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21 Colum. Sci. & Tech. L. Rev. 1 (2019-2020)
The Cancer Curse: Regulatory Failure by Success

handle is hein.journals/cstlr21 and id is 81 raw text is: 



      SCIENCE &



VOL.   XXI                   STLR.ORG                        FALL  2019


                           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.



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