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“Publicness” in Contemporary Securities Regulation after the JOBS Act
Get PDFThe JOBS Act of 2012 reflects the largest deregulatory change to the Securities Exchange Act of 1934 over its more than 75 year history. It contracts the coverage of those companies subject to the obligations of ‘publicness” and it introduces an “on ramp” that will permit most newly-public companies to meet a lesser set of disclosure, internal control and governance obligations for up to five years. We set these changes against a larger discussion of when a private enterprise should be forced to take on public status in securities regulation, a topic that has been entirely under theorized. We conclude that the change from 500 to 2000 shareholders of record made by the JOBS Act, while entirely clear in its deregulatory thrust, misses a key point: “record” ownership is an antiquated metric for any measuring of publicness and Congress needs to find a better one, such as public trading. More broadly, we observe that Congress increasingly has defined public obligations in securities regulation less by the traditional touchstone of investor protection and more by ways that our largest companies affect constituencies beyond their investor base. Our boundary-setting thus should include two tiers of public companies with the smaller tier limited to core disclosure and governance obligations. Finally, our review of these boundary questions reveals a larger pattern that ought to inform how we understand securities regulation. Entrepreneurs and their advisors regularly occupy new unregulated space created in the wake of technological change or by gaps in regulation revealed as markets evolve. Government response, seemingly inevitably, is piecemeal and reactive. The result is a regulatory process that is more informal than administrative law theory usually suggests and more opaque than we might want in contemplating regulatory change
Countering the Problem of Falsified and Substandard Drugs
No full textThe adulteration and careless manufacture of medicines is an old problem, vastly aggravated by globalization. The US Food and Drug Administration commissioned the Institute of Medicine to investigate the global problem of falsified and substandard drugs, considering the causes and possible solutions to this international public health crisis. In its consensus report, the committee identified two main categories of drug quality failures of public health concern. Falsified drugs carry a false representation of identity or source; substandard drugs fail to meet the specifications set in the national pharmacopeia or the manufacturer’s dossier. In practice, these categories overlap, but they are sufficiently precise for public discourse.
It is difficult to measure the global market for falsified and substandard drugs, but there is good evidence that they are a problem in poor countries with weak drug regulatory systems. All classes of drugs are compromised, especially inexpensive antibacterial and antimalarial treatments. When fake antimicrobials contain sub-therapeutic doses of active ingredients, they encourage drug resistance, shortening the effective life of a drug and hastening the expense of new drug development. The trade in fake medicines erodes patient confidence in allopathic medicine and the public health system. The organized fraud that allows the drugs to circulate undermines all public institutions and conveys money and power to criminals.
Investment in drug manufacturing could improve drug quality in low- and middle-income countries, and development finance organizations are well positioned to make these investments. Changes to procurement practices could also help guarantee that honest manufacturers get the largest market share. Most of all, low- and middle-income countries need better regulatory systems. The first step to building these systems is developing a strategic plan for the agency improvement. Changes to the drug distribution system could protect the drugs supply. In the United States, licensing only wholesalers that meet National Association of Boards of Pharmacy accreditation standards would reduce the hazards of secondary wholesale, as would a congressionally mandated track-and-trace system. In developing countries, governments should use franchising, accreditation, low-interest loans, and task shifting to create an environment conducive to quality drug retail. There is also a need for sturdy and inexpensive detection technologies that can be used to detect fake medicines in the field. A WHO International Code of Practice on falsified and substandard drugs would facilitate international cooperation against falsified and substandard drugs
Towards a Framework Convention on Global Health: A Transformative Agenda for Global Health Justice
Get PDFInternational law has responded weakly to the inequities in health care, public health, and the broader determinates of health that collectively cause the greatest loss of lives and human potential every year. Approximately one-third of global deaths can be attributed to enduring and unconscionable inequities. Despite significant progress in improving global health over the past several decades, these inequities persist. Current global governance for health is inadequate to the task of resolving these inequities, from lack of accountability and enforcement to inadequate funding and the absence of leadership required to respond to the threats to health that arise from other sectors. The risk of a persisting global health underclass looms large.
Human rights law, with its universally accepted right to health, can underpin new norms and structures to dramatically reduce health inequities and ameliorate the factors that give rise to them. Four fundamental questions can clarify national and international responsibilities under the right to health and offer guidance to new legal instruments to resolve these health inequities: What are the health services and goods guaranteed to every human being under the right to health? What do states owe for the health of their own populations? What responsibility do states have for improving the health of people beyond their borders? What kind of global governance mechanisms are required to guarantee that all states live up to their mutual responsibilities to provide health goods and services to all people?
To capture the answers to these questions, we offer ideas for the contents and structure of a new global treaty grounded in the right to health and with the principal purpose of ameliorating health disparities among the world’s rich and poor. This Framework Convention on Global Health (FCGH) would set global health norms and priorities, with a robust vision of making available and accessible to all: universal the health care, public health measures, and the social determinants required for good health.
The FCGH would embed equity as a key principle in binding international law; establish targets and benchmarks, tailored to individual countries through inclusive and flexible processes, including the critical involvement of civil society and communities; ensure sustainable funding backed by clear national and international responsibilities; strengthen global governance for health including by responding to health threats in other sectors and strengthening the World Health Organization; and establish a robust regime of accountability at local and national levels along with effective enforcement and compliance mechanisms for the FCGH itself.
The path towards an FCGH will be arduous, with multiple barriers posed by politics and special interests. However, the treaty offers an innovative path we should forge, propelled by social mobilization. An inclusive process will be central in establishing the treaty, with a campaign driven by social movements committed to the right to health
Legal Affairs: Dreyfus, Guantánamo, and the Foundation of the Rule of Law
No full textThe Dreyfus affair reminds us that the rule of law and basic human rights are not self-executing. In a democracy, individual rights and the rule of law are designed to check popular power and protect the individual from the majority. Yet paradoxically, they cannot do so without substantial popular support. Alfred Dreyfus received two trials—or at least the trappings thereof—and was twice wrongly convicted. The rule of law was initially unable to stand between an innocent man and the powerful men who sought to frame him. But the issue of Dreyfus\u27s guilt or innocence was not concluded with his verdicts. Thanks to the work of many supporters inside and outside of France, including, most famously, Émile Zola, Dreyfus was ultimately exonerated and his accusers were revealed for the criminals that they were. Justice ultimately triumphed—but only because of the substantial political pressure brought to bear on his behalf
Toward a Jurisprudence of Law, Peace, Justice, and a Tilt Toward Non-Violent and Empathic Means of Human Problem Solving
Get PDFIn this essay the author sets out some questions about whether law can be made a site of encouraging more positive, peace seeking, non-violent, and pro-social behaviors. These questions derive from my own family history, as well as from my experience as a social and political activist, and also as a practicing lawyer and legal scholar. She begins in the introduction by setting out these questions in light of current conditions of domestic and international violence and some past considerations of categories of law. In the second section of this essay the author explains where her questions come from—her personal and professional biography—and how these influences have led to her conclusions, in the third section, that there is no one right way forward. Rather, we need process pluralism, as well as different substantive commitments, to advance a society of true social justice and peace, with appreciation, empathy and sympathy for human differences and more varied modes of working and living together. In the fourth section of this essay the author explores whether we, as human beings, actually have the capacity (biologically and historically) to aspire to develop a social consciousness able to support a more peaceful existence. In the fifth section she explores how our modern social and legal consciousness is attempting to grapple with the tensions implicit in searches for both justice and peace at the same time. In the sixth section the author sets out some possibilities for seriously considering what it would mean to construct a nonviolence jurisprudence. Finally, in the last section the author points out some of the limits of a jurisprudence of non-violence in the face of on-going violence and evil in the world, and ask if we can maintain the hopefulness and optimism needed to effectuate a more peaceful co-existence in a world that challenges our commitments at almost every turn
\u3ci\u3eMutual Pharmaceutical Co. v. Bartlett\u3c/i\u3e and Its Implications
Get PDFThe authors state that the U.S. Supreme Court’s preemption ruling in Mutual Pharmaceutical Co. v. Bartlett, which generally shields generic drug manufacturers from state-law damages liability for design-defect claims, may also have broader implications for preemption jurisprudence. In this article they describe the Supreme Court’s decision in Mutual and evaluate how it may affect future products-liability litigation.
Part I provides an overview of the case’s factual background and of federal generic drug regulation, while Part II discusses the Court’s majority opinion and the dissents. Part III analyzes the implications of the decision, offering ideas on how plaintiffs injured by defective or mislabeled generic prescription drugs may seek compensation after Mutual and how federal regulators and Congress may respond. Part III also briefly assesses Mutual’s potential impact on federal preemption doctrine
Representing Social Enterprise
Get PDFThis article explores the representation of social enterprises—i.e., nonprofit and for-profit organizations whose managersstrategically and purposefully work to create social, environmental, and economic value or achieve a social good through the use of business techniques—in the Social Enterprise & Nonprofit Law Clinic at Georgetown University Law Center. Representation of social enterprises helps create a dynamic curriculum through which law students learn to merge corporate legal theory with transactional law practice. Through service to social enterprises, law students (i) learn about corporate governance and corporate legal theory as well as business models and mechanisms that support social and environmental value creation at a time when the corporate sector is increasingly concerned about sustainability challenges; and (ii) engage in solving novel and unstructured problems, advocacy work, knowledge creation, and information facilitation to assist the developing social enterprise sector. Legal issues unique to social enterprises compel students to learn corporate governance and corporate practice methods in a manner not typically present in the non-experiential classroom
Against Endowment Theory: Experimental Economics and Legal Scholarship
Get PDFEndowment theory holds the mere ownership of a thing causes people to assign greater value to it than they otherwise would. The theory entered legal scholarship in the early 1990s and quickly eclipsed other accounts of how ownership affects valuation. Today, appeals to a generic “endowment effect” can be found throughout the legal literature. More recent experimental results, however, suggest that the empirical evidence for endowment theory is weak at best. When the procedures used in laboratory experiments are altered to rule out alternative explanations, the “endowment effect” disappears. This and other recent evidence suggest that mere ownership does not affect willingness to trade or exchange. Many experimental economists no longer ascribe to endowment theory. Legal scholars, however, continue to rely on endowment theory to predict legal entitlements’ probable effects on expressed valuations. That reliance is no longer warranted. Endowment theory’s influence in legal scholarship provides important lessons about how legal scholars and policymakers should, and should not, use results from experimental economics
Afterword: The Libertarian Middle Way
Get PDFLibertarianism is sometimes portrayed as radical and even extreme. In this Afterword to a symposium on Libertarianism and the Law in the Chapman Law Review, I explain why, though it may be radical, libertarianism is far from extreme in comparison with its principal alternatives: the social justice of the Left or legal moralism of the Right. Social justice posits that everyone should get a certain amount of stuff; legal moralism posits that everyone should act in a certain way. But because there is no consensus about how much stuff each person should have or how exactly everyone should act, both of these comprehensive approaches are recipes for societal conflict. And the legal institutions that are necessary to implement each vision must be highly intrusive and coercive. In contrast, libertarianism is far more modest: it stipulates only that individuals may do what they please with what is theirs, requiring a legal system merely to define the proper jurisdiction of each person over their rightfully acquired property. I explain how the basic insight of libertarianism is rooted in the spirit of toleration that was the classical liberal solution to the socially destructive religious wars. Like Westphalian political sovereigns who are to leave each other in peace and not to interfere with each other\u27s domestic affairs, classical liberalism posited the sovereignty of individuals to pursue the good life peacefully within their own jurisdictions, free from outside interference, provided they do not infringe upon the like jurisdictions of other sovereign individuals. I conclude by explaining how libertarianism contributes to the private law that defines the contours of these individual jurisdictions, and the public law that is supposed to confine government to its proper function of protecting the rights of persons better than they can protect themselves. Although many would prefer their own preferred visions of social justice or legal moralism (or both) to be imposed on everyone else, libertarianism represents an appealing second best or middle way alternative to having someone else\u27s wrong vision of social justice or of morality imposed upon them
Honor and Destruction: The Conflicted Object in Moral Rights Law
Get PDFIn 1990, the Copyright Act was amended to name visual artists, alone among protected authors, possessors of moral rights, a set of non-economic intellectual property rights originating in nineteenth-century Europe. Although enhancing authors\u27 rights in a user-oriented system was a novel undertaking, it was rendered further anomalous by the statute\u27s designated class, given copyright\u27s longstanding alliance with text. And although moral rights epitomize the legacy of the Romantic author as a cultural trope embedded in the law, American culture offered little to support or explain the apparent privileging of visual artists over other authors. What, if not a legal or cultural disposition toward visual artists, precipitated the enactment of a moral rights statute like the Visual Artists Rights Act of 1990 (\u27\u27VARA )? This Article demonstrates that the answer is less related to authorship concerns than would reasonably be surmised from a doctrine premised on the theory that a creative work embodies the author\u27s honor, personhood, and even soul