While the concept of legal incoherence may seem confusing, we can see its effects in daily life. The opioid crisis is a poignant example of it. The easy availability of addictive pain killers has led to the deaths of some 400,000 Americans. In 2017, 60 Minutes and the Washington Post did an investigative report to understand how the crisis got so bad.
The report describes how protective safeguards broke down. The first safeguard is the requirement for drug manufacturers and distributors to report suspicious orders and shipments. However, they neglected to do so. The second safeguard is the DEA’s authority to detain suspicious shipments and hold them for inspection. However, DEA agents were pressured by senior leadership not to use this tool too vigorously. Then to make matters worse, Congress passed a law that raised the standard for what suspicious meant; this led to a drop in the number of detentions. Pills then flooded the market. It turns out that some DEA lawyers had retired from the agency and began working for the drug companies. They knew exactly how to weaken enforcement. Their employers lobbied Congress to make the legal change.
This is incoherence at every level—from the opioid supply chain, to the agency watching over the supply chain, to Congress who makes laws about watching over the supply chain. So, what would legal coherence look like? It could take many forms, but as a simple example, imagine that the opioid supply chain is monitored electronically. And imagine that a metric—say pills per person per day—is calculated for every Congressional district and sent each month to manufacturers, distributors, all levels of DEA, Congress, and the media. Anytime something suspicious appears, anyone can raise a red flag, and everyone is accountable. Watching over the supply chain has become a collective responsibility.
While the technology to do this exists today, the mindset that says this is important is missing. Perhaps 400,000 lives would suggest it is.
Reference:
“The Drug Industry’s Triumph Over the DEA,” Washington Post, 15 Oct 2017, A1; also available on https://www.washingtonpost.com/graphics/2017/investigations/dea-drug-industry-congress/
“Opioid Overdose,” CDC, 19 Dec 2018, retrieved from https://www.cdc.gov/drugoverdose/epidemic/index.html