Showing papers by "Georgetown University Law Center published in 2017"

Girlhood interrupted: The erasure of Black girls' childhood

Abstract: This study by the Georgetown Law Center on Poverty and Inequality provides—for the first time—data showing that adults view Black girls as less innocent and more adult-like than their white peers, especially in the age range of 5–14. The perception of Black girls as less innocent may contribute to harsher punishment by educators and school resource officers. Furthermore, the view that Black girls need less nurturing, protection, and support and are more independent may translate into fewer leadership and mentorship opportunities in schools. The perception of Black girls as less innocent and more adult-like may contribute to more punitive exercise of discretion by those in positions of authority, greater use of force, and harsher penalties.

Reframing the Opioid Epidemic as a National Emergency.

Abstract: On August 10, 2017 President Trump announced his intention to declare a national emergency following the recommendation of the White House Commission on Combating Drug Addiction and the Opioid Crisis. Opioid abuse is among the most consequential preventable public health threats facing the nation. More than 600,000 deaths have occurred to date, with 180,000 more predicted by 2020. Of the 20.5 million US residents 12 years or older with substance use disorders in 2015, 2 million were addicted to prescription pain relievers. A national emergency declaration authorizes public health powers, mobilizes resources, and facilitates innovative strategies to curb a rapidly escalating public health crisis.

Law for the Platform Economy

Abstract: This article explores patterns of legal-institutional change in the emerging, platform-driven economy. Its starting premise is that the platform is not simply a new business model, a new social technology, or a new infrastructural formation (although it is also all of those things). Rather, it is the core organizational form of the emerging informational economy. Platforms do not enter or expand markets; they replace (and rematerialize) them. The article argues that legal institutions, including both entitlements and regulatory institutions, have systematically facilitated the platform economy’s emergence. It first describes the evolution of the platform as a mode of economic (re)organization and introduces the ways that platforms restructure both economic exchange and patterns of information flow more generally. It then explores some of the ways that actions and interventions by and on behalf of platform businesses are reshaping the landscape of legal entitlements and obligations. Finally, it describes challenges that platform-based intermediation of the information environment has posed for existing regulatory institutions and traces some of the emerging institutional responses.

A human rights approach to the health implications of food and nutrition insecurity

Abstract: Food and nutrition insecurity continues to pose a serious global challenge, reflecting government shortcomings in meeting international obligations to ensure the availability, accessibility, and quality of food and to ensure the highest attainable standard of health of their peoples. With global drivers like climate change, urbanization, greater armed conflict, and the globalization of unhealthy diet, particularly in under-resourced countries, food insecurity is rapidly becoming an even greater challenge for those living in poverty. International human rights law can serve a critical role in guiding governments that are struggling to protect the health of their populations, particularly among the most susceptible groups, in responding to food and nutrition insecurity. This article explores and advocates for a human rights approach to food and nutrition security, specifically identifying legal mechanisms to “domesticate” relevant international human rights standards through national policy. Recognizing nutrition security as a determinant of public health, this article recognizes the important links between the four main elements of food security (i.e., availability, stability, utilization, and access) and the normative attributes of the right to health and the right to food (i.e., availability, accessibility, affordability, and quality). In drawing from the evolution of international human rights instruments, official documents issued by international human rights treaty bodies, as well as past scholarship at the intersection of the right to health and right to food, this article interprets and articulates the intersectional rights-based obligations of national governments in the face of food and nutrition insecurity.

Danger Ahead: Risk Assessment and the Future of Bail Reform

Abstract: In the last five years, legislators in all fifty states have made changes to their pretrial justice systems. Reform efforts aim to shrink jails by incarcerating fewer people— particularly poor, low-risk defendants and racial minorities. Many jurisdictions are embracing pretrial risk assessment instruments—statistical tools that use historical data to forecast which defendants can safely be released—as a centerpiece of reform. Now, many are questioning the extent to which pretrial risk assessment instruments actually serve reform goals. Existing scholarship and debate centers on how the instruments themselves may reinforce racial disparities and on how their opaque algorithms may frustrate due process interests. This Article highlights three underlying challenges that have yet to receive the attention they require. First, today’s risk assessment tools lead to what we term “zombie predictions.” That is, predictive models trained on data from older bail regimes are blind to the risk- reducing benefits of recent bail reforms. This may cause predictions that systematically overestimate risk. Second, “decision-making frameworks” that mediate the court system’s use of risk estimates embody crucial moral judgments, yet currently escape appropriate public scrutiny. Third, in the long-term, these tools risk giving an imprimatur of scientific objectivity to ill-defined concepts of “dangerousness,” may entrench the Supreme Court’s historically recent blessing of preventive detention for dangerousness, and could pave the way for an increase in preventive detention. Pretrial risk assessment instruments, as they are currently built and used, cannot safely be assumed to support reformist goals of reducing incarceration and addressing racial and poverty-based inequities. This Article contends that system stakeholders who share those goals are best off focusing their reformist energies on other steps that can more directly promote decarceral changes and greater equity in pretrial justice. Where pretrial risk assessments remain in use, this Article proposes two vital steps that should be seen as minimally necessary to address the challenges surfaced. First, where they choose to embrace risk assessment, jurisdictions must carefully define what they wish to predict, gather and use local, recent data, and continuously update and calibrate any model on which they choose to rely, investing in a robust data infrastructure where necessary to meet these goals. Second, instruments and frameworks must be subject to strong, inclusive governance.

Fintech and the Innovation Trilemma

Abstract: Whether in response to robo advising, artificial intelligence, or crypto-currencies such as Bitcoin, regulators around the world have made it a top policy priority to supervise the exponential growth of financial technology (or “fintech”) in the post-crisis era. However, applying traditional regulatory strategies to new technological ecosystems has proved conceptually difficult. Part of the challenge lies in managing the trade-offs that accompany the regulation of innovations that could, conceivably, both help and hurt consumers as well as market participants. Problems also arise from the common assumption that today’s fintech is a mere continuation of the story of innovation that has shaped finance for centuries. This Article offers a new theoretical framework for understanding and regulating fintech by showing how the supervision of financial innovation is invariably bound by what can be described as a policy trilemma. Specifically, we argue that when seeking to provide clear rules, maintain market integrity, and encourage financial innovation, regulators have long been able to achieve, at best, only two out of these three goals. Moreover, today’s innovations exacerbate the trade-offs historically embodied in the trilemma by breaking down financial services supply chains into discrete parts and disintermediating traditional functions using cutting edge, but untested, technologies, thereby introducing unprecedented uncertainty as to their risks and benefits. This Article seeks to catalogue the strategies taken by regulatory authorities to navigate the trilemma, and posits them as operating across a spectrum of interrelated responses. The Article then proposes supplemental administrative tools to support not only market, but also regulatory experimentation and innovation.

Baby Factories in Nigeria: Starting the Discussion Toward a National Prevention Policy

Abstract: Baby factories and baby harvesting are relatively new terms that involve breeding, trafficking, and abuse of infants and their biological mothers. Since it was first described in a United Nations Educational, Scientific and Cultural Organization report in Nigeria in 2006, several more baby factories have been discovered over the years. Infertile women are noted to be major patrons of these baby factories due to the stigmatization of childless couples in Southern Nigeria and issues around cultural acceptability of surrogacy and adoption. These practices have contributed to the growth in the industry which results in physical, psychological, and sexual violence to the victims. Tackling baby factories will involve a multifaceted approach that includes advocacy and enacting of legislation barring baby factories and infant trafficking and harsh consequences for their patrons. Also, programs to educate young girls on preventing unwanted pregnancies are needed. Methods of improving awareness and acceptability of adoption and surrogacy and reducing the administrative and legal bottlenecks associated with these options for infertile couples should be explored to diminish the importance of baby factories.

How Copyright Law Can Fix Artificial Intelligence's Implicit Bias Problem

Abstract: As the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI’s technological gains and potential benefits. While legal and computer science scholars have analyzed many sources of bias, including the unexamined assumptions of its often-homogenous creators, flawed algorithms, and incomplete datasets, the role of the law itself has been largely ignored. Yet just as code and culture play significant roles in how AI agents learn about and act in the world, so too do the laws that govern them. This Article is the first to examine perhaps the most powerful law impacting AI bias: copyright. Artificial intelligence often learns to “think” by reading, viewing, and listening to copies of human works. This Article first explores the problem of bias through the lens of copyright doctrine, looking at how the law’s exclusion of access to certain copyrighted source materials may create or promote biased AI systems. Copyright law limits bias mitigation techniques, such as testing AI through reverse engineering, algorithmic accountability processes, and competing to convert customers. The rules of copyright law also privilege access to certain works over others, encouraging AI creators to use easily available, legally low-risk sources of data for teaching AI, even when those data are demonstrably biased. Second, it examines how a different part of copyright law—the fair use doctrine—has traditionally been used to address similar concerns in other technological fields, and asks whether it is equally capable of addressing them in the field of AI bias. The Article ultimately concludes that it is, in large part because the normative values embedded within traditional fair use ultimately align with the goals of mitigating AI bias and, quite literally, creating fairer AI systems.

Cultures of Compliance

Abstract: In the last few years especially, law-makers have increasingly invoked culture as something crucial to good compliance. The phrase “culture of compliance” has thus made its way into common legal discourse as describing both a goal and a marker. Precisely they mean by this is contestable, but there is enough evidence that the demand for healthy compliance culture is serious to invite careful thought. What is it, or should it be, and how might we know? This article draws from organizational behavior, behavioral ethics, and financial economics to develop an approach to how and why corporate cultures resist naively appealing interventions of “tone at the top” and ethical exhortation. Though recognizing the limited institutional capacity of government enforcers to promote structural changes in corporate governance and internal controls, the article concludes that any hope of getting to a socially optimal level of compliance — including a healthy culture of compliance — depends on a strong public voice to counter the beliefs and biases that grease internal perceptions of how firms succeed. In the end, however, the most important message about cultures of compliance is for corporate leaders and, especially, boards of directors. It is much too easy to look around and see good people working hard at difficult jobs and assume that a good compliance culture exists simply because everyone has been warned of the damage that can come from getting caught doing wrong. Or worse, to assume that an observable abundance of intensity, loyalty and creativity are signs that all is good. Taking culture seriously — appreciating the opportunities for transmitting values as well as anticipating the many hidden pathways of resistance and denial — is a necessary step toward the sort of compliance that never attracts prosecutors’ unwanted attention.

Invigorating Vertical Merger Enforcement

Abstract: This Feature summarizes why and how vertical merger enforcement should be invigorated. In our modern market system, vigorous vertical merger enforcement is a necessity. Strong enforcement is particularly important in markets where economies of scale and network effects lead to barriers to entry and durable market power. Even when there are parallel vertical mergers, the result may well be an anticompetitive reciprocal dealing, coordinated equilibrium rather than intense competition among efficient integrated firms. Stronger enforcement would involve several steps, including recognition that claims of elimination of double marginalization do not deserve to be silver bullets and that behavioral remedies are generally unable to prevent anticompetitive effects.

Revamping the US federal common rule modernizing human participant research regulations

Abstract: On January 19, 2017, the Office for Human Research Protections (OHRP), Department of Health and Human Services, and 15 federal agencies published a final rule to modernize the Federal Policy for the Protection of Human Subjects (known as the “Common Rule”).1 Initially introduced more than a quarter century ago, the Common Rule predated modern scientific methods and findings, notably human genome research.

Philosophical Legal Ethics: An Affectionate History

Abstract: The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, virtue ethics, or fiduciary theory.

Keeping each other safe: An assessment of the use of peer intervention programs to prevent police officer mistakes and misconduct, using New Orleans’ EPIC program as a potential national model.

Abstract: This article examines the principles of “active bystandership” and “peer intervention” and considers their application in the context of policing to prevent or mitigate police officer mistakes or misconduct. We begin by exploring the science behind bystandership and the application of the concept to solve a number of national problems in nonpolicing contexts. We then explore the unique dynamics of policing and argue these dynamics make active bystandership training, as part of an overarching implementation of an active bystandership ethos, critical to overcoming entrenched inhibitors to peer intervention. We also discuss the significant risks to officers, agencies, cities, and communities of not creating an ethos of active bystandership among officers. Finally, we consider the New Orleans Police Department’s implementation of a peer intervention or active bystandership program beginning in 2015 (during which time it was under the oversight of federal consent decree) and present some “lessons learned” from...

Realizing Universal Health Coverage in East Africa: the relevance of human rights

Abstract: Applying a robust human rights framework would change thinking and decision-making in efforts to achieve Universal Health Coverage (UHC), and advance efforts to promote women’s, children’s, and adolescents’ health in East Africa, which is a priority under the Sustainable Development Agenda. Nevertheless, there is a gap between global rhetoric of human rights and ongoing health reform efforts. This debate article seeks to fill part of that gap by setting out principles of human rights-based approaches (HRBAs), and then applying those principles to questions that countries undertaking efforts toward UHC and promoting women’s, children’s and adolescents’ health, will need to face, focusing in particular on ensuring enabling legal and policy frameworks, establishing fair financing; priority-setting processes, and meaningful oversight and accountability mechanisms. In a region where democratic institutions are notoriously weak, we argue that the explicit application of a meaningful human rights framework could enhance equity, participation and accountability, and in turn the democratic legitimacy of health reform initiatives being undertaken in the region.

Language, Science, and Politics: The Politicization of Public Health

Abstract: On December ​​16, 2017, the ​​​​Centers for Disease Prevention and Control and Prevention (CDC) staff were instructed not to use 7 words in its 2019 budget appropriation request: diversity, transgender, vulnerable, fetus, evidence-based, and science-based. These basic phrases are intrinsic to public health. The Department of Health and Human Services (HHS) offered alternative word choices, such as by modifying "evidence-based" with "community standards and wishes" and using "unborn child" instead of "fetus". HHS repudiated reports that it banned words as a "complete mischaracterization," but rather was guiding CDC toward a successful congressional request. The National Academy Presidents issued a joint statement saying HHS guidance could impede research and "the quality of counsel rendered to government." This Viewpoint explains why HHS’ budget advice undermines science and ethics — even if it is lawful.

The Letter and the Spirit: A Unified Theory of Originalism

Abstract: The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism. Our theory of constitutional construction draws upon a familiar common-law concept long used in contract and fiduciary law to handle the problem of opportunistic abuse of discretion: the duty of good faith. We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens—a relationship characterized by discretionary powers in the hands of judges and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given to them in “this Constitution” in good faith. This means that judges engaging in constitutional construction (or “implementation”) must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text). Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty to employ good-faith construction. Good-faith construction consists of (a) accurately identifying the spirit—or “original function”—of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists in opportunistically using the discretion inherent in implementing the Constitution to evade its original letter or spirit in pursuit of the judge’s own extraconstitutional preferences.

The Raising Rivals' Cost Foreclosure Paradigm, Conditional Pricing Practices, and the Flawed Incremental Price-Cost Test

Abstract: There are two overarching legal paradigms for analyzing exclusionary conduct in antitrust – predatory pricing and the raising rivals’ costs characterization of foreclosure. Sometimes the choice of paradigm is obvious. Other times, it may depend on the structure of the plaintiff’s allegations. Some types of conduct, notably conditional pricing practices (CPPs), might appear by analogy to fit into both paradigms. CPPs involve pricing that is conditioned on exclusivity or some other type of favoritism in a customer’s purchases or input supplier’s sales. The predatory pricing paradigm would attack the low prices of CPPs. By contrast, the RRC foreclosure paradigm would attack the condition. The analysis in this article concludes that CPPs are better characterized as belonging to the RRC foreclosure paradigm and evaluated under a rule of reason standard that focuses directly on harm to competition and consumers. The impact of foreclosure should not be measured mainly by the fraction of customers or suppliers affected. Rules that artificially narrow concerns to whether the competitors are able to reach minimum viable scale or minimum efficient also are flawed. Foreclosure instead should be gauged primarily by the impact on the competitors’ costs, output, capacity, and ability to enter and expand. The analysis also explains that the fundamental focus of analysis is the impact of consumers in the output market, not the impact on competitors. The article also explains in detail why concerns about conditional discounts should not be screened with an incremental price-cost test. That test is not reliably administrable and it leads to substantial false negative and false positive errors that will harm consumers and competition. It also is not required for counseling purposes.

From local adaptation to activism and global solidarity: framing a research and innovation agenda towards true health equity

Abstract: The proposal for a global health treaty aimed at health equity, the Framework Convention on Global Health, raises the fundamental question of whether we can achieve true health equity, globally and domestically, and if not, how close we can come. Considerable knowledge currently exists about the measures required to, at the least, greatly improve health equity. Why, then, do immense inequities remain? Building on this basic question, we propose four areas that could help drive the health equity research and innovation agenda over the coming years. First, recognizing that local contexts will often affect the success of policies aimed at health equity, local research will be critical to adapt strategies to particular settings. This part of the research agenda would be well-served by directly engaging intended beneficiaries for their insights, including through participatory action research, where the research contributes to action towards greater health equity. Second, even with the need for more local knowledge, why is the copious knowledge on how to reduce inequities not more frequently acted upon? What are the best strategies to close policymakers' knowledge gaps and to generate the political will to apply existing knowledge about improving health equity, developing the policies and devoting the resources required? Linked to this is the need to continue to build our understanding of how to empower the activism that can reshape power dynamics. Today’s unequal power dynamics contribute significantly to disparities in a third area of focus, the social determinants of health, which are the primary drivers of today’s health inequities. Continuing to improve our understanding of the pathways through which they operate can help in developing strategies to change these determinants and disrupt harmful pathways. And fourth, we return to the motivating question of whether we can achieve health equity. For example, can all countries have universal health coverage that comprehensively meets all of people’s health needs? How to foster the national and global solidarity to achieve such equity? The answers to questions such as these can help point the way to measures, often well outside the narrow realm of technical solutions, to realize the right to health, and to achieve and sustain substantive health equality.

Global Health Security in an Era of Explosive Pandemic Potential

Abstract: Pandemics pose a significant risk to security, economic stability, and development. Annualized expected losses from pandemics are estimated at $60 billion per year. Despite the certainty and magnitude of the threat, the global community has significantly underestimated and under-invested in avoidance of pandemic threats.We cannot wait or continue with the status quo, in which we pay attention to infectious disease threats only when they are at their peak and then are complacent and remain vulnerable until the next major outbreak. To reinforce and sustain international focus, funding, and action, it is crucial that pandemics rise to the level of “high politics,” becoming standing agenda items for political actors.In this article, we make the case for fundamental reform of the international system to safeguard global health security. We build on the action agenda offered by four international commissions formed in the wake of the Ebola epidemic, calling for the recommended “peace dividend” (an annual incremental investment of $4.5 billion — 65 cents per person) to strengthen global preparedness, for the United Nations to play a greater role in responding to major global health and humanitarian emergencies, and for an effective and efficient R&D strategy with multiple stakeholders — governments, academics, industry, and civil society — identifying R&D priorities and leading a coordinated response. If our action plan were adopted, it would safeguard the global population far better against infectious disease threats. It would reap dividends in security, development, and productivity.

Self-Regulation of Social Enterprise

Abstract: Social enterprise is a form of corporate organization in which firms are empowered to distribute profits, but are also free to trade off profit for other socially beneficial ends Benefit corporation statutes, the most popular form of social enterprise legislation, provide that social enterprise firms must self-assess their public benefits according to third-party standards Delaware and other states also allow firms to further commit to obtain periodic certification from a third-party auditor that the social enterprise firm is fulfilling its commitment to the public interest In effect, social enterprise replaces charity’s web of government regulation with a set of private contracts This presents a puzzle for scholars of the nonprofit sector, for whom the received wisdom, tracing to Henry Hansmann, is precisely that organizations adopt the nonprofit form exactly because the costs of contracting for the production of most charitable goods is prohibitive Social enterprise proponents suggest that third-party standard setting might be sufficient to give social enterprise the transparency needed to make contracting possible This Chapter will consider the viability of the social enterprise experiment in light of self-regulation theory, and related fields such as the law and economics of auditors and other “gatekeepers” In general, the lessons are that voluntary regulation is, while capable of reining in some of the worst collective action dilemmas, usually subject to very serious constraints To the extent that self-regulatory systems would be “effective” at assuring some small and unsophisticated donors, they raise consumer protection concerns Some of the most significant constraints self-regulation faces derive from a “regulated” firm’s ability to choose its own monitor I therefore propose changes to state social enterprise laws that would condition social enterprise status on a firm’s random assignment to a state-approved list of audit firms I consider and reject critiques of a similar earlier proposal for public-company auditors

Toward a Science of Torture

Abstract: Does torture “work?” Proponents, including President Trump and the architects of CIA “Enhanced Interrogation” say it does, by breaking terrorists’ resistance to revealing information that saves lives Torture’s foes typically dismiss this claim as false to the point of fraud—fortuitous coincidence with torture’s unlawfulness Neither view, I argue herein, rests firmly on evidence Rival anecdotes, not data, have, so far, driven this debate And a scientific answer is beyond our reach, since: (1) rigorous comparison between interrogation methods that do and don’t involve torture isn’t possible, and (2) studies of this sort would be transparently unethical This hasn’t stopped the CIA from pursuing a research-based answer Recently released documents, reviewed here for the first time, reveal that the Agency looked to science for a resolution and raise the explosive possibility that the CIA conducted a clandestine program of human-subjects research on the risks and efficacy of torture What can be said, based on the available science, is that there’s no evidence that torture is more effective than lawful interrogation and some reason to suspect that interviewing strategies grounded in state-of-the-art understandings of persuasion and cognition work best of all What can also be said is that: (1) America’s post-9/11 torture program wrecked lives, and (2) torture has wide appeal, as symbolic riposte to the powerlessness many feel in the face of vertiginous economic and cultural change

Pandora's Digital Box: The Promise and Perils of Digital Wallets

Abstract: Digital wallets, such as ApplePay and Android Pay, are “smart” payment devices that can integrate payments with two-way, real-time communications of any type of data. Integration of payments with real-time communications holds out tremendous promise for consumers and merchants alike: the combination, in a single, convenient platform, of search functions, advertising, payment, shipping, customer service, and loyalty programs. Such an integrated retail platform offers consumers a faster and easier way to transact, and offers brick-and-mortar retailers an ecommerce-type ability to identify, attract, and retain customers. At the same time, however, digital wallets present materially different risks for both consumers and merchants than traditional plastic card payments precisely because of their “smart” nature.For consumers, digital wallets can trigger an unfavorable shift in the applicable legal regime governing the transactions, increase fraud risk, create confusion regarding error resolution, expose consumers to non-FDIC-insured accounts, and substantially erode transactional privacy. These risks are often not salient to consumers, who cannot distinguish them by digital wallet. Consumers’ inability to protect against these risks points to a need for regulatory intervention by the Consumer Financial Protection Bureau to ensure minimum standards for digital wallets.For merchants, digital wallets can deprive them of valuable customer information used for anti-fraud, advertising, loyalty, and customer service purposes. Digital wallets can also facilitate poaching of customers by competitors, impair merchants’ customer relationship management, deprive merchants of influence over consumers’ payment choice and routing, increase fraud risk, subject merchants to patent infringement liability, and ultimately increase the costs of accepting payments. Merchants are constrained in their ability to refuse or condition payments from digital wallets based on the risks presented because of merchant rules promulgated by credit card networks. These rules raise antitrust concerns because they foreclose entry to those digital wallets that offer merchants the most attractive valuation proposition, namely those wallets that do not use the credit card networks for payments.

Presidential Immigration Policies: Endangering Health and Well-being?

Abstract: President Trump has issued executive orders transforming US immigration policy, potentially harming patient health and well-being. Are the president’s orders lawful and ethical, and what are the effects on the health system? The president has authorized construction of a barrier along the 2000-mile US-Mexico border, but Congress must first appropriate $12.6 billion to $21.6 billion. The executive order envisions Mexico paying for the barrier by reducing foreign assistance or imposing a 20% import tax. The latter is incompatible with international trade rules proscribing discrimination among trading partners. The federal government has constitutional power to appropriate private property with just compensation, but litigation from landowners and Native American tribes will incur major delays.

Key Challenges in Bringing CRISPR-Mediated Somatic Cell Therapy into the Clinic

Abstract: Genome editing using clustered regularly interspersed short palindromic repeats (CRISPR) and CRISPR-associated proteins offers the potential to facilitate safe and effective treatment of genetic diseases refractory to other types of intervention. Here, we identify some of the major challenges for clinicians, regulators, and human research ethics committees in the clinical translation of CRISPR-mediated somatic cell therapy.

Making News: Balancing Newsworthiness and Privacy in the Age of Algorithms

Abstract: In deciding privacy lawsuits against media defendants, courts have for decades deferred to the media. They have given it wide berth to determine what is newsworthy and so, what is protected under the First Amendment. And in doing so, they have often spoken reverently of the editorial process and journalistic decision-making.Yet, in just the last several years, news production and consumption has changed dramatically. As we get more of our news from digital and social media sites, the role of information gatekeeper is shifting from journalists to computer engineers, programmers, and app designers. The algorithms that the latter write and that underlie Facebook, Twitter, Instagram, and other platforms are not only influencing what we read but are prompting journalists to approach their craft differently.While the Restatement (Second) of Torts says that a glance at any morning newspaper can confirm what qualifies as newsworthy, this article argues that the modern-day corollary (which might involve a glance at a Facebook News Feed) is not true. If we want to meaningfully balance privacy and First Amendment rights, then courts should not be so quick to defer to the press in privacy tort cases, especially given that courts’ assumptions about how the press makes newsworthiness decisions may no longer be accurate. This article offers several suggestions for making better-reasoned decisions in privacy cases against the press.