Emory Law Journal

Volume 67Issue 3
The 2017 Randolph W. Thrower Symposium, Minding the Gap: Law and Practice in Public Health Emergencies

Lurching from Complacency to Panic in the Fight Against Dangerous Microbes: A Blueprint for a Common Secure Future

Larry O. Gostin & Katharina E. Ó Cathaoir | 67 Emory L.J. 337 (2018)

This Article proposes a new paradigm for global preparedness, rejecting the current narrow silos of health assistance, such as disease-specific interventions or eradication. Global health security requires economic investment, strong international institutions, resilient national health systems, targeted research and development, and effective communication with affected populations. We place particular emphasis on reform of the World Health Organization (WHO or Organization) and emergency response within the U.N. system. The values that ought to guide future action include cooperative action, shared responsibility, equity and fairness, and global norms that are respected and enforced.

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The Case for Streamlining Emergency Declaration Authorities and Adapting Legal Requirements to Ever-Changing Public Health Threats

Gregory Sunshine | 67 Emory L.J. 397 (2018)

This Article makes the case for streamlining emergency declaration authority and creating an adaptable legal system. Part I describes the utility of emergency declarations, but gives examples of how that utility can be diminished when states divide specific emergency powers across various types of declarations. Part II explores gubernatorial emergency powers to suspend or waive laws as an adaptable solution for removing legal barriers to an efficient and effective emergency response. These arguments demonstrate that a streamlined and adaptable state legal system for emergency response is one that (1) provides a governor with the authority to issue one type of emergency declaration, (2) does not divide vital authorities across various declaration types, and (3) provides a governor with the unilateral power to remove statutory and regulatory barriers to an effective response.

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Liability for Vaccine Injury: The United States, the European Union, and the Developing World

Mary S. Holland | 67 Emory L.J. 415 (2018)

The 2017 Thrower Symposium focused on how law addresses serious global public health challenges. The World Health Organization (WHO) and other national health bodies strongly recommend vaccines in many circumstances. Yet there is a scientific consensus that vaccines can and do cause harm and death in certain individuals, even when vaccines are properly manufactured and appropriately administered. In the United States, vaccine manufacturers have attained an extremely high level of liability protection through legislation and judicial interpretation. The 1986 National Childhood Vaccine Injury Act (the Vaccine Act); the 2005 Public Readiness and Emergency Preparedness Act (the PREP Act); and Bruesewitz v. Wyeth LLC, the U.S. Supreme Court’s decision interpreting the Vaccine Act, together afford vaccine manufacturers almost blanket liability protection from damages for vaccine harms. This Article looks at current models for vaccine injury liability in the United States and the European Union, and also focuses on possibilities for the developing world in the future.

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The CDC’s Communicable Disease Regulations: Striking the Balance Between Public Health & Individual Rights

James J. Misrahi | 67 Emory L.J. 463 (2018)

On January 19, 2017, the U.S. Department of Health and Human Services (HHS) published a final rule to update regulations administered by the Centers for Disease Control and Prevention (CDC) relating to the control of communicable diseases at 42 C.F.R part 70 (interstate) and part 71 (foreign). The final rule significantly enhances the CDC’s previous regulations that were largely silent regarding procedures for federal isolation, quarantine, and conditional release, and thus lacked transparency regarding the rights and remedies of individuals subject to these actions. The newly revised communicable disease regulations are consistent with the CDC’s governing statutory authority, principles of federalism, and constitutional protections afforded to individuals under the Fourth and Fifth Amendments to the U.S. Constitution. This Article provides an overview of the newly revised regulations and explains how these regulations are designed to protect the public’s health while safeguarding the constitutional rights of individuals subject to federal public health actions.

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Do State Lines Make Public Health Emergencies Worse? Federal Versus State Control of Quarantine

Polly J. Price | 67 Emory L.J. 491 (2018)

This Symposium Article explores the origins and limits of the federal government’s interstate quarantine power. In the event of a public health emergency, state and local political boundaries may generate self-interested measures that risk substantial harm to neighboring states. To more effectively stem a national epidemic and to better protect the interests of regional populations, should the federal government step in to override a state’s protective quarantine? Neither current statutory authority nor how we have thought about it in the past prevents a greater national role. This Article shows how to expand our view of the federal government’s interstate quarantine authority as an important tool to respond to public health threats affecting more than one state.

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Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks

Michael T. Morley | 67 Emory L.J. 545 (2018)

Our electoral system is vulnerable to terrorist attacks, natural disasters, and other calamities that can render polling places inaccessible, trigger mass evacuations, or disrupt governmental operations to the point that conducting an election becomes impracticable. Many states lack “election emergency” laws that empower officials to adequately respond to these crises. As a result, courts are frequently called upon to adjudicate the consequences of election emergencies as a matter of constitutional law, often applying vague, subjective, ad hoc standards in rushed, politically charged proceedings. This Article examines the legal steps various government actors took in response to terrorist attacks and natural disasters that disrupted impending or ongoing elections throughout the early twenty-first century, including the September 11 attacks on New York City, Hurricane Katrina’s destruction of New Orleans, Hurricane Sandy’s devastation of New Jersey and New York, and Hurricane Matthew’s impact along the southeastern United States. It then analyzes the constitutional issues that such election emergencies raise.

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North-South Collaborations to Promote Health Innovation in Africa

Dennis C. Liotta, Solomon Nwaka, Stephen D. Sencer, & Liza Vertinsky | 67 Emory L.J. 619 (2018)

The significant interest in and reference to regional innovation networks for health capacity building within international and regional public health and development strategies has not been matched with the operational support they need. There is little guidance about how to create and sustain such networks and about how north-south collaborations can contribute to their success. This Article describes a model for building African health capacity through regional health innovation networks that focuses on the complete pathway from idea to commercialization of health technologies, and it suggests guidelines for effective north-south collaborations to support this approach. In doing so, the Article highlights the importance of local legal and business capacity building as part of a product-focused, network-based health innovation strategy.

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