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Information Privacy Litigation as Bellwether for Institutional Change
Get PDFInformation privacy litigation is controversial and headline-grabbing. New class complaints are filed seemingly every few weeks. Legal scholars vie with one another to articulate more comprehensive theories of harm that such lawsuits might vindicate. Large information businesses and defense counsel bemoan the threats that information privacy litigation poses to corporate bottom lines and to “innovation” more generally. For all that, though, the track record of litigation achievements on the information privacy front is stunningly poor. This essay examines emerging conventions for disposing of information privacy claims, including denial of standing, enforcement of boilerplate waivers, denial of class certification, and the rise of the cy pres settlement. It argues that, in an era of complex, informationally-mediated harms, the information privacy lawsuit is a marker of both institutional stress and institutional opportunity. The inability of most information privacy claims to gain meaningful traction reflects the influence of powerful repeat players interested in minimizing their exposure to claims of informational injury. But it also raises important questions about how judicial processes can be adapted to deal with the predominantly informational and infrastructural harms that increasingly characterize our networked, information-based political economy
General Counsel of the FBI, James Baker, in Conversation with Professor Mary DeRosa on the FBI and International Justice
Get PDFMary DeRosa, Georgetown Law Professor, former Deputy Counsel to President Obama for National Security Affairs, former Legal Advisor to the National Security Council under President Obama, and former Deputy Legal Adviser to the National Security Council in the Clinton Administration, interviewed current General Counsel of the Federal Bureau of Investigation (FBI), James Baker. The two discussed the FBI’s role in international law enforcement and the domestic tension between technological advancement and law enforcement duties
Our Shared Vulnerability to Dangerous Pathogens
No full textThe international community vastly underestimates the risk and scale of our shared vulnerability to fast moving pathogens. Ranging from SARS and novel influenzas to Ebola and Zika, the world seems to be caught off guard, despite the regularity of global health threats historically. More importantly, when governments and international institutions underestimate the threat, they also underinvest in preparedness. Failure to prepare has deep costs in human lives and economic productivity. Here, I offer a pathway to preparedness for, and rapid response to, infectious disease threats: robust and resilient national health systems; strong institutions capable of leading, particularly the World Health Organization; and investments in research and development. Overall, the world needs a strong system of laws and governance, ranging from the International Health Regulations through to norms of transparency and accountability. To secure our common future, the world needs sustained investment and leadership. I propose a \u27security dividend\u27, both financial and institutional, to remake the global health security system
Cinderella Sovereignty
Get PDFJoseph Blocher and Mitu Gulati propose an insightful and thought-provoking critique of the barriers to secession under public international law. The critique an important contribution in its own right. I wish it had not been eclipsed by the authors’ clever and provocative fix: turning sovereignty into a tradable commodity. I suspect that this fix would bring about more suffering than the status quo for two reasons. First, a market for sovereign control is unlikely to be a market in any meaningful sense. Therefore, trading sovereignty would not discipline oppressors. Second, should something like a real market materialize, it could diminish the incentives for states to treat their populations better just as plausibly as it could improve them. Distant empires could find it easier to traffic in oppressed people and territories, which would pass from state to state as their masters lose interest. A class of marginal client statelets would grow, endowed with a poor stepchild of sovereignty, which would leave their people defenseless and voiceless
Advancing the Right to Health: The Vital Role of Law
Get PDFEffective laws and an enabling legal environment are essential to a healthy society. Most public health challenges – from infectious and non-communicable diseases to injuries, from mental illness to universal health coverage – have a legal component. At global, national and local levels, law is a powerful tool for advancing the right to health. This tool is, however, often underutilized.
This report aims to raise awareness about the role that public health laws can play in advancing the right to health and in creating the conditions for all people to live healthy lives. The report provides guidance about issues and requirements to be addressed during the process of developing or reforming public health laws, with case studies drawn from countries around the world to illustrate effective practices and critical features of effective public health legislation.
Advancing the right to health: the vital role of law is the result of a collaboration between the World Health Organisation, the International Development Law Organisation (IDLO), the O’Neill Institute for National and Global Health Law, Washington D.C., USA, and Sydney Law School, University of Sydney. The Project Directors were: Professor Lawrence O. Gostin, Linda D. and Timothy J. O’Neill Professor of Global Health Law and University Professor, Georgetown University; Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University; Mr David Patterson, Senior Legal Expert – Health; Department of Research & Learning, International Development Law Organization; Professor Roger Magnusson, Professor of Health Law & Governance, Sydney Law School, University of Sydney; Mr Oscar Cabrera, Executive Director, O’Neill Institute for National and Global Health Law, Georgetown University Law Center; Ms Helena Nygren-Krug (2011–2013), Senior Advisor, Human Rights & Law, UNAIDS.
The content and structure of the report reflect the consensus reached at the second of two international consultations in public health law that preceded the preparation of the report, hosted by WHO and IDLO in Cairo, Egypt, 26-28 April 2010. Part 1 introduces the human right to health and its role in guiding and evaluating law reform efforts, including efforts to achieve the goal of universal health coverage.
Part 2 discusses the process of public health law reform. The law reform process refers to the practical steps involved in advancing the political goal of law reform, and the kinds of issues and obstacles that may be encountered along the way. Part 2 identifies some of the actors who may initiate or lead the public health law reform process, discusses principles of good governance during that process, and ways of building a consensus around the need for public health law reform.
Part 3 turns from the process of reforming public health laws to the substance or content of those laws. It identifies a number of core areas of public health practice where regulation is essential in order to ensure that governments (at different levels) discharge their basic public health functions. Traditionally, these core areas of public health practice have included: the provision of clean water and sanitation, monitoring and surveillance of public health threats, the management of communicable diseases, and emergency powers.
Building on these core public health functions, Part 3 goes on to consider a range of other public health priorities where law has a critical role to play. These priorities include tobacco control, access to essential medicines, the migration of health care workers, nutrition, maternal, reproductive and child health, and the role of law in advancing universal access to quality health services for all members of the population. The report includes many examples that illustrate the ways in which different countries have used law to protect the health of their populations in ways that are consistent with their human rights obligations. Countries vary widely in terms of their constitutional structure, size, history and political culture. For these reasons, the examples given are not intended to be prescriptive, but to provide useful comparisons for countries involved in the process of legislative review
Illegal Marijuana Cultivation on Public Lands: Our Federalism on a Very Bad Trip
Get PDFFueled by increasing demand for marijuana, illegal cultivation of the drug on public lands is causing massive environmental harm. The federal government lacks the resources to wage what would be a difficult and costly campaign to eradicate these illegal grow sites and instead focuses its limited resources on enforcing the federal marijuana ban. Marijuana decriminalization might allow legally grown marijuana to squeeze out its illegal counterpart, but the political likelihood of decriminalization is low. The key is reducing demand for the illegal drug by changing public buying preferences. However, doing this depends on an available legal alternative. This Article discusses several behavioral modification approaches as a way of changing consumer preferences and possible ways to resolve the current conflict between state marijuana legalization and its federal criminalization
Independence at the Top of the Triangle: Best Resolution of the Judicial Trilemma?
Get PDFWorld Trade Organization (WTO) members have, once again, been unable to agree on the appointment of new members to the Appellate Body (AB) in a timely fashion, as one member’s term expired on June 30, 2017, another member resigned in August 2017, and a third member’s term will expire in December 2017, with no consensus on a process to fill those posts. The 2017 standoff follows on the heels of a fractious debate during the summer of 2016 over the United States’ decision to block the reappointment of AB member Sueng Wha Chang of Korea to a second term. Given that the AB has just seven members, the inability to quickly appoint new members to replace those whose terms have expired only adds to the difficulty of rendering decisions within the tight time frames called for in the WTO rules
Are There Any Ethical Barriers to Effective Antismoking Measures?
No full textThe tobacco industry and its allies often attack tobacco control measures as paternalistic efforts that violate smokers’ rights and interfere with individual liberty. Although these arguments have no constitutional or other legal basis, they still have considerable rhetorical and persuasive power. But logic and rational analysis can prevent others from accepting these flawed ethics-based attacks as valid. New ethical analyses of the tobacco industry are also needed. So far, tobacco industry product development, marketing, and sales practices have rarely been held to any ethical standards. By detailing how tobacco companies continue to act unethically, thereby causing enormous amounts of preventable death and destruction, new ethical analyses could increase support for more active tobacco control efforts. Tobacco control ethics should also go on the offensive and provide new ethical critiques of government inaction
International Tax Reform: Hearing Before the S. Comm. on Fin., 115th Cong., Oct. 3, 2017 (Statement of Itai Grinberg)
Get PDFLowering the corporate income tax rate and moving to a territorial system are important to maintain U.S. prosperity and improve growth prospects for our economy. The U.S. cannot stand apart from corporate tax competition in a globalized economy.
To ensure that corporate income tax reform maximizes opportunity for well-paid employment for as many of our children and grandchildren as possible, the United States must also level the playing field between U.S. and foreign-headquartered MNCs. Leveling the playing field requires addressing the relative tax advantages available to foreign-owned U.S. corporations that represent one of the most senseless aspects of our current corporate tax code
Demystifying Burdens of Proof and the Effect of Rebuttable Evidentiary Presumptions in Civil and Criminal Trials
Get PDFEvidentiary presumptions in law act as shortcuts to rigorous proof. By means of an evidentiary presumption, a difficult-to-prove critical fact may be established by proving some other more easily provable subsidiary fact from which the critical fact may be presumed. This accounts for the popularity of these presumptions with trial lawyers.
But the puzzling question has always been, “What effect on the normal processes of trial, does a legal presumption have, especially when there is other evidence pro and con on the presumed fact?” This article aims to shed light on these problems, and to examine the arsenal of tools available to help solve them or at least to help think about solving them.
But before we do, we must explore another set of widely misunderstood legal concepts that are key to the inquiry. I am talking about “burdens of proof.” Evidentiary presumptions are exclusively concerned with altering burdens of proof in one way or another. Hence we begin by examining how burdens operate in cases where no presumption is invoked; and then later we will demonstrate how evidentiary presumptions can change the picture