My new paper co-authored with Dr. Ted Bailey: Urgent Legal Lessons From a Very Fast Problem: COVID-19

I co-authored a short paper about the law and the coronavirus pandemic with Dr. Theodore C. Bailey, who is chief of infectious disease at Greater Baltimore Medical Center. It is forthcoming in the Stanford Law Review Online. The pre-print is available now on SSRN.

Here is the abstract:

“The course of a pandemic is dictated not just by biology, but also by law. And crucially, unlike biology, law can be readily adapted in response to a pandemic. Unfortunately, the current law does not take account of the compressed timeframe and rapidly changing social needs that distinguish pandemic times from normal times. We thus suggest three urgent, early lessons for law in the pandemic context: First, free information flows save lives, an observation which has ramifications for freedom of speech and press, copyright law, and patent law. Identifying particular hazards that patent law poses to the free flow of scientific research findings, we suggest a government-funded reward system as an adjunct to the patent system to incentivize pandemic-relevant research and its rapid publication. Second, politically accountable decisionmakers may not act optimally to save lives. We suggest a refashioned, politically insulated U.S. Public Health Service imbued with administrative independence in the vein of the Federal Reserve Board. Third, pre-crisis regulatory structures are not proving nimble enough in the midst of the pandemic. We suggest legislation that directs the FDA to be creative in designing case-by-case approval procedures for vaccines and other treatments to allow them to get to market much faster. To accelerate approvals while retaining scientific rigor, we suggest allowing well-informed, consenting human testing subjects to take on more uncertain risk than the FDA currently tolerates. In sum, we argue for a more general, systematic, and critical perspective on law in the special context of a pandemic.”

by Eric E. Johnson

FDA launches Coronavirus Treatment Acceleration Program

Yesterday the U.S. Food and Drug Administration launched what it’s calling the Coronavirus Treatment Acceleration Program (CTAP), which it describes as “a special emergency program for possible therapies” that “uses every available method to move new treatments to patients as quickly as possible, while at the same time finding out whether they are helpful or harmful.”

This seems like a very positive step.

Based on the information the FDA has provided, CTAP at this point seems to be mostly about FDA doing its work more rapidly rather than differently. The information released yesterday describes “ultra-rapid, interactive input on most development plans” and “ultra-rapid protocol review.”

Along with the information release about CTAP, the FDA is reporting 10 “therapeutic agents” that are currently in active trials, plus 15 more in planning stages.

by Eric E. Johnson
published April 1, 2020

Op-ed proposes non-profit entity to create an app for tracing and tracking virus exposures

One of the reasons South Korea may be having so much more success in battling the coronavirus pandemic, in addition to its massive testing program, is its phone-based tracing technology. If you know where people are and where they have been, positive test results can allow you to direct that exposed individuals self-isolate immediately. That can help arrest the spread.

In a March 30, 2020 op-ed in the Wall Street Journal, Glenn Archer and Luciana Borio call for “engaging entrepreneurs, public-health experts, privacy advocates, constitutional lawyers and legislators” to take a look at tech-centered proposals to see what might work in a technological and epidemiological sense while also protecting freedom and privacy. They offer this specific proposal:

“Here is an idea that could work: The federal government should establish a public-trust, nonprofit entity to oversee the development and implementation of digital contact-tracing capability. This entity could develop a contact-tracing app that Americans would voluntarily download. After a user provided consent, each phone would generate an anonymous identification number. When app users are in proximity, the numbers would be exchanged via Bluetooth and stored for a limited time.”

by Eric E. Johnson
published March 31, 2020


My name is Eric E. Johnson. I’m a law professor at the University of Oklahoma. I teach courses in intellectual property, torts, and antitrust, plus a seminar on law and science. My research interests run along those same lines.

I am launching this blog as the coronavirus pandemic is raging across the globe. My hope is to use this platform to explore how the law is supporting or frustrating the scientific search for ways to combat the the virus, SARS-CoV-2, and the disease it causes, COVID-19.

My prior science-and-law writing has mostly been related to physics. (I’ve written about NASA and the Department of Energy as well as black holes and the LHC.) And not too long ago, I was discussing particle physics disasters with Josh Clark on his End of the World podcast. But now, as humanity is suddenly facing a no-longer-hypothetical pandemic catastrophe, I’ve decided to start working on the role that law is playing in the current unfolding disaster.

I’ll plan to write more about law and science with regard to physics and maybe other fields when the coronavirus pandemic is on the ropes. Hopefully that will be sooner rather than later.

by Eric E. Johnson
published March 30, 2020