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Articles 1 - 30 of 33
Full-Text Articles in Law
Private Certifiers And Deputies In American Health Care, Frank Pasquale
Private Certifiers And Deputies In American Health Care, Frank Pasquale
Frank A. Pasquale
So-called “public programs” in U.S. health care pervasively contract with private entities. The contracting does not merely involve the purchase of drugs, devices, information technology, insurance, and medical care. Rather, government agencies are increasingly outsourcing decisions about the nature and standards for such goods and services to private entities. This Article will examine two models of outsourcing such decisions. In private licensure, firms offer a stamp of approval to certify that a given technology or service is up to statutory or regulatory standards. Via deputization, firms can pursue a regulatory or law enforcement role to correct (and even punish) providers …
Ip Law Book Review: Configuring The Networked Self: Law, Code, And The Play Of Every Day Practice, Frank Pasquale
Ip Law Book Review: Configuring The Networked Self: Law, Code, And The Play Of Every Day Practice, Frank Pasquale
Frank A. Pasquale
Julie Cohen's Configuring the Networked Self is an extraordinarily insightful book. Cohen not only applies extant theory to law; she also distills it into her own distinctive social theory of the information age. Thus, even relatively short sections of chapters of her book often merit article-length close readings. I here offer a brief for the practical importance of Cohen’s theory, and ways it should influence intellectual property policy and scholarship.
Digital Culture Wars: Sopa And The Fight For Control Of Online Content, Frank Pasquale
Digital Culture Wars: Sopa And The Fight For Control Of Online Content, Frank Pasquale
Frank A. Pasquale
No abstract provided.
Paradoxes Of Digital Antitrust, Frank A. Pasquale
Paradoxes Of Digital Antitrust, Frank A. Pasquale
Frank A. Pasquale
No abstract provided.
The Scored Society: Due Process For Automated Predictions, Danielle Keats Citron, Frank A. Pasquale
The Scored Society: Due Process For Automated Predictions, Danielle Keats Citron, Frank A. Pasquale
Frank A. Pasquale
Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail—credit—the law focuses on credit history, not the derivation of scores from data. Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform …
Rankings, Reductionism, And Responsibility , Frank Pasquale
Rankings, Reductionism, And Responsibility , Frank Pasquale
Frank A. Pasquale
After discussing how search engines operate in Part I below, and setting forth a normative basis for regulation of their results in Part II, this piece proposes (in Part III) some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted high-ranking results relating to them, or exclusion from a page they claim it is their “due” to appear on. In the first case (deemed “inclusion harm”), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, …
Accountable Care Organizations In The Affordable Care Act, Frank Pasquale
Accountable Care Organizations In The Affordable Care Act, Frank Pasquale
Frank A. Pasquale
No abstract provided.
The Three Faces Of Retainer Care: Crafting A Tailored Regulatory Response, Frank Pasquale
The Three Faces Of Retainer Care: Crafting A Tailored Regulatory Response, Frank Pasquale
Frank A. Pasquale
Retainer care arrangements allow patients to pay a retainer directly to a physician's office in order to obtain special access to care. Practices usually convert to retainer status by focusing their attention on those willing to pay a retainer fee, and dropping the majority of their patients, who are left to be absorbed by other practices. Also known as "boutique medicine," "concierge care," or "innovative practice design," retainer practices have drawn thousands of enthusiastic patients. They have also provoked scrutiny from politicians and consumer groups. Few recent developments in the business of medicine provoke emotional conflicts like retainer care does. …
Two Concepts Of Immortality: Reframing Public Debate On Stem-Cell Research, Frank Pasquale
Two Concepts Of Immortality: Reframing Public Debate On Stem-Cell Research, Frank Pasquale
Frank A. Pasquale
Abortion, euthanasia, and the death penalty have sparked emotional public debates for the past three decades. Just as these controversies over life-termination have forced us to think systematically about ethics in the public domain, new technologies of life-extension will provoke controversy in the twenty-first century. Known generally as regenerative medicine, the new health care seeks not only to cure disease but to arrest the aging process itself. So far, public attention to regenerative medicine has focused on two of its methods: embryonic stem-cell research and therapeutic cloning. Since both processes manipulate embryos, they alarm many religious groups, particularly those that …
Asterisk Revisited: Debating A Right Of Reply On Search Results, Frank Pasquale
Asterisk Revisited: Debating A Right Of Reply On Search Results, Frank Pasquale
Frank A. Pasquale
No abstract provided.
Access To Medicine In An Era Of Fractal Inequality, Frank Pasquale
Access To Medicine In An Era Of Fractal Inequality, Frank Pasquale
Frank A. Pasquale
Those in the richest countries have far more income and wealth than those in poor countries. Moreover, the most fortunate in the richest countries – particularly those in the top centile of the income distribution – are far richer than those around them. Most dramatically, even within that top centile, the richest of the rich have far more resources than even their elite peers. Like fractals, the patterns of distribution repeat at various levels. This pattern of fractal inequality ensures that spending that seems trivial to those at the top of an income distribution can overwhelm the purchasing power of …
Beyond Napster: Using Antitrust Law To Advance And Enhance Online Music Distribution, Matthew Fagin, Frank Pasquale, Kim Weatherall
Beyond Napster: Using Antitrust Law To Advance And Enhance Online Music Distribution, Matthew Fagin, Frank Pasquale, Kim Weatherall
Frank A. Pasquale
What should be the broad principles guiding the copyright and competition policy governing online music? In short, what are the key concerns or values that we want preserved in relation to the distribution of music online? We will outline the background to the present investigations and existing law in Part I and argue in Part II that these concerns can be encapsulated in two broad areas: (1) the preservation of some scope for private and personal use and (2) the encouragement and growth of a diverse sector for the distribution of copyrighted works online. We also argue that, at least …
Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale
Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale
Frank A. Pasquale
The fair use defense in copyright law shields an intellectual commons of protected uses of copyrighted material from infringement actions. In determining whether a given use is fair, courts must assess the new use's potential effect on the market for the copyrighted work. Fair use jurisprudence too often fails to address the complementary, network, and long-range effects of new technologies on the market for copyrighted works. These effects parallel the indirect, direct, and option values of biodiversity recently recognized by environmental economists. Their sophisticated methods for valuing natural resources in tangible commons can inform legal efforts to address the intellectual …
Restoring Transparency To Automated Authority, Frank Pasquale
Restoring Transparency To Automated Authority, Frank Pasquale
Frank A. Pasquale
Leading finance, health care, and internet firms shroud key operations in secrecy. Our markets, research, and life online are increasingly mediated by institutions that suffer serious transparency deficits. When a private entity grows important enough, it should be subject to transparency requirements that reflect its centrality. The increasing intertwining of governmental, business, and academic entities should provide some leverage for public-spirited appropriators and policymakers to insist on more general openness. However well an "invisible hand" coordinates economic activity generally, markets depend on reliable information about the practices of core firms that finance, rank, and rate entities in the rest of …
William H. Sorrell, Attorney General Of Vermont, Et Al. V. Ims Health Inc., Et Al. - Amicus Brief In Support Of Petitioners, Kevin Outterson, David Orentlicher, Christopher Robertson, Frank Pasquale
William H. Sorrell, Attorney General Of Vermont, Et Al. V. Ims Health Inc., Et Al. - Amicus Brief In Support Of Petitioners, Kevin Outterson, David Orentlicher, Christopher Robertson, Frank Pasquale
Frank A. Pasquale
On April 26, 2011, the US Supreme Court will hear oral arguments in the Vermont data mining case, Sorrell v. IMS Health Inc. Respondents claim this is the most important commercial speech case in a decade. Petitioner (the State of Vermont) argues this is the most important medical privacy case since Whalen v. Roe. The is an amicus brief supporting Vermont, written by law professors and submitted on behalf of the New England Journal of Medicine
Trusting (And Verifying) Online Intermediaries' Policing, Frank A. Pasquale
Trusting (And Verifying) Online Intermediaries' Policing, Frank A. Pasquale
Frank A. Pasquale
All is not well in the land of online self-regulation. However competently internet intermediaries police their sites, nagging questions will remain about their fairness and objectivity in doing so. Is Comcast blocking BitTorrent to stop infringement, to manage traffic, or to decrease access to content that competes with its own for viewers? How much digital due process does Google need to give a site it accuses of harboring malware? If Facebook censors a video of war carnage, is that a token of respect for the wounded or one more reflexive effort of a major company to ingratiate itself with the …
Ending The Specialty Hospital Wars: A Plea For Pilot Programs As Information-Forcing Regulatory Design, Frank Pasquale
Ending The Specialty Hospital Wars: A Plea For Pilot Programs As Information-Forcing Regulatory Design, Frank Pasquale
Frank A. Pasquale
This chapter focuses on the need for more targeted assessment of the impact of market forces on communities. Pilot programs encourage experimentation in the delivery system without risking widespread disruption of care for the uninsured and emergency services. The Center for Medicare & Medicaid Services (CMS) has already embraced the idea of pilot programs in other contexts, and they could be especially appropriate if specialty hospitals were permitted in markets where general hospitals had a demonstrably poor record of community service. In such markets, cross-subsidization is probably already low, and specialty hospital threats to it are not as much of …
Technology, Competition, And Values, Frank Pasquale
Technology, Competition, And Values, Frank Pasquale
Frank A. Pasquale
Law can advance or retard the distributive effects of innovation and its diffusion in many ways. Certain technologies merit special monitoring because they promote the leveraging of economic advantage into social or cultural advantage without substantially increasing overall social welfare. Others threaten to undermine collective values and perceptions commonly used to evaluate technology. A final category threatens to do both, creating unfair or wasteful competition while blunting our capacity to recognize its morally dubious character. As new sectors of life become more game-like and competitive, methods of leveling the playing field developed in sports and college admissions might become more …
Network Accountability For The Domestic Intelligence Apparatus, Danielle Citron, Frank Pasquale
Network Accountability For The Domestic Intelligence Apparatus, Danielle Citron, Frank Pasquale
Frank A. Pasquale
A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security. While many scholars have assumed that this network represents a trade-off between security and civil liberties, our …
Privacy, Antitrust, And Power, Frank Pasquale
Privacy, Antitrust, And Power, Frank Pasquale
Frank A. Pasquale
When a dominant internet service collects information about its users, the situation is so far from the usual arm’s-length market transaction that neoclassical economic analysis is misleading. “Lack of surveillance” is not a product that individuals have varying preferences for and purchase accordingly. Rather, surveillance is an inevitable concomitant of life online. We need to tame the power that surveillance entails, rather than continuing to pursue illusory, surveillance-free alternatives on the platform level. To the extent a company creates profiles of individuals and collects data on them, a third party ought to be collecting reports from the company on how …
Internet Nondiscrimination Principles: Commercial Ethics For Carriers And Search Engines, Frank Pasquale
Internet Nondiscrimination Principles: Commercial Ethics For Carriers And Search Engines, Frank Pasquale
Frank A. Pasquale
Unaccountable power at any layer of online life can stifle innovation elsewhere. Dominant search engines rightly worry that carriers will use their control of the physical layer of internet infrastructure to pick winners among content and application providers. Though they advocate net neutrality, they have been much less quick to recognize the threat to openness and fair play their own practices may pose. Just as dominant search engines fear an unfairly tiered online world, they should be required to provide access to their archives and indices in a nondiscriminatory manner. If dominant search engines want carriers to disclose their traffic …
Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale
Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale
Frank A. Pasquale
Environmental laws are designed to reduce negative externalities (such as pollution) that harm the natural environment. Copyright law should adjust the rights of content creators in order to compensate for the ways they reduce the usefulness of the information environment as a whole. Every new work created contributes to the store of expression, but also makes it more difficult to find whatever work one wants. Such search costs have been well-documented in information economics. Copyright law should take information overload externalities like search costs into account in its treatment of alleged copyright infringers whose work merely attempts to index, organize, …
Joining Or Changing The Conversation? Catholic Social Thought And Intellectual Property, Frank Pasquale
Joining Or Changing The Conversation? Catholic Social Thought And Intellectual Property, Frank Pasquale
Frank A. Pasquale
No abstract provided.
Federal Search Commission? Access, Fairness, And Accountability In The Law Of Search, Oren Bracha, Frank Pasquale
Federal Search Commission? Access, Fairness, And Accountability In The Law Of Search, Oren Bracha, Frank Pasquale
Frank A. Pasquale
Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets. After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may …
Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale
Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale
Frank A. Pasquale
The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal. In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …
The Future Of Hipaa In The Cloud, Frank Pasquale, Tara Adams Ragone
The Future Of Hipaa In The Cloud, Frank Pasquale, Tara Adams Ragone
Frank A. Pasquale
This white paper examines how cloud computing generates new privacy challenges for both healthcare providers and patients, and how American health privacy laws may be interpreted or amended to address these challenges. Given the current implementation of Meaningful Use rules for health information technology and the Omnibus HIPAA Rule in health care generally, the stage is now set for a distinctive law of “health information” to emerge. HIPAA has come of age of late, with more aggressive enforcement efforts targeting wayward healthcare providers and entities. Nevertheless, more needs to be done to assure that health privacy and all the values …
Cognition-Enhancing Drugs: Can We Say No?, Frank Pasquale
Cognition-Enhancing Drugs: Can We Say No?, Frank Pasquale
Frank A. Pasquale
Normative analysis of cognition-enhancing drugs frequently weighs the liberty interests of drug users against egalitarian commitments to a "level playing field." Yet those who would refuse to engage in neuroenhancement may well find their liberty to do so limited in a society where such drugs are widespread. To the extent that unvarnished emotional responses are world-disclosive, neurocosmetic practices also threaten to provide a form of faulty data to their users. This essay examines underappreciated liberty-based and epistemic rationales for regulating cognition-enhancing drugs.
Rankings, Reductionism, And Responsibility, Frank Pasquale
Rankings, Reductionism, And Responsibility, Frank Pasquale
Frank A. Pasquale
After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …
Beyond Innovation And Competition: The Need For Qualified Transparency In Internet Intermediaries, Frank Pasquale
Beyond Innovation And Competition: The Need For Qualified Transparency In Internet Intermediaries, Frank Pasquale
Frank A. Pasquale
Internet service providers and search engines have mapped the web, accelerated e-commerce, and empowered new communities. They also pose new challenges for law. Individuals are rapidly losing the ability to affect their own image on the web - or even to know what data are presented about them. When web users attempt to find information or entertainment, they have little assurance that a carrier or search engine is not biasing the presentation of results in accordance with its own commercial interests. Technology’s impact on privacy and democratic culture needs to be at the center of internet policy-making. Yet before they …
Grand Bargains For Big Data: The Emerging Law Of Health Information, Frank Pasquale
Grand Bargains For Big Data: The Emerging Law Of Health Information, Frank Pasquale
Frank A. Pasquale
No abstract provided.