Law and Health Promotion: The Case of Law and Health Promotion: The Case of Increasing Physical ActivityIncreasing Physical Activity
Professor Frank S. AlexanderProfessor Frank S. AlexanderEmory Law SchoolEmory Law School
Frank S. Alexander 2009Frank S. Alexander 2009
NCCDPHP, OSI, OGCNCCDPHP, OSI, OGCCenters for Disease Control and PreventionCenters for Disease Control and Prevention
Atlanta, GA Atlanta, GA May 12, 2009May 12, 2009
The Context for Legal Authority and Decision-Making
I.I. The Premises and the Central CasesThe Premises and the Central Cases
II. The Allocation of Federal, State II. The Allocation of Federal, State and Local Powersand Local Powers
III. Application to the Central CasesIII. Application to the Central Cases
The Context for Legal Authority and Decision-Making
I.I. The Premises and the Central CasesThe Premises and the Central Cases
The Context for Legal Authority and Decision-Making
Assuming health correlations
Focusing on land use and building design
Excluding emergency authority
Bike Paths and Pedestrian Walkways
Building Codes and Floor Area Ratios
Parking Space Requirements
Advocating Bike Paths and Pedestrian Walkways
To whom would you speak?
Where do you go?
Who can effectuate such a change?
The Context for Legal Authority and Decision-Making
Advocating Building Codes and Floor Area Ratios
To whom would you speak?
Where do you go?
Who can effectuate such a change?
[F.A.R: ratio of building square footage to lot size, with implications for open spaces and density]
The Context for Legal Authority and Decision-Making
Parking Space Requirements
To whom would you speak?
Where do you go?
Who can effectuate such a change?
Minimums?
Maximums?
The Context for Legal Authority and Decision-Making
Layers of AuthorityLayers of Authority
Federal Constitution
Federal Legislation
State Constitution
State Legislation
Municipal Governance
Private Actions
The Context for Legal Authority and Decision-Making
Nature of SovereigntyNature of Sovereignty
Hierarchical Federal
State
Individual
Dual
Federal State
Individuals
Shared
Federal State
Individual
The Context for Legal Authority and Decision-Making
Federal PowersFederal Powers
General Welfare Clause; Commerce Clause; Necessary & Proper Clause; Supremacy Clause
The Context for Legal Authority and Decision-Making
States Rights States Rights
10th Amendment: “The powers not delegated to the United States by the Constitution nor prohibited by it to the states, are reserved to the states, respectively, or to the people.”
Individual Rights Individual Rights
10th Amendment and Bill of Rights
Key Conceptual Doctrines onKey Conceptual Doctrines onFederal – State Allocation of AuthorityFederal – State Allocation of Authority
Preemption and Supremacy The Spending Power
The Context for Legal Authority and Decision-Making
State Constitutional LawState Constitutional Law Constitution as limit – plenary legislative authority. Can prohibit things that the federal constitution
permits (death penalty). Can create rights not found in federal constitution
(education). Can be construed by state supreme court in any
manner it desires, so long as not in conflict with federal constitution.
Can apply equal protection and due process differently, so long as not contrary to federal constitution (more than minimum rationality).
The Context for Legal Authority and Decision-Making
State and Local StructuresState and Local Structures
Constitution Legislature People
Counties
Municipalities
Special Authorities Special Districts
The Context for Legal Authority and Decision-Making
Key Conceptual Doctrines onKey Conceptual Doctrines onState – Local Allocation of AuthorityState – Local Allocation of Authority
Home Rule: Constitutional and Statutory State Enabling Statutes State Preemption of Local Authority
The Context for Legal Authority and Decision-Making
The Range of AnalysisThe Range of Analysis
Exclusive Constitutional Home Rule: rarely found; applicable usually to specific actions (geographic boundaries); no legislative override
Strong Constitutional Home Rule: direct grant of authority to local governments; strong presumption in favor of local government actions
Weak Constitutional Home Rule: narrow interpretation of authority conveyed; general law overrides
Legislative Home Rule: final authority rests in legislature; issues are presumption and preemption
The Context for Legal Authority and Decision-Making
Private Land Use RegulationPrivate Land Use Regulation Restrictive Covenants Common Interest Communities (subdivisions,
condos, co-ops) restrictions and regulations Easements Landlord-Tenant Law
The Context for Legal Authority and Decision-Making
Public Land Use RegulationPublic Land Use Regulation Police Power: General health, safety, welfare Public Nuisances Zoning Eminent Domain
Eminent Domain Zoning (Police Power)
Nuisance (Police Power)
The Context for Legal Authority and Decision-Making
Key Variables:
Permanent Physical Occupation – Eminent Domain
Specific Harmful Activity being stopped – Police Power (Nuisance per se)
Comprehensive or targeted (geographically; by subject matter)
Prospectivity and Retroactivity
Plausibility of Legislative determination of “general welfare”
Advocating Bike Paths and Pedestrian Walkways
To whom would you speak?
Where do you go?
Who can effectuate such a change?
The Context for Legal Authority and Decision-Making
Advocating Building Codes and Floor Area Ratios
To whom would you speak?
Where do you go?
Who can effectuate such a change?
[F.A.R: ratio of building square footage to lot size, with implications for open spaces and density]
The Context for Legal Authority and Decision-Making
Parking Space Requirements
To whom would you speak?
Where do you go?
Who can effectuate such a change?
Minimums?
Maximums?
The Context for Legal Authority and Decision-Making
Law and Health Promotion: The Case of Law and Health Promotion: The Case of Increasing Physical ActivityIncreasing Physical Activity
Professor Frank S. AlexanderProfessor Frank S. AlexanderEmory Law SchoolEmory Law School
Frank S. Alexander 2009Frank S. Alexander 2009
NCCDPHP, OSI, OGCNCCDPHP, OSI, OGCCenter for Disease Control and PreventionCenter for Disease Control and Prevention
Atlanta, GA Atlanta, GA May 12, 2009May 12, 2009
The Context for Legal Authority and Decision-Making
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