Populations, Public Health, and the Law

11. The Future of Population-Based Legal Analysis

C H A P T E R 1 1 The Future of Population-Based Legal Analysis Often a new paradigm emerges, at least in embryo, before a crisis has developed far or been explicitly recognized. —Thomas S. Kuhn, The Structure of Scientific Revolutions T his book began with the common law maxim, salus populi suprema lex. Its meaning is simple: the well-being of the community is the highest law. The maxim helps remind us of why we have law. Law exists not only to vindicate the interests and rights of individuals, nor simply to empower officials, but also to promote and ensure the well-being of populations. Central to that objective is promoting and enhancing population health. Only when that is secured can the well-being and interests of both individuals and the populations they form be realized. Population-based legal analysis is an approach to legal reasoning, analysis , and decision making that is inspired by the vision of salus populi. It seeks to enable law to fulfill its mission of promoting the health of all populations, thereby providing communities and individuals with the chance to pursue their own vision of the good life. As the preceding chapters have explained, population-based legal analysis assists law in this mission by applying public health’s population perspective to legal analysis. In so doing, it recognizes the promotion of population health as a legal norm and helps law appreciate the role that populations play as both objects and subjects of the law. In addition, it adopts the epistemology and 267 268 chapter 11 methodologies of public health, especially epidemiology, for legal analysis and decision making. In doing so, population-based legal analysis improves law’s capacity to serve as an effective tool for the protection and promotion of population health. The application of population-based legal analysis to the many diverse and pressing health problems that populations confront today, from obesity to emerging infections, has revealed the poverty of contemporary American legal analysis. Population-based legal analysis has exposed the hyperindividualism that infects much of contemporary American discourse , uncovering critical insights into the relationship between individuals , populations, and legal doctrines. Key among these insights is that the choices individuals exercise and the health risks they face are determined, to a large degree, by the environments they experience and the populations they comprise. Also important is the prevention paradox, which suggests that laws that have only a modest impact on a broad population may have a greater effect on human health and well-being than laws that target, often coercively, so-called high-risk individuals. And perhaps most crucial is the recognition that both the positive and negative rights of individuals are often conducive, if not essential, to securing the health of the populations they form. As a result, the conflict between population health and the interests of individuals is neither as deep nor as enduring as the conventional view holds. Unfortunately, in the early years of the twenty-first century, American law often seems either to neglect its own mission to protect population health or to see that mission as requiring the suppression of individual rights. Thus American law oscillates between libertarianism and authoritarianism , in either case assuming that we can have our liberty, or our health, but not both.1 Population-based legal analysis teaches that this notion is false, indeed, dangerous. It undermines the law’s capacity to protect population health while eviscerating myriad other constitutional norms, including separation of powers, federalism, equal protection, and due process. Thus the challenge we face today is to recognize the importance of population health to law without permitting the protection of public health to serve as an excuse to undermine the rule of law. To do this, we need to incorporate a true population perspective into law, so that the fear of health threats and the cry of public health are not exploited or misused, the future of population-based legal analysis 269 but rather, that population health is enhanced by a legal discourse and jurisprudence that appreciates how law can help lay the conditions for people to be healthy. To do this, law must embrace a sophisticated understanding of public health’s relationship to law. It must recognize the diversity and constructed nature of populations and eschew the belief in a single, totemic public. It must also take note of the ways that environments and...