Abstract

“One man’s ceiling is another man’s floor”Paul SimonThe words of Paul Simon capture the essence of what the courts are called upon to deal with when adjudicating matters of health. Wealthier and healthier neighbors living in the upstairs apartment are, all things being equal, not overly interested in raising the floor of their apartment in order to create more space for those in the apartment below. The floor is tangible, measurable and movable, and thus a subject where science can contribute much. However, where to locate the floor is a matter of values and thus largely in the realm of politics.Resorting to the courts in matters of public policy can be seen as the residual of the inability of the remaining two branches of government, the legislature and the executive, to succeed in allocating resources and regulating the system. When the combination of science and politics falters, enter the judiciary.