Notes and comments "High and dry?" The Public Readiness and Emergency Preparedness Act and liability protection for pharmaceutical manufacturers

In an era filled with fears of bioterrorism, Congress approved the Public Readiness and Emergency Preparedness Act (PREPA) to encourage development of vaccines and other countermeasures. By providing pharmaceutical manufacturers with protection from liability for potential side effects, Congress has attempted to motivate manufacturers to produce a national stockpile of countermeasures. As part of PREPA, the government established a compensatory system intended to provide compensation to persons injured by countermeasures used during a public health emergency. Although the Act provides for a compensation fund, it fails to allocate monies for that fund. Thus, in the absence of further congressional action, PREPA will not provide compensation to those injured by countermeasures. Failing to assure the American public of a compensation program constitutes bad public policy and risks inspiring potential vaccinees to refuse necessary drugs. Additionally, arguments as to the constitutionality of the Act exist should Congress fail to adequately fund the program, and the existence of those arguments undermines the purpose of the Act--namely to assure pharmaceutical manufacturers that they will not be sued into oblivion should they attempt to aid national pandemic protection. In addition to detailing both the Act and the statutory precedent for congressional attempts to spur biodefense, this Article addresses important issues of healthcare, tort, and constitutional law that will continue to manifest themselves in this new era of bioterrorism.     

Innovation practices in emerging economies: Do university partnerships matter?

The Journal of Technology Transfer - Enterprises’ resources and capabilities determine their ability to achieve competitive advantage. In this regard, the key innovation challenges that...     

Privacy,anonymity and liability: Will anonymous communicators have the last laugh?

In this paper, the author sets out the way in which the UK approach to privacy protection is able to extend its reach to anonymous postings. Whilst anonymity might sometimes be seen as one of the essential characteristics of communicating on-line, it does not provide an impenetrable veil of protection in respect of a privacy violation claim. Instead, there are avenues available to identify anonymous communicators, which have implications both for internet freedom and jurisdiction in cyberspace. In the UK, our common law has not denied bloggers, or other on-line contributors, anonymity per se. However, it will be argued that recent UK judgments represent a warning to anonymous communicators that they can be held liable for what they post on-line and that naivety is no defence at law. Whilst on-line platforms allow people to effectively become journalists; to become publishers, as familiar users, they should become more aware of the consequences of their on-line postings and appreciate that they will not be able to escape from the application of third party disclosure orders. However, as these are not without their problems, it is possible that anonymous communicators may have the last laugh.     

Supervision practices in specialty mental health probation: What happens in officer-probationer meetings?

As the correctional population continues to increase, probation agencies struggle to adequately supervise offenders with unique needs, including those with mental disorder. Although more than 100 U.S. probation agencies have implemented specialty mental health case-loads, little is known about their practices. Based on detailed observations of 83 audio-taped meetings, we examined interactions between probationers and officers in a prototypic specialty agency, focusing on the extent to which practices comport with evidence-based risk reduction principles. We found that specialty officers (a) more frequently discussed probationers' general mental health than any individual criminogenic need, (b) chiefly questioned, directed, affirmed, and supported (rather than confronted) probationers, and (c) relied more heavily on neutral strategies and positive pressures (e.g., inducements) rather than negative pressures (e.g., threats of incarceration) to monitor and enforce compliance. Implications for "what works" to promote community integration for probationers with mental disorder are discussed.     

Are we there yet? Best practices for diversity and inclusion in Australia

ABSTRACT

This article reports on the findings of a pilot research project investigating current best practices, operating within national law firms in Australia, that support women lawyers in their advancement to partnership and other leadership positions. Academic research and professional body reports suggest that current diversity and inclusion (D&I) initiatives across the private sector are not resulting in significant change to advancement, retention and attrition of women in the legal profession. However, work done by the Women Lawyers’ Association of New South Wales in Australia, through the Data Comparison Project (DCP), indicates that some firms have made better progress than others. Building on the DCP, this article presents the findings of a pilot project involving in-depth interviews with four of the top-achieving national law firms in Australia on gender equity criteria. It finds that these firms are collectively engaging with many of the best practice initiatives for D&I recommended by the current national and international research and scholarship, and in some instances go beyond international best practice. What is apparent, however, is that the current best practices have yet to achieve significant advancement of women, or to break through the glass ceilings that continue to operate for women in large Australian law firms.     

Reconciliation of women’s rights and cultural practices: polygamy in Ghana

The article analyzes women’s rights and the practice of polygamy in Ghana. The various justifications given for the practice and the colonial attitude towards the practice are examined. The article focuses on how polygamy impacts the attainment of substantive equality for Ghanaian women. As the total abolition of polygamy would be a challenging and problematic objective at this stage, due to the entrenched nature of the practice, it is instead recommended that law be used to protect women in polygamous marriages from domestic violence and ensure their property rights.     

Regulation of legal services in the e-world: a need to short circuit hot spots in ethics and novel practices?

This paper examines the professional and regulatory implications for legal practices of a rapidly evolving legal services marketplace shaped by new technologies and e-spaces. The paper focuses on three burgeoning areas in the delivery of legal services: (i) legal outsourcing; (ii) virtual law firms; and (iii) use of social media networking. The authors examine how Australian legal practitioners are utilising these new practices and technologies and the ethical implications of their use. The paper argues that the current regulatory framework in Australia does not adequately address the challenges and concerns raised by an increasingly borderless and e-based legal services market and thus calls for Australian legal regulators to remedy this deficiency as a matter of priority.     

Director’s liability and investor protection: a law and finance perspective

This article conducts an analysis of director’s liability in listed firms using modern finance theory. The paper describes how the use of special general clauses in Danish law regulates director’s liability. It is shown how risk and return combinations may assist in determining whether management has violated the business judgment rule. The analysis shows that this legal doctrine is optimal from an economic perspective. The article introduces the concept of “temporal relatively of the shareholder equality principle” which can be used to determine whether the interests of minority shareholders have been set aside. It is shown that the principle of shareholder equality must be subjected to both an ex ante, as well as an ex post assessment. Moreover, courts should be reluctant to interfere in situations where there has been an unequal distribution of gain (or loss) ex post. The theoretical arguments are illustrated by analyzing a leading Danish court case that involved the squeeze out of minority shareholders in the Danish telecom company. The paper also analyzes the incentive effects of derivate suits and suits commenced by individual shareholders. It is shown that the former creates a free rider problem whereas in the latter situation, shareholders are not fully able to internalize their externalities.     

Governance by EU emissions trading: resistance or innovation in the oil industry?

Studies of the EU Emissions Trading System (ETS) abound. Much is known about the economic incentives they contain to promote abatement and innovation, and studies are focusing on the short-term aggregate effects at sector and system levels. Less, however, is known about how the EU ETS affects companies, including their strategies, long-term innovation plans, and deployment of low-carbon solutions. This article presents an analytical framework of how companies are likely respond to regulation like the EU ETS, subsequently applied to companies in the oil industry, represented by the major multinationals ExxonMobil and Shell. The analysis finds that these companies had quite different initial responses to the ETS, whereas their long-term strategic responses to carbon pricing show signs of convergence.     

Rethinking the notion of hosting in the aftermath of Delfi: Shifting from liability to responsibility?

Liability of Internet intermediaries for a third-party content is a complex topic, especially with regards to the storage of illegal or harmful postings offered by portals. The E-Commerce Directive offered a liberal framework for handling such cases, provided that a hosting service provider has not played an active role in content management. Being passive turned out to be the key precondition for immunity under safe harbour provisions. Yet, after the Delfi ruling the legal landscape has changed radically. Although the judgment of the Strasbourg tribunal has been dismissed in some jurisdictions as an error or one-off case, the truth is that it took into account acquis communautaire and imposed liability on the news portal, which followed the guidelines of Google France and eBay rulings. Given the lack of predictability of the current legal framework, the aim of this contribution is to offer a deep-dive into the notion of hosting from a technical perspective in order to better understand why Articles 14–15 of the E-Commerce Directive may require a re-examination. It is also submitted that portals and other online service providers relying on a broad construction of safe harbours should be entitled to Good Samaritan protection akin to section 230 of the American Communications Decency Act in order not to hold them liable for being active in fighting hate speech and other forms of illegal and harmful conduct.     

Criminal liability of physicians: an encroachment on the abortion right?

The Supreme Court in 1973 in Roe v. Wade established that decision of first trimester abortion is left to the physician, exercising his best medical judgment, in consultation with the patient. During this period the state may not regulate abortion determination since there is no compelling state interest; therefore a physician performing abortion will be precluded from civil or criminal liability. In second trimester abortion the state has a compelling interest in the health of the mother and may regulate the procedure to protect maternal health; although a previable fetus may be able to survive the abortion, Roe v. Danforth definitively places the woman's right to an abortion above the life of the fetus during the previable stage; therefore the state cannot seek to safeguard the life or health of the fetus during the abortion. Third trimester abortion implies a viable fetus; thus, a compelling state interest in the potential life arises and the state may regulate and proscribe abortion except when necessary for the life and health of the mother. The determination of when viability has been achieved is a matter of judgment resting with the physician who has the choice of techniques and operating procedures which may or may not be fatal to the unborn. It is a question of either termination of pregnancy or destruction of the fetus. In this last case the legal responsibility placed upon the physician is very serious, and involving a risk of civil and criminal liability. Uncertainties as to the boundaries of legal abortion and the threat of criminal liability can only result in a reluctance among physicians to perform second and third trimester abortions, which is against the fundamental right to abortion guaranteed by the Constitution. The Supreme Court will have to elaborate upon the scope of the abortion right, whether it encompasses fetal destruction or only termination of pregnancy, because it directly affects the extent and quality of maternal and fetal care that must be rendered by a physician. If only termination of pregnancy is included the Court must resolve whether the woman's health interests predominate, or whether the physician can be required to enhance fetal survival. Physicians have a right to know the full extent of legal ramifications and implications of legally induced abortion.