Law Commons^™

Stumbling Over Trips: The International Intellectual Property Waiver Petition And The U.S. Executive, Jordan Paradise, Christina Conroy

Faculty Publications & Other Works

This article examines the relationship among intellectual property (IP) law protections; United States (U.S.) and international law and policy; and the actualization of diagnostics, drugs, and vaccines in the time of the COVID-19 coronavirus. Two key international treaties that relate to IP law--The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and the Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration) - establish international norms for the protection of IP. Core aspects of each of these treaties are described along with the role of the World Trade Organization (WTO) and concepts of compulsory licensing. As a result …

The Racist Roots Of The War On Drugs & The Myth Of Equal Protection For People Of Color, Steven A. Ramirez, Andre Douglas Pond Cummings

Faculty Publications & Other Works

By 2021, the costs and pain arising from the propagation of the American racial hierarchy reached such heights that calls for anti-racism and criminal justice reform dramatically expanded. The brutal murder of George Floyd by the Minneapolis police vividly proved that the social construction of race in America directly conflicted with supposed American values of equal protection under law and notions of basic justice. The racially-driven War on Drugs (WOD) fuels much of the dissonance between American legal mythology—such as the non-discrimination principle and the impartial administration of the rule of law—and the reality of race in the United States. …

Roadmap For Anti-Racism: First Unwind The War On Drugs Now, Steven A. Ramirez, Andre Douglas Pond Cummings

Faculty Publications & Other Works

The War on Drugs (WOD) transmogrified into a war on communities of color early in its history, and its impact has devastated communities of color first and foremost. People of color disproportionately suffer incarceration in the WOD even though people of color use illegal narcotics at substantially lower rates than white Americans. As a result, the WOD led to mass incarceration of people of color at many times the rate of white Americans. Indeed, as a stark illustration of the power of race in America, even after Illinois and Colorado legalized cannabis, over-policing in communities of color resulted in a …

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Faculty Publications & Other Works

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

Ethical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Traditional claims of medical malpractice arise from deviations from medical standards of care regarding knowledge, professional decision-making, or technical skill. While many standards of ethical behavior are just as firmly rooted in medical custom as these more technical standards, U.S. courts have typically been unwilling to acknowledge ethical violations as compensable breaches of legal duty. This Article poses a question that should be at the forefront of discussions about medical liability in the 21st century – whether malpractice law should evolve to recognize violations of professional ethical norms as a basis for tort liability. In evaluating this question, it draws …

The Demise Of The Bivens Remedy Is Rendering Enforcement Of Federal Constitutional Rights Inequitable But Congress Can Fix It, Henry Rose

Faculty Publications & Other Works

A federal statute, 42 U.S.C. 1983, allows a person whose federal constitutional rights are violated by state actors to sue them for damages to compensate for the harm caused by the constitutional violations. There is no analogous federal statute that allows a person whose federal constitutional rights have been violated by federal actors to sue them for damages to compensate for the harm caused by the constitutional violations. The United States Supreme Court allowed Webster Bivens, a man who sued federal law enforcement officials for falsely arresting and physically abusing him in violation of his Fourth Amendment rights, to sue …

Compelled Speech And Proportionality, Alexander Tsesis

Faculty Publications & Other Works

This Article argues for a proportional First Amendment approach to compelled speech jurisprudence. It discusses the evolution of doctrine and how it led to recent opinions finding unconstitutional consumer protection, health disclosure, and collective bargaining statutes. In place of the currently formalistic approach, the Article argues for a transparent balancing of interests to avoid litigants’ opportunistic reliance on categorical First Amendment doctrines. Missing from the recent decisions that relied on the compelled speech doctrine is any systematic or contextual weighing of private and public concerns about disclosure regulations. The Roberts Court has been rather formalistic and categorical in its compelled …

The Supreme Court And The People: Communicating Decisions To The Public, Barry Sullivan, Ramon Feldbrin

Faculty Publications & Other Works

Although the individual Justices of the Supreme Court frequently speak to the public, the Court as an entity holds fast to the purportedly ancient principle that courts should speak only through their official written opinions—the meaning of which is for others to figure out. Over the years, the Court’s decisions have become more complex, prolix, and fractured, making it difficult and time-consuming for anyone outside the professional elites to determine what the Court has held. Even journalists, who attempt to explain the Court’s decisions to the public, struggle to make sense of the Justices’ opinions under the pressures generated by …

Stumbling Over Trips: The International Intellectual Property Waiver Petition And The U.S. Executive, Jordan Paradise, Christina Conroy

Faculty Publications & Other Works

This article examines the relationship among intellectual property (IP) law protections; United States (U.S.) and international law and policy; and the actualization of diagnostics, drugs, and vaccines in the time of the COVID-19 coronavirus. Two key international treaties that relate to IP law--The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and the Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration) - establish international norms for the protection of IP. Core aspects of each of these treaties are described along with the role of the World Trade Organization (WTO) and concepts of compulsory licensing. As a result …

Bargain Basement Progressivity? Constitutional Flat Taxes, Demogrants, And Progressive Income Taxation, Samuel D. Brunson

Faculty Publications & Other Works

State and local governments raise revenue in three primary ways: property, sales, and income taxes. Property and sales taxes tend to impose a higher burden on low-income households. To ensure the fairness and progressivity of their overall revenue system, states need their in-come tax to be sufficiently progressive.

Four states face an apparently insurmountable barrier to progressive income taxation: their state constitutions mandate that any income tax must have a flat rate, applicable to all taxpayers. Without a constitutional amendment, a difficult process, they cannot adopt marginal rates that increase as income increases.

While the impediment appears insurmountable, however, it …

Interring The Unitary Executive, Christine Chabot

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The President's power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates' exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate …

Biosimilar Bias: A Barrier To Addressing American Drug Costs, Cynthia M. Ho

Faculty Publications & Other Works

Forty percent of spiraling US drug costs are based on a mere two percent of all drugs –biologic drugs (biologics) made from living cells that are administered by injection or infusion. These costs will continue to balloon as new biologics are approved; the recently approved Alzheimer’s drug is expected to result in a 50% increase in Medicare spending and cost individuals 40% of their annual income. These drugs are expensive because they cannot be mass-produced, and their cost places important treatments for conditions such as arthritis (Humira) and cancer (Herceptin) out of reach for many Americans. Fortunately, just as there …

Confronting Intellectual Property Nationalism, Cynthia M. Ho

Faculty Publications & Other Works

Stories about nations engaging in vaccine (and medical) nationalism by hoarding limited COVID-19 vaccines and treatments are widespread, but there is a hidden phenomenon that has exacerbated vaccine nationalism and prolonged the pandemic: intellectual property nationalism or “IP nationalism.” This Article coins and explains this term and highlights its negative impacts. Essentially, some nations, primarily of the Global North, are hoarding essential knowledge protected by intellectual property (IP). This Article argues that IP nationalism has contributed to millions of unnecessary deaths and limited the growth of the global economy. Meanwhile, countries and pharmaceutical companies obscure the role of IP nationalism …

Toward A Socially Just Peace In The War On Drugs?: The Illinois Cannabis Social-Equity Program, Steven A. Ramirez, Andre Douglas Pond Cummings

Faculty Publications & Other Works

Laudably, when Illinois legalized the recreational use of cannabis, it also sought to repair the damage wrought by the War on Drugs (WOD) through its social-equity initiatives. That harm included excessive and disproportionate incarceration in communities of color, over-policing within those communities, and all of the social and economic harms implicit in those realities. This harm necessarily creates intergenerational harm, as parents and children lose necessary pillars of support. Moreover, compelling evidence suggests that the progenitors of the WOD intended this harm. Measured against this historic social injustice, the social equity efforts in Illinois fail to secure a material unwinding …