The Cancer Curse: Regulatory Failure by Success
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THE CANCER CURSE
THE COLUMBIA
SCIENCE &
TECHNOLOGY
LAW REVIEW
VOL. XXI STLR.ORG FALL 2019
THE CANCER CURSE: REGULATORY FAILURE BY
SUCCESS
Robin Feldman*
Since the turn of the millennium, a series of regulatory decisions-unrelated
in time and design has shifted the focus of the pharmaceutical industr toward
cancer research and treatment. Regulation, of course, is designed to drive public
and private behavior, but the sum of these regulatory actions is driving behavior
well beond governmental design. This phenomenon represents a peculiar form of
regulatory failure that cannot be sufficiently explained without contemplating a
new form of regulatoryfailure-failure by success.
As with any great epic tale, the modern saga is full of celebrities and drama,
framed by truly heart-wrenching stories. However, with 89 percent of cancer
deaths occurring in those older than 55 and the majorty of deaths in those over
age 72, this concentration of resources necessarily implicates agonizing and
critical social policy decisions, ones that have remained entirely unconsidered.
This article examines the regulatory history that led to this shift, ferreting out
and connecting the various components for the first time. It explains the way in
which this cancer curse falls outside traditional definitions of regulatory failure
and should be categorized, instead, as regulator) failure by success. In addition,
the article examines selected advantages and disadvantages of unintended
regulatoy success, along with normative questions regarding whether the cancer
moonshot, as it has unfolded, is a desirable goal. In short, when engaging in a
* Arthur J. Goldberg Distinguished Professor of Law and Director of the
Center for Innovation at University of California Hastings Law, Visiting Professor
at UCLA Law. I am grateful to Gerard Anderson, Bishal Gyawali, Aaron
Kesselheim, Mark Lemley, Reuel Schiller, andJodi Short for their comments and
guidance. I am also deeply indebted to Colin Burke, Christopher Kim, Nick
Massoni, Sophia Tao, and David Toppelberg for their research assistance and
insights. This work was funded in part by a generous grant from the Laura and
John Arnold Foundation.
2020]
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The Cancer Curse: Regulatory Failure by Success
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