Using the Public Nuisance Doctrine to Combat Antibiotic Resistance

Using the Public Nuisance Doctrine to Combat Antibiotic Resistance

68 Am. U. L. Rev. 339 (2018). 

*  Senior Staff Member, American University Law Review; Volume 68; J.D. Candidate, May 2019, American University Washington College of Law; B.A., Public Policy, 2015, The College of William & Mary.  I would like to thank Professor Lindsay Wiley, an exceptional human, professor, and faculty advisor, whose guidance transformed my vague topic idea into the kind of niche commentary befitting a journal contribution.  I am deeply grateful to my Law Review colleagues for their tremendous help in preparing this piece for publication, and to my family and friends for their willingness to continue liking me in spite of my long, law-school-induced absences.  Above all, I thank my husband, Bobby Kogan, who has provided me with love and support enough to warrant at least 1,000 more footnote acknowledgements.

Antibiotics are vital for modern medicine.  Without them, people could die from mere scratches that become infected, and important medical procedures such as caesarean sections, cancer treatments, hip replacements, and organ transplants would not be feasible.  Unfortunately, though, bacteria are becoming increasingly more resistant to antibiotics, posing one of the most serious health threats in the United States and abroad.  In fact, a single strain of bacteria, methicillin-resistant S. aureus (MRSA), kills more Americans annually “than emphysema, HIV/AIDS, Parkinson’s disease, and homicide combined.”  The subtherapeutic use of antibiotics in agricultural settings contributes to the rise of antibiotic resistance, while not providing enough benefits to outweigh the harms.  Despite this, the U.S. government has failed to adequately address antibiotic misuse. 

The public nuisance doctrine provides a novel strategy for combating the improper use of antibiotics in livestock.  A public nuisance is based on an unreasonable interference with a right common to the public, which has traditionally included public health.  Improper subtherapeutic antibiotic use is a threat to public health because it increases the risk and incidence of antibiotic-resistant infections and threatens continued availability of effective antibiotics.  Unlike in the past, the relationship between subtherapeutic antibiotic use and increased antimicrobial resistance is now undeniable, and viable alternatives exist for producers to keep their livestock healthy.  Although some have bemoaned the public nuisance doctrine as an “impenetrable jungle” and a “wilderness of law,” it is capable of “adapt[ing] to changing scientific and factual circumstances” and providing an alternative avenue for protecting the public.