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Preparing for the Apocalypse: a Multi-Prong Proposal to Develop Countermeasures for Biological, Chemical, Radiological, and Nuclear Threats

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Preparing for the Apocalypse: a Multi-Prong Proposal to Develop Countermeasures for Biological, Chemical, Radiological, and Nuclear Threats Case Western Reserve University School of Law Scholarly Commons Faculty Publications 2018 Preparing for the Apocalypse: a Multi-Prong Proposal to Develop Countermeasures for Biological, Chemical, Radiological, and Nuclear Threats Constance E. Bagley Case Western University School of Law, [email protected] Anat Alon-Beck Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Law Commons Repository Citation Bagley, Constance E. and Alon-Beck, Anat, "Preparing for the Apocalypse: a Multi-Prong Proposal to Develop Countermeasures for Biological, Chemical, Radiological, and Nuclear Threats" (2018). Faculty Publications. 2048. https://scholarlycommons.law.case.edu/faculty_publications/2048 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Bagley.Beck.40.2.7 (Do Not Delete) 1/17/2019 6:14 PM PREPARING FOR THE APOCALYPSE: A MULTI-PRONG PROPOSAL TO DEVELOP COUNTERMEASURES FOR CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR THREATS Constance E. Bagley† & Anat Alon-Beck* “Governments will always play a huge part in solving big problems. They also fund basic research, which is a crucial component of the innovation that improves life for everyone.” —Bill Gates1 The false alarm of a Hawaiian nuclear attack in January 2018 is an example of the lack of U.S. preparedness for attacks using nuclear and other weapons of mass destruction. To address such threats, this Article proposes the establishment of a nationwide integrated defense of health countermeasures initiative (DHCI). DHCI is a multi-prong program to create a defensive triad comprising government, private † Senior Research Fellow at Yale University and former Professor in the Practice of Law and Management at Yale School of Management, Senior Research Scholar at Yale Law School, Associate Professor at Harvard Business School, and Senior Lecturer in Law and Management at Stanford University Graduate School of Business. A.B. with Distinction and Honors, Stanford University; J.D., magna cum laude, Harvard Law School; and honorary doctorate in economics, Lund University. * Jacobson Fellow in Law and Business at NYU School of Law. LL.B., Tel Aviv University School of Law, LL.M.; J.S.D., with honors, Cornell Law School. The authors would like to thank Mostafa Analoui, Mark Armitage, Michael Burstein, Gary Eichenbaum, Mirit Eyal-Cohen, Jo Handelsman, Robert Hockett, Gene Keselman, Joseph Larsen, Fiona E. Murray, Mark Scheideler, Helen Scott, Lynn Stout, Katherine J. Strandburg, and Robert Urban, as well as the participants in the Clinical Innovation: Fair and Effective Incentives for New Uses of Established Drugs conference sponsored by University College London and the Georgetown University Law Center and in the annual meeting of the Association of University Technology Managers (both in February 2018) for their insights. We also acknowledge the invaluable assistance provided by research associate extraordinaire Sue Schillaci. Any errors are our own. 1 COLLABORATIVE INNOVATION IN DRUG DISCOVERY: STRATEGIES FOR PUBLIC AND PRIVATE PARTNERSHIPS x (Rathnam Chaguturu ed., 2014) (alteration in original) [hereinafter Chaguturu]. 823 Bagley.Beck.40.2.7 (Do Not Delete) 1/17/2019 6:14 PM 824 CARDOZO LAW REVIEW [Vol. 40:823 industry, and academia to develop countermeasures for health threats posed by chemical, biological, radiological, and nuclear (CBRN) attacks. Key elements of our proposal include the use of the government’s Other Transaction Authority to simplify procurement arrangements, the establishment of public-private partnerships with an information commons for the sharing and use of certain information and trusted intermediaries to protect proprietary information pursuant to cooperative research and development agreements, and the creation of a network of incubators sited in ecosystems of excellence. Although our proposal focuses on health countermeasures, it may be applied to other urgent national needs, such as rebuilding U.S. infrastructure. TABLE OF CONTENTS INTRODUCTION: TWO MINUTES TO THE APOCALYPSE ..................................................826 I. GOVERNMENT AS MARKET ACTOR ..........................................................................834 A. The Defense Advanced Research Projects Agency (DARPA) ...................835 B. In-Q-Tel .........................................................................................................838 C. 21st Century Cures Act: Big Data and Artificial Intelligence ..................841 D. Need for Additional Government Intervention for CBRN Countermeasures ..........................................................................................842 II. EXISTING MEASURES TO DEAL WITH THE THREAT OF CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR ATTACKS .......................................847 A. The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 ....................................................................................848 B. BioShield ........................................................................................................850 C. BARDA and OTA .........................................................................................855 1. Other Transaction Authority ..........................................................856 2. Use of OTA to Form Public-Private Partnerships .......................857 D. The Model State Emergency Health Powers Act........................................860 III. DEFENSE OF HEALTH COUNTERMEASURES INITIATIVE ..........................................860 A. Technology Innovation and Business Incubators: In General .................862 B. The Israeli Technology Incubator Program ...............................................865 1. Governance ........................................................................................866 2. Financing Mechanisms and Services Provided ............................867 3. Annual Evaluations and Possibility of Additional Governmental Support in Rare Cases ............................................868 4. Privatization in 2002 ........................................................................869 5. Results ................................................................................................870 C. Proposed Structure of DHCI Incubators ....................................................871 1. Shared Use Facilities .........................................................................871 Bagley.Beck.40.2.7 (Do Not Delete) 1/17/2019 6:14 PM 2018] PREPARING FOR THE APOCALYPSE 825 2. Sponsors: DARPA and the Proposed Central Health Incubators Bureau ............................................................................873 3. Stakeholder Engagement .................................................................874 4. Structure of Incubators ....................................................................876 5. Financing ...........................................................................................877 6. Other Governmental Actors and their Roles ................................878 7. Management ......................................................................................880 a. Selecting the Top Program Managers for the Incubators ..............................................................................880 i. Selecting Internal Executive Program Managers ....881 ii. Selecting Trusted Partners or Intermediaries to Serve as Top Program Managers ............................882 b. Selection of Project Managers of Portfolio Companies .............................................................................883 c. Business Plans for the Incubators and Portfolio Company Operations ...........................................................883 8. Steering Committee ..........................................................................885 9. Key Elements of the Public-Private Partnership Management Contract .....................................................................885 10. Selection and Evaluation of Projects and Portfolio Companies .........................................................................................889 11. Management Incentives to Prevent Adverse Selection, Conflicts of Interest, Shirking, and Political Capture ..................891 12. Open Innovation and the Creation and Governance of a Commons ..........................................................................................893 13. Ecosystems of Excellence .................................................................895 IV. CHALLENGES AND SOLUTIONS .................................................................................897 A. Reluctance to Deal with the Government ...................................................897 B. Lack of a Unified Healthcare Infrastructure ..............................................899 C. Uncertainty, High-Risk, and Asymmetric Information Barriers .............899 D. Political Capture of Business Objectives .....................................................900 CONCLUSION......................................................................................................................901 Bagley.Beck.40.2.7 (Do Not Delete) 1/17/2019 6:14 PM 826 CARDOZO LAW REVIEW [Vol. 40:823 INTRODUCTION:
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