Document Type
Article
Publication Date
2-2026
Abstract
Controlled Substances Act (CSA), U.S. drug law has simultaneously fueled mass incarceration, inhibited needed access, and enabled an opioid crisis. To make better choices, this Article argues that the CSA’s institutional design must account for three distinctive features of psychoactive drugs: the prohibition problem (drug bans tend to backfire when demand is inelastic), the pharma problem (drug companies have supercharged incentives to manipulate markets and exploit consumers), and the pluralism problem (drug policy involves irreducibly political questions that no expert discipline can answer). On their own, each of these problems calls for reform to the CSA. Taken together, they call for a fundamental reassessment of drug law structures and procedures.
Reconceptualizing the nation’s drug policy debacle as a failure of institutional design yields badly needed interventions for a reform movement that has stalled out and a cannabis regime that has splintered. The CSA should be fixed through pragmatic changes that foster democratization without domination in rulemaking processes and legalization without laissez faire in consumer markets. Such changes include eliminating the Drug Enforcement Administration’s authority to schedule substances, broadening participation in scheduling decisions, creating new schedules for nonmedical use, and imposing administrative controls on lobbying and advertising by drug manufacturers. A pragmatic approach to drug regulation along these lines, we contend, is not only superior from the standpoint of public health and the CSA’s goals but also constitutionally permissible and politically plausible.
Disciplines
Constitutional Law | Food and Drug Law | Law
Recommended Citation
Matthew B. Lawrence & David E. Pozen,
Drug Scheduling as Institutional Design,
139
Harv. L. Rev.
849
(2026).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4756