Tragedy & Remedy: Black Reparations for Racial Disparities in Health

This Article makes unique and powerful contributions to Black reparations, health care law, biomedical and social science research into racial disparities in health, and critical race theory. The starting point is the tragedy of Black health in America, with dramatically higher death rates and shorter life expectancies. Current research is ill-equipped to consider the deeper historical roots of Black health disparities; while the development of racially-specific therapies (such as the FDA’s approval in July 2005 of BiDil, a heart drug for Blacks) actually contributes to racial profiling in medicine. Biomedical research has a race problem. The Black reparations movement suffers from a law problem: every broad claim for Black reparations is dismissal from federal court without reaching the merits. The landmark African-American Slave Descendants Litigation suffered the fate of all other similar suits when Judge Norgle granted the defendants’ motions to dismiss on July 6, 2005. This Article uses Black reparations to resolve the race problem in health disparities research; and deploys health disparities to craft a Black reparations suit which could survive summary judgment. It also responds to Richard Delgado’s call for critical race scholarship which moves beyond discourse and actually results in structural changes in society

The Legal Ecology of Resistance: The Role of Antibiotic Resistance in Pharmaceutical Innovation

Antibiotic effectiveness is a common pool resource that can be prematurely depleted through resistance. Some experts warn that we may face a global ecological collapse in antibiotic effectiveness. Conventional wisdom argues for more intellectual property rights to speed the creation of new antibiotics. Recent theoretical literature suggests that conservation-based approaches may yield superior results. This Article describes a novel typology for organizing these emerging theories, and provides an early empirical test of these models, using proprietary data on the sales of vancomycin, an important hospital antibiotic for the last three decades. The results challenge the assumptions in several models, and will force a reevaluation of the role of intellectual property rights in antibiotic resistance and conservation. In particular, insurance reimbursement may be a more effective policy lever than patent law to preserve antibiotic effectiveness

Poverty Tourism and the Problem of Consent

Is it morally permissible for financially privileged tourists to visit places for the purpose of experiencing where poor people live, work, and play? Tourism associated with this question is commonly referred to as \u27poverty tourism.\u27 While some poverty tourism is plausibly ethical, other practices will be more controversial. The purpose of this essay is to address mutually beneficial cases of poverty tourism and advance the following positions. First, even mutually beneficial transactions between tourists and residents in poverty tourism always run a risk of being exploitative. Second, there is little opportunity to determine whether a given tour is exploitative since tourists lack good access to the residents\u27 perspectives. Third, if a case of poverty tourism is exploitative, it is so in an indulgent way; tourists are not compelled to exploit the residents. In light of these considerations, we conclude that would-be tourists should participate in poverty tours only if there is a well-established collaborative and consensual process in place

The Vanishing Public Domain: Antibiotic Resistance, Pharmaceutical Innovation and Global Public Health

Penicillin and other antibiotics were the original wonder drugs and laid the foundation of the modern pharmaceutical industry. Human health significantly improved with the introduction of antibiotics. By 1967, the US Surgeon General declared victory over infectious diseases in the US. But pride goes before a fall. The evolutionary pressure of antibiotic use selects for resistant strains with the least fitness cost. Effective drugs should be used. But when they are used, no matter how carefully, evolutionary pressure for resistance is created. The problem is not limited to antibiotics. Variants of the human immunodeficiency (AIDS) virus develop resistance to anti-retroviral drugs. Some pharmaceutical knowledge is exhaustible, a conclusion which upends the conventional wisdom for IP policy stretching back to Jefferson and beyond. Unwilling to live in a post-antibiotic era, society deploys two strategies against resistance. One is research and development (R&D), allocating resources to discover new drugs. The other strategy is conservation, stewarding available antibiotic drugs and prolonging their useful therapeutic lives. Both strategies face daunting challenges. R&D encounters diminishing returns when the easiest biological targets may have already been found. Echoing Malthus, some fear that science will not be able to keep ahead of resistance. Conservation faces the unhappy prospect of fighting an eternal rear-guard action, never winning, but merely postponing the inevitable. Even the best conservation schemes may eventually fall to resistance. Antibiotic resistance may be compared to running on a treadmill. R&D is learning how to run faster; conservation is slowing the treadmill down. This Article describes the vanishing public domain of exhaustible pharmaceutical knowledge and begins a discussion of the public domain which extends far beyond copyright. Several prominent proposals address antibiotic resistance by strengthening patent law. I suggest a divergent approach, conserving exhaustible pharmaceutical knowledge so that the fruits of pharmaceutical innovation do not become the exclusive property of the rich, but remain the common heritage of humanity

Germ Shed Management in the United States

The U.S. Medicare program reimburses only for discrete treatments of individuals with infections, but fails to pay for infection control or antibiotic stewardship more generally. By focusing solely on discrete hospitals and patients, Medicare ignores the larger epidemiological reality - that hospitals, nursing homes and other institutions operate within a germ shed. Under current Medicare rules, institutions that invest in infection control or antibiotic stewardship, may actually lose money and benefit rival firms in the market. In effect, current Medicare rules subsidize MRSA pollution. Worse yet, Medicare rules block potentially efficient Coasian contracts to promote private coordination within germ sheds

Poverty Tourism and the Problem of Consent

Is it morally permissible for financially privileged tourists to visit places for the purpose of experiencing where poor people live, work, and play? Tourism associated with this question is commonly referred to as \u27poverty tourism.\u27 While some poverty tourism is plausibly ethical, other practices will be more controversial. The purpose of this essay is to address mutually beneficial cases of poverty tourism and advance the following positions. First, even mutually beneficial transactions between tourists and residents in poverty tourism always run a risk of being exploitative. Second, there is little opportunity to determine whether a given tour is exploitative since tourists lack good access to the residents\u27 perspectives. Third, if a case of poverty tourism is exploitative, it is so in an indulgent way; tourists are not compelled to exploit the residents. In light of these considerations, we conclude that would-be tourists should participate in poverty tours only if there is a well-established collaborative and consensual process in place

The End of Reparations Talk? - Reparations in an Obama World

Disparities in Black health began in slavery, were reinforced in segregation and racism, and persist today despite significant remedial efforts. In the last decade, the statistics about Black health disparities show no improvement. The caustic history of slavery, racism and segregation hasn\u27t been completely undone. Fundamental changes are still necessary to repair deficits in Black health. But the election of Barack Obama has changed the relevance of reparations as a political tool for making these changes. We elected a Black man as President, and he refused to apply reparations talk to social programs of uplift for disadvantaged communities. Obama struck broader themes, bypassing reparations for slavery. At this point, we should let reparations rest as a political agenda, although it retains some relevance as a heuristic tool

Counterfeit Drugs: The Good, the Bad, and the Ugly

When I chose the title, Counterfeit Drugs: The Good, the Bad and the Ugly, some of my colleagues at this symposium blanched. They understood counterfeit drugs as Bad and Ugly, but resisted categorizing any counterfeit drug as Good. This article is intended to be provocative, challenging some of the conventional wisdom concerning counterfeit drugs. We start with the fact that reports about the scope of pharmaceutical counterfeiting are remarkably anecdotal rather than empirical. As a professor once chided me, the plural of anecdote is not data. The FDA and the WHO must undertake comprehensive market surveillance to establish the true scope of the counterfeiting problem. We also must speak more clearly about counterfeit drugs, with an improved lexicon. It is misleading to pretend that safe and effective cross-border drugs from Canada are similar to contaminated water passed off as erythropoietin (Epoetin alfa) by criminal gangs. They have quite distinct causes, effects and indicated solutions. Finally, and perhaps most controversially, this article identifies the underlying cause of drug counterfeiting as the legal system of intellectual property laws. We briefly explore alternative systems which would accomplish recovery of R&D expenditures without the patent rents which attract counterfeiting

Global Pharmaceutical Markets

The high price of patented drugs lies at the heart of a major global public health crisis: the global poor are often denied access to lifesaving drugs due to high cost. Do global drug companies owe ethical or legal duties to make their drug patents available for the world’s low- and medium-income populations? We suggest that they do, through an exploration of the exceptions surrounding the “duty of rescue” - more precisely, the doctrine in US tort law that does not impose a duty to rescue absent special circumstances such as having contributed to the risk and enjoying special relationships to the endangered person. We find that these special circumstances are surprisingly applicable to global pharmaceutical markets, with both legal and ethical implications for global intellectual property law

The Vanishing Public Domain: Antibiotic Resistance, Pharmaceutical Innovation and Intellectual Property Law

Penicillin and other antibiotics were the original wonder drugs and laid the foundation of the modern pharmaceutical industry. Human health significantly improved with the introduction of antibiotics. By 1967, the U.S. Surgeon General declared victory over infectious diseases in the United States. But pride goes before a fall. The evolutionary pressure of antibiotic use selects for resistant strains. Effective drugs should be used. But when they are used, no matter how carefully, evolutionary pressure for resistance is created. The problem is not limited to antibiotics. Variants of the human immunodeficiency virus (HIV) develop resistance to anti-retroviral drugs. Antifungal agents face similar challenges. Even cancer cells may develop resistance to pharmaceuticals. Tens of thousands of Americans are dying every year from drug-resistant infections. Some pharmaceutical knowledge is therefore exhaustible, and after patent expiration the public domain may receive a drug which is no longer useful. For these drugs, the public domain vanishes