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Text: Most of the course will be taught with online cases and materials. An emergency preparedness text may be assigned later in the course.
No assignment
No reading assignment. Lecture on the history of public health and public health law. Slides (I will provide these as a handout in class.)
We are going to spend a few classes reading historic cases that you read in Constitutional Law, but from a different perspective. We are also going to read the arguments of counsel in these cases, because it is the counsel who really tell the story of what was going on between the state and federal government in carving out the police powers. In one case, the counsel is Daniel Webster, one of the great lawyers of the time. These are long readings, and I do not expect you to remember them in detail or expect you to outline them in detail. I want you to get a feel for the pervasive regulation by the states during this period and how the court dealt with the beginnings of federal regulation. In our modern world, federal regulation is all pervasive, but during the late 1700s and most of the 1800s most regulation was done by the states. This was a heavily regulated period, and this regulation was done under the police powers. Public health is still primarily done through state and local regulation, with guidance by the federal government through the spending power. Later in the course we will see how the Bush administration has used bioterrorism to try to federalize public health, contrary to the traditional conservative rhetoric of state's rights.
Gibbons v. Ogden, 22 U.S. 1 (1824) - case - argument of counsel
Argument of Counsel in Smith v. Turner, 48 U.S. 283 (1849) (this is a very long case, so we will only read the argument of one counsel)
Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36 (1872)
This case has special historic significance for Louisiana, and it also presents the tension between 14th Amendment jurisprudence and the state police power. While it is usually criticized by modern scholars for not expanding the use of the then new 14th Amendment, we will see how that would have caused significant problems for the regulation of the slaughter houses.
Lecture - Introduction to public health diseases - look over the handout from Friday. Disease control Part I
Example of MMWR - look at the turtle story on page 69. Slides
Danzig, Catastrophic Bioterrorism, through page 22.
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) (study Guide); Washington v. Armstrong, 39 Wash. 2d 860, 239 P.2d 545 (Wa. 1952); and Whalen v. Roe, 429 US 589 (1977).
Brief note - > 4% of the US population may have latent tuberculosis.
Is this a dangerous new outbreak, or just an accidental clustering of cases?
Typical TB outbreak investigation - what are the legal issues?
Undulant fever is brucellosis - CDC info on brucellosis
Chicken inspection controversy - what do you think?
We are finishing general STIs with Tuskegee Syphilis Study and Reynolds - Guide. For the Tuskegee study, read reports I and II, and Katz's response to them. We will then start AIDS with the slides from a presentation to the Presidential Advisory Council on HIV/AIDS - 21 June 05 (We will start at slide 14)
We will finish HIV and discuss St Marks - Guide. (General materials and references for the Presidential Advisory Council presentation)
Finish AIDS - start reading the Swine Flu handout: The Swine Flu Affair: Decision-Making on a Slippery Disease Richard E. Neustadt and Harvey V Fineberg, DHEW, 1978
Discussion and assignment of finals project. Topics
The Swine Flu story - understanding how the first pandemic flu scare played out.
Swine flu vaccine liability - Unthank
Building robust communities
Clinic based hepatitis outbreak
California Hospital Surge Law
Review of suing the federal government:
Dalehite v. U.S., 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953);
Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988) (study guide);
Leleux v. United States, 178 F.3d 750 (5th Cir. 1999)
This is a lot of reading, but you should be familiar with the cases from Adlaw or Federal Courts. Use the slides to guide your reading so you can target the key issues - slides.
Public health scare of the day
Discretionary authority in LA- Gregor v. Argenot Great Central Insurance Co., 851 So.2d 959 (La. 2003) - slides
Introduction to 42 USC 1983 - Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir.(N.C.) 2003) - slides
Movie Day
Rosie D. v. Swift, 310 F.3d 230 (1st Cir. 2002) - 11th Amendment does not bar Ex Parte Young exception to 1983 actions under Medicaid laws - What is the 11th amendment problem with 1983 claims? What does ex parte Young allow?
Comparing 42 USC 1983 and Tort Claims Acts
Introduction to Levee Law: Graci v. United States, 456 F.2d 20 (5th Cir. 1971)
Mocklin v. Orleans Levee District and Its Board of Levee Commissioners, 877 F.2d 427 (5th Cir. 1989)
Central Green Co. v. United States, 531 U.S. 425 (2001)
These cases bring us up to Katrina on Flood Control Act jurisprudence. We will then discuss Katrina, based on the handout I have distributed in class.
Continue Katrina discussion
Read this carefully. It is an excellent review of federal courts ruling on LA law, as well as a good primer on insurance law.
Sher v. Lafayette Ins. Co., 988 So.2d 186 (La. 2008)
Court dismisses most Katrina levee breach claims against the Army Corps of Engineers - 30 Jan 2008
Corps of Engineer's history of NO flood control.
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