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Judges as Bad Reviewers: Fair Use and Epistemological Humility
Get PDFThe future of fair use depends on whether judges act like bad reviewers, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging. Ordinarily, judges are asked to produce definitive answers about the meanings of texts. But when it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations. This is also what is necessary to a good fair use analysis.
Unfortunately, copyright fair use cases rarely acknowledge multiplicity of meaning. Through discussion of fan-made music videos, this short commentary shows how transformative uses routinely invite multiple interpretations, just as ‘‘original’’ works do. As a result, a fair use analysis that insists on reducing works to single meanings will predictably fail in the aim of protecting transformative works that add new meanings or messages. The proper approach is epistemological humility: when reasonable audience members could discern commentary on the original work, a court should find transformation, even when other reasonable audience members could disagree
Stemming the Global Trade in Falsified and Substandard Medicines
Get PDFDrug safety and quality is an essential assumption of clinical medicine, but there is growing concern that this assumption is not always correct. Poor manufacturing and deliberate fraud occasionally compromises the drug supply in the United States, and the problem is far more common and serious in low- and middle-income countries with weak drug regulatory systems. An Institute of Medicine consensus committee report identified the causes and possible solutions to the problem of falsified and substandard drugs around the world.
The vocabulary people use to discuss the problem is itself a concern. The word counterfeit is often used innocuously to describe any drug that is not what it seems, but some NGOs and emerging manufacturing nations object to this term. These groups see hostility to generic pharmaceuticals in a discussion of counterfeit medicines. These groups see hostility to generic pharmaceuticals in a discussion of counterfeit medicines. Precisely speaking, a counterfeit drug infringes on a registered trademark, and trademark infringement in not necessarily a problem of public health consequence. Instead of talking broadly about counterfeit drugs, the WHO and other stakeholders should consider two main categories of drug quality problems. Falsified medicines misrepresent the product’s identity or source or both. Substandard drugs fail to meet the national specifications given in an accepted pharmacopeia or the manufacturer’s dossier. In practice, there is often considerable overlap between categories.
There is considerable uncertainty about the size of the falsified and substandard drug market. Improved pharmacovigilance, especially in developing countries, give a better picture of the scope of the problem. In the United States, tighter regulatory controls on the wholesale market and a mandatory drug tracking system would improve drug safety. In developing countries, development finance organizations should invest in small- and medium-sized pharmaceutical manufacturers, and governments should use tools such as franchising, accreditation, low-interest loans, and task shifting to encourage private sector investment in drug retail. Finally, the WHO should work with stakeholders such as the UNODC and the WCO to develop an international code of practice on 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
Bloomberg’s Health Legacy: Urban Innovator or Meddling Nanny?
Get PDFMichael Bloomberg leaves the mayoralty of New York City, with his health legacy is bitterly contested. The public health community views him as an urban innovator—a rare political and business leader willing to fight for a built environment conducive to healthier, safer lifestyles. To his distractors, however, Bloomberg epitomizes a meddling nanny—an elitist dictating to largely poor and working class people about how they ought to lead their lives. His policies have sparked intense public, corporate, and political ire—critical of sweeping mayoral power to socially engineer the city and its inhabitants.
Here, I seek to show how Bloomberg has fundamentally changed public health policy and discourse. He has used the engine of government to make New York City a laboratory for innovation—raising the visibility of public health, testing policy effectiveness, and probing the boundaries of state power. The courts have blocked some of his boldest initiatives, but he offered a paradigm for the “new public health”—reaching beyond infectious diseases to upstream risk factors in everyday life and the human habitat. I also critically probe various arguments designed to derail his policies (e.g., questions of policy consistency, scientific evidence, First Amendment claims, and civil liberties) along with the overarching charge of unjustified paternalism.
The article discusses key Bloomberg policies, including those in the areas of diet and nutrition (e.g., menu labeling, trans fat ban, and the soda portion limit); physical activity (e.g., bike and walking paths, safe school routes, parks); and tobacco control (smoke free laws, cigarette taxes, and advertising restrictions). A graphic categorizing his major health policies appears at http://www.law.georgetown.edu/oneillinstitute/gostin_hcr_bloombergshealthlegacy.html
Injunctions in Sovereign Debt Litigation
Get PDFInjunctions against foreign sovereigns have come under criticism on comity and enforcement grounds. We argue that these objections are overstated. Comity considerations are important but not dispositive. Enforcement objections assign too much significance to the court’s inability to impose meaningful contempt sanctions, overlooking the fact that, when a foreign sovereign is involved, both money judgments and injunctions are enforced through what amounts to a court-imposed embargo. This embargo discourages third parties from dealing with the sovereign and, if sufficiently costly, can induce the sovereign to comply. Nevertheless, we are skeptical about injunctions in sovereign debt litigation. They are prone to dramatic spillover effects precisely because they cannot reach their primary target, the sovereign government. Recent decisions in NML v. Argentina illustrate the way in which a court’s inability to compel compliance by the sovereign may lead it to impose dramatic and potentially unwarranted costs on third parties, turning traditional equitable analysis on its head
Nested Ethics: A Tale of Two Cultures
Get PDFThis article suggests that a law firm that desiring to promote ethical behavior by its lawyers needs to complement efforts to establish an “ethical infrastructure” and an “ethical culture” with attention to its broader organizational culture. Specifically, research indicates that the perception that an organization treats its members fairly–their sense of organizational justice--is an important factor in prompting members’ ethical behavior.
Many law firms in the last two or three decades have devoted attention to establishing what has been called an “ethical infrastructure” that reflects appreciation of the importance of organizational policies and procedures in encouraging ethical behavior. Such measures are salutary efforts to move beyond relying simply on individual character to ensure that law firm lawyers behave ethically. Research indicates, however, that policies and procedures will have little effect if members of an organization do not believe that they reflect ethical values to which organizational leaders genuinely subscribe. This has led to efforts in recent years to promote an “ethical culture” in firms that stresses the firm’s genuine commitment to the values underlying the professional responsibilities of lawyers in the firm. Modeling ethical behavior, penalizing those who violate ethical duties notwithstanding the revenues they generate, and openly discussing the relevance of professional values in various settings are some of the ways that this can done. This can be important in communicating that policies and procedures are not simply formalities with little substantive significance.
When members of an organization think of ethics, however, they tend first to focus on how fairly they believe the organization treats people who work there. Research indicates that there is a strong connection between the perception of organizational justice and ethical attitudes and behavior. In the law firm setting, this directs attention to features not necessarily regarded as having salience with respect to professional responsibility, such as a firm’s compensation system, its support for members dealing with medical or family issues, and whether people who exhibit cooperative or competitive behavior are more likely to advance. The article suggests that ethical infrastructure and ethical culture can be seen as nested with a broader organizational culture. They each can provide distinct and complementary ways of promoting ethical outcomes, and also offer different angles of vision for research on behavior in law firms
From Antislavery Lawyer to Chief Justice: The Remarkable but Forgotten Career of Salmon P. Chase
Get PDFThe name Salmon P. Chase is barely known and his career is largely forgotten. In this paper, the author seeks to revive his memory by tracing the arc of his career from antislavery lawyer, to antislavery politician, to Chief Justice of the United States. In addition to explaining why this is a career worth both remembering and honoring, the author offers some possible reasons why his remarkable achievements have largely been forgotten
That Thing that You Do: Comment on Joseph Massad’s \u27Empire of Sexuality\u27
Get PDFMassad’s thesis is simple, in fact, perfect in its simplicity. Empire is a terrible force that wants to penetrate, overpower and hegemonize. It has a center, a headquarters if you like, the West. It functions with two arms: capitalism (later neoliberal) and Euro-American hegemony. The first arm represents the objective drive of capital that transforms sites and cultures as it spreads the market in the shape of commodity exchange. It has become a universal system, Massad contends, though with varying effects on the center (West) from the periphery (rest). Whereas its march on the former has been totally transformative, in the latter, only so. In the center, not only has capitalism become the dominant mode of production, but it has also, following Foucault, witnessed the emergence knowledges/powers that have instituted categories, binaries, taxonomies, in short, epistemologies that were unknown in the pre-capitalist era. These epistemologies produced new subjects. One of those was the hetero/homo distinction in which people came to know their “hetero/homosexuality” as their most inner truth
Welcome to the New Originalism: A Comment on Jack Balkin’s Living Originalism
Get PDFIn this short piece for a symposium on Jack Balkin\u27s new book, Living Originalism, I welcome Jack Balkin into the originalist camp. I discuss how and why a nonoriginalist can become an originalist. By discussing how I eventually became an originalist at the end of the last century, I hope to shed some light on what exactly is so remarkable about Jack Balkin’s move. After discussing the appeal of the New Originalism that account for Balkin\u27s originalist move, I conclude by offering a cautionary note about the use of underlying principles in Balkin\u27s text and principle approach, which in certain iterations can be indistinguishable from the old living constitutionalism that Balkin has put behind him
What Consensus? Ideology, Politics and Elections Still Matter
Get PDFThis article, which was prepared for an ABA Antitrust Section Panel, discusses the role of ideology and politics in antitrust enforcement and the impact of elections in the last twenty year on enforcement and policy at the federal antitrust agencies. The article explains the differences in antitrust ideologies and their impact on policy preferences. The article then uses a database of civil non-merger complaints by the DOJ and FTC over the last three Presidential administrations to analyze changes in the number, type and other characteristics of antitrust enforcement. It also discusses change in vertical merger enforcement and other antirust policies such as amicus briefs, reports and guidelines. The article concludes that elections do matter and that the impact of elections on the DOJ and FTC has differed significantly