Expert Judgment

Although evidence-based medicine scales rank “expert opinion” as the weakest form of evidence to base clinical standards on (Daramola and Rhee Reference Daramola and Rhee2011, 46–47), many model law developers embraced their group’s reliance on expert judgment. Some developers, especially state public health officers and private attorneys, explained that it allowed the drafters to gain insight from public health practitioners on how well a given provision would work “on the ground” (Interview 96; Interview 111). Others framed expert judgment as a way to garner knowledge about empirically valid evidence-based practices. For example, one Turning Point Act drafter, a public health legal scholar, said that the development process was “really about asking and working with public health scientists and public health officials. Literally saying to them, straight up, ‘what works?’ And not based on your guesswork. ‘What works empirically?’” (Interview 36).

Whereas expert judgment is not as highly valued in medical standardization efforts, it fit more easily for traditional legal audiences, especially legislators. After all, “even in highly technical areas,” legislators do not often need high levels of scientific evidence to ground their actions (see Jasanoff Reference Jasanoff2005, S56). This is also true in public health law. For example, one developer, who was also a state legislator, provided an anecdote to describe the haphazard way that he experienced scientific evidence being incorporated into routine legislation:

As this quotation exemplifies, whether or not a public health law is based on the strongest scientific evidence may not matter much for its adoption. For some developers, stories like this suggest that if a single pediatrician’s opinion could decide the fate of vaccination requirements for an entire state’s population, the evidentiary bar for model laws is not so high.

Some drafters, however, hinted at the limitations of the use of expert opinion in the crafting of standards. As one public health legal scholar involved in the development of multiple model laws reflected,

Others suggested that, although expert judgment cannot be considered truly scientific, it was all that was possible given the lack of empirical evidence at the time. For example, one federal public health official with a social science background said that the model law he worked on was not “based on what you and I would call scientific evidence” because “science did not exist at the time.” He went on to describe a “spectrum of evidence” with anecdotal evidence, on one end, to “systematic reviews of multiple random controlled trials,” on the other, emphasizing that the model law used evidence from “the former end” (Interview 87).

Drafters who straddled multiple epistemic worlds, such as medicine and law or epidemiology and law, generally had more concerns about the lack of empirical evidence used in the model law development. One Emergency Volunteers Act developer, a health law scholar with a background in medicine, strongly criticized the drafting process on multiple fronts. He said: “Model law processes—it’s all opinion. These guys are just talking out their behinds. And at least in health care, you’ve got to justify every single statement, every single contention, every single claimed fact has to be substantively analyzed and backed up by a citation. In law, it’s all opinion” (Interview 25). Notably, this participant found this reliance on expert judgment instead of explicit decision criteria to be generalizable to lawmaking and legal standardization more broadly. Another public health legal scholar who served as an Emergency Volunteers Act expert observer expressed frustration that empirical data was not mobilized to answer a key question mobilizing that law’s development: how often were out-of-state practitioners actually sued for work they performed in a disaster? She said: “[I]n this case it was all, ‘well, it’s believed that people are concerned’—well that’s not data. That’s opinion. And opinion shouldn’t drive the issue” (Interview 33).

Expert Drafting

While many developers deployed the rhetoric of modernization, scientificity, and expertise when talking about the Privacy Act, the Emergency Powers Act, and the Turning Point Act, the notion that the model law they produced was in any way “scientific” or utilized scientific evidence was flatly rejected by a number of participants involved with the Emergency Volunteers Act—the only one of the four model laws included in this study that was produced by the ULC (see Table 2).Footnote ⁷ How then did the Emergency Volunteers Act developers promote the technical legitimacy of their products? They emphasized their consistently careful, deliberative, and expert drafting of model and uniform statutes, which is another characteristic form of legal expertise. For example, one ULC commissioner, a legal academic, argued that the quality of drafting the ULC does, in part due to its dedicated “Style Committee,” fundamentally sets the organization apart from others that develop model laws:

Another ULC commissioner involved in the development of the Emergency Volunteers Act, who was a private attorney, echoed this sentiment, arguing:

This quotation offers insight into the way the ULC, which is composed of hundreds of commissioners—the vast majority of whom are private attorneys—is able to legitimately draft hundreds of model and uniform laws in diverse substantive areas: commissioners do not require subject-matter expertise to produce legitimate model laws, they need only to be expert at drafting and rely upon outside substantive experts to determine the content of the laws.

Although this emphasis on the quality and importance of expert legislative drafting to reduce legal ambiguity was emphasized most by ULC-affiliated developers, some other drafters echoed this view. As one example, at the 2014 Public Health Law Conference during a presentation on the then-raging Ebola epidemic, a public health legal scholar advised state public health officials concerned about their state laws that they look at the 2001 Emergency Powers Act as it contained “state-of-the-art language.” This phrase—“state-of-the-art language”—captures nicely how drafters often promote the “scientificity” and technical legitimacy of model laws through an emphasis on their high-quality language. In an interview, this developer also emphasized the skill involved in the drafting of model legislation (Interview 36). Like the ULC commissioners, this drafter found the technical drafting of model laws to be an important form of expertise used in legal standardization efforts.

But, as with the use of expert judgment, developers working from other, more interdisciplinary, epistemic backgrounds cast doubt on whether “expert drafting” was sufficient to create technically legitimate model laws. Another public health legal scholar said plainly: “I think the idea that you can take on a problem where you don’t actually have evidence about what the right thing to do is, and just by crafting language you somehow magically come up with a bright idea. You know, that I don’t believe” (Interview 102).

Statutory Data

Another strategy that developers used to promote the laws’ technical legitimacy was to draw on pre-existing state laws as a form of “statutory data.” For example, when asked how evidence or research was incorporated into a model law, one Turning Point Act developer, a state public health official, said that, although they did not draw on epidemiological research, “Georgetown did lots of background research into existing state laws and federal laws” (Interview 111). An Emergency Powers Act drafter, a public health legal scholar, also emphasized the amount of legal research that needed to be done: “We knew that we would benefit by having a small fleet of students do the work because there was a lot of research that needed to be done in all of it to prepare the model law” (Interview 37). What does all this legal research on existing state law do? First, legal research is necessary for determining the legality of different possible provisions. But it appears to do other important work too—namely, it provides a form of “citation.” In the text of the model laws themselves, drafters included citations after each provision—not of empirical studies but, rather, of existing state laws. For example, in the Emergency Powers Act, every provision is linked to a (sometimes lengthy) legislative history. As an illustration, Figure 1 displays the text associated with Article IV: Declaring a State of Public Health Emergency and its accompanying legislative history.

FIGURE 1.

Legislative history as “citation”.

This technique of citing existing law—of using legal texts like statutes and judicial opinions as authoritative—is central to the practice of law, legal pedagogy, and legal scholarship (Mertz Reference Mertz2000); therefore, it is hardly surprising that it would be deployed by a group of legal scholars drafting model legislation. Indeed, the “taken-for-grantedness” and comprehensibility of statutory data for legal audiences, which is what organizational scholars call “cognitive legitimacy” (Suchman Reference Suchman2003, 582–83), may help explain why this strategy was used by model law developers. Moreover, the practice of citing state law also demonstrates deference to state legislatures, a move that, as discussed in greater depth below, may also have served to help secure the political legitimacy of the model statutes as well.

What is interesting is how this form of evidence and citation was not seen in itself as an adequate evidentiary base for some interdisciplinary scholars. Private attorneys and legal scholars, for example, were more likely to emphasize such tactics, as they conformed well to a “legal techne”; external scholars, especially those with training in epidemiology and biomedicine, were less likely to accept the technical legitimacy on that basis—neither expert opinion and expert drafting nor existing state law qualified as “data” in their view. In the next subsection, I examine other strategies used by developers to achieve legitimacy for their model laws that do not rely on their technical or scientific qualities.

Objectivity

Lawrence Busch (Reference Busch2011, 68–69) suggests that the objectivity of a standard might depend on its mechanical, non-subjective development (that is, through a machine) or by virtue of its development by a “community of practitioners,” its reflection of natural processes, or through a consensus by a broad range of stakeholders. Alberto Cambrosio and colleagues (Reference Cambrosio, Peter, Thomas and George2006, 194) claim that the promulgation of biomedical standards such as guidelines and protocols is the effect of a new form of objectivity—“regulatory objectivity”—wherein objectivity is derived from collective forms of expertise combining people and objects connected by specific coordination regimens. Lorraine Daston (Reference Daston1992) also describes the many contemporary usages of the term “objectivity” as well as its historically contingent meaning. She notes that objectivity can refer to the empirical, to the scientific, or to impartiality (597). In the case of the development of these four model public health laws, drafters highlighted the disinterestedness, or impartiality, of the experts involved as a way to ensure their product’s objectivity and, thus, its political legitimacy.

Drafters often emphasized the degree to which the experts involved in the process were “non-ideological” and “nonpartisan.” For example, one ULC commissioner said about the annual meeting: “When we get there you can’t tell whether you’re Democrat, Republican, you have no idea. It’s the most nonpartisan thing you’ve ever seen” (Interview 14). Another developer, a public health legal scholar, who worked on multiple laws spoke about how the public health purposes of the model acts would be automatically undermined by politics: “I’m very disdainful of any projects out there which in a particular political bent or perspective is underlying these provisions. You can’t draft consistent with the public health while being sort of beholden to a political bent or perspective. You’ve got to divorce yourself from that” (Interview 36). Similarly, other developers sought to distance the model public health law projects they worked on from other model laws produced by well-known conservative “ideological” groups like American Legislative Exchange Council (Interview 56; Interview 117).

Representation

At the same time, perhaps somewhat paradoxically, another strategy that developers employed was to highlight the representative nature of the drafting groups as an important and positive attribute of model law development. In other words, while they eschewed the possible political interests of drafting groups in some settings, they embraced it in others. A common sentiment among developers was “the more stakeholders you can get at the table the better” (Interview 96). As a Privacy Act advisor, a state public health official, reflected: “[T]his was pretty broadly constituted—this group” (Interview 149). Members of the Turning Point Act drafting collaborative found the group to be so inclusive and representative that, when pressed, they could often not think of any group that was “left out” of the drafting process (Interview 17; Interview 63). And, yet, comparing the types of experts involved with the Turning Point Act with those involved with the Privacy Act, which was produced just a few years earlier, it is clear that the Turning Point Act collaborative did not necessarily have the broadest possible group of stakeholders involved, for it did not include representatives from civil rights or civil liberties groups (see Table 2). At one early meeting, the collaborative discussed the possible inclusion of organizations such as the American Civil Liberties Union (ACLU), a “conservative counterpart to the ACLU,” and the United Migrant Opportunity Service, but there is no evidence they were ultimately included beyond being part of the wider “Review Group” (Turning Point Public Health Statute Modernization Collaborative 2000).

These tactics align well with the strategies that scholars have described in studies of other standardization organizations. For example, Winton Higgins and Kristina Hallström (Reference Higgins and Kristina2007, 692), in their study of national and international standard-setting organizations, note that the authority of national standards—a form of “soft law”—rested on three linked claims: “that they represented the optimal solution to a recurring technical problem; that they arose as consensus solutions out of an open, representative process; and that compliance with them is in principle voluntary.” Similarly, among the interview participants in this study, those drafters or reviewers who were critical of the model law projects often challenged the process on the grounds that it was too insular, self-selected, and working without broad popular support. For example, one external reviewer of the Emergency Powers Act, a public health law scholar, said:

This characterization contrasts, unsurprisingly, with the account of those more intimately involved in drafting the Emergency Powers Act who stressed that the process of using external expert review was critical to its transparency. For example, one drafter said: “We wanted to contact people who we thought would be critical of what we were doing—so we did that and we wanted the process to be as transparent as we could make it at the same time that we were struggling to get things done quickly” (Interview 37).

Similarly, although drafters of the Emergency Volunteers Act pointed to the ULC’s long-standing process of assembling an extremely broad array of stakeholders (invited to be expert “observers” in the process) (Interview 24; Interview 119), some of both the ULC commissioners and observers felt that the ULC had failed to assemble a group with the necessary experience and expertise in disaster response, medicine, and liability (Interview 25; Interview 118). As one Emergency Volunteers Act observer said, he found the inclusion of a broad group of advisors to be “just window dressing,” where groups such as the Federation of State Medical Boards were invited to participate but then their input was not actually incorporated and they subsequently stopped coming to meetings (Interview 25). Overall, despite claims to representativeness, the make-up of the drafting groups and expert review bodies was one of the most contentious aspects of model law development, generating substantial external, public controversy in the case of the Emergency Powers Act and substantial internal disagreement within the development group in the case of the Emergency Volunteers Act. These cases support the observation that the legitimacy of standards is often tenuous and open to challenge on the basis of how inclusive or representative the standard-setting process actually was.

Flexibility

Another way that model public health law developers sought to secure political legitimacy was to demonstrate deference to the states’ normal legislative process and the constraints of federalism through the provision of “alternatives” that built flexibility into model laws. The embrace of formal flexibility in model law drafting represents both a solution to a fundamental adoption problem (standardizers, by definition, cannot force states to adopt model laws) as well as a solution to a legitimacy problem. In other words, by tempering their desires for uniformity and providing states with more “menu”-like options, public health legal standardizers are in a better position to both promote the legitimacy of their products and protect the legitimacy of their organizations.

Scholars of standardization have noted that nearly all standards fail to achieve full uniformity (Brunsson and Jacobsson Reference Brunsson and Bengt2002, 149; Thévenot Reference Thévenot2009, 810). As Monica Casper and Adele Clarke (Reference Casper and Clarke1998, 273) reveal, for example, in their study of the development of the Pap smear as a cervical cancer screening tool, “[t]he search for the means of standardization has been long, arduous, and not particularly successful.” Similarly, Kathleen Jordan and Michael Lynch (Reference Jordan and Michael1998, 795) find that, far from being a fully standardized technique, polymerase chain reaction (a DNA analysis technology) was “procedurally flexible” and adapted and transformed in local settings. They found that “[t]he incentives to stabilize and standardize the technique are counteracted by other, locally prevalent, incentives to de-stabilize and de-standardize it.”

As these examples make clear, all standards must negotiate local contexts to achieve adoption. Analyzing model lawmaking as just one type of standardization illuminates the unique barriers to uniformity that statutory standardization efforts face. Every model and uniform law promulgated in the United States must be introduced and voted on by a legislative body before it can be adopted. Unlike a quality standard for the production of a new technological device, new state laws must be embedded within existing state codes and be made consistent with existing laws. Moreover, to achieve complete uniformity, model laws must garner adequate political support by a group of legislative representatives in every state and be adopted wholesale. In a politically diverse representative democracy such as the United States, obstacles such as these are nearly impossible to overcome. Despite these obstacles, year after year, nonprofit organizations, academic centers, federal agencies, and industry groups promulgate model laws. In this way, one might think of legal standardization as an “aspirational” endeavor—drafters strive for uniformity even as they are cognizant that it can never be fully achieved.

Multiple developers voiced this aspirational sentiment (Interview 37; Interview 117; Interview 124). For example, an Emergency Powers Act drafter reflected:

Model acts, in this way, offer a flexible middle ground for states: they promote uniformity without coercion. States are presented with options with the hope that they will adopt as much of it as possible. The model law developers suggest that they gain authority by formally dispensing with their authority. By showing “respect for state legislators,” through the provision of alternatives, legal standardizers are able to protect the political legitimacy of their products. Other developers, especially those affiliated with the CDC, also expressed a strong desire to demonstrate respect for states’ autonomy, which in turn helps to maintain the organization’s legitimacy (Interview 87; Interview 91). These sentiments are not surprising once one considers that, as a federal agency, the CDC is legally prohibited from lobbying for state laws. Indeed, the CDC’s direct involvement with the Emergency Powers Act, some developers argued, had actually crossed the federalism line. Had the Bush administration not “loved” the Act, one developer suggested, some officials would have lost their jobs over their involvement in promoting it (Interview 119).

Others, however, especially those with years of experience working with the ULC, espoused stronger aspirations for uniformity. For example, one Emergency Volunteers Act drafter said:

Here, one sees the suggestion that, for medical care to be standardized across states, law pertaining to the administration of medical care (in this case, practitioner licensure and liability in emergencies) must be standardized as well. The Emergency Volunteers Act, which was produced by the ULC and officially titled a “uniform act,” was the law whose developers were most committed to promoting uniformity.

Nevertheless, it is illustrative that even the ULC, a commission dedicated to the creation of uniform state acts, recognizes the intrinsic barriers to legislative uniformity. Although they always aim for fifty-state adoption, one developer conceded that they consider seventeen state adoptions to be a success (Interview 133). As another commissioner said, although the goal is uniformity, “they are not all enacted exactly as written, and states at a minimum have to make adjustments to make sure they fit into the body—to be consistent with other state laws, but then states will frequently tweak this or that” (Interview 24). Therefore, even the ULC recognizes that full adoption is often unlikely to happen and that they must give states the room to adjust even “uniform” laws to meet their particular needs. Given how difficult the achievement of uniformity is, ULC drafters emphasized that alternatives for states are routinely built into their uniform acts (Interview 14; Interview 24). In the case of the Emergency Volunteers Act, after lengthy debate over the civil liability provisions—where they were not able to reach consensus—the final Act gave states a set of possible alternatives regarding the level of liability protection they would grant emergency volunteers and organizations (National Conference of Commissioners on Uniform State Laws 2007, 7–8).

Even more fundamentally, a number of developers mentioned a more global transition in the field away from model laws altogether. Some developers, especially those affiliated with the CDC, expressed a growing preference for legislative “menus” over model laws. The CDC’s Public Health Law Program—the original sponsor of the Privacy Act and the Emergency Powers Act—has actively taken up publishing “menus” of laws and regulations to assist states. On their website, for example, one can find an array of “menus,” like the “Menu of Doctor Shopping Laws” and the “Menu of State Hospital Influenza Vaccination Laws,” but no model laws (CDC Public Health Law Program 2019). At the same time, however, it is unlikely that the production of model laws will ever completely stop in public health law or in law more generally. Certainly, as long as the ULC survives as an organization, model laws will continue to be produced. Indeed, as long as flexibility is built into model laws, both substantively and formally, as with other standards, they are likely to continue to exert a substantial impact on the social world.

In their study of the standardization of medical protocols, Stefan Timmermans and Marc Berg (Reference Timmermans and Marc1997) propose the concept of “local universality,” which at first appears contradictory. They argue that to understand the “universalization of standards,” such as medical protocols, it is crucial to understand the mechanisms by which they are incorporated and transformed by local processes: “Rather than being antagonistic to it, a certain looseness in the network may be the preferred (or only possible) way to achieve standardization” (277). Timmermans and Berg contend that, to the extent that standards such as medical protocols or biological techniques are locally negotiated, they will always be transformed, but this should not be understood as a failure of standardization. Rather, it is the only way that it is possible. As with other standardization projects then, flexibility can, and often should, be built into model laws not only to maintain their technical function but also to preserve their political legitimacy.

Internal Disagreement

Evidence of high levels of disagreement within a model law’s drafting group suggests a legitimacy problem. Based on my interviews, there was some evidence of internal disagreement within the Privacy Act drafting group (that is, conflicts between public health officials and HIV/AIDS advocacy organizations). Although all the developers I spoke to, including representatives from both the “public health” and “privacy” camps, suggested that, ultimately, they felt the model law reached an adequate balance between facilitating the flow of public health information and balancing individual rights to privacy (Interview 18; Interview 124), other historical accounts suggest that, by accommodating the concerns of the privacy advocates, the model law failed to secure legitimacy among the state health officials more broadly (Fairchild, Bayer, and Colgrove Reference Fairchild, Ronald and James2007, 233). Developers who participated in the Emergency Powers Act and the Turning Point Act drafting groups nearly unanimously suggested that there were no real ideological or professional rifts within the drafting groups themselves. The most anyone alluded to was amicable disagreements over specific provisions (Interview 37).

In contrast, the developers I spoke with characterized the Emergency Volunteers Act drafting process as having incredibly high levels of internal disagreement. In this case, concerns came not only from the commissioners involved in the drafting but also from the expert observers who were invited to attend the meetings. This finding may seem paradoxical: the Emergency Volunteers Act, as a production of the ULC, benefited from having formal procedures guiding its development and participants with decades of experience drafting uniform laws. This distinguished the Emergency Volunteers Act from the other model laws that were created outside dedicated model law-producing organizations (see Table 2). Yet, in some ways, the storied tradition of the ULC process itself, as well as its sizeable attempt to include as many stakeholders as nonvoting observers as possible in the drafting process, made the Emergency Volunteers Act more susceptible to internal disagreement.

When they were recalling the internal disagreement that the Emergency Volunteers Act experienced, one memory stood out for multiple developers: the 2006 floor debate over its approval at the commissioners’ annual meeting in Hilton Head, South Carolina. One participant described how the debate raged into the night, making all the commissioners late for their formal dinner (Interview 24). They remarked how unusual this situation was. The debate was anomalous—one said that such a controversy had never occurred before in their memory of the ULC (Interview 58). A large part of the reason that the Emergency Volunteers Act was so contentions was not due to its substantive content but, instead, due to its expedited production, which bypassed the ULC’s normal checks (which include the requirement that the proposed uniform act be presented to ULC at two annual meetings before approval, instead of one) (Interview 14; Interview 24; Interview 133). Nevertheless, many in the ULC leadership had little regret, and even some of those who said they were concerned about the timeline now look back fondly at their work (Interview 58; Interview 71).

Yet there were also major substantive disagreements over the Emergency Volunteers Act that challenged both its technical and political legitimacy. As discussed above, some developers felt that the ULC process was not adequately scientific, that drafters had not done sufficient research to demonstrate that a uniform law was really necessary or that the best way to go about ameliorating practitioner shortages (if they did in fact exist) in an emergency situation (Interview 25; Interview 33). Other members of the drafting committee were substantively concerned about the narrowness of the proposed law—whether it included the right types of practitioners (for example, veterinarians were initially not included as “health practitioners” in the act) (Interview 118). Others were disturbed at what they perceived to be the out-sized influence of the American Red Cross, which they perceived as pushing strongly for limiting liability not only for emergency practitioners but also for the organizations with whom they work (Interview 71). Perhaps the most vehement critics, however, were plaintiffs’ bar organizations like the Center for Constitutional Litigation, which were included in drafting committee meetings and which challenged the limits on practitioner and organization liability that the Emergency Volunteers Act would grant in emergency situations (Peck Reference Peck2007).

In summary then, the Emergency Volunteers Act demonstrates how a model law can fail to achieve legitimacy among some audiences without facing a total legitimacy crisis. This scenario suggests that some of the ULC legitimation strategies paid off. In particular, the inclusion of alternatives for the controversial liability provisions served to facilitate state adoption and may have helped the Emergency Volunteers Act avoid a broader, more public challenge like the one the Emergency Powers Act faced, which is explained in the next section.

External Controversy

The level of external controversy that a model law generates may well be considered another indicator of its legitimacy, particularly among audiences external to the drafting group, such as outside scholars, political organizations, and state legislatures. Whether controversy is “internal” or “external” to the drafting group is often an artifact of how the expert drafting group is convened. When model law drafting groups are diverse, inclusive, and large, disagreement is likely to take place internally; when model law drafting groups are homogenous, exclusive, and small, controversy is more likely to take place in the public sphere. Among the model laws included in this study, the Emergency Powers Act, produced on the heels of the September 11, 2001 terrorist attacks, provoked the most external, or public, controversy; none of the other model laws came close to generating the amount of negative media coverage and scholarly critique that the Emergency Powers Act did. The Emergency Powers Act was also drafted exclusively by a small group of scholars all affiliated with the CLPH.

Despite the breadth of the actors involved in the Emergency Powers Act’s institutional web (see Table 2), and the depth of technical expertise embodied by the drafters, when the first October draft was sent to external reviewers for comments, drafters received a slew of feedback, some of it positive but some sharply negative. Indeed, one individual recalled that, although they anticipated some criticism, he felt the group was “beaten up” by the comments (Interview 37). The October version of the Act was seen to have overreached in terms of the governmental power it granted state executives and its lack of civil liberties protection. Public outcry in turn triggered some of the former “collaborators” such as the National Council of State Legislatures, to distance themselves from the bill (Rosner and Markowitz Reference Rosner and Gerald2005). George Annas, a senior professor of medicine, law, and public health at Boston University, became a prominent and outspoken critic of the model law. In his view, it represented a return to an “old Soviet system” of public health governance rather than one based on human rights (Annas Reference Annas2005, 11). In response to these proposed measures, George Annas and a group of fellow law professors formed the New England Coalition for Law and Public Health and sent a letter detailing their concerns to the secretary of the Department of Health and Human Services (Bayer and Colgrove Reference Bayer, James and Jonathan2003, 61). In addition, civil liberties and lesbian, gay, bisexual, transgender, and queer civil rights groups expressed concern that HIV/AIDS could fit under the definition of a “health emergency” and that hard-won privacy protections could be undermined by the Act (62).

Much of the critique challenged the technical legitimacy of the Act, suggesting, for example, that there was not good evidence for believing that coercive quarantine provisions were necessary or effective (Interview 93). Others challenged the political legitimacy of the Act by questioning the representativeness of the drafting group (Interview 27). Even after the model law was revised on the basis of the comments, some critics felt that these changes failed to do enough and that the model law should be withdrawn completely (ACLU 2002; Annas Reference Annas and Jonathan2003, 43). And, yet, despite this persistent and strong challenge to the model law’s legitimacy, many of the drafters I spoke with viewed the Emergency Powers Act as a resounding success (Interview 37; Interview 108; Interview 113; Interview 117; Interview 119). Indeed, interview participants spoke of it as unquestionably the most successful of the four model acts. Although it was subject to divisive external controversy, the Emergency Powers Act was the most widely adopted of the four model laws.

Adoption

For many involved in the development of model laws, the number of states adopting a given law would likely be seen as the most important indicator of its legitimacy. The voluntary adoption of a statute by semi-autonomous states en masse would seem to constitute strong evidence of its legitimacy, at least among state legislators and their constituents. If one were to just look at adoption counts (see Table 3), one might well assume that the Privacy Act was widely perceived as illegitimate, and the Emergency Powers Act achieved strong legitimacy, as they had zero and forty adoptions respectively.Footnote ⁹ Looking at a different indicator, like levels of internal or external controversy, however, would lead one to conclude just the opposite.

There are a few possible explanations that may help account for the otherwise puzzling pattern of fragmented legitimacy one finds, for example, with the Emergency Powers Act. First, it may be that wide-scale adoption of a model law, itself an indicator of legitimacy, might in turn trigger challenges among other audiences. In other words, there might be reason to believe that the level of external controversy is closely related to the level of adoption—in that political organizations, legislators, and outside scholars only become sufficiently concerned with a model law to challenge its legitimacy publicly when there is reason to believe it may actually get widely adopted. Alternatively, it may also be that both the level of external controversy and the number of adopting states are both caused by a third phenomenon (for example, a historical triggering event like 9/11). One critic of the Emergency Powers Act suggested that part of the heightened concern over the Act may have been due to the post-9/11 political climate, where there was a broader clampdown on civil liberties spearheaded by the Bush administration (Interview 27).

Internal controversy over drafting can cut both ways in terms of ultimate adoption. For the Privacy Act, the high level of internal disagreement within the drafting group around privacy protection ultimately led to a compromise that some have suggested was too protective of individual rights to ultimately be accepted by state public health practitioners (Fairchild Reference Fairchild2007, 233). In contrast, for the Emergency Volunteers Act, internal disagreement led to a final product with sufficient alternatives so as to be attractive for adoption. Given the fragmented nature of legal standards’ legitimacy, it is critically important to question to which audience (for example, legislative, public health, or academic) various legitimation strategies are aimed and to what end.