The Political Economy of the Opioid Epidemic

75 Pages Posted: 5 Jan 2020

See all articles by Mariano-Florentino Cuéllar

Mariano-Florentino Cuéllar

Carnegie Endowment for International Peace; Stanford Law School

Keith N. Humphreys

Stanford University - Department of Psychiatry and Behavioral Sciences

Date Written: December 12, 2019

Abstract

Public health problems have a political economy rooted largely in public and private laws that both reflect the distribution of power in society and shape its policy responses. In this Article, we apply this perspective to the U.S. opioid crisis, which was triggered by a quadrupling of opioid prescribing beginning in the mid-1990s. Such staggering increases in opioid use are impossible to understand without unpacking the incentives and institutional pressures associated with the distribution and use of addictive legal drugs, particularly how those pressures can dilute the substantive goals and efficacy of regulatory governance. The policy response to the explosion of opioid use, addiction, and overdose contrasts sharply with the swift and punitive response to illicit drug markets in the 1980s and early 1990s, which involved harsh sentences, increased policing, and stricter border controls. Subsequently, as Americans increased their unlawful use of legally available drugs—products nominally subject to controls but often distributed in large quantities by actors with major incentives to encourage their use—pharmaceutical companies encountered, for the most part, a combination of legislatively created regulatory loopholes as well as patterns of lax state and federal enforcement. Doctors also encountered regulatory loopholes and lax enforcement, despite some efforts to develop databases in order to track prescriptions. Pain clinics and prescription “pill mills” proliferated. For drug companies, the ability to market addictive drugs by leveraging close relationships with doctors was facilitated by a variety of legal strategies that allowed for willful blindness on the part of physicians, which limited their risk of regulatory and criminal liability. The contrast relative to the enforcement strategies associated with use of traditional illicit drugs has been described as stemming in part from the presence of many white, middle-class opioid users and the relatively minor amount of violence and crime compared to the cocaine and methamphetamine epidemics. We add to that the influence of a large industry with a prominent role in the legal economy—an industry that encountered diluted regulatory governance over a product that has numerous legal and beneficial uses as well as the potential to be extremely destructive. Tort law still casts a shadow over some aspects of the opioid epidemic, but its reach and consequences in this context depend at least as much on the constraints affecting tort litigation and access to courts (including limits on class actions and remedies) as on the content of tort law doctrine.

Over time, jurisdictions came to pursue civil remedies, prosecutors expanded the use of criminal sanctions, and policymakers began supporting stricter constraints on opioid production, distribution, and prescription. Yet these responses have been slow in coming and continue to face practical and political barriers. Although these observations do not yield a straightforward solution, they illuminate how institutional realities as well as political and economic pressures operate against the backdrop of various legal domains that can enable or exacerbate a public health crisis. Without taking those realities seriously, narrow interventions focused on a single area of law or isolated technical changes in treatment may prove largely ineffective.

Keywords: public health law, tort law, regulatory governance, opioids, legislation, administrative government, criminal enforcement, political economy

Suggested Citation

Cuéllar, Mariano-Florentino and Humphreys, Keith N., The Political Economy of the Opioid Epidemic (December 12, 2019). Yale Law & Policy Review, Vol. 38, No. 1, 2019, Available at SSRN: https://ssrn.com/abstract=3503149

Mariano-Florentino Cuéllar (Contact Author)

Carnegie Endowment for International Peace ( email )

1779 Massachuesetts Avenue, N.W.
Washington, DC 20036
United States

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-723-9216 (Phone)
650-725-0253 (Fax)

Keith N. Humphreys

Stanford University - Department of Psychiatry and Behavioral Sciences ( email )

401 Quarry Road
Stanford, CA 94304-5718
United States

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