ABSTRACT
In recent years, a number of prominent scholars have touted the use of litigation as an effective tool for making public health policy. Proponents of using litigation as a public health strategy assert that courts have an essential role to play alongside legislatures and administrative agencies in making public policy. This chapter argues that reliance on constitutional ideals when analyzing the proper role of civil litigation in the policymaking process is misplaced. It outlines the institutional arguments in favor of and against public health litigation. The chapter analyzes how these arguments arise out of competing ideals of constitutional law and argues against reliance on any such constitutional law ideal in addressing the policy-making role of courts in the context of civil litigation. It suggests that the institutional arguments of both sides require further theoretical development and better empirical support. Finally, the chapter concludes with some thoughts about the increasingly prominent role that institutional arguments have played in the debate.
