Batlan on Law in the Time of Cholera

Law in the Time of Cholera: Disease, State Power, and Quarantines Past and Future has just been posted by Felice Batlan, Illinois Institute of Technology - Chicago-Kent College of Law.  It appeared in the Temple Law Review, Vol. 80, p. 53, 2007.  Here's the abstract:

Throughout the course of the nineteenth and twentieth century, the United States faced multiple epidemics of deadly diseases. In the face of such epidemics and often in moments of panic, governments instituted significant quarantines and like the war against terror, public health officials understood quarantines as crucial to protecting the well-being of the nation. Such quarantines most harshly affected those who stood on the margins of society, often poor immigrants and non-whites. Deadly epidemics raise the question of how we respond as a nation to fear and how much liberty we are willing to sacrifice for an abstract concept of the general welfare of the nation. It also provokes the question of precisely whose liberty is at stake and how we define who is to be included or excluded from the community that deserves protection.

This article examines two episodes of threatened epidemics that occurred in 1892 in New York City. Both of these potential epidemics, one involving typhus and the other cholera, resulted in the quarantine of thousands of people, the large majority of whom were poor immigrants, primarily Italians and Russian Jews. The article interrogates the discourse surrounding these epidemics and the roles that local, state, and federal governments played. It also analyzes how law ultimately failed to protect some of the most vulnerable people - those who were imagined to have the capacity to pollute the country and the body politic. The article then goes on to examine a number of other large scale quarantines that occurred at the turn of the century and the emerging jurisprudence that they produced.