Kelly K. Gillespie (Saint Louis University School of Law) and Jennifer D. Oliva (Indiana University Maurer School of Law) have posted Institutional Design, Drug Policy, and the Limits of Abstraction, 139 Harvard L. Rev. Forum 237 (2026) on SSRN. Here is the abstract:
This article is a response to Professors Matthew Lawrence and David Pozen’s Drug Scheduling as Institutional Design, in a spirit of engagement rather than opposition. The goal of this response is not to contest their central framework. Rather, we seek to identify several context-dependent areas that bear on the ultimate success of the suggested reforms and the Article’s institutional account — especially for readers less familiar with the operational details at the intersection of drug law and health regulation. The Parts that follow elaborate these considerations.
Part I situates the Article’s institutional design framework within a broader interdisciplinary literature and examines the demands that a pragmatic institutional approach imposes, emphasizing the need for grounding in the operational complexity of contemporary drug regulation. Part II clarifies the distribution of authority among federal agencies and why those allocations matter for scheduling reform. Part III turns to practitioners and enforcement dynamics, exploring how prescribing regulation and criminal enforcement shape the institutional environment in which reform would operate. Part IV considers opioid treatment programs and harm reduction as institutional case studies, particularly regarding proposed Schedule A, and Part V assesses whether the Article’s proposed reforms constitute structural redesign or incremental layering within the CSA framework.
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