3320 research outputs found
Sort by
The Appropriate Legal Standard and Sufficient Economic Evidence for Exclusive Dealing under Section 2: the FTC’s \u3ci\u3eMcWane\u3c/i\u3e Case
Get PDFThe FTC recently found McWane, Inc. liable for unlawful monopoly maintenance by a 3-1 majority. The dispute among the FTC Commissioners raises important and interesting issues regarding the law and economics of exclusive dealing and the proper evaluation of the competitive effects of exclusionary conduct. Commissioner Wright’s Dissent proposes and utilizes a new legal standard that requires the plaintiff to show “clear evidence” of harm to competition before shifting the burden to the defendant to show procompetitive efficiency benefits. This burden of proof and production on the plaintiff is much higher than showing “probable effect” based on a preponderance of the evidence standard. Application of this higher burden to interbrand exclusivity restraints by monopolists is not supported either by the case law, economic theory or empirical evidence. In evaluating harm to competition, this legal standard places no weight on certain important factors, including the fact that McWane was a monopolist with the explicit purpose of raising the costs and reducing the distribution of its only competitors. His proposed standard also does not consider whether McWane’s efficiency claims were valid, in the absence of other clear evidence of competitive harm. Commissioner Wright limits his economic analysis to only a single possible mechanism of exclusionary effect, whether the entrant was prevented from reaching minimum efficient scale of production, rather than a broader analysis of whether the entrant’s costs were raised or whether its ability to expand output was so limited by the exclusives that it was unable to prevent the maintenance of McWane’s monopoly pricing. Commissioner Wright also fails to credit the direct evidence of price effects found by the Commission. In our view, this proposed type of legal standard and economic approach is not an “enquiry meet for the case.” It creates a serious risk of leading to false negatives, under-enforcement and under-deterrence
Ebola: Towards an International Health Systems Fund
Get PDFThe current outbreak of Ebola virus disease (EVD) in West Africa is spiraling out of control, but it never had to happen. What can the international community do now to bring the epidemic under control, and how can we prevent the next one?
The counties most affected by Ebola (Guinea, Liberia, and Sierra Leone), rank among the lowest in global development, lacking essential public health infrastructure. If the affected countries had adequate public health systems, they probably would have contained Ebola within rural settings, avoiding the first outbreak in major urban areas.
More than 130 health workers have died from Ebola during the current outbreak, depleting already scarce human resources. Hospitals lack personal protective equipment and safe isolation facilities, becoming amplification points for transmission. The absence of basic public health infrastructure means that countries have instead often resorted to military-led cordons sanitaires, without ensuring access to basic necessities, such as food, clean water, and health care.
This article proposes an International Health Systems Fund, encompassing both emergency response capabilities and enduring health-system development. The WHO’s Ebola response roadmap estimates than an initial US$490 million in global resources over 6 months would be needed to curb the outbreak, although the total costs are likely to be considerably higher. What is needed is a standing crisis fund to ensure surge capacity in the event of a WHO declared Public Health Emergency of International Concern.
To prevent future epidemics, and to provide health services for the entire population, we also urgently need a sustainable International Health Systems Fund to build long-term capacity. This fund, however, would require multibillion-dollar investment. Although large, the international community has mobilized before on this scale through PEPFAR and the Global Fund.
The West African Ebola epidemic should spark a badly needed global course correction that would favor strong health infrastructure. It would encourage high-income countries to meet their International Health Regulations obligations to mobilize financial resources and provide technical land logistical support to develop, strengthen, and maintain public health capacity, especially in lower-income countries. Although the scale of investment would be substantial, it is a wise and affordable investment in containing global health hazards, and moving towards a right-to-health based universal health coverage
Cross Border Data Flows: Could Foreign Protectionism Hurt U.S. Jobs?: Hearing Before the Subcomm. On Commerce, Mfg. & Trade of the H. Comm. on Energy & Commerce, 113th Cong., Sept. 17, 2014 (Statement of Laura K. Donohue)
Get PDFDocuments released over the past year detailing the National Security Agency’s telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) directly implicated U.S. high technology companies in government surveillance. The result was an immediate, and detrimental, impact on U.S. firms, the economy, and U.S. national security.
The first Snowden documents, printed June 5, 2013, revealed that the U.S. government had served orders on Verizon, directing the company to turn over telephony metadata under Section 215 of the USA PATRIOT Act. The following day, The Guardian published classified slides detailing how the NSA had intercepted international content under Section 702 of the FISA Amendments Act. The type of information obtained ranged from E-mail, video and voice chat, videos, photos, and stored data, to Voice over Internet Protocol, file transfers, video conferencing, notifications of target activity, and online social networking details. The companies involved read like a who’s who of U.S. Internet giants: Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL, and Apple.
More articles highlighting the extent to which the NSA had become embedded in the U.S. high tech industry followed. In September 2013 ProPublica and the New York Times revealed that the NSA had enjoyed considerable success in cracking commonly-used cryptography. The following month the Washington Post reported that the NSA, without the consent of the companies involved, had obtained millions of customers’ address book data: in one day alone, some 444,743 email addresses from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail, and 22,881 from other providers. The extent of upstream collection stunned the public – as did slides demonstrating how the NSA had bypassed the companies’ encryption, intercepting data as it transferred between the public Internet and the Google cloud.
Further documents suggested that the NSA had helped to promote encryption standards for which it already held the key or whose vulnerabilities the NSA understood but not taken steps to address. Beyond this, press reports indicated that the NSA had at times posed as U.S. companies—without their knowledge—in order to gain access to foreign targets. In November 2013 Der Spiegel reported that the NSA and the United Kingdom’s Government Communications Headquarters (GCHQ) had created bogus versions of Slashdot and LinkedIn, so that when employees from the telecommunications firm Belgacom tried to access the sites from corporate computers, their requests were diverted to the replica sites that then injected malware into their machines.
As a result of growing public awareness of these programs, U.S. companies have lost revenues, even as non-U.S. firms have benefited. In addition, numerous countries, concerned about consumer privacy as well as the penetration of U.S. surveillance efforts in the political sphere, have accelerated localization initiatives, begun restricting U.S. companies’ access to local markets, and introduced new privacy protections—with implications for the future of Internet governance and U.S. economic growth. These effects raise attendant concerns about U.S. national security.
Congress has an opportunity to redress the current situation in at least three ways. First, and most importantly, reform of the Foreign Intelligence Surveillance Act would provide for greater restrictions on NSA surveillance. Second, new domestic legislation could extend better protections to consumer privacy. These shifts would allow U.S. industry legitimately to claim a change in circumstance, which would help them to gain competitive ground. Third, the integration of economic concerns at a programmatic level within the national security infrastructure would help to ensure that economic matters remain central to national security determinations in the future
Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right
Get PDFThe right to contract, whether originating in the Constitution, common law, or natural law, has been long and widely felt to be in tension with our civil rights, broadly conceived. The individual himself, we generally believe, and only the individual, should decide the scope and terms of his affirmative, voluntary, and other-regarding undertakings. When he does so through contract, the individual and only the individual should determine the terms under which he will perform those duties. The civil rights laws of the nineteenth, twentieth, and early twenty-first centuries, and the various rights they create interfere with these natural freedoms.
So, for example, our freedom to hire whomever we wish to hire, and then our freedom to fire them at will is compromised by our obligation under the Civil Rights Acts of 1964 to not discriminate against candidates for employment or for promotions on impermissible grounds of race, sex, ethnicity, age, or disability, at least according to early critics of those Acts. We no longer have the right to contract for employment with whomever we wish and on whatever terms we desire because of the impact of these laws. Likewise, our freedom to sell or rent our home to whomever we wish is compromised by the civil rights of others to not suffer discrimination in housing or rental markets. Again, we do not have the right to contract for the sale, purchase, or rental of our property with whomever we wish, and on whatever..
Common Capital: A Thought Experiment in Cross-Border Resolution
Get PDFCross-border bank resolution efforts focus on burden-sharing between bank owners, private creditors and the public. There is little talk of burden-sharing among governments, despite the rich history of governments trying to stick one another with the cost of financial conglomerate failures. There is an unspoken fear that acknowledging the need to allocate losses among governments would undermine post-crisis pledges of No More Bailouts. This symposium essay argues for making government stakes in private financial firms more transparent, and for using the contingent public share as a key to loss allocation among governments in cross-border banking crises
Cross-Border Targeted Killings: Lawful but Awful ?
Get PDFSince September 11, the United States has waged two very open wars in Afghanistan and Iraq. These two wars have killed nearly 7,000 U.S. military personnel and left some 50,000 American troops wounded; they have also left an unknown number of Iraqi and Afghan soldiers and civilians dead or wounded. But alongside these two costly and visible wars, the United States has also been waging what amounts to a third war.
This third war is a secret war, waged mostly by drone strikes, though it has also involved a smaller number of special operations raids. The author calls this third war a secret war, because though its existence is widely known, it remains officially unacknowledged by the government of the United States: In court filings, for instance, the United States continues to state that it will neither confirm nor deny its involvement in drone strikes outside of traditional battlefields.
We do not know what this secret war has cost us in dollars, and we do not know its cost in human lives, either. Drone strikes are appealing to the United States for the obvious reason that the use of unmanned aerial vehicles creates no short-term risk to the U.S. personnel who operate them. On the ground, however, U.S. drone strikes are estimated to have killed some 3,000 to 4,000 people in at least three countries (Pakistan, Yemen and Somalia) and perhaps as many as half-a-dozen countries (including Mali, the Philippines, and perhaps Nigeria). For the most part, we do not know the identities of those killed by U.S. drone strikes, or the precise reasons they were targeted. We do not even know what percentage of the dead were specifically targeted, as opposed to those who simply became collateral damage in a U.S. strike aimed at someone else.
How should we evaluate this secret conflict, more than a decade after the September 11 attacks? There is a phrase that was coined by my friend and former professor, Harold Hongju Koh, former Dean of Yale Law School, and more recently the State Department’s Legal Advisor under President Obama. Harold Koh sometimes uses the term “lawful but awful,” though he does not apply that term to the drone war. In fact, Koh has been a staunch defender of the legal right of the administration to wage this particular secret war.
The author feels, however, this secret war fits squarely into in the “arguably lawful but nonetheless fairly awful” category. She states this for three very distinct reasons, although she feels they all overlap to some extent. First, this secret war is deeply offensive to core principles of American democracy, in particular to any notion of constitutional checks and balances. Second, it undermines core rule of law norms, internationally as well as domestically. And third, it is strategically misguided: At best, it is unhelpful; at worst, it is distinctly counterproductive
Uncovering the Reformation Roots of American Marriage and Divorce Law
Get PDFIn 1639, Massachusetts Bay colonists pressed Governor John Winthrop to adopt a “body of laws” that would restrict the considerable power that “rested in the discretion of magistrates.” Having survived both the transatlantic voyage and the rigors of the new world in their quest to establish a religious utopia away from the demands of church and state in England, the colonists were understandably loath to give their local officials unchecked power. Winthrop offered several reasons why the leaders of the colony opposed the request: the colonists did not yet have enough experience to develop laws appropriate for their new circumstances, and their charter forbid them from adopting laws repugnant to the laws of England. He used marriage to buttress his second point by reminding the colonists that magistrates were performing marriages in the colony even though only ministers were authorized to do so in England. If they codified this nonconforming practice, the colonists risked being penalized for failing to comply with their charter. Winthrop lost the battle against codification--a Body of Liberties was adopted by the colony in 1641--but the colonists were persuaded to rely for the time being on judicial rather than legislative oversight of family matters; not only did magistrates continue to perform marriages in Massachusetts Bay without explicit legislative authorization, but colonial courts, in clear violation of the ecclesiastical laws of the Church of England, began granting divorces in 1643
Legal and Ethical Responsibilities Following Brain Death: The McMath and Muñoz Cases
Get PDFWhat are the legal and ethical implications of continuing to treat a brain dead patient? And may a hospital refuse to provide such treatment? These ethical and legal problems are raised in two recent cases. In the first Marlise Muñoz, a pregnant woman declared brain dead, was kept on life support against her family’s wishes due to the treating hospital’s interpretation of a Texas fetal protection law. In the other a hospital refused to treat Jahi McMath, a brain dead girl, despite her family\u27s entreaties. The cases, at first, appear similar because in each case the hospital was refusing to abide by the family’s wishes. But on closer reflection, they are markedly dissimilar.
This opinion piece distinguishes brain death from a persistent vegetative state, arguing that once a person is brain dead it is unethical to continue treatment. Deceased individuals do not possess legally or ethically cognizable interests. The article similarly takes issue with the trend of placing the value of autonomy above all other interests, as well as perverting the meaning of autonomy. I argue that autonomy, properly understood, is the right to avoid unwanted intrusions rather than a right to have any medical treatment, however futile or cost ineffective. Finally, the article considers the competing claims in the Muñoz case—the woman’s right of autonomy on the one hand and the state’s interest in safeguarding her fetus on the other. Here, the article makes the case that the Texas statute protecting fetuses is not applicable to a deceased woman—a claim supported by a recent Texas district court opinion
Governing for Health as the World Grows Older: Healthy Lifespans in Aging Societies
Get PDFSo much of global health governance focuses intensely on a brief moment in the human lifespan—from a safe birth to infant and child survival. Yet, with all the attention to this early window of life (infancy to age five), the opposite end of the life spectrum is comparatively neglected. The Millennium Development Goals (MDGs) do not mention a healthy lifespan or a healthy old age. This inadequate attention to the older years of the life appears to be a glaring omission given the universal challenges posed by aging societies. Aging is a demographic fact in almost all countries, but it is occurring more rapidly in low- and middle-income countries. Today, almost two in three people aged 60 or over live in developing countries. By 2050, nearly four in five of those aged over 60 will live in the developing world.
Across the globe, declining fertility rates, lower infant mortality, and greater longevity drive population aging: people live longer because of improved nutrition, sanitation, health care, education and economic wellbeing. In many respects, therefore, global aging is a triumph of social and economic development. But sitting alongside the stunning success of longer lives (and the future prospect of still longer lives), are the personal, social, and economic consequences of a global demographic transition to a decidedly older population. A fundamental dynamic for global health in the coming decades is to find innovative governance tools to shape the way the international community can enhance the well-being of older people living in aging societies—from civil society, philanthropy, industry, and governments to international agencies and global public-private partnerships. Reflecting on the journey from the new millennium to today, there has been undeniable—although decidedly inadequate—progress. The 2002 Madrid International Plan of Action on Aging (“Madrid Plan”) framed aging policies as integral aspects of economic development and human rights—a form of mainstreaming we support. Yet, more than a decade later, the United Nations processes have failed to yield concrete changes in law and governance.
The goal of healthy aging is unmistakable, and benefits everyone equally in society. Society should afford all human beings the opportunity to live dignified and long lives where they are healthy and active for as long as possible, allowing them to continue to enrich their own lives and that of those around them. The challenge of global aging is significant and universal. Almost 700 million people are now over the age of 60, and by 2050, 2 billion people—over 20 percent of the world’s population—will be 60 or older. Recognizing the need to combat this population shift, Anna Garsia and Professor Gostin look at the impact this changing dynamic will have on global health and the structures currently in place. In this Article, Garsia and Gostin analyze the current state of affairs for older persons around the world, looking at both international and domestic efforts and ultimately calling for a course of action that enhances the application of existing human rights law while campaigning for a robust new international treaty on the treatment of elder individuals
Virus Sharing, Genetic Sequencing, and Global Health Security
Get PDFThe WHO’s Pandemic Influenza Preparedness (PIP) Framework was a milestone global agreement designed to promote the international sharing of biological samples to develop vaccines, while that ensuring poorer countries would have access to those vaccines. Since the PIP Framework was negotiated, scientists have developed the capacity to use genetic sequencing data (GSD) to develop synthetic viruses rapidly for product development of life-saving technologies in a time-sensitive global emergency—threatening to unravel the Framework. Access to GSD may also have major implications for biosecurity, biosafety, and intellectual property (IP).
By rendering the physical transfer of viruses antiquated, GSD may also undermine the effectiveness of the PIP Framework itself, with disproportionate impacts on poorer countries. We examine the changes that need to be made to the PIP Framework to address the growing likelihood that GSD might be shared instead of physical virus samples. We also propose that the international community harness this opportunity to expand the scope of the PIP Framework beyond only influenza viruses with pandemic potential.
In light of non-influenza pandemic threats such as the Middle East Respiratory Syndrome (MERS) and Ebola, we call for an international agreement on the sharing of the benefits of research – such as vaccines and treatments – for other infectious diseases to ensure not only a more secure and healthy world, but also a more just world, for humanity