legal education so that law graduates would be "literate" in public health and how those changes could come about.b In this article we build upon the intense discussions of the 25 conference participants. We make the case for introducing public health into the core law school curriculum and suggest the content that would be needed to achieve public health literacy among law students. We also argue that public health's focus on populations, aided by the tools of epidemiology, provides a valuable prism for understanding the relationship of individuals and groups and the ways that laws can and ought to affect them. We conclude by urging the development of a body of scholarship and analysis that brings the insights of public health to bear on legal questions.

Law schools might introduce public health to their students in several ways. Most comprehensively, law students can enroll in a J.D./M.P.H. program, and receive the training given public health graduate students for a masters degree in public health. While such programs are increasingly common,7 they are obviously intended for students already committed to careers at the intersection of law and public health. Thus JD/MPH programs do not reach the vast majority of law students.

A larger number of law students can I x exposed to public health in upper level electives that focus on public health law or a particular topic closely related to public health, such as AIDS law or food and clnig lawn Undoubtedly, the content and the extent of exposure to public health principles and methocls will vary widely depending on the particular topic of the class. Through these courses, law schools can provide :I limited number of students with in-depth exposure to one or more public health problems and the legal tools and doctrines most relevant to those topics. Law Faculty and public health professionals at a 2002 workshop' dedicated to developing a curriculum on bioterrorisin concluded, for example, that a hasic understanding of public health powers woulcl be an essential part of any course on bioterrorism.

Most law students, however, will never get ;I MPH or take a public health oriented elective in law school. If they are to be introduced to public health in the course of their legal training, it will have to be within existing, core law school courses, the courses that are generrilly required of first year students or taken almost universally by upper level students. At the Public Health Literacy Conference, the lawyers present identified several such courses-tom, constitutional law, environmental law, and administrative law-as prime candickites for the inclusion of public health. Attendees also recognized that the integration of public health into such courses would be d#icult to achieve given legal education's traditional reluctance to embrace significant reforms. Nevertheless, attentlees agreed that it was important to pursue the effort.

What public health knowledge or set of skills should all law students acquire? If these could be identified, educators from law and public health could explore how to incorporate then1 in core law courses. Successful integration of public health into standard law school courses would introduce students to: law's public health context w public health powers w public health inethocls public health's population perspective Two criteria must be met, according to the Public Health Literacy Conference attendees, if law professors are to adopt public health components in core courses. First, the integmtion must not be too hard to accomplish. Materials must be available, and support, in tenns of tine, money, wining, and academic respect, must be forthconling.'o Second, faculty must believe that the inclusion of such nuterials will not only be good for public health, but that it will also enhance their students' legal skills and pertiaps legal analysis itself. The reminder of this article seeks to adclress these concerns by exploring more fully the four components of a public health education for lawyers identified above-md examines how To empower law students to be literate in public health, law schools must help them to recognize public health issues and be familiar with the lessons from the law's prior encounters with public health. For over a hundred years, legal scholars have stressed the importance of introducing lawyers to the social, economic, and political context in which the law operates. They have also counseled the value of interclisciplinary analysis. In 7he Path of the Luw, for example, Justice Oliver Holmes scolded the legal profession for its belief that law exists apart from the world in which it operates. He argued that lawyers should be trained to understand "the social advantage on which the rule they lay clown must be justified.,."" Following in Holmes' footsteps in the early twentieth centuly, the legal realists asserted the inipomnce of the facts, out there in the world, to legal analysis. In their "revolt against fonnalism," legal realists suessecl the value of the social sciences and empirical analysis to legal decision making.12

In subsequent decades, legal scholars from a wide spectrum of perspectives and disciplines stressed the need for interdisciplinary work and social context in order to achieve a rich understanding of the law. Scholars and jurists from the conservative "law and economics" school, for example, have focused on understanding the economic context in which the law operates. First, they proclaimed the value of applying economic reasoning to legal decision ~naking.'~ Then they recast the analytic tool, useful to explain societal decisions, as an assertion that economic valuation is largely sufficient to comprehend human inotives. From a very different side of the political spectrum, femini~t,'~ critical race,15 and disability scholars16 have asserted the importance of teaching law students ahout the g e n d e d , racial, and disability context of legal issues. Each group advocates for the inclusion of its issues and disciplines-milyses that shed light on a spectnini of legal issues. Repeatedly, we are reminded in rather different ways that law students cannot fully appreciate the meaning or impact of the law unless they understand how it affects different people and reflects critical social phenomena."

Similarly, we recommend the inclusion of public health analysis and the public health context in which the law operates. Public health teaches us that the health or well being of indivicluals is influenced by forces that operate at the population level, beyond an individual's own conm1.'8 Risks to health, and the health problems they create, have had a profound influence not only on the lives of individuals, but also shape societies and the structure of our law." To understand not only public health, but the law, students should grasp the public health context in which key legal docuines have developed. Students will then recogmze public health issues when they arise, placing them in a fuller and familiar context of similar issues they have studied. They will appreciate more fully the reasons for and implications of the particular doctrines they are mastering.

Examples from three different areas of the law may serve to demonstrate what we mean by public health context. The first example comes from fourteenth amendment law. Virtually every law student studies the infamous case of Lochneru. New York, in which the Supreme Court struck down a state law setting maximum hours for bakeshop workers.2o Many scholars have viewed Lochneras one of the pivotal cases in constitutional law. Indeed, many legal theorists regularly cite it when they deride judicial decisions.2' To cry "Lochner" is to question the legitimacy of a constitutional decision.

Lochner, like most important Supreme Court cases, was about many things and many themes can be dissected the rise of the labor movement;t2 the Supreme Court majority's antipathy to progressive labor legi~lation;~~ and the struggle between courts and legislature^.^^ Legal scholars, however, seldom discuss the public health context, although the statute at issue was presented by the State of New York as a public health measure and bakeshop workers did experience numerous diseases, including a high prevalence of infectious tubercul~sis.~~ In fact, Justice Peckhani, writing for the majority of the Supreme Court, recognized that the statute would have been constitutional if it were indeed, truly, a public health measure.26 Thus, one of the key questions implicit in Lochnerwas the meaning of public health and whether worker protection issues could be seen as a valid concern for public health.27 Examined in this manner, Lochner provides an interesting insight into the contested nature of public health and the government's role in protecting it. The provision of this context to Lochnermay not change a student's ultimate opinion about whether the case was correctly decided, but it may shed new light on the decision. This expanded analysis of Lochner would prepare students to understand the ways in which struggles over the scope of public health have helped to weave the fabric of our law.

A second example also offers itself from constitutional law, this time relating to the commerce clause doctrine. As numerous commentators have noted, in L~$Ezu. United Stares, the Supreme Court r e v d its analysis of congressional power under the commerce clause, making it more difficult for Congress to enact regulatory legislation.a This constriction of congressional power appeared to derive, in part, from the Court's concern for safeguarding the traditional police powers of the states.29 Underlying that concern was the assumption that police powers constitute a relatively static set of powers, aimed at protecting the public's health and safety, and that these powers have traditionally been the exclusive province of the states. An understanding of public health history, however, makes problematic the notion that public health powers have been or can be the exclusive domain of the statesM Real world public health context intrudes. An analysis of public health problems in the modern global environment-from SARS3' to the question of youth violence32 at issue in Lopez--raises doubt about the ability of states acting alone to protect the public from such hazards. This analysis does not demonstrate that the Supreme Court was wrong in Lopez-. Certainly the Coun confronted interpretative and federalism problems beyond the scope of public health, but a discussion of the way in which health problems cross state and even national boarders suggests that Lopez' impact may be other than what the Court thought. At least, if the Court believed that it was protecting the police power and thereby the ability of states to safeguard the health and welfare of their populations, it may well have announced a constitutional rule that will result in exactly the opposite outcome, less protection for the health of a pop~lation?~ This may not prove to be so. But only by providmg students with the public health context behind the case can they hUy assess the Court's reasoning, speculate on the case's impact, and understand how constitutional doctrines may affect the lives of populations.

A final example offered here-although many others can be given--comes from the famous tort case of Stubbs v. City of Rochester?" The case concerned an outbreak of typhoid fever in Rochester, New York. The city offered two different water supplies, one for drinking and one for firefighting. The plaintiffs argued that sewage, known to be in the firefighting water system, contaminated the drinking water supply, causing the plaintiff to conmct typhoid fever.

The issue before the court was whether the plaintiff had sufficiently proven that the defendant's negligence caused the typhoid. Interestingly, Sfubbsconstitutes an early example of a court finding epidemiological evidence sufficient to satisfy the plaintiff's burden of causation.35 Thus the case provides an obvious opportunity to introduce students to basic concepts of epidemiology and to observe how methods for studying disease in populations have changed over the years. This would be useful to students, indeed essential, because tort litigation about product liability and toxic exposures has made epidemiology and public health science central to much civil litigation today, as we discuss later in this ankle.$ But the context of the case goes beyond an analysis of evidentiary issues.

The development of clean, municipal drinking supplies is undoubtedly one of the great public health victories of all time.37 Students reading the case should understand that cities did not always supply clean water for drinking and that prior to the introduction of clean water, concenmtion of populations in cities led to extremely high rates of death (especially among children) from diseases such as typhoid fever and cholera.B Dr. John Snow's study that linked cholem rates in London neighborhoods to the source of people's drinking water persuaded him to remove the handle from the contanlinated Broad Street pump, and incidentally helped give rise to the modern science of epidemiology.'g Before the science of bacteriology learned to identify pathogenic microorganisms in the late 19th century, municipal authorities, acting on the lessons learned from epidemiology, had achieved a dramatic decrease in deaths from water-borne diseases by protecting drinking water supplies from human wastesa Thus .seen in context, Sttibbs is not simply about how we can infer individual causation based upon population data, a subject that future ton lawyers would be well advised to master."' Stubbs is also a tale from public health's long struggle to use the forces of science and society to protect populations from infectious disease. Whether or not the defenclant caused Mr. Stubbs' typhoid, there can be no doubt that the health of the public benefits from the provision of safe drinking water. But that insight will not be recognized by students who do not know (as many of our students likely do not), that only 120 years ago, deaths from water-borne diseases were common in this country and that it took concerted public efforts to prevent preniatiire death.

A second goal is for students to appreciate key legal doctrines that relate to public health, particularly the array of powers government uses to protect the population's health and the restraints the law places upon those powers."2 All law students cannot be expected to study public health law as preparation for becoming public health lawyers. Nevertheless, they should understand the basic contours of how the government, acting through law, organizes to protect and promote the public health and the tensions and challenges created by the exercise of those powers.

Governments have always taken an interest in the health of their population. From the beginning, concerns about how to protect the population and prevent disease and injury have helped define the role of g~vernment.~) In the United States, activities by the states to promote public health came to form the core of what is known as the "police power."44 To be literate in public health, and indeed, to Ix effective lawyers, law students should be acquainted with the idea of the police power, the limitations applied or suggested to restrain it, and ways that states exercise it. An introduction to the police power will provide students two critical legal strengths: an appreciation of the legal tools available to help carry out public health actions and.a deeper understanding of the law's role in promoting the health of the population. By delving into the police power, students will see first that government activities to promote and protect the population's health have historic roots. They are not an unusual contemporary phenomenon. Second, such activities create difficult challenges for our legal system. Public health colleagues withwt legal training, although they must use the police power, often lack this depth of understanding.

A basic introduction to public health powers would also expose students to the complex role that the federal government plays in matters of public health. It is commonplace to assert that public health lies in the province of the states:s A carefill reading of history, however, demonstrates a critical and expanding federal role in the protection of public health, reflecting threats that exceed the capacity of states. (Sonie threats exceed the capacity of national governments as well, such as biotemrism and global epide~nics.)~~ What tools are available for the federal government to ;issure protection of the public heal& The spending power and the commerce clause are most obvious. What doctrinal limitations constrain efforts to protect the health of the public? Teaching these issues in their public health context, as we noted above, will enrich the students' understanding of the doctrines and facilitate the students' ability to use the law creatively.

The stucly of public health powers can also provide an opportunity to explore the ways that law can be used to advance public goals. Law schools usually emphasize private law and individual rights!' Our public law courses-~~~s t i t~i t i o~l law, adnlinistrative law, and criminal law-ften highlight the legal rights of individuals and the lhnits of government action. Far less discussion time is devoted to the use of the law as a positive instrument, to how governments can act, and the rationales for their action.@ To many lawyers, those questions appear to be outside of the law itself, within the domain of policy or politics.

Public health law in the core law school curriculum can provide a context for students to understand the broad range and durability of the powers different levels of government wield to protect the public. (Such topics already appear in the syllabi of nlany courses in health and environmental law.) In other words, by looking at public health powers, students can become better able to appreciate and use the law positively to advance the public good.

No discussion of public health powers would be complete without a consideration of the role that law plays in limiting those powers.@ A broad array of legal doarines, from the substantive due process doctrine developed under the 14th amendment of the Constitution,so to doarines relating to judicial review of administrative agencies, evolved appreciably in the context of public health Likewise, some of the earliest equal protection cases challenged actions taken by public health authorities who exercised their powers in a disainlinatory manner?* Even today problems may arise when public health agencies use their authority in an unduly coercive or dwnnuna tory manner. Lawyers have avenues available to restrain those actions. These topics can engage law students and help them appreciate that law is both a vital engine for public health, and also a critical mediating forre.

. . .

PUeLlc HEALTH MIXHOD% Law students can learn the basic scientific methods that public health employs and in doing so develop a broader acquaintance with quantitative and empirical techniques that are critical to the contemporary practice of law. The public health, conference noted that "Public health draws on all the scientific knowledge that informs our understanding of how humans interact with their environments and manifest disease and injuries."s3 Epidemiology, which studies the incidence, prevalence, distribution, and etiology of disease, is the core discipline of public health. Epidemiologists rely upon a variety of experimental and observational studies, statistical and analytic methods.

Lawyers cannot be expected to become epidemiologists. To understand the public health issues, however, they should have a basic grasp of the quantitative and scientific methods on which epidemiology rests. At minimum, lawyers should understand the types of studies that epidemiologists rely upon,% possess a familiarity with the concepts of rates, incidence, and prevalence; be aware of the distinctions between association and causation; and recognize that there are many ways that epidemiologists infer causation from a s s~c i a t i o n .~~ Lawyers might also receive a basic introduction to scientific reasoning,% the ways in which scientific consensus is developed,s7 and the distinctions between legal and scientific notions of "causation" and "truth."% (Ironically, most scientists themselves simply do science, remaining unfamiliar with studies of science and scientific methods.")

The suggestion that lawyers should be better informed about statistics and science is neither new nor exclusive to proponents for public health literacy. Critics of the legal system's use, misuse, or abuse of science and scientists have long lambasted lawyers for their ignorance about what science is and how it works. @' A 1993 Supreme Court decision, Dauben v. Merrell Dow Pbumacmticak, lnc.,61 and its progeny have made the debate central to tort litigation in the United States.6z In Daubert, the Supreme Court reconsidered the standards for admission of expert evidence. Rejecting the earlier Fty@ nile as incompatible with the Federal Rules of Evidence, the Court instead required federal judges to act as gatekeepers and determine whether the proffered evidence was "reliable," which the Court claimed, required a determination of whether the evidence was based on a scientifically valid methodology.& In Daubertitself, two justices questioned the wisdom of asking federal trial judges to take on the role of deciding what is good science and what is not, describing the task as akin to asking them to become "amateur ~cientists."~~ Since Daubert, however, in federal coum and many state coum, that is just what has happened.& Because expert witnesses may offer opinions about causation that QIJANTWATIVE AND SCENIWIC REAS0NI"lN are thought to be useful to the finder of factjury or j u d g e a trial judge is now required to act as a "gatekeeper" and decide which expert testimony to admit. The Daubert process-pretrial hearings on the admissibility of expert testimony-now donlinates product liability and toxic tort cases6' Recently, the Data Quality Act68 has extended a Daubert-like process into federal agencies, providing an opportunity to challenge the science used in setting agency policy and in regulatory decision making. This means that every lawyer working with or in government agencies will need to understand science and quantitative reasoning as never before. All these procedures hinge on how lawyers understand and portray science, an important reason why an introduction of public health and scientific decision making is necessary in the core cumculum law school. Lawyers employing the Daubertprocess have spawned a vimal industry designed to inform judges and lawyers about the "ABC's" of epidemiology, the scientific method, and statistics.@ These legal pundits on science have expanded on the Court's suggestions in Daubert, creating a check-list approach to assessing whether scientific testimony is relevant and reliable, confusing-often deliberately-the legal concept of causation with how scientists reach conclusions about Little or none of this lawyers' rendition of science has been subjected to scholarly scrutiny by scientists, and legal practitioners and judges, largely uneducated about science and quantitative methods, have wandered far from scientific practice." The need for a better understanding of science among lawyers is now plainly evident. Justice Breyer, in his influential critique of the regulatory process and administrative law, has called for a more rigorous understanding of quantitative analysis, including cost-benefit analysis, in determining regulatory standards." The National Academy of Sciences has a committee of scientists and lawyers reviewing these issues.73

In light of Daubert, lawyers must be better informed about how scientists assess causality, how they value evidence, and the application of epidenuology, toxicology, animal and clinical studies. Thus, there is an urgent need to develop cumculum within law schools that teaches law students to understand quantitative science. And what better way than around public health issues, that are already deeply embedded in the law? It would meet the broader goal of ensuring that lawyers are competent consumers of epidemiological and statistical analyses and that lawyers can work collaboratively and intelligently with public health professionals, medical expew, regulators, and the plethora of other professionals who rely upon quantitative and empirical tools.

Lawyers should be able to think critically about populations and what it means to focus on them, as opposed to individuals. This approach to legal problems contrasts with the law's usual focus on individuals. Drawing on the traditions of Anglo-American liberalism, our jurisprudence posits individuals as mini-sovereigns, each replete with her or his own endogenous set of preferences and From this premise, the goal of law becomes regulation of the interaction of those mini-sovereigns; to protect their rights and property; and, for those who subscribe to utilitarian or neo-classical economic theories, to maximize their aggregate utility or wealth.75 Law schools, with their typical emphasis on competition ancl non-collaborative work, reinforce the individualism evident in the doctrines This foundational individualism manifests itself in and deeply influences many fields of law. A few bwad-brushed examples may demonstrate the point. The field of health law itself, as John V. Jacobi observed, concerns itself with "bilateral disputes over health finance, medical injury, and patient's rights...'" What is missing, he argues, are the "tools or the perspective" to address issues that affect populations.78 American constitutional law, too, is famously devoted to analysis and consideration of the rights and interests of individuakn Thus the question of whether a woman can have an abortion is framed as a conflict between a woman's right to privacy versus the rights of the individual fetus.8o The law of race discrimination, which was once understood as recognizing and responding to group harms:' focuses significantly on the needs and interests of individuals, rather than groups!* Although the Supreme Court's recent decision to uphold race-conscious decision making by universities signals some recognition of the importance of group perspectives,B3 it remains me that state policies that disparately disadvantage suspect classes are not held to violate the Constitution even if' the disadvantage to the group is clear and obviously foreseeable.& Only when the state, anthropomorphized as if it were also an individual, intentionally aims at disadvantaging one or more people on the basis of their membership in a suspect class, is the Constitution found to be offended.us Even tort law, the field of common law most focused on population-based concerns, remains heavily influenced by individualism. As scholars have noted, traditional tort law, prior to the so-called 1Ws "torts revolution," assumed that "individualism outranks concerns for others."& These tenets remain ensconced in the field, for example, in the noduty rule that many states continue to affirm!' Perhaps the single most influential critique of traditional tort law emerges from scholars and judges who believe that the primary goal of tort law should be the maximization of economic efficiency.w While this position postulates the The dominating individualism of American law has come under sustained critique in recent decades from: fenunist scholars who postulate the importance of relationships;w critical race scholars who point out the need to understand the position of identity groups;" ancl communitarians who stress the primacy of Nevertheless, these critics, remain just that: critics of the prevailing regime. Their influence is occasionally evident in case law, but they have largely failed to alter the status quo. Perhaps even more impoitantly, as David Ortiz has noted, in many subtle but fundamental ways these critics share many of the individualistic premises of the jurisprudence they critique9~-ofien reifying groups or communities, treating them as if they were, in essence, individuals.

What the critics,of individualism in the law seldom offer is a serious or sustained examination of groups (other than identity groups), which includes an analysis of them and their interests and their relationships to the individuals who fonn them. This, of course, is precisely what public health and its scientific foundations do. As Jacobi writes, "[plublic health is a discipline dedicated to the scientific examination of the conditions affecting the health of populations."94 Public health's prinlary sciences-epidemioiogy and biostatistics-focus on populations as populationsB and apply empirical, statistical, and analytical methods to understand how to define them, determine what affects them, and what distinguishes them from other populations, and how they relate to the individuals who comprise them.

By comparing populations, epidemiologists have garnered ,insights useful to legal analysis. Geoffrey Rose explains that how populations are selected affects what can be learned.* For example, if we try to understand the causes of coronary artery disease by comparing people in a particular population who have heart attacks with those who don't, we may identlfy a risk factor, such as exercise, the presence of which differs between the groups. However, unless the population as a whole is compared with other populations, we may easily miss causes of the disease to which everyone in the population was exposed. Only by many comparisons of many populations with different rates of disease, can be begin to idenufy all of the factors contributing to disease? ' Rose's insights raises several points relevant for legal analysis.* First, he demonstrates how a focus on individuals-usually the symptomatic p a t i e n w a n at times obscure our understanding of what is happening to the larger group.

Thus the health damage done to the population by asymptomatic or untreated individuals with mildly elevated blood pressure is far greater than the sum of damage done to symptomatic individuals and those found by doctors to The Journal of Law, Medicine & Etbics have hypertension, for the latter group is much smaller. Can changes in the environment affect the prevalence and distribution of hypertension in the population? Only by comparing groups can scientists predict how individuals are likely to respond to elements of their social and physical environments.

This is relevant to a number of legal issues. For example, in understanding the nature and impact of discrimination, we may recognize that the phenomenon at a population or social level cannot be well understood simply by looking to discrete cases of discriminatory behavior. Indeed, epidemiological studies that have associated the relationship between discrimination in a population and the health status of minorities suggest precisely that point.93

Epidemiology also teaches that the risks individuals face are significantly affected by their environment. For example, an individual with a low genetic predisposition to a disease may still be at a higher risk of that disease than an individual with a high genetic predisposition if the former is exposed to a more dangerous social and physical environment, where the incidence of the disease is tugher. From this we learn that even if our goal is to change an individual's risk factors, environmental or population-based interventions may be more successful than those policies that seek to change individual risk factors.

Epidemiology's analysis of the relationship between individuals and social risk also has relevance for a wide range of legal issues. For example, debates about whether government should enact apparently paternalistic laws, such as those requiring motorcycle helmet laws, often presume that individuals can make independent choices and that they can control the probabilities of their being affected by different risks.'" Rose's work questions that assumption and provides legal decision makers with a different perspective for analyzing so-called paternalistic laws. On the one hand, a seat belt law niay not actually be paternalistic, if we recognize that inciivicluals cannot in fact control the risks to which they are exposed. On the other hand, such laws may be inefficient ways of reducing highway deaths if in fact they focus on altering individual rather than population behavior. As Beauchamp and Steinbock argue, "[tlhe population perspective constnicts a new story about how highway injuries occur in Likewise, a population-based perspective may alter the way we understand relatively new issues, such as the legal responsibility of the food industry for the growing obesity epidernic.lo2 The traditional individualism of American law (and culture) would suggest that in the absence of misrepresentation or the sale of an exceptionally dangerous product, the food industry should not be viewed as responsible for the pr0b1em.l~~ Individuals should be regarded as free and responsible for their own eating and exercising habits as well as the weight gain that ensues.""' A population-based perspective, however, questions whether individuals should be viewed as personally responsible for their own weight. After all, the prevalence of obesity is increasing both across the broad U.S. population and across varied sub-populations.Iw Likewise, the health damage stretches across the population, harming individuals who do not consider themselves in need of weight control or who do not meet the official definition of obesity (BMI greater than 30). In fact, more health damage is likely occurring in the part of the population not identsed as overweight than in the overweight population.'06 This suggests that causes must be understood at a broad, population level. Something is happening to make millions and millions of people make "choices" that lead to their gaining weight. Epidemiologists, therefore, are looking to fundamental environmental changes, including the marketing and distribution of food, as well as the way our built environment affects our activity levels.'07 These deeper causes may suggest legal causation should be seen as residing in those parties (corporate and governmental) that perpetuate the obesity-causing environment, or it may suggest a role for affirmative government interventions to alter the environment.Im While adoption of a populationbased perspective does not provide a single or simple determinative analysis of where and how the law should assign responsibility and intervene in the case of obesity, it does suggest a different set of remedies and approaches than would be offered by a more individualistic, marketbased approach, which might focus solely on remedying market failures by giving individuals more information on how to make healthy choices.

Importantly, epidemiology also teaches us that populations differ and that it is critically important to define and compare them. Thus in thinking about obesity, or any other issue, we need to take care to consider what constitutes the population at issue. Lawyers, however, often use terms like "the public good" or "majority" without defining the group or assessing how one group differs from others. This lack of precision may inappropriately privilege majorities (as may occur when courts uphold drug testing for school children on the unproven assumption that it is in the public interest),Iw or it may devalue their interests by simply not treating them with sufficient rigor and import. A population-based perspective would not necessarily lead a judge either to uphold or bar a drug search, but it would demand that the "public" cited in defense of the search would be carefully delineated and the relationship between it and the search would be articulated.

Ultimately, a population-based perspective offers valuable lessons about the complexity of the relationship between individuals and populations. The history of public health is replete with examples in which individual interests have conflicted with either real or purported interests of particular publics.110 However, public health also teaches us that not only are individual interests interwoven with public conditions,"l but that recognition and protection of individual interests may also at times be the most efficient ways to secure a common good. Early in the AIDS epidemic, it was noted that societies that respected individual rights were often the same ones which achieved individual behaviors most protective of tlie whole population."* (Wealth and security, it should be said, often predate individual rights and explain tlie ability of people to lean and change behavior.)

These perspectives from public health are important to understancling laws (statutory, regulatory, and common law) that purport to serve the common good. In almost all such cases, a lawyer's understanding of the population perspective will add to and enrich the legal analysis.

Whether drafting an administrative regulation to control air pollution levels or litigating a class action employment case, a lawyer's ability to take populations seriously and recognize the dynamic and multivariate relationship they have to individuals will improve the analysis.

The true integration of piiblic health into legal education will not be easy to achieve. Law schools have for the most part been quite reluctant to embrace change."' Pressures from bar examiners iindoubtedly exacerbate that recalcitran~e."~ In addition, curricular changes require an investment of faculty time, that they may well be unwilling to make without sufficient institutional scippo~t."~ The most critical factor, however, may Ix the existence, or lack thereof, of :in engaging :incl intellectu:rlly stimulating body of scholarship using the insights of public health to address a range of legal issues. Attendees at tlie Public Health Literacy for Lawyers Conference agreed that public health will not be integrated into the core legal curriculum unless and until a hotly of legal scholarship demonstrates its relationship to law and its power to enhance legal analysis. If such ;I body exists, then there is reason to hope that law professors will take note.

Neo-classical economics, for example, became part of legal education only after scholars, such as Ronald Coase116 and Richard Posnerl" produced scholarship that displayed the ability of neo-classical economics to provide a coherent, iinsed, descriptive, ancl nomtive analysis of a wide-range of legal problems. The breadth and apparent elegance of their approach helped to stimulate excitement and debate among legal scholars, spurring additional scholarship on the role of economic reasoning in the A s a result, even critics of the distributional consequences of law and econonucs came to see econoniic analysis of tlie law :is a perspective and skill that their students "ought" to know.

To permeate legal education with population-based legal analysis, a similar scholarly revolution investigating the utility of incorporating concepts from public health science is needed. Perhaps it has already begun. In recent years, there has been a renewed interest in public health law (including this secondJLMEsyniposiiim). Book-length expositions of the field have been and seven1 major conferences have been held. In addition, issues such as bioterrorism has spurred considerable scholarly delxtte.'" But few scholars have consciously attempted to explore the broader utility of population-based analysis for law and jurisprudence. Perhaps, one by one, cases and courses iiiust be reexamined to assess the value of population-based legal analysis.

To reach a wider audience, and to entice a critical mass of scholars to join the debate and bring it to their students, more and in-depth scholarship is certainly needed. As we noted at the start, public health's focus on populations, resting on the science of epidemiology, provides a valuable prism for understanding the relationship of individuals and groups and the ways that laws can and ought to affect the~ii.'~' In addition, analyses of morbidity and mortality, and health measures, may well provide an important complement or even alternative to wealth maximization as a measure for determining utility for a population.'22

Grounded in observation ancl association, rather than on a singular deductive construct, public health science is unlikely to offer the kind of elegant, unified theory for human behavior spelled out in neo-classical economics, a theory that reminds us of H.L. Mencken's suggestion that "for every problem, there is one solution which is simple, neat and wrong." Nevertheless, public health can provide an alternative way of looking at old legal issues. For example, it may help lawyers analyze key issues, such as what constitutes the public good, and what are the proper roles and powers of government, where current answers are not wholly satisfactory.

In order for public health to play this role, more scholars must join the field. They must explore and debate what it means to consider legal issues through the prism of public health. We expect that once they take up that baton, they will find that it leads them down interesting and as yet unpredictable paths. We hope they will join us on that journey. REFERENCES See, e.g., Guide to Comintinity PreuentimSeryices, at <http://www.thecoi~iiiinityguide.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 1W. See Centers for Disease Control and Prevention, hcblic Heulth Luw Progrum, at <http://www.plippo.cdc.gov/od/ phlp/almiit.asp> (last visited October 8, 2003) .

A. Robbins and P. Freeman, "Public Although we dmw 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 Ofice, 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 generdl, see L.R. Crane, "Interdisciplinary Combined-Degree and Graduate Law Degree Programs: History and Trends," John Marshall Law 3.

4.

RW~UU, 33 (1999): 47-80. 8.

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. M. Minow, "Education for Co-Existence," Arizona

Why Justice is Good for Our Health: The Social Determinants of Health Inequalities

Uniuersity of Chicago Law Review

Lochner The Rise and Fall of the Constitutionalization of Public Health

Judicial Power and Reform Politics: 7he Anatomy of Lochner v

The Role of New Federalism and Public Health

United States v. Lopez Judicial Review Under the Commerce Clause

Inside the Federalism Cases: Concern About the Federal Courts

Parmet supra note 22

judicial review of FDA authority to regulate tobacco products as "drugs

356 (1886) (city violated the Fourteenth Amendment when in the name of public health

Public Health Literacy for Luwpts: Selecting the Content, paper presented at Public Health Litmcy forLuwym

How Science Works

Epidemiology, Justice, and the Probability of Causation

Burden of Proof: Judging Science and Protecting Public Health in (and Out OD the Courtroom

A Fish Out of Water: Scientisrs in Court

Shattuck Lecture -Evaluating the Health Risks of Breast Implants: The Interplay of Medical Science, the Law, and Public Opinion

Galileo'sReuenge: Junk Science in the Courtroom

See also Kuinho Tire Co

Complex Litigation at the Millennium: Upsetting the Balance Between Adverse Interests; the Impact of the Supreine Court's Trilogy on Expert Testimony in Toxic Tort Litigation

Is Science Different for Lawyers

73. 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

Law, Politics, and the Claims of Community

Rights Talk: Xbe Impoverishment 01

Atoinism

The The0 y of hgtilation

Of Civil Government: Two Treatises

Feminist Perspectives and the Ideological Impact of Legal Education on the Profession

Thinking Beyond My Own Interpretation: Reflections on Collaborative and Cooperative Learning Theory in the Law School

Book Review -Lawrence 0. Gostin's

Seton Half Law Review

Groups and the Equal Protection

The Failure of Gender Equality: An Essay in Constitutional Dissonance

Individual Rights and Class Discrimination: The Fallacy of an Individualized Determination of Disability

2411, 2003 (striking down admissions program for state university in which applicants were given specific admissions points based upon their race)

holding that state policy that foreseeably disadvantaged women did not violate the Constitution)

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)

Scientific Policymaking and the Tom Revolution: The Revenge of the Ordinary Observer

Prima Facie Torts, Combination, and Non-feasance

at 214 (attributing the nile to an ideology of individualism). The most iduential scholar/judge advocating this view has been Judge Richard Posner

Science, Reason, Csr Ton Law

Hateful Speech, Loving Communities: Why Our Notion of "AJust Balance

Philosophy and the Human Sciences: Philosophical P a p , wl

Spheres of Justice: A Oefense of Pluralism and 83

Stanford Law Jacobi, supra note 77

7he Strategy of Premniim Medicine

Integrating Law and Social Epidemiology

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 hnding on helmet-use laws. National Highway Safety Administration

) (noting that obesity has become an epidemic in the United States and listing associated liealth problems). The Public Health Advocacy Institute

using the absurdity of regulating the marketing of fast food because of its impact o n obesity as a justification for denying the state the right to regulate the marketing of tobacco)

MacDonald's ing 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

2003) (holdmade by the Center for Consumer Freedom, an industrysupported group that objects to legal liability for the food industry

The Gorge Yourself Environment

Public Health Service, Ofice of the Surgeon General, 7he Surgeon General's Call to Action to Prevent and Decrease Ooenoeight and Obesity

the ideal population policy would be a substantial and general weight reduction

Environmental Conuibu-' tions to the Obesity Epidemic

For a discussion of the relative merits and demerits of tort litigation and regulatory approaches to public health, see

The Relationship Between Student Illicit Drug Use and School Drug-Testing Policies

Medicine and Public Health, Ethics and Human Rights

The Problem of Social Cost

The Firm, the Market, and the Law

7he Economic Structure of Tort Law

The Ecoiiomics oflustice

Economic Analysis of Laui

The Inefficient Common Law

Is Wealth ;I Value

Problem-Solving Behavior and Theories of Tort Liability

Public Health Pmcfice

Bioterrorisni, Public Health and Civil Liberties

Public Health Law in the Age of Terrorism: Rethinking Individual Rights and Common Goods

See text accompanying note 6 supra. 122. 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