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Hastings Law Journal

Abstract

Historians are currently debating the role of regulation in eighteenth- and nineteenth century American public policy. Among the issues involved in this debate are the prevalence of regulation and the emerging distinction between private and public law. One historian, Morton Horwitz, has argued that the separation between private and public law, which resulted in less government regulation of commercial activities occurred early in the nineteenth century. In contrast, William Novak argues that regulation was pervasive in eighteenth- and nineteenth-century America, and that the split between private and public law did not occur until the 1870's.

This not addresses this historiographical debate by examining public health and medical regulation. This Note demonstrates that while public health was closely regulated by legislative bodies, medicine and medical practitioners were primarily controlled by the market and social norms. This note suggests that the lack of medical regulation was due to a profound difference between public health issues, which affected the entire community, and issues surrounding the private or individual use of medicine. In addition, the Note suggests that as far as public health and medicine were concerned, a split between public and private law occurred as early as the colonial period.

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