Monthly Archives: July 2016

Context Clues

Kristen Stilt, Contextualizing Constitutional Islam: The Malayan Experience, 13 Int’l J. Const. L. 407 (2015).

Constitutional drafters, advisors, and commentators alike should read Kristen Stilt’s excellent article, Contextualizing Constitutional Islam: The Malayan Experience. It provides an engrossing history of a constitutional creation story—the 1957 Constitution of the Federation of Malaya (now Malaysia)—and sheds important light on the development of what Stilt terms “constitutional Islam,” or the incorporation of references to Islam and Islamic law in modern constitutions. These accomplishments alone would be enough for an enthusiastic jot. But the article does much more, raising fascinating questions about the nature of constitutional compromise and the role of religion in societal conflict, as well as pragmatic concerns about the effectiveness of international constitutional advisors.

Stilt’s article succeeds in its main goal: developing (and complicating) our understanding of constitutional Islam by showing how various types of constitutional clauses referring to Islam are enmeshed in larger legal, political, economic, social, and cultural debates. And she argues persuasively that future work must engage with both the international and domestic dimensions of the debates over constitutional Islam. Without this duality in nuance, at least two problems could arise: the influence of international models and international affairs might improperly be discounted, or a clause that appears to be cut and pasted from one constitution to the next could incorrectly be assumed to have a uniform meaning when internal justifications for its inclusion vary dramatically. Continue reading "Context Clues"

Restoring the Integrity of the Pharmaceutical Science Record: Two Tales of Transparency

Inappropriate prescription and overconsumption of pharmaceuticals is one of the most pressing public health concerns in North America. Aggressive pharmaceutical promotion practices are widely recognized as a major contributing factor. Two recent medical journal articles provide further evidence of serious problems with the scientific record that has become an intrinsic part of pharmaceutical marketing. They document each in their own way the corruption of scientific practices in which academic scientists appear to play a significant role, but also indicate how the scientific community and civil society can help correct the record and expose misconduct. The papers further illustrate how legal tools can enable them to do so. They both affirm the importance of transparency, which many in the medical and health policy community increasingly support as essential to restore confidence in the science surrounding pharmaceuticals.

Jon N. Jureidini, Jay D. Amsterdam, and Leemon B. McHenry’s paper in the International Journal of Risk and Safety in Medicine is a case study of how the pharmaceutical company Foster used a scientific publication to boost prescription of its blockbuster anti-depressant citalopram. A paper by Joanna Le Noury and colleagues in the British Medical Journal is the first publication produced as part of an innovative initiative by the scientific community aimed at correcting the scientific record on a host of pharmaceutical products. The study involves a reanalysis of the raw data of a Smithkline Beecham (now GSK)-sponsored published study on the efficacy of paroxetine and imipramine for the treatment of depression in adolescents. Continue reading "Restoring the Integrity of the Pharmaceutical Science Record: Two Tales of Transparency"

When it Comes to Lawyers… Is an Ounce of Prevention Worth a Pound of Cure?

Ben Franklin is famous for saying “an ounce of prevention is worth a pound of cure,” but there are lots of similar messages. We are told to “measure twice and cut once” and to “look before you leap” and that “a stitch in time saves nine.” But what about lawyer regulation? Does this same message hold true? Until recently, the answer in the United States might have been no. Most of those who regulate U.S. lawyers have traditionally focused on responding – with discipline or another sanction – after a problem arose.

This situation is finally starting to change in the United States. Because I consider proactive lawyer regulation to be a very positive development, Professor Susan Fortney’s recent article entitled Promoting Public Protection is one of the articles that I now regularly cite and recommend to those with whom I speak. Although Promoting Public Protection is a condensed version of a longer article coauthored by Professor Fortney, I often recommend the Promoting Public Protection article because it is succinct, yet does a wonderful job of conveying information about the important empirical and theoretical work that has been done about proactive management-based regulation, or PMBR. (PMBR is a term that originally was coined by Professor Ted Schneyer.) Continue reading "When it Comes to Lawyers… Is an Ounce of Prevention Worth a Pound of Cure?"

European Property Law as New Private Law?

Christian von Bar, Grundfragen europäischen Sachenrechtsverständnisses, 70 JuristenZeitung 845 (2015).

Looking at property law from only one particular national perspective – even if that perspective is impressive, as is the case with U.S. law – is, in our globalising world, no longer possible. Markets are integrating, both at a regional and at a worldwide level, and what happens elsewhere, in both economic and legal terms, affects all of us.

This is how European Union law, and the laws of the E.U. Member States, may begin to affect U.S. lawyers (but certainly not them alone) after the agreement on the Transatlantic Trade and Investment Partnership (TTIP) enters into force. The creation of one integrated transatlantic market will result in more and more areas where U.S. and E.U. law will meet and may result in legal conflict.

The European Union does not have one system of property law. Each Member State has its own law of property. However, E.U. internal market law, with its freedom of goods, services, capital, and persons, has an increasing impact on national property law. More and more the question is raised if a European property law could be developed.

In his recently published article (based upon his recently published book), Christian von Bar from the University of Osnabrück in Germany explains his view on how a European property law could look like.1 His approach is based on the civil law tradition, more particularly the German civil law tradition. In that tradition, the academic analysis of the law is highly abstract and aimed at overall systematisation by presenting strictly defined concepts and meticulously formulated rules. As a consequence, law professors play a prominent role in the process of lawmaking and adjudication. Continue reading "European Property Law as New Private Law?"

Conceptual and Metaphysical Modalities in Jurisprudence

Stefan Sciaraffa, Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence, 6 Jurisprudence 391 (2015), available at SSRN.

Stefan Sciaraffa’s Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence is a review of a fine collection of essays edited by Luís Duarte d’Almeida, James Edwards, and Andrea Dolcetti, entitled Reading HLA Hart’s ‘The Concept of Law,’ published by Hart Publishing in 2013. While the volume contains many provocative and insightful pieces by leading theorists in conceptual jurisprudence, I want to focus on an important – and frequently overlooked – point made by Sciaraffa on the nature of the relevant sense of necessity in conceptual theories of law.

Sciaraffa’s essay makes a number of distinctions of theoretical importance, including the distinction between “constructed” and “wild” concepts of law; however, the most illuminating one, as it pertains to conceptual jurisprudential methodology, is between metaphysical and conceptual necessity. Sciaraffa defines “metaphysical necessity” as “concerned with identifying and explicating those features an object has by virtue of itself and irrespective of the way we conceptualise or talk about the object” (P. 392). He explains “conceptual necessity” as concerned with identifying “features that are true of law by virtue of the way we talk about or conceptualise the law” (Id.). Continue reading "Conceptual and Metaphysical Modalities in Jurisprudence"

How to Die: Biomarker Adjuncts to Death Accelerants

Rebecca Dresser’s A Fate Worse than Death? article raises profound questions. Scientists have known for some time that certain biomarkers (specifically, elevated tau and beta-amyloid levels) correlate with elevated risks for Alzheimer’s disease. Soon, patients may learn about their own increased probabilities for developing this deadly and dehumanizing disease. This knowledge might cause these patients to adopt advance directives that reject spoon-feeding upon the arrival of advanced dementia. Some preemptive suicides may result. Dresser considers whether we should endorse or recoil from these responses.

Dresser’s analysis anticipates a time when biomarker information relative to Alzheimer’s disease risks is routinely made available to asymptomatic patients. Whether to disclose Alzheimer’s disease biomarker results is still controversial. The tests are imperfect. Dresser examines a study of 311 participants that revealed an eleven to twenty-six percent chance of developing Alzheimer’s disease within five years based on elevated tau and beta-amyloid levels. Many individuals with biomarkers for Alzheimer’s never develop Alzheimer’s (perhaps due to mortality from other causes, perhaps due to other protective factors). Scientists still lack a clear understanding of the relationship between neuropathological patterns and the clinical occurrence of Alzheimer’s disease. Because the tests for pre-symptomatic Alzheimer’s remain unproven, some experts assert that the tests should be deployed only in a research context. With patient demand, however, more and more people are likely to learn their biomarker results in the years to come. Their likely responses lead us to critical legal questions. Continue reading "How to Die: Biomarker Adjuncts to Death Accelerants"

Patent Law’s Gordian Knot

Jonathan S. Masur, The Use and Misuse of Patent Licenses, 110 Nw. U. L. Rev. 115 (2015).

When a patent holder does not manufacture or sell a product, it cannot seek “lost profits” in the event the patent is infringed. Rather, courts must determine a “reasonable royalty”—generally, what an infringer hypothetically would have paid if the patent holder had licensed the patent, assuming it was valid and infringed, in the private market before the infringer began its unlawful acts. Such market rates are usually determined by examining other licenses for the patent-in-suit, or for patents sufficiently similar to the patent-in-suit.

In the brilliant article The Use and Misuse of Patent Licenses, Jonathan S. Masur unpacks what is often expressed but not suitably explained: that reasonable royalty determinations in the law of patent damages are substantially circular, leading to paradoxes and other conundrums that cannot easily be solved. The basic intuition is straightforward. Courts attempt to value patents in reasonable royalty determinations by looking to the market. Yet, market actors must bargain in the shadow of the law. Hence, a circularity. Continue reading "Patent Law’s Gordian Knot"

The People and Their Sovereignty in the Longue Duree

In Inventing the People (1988), Edmund Morgan famously argued that the doctrine, or “fiction” as he termed it, of popular sovereignty was invented in middle seventeenth-century England as Parliament and the king engaged in civil war. Initially, the idea that the people were the basis and purpose of government was not intended to overthrow the king, or the then-prevailing doctrine of the divine right of kings that connected king to God. It simply sought to place the king in proper relationship to government by resting his authority upon both God and the people. But the basic idea of popular sovereignty, that the people could “begin, change, and end governments,” had radical implications (Morgan, P. 59), which became real when Americans rediscovered popular sovereignty in the late eighteenth century to overthrow monarchy and create new republican governments based solely upon popular authority.

But while Morgan adverted to earlier thinking about the people, principally the sixteenth-century French monarchomachs (“king killers”), he did not give it sustained attention. He is not alone, of course. It is a curious thing that what is perhaps the master concept in Western constitutionalism has until recently received scarcely any attention. To the extent it has been examined, it is usually presented as both cause and consequence of late eighteenth-century revolutionary politics in America and France. Daniel Lee’s new book on popular sovereignty in early modern legal and political thought offers a corrective, and challenges us to rethink the nature and meaning of popular sovereignty as it emerged in the late eighteenth century, a point in a longue duree that he traces back to the Roman Republic. Continue reading "The People and Their Sovereignty in the Longue Duree"

U.S. Tax Policy and Puerto Rico’s Fiscal History

Diane Lourdes Dick, U.S. Tax Imperialism in Puerto Rico, 65 Am. U. L. Rev. (forthcoming 2016), available at SSRN.

Puerto Rico faces a host of public finance woes. It owes over $70 billion in public sector debt. On May 2, 2016, it missed a major debt payment to its Government Development Bank bondholders. Congress is currently considering legislation that will allow Puerto Rico to restructure its debts. Without debt restructuring, further defaults seem inevitable. Puerto Rico has attempted to use its tax laws to ease its public finance problems. However, in March, the United States District Court for the District of Puerto Rico ruled in Wal-Mart Puerto Rico v. Zaragoza-Gomez that an increased tax imposed by Puerto Rico on certain cross-border, related-party property transactions violated the U.S. Constitution and the Federal Relations Act. The court acknowledged that the tax was implemented to quickly raise revenue to ameliorate Puerto Rico’s fiscal challenges, but it struck down the tax nonetheless. As of this writing, Puerto Rico’s fiscal future remains uncertain.

Puerto Rico’s economic and fiscal condition and its tax policy are, of course, related, and the United States has played an important role in both. But what exactly is the United States’ economic relationship with Puerto Rico? What do U.S. tax and fiscal policies with respect to Puerto Rico tell us about that relationship? And how have these policies influenced the economic trajectory of the island? Tax aficionados may be broadly familiar with tax incentives for investment in Puerto Rico, but what deeper story lies beneath?

Diane Lourdes Dick takes up these questions in her article entitled U.S. Tax Imperialism in Puerto Rico. The article develops a theory of U.S. tax imperialism, which I understand to be a subset of economic imperialism, by detailing the ways in which U.S. tax policy has been used to control the economic trajectory of the territory for the benefit of the mainland. Continue reading "U.S. Tax Policy and Puerto Rico’s Fiscal History"

Empowering Federal Regulation for a Changing Electricity Sector

Joel B. Eisen, FERC’s Expansive Authority to Transform the Electric Grid, 49 U.C. Davis L. Rev. 1783 (2016).

Today’s electricity sector has little in common with the industry’s humble origins in the late 1800s, when small power plants located every ten blocks or so served nearby customers through a local grid. Nor does it share many commonalities with the heavily regulated, largely monopolized electricity sector of the 1930s, whose interstate grid prompted passage of the 1935 Federal Power Act. And yet, this more than eighty-year-old statute continues to define the requirements and scope of federal and, indirectly, state regulatory authority over today’s electricity sector. As deregulation and competitive markets, the rise of renewable energy, smart metering, and demand response transform the way electricity is generated, traded, transmitted, and used, regulators and courts are struggling to apply the Federal Power Act to a changing industry.

Earlier this year, the Supreme Court offered its views when, in Federal Energy Regulatory Commission v. Electric Power Supply Association, the Court recognized federal authority to regulate wholesale market operators’ compensation of demand response—temporary reductions in electricity consumption by end-users at times of peak demand. In his thoughtful article FERC’s Expansive Authority to Transform the Electric Grid, Professor Joel B. Eisen places FERC v. EPSA in historical context, proposes a set of principles to guide FERC’s regulation of rules and practices that affect rates in wholesale power markets, and applies these principles to a hypothetical carbon price added to fossil-fueled electricity. Continue reading "Empowering Federal Regulation for a Changing Electricity Sector"