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Volume 21 - Issue 1


The Right to Data Privacy: Revisiting Warren & Brandeis

Volini, Anthony G. | November 1, 2023

In their famous 1890 article The Right to Privacy, Samuel Warren and Louis Brandeis found privacy as an implicit right within existing law. Regarded as perhaps the most influential legal essay of all time, it offers concepts that ring as true today as they did in 1890. In defining privacy as an important legal principle implicit in the law, they focused on information privacy, such as public disclosure of personal information, rather than decisional privacy. Analyzing the 1890 article is an ideal starting point to assess the origins of privacy law and to understand privacy issues from a simpler time in terms of law and technology. Its concepts thus provide an easily understandable frame of reference before diving into more challenging modern issues and assessing a path forward. Accordingly, this article compares each key principle from 1890 and explores privacy issues that remain similar versus privacy issues that seem new based on particular advances in technology. The key similarity between 1890 and today is that problems of information dissemination present similar issues, albeit on a larger scale. Some key differences between 1890 and today, however, are that computer technologies now allow for massive data collection, massive data retention and increasingly aggressive data analysis that can be used to abuse privacy even with ostensibly public data. Warren and Brandeis taught us that new technologies continually present new privacy issues; so as new technologies are evolving today, thought must still be given to how the law might flexibly adapt to new and unforeseen changes in tech. Their article exposed that various U.S. laws were insufficient in 1890 to broadly protect information privacy, causing Warren and Brandeis to imply a broad right. Today, the same problem persists: laws within the U.S. are inadequate to address privacy harms caused by continually evolving technologies. The U.S. still has no broad express privacy law, and a path forward might contemplate making express what Warren and Brandeis had to imply in order to address new privacy harms. I propose two key ideas. First, the law needs to more clearly distinguish decisional privacy from information privacy. Decisional privacy is really not a privacy interest at all and is instead a personal liberty interest separate from information privacy. Second, when contemplating legal protection for information privacy, perhaps it’s time to consider the arduous and improbable task of enacting a constitutional amendment guaranteeing broad and general protection against information privacy abuse from both government and private actors. While difficult to enact, a broad express federal right could provide significant advantages, such as (1) establish a baseline right from which states and Congress could add consistent legislation; (2) enable courts to restrict clear instances of privacy abuse without waiting for Congress to act, which seems especially helpful given the expected proliferation of artificial intelligence (“AI”) and new and unforeseen privacy harms; (3) increase harmonization with the European Union (“E.U.”) and potentially other jurisdictions; (4) and finally, avoid the problem of originalist or strict constructionist judges refusing to infer or imply a constitutional information privacy right in the wake of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022), decision. Thus, a flexible and general broad right of federal protection from information privacy abuse might provide an optimal, flexible baseline for courts and regulators to quickly restrict new privacy abuses while allowing time for the states and Congress to enact further detailed legislation.


Technology Specificity and Equitable Access to Pharmaceuticals

Santos Rutschman, Ana | November 1, 2023

Current models of production of pharmaceuticals, particularly those dependent on intellectual property (and adjacent) protections, often contribute to the highly asymmetrical and inequitable distribution of resulting outputs. These problems are especially acute when emerging pathogens cause transnational public health crises in which there is concurrent demand for the same medicines in both lower- and higher-income countries, with populations in the Global South getting very limited timely access, if any, to preventatives and life-saving medicines—even when an outbreak disproportionately affects populations in these very countries. This essay examines an under-theorized and under-explored way to help correct this historical and persisting deficit in distributive justice: it introduces and develops the concept of “technology specificity,” situating it in the context of the transfer of patented pharmaceutical products. As used here, technology specificity refers to a component-by-component evaluation of the pharmaceutical landscape surrounding products needed for pandemic and epidemic preparedness, with an emphasis on proprietary rights and logistical barriers to tech transfer. The essay further advocates for a more deliberate use of technology-specific strategies on part of policymakers before the onset of a pandemic or epidemic. This contrasts with the current practice of negotiating contractual terms when a public health crisis is already underway. The ex ante approach proposed here can help lessening many of the political economy hurdles that arise when policymakers in lower-income countries are forced to compete on unlevel playing fields with those in wealthier countries at the height of a pandemic or epidemic. In turn, this affords policymakers greater flexibility to negotiate equitable access provisions—thus ensuring that, when demand for a pharmaceutical or a particular component does arise, populations in lower-income regions are not left out.


Patented Brand Drugs are Essential Facilities and Regulatory Compacts

Hamilton, Clovia,Stokes, Gerald | November 1, 2023

The COVID-19 health pandemic highlighted the need for more readily affordable patented drugs. Brand drug companies argue that they need to recuperate their research and development (“R&D”), marketing and advertising expenses. The incentive to innovate also needs to be preserved. Drug companies are entitled to a profit and a return on their investment, just as afforded to utility monopolies. Intellectual property and human rights clash relative to access to patented drugs. We provide several proposed approaches to resolve this dilemma and conclude with an argument that patented drugs should be considered a public utility. A model based on the public utility approach has a great deal of merit as a model for setting prices for essential drugs and treatments. The price, however, setting should not be the province of back-room discussions between drug companies and insurers. Prices should be negotiated in public with full transparency just as electricity rates. Investor-owned utilities are profitable essential facilities that are of great benefit to consumers and provide reasonable and regular return on investment for their owners. This can happen for manufacturers of essential drugs as well.


Disclosing Machine Inputs and Outputs: The Vulnerability of Legal Technology in Civil Discovery

Concannon, Joshua | November 1, 2023

Smart technology has begun to infiltrate nearly every corner of society. While the legal profession managed to resist this intrusion relative to other industries for many years, it is now undeniable that machines frequently supplement lawyers and civil procedures such as discovery will need to adapt. As litigants, usually the well-resourced ones, increasingly utilize machine intelligence, concerns about accuracy and unfair advantage have sprung up on the other side of technology use. Information asymmetry is exacerbated when technology is accessible to only one party, and, consequently, curious litigants may seek discovery about the technology’s implementation in the context of the dispute. Thus, as law firms and corporate legal departments consider whether and how to integrate emerging technologies into their operations, it will be important to know their exposure to litigation. This paper provides suggestions for whether, and to what extent, parties should be able to obtain discovery about an opponent’s tools, including their machine inputs and outputs. After reviewing the discovery process broadly, this paper will walk through three of the most common and relevant technologies, including technology-assisted review in discovery productions, predictive analytics for forecasting outcomes, and document generation for creating legal documents. If a party demands to see the details behind the use of one of these technologies, should the court compel production? This paper offers several considerations for judges in exercising their discretion to answer this question.