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Professor Vernellia Randall
The University of Dayton School of Law
This course was offered once in approximately 2002 - 2003. It was the first law school course in the Nation.
I will be posting the readings for this course after March 28, 2020
Bioterrorism was not a great societal concern for the U.S. before the Gulf War and through 1995. We were aware of the threat, but nothing had occurred to make us take special precautionary actions. Three events triggered the change in our countrys outlook toward bioterrorism: Aum Shinrikyo. Sarin gas kills 12, injures 5500. An apocalyptic cult tried to aerosolize anthrax throughout Tokyo, but they used an inappropriate strain. This cult is still in existence today, with a lot of money and an interest in killing a lot of people. Soviet Union. Defector Ken Alibek details the elaborate research on biological toxins that had begun during the Cold War era. Over 50,000 people were employed in over 50 labs, working to weaponize and develop antibiotic-resistant plague or strains of anthrax. We have no access to what is going on in such research on the military side, but civilian labs are still active today. Libya, Iran and Iraq are recruiting many of these scientists. Iraq. In 1995 Husseins son-in-law defected and surprised us with more biological weapons information about Iraq than we had expected. A huge amount of anthrax had been weaponized and placed in planes. Rolf Ekeus in 1996 claimed that the world was facing a catastrophic situation that was "unique in the history of mankind."
All of this knowledge led President Clinton to sign a decision directive in 1995, marking the official beginning of our countrys effort to develop plans for a response to biological terrorism.
We will explore public health law by examining an issue of overwhelming interest since Sept. 11, 2001: Bioterrorism.
excerpted from: Richard A. Goodman, Zita Lazzarini, Anthony D. Moulton, Scott Burris, Nanette R. Elster, Paul A. Locke, Lawrence O. Gostin , Other Branches of Science Are Necessary to Form a Lawyer: Teaching Public Health Law in Law School, 30 Journal of Law, Medicine and Ethics 298 (Summer, 2002)
Other branches of science, and especially history, are necessary to form a lawyer.
Over two hundred years ago, Thomas Jefferson suggested the need for a broader legal curriculum. As the twenty-first century begins, the practice of law will increasingly demand interdisciplinary knowledge and collaboration -- between those trained in law and a broad range of scientific and technical fields, including engineering, biology, genetics, ethics, and the social sciences. The practice of public health law provides a model for both the substantive integration of law with science, and for the way its practitioners work. In addition, public health law also provides a model for interdisciplinary and integrative teaching.
This commentary provides a rationale for a policy that every U.S. law school offer course options on law and public health. Adherents to this position might even view public health law as so fundamental a subject that it be considered a "foundational" body, akin to, for example, tort, contract, constitutional, and criminal law. The tight intertwining of public health issues with existing core courses surely suggests no less a role for public health law than as a unifying, syncretic theme for law school education. Indeed, the companion commentary by Parmet and Robbins in this same issue of the Journal of Law, Medicine & Ethics more fully argues that public health provides a set of skills and perspectives that should be introduced to all law students as they examine critical cases in core law school subjects.
The case for including courses on public health law in the law school curriculum has deep roots which derive from a combination of trends in legal education, public health and health-care practice, and federal, state, and local government law. Foremost, and also as noted by Parmet and Robbins, the law and several foundational subjects in legal education increasingly intersect with the domains of public health and health law. For example, tort law broadly encompasses the interests and issues of the public health field in injury control, including the categories of intentional and unintentional injuries. Similarly, criminal law, in part, overlaps with injury issues by addressing the punishment and deterrence of not only intentional injuries, but, increasingly, the challenge of personal behaviors representing other serious health risks. The law of contracts now embodies issues of public health program management in a managed care legal framework, while property law has become a medium through which public health law can be applied to assure healthy and safe communities by way of zoning, nuisance abatement, and environmental law, among other means. Administrative law, a required course in some law schools, often deals with regulatory questions directly concerned with the population's health.
In addition to the evolving relations between public health law and tort, criminal, and contract law, many of the most compelling questions in modern public health law and practice involve constitutional issues that define the scope of state and federal power to protect the public's health. Nearly 100 years ago, the U.S. Supreme Court, in Jacobson v. Massachusetts, broadly endorsed the state's police power to include most reasonable acts taken by the legislature to combat disease, including mandatory vaccination. Since then, through a number of key cases, the Court has periodically addressed the public health paradigm, seeking to balance the *299 state's interest in the common goodwith the rights and liberties of the individual. The Court's efforts have included development of the doctrines of substantive and procedural due process in the areas of mental health and public health and the articulation of an individual's right to refuse medical treatment in the context of modern medicine.
In recent years, the federal courts have used "states rights," the long dormant Tenth Amendment, and the takings doctrine to significantly circumscribe what federal public health officials can mandate. Events continuing to unfold since September 11 may further reshape the contours of this paradigm. The emergent threats of biological and chemical terrorism intersect with constitutional law and its fundamental concerns with due process and other safeguards against infringement of personal liberties.
Public health law can play a valuable integrative function across the foundational subjects in at least four other ways. First, the interests and goals of public health law mesh with the basic social/legal theory that one primary role of government is to assure the health of the community's citizens -- otherwise there can be no community.
Second, the laws of public health and community safety are more than simply the embodiment of a state's police power -- they also compose a common thread that connects local, state, and federal governments. One implication of this proposition is that course work in public health law is highly relevant for those students pursuing careers in both health policy and government because the issues of public health policy embody the interactions between local, state, and federal governments.
Third, public health law provides a unique opportunity for integrative teaching: Because public health is so intertwined with the police power and other fundamental legal principles, public health law can be used to teach the basic tenets of constitutional law -- especially procedural and substantive due process, and the tension between individual rights and social well-being.
Finally, the focus in public health law on the importance of the community's health and welfare, including that of marginalized populations, could provide an opportunity to expand the public service commitment and raise the social consciousness of law students and future lawyers. The education and training of medical students emphasize that they incur some debt to society in the process of learning their profession. Perhaps through examples of the role of law and lawyers in protecting both the health and rights of the population, law students could also be encouraged to include public service in their professional role.
Philosophy of Teaching
How one teaches is necessarily influenced by what one perceives as the goals of legal education. Certainly, the primary goal is to prepare you to be effective lawyers, judges, and policymakers. At a minimum, that includes helping you to develop the ability to: *think critically, precisely, and clearly;
*Express yourself succinctly;
*understand the expressions of others; particularly those who are different than yourself;
*understand human nature, particularly the motivations and needs of your clients, opponents, jurors, judges, etc.;
*use the techniques of the legal profession to represent a client in general matters, to recognize where you lack competence, and to comply with accepted ethical standards
While it is hardly arguable that preparing you to be an effective lawyer is an important goal, it is not the only one. Many of you will be lawmakers and policymakers, thus training you to understand the values implicit in the law is an important goal. Another important goal is to train you to address in a systematic manner your social responsibilities as an individual lawyer and your collective responsibilities as a member of the bar. This includes your responsibility to assist your community in maintaining an accessible, effective and socially responsible legal system.
Thus, my objective is to help you continue the process of meeting those goals. The primary focus of my teaching method is to provide you an educationally sound introduction to Bioterrorism and the Law. Furthermore, given the impact race and gender have on the law (and vice versa) my approach to teaching is to explicitly explore diversity issues as a component of all aspects of the course.
A. Teaching Objective #1: Educationally Sound Pedagogy
An educationally sound legal pedagogy is a philosophy of legal education which is grounded in known educational theory. To be so grounded, and educationally sound legal pedagogy: *trains you to solve legal problems by providing you with a working program for solving the problem;
*provides you with the opportunity to excel;
*provides you with criteria for excelling and specifically what progress you are making;
*provides you with the opportunity to practice each new skill throughout the learning process; and,
*provides you with adequate instruction on how to study for law school and this course.
Thus, it is my goal, through an educationally sound pedagogy, to provide you with an opportunity to learn and to excel.
B. Teaching Objective #2: Bioterrorism and the Law
Bioterrorism and the Law teaching objectives are those objectives that relate directly to the substantive area of the law. They can be divided into two categories: knowledge and skills/abilities. The objectives of this course are:
*to provide you with a basic understanding of the law as it relates to Bioterrorism;
*to provide you information about selected principles of black letter law and significant issues (or unsettled matters);
*To help you understand the value implications of legal choices;
*to help you develop and improve your analytical skills including understanding, issue-spotting, problem-solving, judgment and synthesis;
*to help you to understand the importance of inference and intuition in problem definition and problem-solving; and
*emphasize that "personal neutrality" is not necessary to scholarly objectivity.
C. Teaching Objectives #3: Diversity-Conscious Legal Pedagogy
Class, disability, gender, race and sexual preference issues are such an integral part of our society (and the legal profession) that we often overlook how the law affects individuals with different backgrounds differently. In a diverse society, such as ours, awareness of how different class, disability, gender race, and sexual preference are affected differently by the law is essential. This is true whether the person is a defendant, plaintiff, lawyer, juror, judge or law student. Diversity awareness should be a normative part of the value system of the practicing attorney. An education which is aware of diversity: *explores how racial, ethnic, gender, class, disability, cultural and sexual orientation are related to and impacted by the structure of law. In particular, it illuminates the connection between racial and gender issues and the values, interests, rules and theories that appear to be neutral but, are in fact a representation of the values of the dominant culture;
*broadly frames classroom discussion so that we step outside the doctrinal bounds of the law to critique the rules and legal practice; and,
*focuses discussion on problems, interests and values that reflect a broad range of perspectives
Introduction to Course and Paper Requirement
Introduction to the Problem
Public Health System
Bioterrorism a Real Threat?
Public Health Law and Bioterrorism
Public Health and Police Powers
Quarantine/ The Model Public Health Act
Military Presence and Public Health
Public Health Law Revisited
Learning in law school is essentially self-directed. Most of your learning will happen outside of the classroom and independently of myself or any other professor. In fact, many professors, (myself included) will test you on significantly more than can ever be covered in class. My role is to structure my course in such a way as to facilitate your self-directed learning. I do that through the following: detailed syllabus, assigned readings and discussion questions and classroom discussion.
A. Detailed Syllabus
The syllabus for this course consist of this webpage and connected webpages. The syllabus is an important study tool. It provides you with specific guidelines as to my expectations regarding what you should learn, what skills and understanding I value and how I organize the content of the course. However, the syllabus is not a contract and I retain the right to modify it at my discretion.
Assignments consist of both readings and videos. The assigned reading provides you with the opportunity not only to obtain rule and process information. The assigned readings serve as a basis for discussion. It is my expectation that you will be thoroughly familiar with the assignment and completely prepared for class participation.
Many of the assignments will be on the internet. Please do not panic if the course web site and/or conferencing site are not working. This happens occasionally and, in almost all instances, is only a temporary situation. The best advice is just to wait and try again later. TIP: DO NOT WAIT TILL THE LAST MINUTE TO PREPARE FOR CLASS.
C. Guided Discussion
Guided Discussion is a non-hierarchical verbal interaction among a group of persons on a specified topic with a purpose. There are several benefits to the discussion method as a technique in this course.
First, good discussion can provide an active learning role. Research shows that students learn more and retain learned information longer when their role in the learning process is active.
Second, good discussion encourages students to listen to and learn from each other. Discussion encourages cooperative learning rather than competitive learning.
Third, discussion involves high level thinking, critical thinking skills.
Fourth, discussion exposes students to viewpoints other than their own.
Fifth, discussion helps to develop oral advocacy and other skills.
Sixth, discussion provides an opportunity for students to bring their opinions and feelings to the study of law.
Evaluation and Grading
Your grade in the course will be based on:
Class Participation 30 percent
Paper (includes Oral Report - 20 %) 70 percent
Class participation includes:
being prepared to effectively contribute, actively participating in class and group discussion. keeping abreast of news related to Bioterrorism and sharing relevant news information with the class (including working on the ulletin Board). Discussion Questions. You should submit to Professor Randall via email two questions for discussion. The questions should be submitted no later than 7:30 am on Tuesday Morning via email. To Avoid problems with the server, please don't wait till the last minute to send discussion questions. Questions should explore the underlying value implications of the reading. You may want to raise questions which will explore the point at which a value important to you is violated; to write question which challenge the desirable or undesirable consequences of a position taken in the reading; to write questions which make analogies to other things that you have learned; or to write questions which explore the priorities being set by some aspect of the reading. Do not bring "WHAT IS THE LAW" questions. if you want to know what the law is - go to the library and look it up. Rather your questions should be about : "Why, Should, Could, What if?" See, Critical Thinking in Reading for help in formulating appropriate questions.
This is a participatory learning class. That means that your absence effects the learning of others. Consequently, missing classes significantly affects your grade. As a rule of thumb, missing more than two classes will significantly impact your class participation grade. Attendance is required. Attendance will be taken at the beginning of each class hour. Students who are not seated and prepared to begin class when attendance is taken will be counted as tardy. Each tardy counts as one absence.
"Excused absence" shall mean documented illness of self, documented illness of child, school-sponsored participation in competitions, or a family emergency. "Family Emergency" is limited to death or catastrophic occurrence affecting the student's immediate family or closely-extended family. Flat tires and similar automotive failures, computer problems, speeding tickets, work, interviews, court dates, etc. are per se unexcused absences.
Attendance requires presence and attention during the entire class period. Students should not leave the classroom once class has begun except in emergencies.
Attendance requires attention. Students should refrain from engaging in activities that are disruptive to the class. Professional conduct requires that students refrain from eating, talking or laughing while others are speaking, passing notes, playing games, reading newspapers, or in any other manner disrupting the educational process by being present but rude or inattentive. Students acting in an unprofessional manner will be asked to leave the classroom and will be counted absent without excuse for that class.
Attendance requires preparation. Occasional inability to complete the assignments is understandable and excusable; regular patterns of lack of preparedness will require excuse and make-up work.
Your paper is an analysis of Public health law and bioterrorism preparedness of your assigned state. Essentially, your paper should be divided into the following: Public Health Structure Emergency Response (particularly bioterrorism) Public health law (Statutes, Regulation, cases)
Specific Questions that should be address include:
Public Health Structure
How is the state public health system organized? Consider the interaction between Local (Public Health, Police, Fire, EMS), State (Public Health Department, Disaster Management, National Guard) and the federal government (CDC, FBI, FEMA, Department of Defense).
Has the state changed or modified its public health infrastructure as a reaction of a bio-terrorism threat? How? Has the change strengthen, weaken or likely to have no effect on public health efforts?
Is the state undertaking any long term or reorganization of its public health infrastructure?
Bioterrorism /Disaster Response
How is the state organized to address a biological epidemic? What can your state do to manage a public health emergency? What changes have they made specifically related to bio-terrorism?
What are the issues posed by bioterrorism and how do they differ from other public health bioemergencies? How does bioterrorism fit into general public health, the state and federal powers available to manage public health emergencies?
Does the state have a plan for response and followup? Does the state have sufficient expert personnel as first responders? effective command and control structures for directing first response and follow-up personnel?
Does the State emergency public health response primarily focus on high frequency day-to-day public health events rather low frequency bioterrorism?
What is the states "smallpox" plan?
Public Health Law
How does state constitution impact the ability of public health authorities to carry out police powers? Are there state constitutional law constraints? How has the state courts interpreted the exercise police power in the state?
What laws and regulations has your state enacted to enable public health authorities to carry out constitutional police powers? How do the laws and regulations limit the public health authorities? Are they to broad, too narrow? What, if any, change would you recommend?
In your state has the Model State Emergency Health Powers Act (MSEHPA) been enacted in whole or in part? What was the reasoning about the states decision with regard to MSEHPA? Do you think ought to implement the MSEHPA? Why? What alternatives would you propose if your state was reluctant to enact the entire MSEHPA?
What changes need to be made in state public health laws and the public health system to better prepare the United States to manage a bioterrorism incident and to avoid other unnecessary deaths? Why?
If a state has made a change in its laws are they likely to have long term effect and avoid other public health unnecessary deaths?
What weaknesses exist in state law? Are there area where lines of authority are blurred? Have traditional police powers weakened through post-911 legislation? What corrective legislation is needed?
The presentation was well planned and coherent. Student presents information in a logical, interesting sequence which audience can follow. Clear purpose and subject. Pertinent examples, facts, and/or statistics. Conclusions/ideas are supported by evidence. Major ideas summarized and the audience left with a full understanding of the presenter's position. Provided depth in coverage of the topic. 40
The student demonstrates full knowledge (more than required) by answering all class questions with explanations and elaboration. Personal experience integrated where relevant and appropriate. Explanations and reasons given for conclusions. 20
Relaxed, self-confident and appropriately dressed for purpose or audience. Builds trust and holds attention by direct eye contact with all parts of audience. Fluctuation in volume and inflection help to maintain audience interest and emphasize key points. 20
Visual Aids were clear and useful. Handout(s) were useful for others interested in topic. 10
Bibliographic information for others was complete. 10
No Required Text This website and links under assignment are required reading.
These are materials available at various Internet web sites that supplement and extend the material in the various units. A few of these resources require special software such as the Adobe Acrobat Reader to view files that are in the PDF format or the latest version of RealPlayer for audio-visual materials such as video clips. If you need to, you may obtain the latest Adobe Acrobat reader and/or RealPlayer software at no cost.