Sentinel Policy Surveillance: A New Front in Legal Epidemiology?

Paul Erwin, Associate Editor of the American Journal of Public Health, recently wrote about the establishment of a  Sentinel Practitioner Surveillance System for Policy Change Impact,  or what might be called “sentinel policy surveillance.” The network of twelve diverse health officers will be trying to identify and share instances of harmful impact from Trump administration policies.

Erwin is suitably circumspect about what such a network can do. It is, he writes, no replacement of research, and, indeed, may be reporting perceived or feared effects as often as real ones.  I found the idea intriguing to ruminate on, though.  What follows are some scattered thoughts about the concept. I hope readers will add theirs.  Mostly I am interested in how the practice fits with general policy surveillance and public health law researchContinue reading

Health Law Rankings — Another Perspective

Glenn and Mark recently published a list of most-cited health law scholars, using the methods generally used for these studies in legal academia.  Like any academic who steadfastly denigrates the importance of lists, I naturally checked right away to see where I ranked, which was somewhere so far down the list that only an outbeak of smallpox at the AALS meeting could ever get me into the top twenty.  Since I was still completely uninterested in this whole ranking issue, my next move was to look at the methods.  And this is where I did have a thought worth sharing.

The source of the data is the JRL library on Westlaw, which I believe primarily covers law reviews and other legal publications.   How often one is cited in law reviews is certainly a good measure of impact within legal scholarsip, but it does not capture (or support) health law as an interdisciplinary field.  Indeed, I think it is arguable that for many of us, our most important impact will be on research and scholarship in other fields.  Does our top-twenty list look different if we draw on a broader database of citations?

I can’t tell you.  That would be a lot of work.  But there is a way to do it “collectively.”  Google tracks citations that appear anywhere in the googleverse and reports them in Google Scholar — if you create a profile. Most of the people in the top 20 in the Hall-Cohen top 20 do not have Google Scholar Profiles, but a few do and the results suggest we might see some differences in impact ranking if we went beyond law reviews:

Name Hall/Cohen cites (rank) Google cites (rank) since 2012
Larry Gostin 510 (1) 7150 (1)
I. Glenn Cohen 320 (4) 1143 (3)
Frank Paquale 300 (6) 1081 (4)
Lars Noah 280 (9) 586 (5)
David Studdert 190 (19) 7129 (2)

Everyone gets many more cites from Google than Westlaw, which reflects some methodological differences but also shows a lot of extra-legal impact.  Larry Gostin is still on top, by quite a distance, but David Studdert — at the bottom of the law review top 20 — comes near to catching him.  (I may as well admit that the Google ranking puts yours truly well above Cohen but nowhere near Studdent and Gostin.)

Why does this matter?  The obvious point is the one I have already made: health law scholars should be aiming to make a difference in health policy, and that is not measured by law review citations alone. For us to thrive as a field, we need more than ever to be engaged with non-lawyers, as my colleagues and I argue for public health law here. Recognizing non-legal citations is also, in my experience, extremely important for supporting young scholars.  If all we recognize and seem to value are law review citations, then junior scholars will only write law review articles. That is not how we build a field of engaged, cross-disciplinary scholars and researchers.  I encourage junior scholars to create Google Scholar profiles and I use them when I am doing promotion and tenure reviews in this list-mad age.

One last point: Google Scholar profiles take about two minutes to create and a very minimal effort to curate (if you care to, you need to eliminate some dupes and misatributions).  Whether you like rankings or transdisciplinary impact, you can help the field at minimal cost by signing up.

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Making a Moral Case for Regulation

Valerie Braithwaite’s chapter in the ANU’s Press’s new Regulatory Theory: Foundations and Applications provides a general introduction to looking at regulation through a social lens.  If regulation is so great, she asks, why do so many people approach it with fear and loathing?

I won’t rehearse her argument here, but instead skip to some key points about how we who appreciate the social good provided by regulation can best make that case. One of ten suggestions she concludes with was particularly resonant to me: “Engage with dissent on moral grounds. Is it right morally to steer the flow of events in the way proposed?”

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Fantastic New Resource on Regulation

Peter Drahos and a roster of the minds that have made RegNet at the Australian National University the hub of regulatory research and theory have put (it seems) all they know into a new, FREE ebook, Regulatory Theory: Foundations and Applications.  It is a comprehensive account of the field, written to serve both as a reference for the essentials and a text book for classes in regulation and governance.  It even has a chapter on regulatory research methods in public health by this correspondent.

I am hoping to conduct a serial book review over the next couple of weeks. Here goes:

The first chapter is an introduction to the field by Drahos and Martin Krygier. It usefully orients the reader to the breadth of the field, a breadth that reflects the spread of regulatory activity beyond the state and across networks. Attention to those two phenomena, indeed, is properly presented as the foundation of the field.  There is a bit of intellectual history, highlighting the sigificance of Ayres and Braithwaite’s Responsive Regulation, and the emergence of RegNet as an intellectual gathering place. (I saw that first hand, and had a little experience of RegNet collegiality, when I spent a semester there and ended up writing an article on Nodal Governance with Drahos and Clifford Shearing — still my most downloaded paper.) Continue reading

Human Rights Advocacy under Attack

One of the world’s most important human rights law firms is now under attack from a government whose leader has, to put it mildly, a mixed record on human rights.  The firm is the Lawyer’s Collective, which has done some of the most important work within India on HIV, LGBT and gender issues.  The firm’s lawyers have also made great contributions internationally. Indira Jaising has served as a member of the UN Committee on the Elimination of Discrimination Against Women. Anand Grover was the UN Special Rapporteur on Right to Health from 2008 to 2014, during which service he issues several fearless reports that helped move the world forward towards an enabling environment for HIV among the most legally marginalized people.

On June 1, the Indian Union Ministry for Home Affairs suspended the firm’s license to receive foreign funding, contending that the Lawyer’s Collective had violated the Foreign Contribution Regulation Act. The Lawyer’s Collective faces the prospect of having their license cancelled permanently, which would seriously impact their work. Both the suspension order and the Lawyer’s Collective’s response have been widely reported in the Indian media. Continue reading

Why Do Refugees Risk the Deadly Boat Crossing to Europe? It’s the Law

By Scott Burris

This morning I heard an NPR story that began, “Why do so many refugees from the Middle East risk the dangerous Mediterranean crossing in rickety boats?”  The answer, in the story, was an account of the miseries of a family stranded in Aleppo.  Why do people risk so much to flee? Because life is so bad where they are.

There is plenty of misery in the war-torn Middle East, but if the question is “why do people flee in dangerous boats run by ruthless smugglers,” NPR did not have the right answer.  Hans Rosling, the Swedish epidemiologist and humanitarian, has offered a better one: the EU regulation that requires airlines that fly in asylum seekers who do not qualify to fly them out again at the airline’s expense. (Watch his video here.) Airlines just won’t allow people without the proper visas to board, even if the law would. Yes, it’s the law that puts people on boats.  Flights from the region’s airports to Europe are cheaper than the deadly boats.  As we are seeing now, many if not most of these refugees qualify for asylum.  EU law does not require asylum seekers to have visas or be granted asylum before they board the plane.  But by placing the economic risk on the airlines, the EU essentially delegates the asylum decision to the most risk averse and least responsible player in the process.

Here’s the math.  The Abdullah Kurdi family of four, whose two children drowned, reportedly paid €2,000 each for the trip, well over $8,000, to get from Turkey to Greece.  On Travelocity today, German Wings had a flight from Istanbul to Berlin with seats at $84.

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.

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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