Professor Hosea Harvey is an empiricist, an expert in race and regulation, and a public health law scholar. So what is he up to, talking to the media and testifying before policy-makers about youth concussion laws? “So you already want me to admit that I have no special athletic talent?” he laughs. Rather, Harvey says he “chose youth concussions … because it’s a large scale public health problem that the law was beginning to impact without any full understanding about how to do so most effectively. And I’m always concerned about how new laws or regulations impact vulnerable groups.”
That’s where Harvey’s interest in public health law research comes in. The relatively new academic field, which includes Temple’s Scott Burris as a co-founder, uses scientific methodologies to measure when and how law can be used to enhance the public’s health. In this case, Harvey says, he was, “extraordinarily skeptical about the ability of the law to impact this problem … I went into the research with a hypothesis that anti-concussion law proponents were over-claiming their impact. That turned out to be true.” One of the problems was confusion about exactly what these laws accomplished. “What the research identified is that early versions of these laws were designed to prevent a second concussion from happening after the first one had already happened,” Harvey explains. ”But the public and news-cycle narrative was that these concussion laws would essentially solve the problem of youth athletic concussions. So part of my research involved using a public health epidemiological framework, quantifying components of existing laws, applying the framework to the laws, then postulating about what effect the laws would have on the problem and for the vulnerable youth athlete population.”
Across many sports, concussion rates are higher for girls for a variety of reasons. But concussion laws treat all concussions and how we get them as essentially the same. Some laws don’t even cover activities, for example cheerleading, in which injury and concussion rates are high, because they aren’t defined as sports within the law itself.
Armed with that evidence, Harvey became a resource to advocates for youth concussion law reform, speaking to the media and testifying before the Connecticut legislature at the invitation of a group of concerned parents. “Advocacy, in this space, can be helping non-lawyers champion their own interests. I can give parents the tools they need to carry on the battle, such as groups like the Parents Concussion Coalition in Connecticut have,” Harvey explains. “That’s very empowering. I can tell them, ‘Here’s what we know in the field. But I can’t be an effective grass-roots lobbyist or organize a letter writing campaign to a state representative. You can do that now, using this evidence.’ That was really powerful for me to watch key stakeholders use the power of academic research to improve public policy and public health.”
At first blush, Harvey’s work on youth concussions is a divergence from his previous scholarship on race in consumer finance and consumer entertainment markets. But the popular professor insists there is a method to his madness. “Collectively, my scholarship touches on different regulatory regimes in which the concerns of vulnerable communities are often ignored in order to create broad, general policies for the “public good.” Whether in antitrust or consumer law or public health law, these laws are designed to minimize the problem or to find a solution in which the importance of differential group impact is masked.” Youth concussion laws serve as a prime example. ”Across many sports, concussion rates are higher for girls for a variety of reasons. But concussion laws treat all concussions and how we get them as essentially the same. Some laws don’t even cover activities, for example cheerleading, in which injury and concussion rates are high, because they aren’t defined as sports within the law itself,” Harvey says. He continues, “Or take low-income communities that lack certain resources – for example, getting help on the sidelines or having trainers or doctors available during all athletic contests. If we build into the law a requirement that such resources exist, what about schools that can’t afford them? Programs go away. That then reduces the opportunities for college scholarships, and general youth physical fitness. Being able to recognize those regulatory costs at the beginning of the process could result in much more thoughtful, nuanced policy-making and would incorporate the views of a more diverse group of stakeholders.”
Advocacy, in this space, can be helping non-lawyers champion their own interests. I can give parents the tools they need to carry on the battle, such as groups like the Parents Concussion Coalition in Connecticut have. That’s very empowering.
While Harvey believes the scientific methodologies used in public health lawmaking are the key to unmasking these hidden effects and costs, he is clear that the issue is not confined to public health itself. “What I like to do with folks who are thinking through the value of understanding group difference in this context is to offer Social Security as an example,” he explains. “I’d say, ‘Objectively, we know that mortality rates actually differ between key populations. African-American men have an average life-expectancy of 70.7 years. The overall U.S. population life expectancy is 78.5. Social Security retirement eligibility for people who are now in their 50’s begins at 67 years old. So we have this racially-neutral regulatory regime where, by and large, almost half of a given subgroup of workers will pay into the fund for their entire lifetime, subsidize those who live longer and who have earned more, and are likely to not receive any direct benefit. In this space, what’s thought of as a “conservative” legal solution – allowing people to opt-out of Social Security to direct-invest – might be beneficial for marginalized groups in certain situations in order to allow them maximum sustainable income potential over a shorter life-span.”
Consumer finance law is another of Harvey’s recent inquiries. “My particular vantage point here,” he says, “is borrowers for whom English is a second language. When you think about someone reading a mortgage or credit card disclosure, if they attach meanings to words or phrases differently because they process English as a second language, they may actually do things with that information that are objectively financially harmful. But at present, to prevent lenders from discriminating, many rules and regulations don’t permit, or encourage, or require, printing lending documents in many languages or asking an applicant about their preferred language choice. So again, a ‘neutral,’ well-intended law may do harm to a group whose difference has been overlooked.”
Taking this broader view of the problem, Harvey says, has helped bring his advocacy into focus. “I’m just now beginning to fully realize how connected these different strands of research actually are,” he says. “For me, my path forward is going to be to identify ways in which we can understand how laws that are designed to solve very large problems have disproportionate impacts and effects on various groups, and then to use scientific inquiry to try to improve law or regulation to ensure that everyone has the opportunity to effectively play on the same field.