Tobacco, HIV, and the Courtroom: The Role of Affirmative Litigation in the Formation of Public Health Policy
Wendy E. Parmet
Northeastern University - School of Law
August 28, 2012
Houston Law Review, Vol. 36, No. 5 (Symposium 1999), pp. 1663-1712, 1999
Northeastern University School of Law Research Paper
Individuals concerned about public health issues are increasingly using litigation to advance their agenda. This Article looks at the role that litigation can play in the formation of public health policy by reviewing litigation concerning tobacco and HIV. Although tobacco and HIV initially appear to be very different sorts of public health threats, presenting very different types of policy dilemmas, the Article suggests that there are surprising similarities between the issues. After briefly surveying these issues and the course of tobacco and HIV litigation, the Article analyzes several potential criticisms that may be leveled at the practice of placing public health policy issues before the courts. These criticisms include: l) that public health litigation is antidemocratic in that it relies upon unelected judges to determine public health policies; 2) that public health litigation places too much authority in the hands of judges who lack expertise in public health while undermining the role of public health officials, and 3) that the individualistic/adversarial model presented by litigation undermines conceptions of public responsibility and interdependency critical to the advancement of public health. The Article concludes that while each of these criticisms raises serious concerns, public health litigation has and may continue to play a useful role in the political and social struggle to protect the public health.
JEL Classification: K32
Date posted: June 29, 2000 ; Last revised: August 30, 2012
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