Public Health Law Tools: A Brief Guide

The COVID-19 pandemic offers a threat with few precedents in modern times and tests the tools of modern surveillance and public health law. The goal of this chapter is to provide a brief overview of the types of measures that state and federal governments can invoke to treat and prevent the spread of infectious disease. The following sections will provide an orientation to domestic public health law followed by the types of measures available to state and federal public health authorities. Although this chapter does not consider international institutions, treaties, or norms that affect public health, these are also essential to the overall pandemic response

Broken Experimentation, Sham Evidence-Based Policy

Evidence-based policy is gaining attention, and legislation and agency regulation have been no exception to calls for greater uptake of research evidence. Indeed, current interest in “moneyball for government” is part of a long history of efforts to promote research-based decisions in government, from the U.S. Census to cost-benefit analysis. But although evidence-based policy-making (EBPM) is often both feasible and desirable, there are reasons to be skeptical of the capacity of EBPM in governmental decision-making. EBPM is itself bounded by limits on rationality, the capacity of science, the objectivity of science, and the authority we wish to give technocrats. Where values are highly contentious, efforts to produce and use evidence in legislative and regulatory decisions may go so far awry that they become “sham” versions of evidence-based choices

Price and Prejudice: An Empirical Test of Financial Incentives, Altruism, and Racial Bias

Many argue that paying people for good behavior can crowd out beneficial motivations like altruism. But little is known about how financial incentives interact with harmful motivations like racial bias. Two randomized vignette studies test how financial incentives affect bias. The first experiment varies the race of a hypothetical patient in need of a kidney transplant (black or white), an incentive ($18,500 or none), and addition of a message appealing to altruism. Incentives encouraged donation but introduced a significant bias favoring white patients. The second experiment assesses willingness to donate to a patient (black or white) without an incentive and then introduces incentives varying in size ($3,000, $18,800, or$50,000) and source (charity, government, or patient’s own funds). Incentives encouraged donation but were significantly more effective in encouraging donation to white patients. Biasing effects are most pronounced for medium-sized incentives. Incentives may have an inadvertent biasing effect for altruistic behavior

Money That Costs Too Much: Regulating Financial Incentives

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; our field lacks the language we need to speak precisely about these behavioral phenomena, and we have not examined when and why motivational crowding-out should prompt us to discontinue or temper incentive-based schemes. Without a clear and nuanced picture of the processes, harms, and benefits of crowding-out, we may well be missing the mark. This Article canvasses the range of legal areas where crowding-out concerns arise, and it newly illuminates the specific harms that may be attributable to crowding-out effects. These hazards include reduced autonomy in the presence of incentives, a distinct set of behavioral inefficiencies, and the potential degradation of individual or social values. But this Article also challenges the view of crowding-out as uniformly harmful, offering an alternative vision of potential crowding-out benefits, such as crowding out invidious motivations, increasing the predictability of agent activity, and bolstering the efficiency of future incentives. These benefits suggest that the precautionary principle, which would counsel against using incentives where crowding-out is possible—is inappropriate for this field. The Article also proposes a novel taxonomy to help guide regulatory responses to incentives that cause crowding-out. Different categories of incentives present different justifications for regulatory intervention and redesign, including autonomy concerns, efficiency concerns, and negative externalities imposed on third parties. By organizing incentives based on the relationship between the principal and agent, we can identify opportunities for regulators and incentive architects to redesign or limit incentive programs, to leave incentives in place, or to consider discontinuing incentive-based policies when money indeed “costs too much” in motivation. Associat

Risk-Taking and Rulemaking: Addressing Risk Compensation Behavior Through FDA Regulation of Prescription Drugs

Despite widespread acclaim for their potential to reduce public health harms, technological advances in health and safety frequently raise the ominous specter of risk compensation behavior-the possibility that individuals protected by these technologies will increase their risk-taking on the belief that they are protected from harm. Risk compensation has been a rallying cry for opponents of new technologies such as the HPV vaccine, needle exchange programs for drug users, or prescription pills for the prevention of HIV infection. Although these concerns are frequently voiced in the language of morality and personal responsibility, it may be more productive to consider this phenomenon through the lens of behavioral science, with an emphasis on respecting individuals\u27 behavioral preferences. This Article aims to present the theoretical basis for risk compensation behavior, to categorize diferent types of risk compensation effects, to enumerate ways in which the law may address these effects, and to illustrate an application of these legal strategies to FDA regulation of prescription drugs. Throughout, this Article reframes risk compensation behavior as a presumptively rational mechanism for value conversion, by which the protective value of a health or safety technology is transformed into another type of value that may better satisfy individual preferences. But where imperfect information or negative externalities lead to harm, there may be a role for a regulatory response

Money That Costs Too Much: Regulating Financial Incentives

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; our field lacks the language we need to speak precisely about these behavioral phenomena, and we have not examined when and why motivational crowding-out should prompt us to discontinue or temper incentive based schemes. Without a clear and nuanced picture of the processes, harms, and benefits of crowding-out, we may well be missing the mark. This Article canvasses the range of legal areas where crowding-out concerns arise, and it newly illuminates the specific harms that may be attributable to crowding-out effects. These hazards include reduced autonomy in the presence of incentives, a distinct set of behavioral inefficiencies, and the potential degradation of individual or social values. But this Article also challenges the view of crowding out as uniformly harmful, offering an alternative vision of potential crowding-out benefits, such as crowding out invidious motivations, increasing the predictability of agent activity, and bolstering the efficiency of future incentives. These benefits suggest that the precautionary principle, which would counsel against using incentives where crowding-out is possible – is inappropriate for this field. The Article also proposes a novel taxonomy to help guide regulatory responses to incentives that cause crowding-out. Different categories of incentives present different justifications for regulatory intervention and redesign, including autonomy concerns, efficiency concerns, and negative externalities imposed on third parties. By organizing incentives based on the relationship between the principal and agent, we can identify opportunities for regulators and incentive architects to redesign or limit incentive programs, to leave incentives in place, or to consider discontinuing incentive-based policies when money indeed “costs too much” in motivation

When Extrinsic Incentives Displace Intrinsic Motivation: Designing Legal Carrots and Sticks to Confront the Challenge of Motivational Crowding-Out

The rise of “nudges” has inspired countless efforts to encourage individual choices that maximize personal and collective welfare, with a preference for less restrictive tools such as setting default options or reordering choice sets. As part of this trend, there has been renewed interest in the behavioral impacts of incentives – namely, rewards or penalties for shaping individual choices, including but not limited to financial incentives. Explicit incentives are pervasive in the law, including carrots offered by governments (for example, tax deductions for charitable contributions, rebates for recycling, sentence reductions for prisoners who complete drug rehabilitation programs, and incentives for criminal informants) and statutes or regulations that govern incentives offered by private parties (for example, workplace wellness programs, compensation for blood and organ donation, and pay-for-performance in executive compensation). But despite the intuitive appeal of incentives, legal commentators have expressed increasing alarm about a potential drawback: research in behavioral economics and psychology has come to show many ways in which the use of carrots and sticks may displace other motivations for good behavior, such as altruism, civic duty, or professionalism. In legal scholarship, prevailing views of motivational crowding-out – the process by which incentives can interfere with “intrinsic” motivations for behavior – suggest that this phenomenon is an irremediable response to incentive-based policies. This Article examines a large but neglected body of empirical and theoretical literature on motivational crowding-out to show that these beliefs may be misguided. Motivational crowding-out is in fact a catch-all term for a diverse set of cognitive and behavioral processes that range from long-term changes in preferences, to the impairment of self-determination, to a complex set of signals that incentives can send to people about their abilities, social environment, values, and employers. Far from being inevitable, motivational crowding-out is responsive to changes in the way we design incentive-based policies. That is, once we understand the mechanisms of crowding-out, we can modify the incentive architecture to either minimize or amplify crowding-out effects. Remedies, however, must be tailored to the diverse causes of crowding-out, and the law has not yet recognized this problem. In light of deep anxieties about motivational crowding-out throughout the law, this Article proposes a taxonomy of crowding-out processes and introduces “incentive architecture:” the deliberate structuring of incentives to address crowding-out effects

Purchasing Health? The Promise and Limits of Public Health Insurance

The 2010s have been a momentous decade for Medicaid. With enrollment of over seventy-two million people (19% of the country’s population), Medicaid is the nation’s largest public health insurance program, and it is the primary or sole source of health insurance for vulnerable groups such as low-income children and pregnant women, adults with disabilities, and people in need of long-term care. Since 2014, the pendulum of Medicaid policy has swung from an unprecedented expansion of coverage under the Affordable Care Act (ACA), toward more recent federal regulations and state policy innovations that are instead predicted to limit uptake of benefits. These developments have raised questions about the purposes and scope of the Medicaid program, which are central to ongoing litigation over state Medicaid waivers. Under § 1115 of the Social Security Act, states can seek approval from the Secretary of Health and Human Services (HHS) to implement demonstration projects in Medicaid programming. States have previously used this waiver pathway to expand coverage and benefits, to incorporate incentives for healthy behaviors, to charge copayments and premiums, and to make delivery system modifications. Beginning in 2018, however, HHS has approved numerous state demonstration projects that make eligibility for some beneficiaries contingent on work requirements: the completion of monthly quotas of work, education, or volunteering hours to stay on Medicaid. Although work requirements have long been a prerequisite for accessing federal cash welfare and nutritional assistance, their use in Medicaid is a historic first

Righting Research Wrongs: An Empirical Study of How U.S. Institutions Resolve Grievances Involving Human Subjects

Tens of millions of people enroll in research studies in the United States every year, making human subjects research a multi-billion-dollar industry in the U.S. alone. Research carries risks: although many harms are inevitable, some also arise from errors or mistreatment by researchers, and the history of research ethics is in many ways a history of scandal. Despite regulatory efforts to remedy these abuses, injured subjects nonetheless have little recourse to U.S. courts. In the absence of tort remedies for research-related injuries, the only venue for resolving such disputes is through alternative dispute resolution (ADR)—or more commonly, internal dispute resolution (IDR) through a process offered by the research institution

When Extrinsic Incentives Displace Intrinsic Motivation: Designing Legal Carrots and Sticks to Confront the Challenge of Motivational Crowding-Out

The rise of “nudges” has inspired countless efforts to encourage individual choices that maximize personal and collective welfare, with a preference for less restrictive tools such as setting default options or reordering choice sets. As part of this trend, there has been renewed interest in the behavioral impacts of incentives – namely, rewards or penalties for shaping individual choices, including but not limited to financial incentives. Explicit incentives are pervasive in the law, including carrots offered by governments (for example, tax deductions for charitable contributions, rebates for recycling, sentence reductions for prisoners who complete drug rehabilitation programs, and incentives for criminal informants) and statutes or regulations that govern incentives offered by private parties (for example, workplace wellness programs, compensation for blood and organ donation, and pay-for-performance in executive compensation). But despite the intuitive appeal of incentives, legal commentators have expressed increasing alarm about a potential drawback: research in behavioral economics and psychology has come to show many ways in which the use of carrots and sticks may displace other motivations for good behavior, such as altruism, civic duty, or professionalism. In legal scholarship, prevailing views of motivational crowding-out – the process by which incentives can interfere with “intrinsic” motivations for behavior – suggest that this phenomenon is an irremediable response to incentive-based policies. This Article examines a large but neglected body of empirical and theoretical literature on motivational crowding-out to show that these beliefs may be misguided. Motivational crowding-out is in fact a catch-all term for a diverse set of cognitive and behavioral processes that range from long-term changes in preferences, to the impairment of self-determination, to a complex set of signals that incentives can send to people about their abilities, social environment, values, and employers. Far from being inevitable, motivational crowding-out is responsive to changes in the way we design incentive-based policies. That is, once we understand the mechanisms of crowding-out, we can modify the incentive architecture to either minimize or amplify crowding-out effects. Remedies, however, must be tailored to the diverse causes of crowding-out, and the law has not yet recognized this problem. In light of deep anxieties about motivational crowding-out throughout the law, this Article proposes a taxonomy of crowding-out processes and introduces “incentive architecture:” the deliberate structuring of incentives to address crowding-out effects