externalities change in form, intensity, and scale.”108 These mechanisms,
while complex, could provide a means to achieve more complementary
public health governance as agencies and other interested parties coordinate
and interact to share ideas and solve health problems.
Finally, jurisdictional redundancy in the courts allows for strategic choice
in public health impact litigation. Public health advocates have had a mixed
record of success using the courts to advance health. While courts have
traditionally given great deference to public health powers,109 and have
served as a venue for successful challenges to corporate practices that
imperiled health and safety,110 industry challenges to overturn public health
regulations increasingly limit the governments’ ability to protect public
health.111 Nevertheless, public health advocates and government actors will
continue to use the concurrent structures of the judiciary to promote public
C. Promoting Accountability and Transparency
Complementarity within public health laws and systems can promote
accountability and transparency across participants in public health
governance. This facet of overlapping systems fosters the correction of errors
through sequential redundancy.112 Sequential redundancy in the form of
federalism and judicial review provides robust opportunities for
accountability and allows mistakes to be corrected through redundant
mechanisms.113 As a result, legal precedents and reform initiatives that limit
judicial oversight or preempt state and local activity, as has occurred in
relation to tobacco and firearms, may reduce accountability.114
108. Ruhl & Salzman, supra note 100, at 106–07.
109. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 39 (1905) (upholding state police
powers to compulsorily vaccinate for smallpox).
110. Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131, 1134 (2011) (holding that
lawsuits are not pre-empted when manufacturers have choice of seatbelt style to install for rear
111. See, e.g., R.J. Reynolds v. FDA, 845 F. Supp. 2d 266, 268 ( D. D. C. 2012)
(overturning FDA cigarette warning labels as a violation of the First Amendment right of free
112. Cover, supra note 35, at 647–49.
113. See, e.g., Aziz Z. Huq, Forum Choice for Terrorism Suspects, 61 DUKE L.J. 1415,
1461, 1468 (2012) (discussing how appellate courts may exonerate the wrongfully convicted
114. See, e.g., Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 126 (2000) (finding FDA’s jurisdiction to regulate tobacco limited, later overturned by
federal regulations); Protection of Lawful Commerce in Arms Act (2005), 15 U.S. C. §§ 7901–
7903 (2013) (protecting firearms sellers and manufacturers from civil lawsuits seeking
“damages, injunctive, or other relief resulting from the misuse of their products by others”);
see also, Erwin Chemerinsky, Empowering States: The Need to Limit Federal Preemption, 33