Zika, Pregnancy, and the Law

The public health emergency surrounding the spread of the Zika virus has resurrected and brought into sharp relief some of the most vexing questions surrounding the relationship between pregnancy and law: the appropriate circumstances, if any, in which fetal tissue research is permissible; when and how the government may sponsor statements intended to influence reproductive decisions; and how to balance the health and rights of both women and their unborn children when health threats target both

Health Data and Privacy in the Digital Era

In 2010, the social networking site Facebook launched a platform allowing private companies to request users’ permission to access personal data. Few users were aware of the platform, which was integrated into Facebook’s terms of service. In 2014, Cambridge Analytica, a UK-based political consulting firm, developed a data-harvesting app. That app prompted Facebook users to provide psychological profiles, including responses such as “I get upset easily” and “I have frequent mood-swings” as part of a “research project.” The Facebook platform allowed users to share their friends’ data as well, enabling Cambridge Analytica to access tens of millions of personal profiles, identifying voters’ political preferences. The controversy revealed risks to identifiable health data posed by social media and web services companies’ practices. After the Cambridge Analytica controversy, Facebook suspended a project that aimed to link data about users’ medical conditions with information about their social networks. Individuals often reveal detailed, sensitive health information online. Through wearable devices, social media posts, traceable web searches, and online patient communities, users generate large volumes of health data. Although some individuals participate in online patient forums and wellness information sharing apps under their own names, others participate via pseudonyms, assuming their privacy is preserved. Many users believe their data will be shared only with those they designate

Multipolarity, Intellectual Property, and the Internationalization of Public Health Law

This Article critically examines the proliferation of international legal agreements addressing global health threats like the outbreak of infectious diseases, tobacco use and lack of access to affordable medicines. The conventional wisdom behind this trend is that a global normative shift has occurred which has caused states to regard health as “special” and less subject to the normal rules of international law making because health threats endanger all of humanity. This Article challenges that thesis, arguing that at the same time the number and scope of international health law treaties has grown, developed states have subordinated health law to intellectual property protection for patents and trademarks, both of which erect substantial barriers to the objectives of public health law treaties. To the extent international health law has generated meaningful gains for global population health, it has not done so through a normative shift in how diplomacy works, but precisely because of politics as usual. International public health law gains have come largely from the efforts of an emerging group of middle-income, influential states like Brazil, India, Indonesia, South Africa and Thailand who have sufficient weight to force concessions from wealthier states. Using the parallel histories of international intellectual property treaties and global public health law, the Article demonstrates that the normative force of health-based arguments is relatively weak. To the extent public health advocates urge the adoption of more treaties, as they are now poised to do, they must more squarely address the threat posed by international intellectual property protection and make strategic calculations as to the political feasibility of those agreements given the changing distribution of global economic and political power

Efficient Contracting Between Foreign Investors and Host States: Evidence from Stabilization Clauses

Bilateral investment treaties are agreements between sovereign states that give broad protections to investors and investments made within the jurisdiction of the other state. The prevailing view in the academy and practice is that developing countries sign bilateral investment treaties in order to reassure investors from developed states that their investments will be safe from changes in domestic law. Without these credible commitments, investors would be deterred from making investments, depriving developing countries of foreign capital. This Article disputes that view by demonstrating that foreign investors and host states effectively contract around the risk of changes in the law. This Article applies transaction cost economic theory to the most comprehensive empirical study of stabilization clauses (provisions intended to manage post-investment changes in domestic law) recently conducted under the auspices of the World Bank\u27s International Finance Corporation. The analysis shows that investors and states demonstrate principles of efficient contracting even without the protections of bilateral investment treaties. This finding adds to current research focusing on the credible commitment story. The Article concludes that (1) BITs can be explained as instruments developed and developing states use in their competition for markets and capital and (2) differences in the reasons states execute BITs raise significant doubts about conclusions drawn based on aggregate phenomena

The Comity of Empagran: The Supreme Court Decides that Foreign Competition Regulation Limits American Antitrust Jurisdiction over International Cartels

In 2004, the U.S. Supreme Court determined that the amorphous doctrine of comity between nations limited the reach of U.S. antitrust laws where an international cartel had a direct, substantial and foreseeable effect on U.S. commerce (as the statute provided) but where damages were suffered in foreign markets only. The Article challenges the reasoning of the majority, arguing that so limiting the reach of the antitrust laws is not only inconsistent with the statute\u27s intent, but ultimately removes an important source of cartel deterrent