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Observers have lamen-ted that much of the money the states will receive from the multistate tobacco settlement will not in fact be spent on tobacco control Although this may be regrettable from a public health point of view, it does not lessen the incentives placed on defendants and consumers. Because tort law achieves its deterrence both from potential defendants' fear of financial liability and the price increases necessitated by large damage awards to achieve greater safety, deterrence should not depend on how the states spend their settlement awards.

Of course, if states chose to spend the money on public health initiatives, the public health impact of the litigation might be strengthened significantly, but the deterrent effect should remain the same even if the money is used to lower taxes or widen roads. In the mid-nineteenth century, one of the fundamental goals of the sanitarian movement was the institutionalization of a public health bureaucracy that could work to achieve public health goals in a systematic and scientifically informed fashion. The preexisting method of responding to public health threats by a combination of common-law action and the ad hoc appointment of committees or councils to deal with emergencies was clearly inadequate to ensure clean water and wholesome food Only after the appointment of municipal boards of health and the great federal public health agencies, such as the US Food and Drug Administration, could the public assume a consistent and effective response to public health threats.

The new public health litigation should not be seen as corrosive to this development. Indeed, in many instances, such as tobacco 51 and lead paint cases 54 , litigation has played a crucial role in helping to pass more traditional forms of regulation. In many other cases such as those falling within cell 3 of Table 1 , litigation is simply one of the tools regulators use to enforce their laws. There may, however, also be circumstances in which litigation itself may achieve more optimal or at least equally effective public health protection, compared with traditional forms of regulation.

In some situations, such as the design of consumer products, concern for tort liability and its political and financial impact may lead industry to adopt safety features that would not be adopted simply because of regulation. This is because regulation tends to close the barn door after the horse has escaped, mandating safety features only after harm has occurred.

In contrast, the fear of expost facto liability created by tort law may induce manufacturers to design and sell safer products even in the absence of specific, explicit regulation. There is the paradoxical concern that the very power of litigation to achieve public health goals may lead lawyers and others to forget that lawyers are not, per se, public health experts.

The remedies lawyers seek and the settlements they agree to may not always constitute the optimal solution from a public health perspective 9. One can also imagine other public health situations such as the outbreak of an acute epidemic in which litigation could play only a minimal role. Clearly, when public health threats are imminent, concern for public health requires that regulators act, without waiting to see whether the tort system's incentives will do the job.


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It is surely preferable, after all, to have regulators remove contaminated food than wait for litigation to sort out the liability for dead consumers. Finally, public health litigation itself benefits immensely from the expertise and support provided by public health authorities. To the extent that such litigation is successful in the courtroom, it is often only because it has worked in harmony with the policies of public health officials. The tobacco litigation would have been far less effective than it has been were there no Surgeon General's Reports.

In recent years legal theorists across the political spectrum have questioned our culture's tendency to reduce issues of policy and politics to questions of legal rights 27 , While some of these concerns focus on the capacity of legal decisions to actually effect change, an issue that has been considered previously, others focus on the nature of legal reasoning and the contours of legal doctrine and ask whether they are supportive or destructive of sound public policy and constructive political changes.

Several of these concerns appear particularly pertinent to public health litigation. One set of issues relates to the strong preference in legal doctrine for viewing rights, those interests that the law protects, as negative.

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To a large degree, legal rights require that someone refrain from taking an action, rather than that someone or something undertake an action. Tort law, for example, will generally not hold an individual responsible for failing to come to the aid of another Although this preference is not absolute, it has profound consequences for attempts to advance public health interests via litigation.

Protection of the public health, after all, often requires the active or positive engagement of the body politic. When the government does act, the legal system's willingness to uphold negative rights and review government action means that individuals can readily obtain judicial review of the public health action. Thus the traditional form of public health litigation, involving cases in cells 2 and 3 of Table 1 , occurs when an individual resists or challenges a public health order.

Although courts will usually uphold such orders, the nature of the discourse and constitutional reasoning makes it easy for them to recognize that they are in the realm of constitutional rights and that judicial review is legitimate and necessary. But for judicial decision making to play a more affirmative and positive role in the protection of public health, it should be able to do more than simply limit the reach of government.

Indeed, if that were all courts could do, they could only be seen as enemies of public health, for there clearly are times when protection of public health requires more than simple inaction and adherence to laissez faire. To be truly effective in providing for the public health, a legal right would have to mandate that positive steps be taken to improve and protect the health of communities.

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Such positive requirements, however, are often seen as antithetical to or beyond the ability of the legal system 7. The courts' uneasiness with positive rights is most evident when it comes to cases falling within cell 3 of Table 1 , those brought by private individuals and organizations against the government.

Although plaintiffs have had some successes in this arena, especially when they are able to frame their claim as a demand that government refrain from taking an action limiting the individual's ability to care for his or her own health thus casting the claim as a traditional claim to a negative right or liberty , claims to health protection have been notoriously ill fated. Thus, as is well known, courts have made clear that there is no constitutional right to health care except when one is in the custody of the state But there is also no constitutional right to public health protection.

Indeed, given the tenor of constitutional law today, it is inconceivable that a claim requiring the government to take affirmative actions to improve the health of a community would be upheld. Such a claim would clearly be greeted by the retort that the decision to engage in a public health program is a matter of policy and politics, not a legal right, and that courts are best at limiting infringements of liberty, rather than initiating or overseeing governmental programs.

The latter, after all, require the expenditure of tax money, the hiring of personnel, and a complex array of institutional decisions that would appear to be outside the realm of law and rights. Constitutional law's preference for limiting government, rather than prompting government activity, has been bolstered further by a wide array of jurisdictional doctrines that make public law public health claims especially difficult. As was discussed above, cases within cell 3 must face a barrage of jurisdictional hurdles, such as the standing and reviewability doctrines, that at their core aim to ensure that federal courts, at least, limit themselves to the resolution of concrete disputes between concrete individuals, which can readily and appropriately be remedied by judicial intervention.

Unfortunately, when it comes to matters of public health, it is precisely such types of claims that might well prove the most critical.

Some of these same problems may also arise when health-related claims are brought against private parties. For example, common-law courts do not require a physician to treat someone who is not a patient, even if that individual is in a critical condition Again the law's preference for negative rights appears to overshadow any claim of a right to care from others. However, in many ways, the common law has proven itself far more flexible in this regard than has constitutional law. As a result, although a manufacturer may not have an obligation to create a safe product, it will be liable for any injuries caused by the product it did manufacture.

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And although a physician may not have an obligation to treat anyone and everyone, once a physician-patient relationship has been established, a physician who refuses to come to a patient's aid may well be found liable for abandonment Still, the common law coincides with constitutional law in demanding the presence of concrete actions and specific litigants. Although contemporary innovations sometimes permit plaintiffs to sue multiple manufacturers of a product, without demonstrating specifically which manufacturer sold the actual product that harmed the plaintiff 1 , there still must be some readily identifiable defendants.

A claim cannot be made against civil society as a whole. Yet, in a sense, that is at the moral core of a claim for public health. This suggests a related cause of concern. As some commentators have recognized, this way of framing an issue may be quite destructive of attempts to recognize common issues and concerns that lie at the heart of public health Indeed, if there is any difference at all between the perspectives of public health and the visions of modern medicine, it is the former's focus on the health of communities writ large and its understanding that communities as such have both a claim to and an obligation to ensure the health of their members This public or communitarian perspective can in many ways be antithetical to the individualistic and adversarial perspective of legal reasoning.

Legal reasoning, after all, asks whether this plaintiff has a right vis-a-vis this defendant. In so doing, a court seldom will ask either how the resolution of the concrete dispute will affect the public or what obligations the public will have. Rather, by stressing the adversarial nature of the relationship between the parties and the binary nature of the potential legal decision, the judicial process would appear not only to overlook public concerns but actually to accentuate divisions within communities.

Thus, law allows Rock Hudson's lover to sue his estate for giving him AIDS, without providing any right or remedy for society's failure to make drug treatment or clean needles available, even though those failures will cause more deaths than Rock Hudson ever did. This communitarian critique of legal reasoning suggests important limits on the ability of litigation to advance the public health. But the critique itself should not be carried too far, because when it comes to public health the law's individualist perspective is not often at odds with the interests of the community.

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More often than not, the two are intertwined. To the extent that law reform efforts are successful in creating new rights, they in effect serve to redistribute entitlements and property, thus flattening the divisions that serve in so many ways to undermine health. Moreover, as the work of the late Jonathan Mann has shown 50 , recognition of human rights is often an essential ingredient for preserving the public health.

In a society in which women lack control over their bodies, the stemming of HIV transmission is more difficult In a world in which patients cannot count on the confidentiality of their medical records, they will be reluctant to speak frankly with their health care providers. And in a climate in which manufacturers are not responsible to particular individuals for avoidable injuries caused by their products, they may have little incentive to invest in safety. Recognizing such social obligations as legal rights is hardly inimical to public health.

Instead, it may be necessary for it. Advocates for public health are increasingly going to court to advance their concerns. Such affirmative public health litigation faces formidable obstacles and cannot always achieve its aims. Nevertheless, it may play a significant role in the advancement of public health.

Public health litigation may form a critical part of a political struggle to achieve a public health agenda. It may also have a powerful deterrent effect on those individuals and organizations that create risks to the public health. Finally, litigation's articulation and recognition of individual rights can serve as a necessary foundation for more fully protecting the public health.