3722 research outputs found
Sort by
Norms of Public Argumentation and the Ideals of Correctness and Participation
Get PDFArgumentation as the public exchange of reasons is widely thought to enhance deliberative interactions that generate and justify reasonable public policies. Adopting an argumentation-theoretic perspective, we survey the norms that should govern public argumentation and address some of the complexities that scholarly treatments have identified. Our focus is on norms associated with the ideals of correctness and participation as sources of a politically legitimate deliberative outcome. In principle, both ideals are mutually coherent. If the information needed for a correct deliberative outcome is distributed among agents, then maximising participation increases information diversity. But both ideals can also be in tension. If participants lack competence or are prone to biases, a correct deliberative outcome requires limiting participation. The central question for public argumentation, therefore, is how to strike a balance between both ideals. Rather than advocating a preferred normative framework, our main purpose is to illustrate the complexity of this theme
Historic Tensions Involving International Intellectual Property Protection of Medical Technology with Disastrous Public Health Consequences
Get PDFHistoric tensions have pervaded the alliance of intellectual property\u27s ill-fated accord with trade. The intersections of the alliance have impacted access to medical technologies resulting in plaguing public health with disastrous consequences in select parts of the globe, the first of which was perhaps most notably seen during the HIV-AIDS crisis at the turn of the century. At this time, WTO’s sacrosanct norms from the accord between trade and intellectual property rights essentially force African countries to choose between international trade sanctions, and saving thousands of lives by allowing exceptions to patent rights. While much has been written about global public health, especially post-pandemic, not much or perhaps more accurately, not enough has been said about the consequences arising from the ill-fitting accommodation of intellectual property rights into the trade regime and its impact on medical technology. Even less has been written about the history of the alliance and how it was fated to affect global public health right from conception, leading to a loss of access to medical innovations globally. This paper’s focus is to examine the historic accord to learn lessons from the past. The paper starts with the rationales generally offered for the initial shift from viewing IP as a matter of domestic sovereignty to its inclusion as a cornerstone within the larger international trade regime. It then delves into an examination of how it resulted in reframing global norms which in turn contributed towards a top-down assertion of increasingly expansive IP norms in the name of global harmonization leading to more patents, less innovation impacting global public health. Such a reframing, the paper asserts, has resulted in two distinct consequences. The first is an outsourcing of policy positions with scant regard to the ability of local realities to accommodate the outsourced position; the second is how IP norm discourses are constrained to boundaries imposed by the trade lens. In both instances, true innovation that can positively affect public health is a significant casualty by virtue of the simultaneous perception of health care by international trade norms both as an exception as well as a priority dictated by the power dynamics that drive international trade. The paper concludes by outlining the need for an alternative framework that posits public health in the front and center with a view to create a workable mechanism to result in global health care equity
Revisiting the Congressional Review Act
Get PDFIt now has been over 25 years since Congress first enacted the Congressional Review Act, an effort to reclaim congressional oversight of agency rulemaking in a post-Chadha world. For many years, the CRA remained a relatively obscure statute, but an explosion in use has now transformed it into an important component of our administrative state. This has made it imperative for those both within and without Congress to understand the law. Yet the real-world operation of the CRA remains little understood.
This Article attempts to shed light on this opaque yet consequential statute. Drawing on interviews with governmental and private actors, it provides an inside look into the real-world operation of CRA review. In so doing, it discovers implementation practices that would surprise even those with detailed knowledge of the letter of the law.
These discoveries change our understanding of the CRA’s strengths, weaknesses, and possibilities—and the Article explores the lessons offered by these discoveries. These include lessons for statutory reform, with the Article identifying aspects of the law that should be addressed by Congress to promote good governance under the Act. They also include lessons for partisan actors, uncovering unknown opportunities for creative use of the CRA, often to offset manipulative uses that have emerged in recent years. Through this analysis, the Article provides insights into the CRA that will be necessary as the law continues to play an unexpectedly important role in congressional oversight of the administrative state
Universities as Knowledge Institutions: A Reply to Professor Jackson
Get PDFI am grateful for Professor Vicki Jackson’s engagement with my scholarly work, and I want to take this opportunity to react to some of hers in one of the areas in which our concerns overlap. As Professor Jackson describes, in recent years she has been working on the important topic of what she calls “knowledge institutions in constitutional democracy.” This focus is appropriate as it addresses a very central source of the current malaise plaguing many constitutional democracies around the world. The crisis of democracy in the 21st century is not only one of economic inequality, institutions, or political polarization: it is also epistemic
Social Media and State Action: Click Like and Follow This Two-Part Test
Get PDFThe right to free speech was deemed so important by the Framers of the Bill of Rights that they enshrined this right in the Free Speech Clause of the First Amendment. There was, however, no way they could have envisioned how communication would evolve to what it is now in the twenty-first century and the related issues that would arise. The threshold question to all alleged First Amendment violations is whether the action at issue is state action. As means of communication progressively move more online to social media, this question has become more difficult to answer. Many government officials now use social media to espouse their policies and interact with their constituents, which has been beneficial in many senses. But this has also led to many contentious interactions between government officials and private citizens. These contentious interactions have resulted in courts grappling with the question of whether certain actions on social media, such as blocking a person from interacting with an account, constitute state action.
Most of the federal courts of appeals use a purpose and appearance test to answer this question. This test considers the purpose and appearance of the social media account at issue by weighing several factors to determine whether a government official’s activity while using that account is state or private action. The Sixth Circuit, however, has opted to perform the state-official test to determine whether action taken on social media is state action. This test asks whether certain social media activity is part of an official’s actual or apparent duties or could not have happened in the same way without the authority of their office. This has led to a circuit split as to how to best handle this issue.
This Comment examines the federal courts of appeals cases utilizing these tests and proposes a solution to this circuit split by creating a two-part test using both the state-official and the purpose and appearance tests. The first part of this two-part test calls for the use of the state-official test. The stateofficial test is a bright-line test that, if satisfied, would find state action without the need to consider the purpose and appearance of a social media account. If no state action is found, however, then the second part of this two-part test uses the more flexible, multi-factor purpose and appearance test to determine if there is state action. By combining these separate tests into a two-part test, in this order, it both takes advantage of their inherent strengths and mitigates their weaknesses. Social media has established itself as a major tool for private citizens and government officials to interact with each other to an extent previously not possible. It is imperative, therefore, that United States courts be prepared to uniformly handle this issue that has occurred numerous times and will continue to occur as long as social media exists
The Marathon Continues: Texas NIL Has Room to Grow
Get PDFCollege athletes are now permitted to profit off their name, image, and likeness. However, while a hodgepodge of different regulations exists state-by-state and Congress continues to drag its feet to pass a federal framework, Texas restricts college athletes from maximizing their name, image, and likeness earning potential. This Comment proposes improvements to Senate Bill 1385 that would allow college athletes in Texas to partner with the same categories of “taboo” products as their respective university and to endorse products from competing brands, provided such endorsement is outside of a university-sponsored event, with an exception allowing unrestricted endorsement of footwear. This Comment encourages Texas to develop a trust system that holds group licensing revenues in trust until the respective students leave the university. College athletes would not only maximize their name, image, and likeness earning potential but also connect with local businesses. At the same time, universities in Texas would continue to position themselves as attractive destinations for top athletes nationwide. These suggested improvements are inspired by existing state and proposed federal legislation and suggestions from federal judges and a Supreme Court Justice
Expect More from The Everything Store
Get PDFFor years, Amazon, a widely known and popular e-commerce enterprise and online marketplace, has provided consumers with a stress-free, simple approach to online shopping. The company offers customers the option to order products online or on an app and have them delivered directly to their door in no time at all. For years, Amazon has allowed third-party vendors access to its site for marketing and selling products to consumers.In recent years, instances have arisen where defective products sold on Amazon by third-party vendors have led to the injury of consumers. Often, the third-party vendors are suspicious entities who are challenging to locate and even more difficult to pursue legal recourse against for damages. By arguing that it merely provides a platform for these vendors to market their products to a wider-reaching consumer base, the E-commerce giant argues it is exempt from liability for consumers’ injuries since it is not the seller of the product that caused harm.Recently, a landmark case decided by the Supreme Court of Texas determined that Amazon could not be held liable for a defective product for which it never had or relinquished the title. This Note discusses why Amazon should be considered the “owner” of all products delivered to consumers via Amazon packaging by reviewing persuasive authority from other jurisdictions that found Amazon could be held liable. Additionally, it discusses other potential options for Amazon to pursue to help its customers more clearly identify suspicious vendors before purchasing products that could be defective. This Note ultimately argues that the Supreme Court of Texas set a precedent in the recently decided case of Amazon Incorporated v. McMillan that leaves customers no option for recovery when the third-party vendor is unreachable
Hacking or Hatching the Skinny Label: How the Federal Circuit’s Decision in GSK v. Teva Threatens Generics and Induced Infringement
Get PDFThis Note focuses on the recent precedential decision handed down by the Federal Circuit in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc., which impacts “one of the greatest public health inventions of the 21st century”: generic drugs. An invention that rose to prominence when former President Ronald Reagan signed into law the Hatch-Waxman Act (“the Act”), formally known as the Drug Price Competition and Patent Term Restoration Act of 1984. The Act aimed to increase competition between brand-name and generic manufacturers while balancing two seemingly opposing interests: (1) encourage and reward innovation by pioneer drug companies and (2) increase access to low-cost alternatives. This in-depth analysis will evaluate how the Federal Circuit’s decision has jeopardized the Act’s purpose and conflicts with present U.S. policy under the Biden administration. Additionally, it will offer a critical analysis of Katherine Eban’s book, Bottle of Lies, which chronicles the generic drug boom that transpired after the Act’s passage. Eban’s often one-sided account fails to provide depth and context to an industry vital to public health