The Yale Law Journal

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29 Jul 2020

Deadly Delay: The FDA’s Role in America’s COVID-Testing Debacle

Barbara J. Evans & Ellen Wright Clayton

Recently, the FDA asserted authority to regulate a type of COVID-19 diagnostics known as laboratory-developed tests, which long have been a front line of response to emerging disease. FDA did not, and should not, have authority to regulate these tests. Its intervention added minimal value while contributing to deadly delays.

19 Jul 2020

State of the Art: How Cultural Property Became a National-Security Priority

Nikita Lalwani

Until recently, the United States did little to help repatriate looted antiquities, thanks to a powerful coalition of art collectors, museums, and numismatists who preferred an unregulated art market. This Essay explores how the United States came to treat the protection of cultural property as an important national-security issue.

29 Jun 2020

The New Oil and Gas Governance

Tara K. Righetti, Hannah Jacobs Wiseman & James W. Coleman

Even as the United States has become the world’s leading producer of oil and gas, U.S. oil and gas governance has changed drastically. States have amended statutes, applied existing laws, and modified common law doctrine to move beyond a once-unilateral focus on maximizing production and address environmental and social concerns.

24 Jun 2020

Disability Law and the Case for Evidence-Based Triage in a Pandemic

Govind Persad

When lifesaving medical treatments are scarce, disability law permits triage policies to consider patients’ probability of survival and post-treatment life expectancy. Evidence-based triage that considers these factors, rather than inaccurate stereotypes, can be not only legal and ethical, but consonant with the goals of disability law and advocacy.

27 May 2020

Who Gets the Ventilator? Disability Discrimination in COVID-19 Medical-Rationing Protocols

Samuel R. Bagenstos

The coronavirus pandemic has forced us to take the threat of rationing life-saving treatments seriously. Many health systems employ protocols that explicitly deprioritize people for these treatments based on pre-existing disabilities. This argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act.

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