Governing Health Controversies Through the Judiciary

Leticia Morales IHSP/Faculty of Law, McGill University

leticia.morales@mcgill.ca !

Draft only - Please don’t cite or quote without permission

!The great thing about facts is that you don’t have to ponder

whether they’re desirable or not.

Jo Nesbø, Nemesis.

!Introduction

Courts are increasingly called upon to arbitrate in public health controversies

that pitch different stakeholders against each other (Yamin & Gloppen, 2011).

Judicial intervention in such cases requires courts to take a stance on public

health policy. To illustrate, consider three recent Canadian cases.

In 2011 the Supreme Court of Canada found in the case known as PHS

that a person’s rights to life, liberty and security under s. 7 of the Charter of

Rights and Freedoms is violated where policy threatens the health and bodily

integrity of intravenous drug users by refusing to legislate for safe injection

sites. The Court stated in PHS that government should grant approval to a 1

supervised injection site that will markedly decrease the risk of death and

1

Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 1

134 (PHS), para 93.

disease, with little or no evidence that it will have a negative impact on public

safety.

In Bedford, the Canadian Supreme Court decided unanimously that the

criminal prohibitions on “bawdy-houses”, living on the avails of prostitution, and

communicating for the purpose of prostitution do not merely impose constraints

on sex workers. Rather, “by imposing dangerous conditions on prostitution, they

prevent people engaged in a risky – but legal – activity from taking steps to

protect themselves from the risks”. Rejecting the Attorney General’s call for 2

deference to government policy decisions (on the grounds that a positive

decision would open up the floodgates for similar claims) and instead redressing

the harms of government (in)action through the interpretation of s. 7 of the

Charter, the Supreme Court acknowledged the need for a legal framework that

promotes and protects sex workers’ health in Canada (Chu and Glass, 2013).

Finally, in 2013 the Court of Appeal for British Columbia was asked to

reconsider the constitutionality of the Criminal Code provisions against suicide

and euthanasia under both s. 7 and s. 15 of the Charter in Carter. Ms. Carter 3

and Ms. Taylor, both suffering from an untreatable progressive medical

condition, challenged the constitutionality of s. 241(b), which prohibits a third

party assisting in the suicide attempt of a person. The plaintiffs initially

2

Canada (Attorney General) v. Bedford 2013 SCC 72, [2013] 3 SCR 1101, para. 60.2

Carter v. Canada (Attorney General), 2013 BCCA 435. Previously, in Rodriguez v. British Co3 -lumbia (Attorney General) [1993] 3 S.C.R. 519, the Supreme Court of Canada found that provi-sion 241(b) of the Criminal Code (prohibition of assisted suicide and imprisonment) not to in-fringe certain rights under the Canadian Charter of Rights and Freedoms.

succeeded in the lower court, but after an appeal by the Attorney General of

Canada, the Court of Appeal in a majority ruling found “binding precedent”

required the trail judge to apply Rodriguez. At the same time, the Court of 4

Appeal state that, should the Supreme Court revisit its holding in Rodriguez, it

should consider using the remedy of a ‘constitutional exemption’ for individuals

on whom an otherwise sound law “has an extraordinary and even cruel effect.”

Explicitly addressing legislative intent, Chief Justice Finch argued that

“accepting that s. 241 is directed to the interest of the vulnerable, a

constitutional exemption for those who are clear-minded, supported in their life

expectancy by medical opinion, rational and without outside influence, might

not undermine the intention of the legislation.” 5

What these three cases – and many more in other jurisdictions – have in

common is that judges are interfering with the public health decisions of

legislators and other policy-makers. In doing so, courts are said to rapidly face

the so-called “judicial legitimacy problem” (Syrett, 2013). One type of 6

3

Carter 1993: 4. “The trial judge carried out a lengthy review of the history of the impugned 4

provisions, expert opinion evidence on medical ethics and medical end-of-life practices, evidence from other jurisdictions, and the feasibility of safeguards for physician-assisted suicide. She con-cluded that safeguards could be put into place to protect against the risks associated with physician-assisted dying; that the evidence did not support an increased risk for elderly individ-uals; and that the risks inherent in permitting physician-assisted death could be ‘very substan-tially minimized through a carefully-designed system imposing stringent limits that are scrupu-lously monitored and enforced’.”

Carter 2013, Chief Justice Finch dissenting, p. 5.5

See Bickel 1962: 16-18 for an early characterization of this problem as “countermajority diffi6 -culty”. BICKEL, A. (1962). The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New Haven: Yale University Press.

legitimacy problem is familiar from the critique of Waldron (1999, 2006) and

Bellamy (2007), maintaining that judicial review in particular is undemocratic.

But another legitimacy problem is based on the alleged incapacity of judges to

fully appreciate and address questions that require a particular type of

expertise. Public health is indeed one of those areas in which expertise appears

to play a large role, thus raising the question whether judicial intervention is

justified.

!Persistent Disagreements in Public Health

Controversies are persistent in public health. Public health measures and

interventions, such as the examples mentioned in the introduction, pitch citizens

against each other as well as against government and other public regulators.

Public health is an inherently political activity (Coggon, 2013), subject to what

Jeremy Waldron has aptly termed the “circumstances of politics”: the need to

reach a decision under conditions of persistent disagreement (Waldron, 1999:

102).

There a several reasons why disagreement in public health matters

persists. One of the main reasons is simply a matter of competing interests:

public health interventions are notorious for imposing broad (albeit in many

cases small) costs in return for gains to a relatively circumscribed group of

beneficiaries (Holland, 2007). The restrictions imposed on some for the benefit

of others in some cases cause consternation, protest and at times even outright

disobedience. Safe injection sites may be congenial to the health and safety of

4

drug users, but will also negatively affect the living environment or indeed

housing prices for those in whose backyard the scheme is implemented.

Balancing interests is a difficult matter at the best of times, and more so when

the competing interests at stake are reasonable (Waldron, 1989).

Of course, people equally vehemently disagree when it concerns the values

or foundational principles underpinning public health policy. While promoting 7

the health and safety of sex workers is again a laudable goal, many believe any

form of relaxing prohibitions on selling (and buying) sex is equivalent to

accepting a denigrating and exploitative practice. Similar value conflicts arise

with respect to end-of-life decisions: here opposing parties refer to a host of

attractive principles – to wit, individual autonomy, human dignity, sanctity of

life, and protection of the vulnerable – to justify their position pro or contra

assisted suicide (Schuklenk et al, 2011). As Rawls has taught us, persistent

disagreement about values is “a permanent feature of the public culture of

democracy”, not likely to wither away any time soon (Rawls, 1989: 246).

Similarly, “we should not wish away the fact that we find ourselves living and

acting alongside those with whom we do not share a view about justice, rights

or political morality” (Waldron, 1999: 102).

Besides disagreements grounded in competing interests or values, there

exists a third important source of persistent disagreement. Even where an

“overlapping consensus” about the foundational values is in place (to put it in

5

On value disagreement in general, see Rawls (1993); Waldron (1999); McMahon (2009); and 7

Valentini (2013).

Rawlsian terms) and where people share similar interests, they may still hold

radically different factual beliefs, resulting in “disagreement about matters of

empirical fact” (McMahon, 2009: 9-18). In public health many examples readily

spring to mind. Consider, for instance, the belief that childhood immunization

might be a contributing factor in the development of autism, which following

the infamous Wakefield study persists amongst many parents despite the bulk 8

of epidemiological research showing no scientific evidence to support such a

causal link (Doja and Roberts, 2006). Another example would be the slippery-9

slope argument against allowing physician-assisted suicide: in this case both

parties agree to disagree as it were on a matter of empirical fact, namely

whether the legalization of assisted suicide would result in some vulnerable

individuals or groups – e.g., old age or severely disabled patients – being

pressured into taking their own lives (Schuklenk et al, 2011). 10

Public health controversies resulting from factual disagreements are

importantly different from those based on interest or value conflict. When it

comes to factual or empirical matters, the presumption is that, ceteris paribus,

6

The study, led by Andrew J. Wakefield, was published in The Lancet in 1998 but fully retract8 -ed in 2010, and Wakefield found guilty of serious professional misconduct by the General Med-ical Council.

“A suggested association between certain childhood vaccines and autism has been one of the 9

most contentious vaccine safety controversies in recent years. Despite compelling scientific evi-dence against a causal association, many parents and parent advocacy groups continue to sus-pect that vaccines, particularly Measles-Mumps-Rubella (MMR) vaccine and thimerosal-contain-ing vaccines (TCVs), can cause autism” (DeStefano, 2007: 756).

The fact that the slippery slope argument often masks deeper underlying value disagreements 10

is irrelevant. Once committed to this line of argument, the point is one of empirical fact.

everyone holds an interest in reaching the correct answer. Independent of which

values one holds or which interests one has, the relevant facts must be present

for an individual to be able to instantiate those values or pursue those interests.

This means every person has a presumptive interest in their beliefs to

correspond as much as possible to true facts. Equally, moving things a step up

the regulatory ladder, every person emphatically has a strong interest in

ensuring that those governing policy are guided by the best possible knowledge

or evidence about factual matters.

Like the previous two types, persistent factual disagreements are pervasive

and not likely to disappear anytime soon. But the underlying shared interest in

resolving disagreement is significantly different from conflict driven by

competing interests or opposing values. This immediately brings us to the

question of who should arbitrate between the competing belief sets that inform

persistent factual disagreement. The customary answer to this question either

points at the legislative assembly or an expert body, such as the scientific

community. The argument in favour of the legislative assembly trades on the

epistemic power of large numbers, as expounded by the well-known Condorcet

Theorem (Goodin, 2005). The argument in favour of the latter is to emphasize

the superior epistemic competence of expert decision-makers in complex areas

such as public health.

What about the courts? At face value, judicial intervention fares rather

poorly on either of the arguments above. On the one hand, as has been pointed

out regularly by the critics of judicial review, courts merely engage in majority

7

rule decision-making but then with extremely small numbers (Waldron, 1999,

2006). This means the epistemic power of large numbers does not apply to

judicial decision-making. On the other hand, while judges are experts in the law,

they typically don’t have the necessary background or knowledge to compete

with public health experts. This would suggest courts are perhaps not the best

policy-makers when arbitrating on public health controversies. My purpose in 11

this article is to partially vindicate the role of the courts in resolving public

health disputes based on factual disagreements. But before putting the case for

judicial intervention, I briefly review a specific complaint lodged against the

competence of judges to adjudicate social problems.

!Judicial Competence and Polycentricity

The traditional view of the judiciary is one of an impartial adjudicator between

bilateral disputes where the affected parties present reasoned arguments and

evidence in support of their claims (Fuller, 1978: 365; on evidence more

generally see Twinning, 2005; 2006). In this model, the chief task of the courts

and other adjudicative agencies is to resolve the grievances of individual

litigants, and only to actively intervene in the case where legislation leaves

“interpretative gaps”. This model offers an ill fit with the increased recognition

of fundamental positive rights in legal systems, including rights that address

public health concerns. But the underlying point, often expressed in the form of

Fuller’s “polycentricity problem”, is worth exploring in a little more detail.

8

See Horowitz (1997) on courts as policy-makers more generally.11

For Lon Fuller, a problem arises in legal adjudication because certain

issues or problems are deemed “inherently unsuited for adjudicative disposition”

and “fall beyond the proper limits of adjudication” (Fuller, 1978: 354). These are

matters where the competence of courts is in doubt, and thus best left to the

legislature, planning boards, or other public institutions. The problem is not

merely one of judges lacking the technical competence, information and

specialization required to fully evaluate the relevant facts and evidence of

complex social issues such as those surrounding public health (Didcott, 1988).

Fuller’s objection cuts deeper and refers to the type or nature of conflicts

involved in public health matters.

Fuller introduced the problem of “polycentric” (“many centered”) situations,

which emerges in situations with many interacting points of influence (Fuller,

1978: 394-405). Fuller aptly visualizes this concept through the metaphor of a 12

spider web:

“A pull on one strand will distribute tensions after a complicated

pattern throughout the web as a whole. Doubling the original pull

will, in all likelihood, not simply double each of the resulting tensions

but will rather create a different complicated pattern of tensions.

This would certainly occur, for example, if the doubled pull caused

one or more of the weaker strands to snap. This is a ‘polycentric’

9

Fuller derives the concept of a “polycentric” task from Polanyi’s (1951) work on The Logic of 12

Liberty.

situation because it is ‘many centered’ −each crossing of strands is a

distinct center for distributing tensions” (Fuller, 1978: 395).

It is easy to see how many public health interventions will have such strong

polycentric features. Interventions at the population-level by their very nature

will be wide-ranging and differentially affecting subgroups, which is precisely

one of the reasons why public health interventions remain controversial.

For Fuller, these types of problem clearly fall outside the proper scope of

adjudication, a view apparently shared by those critical of judicial intervention

in public health today. Fuller’s reasoning is informed by his view that in the 13

adjudication form, the dominant mode of participation is in the form of

presenting reasoned arguments and evidence (Fuller, 1978: 363-365). But when 14

the participation of all the affected parties in the judicial decision-making

process is impossible, this results in “the relative incapacity of adjudication to

solve ‘polycentric’ problems” and even the destruction of “the integrity of

adjudication itself” (Fuller, 1978: 371; 364). In short, judicial intervention in

complex and wide-ranging matters, characterized by many interdependent

relations and a high probability of unforeseeable consequences that affect parties

10

See Cross (2000). See also Soobramoney v. Minister of Health, Kwa-Zulu-Natal (CCT32/97) 13

1997 ZACC 17, 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (27 November 1997); opinion of Judge Chaskalson: 28-31.

Fuller distinguishes three basic forms of social ordering according to which decisions can be 14

made: contract, elections, and adjudication. What distinguishes each of these forms is the mode the participation of the affected party is regulated.

unable to participate in the adjudicative process, amounts to a perversion of the

judicial process. 15

There are two ways to respond to Fuller’s charge of polycentricity as

determining the limits of adjudication. The first builds on the recognition that

polycentricity is a pervasive feature that affects all areas of the law, and not

only those involved in the allocation of resources, such as public health law; a

point that Fuller had accepted. In his study of the pervasiveness of

polycentricity in law, Jeff King observes many examples – e.g., in tax law –

where the polycentric properties of a social problem are not worsened by judicial

intervention (King, 2008: 101). In addition, King’s analysis shows that “the 16

idea of polycentricity cannot presently be relied upon without serious

contradiction to justify judicial restraint in public law. Judges and scholars will

need either to abandon the doctrine, recast it in a more defensible form, or

radically change the role of adjudication in contemporary legal practice” (King,

2008: 128; also King, 2012). 17

11

Fuller (1978, 401) writes: “First, the adjudicative solution may fail. Unexpected repercussions 15

make the decision unworkable; it is ignored, withdrawn, or modified, sometimes repeatedly. Sec-ond, the purported arbiter ignores judicial properties −he “tries out” various solutions in post-hearing conferences, consults parties not represented at the hearings, guesses at facts not proved and not properly matters for anything like judicial notices. Third, instead of accommodating his procedures to the nature of the problem he confronts, he may reformulate the problem so as to make it amenable to solution through adjudicative procedures”.

King (2008: 123-124) holds that in such type of cases “courts are often willing to take a harder 16

look at the facts, possibly introduce a strained construction, or apply an open-textured concept such as ‘unfairness’ in the context of judicial review”.

The idea of judicial intervention itself has evolved with the recognition in legal systems of 17

human rights and the development of constitutional law. Fuller’s view may simply no longer reflect the adjudication process in current legal institutions. See Sturm (1991: 1355-1446); King (2008).

A second promising avenue is to point out that polycentricity is not

restricted to adjudication only. Fuller recognized that situational complexity

does not disappear or diminish in intensity when legislators and administrators

– who all face the familiar informational constraints and bounded rationality

(Simon, 1991) – are tasked with making decisions on polycentric issues: “the

majority principle is quite incapable of solving polycentric problems” (Fuller,

1978: 399-400).

This is perhaps most obviously the case when legislators or bureaucrats

rely on outside experts to tell them the truth of the matter. There are many

ways in which the results of expert research is biased or skewed towards a

particular policy prescription (Goldman, 2001). Sam Harper, Nick King and

colleagues, in a study focused on the distinction between absolute and relative

measures of health inequalities, illustrate why it is crucially important to

appreciate that “normative judgment is integral to some of the most basic

decisions underlying the measurement of health inequalities” (Harper et al, 2010:

5). It is worth considering the following example at length:

“Zhang and Wang (2004) reported the respective prevalence of

obesity among adult males with low versus high education as 13.8

percent and 8.6 percent between 1976 and 1980, and 24.1 percent and

17.1 percent between 1988 and 1994. In this case the rate difference

between education groups increased from 5.2 percent to 7 percent,

but the rate ratio declined from 1.60 to 1.41. If one considers the rate

12

of change exclusively, the less educated did better, since their relative

increase in obesity was 75 percent, compared with 99 percent for the

more educated. Yet if one considers the absolute level of obesity, the

less educated rose by 10.3 percentage points, compared with 8.5

points for the more educated. If we consider only the rate ratio—

again implicitly endorsing the position that equality matters most—

then we must conclude that educational inequalities in obesity are

decreasing and that we are making progress toward health equality.

However, if we consider the rate difference—implicitly endorsing the

position that inequality matters but it is not all that matters—we

would conclude that inequality is worsening in this case because the

absolute increase in the rate of obesity has been greater for the

disadvantaged.” (Harper et al, 2010: 10)

!Health inequalities can be plausibly expressed in absolute or relative terms, but

which of these measures is used will nevertheless suggest different policy

recommendations. Policy-makers unfamiliar with the fact that the choice of

measures is not merely a technical decision will end up resolving factual

disagreements about what the evidence really shows in favor of a policy

benefiting one group over another. In Fullerian terms, part of what goes wrong

in this process is the lack of participation by those who are affected by the

decision. Reliance on apparently neutral expert evidence does not mean

legislators or bureaucrats can avoid the trappings of a polycentric social

13

problem. In this respect too courts and assembly have more in common than

often acknowledged, and perhaps we ought to take a more forgiving attitude

towards judicial intervention. 18

!Reconsidering the Role of the Judiciary

The judicial legitimacy problem (Syrett, 2013) is typically couched in terms of

the problematic role of the judiciary in deciding normative disagreements (Fuller

1979; Breyer 1986; Didcott 1988; Waldron 1998, 1999, 2006; Tushnet 1999;

Cross 2000; Daniels and Sabin 2008). But the main concern of this article is

with factual disagreements, which I have argued have a significantly different

normative structure. In the remainder of this article I briefly outline four

grounds for the continued relevance of judicial intervention in public health

controversies grounded in factual disagreements. My arguments do not assume

that current judicial institutions are perfect or do not require significant reform;

my aim is merely to point at some social costs involved in restricting the scope

of judicial intervention.

!!

14

In his classic study Horowitz (1977: 20) already observed that “there is somewhat less institu18 -tional differentiation today than two decades ago. There is now more overlap between the courts and Congress in formulating policy and between the courts and the executive in both formulat-ing and carrying programs. That is, the types of decisions being made by the various institu-tions -their scope and level of generality- seem to be converging somewhat, though the processes by which the decisions are made and the outcomes of those processes may be quiet different […]. Thus, to say that there is convergence in the business of courts and other institutions is not tan-tamount to saying that it makes no difference who decides a question. On the contrary, it mat-ters a good deal, for the institutions are differently composed and organized”.

Judges are appointed, not elected

A common critique of judicial review is that judges are unelected, which means

their power to counter legislative decisions through strong judicial review is

undemocratic and illegitimate. This argument makes sense (as far as it goes)

when the relevant disagreement concerns competing interests or value conflicts.

When the disagreement concerns empirical facts, on the other hand, this

property may turn out to be an advantage.

Politicians are electorally accountable and thus obligated to further the

interest of their constituents (Mansbridge, 2003). In addition, seeking reelection

politicians have strong incentives to favor the position that maximizes voter

approval or face electoral sanctions (Mansbridge, 2009). Courts are neither

elected nor representative institutions and are relatively independent from a

specific constituency (but see Hirschl, 2007). In the classic version of the

division of powers, the main purpose of the judiciary is precisely to serve as a

counter-power to legislative and executive direction (Hoffman, 2002; Pettit,

1999, 2012). There is little concern about the corrupting influence that electoral

campaigning might have on a judge’s impartiality, for instance. Pettit writes:

“Where those elected to government may have an interest in securing

reelection by satisfying their particular backers, for example, those

involved in review will usually have quite different […] incentives.

They may be free of self-serving interests and be all the more

susceptible to considerations of fair play […] or they may have an

interest in enhancing their reputation as knowledgeable and even-

15

handed among their professional colleagues or in the community at

large” (Pettit, 1999: 181-182; also Pettit, 2012).

Appointed for life, judges typically do not need to make strategic decisions that

will secure their position in the future. 19

This line of argument has been challenged from a rational choice by

Richard Posner, who maintains that the judiciary should be conceived as

composed of “ordinary people responding rationally to ordinary

incentives” (Posner, 1993: 1). In The Behavior of Federal Judges, Epstein,

Landes and Posner (2013) elaborate along similar lines how judges, who ought

to be considered agents of the government, are both motivated and constrained

by benefits and costs. Benefits to which a rational judge would respond include

income as well as non-pecuniary benefits such as power and prestige while

adverse working conditions and the value of leisure foregone operate as rational

constraints (Epstein, Landes and Posner, 2013: 7-8). Thought-provoking though

it may be, not everyone finds the “judicial utility model” accurately reflecting

what goes on behind the judges’ robes (Jubilerer, 2013). Most importantly, the

model does not invalidate the fact that judges face a different set of

opportunities and constraints from elected representatives, which most obviously

explains why judges are not required to charm people’s support or cozy up to

(corporate) special interests to continue in their positions. Judicial institutions,

16

Here we have to distinguish the European constitutional model, with a Constitutional Tri19 -bunal as the interpreter of constitutional provisions, from the American constitutional model. Members of a Constitutional Tribunal may only be appointed for a limited time.

qua institution, are structured to function differently from other state

institutions.

!Commitment to evidence

When legislators or public administrators gather information and evidence from

about the effects or cost-effectiveness of a policy, they often rely on experts

funded or otherwise linked with influential corporate interests. This is most

certainly the case in health policy and public health, with both Big Pharma and

Big Tobacco standing out. Consequently, the information and evidence

supporting particular decisions may fail to satisfy the requirements of

procedural justice (Syrett, 2011), including the demands of transparency and

accountability (Mitton et al., 2006.).

Elected officials may be aware of the extraordinary influence of

“informational lobbying”, but typically have few incentives – if any – to seek out

alternative information. Judges, by contrast, are oriented to seeking out

information the opposing sides in any disagreement. Moreover, judges are not

committed in advance to favoring a particular side but instead focused on

letting the evidentiary chips lie where they fall. Courts are thus well-suited to

adjudicate cases of factual disagreement that crucially depend on unearthing

relevant evidence about controversial facts.

In practice, most judicial systems incorporate specialized tribunals to

deal with particularly complex social problems, such as labor or human rights

tribunals. Keith Syrett (2013: 7) observes, pace those lamenting the lack of

17

judges’ health expertise, that “there seems no particular reason why

epidemiological and health economic evidence should be less susceptible to

admission and consideration in court, save perhaps for the relative newness

(and, hence, unfamiliarity).” For instance, United States federal judges were

appointed as “special masters” in three test cases to rule on the question of

whether early childhood immunization was a contributing factor in autism. 20

The claimants demanded compensation on the grounds that a combination of

vaccines containing the mercury-based preservative thimerosal (TCVs,

thimerosal-containing vaccines) administered to their children in the first year,

and the measles, mumps and rubella (MMR) vaccine after 12 months

contributed to the development of autism (Stewart, 2009). The examination of

the autism controversy through specialized “vaccine courts” has one clear

advantage. Whereas hearings set up by the Medical Research Council in the UK

or the Institute of Medicine in the USA sought to include parents and lay

interests in their proceedings, the terms of the discussion were clearly set by

scientists and medical authorities. This offers a marked contrast with the expert

witnesses in the vaccine courts, who are obliged “to present their evidence to

judges who have no particular scientific expertise: the standard is that of the

18

The cases are known as the “Omnibus Autism Proceedings”: 1) Michelle Cedillo v. Secretary 20

of Health and Human Service, Case N. 98-916V, was heard by George L. Hastings in Washing-ton, DC, in June 2007; 2) William Yates Haslehurst v. Secretary of Health and Human Service, Case N. 03-654V, was heard by Particia E. Campbell-Smith in Charlotte, North Caroline in Oc-tober 2007; and 3) Coltern Snyder v. Secretary of Health and Human Service, Case N. 01-162V, was heard by Denise K. Vowell, in Orlando, Florida, in November 2007. On February 12, 2009, in simultaneously published judgments, all three judges rejected claims that vaccination caused autism in these children.

intelligent, objective, observer” (Fitzpatrick, 2009: 4). Although courts are

appropriately respectful of medical professional opinion, there is no need to

display blind deference (Syrett, 2013), for “there are questions related to medical

practice that naturally fall within the comprehension of the layman” (Lord

Woolf, 2001: 7; also Syrett 2004, 2008, 2011).

Further, the traditional portrayal of clinical decision-making as an

“essentially intuitive exercise of judgment in response to the particularities of

individual cases may now be outdated as a consequence of the impact of

evidence-based medicine (EBM)” (Syrett, 2013: 4). This new paradigm relegates

competent clinical judgment to third place – randomized controlled trials and

observational studies – in the ranking of grounds for medical decision-making

(Howick, 2011: 5). Since the adjudicative function is based on the review and

assessment of evidence placed before the court, EBM as a form of decision-

making “sits much closer to judicial reasoning than does ‘traditional’ clinical

judgment” (Syrett 2013: 5). For Syrett (2013: 5), “this is not to claim that

scrutiny of clinical decisions based upon evidence will be straightforward for a

judge; there is likely to remain a deficit of knowledge arising from the ‘technical’

character of some of the methodologies which are utilized in EBM”. This is

merely a call for the judiciary to be restructured in a way to overcome these

difficulties (Syrett, 2013: 4, 8), for instance by incorporating the dialogical

approach in legal systems (Gargarella, 2006; Bateup, 2005, 2009; Dixon, 2007). 21

19

The Canadian legal system is regularly framed as one where the genuine dialogue between the 21

public institutions of the judiciary and the legislator takes place.

!Judicial reasoning

Reasoned debate within the legislator is constrained by time and the need to

make many political decisions at the same time. This affects the epistemic

status of legislative reasoning insofar as it is based on the Condorcet jury

theorem. First, the Condorcet jury theorem may work at the level of political 22

representatives deciding on policy provided they are allowed to freely express

their vote, but this is rarely the case in most political systems. Canadian

representatives, for instance, are expected to vote along party lines, with the

party line on a particular being set by a small number of individuals. Second,

policy-making typically takes place in committees, which again boils down to a

small number of people sorting through evidence and writing summary reports

to subsequently inform the relevant minister or the cabinet. With the epistemic

superiority of the legislature thus compromised, we should reconsider the merits

of judicial reasoning for factual disagreements.

The judicial process operates by searching for, citing, assessing, and

comparing the weight of factual evidence in order to adjudicate a particular

disagreement. A key object of the judiciary is to distinguish between opinion

and fact. “The explanation for a conflict in medical opinion is frequently based

on a different interpretation of the underlying facts. It is always the courts and

not an expert’s task to find the facts. This is so even if it is necessary to have

20

The Condorcet theorem states that the probability for a majority to make correct decisions 22

increases significantly with group size, where each individual on average has more than 0.5 probability of being correct (Goodin, 2005).

expert evidence in order to interpret the facts” (Lord Woolf, 2001: 11.). Against

a background of politicians customarily adopting decisions based on the advise

of specialized agencies, one of the objectives of the courts “is to ensure that the

agency is in possession of information which it might not otherwise have

acquired and that it is thus able to make a balanced and, as far as possible,

‘correct’ decision based upon full knowledge of all relevant facts” (Syrett, 2011:

484.).

We should consider a final point. In a democratic society, it would be

“unwise to place any profession or other body providing services to the public on

a pedestal where their actions cannot be subject to close scrutiny”. As Lord

Woolf correctly reminds us, we ought not to forget “why the appellate system

within the courts and the fact that the judiciary administer justice under the

cleansing scrutiny of the public are so important” (Woolf, 2001: 15). Each ruling

requires judges to give reasons that shine public light on how they evaluated

and weighted the evidence introduced in the procedure, which adds an

important quality dimension to judicial reasoning.

!An additional voice for the people

In a modern democracy elected representatives typically represent the interest of

the democratic majority. Modern democracies nonetheless also value

opportunities for the minority to have its voice heard. As is illustrated by the

case of PHS, pertaining to safe injection sites for drug users, the judicial process

opens up a channel for marginalized individuals and groups or minorities to

21

contest political decisions. The courts effectively introduce an additional mode

of access for individuals’ input into the policy process.

In addition to the epistemic value of an increased probability of reaching

a correct interpretation on disputed facts, judicial intervention promotes the

value to marginalized minorities of having their position impartially assessed –

boosting procedural fairness (Rawls, 1971; Pettit, 1999: 182). This is an

important point because it is not the potential favorable outcome that gives

judicial review profound extrajudicial effects, as many have argued (Bryden,

1987; Pettit, 1999, 2012; Gargarella, 2006; Bellamy, 2007; but see Hirschl 2007:

149-168 for the opposing view.). On the contrary, procedural fairness makes the

process acceptable even when it delivers unwelcome outcomes (Pettit, 1999:

182).

The vaccine courts example discussed in a previous section illustrates this

last point well. “Parents who attribute their children’s autism to vaccines often

claim that they – and the scientists and doctors who support their conviction –

have been denied a public hearing. The vaccine courts allowed their voices, and

those of their legal representatives and supportive experts, to be heard and to

be interrogated” (Fitzpatrick, 2009: 4-5). Similarly, in the Carter case (assisted

suicide), Ms. Carter and Ms. Taylor were granted the opportunity to have their

arguments heard and carefully examined; whatever the outcome of the case, this

mode of participation is deemed very important.

22

Philip Pettit stresses a related point when putting forward his ideal of a

contestatory democracy: it may well be that “the original decision-makers in the

legislature or administration had the incentive and the opportunity to ignore the

avowable, perceived interests of a certain minority. But it is unlikely that the

reviewing agency will have the same opportunity and the same

incentive” (Pettit, 1999: 181). The implication here is that the judicial process

opens a channel of contestation for people who are otherwise denied an

opportunity to have their voice heard.

Courts may decide to review evidence from a variety of groups,

organizations or associations who each claim to represent individuals affected by

the judicial decision. This is a way to broaden participation in the judicial

process through “wide publ ic consultation” or “publ ic interest

intervention” (Syrett, 2011, 2013). This type of intervention may bring further

benefits, including the benefit of “listening” to alternative points of view. Finally,

courts may promote broad societal debate through exposing allocative choices

and other policy measures to wider public scrutiny, along the way facilitating a

process of “social learning” (Syrett, 2011). Needless to say, actual judicial

systems may require substantial reform for the courts to effectively grant an

23

additional voice to the people, but this requires building on rather than ignoring

the potential of the judiciary. 23

!Conclusion

!Courts play a key role in deciding on public health controversies, but the

legitimacy of judicial intervention itself remains highly controversial. In this

article I suggest that we need to carefully distinguish between different reasons

for persistent disagreement in the domain of public health. I argue that factual

disagreements constitute a separate class of conflicts. Adjudicating between

public health controversies rooted in factual disagreements allows us to

investigate more closely the epistemic capacities of the judicial process. While

critics typically point out the lack of appropriate expertise of judges – in

particular with respect to health and public health – we should not move too

fast in concluding from this a generalized competence problem. The article

concludes by outlining four different reasons why we should give due

consideration to the role courts can play when “taking facts seriously” in public

health.

24

Roberto Gargarella, for instance, argues we need to distinguish four key stages in the judicial 23

process: “the ability of groups whose rights are violated to articulate their claims and voice them in the legal system; the responsiveness of the courts at various levels to social rights claims once voiced; the capacity of judges to respond to claims – that is, their ability to find adequate means to give effect to social rights; and whether the social rights judgments that are handed down are authoritative, in the sense that they are accepted, complied with and implemented through legislation and executive action” (Gargarella, 2006: 263).

!Bibliography

Bateup, Christine (2005). ‘The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue’. Brooklyn Law Review. 71: 1109-1120.

Bateup, Christine (2009). ‘Reassessing the Dialogic Possibilities of Weak-Form Bills of Rights’. Hastings International and Comparative Law Review, 32(2): 529-599.

Bellamy, R. (2007). Political Constitutionalism. Cambridge: Cambridge University Press.

Bryden, P. (1987). ‘Public Interest Interventions in the Courts’. Canadian Bar Review, 66: 490-509.

Cross, F. (2000). ‘The Error of Positive Rights’. UCLA Law Review 48: 857-924. Daniels, N. and J. Sabin. (2008). Setting Limits Fairly. New York: Oxford

University Press, 2nd ed. DeStefano F. (2007). ‘Vaccines and autism: evidence does not support a causal

association’. Clinical Pharmacology and Therapeutics, 82(6): 756-759. Didcott, J. (1988). ‘Practical Workings of a Bill of Rights’, in J. Van der

Westhuizen y H. Viljoen (eds.) A Bill of Rights for South Africa. Durban: Buttersworth.

Dixon, Rosalind (2007). ‘Creating Dialogue About Socioeconomic Rights: Strong-form Versus Weak-form Judicial Review Revisited’. International Journal of Constitutional Law, 5(3): 391-418.

Doja A. and W. Roberts (2006). ‘Immunizations and autism: a review of the literature’. Canadian Journal Neurological Science, 33(4): 341-346.

Posner, R. (1993). ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’. Supreme Court Economic Review, 3: 1-41.

Epstein, L., W. Landes and R. Posner (2013). The Behavior of Federal Judges. A Theoretical and Empirical Study of Rational Choice. Harvard: Harvard University Press.

Fuller, L. (1978). ‘The Forms and Limits of Adjudication’. Harvard Law Review, 92(2): 353-409.

Gargarella, R. (2006). ‘Theories of Democracy, the Judiciary and Social Rights’, in R. Gargarella, P. Domingo, y T. Roux (eds.) Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? London: Ashgate, pp. 13-34.

Goldman, A. ‘Experts: Which Ones Should You Trust?’ Philosophy and Phenomenological Research, LXIII(1): 85-110.

25

Goodin. R. (2005). Reflecting Democracy. Oxford: Oxford University Press. Holland, S. (2007). Public Health Ethics. Cambridge: Polity Press. Fuller, L. (1978). ‘The Forms and Limits of Adjudication’. Harvard Law Review,

92(2): 353-409. Harper S., N. King, et al. (2010). ‘Implicit Value Judgments in the Measurement

of Health Inequalities’. The Milbank Memorial Quarterly, 88(1): 4-29. Hirschl, R. (2004). Towards Juristocracy: The Origins and Consequences of the

New Constitutionalism. Cambridge, MA: Harvard University Press. Horowitz, D. (1977). The Courts and Social Policy. Washington: The Brooking

Institution. Howitz, J. (20110. The Philosophy of Evidence-Based Medicine. Oxford: Wiley-

Blackwell. King, J. (2008). ‘The Pervasiveness of Polycentricity’. Public Law, 101-124. King, J. (2012). Judging Social Rights. Cambridge: Cambridge University Press. Lord Woolf (2001). ‘Are the Courts Excessively Deferential to the Medical

Profession?’ Medical Law Review, 9: 1-16. Mansbridge, J. (2003). ‘Rethinking Representation’. American Political Science

Review, 97(4): 515-528. Mansbridge, J. (2009). ‘A “Selection Model” of Political Representation’. The

Journal of Political Philosophy, 17(4): 369–398. McMahon, C. (2009). Reasonable Disagreements. A Theory of Political Morality.

Cambridge: Cambridge University Press. Mitton, C., M. McMahon, S. Morgan, and J. Gibson (2006). ‘Centralized drug

review processes: are they fair?’ Social Science and Medicine, 63: 200-211. Opel, D. et al. (2014). ‘A 6-Month-Old with Vaccine-Hesitant Parents’.

Pediatrics, 133(3): 526-530. Pettit, P. (1999). ‘Republican freedom and contestatory democratization’, in I.

Shapiro and C. Hacker-Cordon (eds.) Democracy’s Value. Cambridge : Cambridge University Press, pp. 163-190.

Pettit, P. (2012). On the People’s Terms: A Republican Theory and Model of Democracy. Cambridge: Cambridge University Press

Rawls, J. (1971). A Theory of Justice. Cambridge: The Belknap Press of Harvard University Press.

Rawls, J. (1989). ‘The domain of the Political and Overlapping Consensus’. New York University Law Review, 64(2): 233-255.

Rawls, J. (1993). Political Liberalism. New York: Columbia University Press. S imon , H . (1991) . "Bounded Rat iona l i ty and Organ i za t i ona l

Learning". Organization Science, 2(1): 125–134.

26

Stewart, A. (2009). ‘When vaccine injury claims go to court’. The New England Journal of Medicine, 360(11): 2498-2500.

Sturm, S. (1991). ‘A Normative Theory of Public Law Remedies’. Georgetown Law Journal, 79: 1355-1446.

Syrett, K. (2004). ‘Impotence or Importance? Judicial Review in an Era of Explicit NHS Rationing’. The Modern Law Review, 67(2): 289-304.

Syrett, K. (2008). ‘NICE and judicial review: enforcing “Accountability for Reasonableness” through the courts?’ Medical Law Review, 16: 127.

Syrett, K. (2011). ‘Health Technology Appraisal and the Courts: Accountability for Reasonableness and the Judicial Model of Procedural Justice’. Health Economics, Policy and Law, 6: 469-488.

Syrett, K. (2013). ‘Courts expertise and resource allocation: is there a judicial “legitimacy problem”?’ Public Health Ethics Advance Access published December 5, 2013, doi:10.1093/phe/pht040.

Twinning, W. (2005). Analysis of Evidence. 2nd edition, with T. Anderson and D. Schum. Cambridge: Cambridge University Press.

Twinning, W. (2006).  Rethinking Evidence: Exploratory Essays. Cambridge University Press.

Valentini, L. (2013). ‘Justice, Disagreement and Democracy’. British Journal of Political Science, 43(1): 177-199.

Waldron, J. (1998). ‘Judicial Review and the Conditions of Democracy’. Journal of Political Philosophy, 6(4): 335-355.

Waldron, J. (1999). Law and Disagreement. Oxford: Oxford University Press. Waldron, J. (2006). ‘The Core of the Case against Judicial Review’. The Yale

Law Journal, 115(6): 1346-1406.

27