Bioterrorism, Public Health and the Law 
Law 801: Health Care Law Seminar
Professor Vernellia R. Randall

The Legal Advice of Rumpole the Malevolent


Lesson Schedule
00: Intro to the Course
01: Intro to the Problem
02: Public Health System
03: Real Threat?
04: Public Health Law
05: Disease-Reporting
06: Quarantine
07: Model Act
08: Military Presence
09: Health Law Revisited


 David P. Fidler

excerpted from: David P. Fidler, Legal issues surrounding public health emergencies, 116(2) Public Health Reports S79(8) (March-April, 2001)

Dr. Evil has developed a nasty bioengineered microbe, but he wants to make sure he uses the microbe against a very vulnerable society. He pays a visit to the law offices of Rumpole the Malevolent to inquire about what kind of legal system would be most vulnerable to a bioterrorist attack. After commiserating with Dr. Evil about how bioterrorists and lawyers are misunderstood by society, Rumpole's advice might go something like this:

Your ideal legal target for a bioweapon attack is a country that, first of all, has a fragmented legal system in that relevant legal powers to resp ond to a public health emergency are divided among actors at the national an d local levels. Federalism is, for instance, a fragmented legal system. A federal legal system would be an attractive target because the overlapping competencies of national and local actors will create confli cts about who's in charge of a public health emergency caused by a bioweapon .

While national and local authorities struggle to figure out who is i n control, the epidemic spreads to other local areas, and the 'who's in charge' comedy of errors begins all over again. In addition, a federal legal structure will create cumbersome decision-making processes in which national and local governmental entit ies and personnel need to participate. Can you imagine, Dr. Evil, trying to control a public health emergency through an ad hoc committee process operated by conference calls among the relevant national and local actor s?

Second, your ideal legal target would be a federal system that has place d public health powers predominantly at the local level. If local governments possess the bulk of public health powers legally and constitutionally, then the fragmentation of a federal system is exacerba ted in the context of a public health emergency because the main responsibil ity for protecting public health will be at the local, not national, level. With public health powers vested primarily in local governments, defense s against bioterrorism are only as strong as the local governments' commitment to public health. In addition, with public health powers at the local level, there is more room for diversity and difference across the nation, which undermines a harmonized or coordinated approach to a publi c health emergency. A chain is only as strong as its weakest link.

Third, your ideal legal target should manifest a long, historical neglec t of public health law concerning infectious diseases. Such neglect wi ll signify that (a) local public health officials and their legal advisers, if any, will lack familiarity and competence with the powers that they have ; and (b) the laws on the books will not have kept pace with the changes i n public health and legal principles, making them difficult or even inappropriate to apply effectively in an emergency situation.

Fourth, I would target a legal system that has not adapted the emergency powers of local and national governments to the specific challenges of a bioweapon attack. Local and national governments have broad, emergency powers that would allow them to respond to a public health emergency cau sed by a bioweapon attack. However, if the governmental authorities have not adapted and refined such broad emergency powers for the unique crises a bioweapon attack would create, then the exercise of those emergency powe rs will work to your benefit, Dr. Evil, by allowing ill-informed judgments and political panic to make the government look inept. Faith in government collapses, and civil chaos begins. Equally important is the fact that th e existence of broad governmental emergency powers lulls officials into complacency that they have sufficient legal authority to respond to a bioweapon attack. Complacency then is the unwitting companion of chaos.

Fifth, you want to locate a legal system that has approached emergency planning for a bioweapon attack by lumping bioweapons with other weapons of mass destruction. Locate a legal system that has appropriated money and personnel to train firefighters and police to be the first-responders to a bioweapon attack.

Sixth, your ideal legal target would be a legal system that emphasizes t he protection of individual rights and restricts governmental powers to impinge on such rights. In such a system, the citizenry is always wary a nd skeptical of governmental incursions on its rights, creating a climate o f distrust that works against governmental efforts to contain an epidemic. In this climate, citizens may well ignore governmental orders concerning isolation, travel bans, compulsory treatment, and quarantine. Such individual behavior will force the government to escalate its efforts to contain the epidemic, which might involve using military forces to implement and enforce public health measures. Escalation of this kind wi ll fuel citizenry distrust of the government even more, particularly if heavy-handed governmental tactics fail to stem the spread of the epidemi c.

Seventh, I would find a legal and political system that has neglected it s public health infrastructure and personnel for decades. Such neglect works to your advantage, Dr. Evil, in two ways: (a) The public health resources will be insufficient to handle the emergency created by your microbe; and (b) when the local and national governments exercise their broad emergency powers, they will realize to their chagrin that they hav e insufficient resources to implement the legal authorities they have. Imagine, for example, local and national governments exercising their powers of quarantine only to discover they have inadequate resources, personnel, training, and expertise to implement the action. People forget that the 'rule of law' goes beyond, and must go beyond, merely having legal powers on the books. The legal power to act in the public g ood must be supported by resources, personnel, training, and equipment to undertake effectively the legal authority that exists. 

When Rumpole finishes his monologue, Dr. Evil has only one question: 'Rumpole the Malevolent, can you identify a legal system in the world today that has all the characteristics you describe?'

Related Pages:
Home ] Up ] Public Health System Core Functions and the Law ] [ The Legal Advice of Rumpole the Malevolent ] The Power to Protect the Public Health ] The Current Status of State Public Health Law ] Legal Basis for Large-Scale Quarantine ] The Evolution of Public Health Regulation ] Public Health Practices in the Colonial and Federalist Periods ] Ohio State Statutes ] Selected Ohio Cases ] Ex parte Company ] Application re Halko ] Bioterrorism and Public Health Law: the Critical Choices ] Biological Terrorism and Legal Measures ] Legal Authority and Health Disparities ]
Subsequent Pages:
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Previous Pages:
Home ] Syllabus ] Introduction to the Course ] Introduction to the Problem ] Public Health System ] Is Bioterrorism a Real Threat? ] Public Health Law and Bioterrorism ] Disease Reporting and Police Powers ] Quarantine and Police Powers ] Model State Public Health Law ] Military Presence and Public Health ] Public Health Law - Revisited ]
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