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Legal Formulations of a Human Right to Information: Defining a Global Consensus
Get PDFThere is a growing body of law across the globe that seeks to define a right to information. Any study of such laws quickly reveals a great diversity of definitions for both the type of information covered and the nature of the right. Access to various particular types of information is routinely granted in piecemeal fashion through all levels of government including national sub-constitutional laws, national constitutions, and regional and international treaties. In the hierarchy of individual rights, constitutionally granted rights are commonly perceived as the strongest and are most likely to be accepted as inviolable. Thus, the increasing number of constitutional provisions granting a right to information, while still technically granting the right as a matter of law, does at least suggest that such constitutional rights have a source and justification that goes beyond mere law. In the end, a mature statement of the right to information is more than a list of its current enumerations. Both effective advocacy and sound legal interpretation will benefit from starting with the full statement of the right to information-the human right-to the information that is needed to live self-actualized
The International Right to Health: What Does It Mean in Legal Practice and How Can It Affect Priority Setting for Universal Health Coverage?
Get PDFThe international right to health is enshrined in national and international law. In a growing number of cases, individuals denied access to high-cost medicines and technologies under universal coverage systems have turned to the courts to challenge the denial of access as against their right to health. In some instances, patients seek access to medicines, services, or technologies that they would have access to under universal coverage if not for government, health system, or service delivery shortfalls. In others, patients seek access to medicines, services, or technologies that have not been included or that have been explicitly denied for coverage due to prioritization. In the former, judicialization of the right to health is critical to ensure patients access to the technologies or services to which they are entitled. In the latter, courts may grant patients access to medicines not covered as a result of explicit priority setting to allocate finite resources. By doing so, courts may give priority to those with the means and incentive to turn to the courts, at the expense of the maximization of equity- and population-based health.
Evidence- based, informed decision-making processes could ensure that the most clinically and cost-effective products aligning with social value judgments are prioritized. Governments should be equipped to engage in and defend rational priority setting as a means to promote fair allocation of resources to maximize population health. Rational priority setting is an evidence-based form of explicit priority setting, where the priority setting process is deliberate and transparent, the decision makers are specified, relevant stakeholders are involved, and the best available evidence about clinical and cost-effectiveness and social values is considered. The most rational priority setting processes will also account for the benefit to patients, the cost, the ethicality and the fairness. The priority setting process and institutions involved should then be held accountable through an appeals process, allowing independent review by health systems, health care, and other relevant experts, and an opportunity for judicial review. While the implementation of a three-step (1) rational priority setting, (2) appeals, and (3) judicial review process will differ depending on a country’s resource constraints, political systems, and social values, the authors argue that the three stages together will promote the greatest accountability and fairness. As a result, the courts could place greater reliance on the government’s coverage choices, and the population’s health could be most equitably distributed
The Superior Virtues of Historical Originalism
No full textPulitzer Prize-winning historian Jack Rakove, William Robertson Coe Professor of History and American Studies at Stanford University, delivered the Annual Philip A. Hart Memorial Lecture, “The Superior Virtues of Historical Originalism” on March 30, 2016. Professor Rakove has authored over six books, including Original Meanings: Politics and Ideas in the Making of the Constitution (Alfred Knopf, 1996), winning a Pulitzer prize in 1997, where he argues that originalism, the practice of interpreting the Constitution by a fixed set of the original framers’ intentions, should not be the only approach to settling judicial questions
Inmate Legal Information Requests Analysis: Empirical Data to Inform Library Purchases in Correctional Institutions
Get PDFThe introduction of legal content to Google Scholar made United States case law and law journal articles accessible to an unprecedented extent. With case law freely available and accurate bibliographic information for articles, could Google Scholar be accurate and complete enough for correctional institutions to forgo purchasing either print publications or fee-based services for these materials? This article empirically assesses whether Google Scholar can reliably answer the questions of inmates in a correctional facility, the Baltimore City Detention Center. As a comparison, the same questions are tested in Westlaw Correctional, a subscription database marketed to correctional institutions
Income-Driven Repayment and the Public Financing of Higher Education
Get PDFThis article provides the first comprehensive analysis in the legal literature of the federal government’s new income-driven student loan repayment programs, known as Income-Based Repayment and Pay As You Earn. In a set of gradual and little-noticed statutory and regulatory moves, the federal government, through these programs, has dramatically reshaped higher education finance in ways that schools, students, and even the government itself are only beginning to understand.
Under IBR and PAYE, a student borrower pays no more than 10% of her discretionary income in loan service payments, and after a maximum of 20 years, the remaining debt is forgiven—for any borrower, regardless of degree, career, or debt load. This article argues that such an income-driven system is analogous to the federal government paying the up-front costs of higher education, but raising that money from a 10% “surtax” on the incomes of graduates. This is a huge change from the current mixture of debt-financed tuition, need-based grants, and moderate state subsidies.
This framing raises important questions. Is this income-driven repayment structure appropriate? How tax-like and progressive are IBR and PAYE in fact, and can they be made more (or less) so? What are the risks and downsides of such a structure? This article claims that using a tax-like instrument such as income-driven repayment is well suited for higher education, given its economics, financial characteristics, and social benefits. In particular, the key difference between income-driven repayment and up-front need-based grants, such as Pell Grants, is that income-driven repayment makes a judgment of need based on ex post graduate income, rather than ex ante parental income. Based on this analysis, this article concludes with some novel suggestions for reform to PAYE
A Public Health Framework for Screening Mammography: Evidence-Based Versus Politically Mandated Care
Get PDFThis Viewpoint highlights the societal risks of politically motivated mandates relating to public health guidelines. Although the Affordable Care Act mandated insurance coverage for U.S. Preventive Services Task Force (USPSTF)-recommended preventive services, it went further for mammography screening. Instead of relying on the most recent USPSTF guidelines, Congress amended the ACA to require the Department of Health and Human Services (DHHS) to use its 2002 guidelines, which recommended screening every 1-2 years starting at age 40. The FY 2016 Consolidated Appropriations Act instructs DHHS to interpret any reference to “current” USPSTF breast cancer screening recommendations to mean those issued “before 2009” — in other words, its 2002 recommendations. Essentially, Congress is requiring health insurers to ignore modern scientific assessments, and instead use 14-year-old guidance.
The ACA improved the public’s health by guaranteeing that insurers provide uniform, cost-free access to preventive services based on modern evidence of effectiveness. The public’s health is best served when women’s personal decisions about screening are informed by evidence rather than political considerations. The Congress’s paternalistic response to USPSTF mammography-screening recommendations vividly illuminate the social costs of politically mandated care. Rather than benefiting women, political interference with science can discourage shared decision-making, increase harms from screening, and sow public doubt about the value and integrity of science
The International Health Regulations: The Governing Framework for Global Health Security
Get PDFThe International Health Regulations (IHR) are the governing framework for global health security yet require textual and operational reforms to remain effective, particularly as parallel initiatives are developed. The World Health Organization (WHO) is the agency charged with oversight of the IHR, and its leadership and efficient functioning are prerequisites for the effective implementation of the IHR. We reviewed the historical origins of the IHR and their performance over the past 10 years and analyzed all of the ongoing reform panel efforts to provide a series of politically feasible recommendations for fundamental reform. This article offers proposals for fundamental reform—with politically feasible pathways—of the IHR, their operations and implementation, WHO oversight, and State Party conformance
Loser Pays in Patent Examination
Get PDFMany scholars and practitioners believe there are too many “weak” patents—those that should not have issued but somehow get approved by the U.S. Patent and Trademark Office (PTO). To the extent they exist, such patents unnecessarily tax real innovation and generate welfare losses for society.
Some commentators have focused on the PTO’s failure to exclude weak patents, or the damage caused by these patents in litigation, often by patent trolls. But this scholarly discussion misses the point. The present Article argues that weak patents largely stem from a pricing problem: namely, a patent applicant pays higher patent fees when she succeeds (i.e., receives PTO approval) than when she fails (i.e., is rejected by the PTO).
The Article explains why such pricing is precisely backwards, penalizing good patent applications instead of bad ones. It then proposes a novel remedy: import “loser pays” concepts from litigation into patent examination. By forcing unsuccessful patent applicants to pay more, a loser-pays system disincentivizes weak applications and improves application quality.
The Article also describes how a loser-pays system could lower patent examiners’ burden and discourage continuation applications, both of which slow down patent examination. In doing so, the Article sketches out a new patent system that is at once more efficient and more effective in weeding out weak patents
Law\u27s Emotions
Get PDFThe emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the generation, the interpretation, and the reception of law. Their scholarship is in part offered as a collective corrective to what they perceive as the legal academy’s dominant and ill-conceived bias toward reason and rationalism, when explaining legal phenomena.
In my comments this morning, however, I want to pose a question that I believe has been neglected by law and emotions scholars, and I will urge that we center it. To summarize my criticism: Law and Emotions scholars have looked at emotion’s impact on law and on our understanding of justice, and at law’s impact on emotional life, and have done so to great effect. What they, or we, haven’t much to date investigated, however, are the emotions law produces, or authors, or sires, or births, or fathers – the emotions that law itself generates, rather than the emotions that affect law or the emotions that law affects
Food for Thought: Should Libraries Partner with Nonlibrary Search Engine Providers for Their OPACs and Discovery Layers?
Get PDFSince the development of integrated library systems (ILS) in the 1970s, the focus of developers and librarians has been on the “integrated” aspect, but with the advances in technology, the time has come for libraries to consider whether a disaggregated system would better benefit their users. This article seeks to make the argument that the design of a user-friendly public interface to library systems is ideal for partnerships with the broader search engine industry; such an approach would enable participants to harness their respective strengths while simultaneously limiting the effect of their deficiencie