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Articles 1 - 30 of 858
Full-Text Articles in Entire DC Network
Prosecuting Excessive Pricing Of Pharmaceuticals Under Competition Law: Evolutionary Development, Frederick M. Abbott
Prosecuting Excessive Pricing Of Pharmaceuticals Under Competition Law: Evolutionary Development, Frederick M. Abbott
Scholarly Publications
Prosecution of pharmaceutical companies for excessive pricing of products under competition law is now a reality. As recently as a decade ago, such prosecutions were virtually nonexistent. That situation has changed dramatically as competition authorities in Europe and South Africa have pursued a significant number of such prosecutions and have levied substantial fines against the investigated parties. While the United States has traditionally led in policing the pharmaceutical market against anticompetitive misconduct, in this specific arena it has fallen behind, principally because federal courts so far have refused to acknowledge excessive pricing as a cause of action under Section 2 …
Climate Change And The Challenge To Liberalism, Jacob Eisler
Climate Change And The Challenge To Liberalism, Jacob Eisler
Scholarly Publications
In this editorial, we consider the ways in which liberal constitutionalism is challenged by and presents challenges to the climate crisis facing the world. Over recent decades, efforts to mitigate the climate crisis have generated a new set of norms for states and non-state actors, including regulatory norms (emission standards, carbon regulations), organising principles (common but differentiated responsibility) and fundamental norms (climate justice, intergenerational rights, human rights). However, like all norms, these remain contested. Particularly in light of their global reach, their specific behavioural implications and interpretations and the related obligations to act remain debatable and the overwhelming institutionalization of …
Implied Organizations And Technological Governance, Shawn Bayern
Implied Organizations And Technological Governance, Shawn Bayern
Scholarly Publications
Common law historically adapted creatively and gracefully to the emergence of new types of organizations. Today, statutory forms of organizations predominate. But statutory organizational forms may be ill-suited to govern the novel, loosely coupled, and rapidly changing organizations that can arise through distributed technological mechanisms. This Article suggests that the common law of implied organizations can be a fertile ground for legal responses to technological organizations and indeed may be important not just for regulating such organizations but for giving them important legal capabilities.
100 Years Of International Ip - Reflections On Past, Present And Future, Frederick M. Abbott
100 Years Of International Ip - Reflections On Past, Present And Future, Frederick M. Abbott
Scholarly Publications
We have been asked to reflect on the past 100 years of international intellectual property law and to try to project forward about what changes might be necessary or desirable in the future. Only a science fiction writer would purport to have some idea about what things might look like a hundred years in the future, including from the standpoint of international intellectual property, so my remarks on that will be somewhat more proximate to the present.
The Public Trust Doctrine, Property, And Society, Erin Ryan
The Public Trust Doctrine, Property, And Society, Erin Ryan
Scholarly Publications
The public trust doctrine creates a set of sovereign rights and responsibilities with regard to certain resource commons, obligating the state to manage them in trust for the public. In the last century, the doctrine has gradually transformed from an affirmation of sovereign authority over trust resources to a recognition of sovereign responsibility to protect them for present and future generations. Especially in the United States, it has evolved through common, constitutional, and statutory law to protect a broader variety of resources and associated values, including ecological, recreational, and scenic values. Today, the doctrine is frequently invoked in natural resource …
Circuit Circus: Defying Scotus And Disenfranchising Black Voters, Charquia Wright
Circuit Circus: Defying Scotus And Disenfranchising Black Voters, Charquia Wright
Scholarly Publications
Law students are uniformly taught thatfederal circuit courts cannot and will not overrule Supreme Court precedent under any circumstance. This is not true. They can, with little fear of corrective mechanisms like en banc oversight, Supreme Court review, or congressional override. And in certain circumstances, they are bound to do so by the law of the circuit. Under the prudential law of the circuit doctrine in-circuit precedent binds circuit courts, even in scenarios where conflicting long-standing Supreme Court precedent exists. Circuits can only depart from erroneous circuit precedent ifa later-decided SCOTUS or en banc decision obviates the circuit precedent. This …
Conceptualising Corruption And The Rule Of Law, Jacob Eisler
Conceptualising Corruption And The Rule Of Law, Jacob Eisler
Scholarly Publications
No abstract provided.
The Pendulum Swings Back: New Authoritarian Threats To Liberal Democratic Constitutionalism, Jacob Eisler
The Pendulum Swings Back: New Authoritarian Threats To Liberal Democratic Constitutionalism, Jacob Eisler
Scholarly Publications
No abstract provided.
Government Speech And The Establishment Clause, Alexander Tsesis
Government Speech And The Establishment Clause, Alexander Tsesis
Scholarly Publications
This Article argues that the Establishment Clause prohibits public actors or agencies from adopting religious messages and symbols. The limitation is explicitly stated in the First Amendment, which restricts government from encroaching on religious belief and ritual. Separation between private and public spheres protects thought, belief, and practice under the Free Exercise Clause and prevents official orthodoxy under the Establishment Clause. One religion clause requires government to respect deeply held personal beliefs that are parallel to beliefs in God, while the other clause prohibits government from participating in sectarian conduct. Government speech can describe, explain, contextualize, and characterize religious rituals …
Damned Causation, Elissa Philip Gentry
Damned Causation, Elissa Philip Gentry
Scholarly Publications
The inherent mismatch between the questions law asks and the answers statistics provides has led courts to create arbitrary rules for statistical evidence. Adherence to these rules undermines deterrence goals and runs the risk of depriving recovery for whole categories of injuries. In response, some courts adopt new theories of recovery, relying on the loss of chance doctrine to provide some relief to injured plaintiffs. These solutions, however, only serve to exacerbate the fundamental misunderstanding of probabilities. While these doctrines largely operate within the context of medical malpractice, the increased ability to capture more statistical data may prompt courts to …
Private Rights Of Action In Privacy Law, Lauren Henry Scholz
Private Rights Of Action In Privacy Law, Lauren Henry Scholz
Scholarly Publications
Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the government's power to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regimes more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the …
Police Ignorance And (Un)Reasonable Fourth Amendment Exclusion, Nadia Banteka
Police Ignorance And (Un)Reasonable Fourth Amendment Exclusion, Nadia Banteka
Scholarly Publications
The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it every day to decide Fourth Amendment violations as well as defendants' motions to suppress evidence obtained through these violations, virtually every aspect of the doctrine is a subject of fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in "good faith," meaning the officer reasonably, albeit mistakenly, believed the search or seizure was …
Rethinking Constitutionally Impermissible Punishment, Nadia Banteka
Rethinking Constitutionally Impermissible Punishment, Nadia Banteka
Scholarly Publications
Prisons and jails endanger the health and wellbeing of incarcerated individuals and their communities. These facilities are often overcrowded and unsanitary,1 with limited access to medical care, 2 and no basic sanitation and personal hygiene products unless a person can pay the spiked prices of the jail's commissary.3 Public health emergencies compound these dangers. Most recently, the spread of the COVID-19 pandemic created a crisis for people in detention, their families, and the communities surrounding jails and prisons. For over a year, there were no vaccines against COVID-19, new strains of the virus continue to evade vaccine-induced immunity, and there …
Patents On Psychedelics: The Next Legal Battlefront Of Drug Development, Mason Marks, I. Glenn Cohen
Patents On Psychedelics: The Next Legal Battlefront Of Drug Development, Mason Marks, I. Glenn Cohen
Scholarly Publications
In the past two decades, pioneering research has rekindled interest in the therapeutic use of psychedelic substances such as psilocybin, ibogaine, and dimethyltryptamine (DMT). Indigenous communities have used them for centuries, and researchers studied them in the i9gos and '6cs. However, most psychedelics were banned in the '7os, when President Nixon launched the U.S. war on drugs. Fifty years later, rising rates of mental illness, substance use, and suicide are prompting researchers to revisit psychedelics, and some have gained permission to study them in limited quantities. Clinical trials are producing promising results, creating enthusiasm for commercializing and patenting psychedelics. This …
Automating Fda Regulation, Mason Marks
Automating Fda Regulation, Mason Marks
Scholarly Publications
In the twentieth century, the Food and Drug Administration ("FDA") rose to prominence as a respected scientific agency. By the middle of the century, it transformed the US. medical marketplace from an unregulated haven for dangerous products and false claims to a respected exemplar of public health. More recently, the FDA's objectivity has increasingly been questioned. Critics argue the agency has become overly political and too accommodating to industry while lowering its standards for safety and efficacy. The FDA's accelerated pathways for product testing and approval are partly to blame. They require lower-quality evidence, such as surrogate endpoints, and shift …
Two Cheers For Cyborgs, Lauren Henry Scholz
Two Cheers For Cyborgs, Lauren Henry Scholz
Scholarly Publications
No abstract provided.
Rethinking The Government Speech Doctrine, Post-Trump, Jacob Eisler
Rethinking The Government Speech Doctrine, Post-Trump, Jacob Eisler
Scholarly Publications
The Supreme Court has held that when the government speaks, it faces few constitutional constraints, including adherence to viewpoint neutrality. The Court has indicated that if voters dislike the content of governmental speech, they should express this displeasure through democratic process. Yet the inadequacy of this logic has been exposed by the Trump presidency, which reflected extraordinary willingness to defy norms and conventions of the presidency, including the expectation that the office would not be abused to advance partisan goals or attack political enemies. Since many of Trump's statements had the precise aim of influencing popular self-determination, his presidency shows …
Who Owns The Critical Vision In International Legal History?: Reflections On Anne Orford's International Law And The Politics Of History, Afroditi Giovanopoulou
Who Owns The Critical Vision In International Legal History?: Reflections On Anne Orford's International Law And The Politics Of History, Afroditi Giovanopoulou
Scholarly Publications
No abstract provided.
Business Law Beyond Business, Shawn Bayern
Business Law Beyond Business, Shawn Bayern
Scholarly Publications
The law of modern business entities is poorly understood from a comprehensive perspective. This area of law has changed significantly in the last several decades in ways that have gone largely unnoticed. The lack of attention is unfortunate because developments in the law of business-entity governance have implications for many other areas of law, beyond what are normally conceived as business-law subjects. Modern organizational statutes create something new to the legal system: a legal entity that is governed only or mainly by an operating agreement and that is capable of holding basic legal rights and forming fundamental legal relationships (like …
Environmental Law, Disrupted By Covid-19, Erin Ryan
Environmental Law, Disrupted By Covid-19, Erin Ryan
Scholarly Publications
For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year.
Arrested Development: The Decline Of Legality In Consumer Contract Law, Lauren Henry Scholz
Arrested Development: The Decline Of Legality In Consumer Contract Law, Lauren Henry Scholz
Scholarly Publications
No abstract provided.
Artificially Intelligent Persons, Nadia Banteka
Artificially Intelligent Persons, Nadia Banteka
Scholarly Publications
Artificial Intelligence (AI) entities seriously challenge traditional legal frameworks for attribution and liability because they operate at an increasing distance from their developers and owners, resulting in accountability gaps. Consider a scenario in which a self-driving car causes injury or even death to a human. Who do we hold accountable? We have no clear answer as to who can be sued or prosecuted because we lack a comprehensive legal understanding of AI entities. Many scholars propose as a solution to the accountability problem attaching liability to the direct source of the harm, the Al entity itself, by first granting it …
Contaminated Relationships In The Opioid Crisis, Elissa Philip Gentry, Benjamin J. Mcmichael
Contaminated Relationships In The Opioid Crisis, Elissa Philip Gentry, Benjamin J. Mcmichael
Scholarly Publications
Unlike past public health crises, the opioid crisis arose from within the healthcare system itself Entities within that system, particularly opioid manufacturers, may bear some liability in sparking and perpetuating the current crisis. Unsurprisingly, the allegations underlying the thousands of claims filed in connection with the opioid crisis differ substantially. However, almost all of those claims rely, to some degree, on the strength ofthe relationship between opioid manufacturers and the healthcare providers who prescribed their products. This Article argues that the underlying relationship is the heart of the crisis and that this problematic relationship is by no means a thing …
Emergent Medical Data: Health Information Inferred By Artificial Intelligence, Mason Marks
Emergent Medical Data: Health Information Inferred By Artificial Intelligence, Mason Marks
Scholarly Publications
Artificial intelligence (AI) can infer health data from people's behavior even when their behavior has no apparent connection to their health. Al can monitor one's location to track the spread of infectious disease, scrutinize retail purchases to identify pregnant customers, and analyze social media to predict who might attempt suicide. These feats are possible because, in modern societies, people continuously interact with internet-enabled software and devices. Smartphones, wearables, and online platforms monitor people's actions and produce digital traces, the electronic remnants of their behavior. In their raw form, digital traces might not be vey interesting or useful; one's location, retail …
Biosupremacy: Big Data, Antitrust, And Monopolistic Power Over Human Behavior, Mason Marks
Biosupremacy: Big Data, Antitrust, And Monopolistic Power Over Human Behavior, Mason Marks
Scholarly Publications
Since 2001, five leading technology companies have acquired more than 600 other firms while avoiding antitrust enforcement. By accumulating technologies in adjacent or unrelated industries, these companies have grown so powerful that their influence over human affairs equals that of many governments. Their power stems from data collected by devices that people welcome into their homes, workplaces, schools, and public spaces. When paired with artificial intelligence, these devices form a vast surveillance network that sorts people into increasingly specific categories related to health, sexuality, religion, and other categories. However, this surveillance network was not created solely to observe human behavior; …
A Socially Beneficial False Claims Act?, Elissa Philip Gentry
A Socially Beneficial False Claims Act?, Elissa Philip Gentry
Scholarly Publications
No abstract provided.
After Trump, Jacob Eisler
The Exaggerated Rumors Of Death Of Unconscionability, Shawn Bayern
The Exaggerated Rumors Of Death Of Unconscionability, Shawn Bayern
Scholarly Publications
Review of Upgrading Unconscionability: A Common Law Ally for a Digital World, 81 Md. L. Rev. 46 (2022), by Babette E. Boliek
Child-Proofing Global Public Health In Anticipation Of Emergency, Frederick M. Abbott
Child-Proofing Global Public Health In Anticipation Of Emergency, Frederick M. Abbott
Scholarly Publications
No abstract provided.
The Twin Environmental Law Problems Of Preemption And Political Scale, Erin Ryan
The Twin Environmental Law Problems Of Preemption And Political Scale, Erin Ryan
Scholarly Publications
This is a daunting moment for the United States environmental movement. Since 2017, it often seems that federal environmental law is being systematically dismantled—most aggressively by the executive branch, but with tacit support from much of the sitting legislature, and likely with increasing support from the judiciary as well. For environmentalists, the assault on the regulatory accomplishments made over decades of previous lawmaking is cause for grief, but it also compels preparation for the challenges yet to come. This chapter advises environmentalists to resist federal preemption of state regulation and to think creatively about how to accomplish the goals of …