Free Speech in the Fog of Scientific Uncertainty

Donald Trump’s assault on journalistic integrity and shared verifiable facts has ignited a reaction among public intellectuals to demand fealty to scientific truth. Unfortunately the reaction, like so many produced in the haste of political controversy, has oversimplified and overcorrected for the problem. One common assumption within the resistance is that existing systems for regulating scientific […]

Product-Defining Speech

The state of Florida requires all milk sold in the state to contain Vitamin A. Thus, skim milk products, which have most of the naturally-occurring Vitamin A skimmed off with the cream, has to be fortified with added Vitamin A in order to meet Florida’s standards. This was a problem for the Ocheesee Creamery, which […]

Blog Post Series: Products and the First Amendment

For the last two years, I have been researching and writing about information law in the service of product health and safety regulations. This includes advertising restrictions, mandated disclosure rules, and research regulations. I have not had the chance to pull my various projects together until now. Over the next five days, I will summarize […]

Information Libertarianism

Jane and I have a new article coming out in volume 105 of California Law Review, titled Information Libertarianism. Here’s the abstract: Recent First Amendment precedent is widely attacked as unprincipled: a deregulatory judicial agenda disguised as free speech protection. The scholarly consensus is mistaken. Descriptively, free speech protections scrutinize only information regulation, usefully pushing […]

Big Pharma: the New Hustler

That’s the provocative thesis of Jane’s post over at Balkinization for the conference Public Health in the Shadow of the First Amendment. Worth a read! And here’s her second post.

Smoke If You Got ‘Em

I’m here in rainy, lovely Eugene, Oregon watching the Oregon Law Review symposium, A Step Forward: Creating a Just Drug Policy for the United States. (You can watch it live.) Jane is presenting her paper Defending the Dog – here’s the conclusion: The narcotics dog doesn’t deserve the bad reputation it has received among scholars. The […]

Startups and Healthcare

My friend and former Lotus manager Joe Perry has ventured into the blogosphere, with a post about startup companies, healthcare, and the Boston area – all three things of interest to me. I’m looking forward to finding out more about using mobile tech to combat counterfeit drugs…

Parsing the Commerce Clause

NFIB v. Sebelius, the 2012 Supreme Court decision rejecting nearly all of the constitutional challenges to the Affordable Care Act, has (at least) two bits of interest to infolaw folks. First, the majority opinion finds that the ACA‘s individual mandate cannot be sustained under the Commerce Clause. Congress regulates all manner of infolaw issues under […]

Death by HIPAA

Vioxx, the non-steroidal anti-inflammatory drug once prescribed for arthritis, was on the market for over five years before it was withdrawn from the market in 2004. Though a group of small-scale studies had found a correlation between Vioxx and increased risk of heart attack, the FDA did not have convincing evidence until it completed its […]

Information Is Not Beef Jerky

(Guest post by Jane Yakowitz, Visiting Assistant Professor at Brooklyn Law School. Jane wrote an amicus brief in IMS v. Sorrell, on behalf of IMS.) Earlier today, the Supreme Court issued an opinion in Sorrell v. IMS Health that is likely to incense a lot of people that were familiar with the suit as a […]