Courts as Ebola Educators

By Scott Burris

News in this afternoon is that a Maine state judge has lifted the quarantine order on nurse Kaci Hickox, saying that she “currently does not show symptoms of Ebola and is therefore not infectious.”

The ruling conforms to the best available scientific evidence and CDC recommendations.  It also shows the importance of judicial review as a check on the exercise of emergency powers. Hearkening back to the many school exclusion cases during the HIV epidemic, I hope it will help reassure a public confused by the gap between what CDC and other experts say is necessary and what some political leaders are doing.  The best way for government to keep our trust in this outbreak is to offer accurate information — and then behave accordingly.

Research Round-Up: New Publications from the PHLR SciVal Experts Community

In honor of last week’s National Public Health Week, we have a lot of fresh, new PHLR. The latest crop of papers from public health law researchers touch on a number of important points and issues including transportation safety, implementation, tobacco control, and media presentation of public health law. Check out Scott Burris’s brief summaries after the jump!

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Evidence in Policy Innovation

In the last few decades, there has been a broad effort to strengthen the use of evidence-based law as a tool for the promotion of population health. There are two major fronts in the campaign, each essential, and both largely successful, though much work also remains. One aims to increase the quantity and quality of empirical research on the health effects of existing policy choices. The other focuses on how best to get such knowledge into action in the form of policy and practice. In a new PHLR Theory Practice and Evidence paper, Evan Anderson and I draw attention to a third front: the formulation of new legal interventions. Though policy experimentation is inevitable, it has been the subject of relatively little systematic study. For proponents of evidence-based public health law, policy experimentation presents a paradox: if a legal intervention is truly innovative, there will not yet be direct evidence of its impact. Yet direct evidence from policy evaluations is never the only source of research knowledge relevant to a policy decision, even under conditions of novelty and uncertainty. And few interventions are truly new in a broad sense; in most instances, similarly designed laws have been deployed before, just not for the same specific purpose.

We use the case of youth sports concussion and Washington’s Lystedt Law as a case study of how even new legal strategies dealing with new problems can be built on evidence. We show  how evidence about the problem lawmakers are addressing, combined with widely-used analytic tools like the Haddon Matrix and an understanding of the generic mechanisms through which law influences behavior and outcomes, can bring existing research knowledge into the crafting of even very innovative legal interventions for newly perceived problems.  While we don’t expect the policy sausage factory to suddenly start looking like a research lab, there’s no question that legislators typically care about getting policy right and want evidence.  The point of our paper is to get the research world to think about ways we can help even when no one has yet studied the specific law at issue.

New PHLR (and George) Papers

Laura Brennan, Ross Brownson and Tracey Orleans have come out with an important paper reviewing the evidence on policy and environmental strategies for reducing childhood obesity. Twenty-four strategies and 2000 published and gray literature documents are covered.  This is a menu of more-or-less evidence backed ideas for intervention.

Sam Harper and colleagues come out with an interesting new argument for primary seat belt laws, based on a disparities analysis. Looking through the lens of education level, they  (well, we, since I am one of the authors) find that, while primary enforcement has a powerful affect at every educational level, the impact is greater on people with less education.  Thus, existing SES differentials in seat belt use could be reduced if all states (finally) went to primary enforcement.

Even kids like paternalism?  Well, that may not be the best interpretation of this next study. Williams and McCartt surveyed New Jersey teenagers about three GDL requirements that are unique to that state: minimum licensing age of 17; application of full GDL rules to beginners younger than 21; and requiring license status decals on vehicle plates of GDL drivers.  84% liked licensing at 17, and 77% approved applying Gthe rules even to older novices.  The decal policy was approved by only 23% — but a PHLR study showed it works, so I say get used to it.

Two new tobacco law studies round out the week’s harvest.  Heikki et al. map the diffusion of health warning regulations since 1966, showing a big impact of the FCTC. Finally, in a paper that may start some arguments, Kevin Callison and Robert Kaestner report that adult smokers may not be as responsive to cigarette taxes as many believe.  They suggest it will take increases on the order of 100% to get a further 5% reduction in smoking rates.  Well, I’m okay with that.

Over on the George side of things, Peter Jacobson and Wendy Parmet have posted a thoughtful response to Larry Gostin’s Bloomberg commentary in the Hastings Center Report.  They are helping us move away from a habitual application of the paternalism critique and reminding us that public health can play in the democracy sandbox pretty well.

Down with Antipaternalism!

As the holidays approach, I have a chance to catch up on reading.  The Sept-Oct issue of the Hastings Center Report had a paper by Larry Gostin on Michael Bloomberg’s health policy career in New York, and I have seen some of a series of responses by other scholars that will appear in due course. With his usual facility, Gostin recounts the story of Bloomberg’s health department and its innovations in policy – it’s a great piece for a health law class.  The piece is also typical Gostin in its framing of the issue of paternalism as a key driver of opposition to many of Bloomberg’s initiatives.  And if it is typical Gostin, it is really representative of our field, since Gostin has both drawn on and helped reinforce a widely held belief that the politics of public health are strongly driven by a tension between individual liberty (inscribed legally in civil rights and culturally in individualism and antipaternalism) and public health.

In this framework, paternalism is a premise, not a hypothesis. Gostin writes, “The societal discomfort with Bloomberg’s agenda is grounded, at its core, in distrust of government influence on how autonomous adults conduct their lives.” He describes how health policy-makers are driven to rely on the harm principle to justify policies by “American antipathy toward paternalism.”  Yet, and this is also typical of the discourse in our field, he also follows the Sunstein-Thaler line that ultimately denies the empirical assumptions upon which anti-paternalist claims depend: “The public health approach rejects the idea that there is such a thing as unfettered free will, recognizing instead that the built environment, social networks, marketing, and a range of situational cues drive complex behaviors.”

Public health law has been stuck here for a while, accepting that public health policy has and always will be subject to the arbitrary dominion of a mass delusion of autonomy.  I think this log-jam is starting to break – and that proponents of effective health laws should be doing all they can to properly discredit and abandon this old trope.  A few signs:

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New Data on Drug Overdose Law

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By Scott Burris

Working with Corey Davis of the Network for Public Health Law, PHLR has completed and posted updated longitudinal datasets of state laws authorizing naloxone distribution and creating “Good Samaritan” immunity for callers reporting a drug overdose to 911. Take a look at www.lawatlas.org.

On the theory that an image beats a few hundred words, here’s a report on the state of the law:

George at APHA IV: Happy George

By Scott Burris

This is the last in a series summarizing a panel from the George collaborative of law professors at last week’s APHA meeting. My talk had a smiley icon for a title and a rant for a structure. I wanted to engage the audience with two very general ideas:  that public health legal interventions are popular, and that we are both factually and strategically wrong to buy into the framing of public health law controversies as turning on principled questions of paternalism or tensions between individual rights and collective welfare.

The first is a point I have made in past posts of one kind or another, and that Evan Anderson and I elaborate in our article just published in the Annual Review of Law and Social Science.  In that article, we point to the fact that Rs and Ds have been happily passing laws that regulate our behaviors, our environment and our machines for public health reasons for decades and show no signs of slowing down. In the talk, I also reference the Morain and Mello Health Affairs piece on pro-public-health public opinion. At PHLR, we are working on another aspect of all this, the fact that a lot of the controversy and complaint about “intrusive” measures often dies down once the new behavior is adopted.  We don’t have a paper on this yet, but just ask yourself who misses smoke-filled rooms, transfats, cars without airbags…   And of course, as Mayor Bloomberg makes his exit as the symbol of the local nanny state, it’s worth recalling his poor paterniated charges re-elected him twice.

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George at APHA III

By Scott Burris

One of the themes of what we might call Georgian Legal Scholarship has been the neglect of public health as a core object of government. This is a theme Wendy Parmet set out at length in Populations, Public Health and the Law, and that Renee Landers took up at APHA.

Landers’ timely example was the ACA and its individual mandate, which has been characterized in litigation as a mandate to purchase an “unwanted” product in violation of individual liberty, exceeding Congress’s power under the Commerce Clause, not a valid exercise of Congress’s Taxing Power, and an intrusion on the prerogatives of the States.  The Chief Justice’s opinion in the Supreme Court’s decision in NFIB v. Sebelius, upholding the individual mandate, but declaring the structure of the Medicaid expansion a violation of the Tenth Amendment, provides her many examples of the focus on these legal abstractions. She also points to language from the joint dissent that indicates the same limited perspective.   Absent from the opinions was acknowledgment of the significant public health problems—human suffering—that the ACA was designed to address.  As she sees it, a focus on abstractions over lived experience has resulted in millions of intended beneficiaries of the ACA being left out of the Medicaid expansion because 26 states have taken advantage of the ability to opt out of the Medicaid expansion.

Landers argued that this was not a problem confined to the ACA case. Courts have reasoned in similar ways in recent public health preemption, First Amendment and abortion cases, showing a disregard for real human situations or scientific and economic evidence.   To her, these recent examples echo the approach of the courts in the early part of the twentieth century when the Lochner case defined judicial review of economic and public health regulation, as Wendy Parmet has discussed in Populations, Public Health, and the Law.  Public health lawyers and scholars, she concluded, must work to demonstrate for courts that role of economic regulation in promoting the public health, elevate the concerns of real people above legal abstractions, and lift the mask on punitive measures masquerading as public health laws.

Tomorrow: Happy George

George at APHA II

By Scott Burris

(Second in a series of posts on the George Project session at APHA last week.)

Lindsay Wiley, who has been writing some interesting stuff lately about the democratic foundations of public health, used her talk to discuss Building and Honoring Coalitions in Controversial Times. Part of the George discussion has been directed to changing the public health law conversation from a set of complaints about setbacks to an exploration of new possibilities.  In thinking about the pivot from challenges to opportunities, Wiley has been focusing on opportunities to protect and strengthen coalitions across progressive advocacy communities and with other potential allies.

This issue arises in a range of contexts: from health and environmental issues surrounding food production, marketing, and labeling to employers’ and private health plans’ efforts to cut costs by providing incentives for healthy behavior. Wiley’s presentation focused on recent tensions between public health advocates and civil rights, anti-poverty, and anti-hunger groups. Within the public health community, she argued, we in public health law tend to automatically see public health goals as compatible with broader social justice goals. We claim social justice as the moral foundation of public health practice and advocacy.  But over the last few years – intensifying in the last several months – that synergy has been threatened.

Wiley discussed three recent controversies: the soda industry’s framing of the legal challenge to the NYC soda portion rule as a civil rights issue; anti-hunger and anti-poverty groups’ vehement opposition to proposed restrictions on the use of SNAP benefits to purchase unhealthy foods and beverages; and opposition to primary enforcement seatbelt laws based on concerns about racial profiling. Wiley’s examination of these events suggests that in some instances, the public health community needs to work more closely with civil rights and anti-poverty groups to promote a more progressive, ecological approach to public health issues and to make the case for health disparities as a civil rights and anti-poverty issue (rather than simply claiming civil rights or anti-poverty as public health issues). In other instances, public health advocates may be picking the wrong battles altogether, siding with groups who want to penalize socially and economically disadvantaged communities without working to facilitate healthier options in those communities. But in some instances, public health advocates have been able to forge compromises that result in a true win-win: promoting public health goals while also achieving reforms in other areas.

Like Wendy Parmet’s talk, described yesterday, Lindsay Wiley’s challenges the comfortable notion that public health is automatically given credit for its high moral standards and good social intentions. She doesn’t say we can’t occupy the moral high ground, but we may have to work harder to get there, and she has some practical ideas about how to do it.

Tomorrow: Renee Landers’s talk.

George at APHA I

By Scott Burris

The “George Project” is a loose collaborative of law professors working to promote the fair and effective use of law for public health. It has been described here. Last week, four George participants formed a panel to report on their intellectual adventures in the sometimes dicey world of public health law.  This week, I will report on their comments in a series of posts.

Wendy Parmet’s presentation, Beyond Paternalism: Public Health as Preemption, began by noting the agreement among George collaborators on the need to respond to the normative attacks being waged against public health laws. At the moment, the most salient of these is the “nanny-state critique,” which condemns public health law as inappropriately paternalistic. After reviewing some of the responses that scholars have offered to that charge, Parmet focused on the one recently proposed by fellow Georgians Lindsay Wiley and Micah Berman (and Doug Blanke) — namely that we need to frame public health as a manifestation of the democratic process. Parmet developed that theme by arguing that public health law is not simply a restriction of liberty, as the nanny-state critique presumes; it is also a manifestation of citizens’ positive liberty to self-govern. Or, to put it another way, public health law is the product of citizens exercising their rights to self-governance to provide the conditions by which they can be healthy.

After suggesting that public health can be viewed as an exercise of self-governance, Parmet looked briefly at two recent public health law cases. New York Statewide Coalition of Hispanic Chambers of Commerce v. N.Y.C. Department of Health, 110 A.D. 3d 1 (N.Y. App. Div. 2013), struck down New York City’s ban on large sugary sodas. Cleveland v. Ohio, 989 N.E.2d 1072 (Ohio. App. 2013), struck down an Ohio state law designed to preempt a Cleveland ordinance banning trans fats. In comparing the two cases, Parmet focused on the fact that the court in the New York case emphasized what it saw as the overreaching of a public health agency; in the Ohio case, the court noted that the state was improperly undermining the power of the city council to protect the health of Cleveland’s citizens. Although these are only two state law cases that depend on the particularities of state law, Parmet asked whether the fact that the New York City regulation emerged from an administrative agency without legislative support while the Cleveland ordinance was enacted by the city’s council was significant? Could it be that laws that emerge from a democratic process are more secure than equally paternalistic administrative regulations? More broadly, might the paternalism critique be masking a discomfort with the bureaucracy, expertise, and the administrative state?

Parmet concluded by arguing the public health needs to look in the mirror. Have we in public health undermined our own cause by treating public health law as a technical tool that experts can apply to achieve scientifically-validated outcomes? In so doing, have we lost sight of the fact that public health law is or should be a tool that citizens can use to improve the health of their own communities?

My own talk, which I will describe in a later post, was also about how public health is popular, but in the less profound sense of that word.  What I really liked about this panel, and Wendy Parmet’s talk exemplified this, was the willingness not only to point out how courts and commentators are neglecting the democratic roots of public health, but also how we in public health may be settling for overly simplified (and empirically false) explanations for our legal and political setbacks.

Tomorrow: Lindsey Wiley’s talk.

Another Legislative Win for Opioid Death Prevention

By Scott Burris

The rising public and legislative awareness of opioid overdose has been a case study in the twists and turns of culture, risk perception and the role of evidence in policy making. An interesting case study, which does not mean I understand what happened or why.

I first got involved in overdose through Dan Abrahamson, the Legal Director at the Drug Policy Alliance. This was back in 1999 or 2000, and a group of drug researchers and drug policy people convened a meeting in Seattle to discuss the chronic, neglected problem of overdose among heroin users.  There were a few health people who were highly aware of the human and economic costs, and the scale of the problem. Karl Sporer, a San Francisco ER doc, was one of the few publishing on the problem. One of the interesting ideas discussed at the meeting was distributing naloxone, the standard antidote for opioid overdose, directly to heroin users. New Mexico, which had the nation’s highest OD death rates, was trying it as a way to deal with the great distances that divided rural heroin users from EMS assistance. With Joanna Norland and Brian Edlin, I ended up writing an analysis of the legality of distributing this prescription drug to drug users.

In the next few years, led by people like Dan Bigg of the Chicago Recovery Alliance, needle exchange programs in urban areas began naloxone programs. They were spurred in 2006 when several US cities experienced an epidemic of overdose tied to the adulteration of the heroin supply with a synthetic opioid, fentanyl. By May, 2009, 57 naloxone programs were operating in 17 U.S. states.  That year, DPA funded a group of scientists and practitioners to brainstorm on how to increase drug users’ access to this life-saving intervention.  Continue reading

Bargaining Chips

By Scott Burris

Christopher Robertson recently posted here a semi-facetious suggestion of things that Democrats could ask for once the shut-down and the debt-ceiling dance turns into real bargaining. (How sad that this has to be seen as an optimistic statement.)  That’s a good idea. I think we should all join in populating the health policy wishlist.  Here’s one no-brainer.

Government is being starved, and taxes are going to have to go up somewhere.  There is no kind of tax that is not being hated on by somebody, and so no easy places to go, but there is such a strong case for raising alcohol taxes.  Alex Wagenaar, one of the greatest alcohol policy researchers we’ve produced in this country, makes a fantastic pitch for substantial increases in this short video, which is great for advocacy or teaching use.  In real terms, alcohol prices have not been lower for decades, while each drink comes with a subsidy of nearly $2 in health and health care costs we tax-payers end up paying.

So, Mr. President, how about a federal tax of $1.90 per drink, indexed to inflation.  And if there’s opposition, threaten to leave the government open!

To Our Friends and Colleagues in the Federal Service

By Scott Burris

Take-no-prisoners politics has been succeeded by hostage-taking politics. The metaphor could go a few ways, but in the most concrete sense the hostages are you, our friends and colleagues who work for the public’s health as federal civil servants.  You, who often accept smaller salaries and more spartan working conditions than you could enjoy in the private sector or academia; you, who devote your passions and considerable abilities to the cause of public good; you, who have already had to endure arbitrary furloughs and budget cuts that make it harder for you to do your jobs — you are the ones who are now being left on your own with the injury of no paycheck and the  insult of a lot of politicians and pundits saying that you aren’t really needed anyway.

I won’t apologize, because this is not the work, or the desire, of the citizenry. This is the work of a small faction of the far political right. I will say how sorry I am, how ashamed I am as the citizen of a once-serious country, that you are being treated this way, and how much I appreciate the dedication that is keeping you in your vital work.

P.S. As to the people who have taken us past the brink, the best I have to offer is a little political economy from our classic public health law case, Jacobson v. Mass.  You have every right to oppose the Affordable Care Act, and to use all democratic means to roll it back,

But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.  

“Mountain Dew Mouth:” A Critical Opportunity for Public Health Law

By Scott Burris

Last week, the American Journal of Public Health published a PHLR paper by Michelle Mello and colleagues calling for our field to identfy “critical opportunities” for public health law. Critical Opportunities are legal interventions that target important public health problems.  They may have a strong evidence base but be underutilized (like alcohol taxes that keep up with inflation). They may be ideas that appear to be working in practice, and have a plausible mechanism of effect, even if our evidence base still consists of early studies or reports from practice (like distributing naloxone to opioid users and their friends to reduce overdose death). And they may be innovations that are plausible because of how they appear to relate to the problem or because they are similar in mechanism to other legal interventions that have been proven to work (like restricting sales of single cigars).  The bottom line is that we can do a better job spreading the word about legal interventions that work and that policy makers and the public can get behind in states and localities around the country.

The Robert Wood Johnson Foundation has helped get the idea moving by supporting a series of videos in which public health lawyers, practitioners and researchers pitch their ideas for critical opportunities.  These are often done, like a Ted Talk, at meetings, and one of the audience favorites is Dana Singer’s pitch for action to deal with “Mountain Dew Mouth,” a term gaining in traction to name the devastating consequences of heavy consumption of sugary beverages, especially those with critic acid.  The issue is on the federal agenda as part of the debate about food stamps.  It’s a hard one: public health people see the terrible consequences of these products and think that ending the federal “subsidy” for them might reduce harm; SNAP advocates don’t like the idea of anyone telling poor people what to eat and drink; industry, well, you can guess. State and local beverage taxes are another option, and we know that taxes can reduce consumption of even addictive products.

NPR has a story on the problem and some of the solutions this week.  I’m glad to see more attention to this problem, because poor dental health can send anyone’s life on a harder course, and is a very big problem in Appalachia. If you don’t believe me, or even NPR, read Priscilla Harris’s paper and watch Dana’s critical ops video.

A New Film on HIV Criminalization

By Scott Burris

A new documentary from the HIV Justice Network gets the views of researchers on the impact of HIV criminalization.  Call it Evidencer-Based film-making.  It premiered last night at the US Conference on HIV and can be seen here. made by Edwin Bernard and Nick Feustel, it captures the issues and what we know in 30 minutes of interviews with some excellent researchers.

On a personal note: sometimes, you know, people who are, you know, being filmed at, you know, the end of the day are, you know, not always as eloquent as, you know, they would like.

When Prescribing Gets in the Way

By Scott Burris

I am not disputing the value of properly trained health professionals acting as gate-keepers to potentially dangerous drugs. And I am not taking on here the question of which health care professionals should be allowed to prescribe which drugs, though that is an important question on which the states vary quite a bit. Right now, though, there are at least three examples of important, even life-saving medicine that is being kept from people who need it because of rigid (or rigid interpretations of) state prescribing law, and the inability of the FDA to move quickly when its labeling no longer seems to meet the public interest:

1)      Epinephrine (in epi-pens) to treat severe allergic reactions.  Here’s a good story about that, highlighting a tragic case in which a child died because a school nurse would not or could not use epinephrine that had been prescribed for a different child. The story reports that 30 states now allow “undesignated” epinephrine to be used in these cases, but only four require it – and 20 still prohibit it.

2)      Naloxone to prevent death from drug overdose.  Naloxone is the standard treatment to reverse opioid overdose.  People usually suffer OD far away from a doctor, but often in the presence of someone who could administer naloxone by simple intramuscular injection or intranasal spray.  This year there has been quite a bit of legislative activity to break down this barrier to life-saving treatment, including a new bill passing both houses in California this week.  But only 16 states and the District of Columbia have acted so far.

3)      Expedited partner therapy for treatment of STDs.  It takes at least two people to get an STD, or prevent one, but often only one partner is seeing the doctor.  EPT gives the patient an extra prescription or dose for the partner.  According to the CDC, this is still illegal in six states and not clearly legal in 9, the District of Columbia and Puerto Rico.

There is evidence for the safety and effectiveness of all these practices, and has been for years. Why does it have to take so long for state prescribing rules, or FDA labels, to change?  We need a faster mechanism for keeing prescribing rules consistent with current practice and evidence. This is, after all, a matter of everyday life and death.

Police and Public Health in Partnership

The Global Commission on HIV and the Law recently conducted a web discussion of steps to implement the Commission’s recommendations for better harmonizing law and HIV control.  One of the questions for discussion was:

What are examples of innovative or non-traditional partnerships that can be used to strategically advance human-rights based responses to HIV … ?

 

Nick Crofts posted an interesting essay elaborating on “three falacies”:

  • that police are merely passive implementers of the law; so that if the law is reformed, police attitudes and behaviours towards MARP communities will automatically fall in line;
  • that police are the enemy, and that their behaviours are not amenable to change without confrontation; and/or
  • that training and sensitization of police is adequate to change behaviours of police towards MARP communities.

I agree with him, and have seen these beliefs hinder action for a long time. Nick has some interesting thoughts about ways to move forward. He also talked about the work of The Law Enforcement and HIV Network (LEAHN) , which is working to bride the gap between police and public health agencies. It’s worth a few minutes to read it.

LEAHN is sponsoring its second global conference next Spring in Amsterdam.

Good News for HIV Prevention Policy: Syringe Access Update

By Scott Burris

In documenting how often public health law research does influence legislation, I’ve used syringe exchange programs as an example of evidence NOT guiding policy.  Despite the consensus in health research that increasing access to sterile syringes has helped reduce HIV, state drug paraphernalia laws, and pharmacy regulations remain a barrier, as does the lack of strong and stable funding for the programs that are working.  The case was just made again in an article in the Annals of Health Law. Rachel Hulkower and Leslie Wolf retell the story of the federal funding ban, going over the evidence yet again, and argue that state inaction would best be overcome with money: replacing the federal ban with a positive endorsement and real funding.  (As long as we are in an optimistic mood, I would add strings – no HIV funding for states that don’t remove legal barriers to syringe access.  This would balance the scales a bit for Congress’ past sin in requiring state recipients of HIV funds to provide for criminalization of exposure and transmission.)

But today I type to tell a happier story. This summer, the state of Nevada passed a statute authorizing syringe exchange and pharmacy sales.  There are now 16 jurisdictions whose laws explicitly authorize syringe exchange programs (CA, CO, CT, DC, DE, HI, MA, MD, ME, NJ, NM, NV, NY, RI, VT, WA) and the number of states that require a prescription for retail purchase without exception has dwindled to ONE (Chris Christie’s New Jersey – Delaware, the other hold out, changed its law this year.)  But the important thing is not the next halting steps in this slow trend, but the quality of Nevada’s legal contribution.  This is going to get a little bit wonky in parts, but let me just take you on a quick tour of this marvelous statute, which drew from a model created several years ago by the Canadian HIV/AIDS Legal Network.

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Whole Lot o’ Shakin’ Goin’ On

By Scott Burris

Over the weekend, my social science friends were all emailing about Nicholas Christakis’ op ed about how we should “shake up the social sciences.”  On one level, the piece is easy to mock. Christakis makes a big deal out of the contrast between the academic organization of the natural and social sciences: the former have hybridized: “Departments of anatomy, histology, biochemistry and physiology have disappeared, replaced by innovative departments of stem-cell biology, systems biology, neurobiology and molecular biophysics.” In contrast, sociology is still sociology, economics is still economics, etc.  So? As one friend notes, Chistakis’ own Yale Sociology Department sure seems to be keeping up with the interdisciplinary times:

Well, so, the sociology department in which Christakis now sits describes its scholarly endeavor as follows:  “Comparative and Historical Sociology; Culture/Knowledge; Economic Sociology and Organizations; Family/Gender/Sexuality; Global, Regional and Transnational Sociology; Health, Medicine, and Biosocial Interactions; Law and Criminology; Methods; Political Sociology and Social Movements; Race and Ethnicity; Religion; Social Networks; Social Stratification; Theory.”

Whatever that all amounts to, I think it’s slightly disingenuous to suggest that this enterprise is somehow fettered and hampered by calling it “sociology”, or by the fact that its practitioners (including Christakis) call themselves “sociologists,” or by having an academic department that’s indulgent and elastic enough to claim all these people and pay them for teaching and being public intellectuals that write op-eds in the New York Times.

Even more grin-worthy is his claim that we should declare knowledge victory and move on to new topics: “everyone knows that monopoly power is bad for markets, that people are racially biased and that illness is unequally distributed by social class.” Another friend sends that up like this:

This is wonderful news.  Somehow I missed it in all the papers, but it appears that we’ve agreed on the basic mechanics of macroeconomics and understand exactly how much government spending is needed to keep an economy out of recession.  Thank goodness that subject is ‘settled’.  Time to move on.   Next, we can put the basic economics of healthcare to rest.  For that to happen all we have to do is not change how we pay for healthcare, not give patients new rights, not allow any new diseases, and — most importantly — not develop new cures for existing diseases.

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Legal Scales: An Empirical Methods Question

By Scott Burris

The most important topic we did NOT address in our PHLR methods book was valid methods for rating laws for characteristics like “stringency.”  I am not aware of any general work on this.  Nonetheless, it is not uncommon for researchers to create scales purporting to measure the distribution of some characteristic(s) over a group of laws. It seems often to be done by some facially plausible means (e.g., penalties) or through a Delphi or similar expert process.  For example, Woodruff and colleagues1 developed a stringency scale for tanning laws that distributes characteristics of laws (age covered, standards for eye protection) on 2-5 point scales based on a priori judgments.  Chriqui and colleagues used an expert advisory committee to rate the strength of clean indoor air laws.2 For alcohol control policies, Nelson et al used a Delphi method.3  As a field, however, I can’t see that we have much consensus on how to create and validate such scales. So to start a discussion, some thoughts on a basic typology of scales, with some possible measures and examples off the top of my head:

 

Approach Possible Measures Examples
Assessment based on apparent features of the legal text Magnitude of penalty Fine; imprisonment
Comprehensiveness of coverage of categories of actors engaged in the regulated activity Distracted driving: all drivers, novice drivers, bus drivers
Comprehensiveness of coverage of specific behaviors constituting or relating to the regulated activity Distracted driving: all device use; manual use; texting
Procedural efficiency Number of distinct steps required to enforce or comply with law
Legal assessments Consistency with other requirements (constitutionality or preemption, for example)
Qualitative assessments “Clarity” or “specificity” of rule
Assessment based on evidence, expert knowledge or prediction of the implementation of the law by legal agents Incentives for enforcement Resources, required reporting of enforcement actions/outcomes
Social marketing investment MADD social marketing against drunk driving
“Technical” feasibility of enforcement Consistency with mechanisms/methods already in use, cost, procedural complexity
“Social” feasibility of enforcement Normative consistency with current practices or values,* political constraints
“Legal” feasibility of enforcement Probability of legal challenge, procedural complexity
Qualitative assessments “Clarity” or “specificity” of rule as perceived by enforcers
Assessment based on evidence, expert knowledge or prediction of the reaction to the law of regulated parties Likelihood that regulated parties will learn of the law Social marketing, publicity, high enforcement levels
Consistency with general theories of compliance Deterrence, legitimacy, procedural fairness, expected utility of compliance
Social support for compliance Consistency of required behavior with current norms*
Feasibility of compliance Availability of technology,
Qualitative assessments “Clarity” or “specificity” of rule as perceived by regulated parties
Hybrid methods

* The normativity of the required behavior or enforcement mechanism would not be a stable measure, since we would expect passage and enforcement of the law to change norms over time (e.g., drunk driving)

 

Has my admittedly quick search for methods guidance on this missed some good sources? How does this rough typology and examples strike you?  I’d be very happy to get some comments and suggestions.

 

1.            Woodruff SI, Pichon LC, Hoerster KD, Forster JL, Gilmer T, Mayer JA. Measuring the stringency of states’ indoor tanning regulations: Instrument development and outcomes. Journal of the American Academy of Dermatology. 2007;56(5):774-780.

2.            Chriqui JF, Frosh M, Brownson RC, et al. Application of a rating system to state clean indoor air laws (USA). Tob Control. Mar 2002;11(1):26-34.

3.            Nelson TF, Xuan Z, Babor TF, et al. Efficacy and the Strength of Evidence of U.S. Alcohol Control Policies. American Journal of Preventive Medicine. 2013;45(1):19-28.