Health care today is the most regulated industry in America. Statutes and regulations govern everything from licensing and insurance to privacy and emergency care. In pursuit of the iron triangle of improved access, better quality, and lower cost, health law scholars have long focused on “public law,” or law that involves governmental action, including action by administrative agencies at both the state and federal levels.

Shortly after the presidential election of 1968, the honored liberal cartoonist Herblock, a longtime and bitter critic of Richard Nixon, published a cartoon in the Washington Post. Herblock had previously depicted Nixon with a nasty-looking five o’clock shadow. Now, there is a sign in the cartoonist's barbershop: “This shop gives to every new president of the United States a free shave.” Herblock suggested that each elected leader deserves a fresh start, even the ones we dislike.

Some presidents do not receive their free shave. For some elected leaders, a significant portion of the population despises them during the campaign, and these emotions only grow stronger after the election. This is often true for the victors and the vanquished alike, who can each generate feelings of disgust.

In a political system committed to electoral democracy, this is puzzling. Given the likelihood of skeletons in the closets of some (if not most) prominent public servants, why should the public reputation of political figures adored by many come to be reviled by others? How is partisan success meaningfully linked with public representations of moral failure or despicable character? How might collective memory of polarizing presidencies in polarized times be shaped through the uses (and abuses) of the reputations of controversial political figures? Why, given our case, were Donald Trump and Hillary Clinton, two accomplished Americans in their own ways, so intensely disliked by large segments of the electorate? Why, once elected, did Donald Trump not receive his free shave?

To explore the creation of contentious reputations, our chapter builds on an earlier analysis (Fine and Eisenberg, 2002) that described the barbed animosity aimed at Richard Milhous Nixon and William Jefferson Clinton. These two United States presidents were elected for two terms each despite numerous detractors who not only rejected their policies – a legitimate practice in competitive democracies – but loathed their personas and their pasts, suggesting that as persons they lacked integrity and as presidents they lacked legitimacy. In the eyes of detractors, a president with a loathsome reputation threatens the authority of the office. That essay argued that the hatred was tied to generational politics: Nixon was linked to his role in the McCarthy, communist-hunting era of the late 1940s and early 1950s, and Clinton to the radical youth politics of the 1960s that he and his wife symbolized.

Medical devices have historically been less regulated than their drug and biologic counterparts. A benefit of this less demanding regulatory regime is facilitating innovation by making new devices available to consumers in a timely fashion. Nevertheless, there is increasing concern that this approach raises serious public health and safety concerns. The Institute of Medicine in 2011 published a critique of the American pathway allowing moderate-risk devices to be brought to the market through the less-rigorous 501(k) pathway, flagging a need for increased postmarket review and surveillance. High-profile recalls of medical devices, such as vaginal mesh products, along with reports globally of nearly two million injuries and more than 80,000 deaths linked to faulty medical devices, have raised public health critiques regarding the oversight of these products. Should we follow the recommendation of the Institute of Medicine to reduce the use of the 510(k) pathway, and, if so, what should replace it? What would an ideal regulatory pathway, reflecting the twin goals of innovation and patient protection, look like in the twenty-first century? These questions are complicated by new tools and mechanisms that can be used to achieve our goals. For example, in an era of big data, where we have the capabilities to better follow postmarket incidents, what should postmarket review look like?