law and health promotion: the case of increasing physical activity professor frank s. alexander...

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


I.I. The Premises and the Central CasesThe Premises and the Central Cases


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?


Advocating Building Codes and Floor Area Ratios


Where do you go?


[F.A.R: ratio of building square footage to lot size, with implications for open spaces and density]




Where do you go?


Minimums?

Maximums?


Layers of AuthorityLayers of Authority

Federal Constitution

Federal Legislation

State Constitution

State Legislation

Municipal Governance

Private Actions


Nature of SovereigntyNature of Sovereignty

Hierarchical Federal

State

Individual

Dual

Federal State

Individuals

Shared

Federal State

Individual


Federal PowersFederal Powers

General Welfare Clause; Commerce Clause; Necessary & Proper Clause; Supremacy Clause


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


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).


State and Local StructuresState and Local Structures

Constitution Legislature People

Counties

Municipalities

Special Authorities Special Districts


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 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


Private Land Use RegulationPrivate Land Use Regulation Restrictive Covenants Common Interest Communities (subdivisions,

condos, co-ops) restrictions and regulations Easements Landlord-Tenant Law


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)


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


Where do you go?



Advocating Building Codes and Floor Area Ratios


Where do you go?


[F.A.R: ratio of building square footage to lot size, with implications for open spaces and density]




Where do you go?


Minimums?

Maximums?


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


law and health promotion: the case of increasing physical activity professor frank s. alexander...

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