E-mail:
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Bruce Ackerman bruce.ackerman at yale.edu
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Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
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Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
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Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Legal theorists dispute the efficiency of unregulated markets. Particularly in the area of medicine, where enormous information is now available on the internet, some have suggested that regulation is less necessary than it used to be, because consumers can easily inform themselves.
The limits of the efficient-market hypothesis became clear to me when, in the past few days, I went shopping for a bottle of Tylenol or generic equivalent (acetaminophen). I quickly discovered that it is hard to find it in a store in less than toxic doses. It’s perhaps two years since I last shopped for a bottle of the stuff. Back then, everyplace I went had both the regular strength (325 mg) and extra strength (500 mg) varieties. Somehow, in the past two years, the regular strength Tylenol has disappeared from the market. Some stores did not have it at all. A large specialty drug store had a few bottles of 325 mg, together with row after row of 500 mg.
My guess is that what’s going on is the typical American proclivity for bigger and stronger and more powerful: why mess around with regular strength when extra strength will do a better job? Extra strength Tylenol is the Hummer of pills. It steamrolls over your pain. So consumers consistently buy the extra strength, while the regular strength pills expire on the shelf and have to be thrown away. That would explain why the stores have stopped stocking them.
Unfortunately, it also places serious stress on your liver, and the stress is considerably greater with the 500 mg dose than the 325 mg dose. The danger is particularly great if you have more than two alcoholic drinks a day. So there continue to be frequent episodes of unintentional overdose, despite years of consumer-education campaigns. For this reason, an FDA report today recommended that the maximum dose be limited to two 325 mg pills. If consumers had perfect information, you’d expect there to be at least a market niche for that dosage. But most consumers have no idea what’s going on. (I’m no expert, either; I just happened to see a news report on one of the studies a couple of years ago.) In other words, the market and the experts are marching in exactly opposite directions, to such an extent that it has become difficult to purchase the medicine in a safe dose. Check your medicine cabinet. Reading this could save your life. Evidently the free market won’t.
It’s hard to imagine a more powerful case for aggressive government regulation, even in the age of the internet.