The Slow Transition of U.S. Law Toward a Greater Emphasis on Prevention

Abstract

United States law has long emphasized treatment over prevention. Only over the past decade have legal measures begun to materially target many of the root causes of morbidity and mortality. This revitalization of public health law is long overdue. But it presents difficult (and, as yet, largely unanswered) ethical and policy questions.

This Chapter has four primary aims. First, it describes the traditional neglect of public health law. Second, it describes a built-in bias of the common law toward treatment over prevention. Third, this Chapter describes many of the most notable recent legal developments that increasingly emphasize the prevention, rather than the medical treatment, of health problems. Fourth, this Chapter examines normative problems raised both by these new, more paternalistic public health laws and by others that are likely to follow.

Keywords: prevention, health, public health, treatment, health law, ethics, health policy, tort law

JEL Classification: K32, I18