I've been put in touch with enough EA law students looking for bio topics at this point that I think it's probably worth it to just list some topics for further investigation here that could be helpful for US legal researchers or law students.
If you are a US law student interested in using one of these topics for one of your paper classes, please, for the love of god, share it with the community either here by tagging "Biosecurity" and "Law", commenting below that you are taking on this project and then share an update when you are done, share it with Guarding Against Pandemics (firstname.lastname@example.org), share it with Legal Priorities Project (LPP), and try to publish it in a mainstream publication source like LawFare. There is nothing worse than duplicated/wasted efforts, though of course looking at things from multiple lenses can be useful. Okay, here it is (caveating that many of the quarantine research might not be a very good use of time, but they are unknown and should be worked out):
- International comparative law between a hypothetical verification regime under the BWC and the current verification regime under the NPT (as a note, legal lessons in the nuclear law space can often be repurposed for biosecurity law).
- Re-imaging Gibbons v. Ogden (via statute?) to make quarantine/isolation federal rather than state/local ( I think this is for when the people are not commuting between states). There are no clear rules existing either that say precisely when the establish a quarantine, how long it can be maintained, or the size of the area it may cover (although litigation from COVID might be interesting to dig into). What, if anything, can we improve here?
- Neither MSEHPA (that many states have adopted) or most existing state & local laws provide for a medical surge, meaning that if it was the case a virus took out frontline workers, there are no clear laws in place to give authority to replacements. Look into waivers for licensing and certification requirements for caregivers and whether laws could permit the widespread use of volunteers and expressly waive liability for those volunteers.
- In the PHSA (42 USC 201 et seq.), determine whether section 264(b)'s definition for "qualifying stage" for the regulations allowing control/apprehension/examination of individuals would adequately protect against a virus that is latent in detection or symptoms.
- There are Interstate Quarantine Regulations (42 CFR pt. 70) providing for the apprehension and detention of persons with specific diseases as identified via Executive Order. Is the list broad enough (but not unconstitutionally broad) to include novel pathogens not listed? Should tularemia, botulism, or other contagions that could be weaponized be included? Are there any other updates (legislative, judicial, or executive) that would make sense for novel infectious agents with a long latency period?
- No federal regulations exist (to my knowledge) authorizing the imposition of a quarantine following an attack by biological, chemical, radiological, or nuclear weapons. They may authorize the prevention of secondary effects (e.g., transmission) but they do not authorize an immediate quarantine. Please look into and figure out how to update the law.
- Broad-spectrum Antiviral Act: Figure out how to federalize this bill (or bills like it if they exist, and make improvements) without running afoul of the Constitution . Determine strategy ((tax breaks for unis? R&D through exec. branch?) and draft legislative language (e.g., freestanding text or amendments to the Code?). Require the Strategic National Stockpile to also have BSAs? (probably not yet feasible but look into).
- Legal liability for lab leaks -- are there any? Can we create private rights of action? (again here, we can look to nuclear -- this paper gives a good background).
- Dual-use Research of Concern international treaties -- can they be done under any existing schemes (via executive agreements), should we update the BWC to include DURC standards and if so how? Are there export controls that would be effective?
- Can we better regulate DNA synthesis companies? What are the legislative and regulatory updates that would need to happen here? I think HHS's double-stranded DNA synthesis screening guidance might be a good place to start.
- Other resources: Get Richard Posner's "Catastrophe: Risk and Response" and browse the bio sections. There are lots of interesting things we can fix in the regulatory scheme to improve biorisk. Cass Sunstein recently published "Averting Catastrophe" but I have not read it yet -- there could be good ideas in there. I've found Dycus et al.'s section on Responding to Biological Threats and other sections in "National Security Law" very helpful.
Go forth and help save the world :-) Please share other ideas below.