Sunday, 2 March 2014

Administrative Law Matters at the Movies: a Whimsical Post for Oscar Night

Unlike most well-adjusted people I do not make a habit of watching the Oscars. I do make a habit, however, of watching movies that were nominated for Oscars (this and the IMDB rating system largely dictate my entertainment choices). Last night, I sat through Dallas Buyers' Club, which is tipped to win heavily this evening.

Although Matthew McConnaughey's performance in the lead role was very good, I can't say I was otherwise terribly impressed. Foul-mouthed homophobe moves into a circle of homosexuals, is won over and reforms? Tenacious little man takes on the system? Insider (played by a very worried-looking Jennifer Garner) becomes appalled by how the system works and turns against it? You will pardon my saying that I did not find the primary themes terribly original.

What may be of interest to administrative lawyers is the central place in the movie of a regulatory agency, the Food and Drug Administration. Briefly, Ron Woodruff (Matthew McConnaughey) is diagnosed with AIDS and learns that the preferred contemporary treatment, a drug called AZT, seems to do as much harm as good.

He identifies unapproved drugs which are more effective and begins importing them from other countries. At this point, he runs into (predictable) difficulty with the FDA. Woodruff acknowledges that it would be illegal to sell unapproved drugs so he instead forms a private association (the Dallas Buyers' Club) members of which receive drugs in return for a monthly fee.

In a raid by FDA officials, his products are seized, on the basis that they are improperly labelled. He roars that this is a 'technicality' though of course his own scheme is evidently predicated on an extremely lawyerly reading of the relevant statutes.

What this scene and Woodruff's subsequent troubles with the FDA and taxman tend to demonstrate is that regulatory agencies wield enormous power in the modern state. When they come to get you there is almost always some regulatory requirement somewhere that you will have missed! A problem of a much greater magnitude for someone like Woodruff than for a larger entity which has the resources to lawyer up and charge well-armed into a long and attritional battle. Another reason to think seriously about enforcement discretion.

High-profile movies do not often touch in great detail on legal issues, but Dallas Buyers' Club does. The movie contains plenty of other occasions to ponder the modern role of regulatory agencies. It might even make worthwhile classroom material.

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