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Public companies and their equity securities: [principles of regulation under Hong Kong law]
In: Studies in comparative corporate and financial law 2
Beyond Traditional IP: Addressing Regulatory Barriers
In: INTELLECTUAL PROPERTY, COVID-19, AND THE NEXT PANDEMIC: DIAGNOSING PROBLEMS, DEVELOPING CURES (Cambridge U. Press, Forthcoming 2023)
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Confronting IP Nationalism
In: Forthcoming, Denver Law Review, Vol. 100, No. 1, 2023
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IRAC & Exam-Writing Exercise for Civil Procedure
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Avoiding the TRIPS Trap: A Path to Domestic Disclosure of Clinical Drug Data Consistent with International Norms
In: Cornell International Law Journal, Band 54, Heft 4
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Working paper
A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, and First Amendment Overprotection
This Article argues that pharmaceutical marketing to doctors should be more critically evaluated and entitled to less First Amendment protection, contrary to a trend dating back to the Supreme Court's 2011 decision in Sorrell. In particular, the Article argues that more information to doctors in the form of pharmaceutical marketing does not necessarily result in better patient outcomes. The Article adds a significant critique based on the existence and impact of cognitive bias literature that has thus far not been recognized in this area. If courts fully embrace this understanding, they should recognize that the government, through the Food and Drug Administration, has a right to limit statements that may encourage doctors to prescribe unapproved uses of drugs with potentially fatal consequences. This Article reveals that recent expansion of First Amendment jurisprudence is based on key cognitive biases and assumptions. First, courts, and even some doctors themselves, improperly assume that doctors are adequately sophisticated, such that doctors are protected from self-interested marketing, which this Article demonstrates as inconsistent with reality. Second, current case law assumes that the availability of more information necessarily promotes better decisions so long as it is not patently false, a proposition that this Article shows is especially unfounded in the unique market of prescription drugs. Importantly, such assumptions can have critical health consequences since they promote uses of drugs for which there is often inadequate scientific basis and serious health consequences. Finally, this Article builds upon the revealed cognitive biases to suggest empirically-informed changes to cabin the expansion of First Amendment protection of pharmaceutical marketing as well as broader structural reform. This Article proposes to treat potentially misleading information differently than entirely truthful speech, thus giving states greater discretion to regulate potentially misleading information. In addition, this Article proposes that the burden of proof in such cases should be reversed, so that courts will no longer consider disclaimers as a true alternative to speech restriction without proof that companies will actually promote more informed decisions. The Article also suggests structural changes to medical education, drug development, and marketing informed by the cognitive biases revealed here.
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The Intersection of ISDS and TRIPS Flexibilities
In: Chapter in Research Handbook on Intellectual Property and Investment Law, Christophe Geiger, ed. Edward Elgar Publishing, (Forthcoming)
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Reexamining Eli Lilly v. Canada: A Human Rights Approach to Investor-State Disputes?
This Article provides valuable insight to the broader discussion of reforming investor-state disputes. Many have noted that the system is in a crisis due to a lack of democratic accountability and inconsistent decisions, which create a chilling effect on legitimate domestic law and policy. Despite substantial discussion in recent years concerning how to reform investor-state disputes, there is only limited discussion concerning the extent to which such disputes challenge domestic intellectual property (IP) limits, as well as global IP norms. Moreover, even among those who recognize the challenge to IP limits, the relevance of human rights is generally not addressed. This Article begins to fill this gap from two angles. First, it aims to promote a better understanding of how such disputes undermine the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) at an important time when policymakers are recommending reliance on policy space under TRIPS. Second, it considers whether human rights might help to protect this policy space using the facts of Eli Lilly v. Canada.
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Reexamining Eli Lilly v. Canada: A Human Rights Approach to Investor-State Disputes
This Article provides valuable insight to the broader discussion of reforming investor-state disputes. Many have noted that the system is in a crisis due to a lack of democratic accountability and inconsistent decisions, which create a chilling effect on legitimate domestic law and policy. Despite substantial discussion in recent years concerning how to reform investor-state disputes, there is only limited discussion concerning the extent to which such disputes challenge domestic intellectual property (IP) limits, as well as global IP norms. Moreover, even among those who recognize the challenge to IP limits, the relevance of human rights is generally not addressed. This Article begins to fill this gap from two angles. First, it aims to promote a better understanding of how such disputes undermine the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) at an important time when policymakers are recommending reliance on policy space under TRIPS. Second, it considers whether human rights might help to protect this policy space using the facts of Eli Lilly v. Canada.
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Should All Drugs Be Patentable?: A Comparative Perspective
In: Vanderbilt Journal of Entertainment & Technology Law, Band 17
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A Mystery Statute Approach: How to Teach and Test the Legal Skill of Statutory Interpretation
In: L. Teacher, Fall 2013
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Complicated Compulsory Licenses: The Waiver/Article31bis 'Solution
In: Cynthia M. Ho, ACCESS TO MEDICINE IN THE GLOBAL ECONOMY: INTERNATIONAL AGREEMENTS ON PATENTS AND RELATED RIGHTS, Oxford University Press, April 2011
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Suspensions of In-Transit 'Generic' Drugs: A Case Study of Competing Perspectives
In: Oxford University Press, 2011
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Compulsory Licenses Under TRIPS: An Introduction
In: Cynthia M. Ho, ACCESS TO MEDICINE IN THE GLOBAL ECONOMY: INTERNATIONAL AGREEMENTS ON PATENTS AND RELATED RIGHTS, Oxford University Press, April 2011
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