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Antibiotic Reimbursement in a Model Delinked from Sales: A Benchmark-based Worldwide Approach
Get PDFDespite the life-saving ability of antibiotics and their importance as a key enabler of all of modern health care, their effectiveness is now threatened by a rising tide of resistance. Unfortunately, the antibiotic pipeline does not match health needs because of challenges in discovery and development, as well as the poor economics of antibiotics. Discovery and development are being addressed by a range of public-private partnerships; however, correcting the poor economics of antibiotics will need an overhaul of the present business model on a worldwide scale. Discussions are now converging on delinking reward from antibiotic sales through prizes, milestone payments, or insurance-like models in which innovation is rewarded with a fixed series of payments of a predictable size. Rewarding all drugs with the same payments could create perverse incentives to produce drugs that provide the least possible innovation. Thus, we propose a payment model using a graded array of benchmarked rewards designed to encourage the development of antibiotics with the greatest societal value, together with appropriate worldwide access to antibiotics to maximise human health
The Corporation as Courthouse
Get PDFDespite the considerable attention paid to mandatory arbitration, few consumer disputes ever reach arbitration. By contrast, institutions such as Apple’s customer service department handle hundreds of millions of disputes annually. This Article argues that understanding businesses’ internal dispute processes is crucial to diagnosing consumers’ procedural needs. Moreover, businesses’ internal processes interact with a larger system of private actors. These actors include ratings websites that mete out reputational sanctions. The system also includes other corporations linked to the transaction, such as when American Express adjudicates a contested sale between a shopper and Home Depot. This vast private order offers promise to advance societal dispute resolution goals by providing large-scale redress and preserving relationships in ways that more formal institutions cannot. At the same time, businesses closely guard their internal processes as trade secrets. Out of public view, they are pushing the bounds of dispute resolution by, for example, considering factors such as a customer’s social network in deciding how to handle a complaint. If public intervention is needed, courts are at best only part of the solution. Instead, the frontier of consumer dispute resolution lies beyond arbitration and class actions in agency supervision of collaborative negotiations between consumers and corporations
Obama’s State of the Union Should Honor Colleges That Give Prisoners a Chance
No full textPresident Obama should invite Max Kenner, the founder of the Bard Prison Initiative, to join the first lady at the State of the Union. The sharp growth in the prison population over the past two decades — despite a decrease in crime — has had a significant impact on growing racial and class inequality, creating, in the eyes of some, “the new Jim Crow.
Confusion on the Court: Distinguishing Disparate Treatment from Disparate Impact in Young v. UPS and EEOC v. Abercrombie & Fitch, Inc.
Get PDFIn two decisions in the 2014-2015 Term, Young v. United Parcel Service, Inc., and Equal Employment Opportunity Commission v. Abercrombie & Fitch, Inc., the Court seemed to give contradictory answers to an important unresolved conceptual definitional question: Does disparate treatment include assigning members of a protected group based on their protected status to a larger disfavored group that is defined by neutral principles and that includes others who are not members of the protected group? Or does such assignment have only a disparate impact on the protected status group?
In Young, the first of these decisions, all members of the Court, though divided on the appropriate analysis, seemed to assume that consideration of protected status in assigning an individual to a more broadly defined larger disfavored group is not overt disparate treatment. In Abercrombie, however, a conceptually identical case involving alleged religion-based rather than pregnancy-based discrimination, eight members of the Court held that consideration of a protected religious practice under a general policy that defined a larger group to be disfavored is illegal disparate treatment, absent the availability of a statutory defense.
The Court’s decision in Young was unfortunate. This is not only because the majority opinion diluted the Pregnancy Amendment Act (PDA) amendments to Title VII with a confusing opinion that provided incomplete guidance for future cases or even the Young case itself on remand. It is also because the opinion weakened the appropriate clarification that the Abercrombie decision might have given to the conceptual line between the disparate treatment and disparate impact forms of discrimination proscribed by Title VII. The essay explains why disparate treatment analysis is appropriate in cases where protected status is taken into account under a more general policy that defines a disfavored group that encompasses but is more inclusive than the protected status
The Privacy Policymaking of State Attorneys General
Get PDFAccounts of privacy law have focused on legislation, federal agencies, and the self-regulation of privacy professionals. Crucial agents of regulatory change, however, have been ignored: the state attorneys general. This article is the first in-depth study of the privacy norm entrepreneurship of state attorneys general. Because so little has been written about this phenomenon, I engaged with primary sources — first interviewing state attorneys general and current and former career staff, and then examining documentary evidence received through FOIA requests submitted to AG offices around the country.
Much as Justice Louis Brandeis imagined states as laboratories of the law, offices of state attorneys general have been laboratories of privacy enforcement. State attorneys general have been nimble privacy enforcement pioneers where federal agencies have been more conservative or constrained by politics. Their local knowledge, specialization, multi-state coordination, and broad legal authority have allowed them to experiment in ways that federal agencies cannot. These characteristics have enabled them to establish baseline fair information protections; expand the frontiers of privacy law to cover sexual intimacy and youth; and pursue enforcement actions that have harmonized privacy policy.
Although certain systemic practices enhance AG privacy policy making, others blunt its impact, including an over reliance on informal agreements that lack law’s influence and a reluctance to issue closing letters identifying data practices that comply with the law. This article offers ways state attorneys general can function more effectively through informal and formal proceedings. It addresses concerns about the potential pile-up of enforcement activity, federal preemption, and the dormant Commerce Clause. It urges state enforcers to act more boldly in the face of certain shadowy data practices
Submerged Precedent
Get PDFNumerous studies have pointed to the skewed picture of trial courts\u27 workload, management, and disposition of cases that exists from examining Westlaw and Lexis opinions alone, akin to navigating the iceberg from its tip.4 But submerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions-putative precedent and not mere evidence of decision-making-that exist only on dockets. Submerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself not just trial courts\u27 administration of it.
The existence of a submerged body of reasoned law carries the potential to destabilize our system of precedent and undermine the system\u27s animating pnnciples of fairness, efficiency, and legitimacy by obscuring decisional law. To investigate whether these threats to the precedential system from submergence have materialized, this article presents an analysis of a sample of opinions: remand decisions from two district courts over seven years, all adjudicating federal-question removals of state-law claims. The study found that 30 percent of all reasoned opinions are submerged on dockets (and 44 percent of all decisions contain no reasoning at all). Looking purely at outcome measures (whether to grant or deny remand), the existence of submerged precedent distorts the picture of remand rates. In this sample, for example, reasoned opinions concerned with Employee Retirement Income Security Act (ERISA) federal questions remanded the case 63.67 percent of the time. Looking only in Westlaw, the remand rate drops to 46.67 percent, while 100 percent of the submerged cases were remanded.
Beyond just outcome measures, submerging reasoned opinions from public view carries the potential to skew the substantive law and permit inequitable adjudication. Although the small sample gathered here raises far more questions than it has the power to answer, several factors appear relevant to submergence: structure of legal tests, managerial discretion, party sophistication, and insulation from appeal.
Given these observations, there may be an ideal role for submerged precedent to play. As technology democratizes access to court opinions and eliminates traditional justifications for selective publication in bound volumes, these reflections on the balance between submergence and availability acquire even greater urgency. The E-Government Act of 2002 mandated online public access to federal courts\u27 written opinions, 5 catalyzing the federal courts to digitize their dockets and build the Public Access to Court Electronic Records (PACER) database for public access.6 BloombergLaw has added a more facile docket search interface for a fee, and the United States Government Printing Office has just branched out into free online access to court opinions through an FDSys pilot project. Yet the march toward unfettered public access to court decisions thus far has sidestepped thoughtful consideration of the interplay between technology, access, and precedent theory, while tacitly permitting submergence of reasoned opinions.
This article responds to this unique moment in the evolution of precedent and the recently-rekindled national debates over precedential values. The analysis proceeds in three parts. Part I surveys the existing empirical evidence about decision-making in district courts and describes the methods for collecting this data set. Part I then establishes the defining features of the submerged precedent identified in this data and compares the sample of district court decisions in Westlaw to those available only on dockets. By this comparison, the study reveals possible forces behind submergence and the potential for inequity and skew in the substantive law these opinions apply.
Part II illustrates submerged precedent\u27s implications for precedent theory and for district courts\u27 role in shaping law. Part II first anchors submerged precedent in precedent doctrine, explaining how submerged precedent\u27s defining features reflect the doctrine\u27s broader systemic goals of efficiency, predictability, and legitimacy. Part II then theorizes the threats that submergence may pose to those goals and highlights the unique institutional roles that district court opinions play.
Proceeding from Part I\u27s empirical observations and Part II\u27s theoretical foundations, Part III outlines submerged precedent\u27s ideal role. In considering the optimal level of submergence, Part III considers technology\u27s democratizing influence on the future composition of-and interface with-a civil justice system based in precedent. Ultimately, this project concludes that submerged precedent\u27s existence should inform procedural and practical choices affecting the body of decisional law available to the public that it is intended to serve, suggesting that submerged precedent\u27s debut here should presage its demise
Panel 2: Types of Litigation Funding
Get PDFThis is a transcript from the second panel of the 2015 NYU School of Law conference: Litigation Funding: The Basics and Beyond. Panel Two
The second panel will build on the basics. Participants will explain and discuss different subcategories of funding, each of which may raise different conceptual, practical and/or regulatory concerns.
Panelists: Geoffrey Miller, New York University School of Law (Moderator) Maya Steinitz, University of Iowa College of Law Joshua Schwadron, Founder and CEO, Mighty Bradley Wendel, Cornell Law School Michael G. Faure, Maastricht University & Rotterdam University, the Netherlands Jef De Mot, Ghent University Travis Lenkner, Gerchen Keller Capita
Transnational Litigation as a Prisoner\u27s Dilemma
Get PDFIn this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many developing nations. The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases — such as the (in)famous Chevron–Ecuador dispute used herein as an illustration — the problem of corruption in transnational litigation is structural and as such calls for structural solutions. The article offers one such solution: the establishment of an international court of civil justice
Emanuel Law Outlines for Administrative Law, 4th ed.
No full textThe most trusted name in law school outlines, Emanuel® Law Outlines support your class preparation, provide reference for your outline creation, and supply a comprehensive breakdown of topic matter for your entire study process. Created by Steve Emanuel while a law student at Harvard, these course outlines have been carefully revised and updated by Steve for over 30 years and have been relied on by generations of law students. Each book includes both capsule and detailed outline-format explanations and discussions of the critical issues, key topics, and cases you must know to master the course. Also included are exam questions with model answers, an alphabetical list of cases, and a table correlating the Emanuel®Law Outline to the leading casebooks.https://scholarship.law.bu.edu/books/1004/thumbnail.jp
Battle of the Sexist: The Implicit, Explicit, and Unrelenting Bias of Trump’s Presidential Campaign
No full textRemember the good old days when women might have opposed a Republican presidential candidate because they did not agree with his positions on women’s issues? What are we to do with one who won’t take women seriously at all? There’s no time to talk about real issues when we have to fight through the sexism that pervades every speech, debate, and hot mic accident. (Mitt Romney, with his “binders full of women,” seems sort of sweetly naïve by comparison to Trump, as does Arnold Schwarzenegger, with his misplaced Hollywood bravado that led him to call his opponents “girlie men.”) The bias against women is implicit, explicit, and altogether startling. Although Donald Trump has insisted that “no one respects women more” than he does, his statements, actions, and record speak volumes to the contrary