In a new era of regulatory oversight, the US Supreme Court upended traditional Chevron deference to agency interpretations of ambiguous Congressional provisions in Loper in June 2024. Federal courts were instructed to make their own assessments of statutory authorities amid an onslaught of public health agency challenges surfacing nationally. Even so, SCOTUS may be eyeing further limits on agency powers despite clear and substantial repercussions for the health of the nation.

In a “mixed bag” 2023-2024 session, the U.S. Supreme Court issued a series of decisions both favorable and antithetical to public health and safety. Taking on tough constitutional issues implicating gun control, misinformation, and homelessness, the Court also avoided substantive reviews in favor of procedural dismissals in key cases involving reproductive rights and government censorship.

This contribution marks a dual milestone at the intersection of public health law and JLME: my 50th publication of a substantive manuscript in the 50th anniversary of the Journal in 2022. In recognition of these coinciding landmarks, this installment of the Public Health Law column for JLME features observations and reflections of the field based largely on prior publications.

Amid undulating conceptions of the role and prowess of federalism emerges its central constitutional role: protecting American liberties against unwarranted governmental intrusions. To the extent that federalism is used as a guise for withdrawing fundamental rights to abortion by the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization, individual rights are sacrificed in contravention of constitutional structural norms.

What are the Differences between Public Health Practice and Research? This perplexing question constantly arises in the planning and performance of public health activities involving the acquisition and use of identifiable health information. Public health agencies collect and analyze significant identifiable health data from health care providers, insurers, other agencies, or individuals to perform an array of public health activities. These activities include surveillance, epidemiological investigations, and evaluation and monitoring. Few debate that these essential public health activities, often specifically authorized (...) by law, are classifiable as public health practice.Other public health activities in which identifiable health data are acquired or used, however, can resemble, include, or constitute human subjects research. “Human subjects research” is legally defined as “a systematic investigation, including research development, testing, and evaluation, designed to develop or contribute to generalizable knowledge” that involves living human subjects. (shrink)

Since its inception in 2010, the Network for Public Health Law has aligned with federal, state, tribal, and local public health practitioners to assess how law can promote and protect the public’s health. In 2013, Network authors illustrated major trends in public health laws and policies emanating from an internal assessment of thousands of requests for technical assistance nationally. More recently, the Robert Wood Johnson Foundation has invited the Network and other partners to consider new ideas and strategies toward building (...) a “culture of health.” Per Figure 1, RWJF’s conception of a culture of health emphasizes key action areas essential to the promotion of health across all sectors and diverse populations. (shrink)

Major advances, ground-breaking scholarship, and new programs in public health law over the past several decades have helped define and reform the field. The extent to which public health law is established as a distinct topic for graduate academic study, however, is uncertain. In the early 1990s, the numbers of academics whose work focused largely on public health law were few. Only a handful of schools of law, public health, and medicine regularly offered core courses in public health law. Collectively, (...) these courses laid a strong foundation of instruction in public health law. Still, questions remain as to whether public health law has progressed as a topic of academic pursuit in American graduate institutions. Who is teaching core courses in public health law? Where are these courses taught? How are they designed and what specific topics are covered? (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Acts of Enjoyment: Rhetoric, Žižek, and the Return of the SubjectJames J. Brown Jr. and Joshua GunnActs of Enjoyment: Rhetoric, Žižek, and the Return of the Subject by Thomas Rickert. Pittsburgh: University of Pittsburgh Press, 2007. Pp. x + 252. $24.95, hardcover.Thomas Rickert had a falling-out with his brother, and this distresses him so much that his disrupted relation is described as “traumatic.” Rickert reports that while listening (...) to a portable CD player during a run on an unexpectedly warm winter day, a song by the now defunct jazz/rock band Morphine reminded him of a happy time at a pool hall with his brother (24). Mediated—or better, medicated—by music, the homological happiness of running in the sun and a positive past memory also resurfaced a painful relational rupture, the reason of which Rickert omits to underscore that mysterious, “little detail or object” of the Real that marks his singular finitude as a writing subject (216 n. 11). We’ll want to come back to this curiously deliberate omission, but for the present we note Rickert is not simply an undead author but a human being with relations and feelings. He is not just a gifted scholar or a bundle of reflections, but a nexus of body and movement and words and affect. If there is anything that Rickert’s study can be said to work through with brilliance, humor, and grace, it is the reality of complex personhood.Rickert’s brotherly confession comes in Chapter 1 as a way to introduce a psychoanalytic understanding of subjectivity, and more specifically, to help illustrate how trauma works itself out as an afterwardness or “belatedness” ( Nachträglichkeit ): traumatic events from the past are not reckoned with or worked-through until some coincidence or reminder, such as a similar [End Page 183] sensory experience, reintroduces the event in doubled re-presentation (18–27). This implies the “subject” (a paradigm person) is a kind of timedelay, a self-conscious temporal moving that becomes this way through re-presentation. The rhetorical subject is analogously a retrojected reckoning with events past (not all traumatic) that Rickert identifies as a scene of writing, a locus that has important implications for rhetorical studies in general and writing pedagogy in particular. Rickert’s logic is as follows: if we agree that the subject is a belated one in the psychoanalytic sense, then how we teach rhetoric needs to change. Rickert opens the book with the observation that his students are producing excellent cultural critiques but that such critiques do not lead the students to change their actions (1–7), perhaps evidence enough that something is not quite right in a classroom grounded by “cultural studies pedagogy” and ideology critique—or at the very least, proof that something has changed. The opening gambit is simply that a “postpedagogy” premised on an understanding of rhetorical subjectivity as belatedness is better than a status quo rooted in the rational subject of the Enlightenment.Mostly through a Žižek-filtered, Lacanian lens, Acts of Enjoyment then undertakes a retake of the rhetorical field, frequently scanning from the traumatic ontology of the rhetorical subject to that domain of knowledge that we hold dear, the subject of rhetoric. In Chapter 2, the (primal) scene thus shifts from the slo-mo subject to rhetorical studies, initially through a reassessment of Kinneavy’s “communications triangle,” but ultimately in response to the shock treatment of poststructuralism. The initial theoretical traumas introduced by Victor Vitanza, Diane Davis, Sharon Crowley, and others discussed in Chapter 1 are threaded into an account of “poststructural” redress in Chapter 2: as is true of all forms of trauma, the initial poststructural jolt delivered to the concept of subjectivity was deadened; poststructural theory was eventually used to “shore up rather than challenge Kinneavy’s triangle” (37). To truly work-through our traumatized subject in both senses, we need a second trauma: Lacanian psychoanalysis. Presumably, “poststructuralist thought” is to be opposed because it has no account of the subject (21–24); “Lacan,” after all, “is not a poststructuralist” (48). The remainder of the chapter is then used to deploy Lacan’s conceptual lexicon.Just as... (shrink)

In another tumultuous term of the United States Supreme Court in 2022-2023 a series of critical cases implicate instant and forthcoming changes in multiple fronts that collectively shift the national public health law and policy environment.

Law is an essential tool for improving public health infrastructure and outcomes; however, existing state statutory public health laws may be insufficient. Built over decades in response to various diseases/conditions, public health laws are antiquated, divergent, and confusing. The Turning Point Public Health Statute Modernization National Collaborative addressed the need for public health law reform by producing a comprehensive model state act. The Act provides scientifically, ethically, and legally sound provisions on public health infrastructure, powers, duties, and practice. This article (...) examines how statutory law can be a tool for improving the public's health, existing needs for public health law reform, themes and provisions of the Turning Point Act, and how it is being used by public health practitioners. (shrink)

A series of denialist state laws thwart efficacious public health emergency response efforts despite escalating impacts of the spread of the Delta variant during the COVID-19 pandemic.

In a dynamic term of the United States Supreme Court in 2021-2022 a series of critical cases raise manifold changes and impacts on individual and communal health through 10 key areas ranging from abortions to vaccinations.

Despite historic efforts to enact the Patient Protection and Affordable Care Act in 2010, national health reform is threatened by multiple legal challenges grounded in constitutional law. Premier among these claims is the premise that PPACA’s “individual mandate” is constitutionally infirm. Attorneys General in Virginia and Florida allege that Congress’ interstate commerce powers do not authorize federal imposition of the individual mandate because Congress lacks the power to regulate commercial “inactivity.” Stated simply, Congress cannot regulate individuals who choose not to (...) obtain health insurance because they are not engaged in a commercial venture. Several courts initially considering this argument have rejected it, but two federal district courts in Virginia and Florida have concurred, leading to numerous appeals and the near promise of United States Supreme Court review. (shrink)

To analyze the concept of a human merely in terms of the concept of a primate is to let all kinds of monkeys and apes into a category reserved for humans. Criteria of identity for universal attributes formulated merely in terms of causal roles associated with universals involve a similar permeability, since they cannot distinguish universals from non‐universal attributes. Without appealing to the existence of noncausal universals or resorting to charges of circularity, I will show that causal criteria of identity (...) for universals are insufficiently informative because they cannot capture a distinctive feature of universals. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Acts of Enjoyment: Rhetoric, Žižek, and the Return of the SubjectJames J. Brown Jr. and Joshua GunnActs of Enjoyment: Rhetoric, Žižek, and the Return of the Subject by Thomas Rickert. Pittsburgh: University of Pittsburgh Press, 2007. Pp. x + 252. $24.95, hardcover.Thomas Rickert had a falling-out with his brother, and this distresses him so much that his disrupted relation is described as “traumatic.” Rickert reports that while listening (...) to a portable CD player during a run on an unexpectedly warm winter day, a song by the now defunct jazz/rock band Morphine reminded him of a happy time at a pool hall with his brother (24). Mediated—or better, medicated—by music, the homological happiness of running in the sun and a positive past memory also resurfaced a painful relational rupture, the reason of which Rickert omits to underscore that mysterious, “little detail or object” of the Real that marks his singular finitude as a writing subject (216 n. 11). We’ll want to come back to this curiously deliberate omission, but for the present we note Rickert is not simply an undead author but a human being with relations and feelings. He is not just a gifted scholar or a bundle of reflections, but a nexus of body and movement and words and affect. If there is anything that Rickert’s study can be said to work through with brilliance, humor, and grace, it is the reality of complex personhood.Rickert’s brotherly confession comes in Chapter 1 as a way to introduce a psychoanalytic understanding of subjectivity, and more specifically, to help illustrate how trauma works itself out as an afterwardness or “belatedness” ( Nachträglichkeit ): traumatic events from the past are not reckoned with or worked-through until some coincidence or reminder, such as a similar [End Page 183] sensory experience, reintroduces the event in doubled re-presentation (18–27). This implies the “subject” (a paradigm person) is a kind of timedelay, a self-conscious temporal moving that becomes this way through re-presentation. The rhetorical subject is analogously a retrojected reckoning with events past (not all traumatic) that Rickert identifies as a scene of writing, a locus that has important implications for rhetorical studies in general and writing pedagogy in particular. Rickert’s logic is as follows: if we agree that the subject is a belated one in the psychoanalytic sense, then how we teach rhetoric needs to change. Rickert opens the book with the observation that his students are producing excellent cultural critiques but that such critiques do not lead the students to change their actions (1–7), perhaps evidence enough that something is not quite right in a classroom grounded by “cultural studies pedagogy” and ideology critique—or at the very least, proof that something has changed. The opening gambit is simply that a “postpedagogy” premised on an understanding of rhetorical subjectivity as belatedness is better than a status quo rooted in the rational subject of the Enlightenment.Mostly through a Žižek-filtered, Lacanian lens, Acts of Enjoyment then undertakes a retake of the rhetorical field, frequently scanning from the traumatic ontology of the rhetorical subject to that domain of knowledge that we hold dear, the subject of rhetoric. In Chapter 2, the (primal) scene thus shifts from the slo-mo subject to rhetorical studies, initially through a reassessment of Kinneavy’s “communications triangle,” but ultimately in response to the shock treatment of poststructuralism. The initial theoretical traumas introduced by Victor Vitanza, Diane Davis, Sharon Crowley, and others discussed in Chapter 1 are threaded into an account of “poststructural” redress in Chapter 2: as is true of all forms of trauma, the initial poststructural jolt delivered to the concept of subjectivity was deadened; poststructural theory was eventually used to “shore up rather than challenge Kinneavy’s triangle” (37). To truly work-through our traumatized subject in both senses, we need a second trauma: Lacanian psychoanalysis. Presumably, “poststructuralist thought” is to be opposed because it has no account of the subject (21–24); “Lacan,” after all, “is not a poststructuralist” (48). The remainder of the chapter is then used to deploy Lacan’s conceptual lexicon.Just as... (shrink)

This book discusses topics normally excluded from the current educational conversation such as soul, authority, irony, memory, style, luck, privacy, power, and hospitality.