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Privacy in Pandemic: Law, Technology, and Public Health in the COVID-19 Crisis
Get PDFThe COVID-19 pandemic has caused millions of deaths and disastrous consequences around the world, with lasting repercussions for every field of law, including privacy and technology. The unique characteristics of this pandemic have precipitated an increase in use of new technologies, including remote communications platforms, healthcare robots, and medical AI. Public and private actors are using new technologies, like heat sensing, and technologically-influenced programs, like contact tracing, alike in response, leading to a rise in government and corporate surveillance in sectors like healthcare, employment, education, and commerce. Advocates have raised the alarm for privacy and civil liberties violations, but the emergency nature of the pandemic has drowned out many concerns.This Article is the first comprehensive account of privacy impacts related to technology and public health responses to the COVID-19 crisis. Many have written on the general need for better health privacy protections, education privacy protections, consumer privacy protections, and protections against government and corporate surveillance. However, this Article is the first comprehensive article to examine these problems of privacy and technology specifically in light of the pandemic, arguing that the lens of the pandemic exposes the need for both widescale and small-scale reform of privacy law. This Article approaches these problems with a focus on technical realities and social salience, and with a critical awareness of digital and political inequities, crafting normative recommendations with these concepts in mind.Understanding privacy in this time of pandemic is critical for law and policymaking in the near future and for the long-term goals of creating a future society that protects both civil liberties and public health. It is also important to create a contemporary scholarly understanding of privacy in pandemic at this moment in time, as a matter of historical record. By examining privacy in pandemic, in the midst of pandemic, this Article seeks to create a holistic scholarly foundation for future work on privacy, technology, public health, and legal responses to global crises
Tax and Arbitration
Get PDFWhen fiscal measures intertwine arbitration, undue mystification sometimes follows. To enhance analytic clarity, tax-related arbitration might be divided into three parts. The first derives from ordinary commercial disputes that become laced with incidental tax questions. A corporate acquisition, for example, might carry tax consequences which in turn implicate contract claims or defences presented to an arbitral tribunal for resolution. The second genre of tax-related arbitration arises in respect of cross-border investment disputes. Rightly or wrongly, foreign investors often perceive host-country fiscal enactments as discriminatory, unfair, or tantamount to expropriation, thus violating international commitments. Finally, arbitration comes into play under income tax treaties when two countries assert rival demands to tax the same pot of income. Within a single multinational corporate group, potential economic double taxation might arise through a mismatch of income and deductions from one country to the other. Such economic double taxation puts the corporate group in the role of fiscal stakeholder, ready to pay tax to one country or the other, but not both. In such a scenario, state-to-state arbitration can promote symmetry in allocating fiscal jurisdiction, as elaborated most recently pursuant to the OECD Base Erosion and Profit Shifting initiative. The modest aim of this essay lies in decorticating some of the themes, both practical and doctrinal, that challenge arbitrators tasked with deciding questions of a fiscal nature
A Short, Opinionated, and Incomplete History of Legal Education and of Boston University School of Law, Part 1
No full textWhen BU Law opened in 1872, most new lawyers did not attend any formal classroom legal education. Professor Seipp\u27s Part One of this two-part presentation started with how lawyers learned the law before law schools became the usual route into the profession. He told the story of BU\u27s founding and early decades in friendly rivalry with Harvard Law School across the Charles River. We found out what Judge Dwight Foster said in 1875 when a student interrupted his Equity lecture by shooting a pistol in the classroom. And we heard how Justice Holmes set the agenda of twentieth century American law in his Path of the Law speech at the opening of BU\u27s new law school building in 1897
Indemnifying Precaution: Economic Insights for Regulation of a Highly Infectious Disease
Get PDFEconomic insights are powerful for understanding the challenge of managing a highly infectious disease, such as COVID-19, through behavioral precautions including social distancing. One problem is a form of moral hazard, which arises when some individuals face less personal risk of harm or bear greater personal costs of taking precautions. Without legal intervention, some individuals will see socially risky behaviors as personally less costly than socially beneficial behaviors, a balance that makes those beneficial behaviors unsustainable. For insights, we review health insurance moral hazard, agricultural infectious disease policy, and deterrence theory, but find that classic enforcement strategies of punishing noncompliant people are stymied. One mechanism is for policymakers to indemnify individuals for losses associated with taking those socially desirable behaviors to reduce the spread. We develop a coherent approach for doing so, based on conditional cash payments and precommitments by citizens, which may also be reinforced by social norms
Keeping the Patient at the Center of Machine Learning in Healthcare
Get PDFChar et al. (2020) aspire to provide a systematic approach to identifying ... ethical concerns around machine learning healthcare applications (ML-HCAs), which includes artificial intelligence and big data. Their approach, styled around the development pipeline for new technologies, has valuable insights, but we think it over-emphasizes technical design questions and under-emphasizes core ethical questions. There is little ethical debate about whether to maximize accuracy, evaluation, and oversight, at reasonable cost. Of course those goals should be pursued, but these are design challenges about feasibility more than ethical concerns
Petition Alleging Violations of the Human Rights of Lisa Montgomery by the United States of America and Urgent Request for Precautionary Measures
Get PDFThis is a petition filed on behalf of Lisa Montgomery. More about the case, as well as press releases and case documents, can be found on the case page at Cornell Center for Death Penalty Worldwide
Harassment Because of Sex: Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) Judgment
No full textJustice Angela Onwuachi-Willig delivered the opinion of the Court.
This case presents important questions concerning claims of workplace “sexual harassment” brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. These questions include (1) whether the factual record was sufficiently developed to render decisions on either a quid pro quo claim or a hostile environment claim, (2) whether sexual harassment leading only to psychological harm violates Title VII, (3) whether the “voluntariness” of the complainant’s participation in sexual activity is pertinent in a hostile environment case, (4) whether the complainant’s manner of dress or sexually provocative speech is relevant to determining whether sexual harassment occurred, (5) whether the trial court erred in excluding testimonial evidence from other women who claimed to have been harassed by the alleged wrongdoer and to have seen him harass the complainant; and (6) whether employers are automatically liable for sexual harassment by their supervisory personnel regardless of notice to the employer
“Unusual Care”: Groupthink and Willful Blindness in the SUPPORT Study
Get PDFThe SUPPORT study of extremely premature newborns seems likely to go down as one of the most controversial studies of the 21st century (SUPPORT Study Group 2010). We previously suggested that the researchers in SUPPORT were legally blind in failing to understand that the standard that defines the content of informed consent is set by law, including the federal regulations, not by what physicians usually do or don\u27t do (Annas and Annas 2013). Macklin and Natanson, also early critics of the SUPPORT study\u27s failure to disclose the increased risk of death posed by the study, (Macklin et al. 2013) attack the study\u27s methodology itself in this issue, arguing that even on its own terms SUPPORT was fatally flawed (Macklin and Natanson 2020). Specifically, they argue that one arm of the study (the low oxygen arm) was not followed anywhere and could not be reasonably considered standard care, but was rather unusual and therefore experimental care (Cortes-Puch et al. 2016; Macklin and Natanson 2020). They also make useful suggestions about how to prevent future mischaracterizations of usual care
Geneva Statement on Heritable Human Genome Editing: The Need for Course Correction
Get PDFAs public interest advocates, policy experts, bioethicists, and scientists, we call for a course correction in public discussions about heritable human genome editing. Clarifying misrepresentations, centering societal consequences and concerns, and fostering public empowerment will support robust, global public engagement and meaningful deliberation about altering the genes of future generations
Toward Establishing a Pre-Extinction Definition of \u27Nationwide Injunctions\u27
Get PDFSome define “nationwide injunctions” as injunctions with: (1) no geographic limitations and (2) benefits to people beyond named plaintiffs or plaintiff classes. In this Article, I pose several questions central to figuring out what these so-called “nationwide injunctions” are. I argue that continuing to debate about injunctions in isolation from any developed, conceptual framework leads to potentially misguided arguments. The balance of criticisms regarding the targeted injunctions involve issues that are structural, jurisprudential, prudential, and formalist in ways that would curtail “nationwide injunctions” to protect Article II actors, to the relative detriment of those injured by Article II actors. There has been comparatively little focus on the potential costs of curtailing “nationwide injunctions” for those injured by Article II actors—marginalized communities in particular. There could be significant consequences of cutting off, or severely limiting access to, meaningful relief. I highlight what may be at stake if proceduralists and remedies scholars continue to make recommendations about “nationwide injunctions” without even knowing the costs to marginalized communities, let alone including those concerns as part of this discussion and our analyses