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International Courts & Judicial Affairs
Get PDFThis chapter reviews some of the most significant developments made by international courts and tribunals in 2020.
I. International Court of Justice As of the time of writing (November 2020), this year, the International Court of Justice (Court) has rendered one order on provisional measures, two judgments on appeals from decisions of the International Civil Aviation Organization (ICAO) Council, and two orders relating to expert evidence
Queering Bostock
Get PDFAlthough the Supreme Court’s 2020 Title VII decision, Bostock v. Clayton County, Georgia, is a victory for LGBTQ individuals, its doctrinal limitations unavoidably preserve a discriminatory status quo. This Article critically examines how and why Bostock fails to highlight the indignities experienced by queer minorities under decades of employment discrimination. In Bostock, Justice Gorsuch presents a sweeping textualist interpretation of Title VII that protects against sexual orientation and gender identity discrimination. Yet, the decision sparsely recognizes queer lived experiences, compared to prior pro-LGBTQ cases where such recognition contributed to developing an anti-stereotyping framework that confronted some of the heteronormative biases that invigorate discrimination against queer individuals. In contrast, Bostock avoids any meaningful acknowledgment of the lives of the litigants or the experiences of anti-queer bias in exchange for a lengthy illumination of Justice Gorsuch’s textualist rationale.When conceptions of sexuality and gender identity have been previously mischaracterized in favor of mainstream heteronormative values, the lived experiences of queerness are paramount for detecting discrimination and correcting it. This Article argues that Bostock’s neglect of queer lived experiences was not a forgivable oversight, merely collateral to its expansive textualist reading of Title VII. Rather, the neglect of lived experiences and anti-stereotyping frameworks was the price queer minorities had to pay for Title VII protection. In this way, this Article shows that Justice Gorsuch’s lack of regard for the lived experiences in Bostock tacitly privileges heteronormative values, underscores the status quo’s interest convergence, and ultimately limits the decision’s transformative appeal
The Fight for Pay: How the Supreme Court Ultimately May Use Antitrust Law to Allow Student-Athletes to be Paid
Get PDFThe NCAA has long avoided the idea of compensating players. Josef Nilhas discusses how now, after years of inaction, this decision may ultimately lay in the hands of the Supreme Court from the perspective of federal Antitrust law.https://scholarship.law.slu.edu/lawjournalonline/1065/thumbnail.jp
Intellectual Property as a Determinant of Health
Get PDFPublic health literature has long recognized the existence of determinants of health, a set of socio-economic conditions that affect health risks and health outcomes across the world. The World Health Organization defines these determinants as “forces and systems” consisting of “factors combin[ing] together to affect the health of individuals and communities.” Frameworks relying on determinants of health have been widely adopted by countries in the global South and North alike, as well as international institutional players, several of which are direct or indirect players in transnational intellectual property (IP) policymaking. Issues raised by the implementation of IP policies, however, are seldom treated as an integral part of analyses using these frameworks, even though IP bears direct effects on the dynamics of several determinants of health, such as access to health goods and health services.This article conceptualizes post-TRIPs IP as a contributing element to the literature on the socio-economic determinants of health. IP norms and policies have long been understood as playing a role in outcomes that closely align with determinants frameworks, but interventions inspired by institutions relying on determinants frameworks routinely fail to consider the role of international IP regimes. The article explores two consequences of this dissociation: first, it argues that TRIPs-implemented IP materially affects several determinants of health, both at the social and economic levels; and second, it argues that IP should be regarded on equal footing with other canonically recognized determinants of health. While taking steps towards the development of an IP framework that can be articulated with, and incorporated by, literature on the determinants of health, the article presents three short case studies on pharmaceutical and agricultural technologies—HIV prophylactic drugs (Truvada); drugs and vaccines needed for epidemic and pandemic preparedness (Ebola vaccines and COVID-19 treatments like remdesivir); and genetically modified rice crops
Finding the Cluster: Balancing Privacy and Public Health Amid the Covid-19 Pandemic
Get PDFMore than 800,000 Americans have died and more than fifty-seven million sickened since March 2020 from the COVID-19 virus and its highly contagious variants. Public health officials urged the public to mask up, socially distance, and stay home in order to curb the virus’ spread in the early months of the pandemic before a vaccine was approved. Meanwhile, those same officials blocked access to valuable information pinpointing areas of disease concentration—“hotspots”—which could have alerted members of the public of locations to avoid. Those officials generally—and usually incorrectly—cited the Health Insurance Portability and Accountability Act (HIPAA) as grounds for information blocking, likely to bypass liability if information released was not properly de-identified under the law. While the secrecy may have caused confusion and distrust among the general public, there is insufficient guidance for health officials to determine which health-related data can and cannot be shared. The Office for Civil Rights, housed under the federal Department of Health and Human Services, sanctions HIPAA offenses, and thus can play a uniquely influential role in access to public health information by issuing guidance for health officials that explains HIPAA’s privacy rules and their limitations
Improving Access to Emerging Lifesaving Drugs: Solving the Disclosure Problem Within the Patent Dance
Get PDFBiologics are a growing class of pharmaceutical drugs and are associated with a significant portion of major medical breakthroughs over the past fifty years. However, in comparison with traditional small-molecule drugs, biologics are vastly more complex, more difficult to manufacture, and extremely expensive. Congress passed the Biologics Price Competition and Innovation Act (BPCIA) in an effort to increase the availability of biosimilars—the generic versions of biologic drugs—but the BPCIA has been largely ineffective. This is due, in part, to the lack of a standard regarding initial information disclosures required at the outset of the BPCIA process, leading to a cumbersome and inefficient process that is mired in disputes over the adequacy of initial disclosures. Rulings by the Supreme Court in Sandoz Inc. v. Amgen Inc. and the Federal Circuit in Amgen Inc. v. Hospira, Inc. have further complicated the issue and cemented several problematic practices. This article examines the impact of the current lack of a disclosure standard within the BPCIA and proposes that the adoption of the enablement standard from patent law would reduce unnecessary litigation, provide a more streamlined process, and bring some much-needed balance to follow-on competition. Such a change is likely to increase the number of biosimilars entering the market, leading to decreased patient costs and increased accessibility for millions of patients whose lives may depend on access to this critical class of drugs
Institutionalized Child Abuse: The Troubled Teen Industry
Get PDFThe “troubled teen industry” is an industry providing behavioral modification treatment to youths that promises to keep children safe, but by design is a breeding grounds for institutionalized child abuse through legal loopholes. By analyzing the legal shortcomings and alleged abuses, Yasmin Younis stresses the importance of heavy regulation in order to provide the necessary treatment some of these children need.https://scholarship.law.slu.edu/lawjournalonline/1071/thumbnail.jp
Ending the War on People with Substance Use Disorders in Health Care
Get PDFEarp et al. (2021) provide a robust justification for the decriminalization of drugs based on the systemic racism that fuels the “war on drugs” and the ongoing harms of drug policies to individuals. The authors’ call for decriminalization is a necessary but insufficient step in addressing the entrenched structural, institutional, and individual discrimination that leads to the inequitable and unjust treatment of people with substance use disorder (PWSUD). Nothing short of robust enforcement of existing legal protections and sweeping legal reforms in the regulation of addiction treatment, controlled substances, health care finance, and civil rights law will be adequate to achieve equity and remedy the malignant injustice in this area. This commentary addresses the widespread subrogation of PWSUD in the health care system, which is characterized by the disempowerment, disparagement, and sometimes outright abandonment of patients—a persistent pattern of mistreatment that would spark outrage and condemnation for people with any other health condition
Artificial Intelligence and the Challenges of Workplace Discrimination and Privacy
Get PDFEmployers are increasingly relying on artificially intelligent (AI) systems to recruit, select, and manage their workforces, raising fears that these systems may subject workers to discriminatory, invasive, or otherwise unfair treatment. This article reviews those concerns and provides an overview of how current laws may apply, focusing on two particular problems: discrimination on the basis of protected characteristics like race, sex, or disability, and the invasion of workers’ privacy engendered by workplace AI systems. It discusses the ways in which relying on AI to make personnel decisions can produce discriminatory outcomes and how current law might apply. It then explores how these data-driven systems may threaten workers’ interests in privacy and autonomy, and considers the extent to which existing legal frameworks address these concerns. Finally, it briefly describes the European Union’s much more restrictive regime of data protection as a useful comparator. This article argues that the growing use of AI at work raises significant policy concerns about discrimination, privacy, and autonomy that are not adequately addressed by current U.S. law