Experimental Jurisprudence of Health and Disability Law

Health law is in its heyday. The COVID-19 pandemic has made health law and disability law prominent in every area of life, including the law school classrooms and faculty meetings. Discussions of vaccine policies, remote teaching, masking as reasonable disability accommodations, rationing of scarce medical equipment, FDA authorization of new treatments, and public health regulation across federal, state, and local levels of governance, dominated many of the [Zoom] conversations in law schools during the last few years. Health law and disability law were therefore upgraded to the status of popular law school classes as well as to more mainstream legal scholars’ research agendas. Experimental jurisprudence scholarship that uses controlled experiments to address jurisprudential questions and investigate legal concepts, language, and intuitions as lay people perceive them, has gained momentum in recent years. As I will show, the use of experiments in this tradition has slowly penetrated the study of health law and disability law. Yet while the use of experiments to study policy and legal issues related to health and disability is off to a promising start, the potential of this approach remains far from being realized. In this essay, I will first show how the use of experiments has helped revisit core concepts in the fields of health law and disability law. I then review three strands of work that emerged in the existing literature on “experimental health and disability law”: the study of framing – the language of public health messaging; measuring perceived deservingness of government benefits; and testing efficacy of physicians’ conflict of interest disclosures. I conclude by pointing to new directions scholars should explore in future work.