Regulating Contagion

Last semester, I developed a new class at the University of Michigan called Regulating Contagion: Pandemics and Disease in U.S. Legal History (syllabus here). Drawing partly on a seminar I co-taught back in 2015, and partly on work as special counsel to Governor Whitmer on her COVID-19 response, the class advanced three big ideas.

First: COVID-19 is not an anomaly. Contagion has shaped American history and law from the moment of first contact, when smallpox and other novel diseases ravaged Native American tribes and cleared the way for their dispossession. The relative vulnerabilities of American and British troops to malaria and smallpox were strategically crucial in the Revolutionary War; yellow fever paved the way both for the Louisiana Purchase and aggressive exercises of maritime quarantine; and the threat of cholera led to the creation of the country’s first modern public health agency in New York City. Plague, variola minor, typhoid, flu (both the Spanish flu and the 1976 swine flu), malaria, AIDS, and SARS all left indelible marks in American law. And all of the debates we’re having over COVID-19—about the tension between individual liberty and collective responsibility, the allocation of authority between state and federal governments, and the harms that disease disproportionately visits on marginalized groups—have historical antecedents.

Second: A study of contagious disease in the United States challenges the pervasive narrative that the nineteenth-century state was weak and that Americans have always been—and will always be—suspicious of state authority. Confronted with extraordinary threats to life, Americans time and again moved aggressively to restrict travel, quarantine vessels, compel vaccinations, isolate the sick, tear down infected buildings, and curtail social interactions. We tend to overlook those measures, both because historical memory is short and because public health law first took shape in states and municipalities, which receive much less attention from legal scholars than the federal government. But we are the heirs of an interventionist state, not a recessive one.

Third: Contagious disease offers an unusually good vantage point from which to study American legal development and in particular the evolution of public health law. From an initial focus on coercive measures designed to prevent person-to-person spread, the nineteenth century witnessed a shift toward sanitary interventions that aimed to create better conditions for health. Contrary to popular imagination, the courts have generally upheld aggressive public health actions, including those that have severe and sometimes troubling implications for personal liberty. Over time, the federal government has gradually accrued more authority to control disease, especially in connection with travel and with the approval of drugs and vaccines, while leaving most day-to-day responsibility with the states. Etc.

The class was immense fun to teach and I think/hope the students got a lot out of it. Somewhat unexpectedly, I came around to the view that it was a valuable addition to the law school curriculum and would be worth teaching even if we were not in the midst of a global pandemic.

In case anyone else is hoping to teach a similar course, the syllabus is here, with many thanks to the historians, lawyers, and science journalists—including Bill Novak, John Witt, Howard Markel, Elizabeth Fenn, Polly Price, Charles Mann, and David Quammen—whose work helped the students and me to wrap our hands around the topic. Please drop me a line, too, if you’d like class notes or slides or just to talk the class through.


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