In the last few decades, there has been a broad effort to strengthen the use of evidence-based law as a tool for the promotion of population health. There are two major fronts in the campaign, each essential, and both largely successful, though much work also remains. One aims to increase the quantity and quality of empirical research on the health effects of existing policy choices. The other focuses on how best to get such knowledge into action in the form of policy and practice. In a new PHLR Theory Practice and Evidence paper, Evan Anderson and I draw attention to a third front: the formulation of new legal interventions. Though policy experimentation is inevitable, it has been the subject of relatively little systematic study. For proponents of evidence-based public health law, policy experimentation presents a paradox: if a legal intervention is truly innovative, there will not yet be direct evidence of its impact. Yet direct evidence from policy evaluations is never the only source of research knowledge relevant to a policy decision, even under conditions of novelty and uncertainty. And few interventions are truly new in a broad sense; in most instances, similarly designed laws have been deployed before, just not for the same specific purpose.
We use the case of youth sports concussion and Washington’s Lystedt Law as a case study of how even new legal strategies dealing with new problems can be built on evidence. We show how evidence about the problem lawmakers are addressing, combined with widely-used analytic tools like the Haddon Matrix and an understanding of the generic mechanisms through which law influences behavior and outcomes, can bring existing research knowledge into the crafting of even very innovative legal interventions for newly perceived problems. While we don’t expect the policy sausage factory to suddenly start looking like a research lab, there’s no question that legislators typically care about getting policy right and want evidence. The point of our paper is to get the research world to think about ways we can help even when no one has yet studied the specific law at issue.
Thank you to Evan, Scott, and the PHLR team for yet another framework and “nudge” for further PHLR. One question: what challenges might researchers expect to face in negotiating the demands of maintaining “objectivity” and avoiding charges of (undue) activism if/when we engage with policymakers in the formulation of legal interventions, in advance of a (direct) evidence base?
Stephanie, this is a welcome question and one that implicates your work on public attitudes about law and public health. There is a narrow, technical answer, that has to do with the rules for lobbying with government or foundation research funds. I won’t get into that, though it is important and contested these days. I think the larger answer is that as researchers we need to be on the vanguard of affirming through our behavior two important norms: that OF COURSE we use law to protect public health, and OF COURSE it makes sense to use law in an effective and efficient way. In the same way that lawyers who are drafting legislation are performing a professional service for legislators who ultimately pass it, researchers who inject evidence and expertise into decisionmaking are performing a right and proper professional role. Of course, this does depend upon us truly and carefully accepting an ethical responsibility to be honest brokers of valid information, and not partisans hiding behind a mask of scientific objectivity. That may be the most important, and the hardest, part of all.