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Center for Law and the Public’s Health


Boreali v. Axelrod
The New York State Legislature granted the Public Health Council regulatory authority to protect the public’s health. Using this authority, the Council promulgated a comprehensive set of regulations to control smoking in public places. But did the Council overstep its bounds and usurp the Legislature’s power?

  Food and Drug Administration v. Brown & Williamson
Tobacco Corp.

The Food, Drug, and Cosmetic Act grants the FDA the power to regulate "drugs" and medical "devices." Holding that cigarettes are devices designed to deliver the drug nicotine, the FDA promulgated regulations aimed at reducing smoking among children and adolescents. Included in the regulations were measures to control promotion, sales practices, and advertising. In this case, the Supreme Court considers whether Congress truly intended for the FDA to regulate cigarettes or whether the agency overstepped its delegated authority.

  Whitman v. American Trucking Associations, Inc.
Pursuant to the Clean Air Act, the EPA periodically sets and reviews air quality standards for specified air pollutants. The respondent challenged this practice, arguing that the Clean Air Act delegated unconstitutional legislative power to the agency. Further, the respondent argued, the agency should consider the economic consequences of regulation before deciding upon final standards. Justice Scalia responds to each of these issues in this important test of the non-delegation doctrine.

  See v. Seattle
To enforce safety and other regulations, officials must periodically inspect residences and places of businesses. When a residence is involved, officials must obtain a warrant before conducting an inspection against the wishes of the homeowner. But what kind of safeguards apply when officials want to make an administrative inspection of a business?

  New York v. Burger
Acting in accordance with a New York State law regulating automotive junkyards, police inspected the respondent’s junkyard and found stolen cars and parts. At trial, the junkyard owner argued that the law authorizing the warrantless inspection violated his Fourth Amendment rights. Should the expectation of privacy and the warrant requirement vary according to the nature of the business being inspected?

  Dent v. West Virginia
A nineteenth-century West Virginia law required physicians to be certified by the Board of Health and to submit proof of attending a "reputable medical college." Although professional licensing is now a well-established component of public health’s regulatory authority, the petitioner in this 1888 case argues that such regulation unjustly denied him his economic rights.

  Lucas v. South Carolina Coastal Council
Intending to build two residences, petitioner Lucas purchased two lots on the South Carolina coast. Two years later, the legislature passed the Beachfront Management Act, which barred Lucas from constructing his homes. Although the authority to prevent "harmful or noxious uses" of public property falls within the state’s police power, should Lucas be compensated for having his property stripped of all economic value?

  Philip Morris, Inc. v. Harshbarger
Philip Morris, Inc. v. Reilly
Massachusetts has long been on the vanguard of tobacco control, and more than one of the Commonwealth’s tobacco regulations have ended up challenged before the Supreme Court. In this case, the Department of Public Health required tobacco companies to submit lists of the ingredients contained in their cigarettes. These ingredient lists are closely-guarded trade secrets, and the companies responded by arguing that the regulation constituted a regulatory taking.

  Lochner v. New York
A New York State law barred bakers from working more than sixty hours per week – ostensibly a measure to ensure health and safety. In this seminal case, Justice Peckham outlines the relationship between the states’ police power and the freedom to contract that will define an entire era of jurisprudence. Compare Lochner with Jacobson (ch. 7), decided only two months earlier.


The Regulation of Nuisances in the American Colonies
Appearing in the October, 1923 issue of the American Journal of Public Health, this article by Elizabeth Tandy provides a detailed history of legal responses to public health nuisances in colonial times. At first, authorities abated nuisances for the comfort of the colonists in order to maintain a clean living environment. Later, nuisances were abated to prevent the spread of contagious disease. Although knowledge of medicine and biology were limited at the time, Tandy provides strong evidence that nuisance abatement for the public’s health were a key part of early legislation and regulation.



  City of New York v. New Saint Mark’s Baths
In 1985, responding to the emergence of the AIDS epidemic, the New York State Public Health Council authorized local officials to close any facility "in which high risk sexual activity takes place.” Acting pursuant to this regulation, officials shut down a bath house as a public health nuisance. This case discusses the conflicts between nuisance abatement, the rights to privacy and free assembly, and the protection of public health during the early years of AIDS.





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