Good Law to Fight Bad Bugs: Legal Responses to Epidemics

ABSTRACT

Although epidemics are generally understood as lying within the domain of biomedicine, legal and social arrangements play crucial roles in determining whether or not infectious disease outbreaks grow into epidemics and even pandemics. Yet epidemics are challenging terrain for legal regulation. Because epidemics cross political borders and span jurisdictional boundaries, funding for epidemic prevention, preparedness, and response is always inadequate and coordination is difficult. Because epidemics require rapid and nimble responses, governments and international organizations often declare states of emergency, thereby evading some of the usual strictures of law. And because they involve massive uncertainty and rapidly evolving health crises, they require legal actors to work more quickly and with lower standards of proof than is common in law and to intrude on the turf of medical and scientific professionals. Legal contributions to pandemic management could be improved if legal measures such as global treaties and domestic public health law took account of these special features of epidemics.