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On Drugs: Preemption, Presumption, and Remedy
Get PDFThis essay explores the role of litigation in drug safety regulation and the role of drug safety regulation in litigation, exemplified by the 2017 National Health Law Moot Court Problem. Using the example of failure-to-update claims against generic drug manufacturers, this essay argues that pharmaceutical preemption doctrine would benefit from a tailored application of the presumption against preemption. It proposes a presumption that Congress does not intend to displace historic state remedies for injury without clearly saying so, focusing on the role of remedy to account for the evolving overlap in federal and state police powers over health and to more precisely calibrate the federalism values inherent in the remedy-regulation relationship
Humans Forget, Machines Remember: Artificial Intelligence and the Right to Be Forgotten
Get PDFTo understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the realities of AI technology.
First, this Article analyzes the legal background behind the Right to be Forgotten, in order to understand its potential applicability to AI, including a discussion on the antagonism between the values of privacy and transparency under current E.U. privacy law. Next, the Authors explore whether the Right to be Forgotten is practicable or beneficial in an AI/machine learning context, in order to understand whether and how the law should address the Right to Be Forgotten in a post-AI world. The Authors discuss the technical problems faced when adhering to strict interpretation of data deletion requirements under the Right to be Forgotten, ultimately concluding that it may be impossible to fulfill the legal aims of the Right to be Forgotten in artificial intelligence environments. Finally, this Article addresses the core issue at the heart of the AI and Right to be Forgotten problem: the unfortunate dearth of interdisciplinary scholarship supporting privacy law and regulation
A ;-) at the Past and Future of English
Get PDFIt is always with a certain amount of wry, knowing amusement that we turn to the thoughts of people from the past remarking on the future (that is, our present). It is similar to how slightly older children view slightly younger children. They were so innocent then, those thinkers of the past! Look at what they thought computers could do, what language could be! How adorably naïve! Not like us, we who have put away our childish things.
Of course, the science fiction of our present may someday seem as pathetically misconceived as that of the past. So, too, will many of our current ideas (and, alas, much of our current scholarship) on such future forward topics as technology, the internet, and even the way in which new forms of communication (e.g., email, text messaging, social media) have affected our language.
Consider, then, “Machinery and English Style,” an essay written by Robert Lincoln O’Brien in a 1904 volume of the Atlantic Monthly. O’Brien discusses the manners in which the typewriter, dictation, shorthand, and the telegraph (new technological shifts of his time) negatively affected the English language. Like much of what is written about technology, this essay was rapidly outdated and, now, just over a century later, can only really be viewed as an archeological relic. Yet, perhaps because of its obsolescence, the essay is a fascinating read today. In it, and in our presentist reaction to it, we can glean understandings applicable to modern discussions of technology and language
What\u27s Driving The Migration Crisis At Our Southern Border?
No full textWhile the daily news is full of stories about migrants being detained, families being separated and the consequences of the Trump administration’s “zero tolerance” policies, relatively little reporting has focused on the reasons why thousands of Central Americans are fleeing their homes in the first place
Zero Tolerance And Detention Don\u27t Work In Juvenile Justice. They Don\u27t Work In Immigration Either
No full textNelson Mandela wrote, “there can be no keener revelation of a society’s soul than the way in which it treats its children.” As attorneys defending juveniles in criminal custody and immigrants facing deportation, we are deeply worried for our nation’s soul. Parallels between the current immigration crisis and that of citizen children accused of delinquency reveal lessons, not yet learned, about the harrowing long-term impact of zero-tolerance and detention on the lives of children
Taxing & Zapping Marijuana: Blockchain Compliance in the Trump Administration Part 1
Get PDFOn January 4, 2018, the Trump Administration through Attorney General Sessions rescinded an Obama-era policy1 that discouraged federal prosecutors from bringing charges in all but the most serious marijuana cases under the federal Controlled Substances Act,2 as well as under the Bank Secrecy Act.3 Federal law is at odds with state law in the majority of states on the legalization and subsequent state taxation of marijuana.4 Twenty-eight states and the District of Columbia have at least partially legalized marijuana. Eight of these states have legalized both medicinal and recreational use.5 With limited exceptions, legalized sales of marijuana are taxed.
We will consider this federal-state tax (and criminal enforcement) topic in a series of five papers. The first is introductory in nature. We examine the State tax and enforcement issues surrounding the legalized marijuana trade. Each of the other papers in this series will consider a specific marijuana fraud vector and present solutions to it
A (Nude) Picture Is Worth a Thousand Words — But How Many Dollars?: Using Copyright as a Metric for Harm in ‘Revenge Porn’ Cases
Get PDFSo-called “Revenge Porn” — pornography published without the subject’s permission — is a growing issue. While much discussion exists about how best to outlaw the practice, less has been said about precisely how to measure the harm done. This paper is grounded in an in-depth analysis of the particular way that the Federal Sentencing Guidelines prioritize financial harms and non-financial harms, specifically looking at how many dollars of harm it takes to buy each additional sentencing point. I graph the enforcement priorities for financial and non-financial harm using the numbers federal agencies use for the value of a statistical life.
Leveraging that analysis, I argue that the dollar sums in statutory damages under the Copyright Act provide a better mode of measuring than abstract dignitary and reputational harms more conventionally associated with “revenge porn.” I also argue that, because of the structure of the Federal Sentencing Guidelines (and likely many state analogs), using economic harm to describe harm is likely to result in those harms becoming higher on the list of agency enforcement priorities
Patent Clutter
Get PDFPatent claims are supposed to clearly and succinctly describe the patented invention, and only the patented invention. This Article hypothesizes that a substantial amount of language in patent claims is in fact not about the core invention, which may contribute to well-documented problems with patent claims. I analyze the claims of 40,000 patents and applications, and document the proliferation of clutter -language in patent claims that is not about the invention. Although claims are supposed to be exclusively about the invention, clutter appears across industries and makes up approximately 25 % of claim language. Patent clutter may contribute several major problems in patent law. Extensive clutter makes patent claims harder to search. Excessive language in patent claims may be the result of over-claiming-when patentees describe potential corollaries they do not possess-thereby making the patent so broad in scope as to be invalid. More generally, it strains the comprehensibility of patents and burdens the resources of patent examiners. After arguing that patent clutter may contribute to these various problems, this Article turns to reforms. Rejections based on prolix, lack of enablement, and lack of written description can be crafted to dispose of the worst offenders, and better algorithms and different litigation rules can allow the patent system to adapt (and even benefit from) the remaining uses of excess language. The Article additionally generates important theoretical insights. Claims are often thought of as entirely synonymous with the invention and all elements of the claim are thought to relate equally strongly to the invention. This Article suggests empirically that these assumptions do not hold in practice, and offers a framework for restructuring conceptions of the relationship between claims and the invention
Pregnant Women and Equitable Access to Emergency Medical Care
Get PDFA diabetic patient suffering from ketoacidosis was taken from his hospital bed, removed from the hospital, and left in the parking lot without shoes or a shirt because the patient did not have health insurance and had not paid for prior services (Fedas, Alexander, and Chase-Lubitz 1991). The patient died at home the following day. A man with a steak knife in his back, wedged against his spine, was transferred from an emergency room because he was uninsured and could not pay $1,000 cash in advance to remove the knife (Annas 1986). A woman who was mistakenly identified as uninsured was turned away by two hospitals during the early stages of birth despite indications of fetal distress, and once she reached a hospital that would provide the necessary care the fetus had died (Gionis, Camargo, and Zito 2002). After a pregnant woman’s water broke at 14 weeks, she was denied services at a hospital and sent on an 80-mile cab ride to receive the procedure her physician declared medically necessary (Clark 2003). A woman whose water broke at 18 weeks was sent home twice from a hospital without receiving treatment or accurate information on the status of her fetus, denying her the medical services that would most ensure her safety (NeJaime and Siegel 2015).The first three cases represent examples that led to the passing of the Emergency Medical Treatment and Active Labor Act (EMTALA), which sought to end patient dumping, where hospitals would deny service or transfer patients, typically poor individuals, whom they did not want to care for. The last two cases were enabled by the government through the passage of the conscientious objection statutes that Nelson (2018) references, which allow providers, including large for-profit hospital systems, to deny medically necessary, potentially lifesaving care due to religious or moral beliefs