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Standardizing States of Emergency: Fragmented Legitimacy of Model Public Health Lawmaking

Published online by Cambridge University Press:  31 August 2021

Arielle W. Tolman
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Abstract

The promulgation of model laws—exemplary statutes that states can voluntarily choose to adopt—is a prominent strategy that reformers in public health agencies, the legal academy, and non governmental organizations use to improve US public health law and make it more uniform. This article applies the science and technology studies literature on standardization to the process of model lawmaking to analyze how developers negotiate between alternative forms of expertise and utilize different drafting processes to secure the techno-political legitimacy of their model statutes. Drawing on archival records and interviews with thirty-four experts involved in the development of four model public health laws produced between 1999 and 2007, I show how developers work to satisfy multiple, and, at times, competing, audiences. I observe that developers leveraged forms of legal expertise to secure their model laws’ technical legitimacy and emphasized their objectivity, representativeness, and flexibility to promote their political legitimacy. Comparing the four model laws across several indicia of legitimacy, I find that the developers experienced varying degrees of success. This study contributes to the socio legal scholarship on model laws by revealing how they are able to achieve legitimacy, albeit fragmented, even in the context of scientific uncertainty.

Type
Articles
Information
Law & Social Inquiry , Volume 47 , Issue 1 , February 2022 , pp. 261 - 291
Copyright
© The Author(s), 2021. Published by Cambridge University Press on behalf of American Bar Foundation

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Footnotes

This research was generously supported by the Mellon Foundation Interdisciplinary Science in Human Culture Cluster at Northwestern University and the American Bar Foundation. The Northwestern University Institutional Review Board reviewed the study protocol and deemed it exempt. This article benefited from the superb guidance and incisive feedback of Carol Heimer, Wendy Espeland, Steve Epstein, Jane Pryma, and four anonymous reviewers at Law & Social Inquiry. In addition, I must thank Wendy Griswold, Alka Menon, Hannah Wohl, Meghan Morris, Nate Ela, Jessica Lopez-Espino, Margot Moinester, Mary Ellen Stitt, Evelyn Atkinson, Bob Nelson, Laura Beth Nielsen, Jothie Rajah, as well as the members of the sociology PhD program’s second-year paper seminar, the Science in Human Culture workshop at Northwestern University, the JD/PhD seminar at Northwestern Pritzker School of Law, and the doctoral fellows working group at the American Bar Foundation, who all provided invaluable comments on earlier drafts of this article. Finally, this research would not have been possible without the generous help of all of the interview participants of this study, several of whom went above and beyond to share archival documents with me. All errors and omissions are my own.

References

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