Law Commons^™

Crispr Parents And Informed Consent, Naomi Cahn

SMU Science and Technology Law Review

No abstract provided.

Crispr And The Future Of Fertility Innovation, June R. Carbone

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Provisional Injunctive Relief Under The Utsa And The Dtsa In Federal Court New Product Cases, Richard F. Dole Jr.

SMU Science and Technology Law Review

No abstract provided.

When Miracle Cures Go Bad: Regulators’ Responses To Unproven Direct-To-Consumer Stem Cell Therapies, Sydney Hope

SMU Science and Technology Law Review

No abstract provided.

The "Green New Deal": Constitutional Limitations; Rerouting Green Technology, Steven Ferrey

Suffolk University Law School Faculty Works

This article reaches beyond the pro/con policy debate now surrounding the Green New Deal, to address prospectively the fundamental legal issue of whether, and how, the Green New Deal will be viewed by the courts when it is enacted and challenged. President Biden has pledged to have 100% sustainable electric power in the U.S. by 2035. The Green New Deal, sponsored by Representative Alexandria Ocasio-Cortez and Senator Edward Markey and co-sponsored or backed by a majority of the Democratic candidates for the 2020 presidency, combines “Green” elements with “New Deal” provisions.

Do two sweeping legal policies in the Green New …

Fair Use And Machine Learning, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

There would be a beaten path to the maker of software that could reliably state whether a use of a copyrighted work was protected as fair use. But applying machine learning to fair use faces considerable hurdles. Fair use has generated hundreds of reported cases, but machine learning works best with examples in greater numbers. More examples may be available, from mining the decision making of web sites, from having humans judge fair use examples just as they label images to teach self-driving cars, and using machine learning itself to generate examples. Beyond the number of examples, the form of …

Multilayered Criminal (F)Laws, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Investment Misconceived: The Investment-Commerce Distinction In International Investment Law, Stratos Pahis

Faculty Scholarship

No abstract provided.

Three Conceptions Of Corporate Crime (And One Avenue For Reform), Miriam H. Baer

Faculty Scholarship

No abstract provided.

The Mosaic Of Coronavirus Vaccine Development: Systemic Failures In Vaccine Innovation, Ana Santos Rutschman

All Faculty Scholarship

Scientists are racing to develop vaccines against the novel coronavirus. While some vaccine candidates may enter the market in record time, the current vaccine innovation ecosystem exposes governance lacunas at both the international and domestic levels.

Vaccines And Ip Preparedness In The Coronavirus Outbreak, Ana Santos Rutschman

All Faculty Scholarship

The COVID-19 pandemic has shed renewed light on the importance of research and development (R&D) on biopharmaceutical products needed to prevent or lessen the burden posed by outbreaks of infectious diseases. Among these, the need for new vaccines has become of paramount importance. While a race to develop different types of vaccines unfolds at unusual speed, there are still significant shortcomings in the ecosystem that leads to the production and dissemination of vaccines targeting infectious diseases like COVID-19.

Structural Discrimination In Covid-19 Workplace Protections, Ruqaiijah Yearby, Seema Mohapatra

All Faculty Scholarship

Workers, who are being asked to risk their health by working outside their homes during the COVID-19 pandemic, need adequate hazard compensation, safe workplace conditions, and personal protective equipment (PPE). Sadly, this is not happening for many essential workers, such as those working in home health care and in the meat processing industry. These workers are not only being unnecessarily exposed to the virus, but they are also not receiving paid sick leave, unemployment benefits, and affordable health care and childcare. The lack of these protections is due to structural discrimination and has disproportionately disadvantaged women of color and low-wage …

The Problem With Relying On Profit-Driven Models To Produce Pandemic Drugs, Ana Santos Rutschman

All Faculty Scholarship

The longstanding problems of relying on a market response to a pandemic are becoming readily apparent in the United States, which has quickly become the epicenter of the COVID-19 outbreak. The problems are particularly pronounced in pharmaceutical markets, where we are pinning our hopes for both cures and vaccines. In previous work we have shown how characteristics of healthcare markets in the United States create a divergence between the private incentives of for-profit companies and public health needs, leading to sub-optimal health outcomes in what is a uniquely market-driven healthcare system. In this Essay, written as the COVID-19 pandemic unfolds, …

The Reemergence Of Vaccine Nationalism, Ana Santos Rutschman

All Faculty Scholarship

This short essay explores the reemergence of vaccine nationalism during the COVID-19 pandemic. The essay traces the pre-COVID origins of vaccine nationalism and explains how it can have detrimental effects on equitable access to newly developed vaccines.

PortugalʼS Response To Covid-19, Ana Santos Rutschman

All Faculty Scholarship

This essay for the Regulatory Review's special series on Comparing Nations’ Responses to COVID-19 examines the early response to the pandemic in Portugal. The essay focuses on measures adopted in connection with the declarations of state of emergency and state of calamity, as well as the treatment of migrant populations throughout the pandemic.

Mapping Misinformation In The Coronavirus Outbreak, Ana Santos Rutschman

All Faculty Scholarship

The coronavirus outbreak has sent ripples of fear and confusion across the world. These sentiments—and our collective responses to the outbreak—are made worse by rampant misinformation surrounding the new strain of the virus, COVID-2019. In this post, I survey some of the most pervasive areas of tentacular coronavirus-related misinformation that has proliferated online -- as well as the responses of social media companies like YouTube, Facebook, Pinterest and TikTok that may ultimately prove inadequate given the magnitude of the problem.

Substance Use Disorder, Discrimination, And The Cares Act: Using Disability Law To Strengthen New Protections, Kelly K. Dineen, Elizabeth Pendo

All Faculty Scholarship

The COVID-19 pandemic is having devastating consequences for people with substance use disorders (SUD). SUD is a chronic health condition—like people with other chronic health conditions, people with SUD experience periods of remission and periods of exacerbation and relapse. Unlike people with most other chronic conditions, people with SUD who experience a relapse may face criminal charges and incarceration. They are chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. People with SUD are also at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions have led to …

Employee Testing, Tracing, And Disclosure As A Response To The Coronavirus Pandemic, Matthew T. Bodie, Michael Mcmahon

All Faculty Scholarship

As the COVID-19 pandemic continues to devastate the United States, the federal government has largely failed to implement a national program to prevent and contain the virus. As a result, many employers have undertaken their own workplace coronavirus mitigation efforts. This essay examines, in three parts, the legal framework surrounding employer systems of workplace testing, tracing, and disclosure. It first examines the legal issues surrounding employer-mandated COVID-19 testing and temperature checks, especially issues arising under the Americans with Disabilities Act (ADA) and Health Information Portability and Accountability Act (HIPAA). Regarding employer contact tracing efforts, the essay next reviews the multitude …

Uniform International Tax Collection And Distribution For Global Development, A Utopian Beps Alternative, Henry Ordower

All Faculty Scholarship

Under the guise of compelling multinational enterprises (MNEs) to pay their fair share of income taxes, the OECD and other multinational agencies have introduced proposals to prevent MNEs from eroding the income tax base of developed economies by continuing to shift income artificially to low or zero tax jurisdictions. Some of the proposals have garnered substantial multinational support, including recent support from the new U.S. presidential administration for a global minimum tax. This Article reviews many of those international proposals. The proposals tend to concentrate the incremental tax revenue from the prevention of base erosion into the treasuries of the …

Taking Employment Contracts Seriously, Matthew T. Bodie

All Faculty Scholarship

The essay, written for the Symposium in Honor of the Work of Charles A. Sullivan, examines the honoree's work on the employment contract. Rather than quickly moving past the common law of contract onto the many statutory regimes governing the workplace, Sullivan has repeatedly explored the nature of the employment agreement and the role of common-law doctrines in regulating this relationship. The essay explores Sullivan's expeditions into the common law and compares his work with those scholars working in the private law and New Private Law traditions. In addition, I argue that the contractual approach has failed to appreciate the …

The Case For Face Shields: Improving The Covid-19 Public Health Policy Toolkit, Timothy L. Wiemken, Ana Santos Rutschman, Robert Gatter

All Faculty Scholarship

As the United States battles the later stages of the first wave of COVID-19 and faces the prospect of future waves, it is time to consider the practical utility of face shields as an alternative or complement to face masks in the policy guidance. Without face shields specifically noted in national guidance, many areas may be reluctant to allow their use as an alternative to cloth face masks, even with sufficient modification.

In this piece, we discuss the benefits of face shields as a substitute to face masks in the context of public health policy. We further discuss the implications …

The Village Of Billionaires: Fair Taxation And Redistribution Amid Relative And Absolute Poverty, Alexis Brassey, Henry Ordower

All Faculty Scholarship

Tax justice and principles underpinning the international tax regime are in vogue. The idea that companies and individuals need to pay their "fair share", not just in the domestic sense but also the international sense, is now a mainstream position. This paper explores the problems relating to what might constitute a "fair share" by setting out what is meant when this expression is used. A reasonable assumption is to consider taxation as the means by which the state funds public services and in some jurisdictions, contributes to greater equality within society. Those goals, however, give rise to competing claims. This …

Avoiding Federal And State Constitutional Limitations In Taxation, Henry Ordower

All Faculty Scholarship

This article reviews some federal and state constitutional law challenges to tax legislation in the US and considers how taxing and other revenue raising legislation tends to withstand constitutional challenge.

Part I of this article examines instances in which the Supreme Court reviewed state taxing laws for conflict with the Constitution and overruled its earlier decisions in similar cases. One case involving a poll or capitation tax worked its way through the courts as the Constitution was being amended to prevent the states from using a poll tax in the future. Another case from 2018 resolves a longstanding tax collection …

Exploring The Impact Of Taxation On Immigration, Henry Ordower

All Faculty Scholarship

Rules governing admission of immigrants to stable, developed countries vary widely among countries, yet wealthy immigrants with capital to invest and highly educated immigrants receive favorable admission decisions from immigration authorities more frequently and quickly than do conflict and economic refugees who will become part of a substantially fungible labor force. As preferred immigration destination countries limit the number of immigrants they will admit — the U.S. certainly does —, admissions are likely to follow a hierarchy based on expectations that certain immigrants will contribute significantly to the economy and welfare of the destination country in a manner that distinguishes …

Reviving Focused Scrutiny In The Constitutional Review Of Public Health Measures, Robert Gatter

All Faculty Scholarship

This article re-examines the "focused scrutiny" standard proposed by Prof. Scott Burris in 1989 and argues for its application particularly during an infectious disease emergency such as the COVID-19 pandemic. Focused scrutiny seeks to tie judicial review of the constitutionality of public health measures closely to the facts of the particular disease and to evidence of the efficacy of each governmental action to prevent the spread of that disease, even when courts adopt rational basis testing.

Why The Government Shouldn't Pay People To Get Vaccinated Against Covid-19, Ana Santos Rutschman

All Faculty Scholarship

As several pharmaceutical companies approach the Food and Drug Administration (FDA) seeking authorization to bring COVID-19 vaccines to market, concerns about vaccine mistrust cloud the prospects of imminent vaccination efforts across the globe. These concerns have prompted some commentators to suggest that governments may nudge vaccine uptake by paying people to get vaccinated against COVID-19. This post argues that, even if potentially viable, this idea is undesirable against the backdrop of a pandemic marked by the intertwined phenomena of health misinformation and mistrust in public health authorities. Even beyond the context of COVID-19, paying for vaccination is likely to remain …

'Sex' And Religion After Bostock, Sachin S. Pandya, Marcia L. Mccormick

All Faculty Scholarship

This paper reviews the U.S. Supreme Court’s opinion in Bostock v. Clayton County. There, the Court held that by barring employer discrimination against any individual “because of such individual’s . . . sex,” Title VII of the Civil Rights Act of 1964 also bars employment discrimination because an individual is gay or transgender. The paper then speculates about how much Bostock will affect how likely lower court judges will read other “sex” discrimination prohibitions in the U.S. Code in the same way, in part based on a canvass of the text of about 150 of those prohibitions. The paper also …

The Undeserving Rich: Can They Be Redeemed? Policy Options For Curbing Illegal Wealth, James F. Gilsinan, James E. Fisher, Muhammad Islam, Henry Ordower, Wassim Shahin

All Faculty Scholarship

Purpose – The purpose of this study is to examine the efficacy of various policy options for curbing the accumulation of illegal wealth and suggest ways to close the increasing wealth inequality gap.

Design/methodology/approach – The paper begins with a historical/literary analysis of the place of wealth in American Society and the ambivalent cultural attitudes toward wealth. Different policy approaches that seek to limit wealth inequality and the illegal accumulation of wealth are then examined. Finally, the current policy climate in the USA is reviewed to determine the likelihood of meaningful reform.

Findings – In Europe, the BASEL accords show …

Immigration, Emigration, Fungible Labour And The Retreat From Progressive Taxation, Henry Ordower

All Faculty Scholarship

With emphasis on the US, this chapter explores the role that taxation plays in the movement of people and capital. The chapter addresses the relationship between taxes and retention of capital, including tax incentives for capital investment, shifting tax burdens from capital to labor as progressive taxation wanes, and rules preventing the escape of capital from its current taxing jurisdiction. Next, the discussion moves on to consider how taxes supplement immigration policy to attract capital currently outside the jurisdiction. The chapter then queries whether taxes play any significant role in attracting or retaining skilled labor before identifying how tax trends …