Loyola University Chicago, School of Law: LAW eCommons
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The California Consumer Privacy Act of 2018: Toughest U.S. Data Privacy Law with Teeth?
Full text linkA Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, and First Amendment Overprotection
No full textThis Article argues that pharmaceutical marketing to doctors should be more critically evaluated and entitled to less First Amendment protection, contrary to a trend dating back to the Supreme Court\u27s 2011 decision in Sorrell. In particular, the Article argues that more information to doctors in the form of pharmaceutical marketing does not necessarily result in better patient outcomes. The Article adds a significant critique based on the existence and impact of cognitive bias literature that has thus far not been recognized in this area. If courts fully embrace this understanding, they should recognize that the government, through the Food and Drug Administration, has a right to limit statements that may encourage doctors to prescribe unapproved uses of drugs with potentially fatal consequences. This Article reveals that recent expansion of First Amendment jurisprudence is based on key cognitive biases and assumptions. First, courts, and even some doctors themselves, improperly assume that doctors are adequately sophisticated, such that doctors are protected from self-interested marketing, which this Article demonstrates as inconsistent with reality. Second, current case law assumes that the availability of more information necessarily promotes better decisions so long as it is not patently false, a proposition that this Article shows is especially unfounded in the unique market of prescription drugs. Importantly, such assumptions can have critical health consequences since they promote uses of drugs for which there is often inadequate scientific basis and serious health consequences. Finally, this Article builds upon the revealed cognitive biases to suggest empirically-informed changes to cabin the expansion of First Amendment protection of pharmaceutical marketing as well as broader structural reform. This Article proposes to treat potentially misleading information differently than entirely truthful speech, thus giving states greater discretion to regulate potentially misleading information. In addition, this Article proposes that the burden of proof in such cases should be reversed, so that courts will no longer consider disclaimers as a true alternative to speech restriction without proof that companies will actually promote more informed decisions. The Article also suggests structural changes to medical education, drug development, and marketing informed by the cognitive biases revealed here
Antitrust and Democracy
No full textOur solution of the anti-monopoly problems must be in terms of our ideals-- the ideals of political and economic democracy. We want no economic or political dictatorship imposed upon us either by the government or by big business. We want no system of detailed regulation of prices by the government nor price fixing by private interests. We do not want bureaucracy or regimentation of any kind, but we will prefer governmental to private bureaucracy and regimentation, if we have to make such a choice. We cannot permit private corporations to be private governments. We must keep our economic system under the control of the people who live by and under it
Data Subjects\u27 Privacy Rights: Regulation of Personal Data Retention and Erasure
No full textThe European Union\u27s right to erasure came into effect May 25, 2018, as Article 17 of the General Data Protection Regulation ( GDPR ). Unlike the U.S. marketplace of ideas model of free speech, the GDPR gives greater weight to data subjects\u27 privacy interests than to audiences\u27 curiosity about others\u27 intimate lives. The U.S. and EU models advance human thirst for knowledge through open and uninhibited debates, whereas the internet marketplace tends to favor social media companies\u27 commercial interests: put more specifically, free speech is not entirely harmonious with the interests of social media intermediaries whose algorithms tend to favor companies\u27 bottom lines rather than strictly the expansion of knowledge.
European law is less tolerant of privacy invasions than is U.S. constitutional jurisprudence. This Essay examines the GDPR\u27s privacy policies and contrasts them from the U.S. preference for augmenting information available to audiences. It further critiques current U.S. recalcitrance in matters of commercial internet governance and suggests limited U.S. regulatory reform
