Brooklyn Law Review
The traditional forms of public health law were directed largely toward communicable diseases and other externalities, such as pollution, with negative health impacts. The more modern view treats any health issue as one of public health so long as it affects large numbers of individuals, and this definition includes such matters as obesity and diabetes. This paper examines the historical and constitutional evolution of the public health principle as it moved from the narrower to the broader conception. It then argues that the narrower principle better defines the appropriate scope of coercive government intervention than the broader definition, which could easily authorize intervention in economic affairs whose indirect effects are likely to reduce overall social wealth and freedom, and in turn, the overall health levels of the population.
Richard A. Epstein, "In Defense of the 'Old' Public Health: The Legal Framework for the Regulation of Public Health," 69 Brooklyn Law Review 1421 (2004).