Scott Burris

Prepared for

Tsinghua Law School-CDC Roundtable Discussion

“Possible Institutional Structure of Chinese Health Law”

October 26, 2007

"Health Law" is a field of legal research and training commonly understood in the United States to encompass public health,  health care,  food and drug safety, bioethics, and occupational safety and health.  Law is an importan component of health practice, regulating the financing and delivery of health care services, the development and distribution of pharmaceutical or other health-related products, and the activities a government undertakes to promote health and prevent illness. Health care and public health systems function best when a strong legal infrastructure exists to define the roles and authorities of health product manufacturers, health service providers, health consumers,and officials addressing health needs. An important component of a nation's health law infrastructure is the capacity to teach, train, conduct research, and provide policy-advising services in health law--in other words, the capacity to provide legal expertise and legal experts on health issues.

In the US, health law as a field was not derived from any general theory of jurisprudence or legal pedagogy. Rather, it emerged in response to social developments, in recognition of the important social questions posed by health and the associated issues of regulation.  We have health care lawyers because our health care industry produces something on the order of 15 percent of our gross domestic product; because we have tens of thousands of malpractice cases every year; because medicine is a highly regulated industry.  We have public health law today most directly because of the HIV epidemic, but also because of the important role of law in preventing – and sometimes causing – harms to the population.  And so it goes with each area.

We have more than a dozen large health law centers at American law schools, and most medical and public health schools have some lawyers in teaching and research roles.  There are four or five major case books to serve the students who can take health law classes at, I presume, virtually every law school.  A national commission on public health education, on which I served, has recommended that all public health students receive training in law and policy as a matter of course.   Some dozen law journals focus on health law.  And all this excludes, for historical reasons, environmental law, which is really a closely related field if not a proper part of health law.

In spite of, or perhaps because of, this diversity, there are still American scholars who  argue that there really is no such thing as “health law.”  As indeed some Chinese academics have said to me in the past, “we have civil law, criminal law, administrative law – where does health law belong?”  In fact, it is a field without clear or coherent doctrinal boundaries.  It is all these things.  What unifies the field are, in my view, two characteristics:

1)      Focus on legal problems of health

2)      Interdisciplinarity – health law is inherently a collaboration between lawyers and health scientists, practitioners and policy-makers.

The interdisciplinary nature of health law has more than one important dimension.  There is a dimension of comprehension: health involves complex technologies that a legal advisor must understand in order to properly identify and address the legal issues. There is also a dimension of culture: medicine, public health and biotechnology are all science-based fields; increasingly, the best health law in the US academy adopts, for at least some purposes, an empirical approach to the study of law, its utility and effects.  If, for example, lawyers propose using laws to enforce greater seat-belt use, they also help conduct, or at least advocate, for research to ascertain whether law is having its effect.  Finally, the instrumental and scientific orientation means that health law is, in part, a study of how legal institutions and legal actors behave – how they implement the law – and how people targeted by the law react. Empirical analysis of the implementation of policy is an essential element of public health law research.

It has established itself as a field in the US by providing valuable knowledge to health professionals, the public and the government. Sooner or later, most activities in health will result in a contract, a dispute, a regulation, or a statute. Health law has become and remains a vibrant field in American law schools because it is needed by the society – and that is why I believe it is inevitable that the enterprise you launch here today will succeed.

Law schools are the training institutions for future legal experts. Law schools can work with schools of public health, medicine, and business, or with government ministries, to provide necessary legal training for non-lawyers and train lawyers who will go on to teach in other professional settings.  Thus, law schools play a crucial catalyzing role in the development of health law.

The law school within a major research university such as Tsinghua has a special advantage. An interdisciplinary approach with the goal of preparing specialists who understand both law and substantive health issues is essential to creating the capacity to accurately evaluate how law affects health issues.

If I were to offer advice from the American experience, it would be to begin exactly as you have,  by:

1) identifying and supporting current law teachers willing to develop courses and research agendas in health law; and

2) developing and interdisciplinary center providing health law research and teaching in medical, public health, and law schools. Such a center would draw faculty and students from law, medical, and public health schools to ensure that students are concurrently educated in substantive health issues as well as the laws and regulations that affect and shape these issues. The mission of these centers would be to develop specialists in health law who are capable of conducting legal research on health issues, of guiding health workers and health-related industries in appropriately following health laws and regulations, of advising the government in the development of appropriate and effective health laws, and of providing a source of expertise and knowledge in health law to interested parties.

In due course, scholars and researchers will develop textbooks on health law in order to provide necessary legal training for non-lawyers and train lawyers who will go on to teach in other professional settings. In the American experience, these texts did not precede but developed out of the teaching of health law classes.  For a period of time, instructors prepared their own materials for students, testing and refining as they gained experience in defining and teaching the topic.

It is worth noting, too, that health law has played a role in changing how law is taught in the US.  Precisely because it was a synthetic, problem-based and interdisciplinary field, it did not lend itself simply to the Socratic, case method of teaching.  Many teachers wanted to teach their law students more about health care or epidemiology, wanted them to work experientially to solve problems, or to learn the hard lessons of reading detailed regulations. So, too, here in China, it may be that the new field of health law is also an opportunity for new pedagogy.

Finally, a word on development strategy.  Conceptual work to develop a formal understanding of health law within Chinese jurisprudence should not be taken as the first task.  Rather, experience in US suggests that a process of simultaneous applied legal research and theory building will be the most productive way to promote the field.

It has been more than five years since I first had the chance to spend time living and teaching in China.  My friend Wang Ruotao was determined to promote health law as a field in China, and it was my pleasure to help him.  Dean Wang Chenguang was very supportive, and within a couple of years we had organized a roundtable on health law in Philadelphia.  As always, my Chinese “students” were all a professor could hope for:  attentive and hard working, but independent and critically minded.  Chinese health law will not be a mere copy of the American form, but will develop according to the norms, needs and culture of China. I cannot predict what the field will look like in China, but I will prophesy that today will be remembered as an historical moment in the development of the field, and one that will be celebrated through years of fruitful collaboration between Chinese and American scholars.