Call for Applications: Summer Ethics Fellowships at Auschwitz for the Study of Professional Ethics

The Fellowships at Auschwitz for the Study of Professional Ethics (FASPE) uses a unique historical lens to engage law students in an intensive course of study focused on contemporary legal ethics.  FASPE Fellows are granted an all-expenses paid 12-day trip to Germany and Poland to learn about the roles played by legal practitioners — lawyers and judges — in Nazi Germany, underscoring the reality that moral codes governing the legal profession can break down or be distorted with devastating consequences.  This historical perspective then becomes a launching point for discussions about ethical dilemmas facing lawyers in American today.  The program integrates historical, cultural, philosophical, and literary sources; survivor testimony; and on-site workshops in Berlin, Auschwitz, and Nuremberg.

FASPE Law was initially developed with the assistance of Professor Tony Kronman, former Dean of Yale Law School and other Yale Law School faculty members.  Since piloting the program in 2009, 43 Fellows have participated from law schools including Berkeley, Columbia, Georgetown, Harvard, Northwestern, the University of Arizona and Yale. The summer 2013 program will include 12-15 new Fellows chosen through a national application process.  The lead instructor for the 2013 program will be Eric Muller, the Dan K. Moore Distinguished Professor in Jurisprudence and Ethics at UNC School of Law. The Fellowships include all costs associated with the 12-day program, including international and European travel, lodging, and food.

FASPE Law Fellows examine such topics as:

  • Ethical approaches to truth and disclosure in the adversarial process.
  • The ethical challenges of ambition in professional development.
  • Ethics and government lawyering.
  • The Nuremberg Trials and post-war justice, in historic and modern contexts.
  • Ethics in the day-to-day practice of law.

The Fellows are provided with reading materials prior to meeting in New York; and the academic component of the program is intensive and interactive.  Daily Seminars are led by faculty and local experts who engage the Fellows in legal issues associated with the locations visited.

The tentative program dates for FASPE Law are May 26 – June 6, 2013.

Completed applications must be received by January 11, 2013.  Candidates of all religious, ethnic, and cultural backgrounds are encouraged to apply. To apply or to learn more about FASPE, please visit:  http://www.FASPE.info If you have any questions, please contact Thorin Tritter, Managing Director of FASPE, at ttritter@FASPE.info.

“Overcriminalization” and HIV

By Scott Burris

The concept of “overcriminalization” is gaining traction across the political spectrum.

The Heritage Foundation, which has a website devoted to the phenomenon, defines it as “the trend in America – and particularly in Congress – to use the criminal law to ‘solve’ every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives.”   Others, like Michelle Alexander, drop the Ayn Rand tones and focus on mass incarceration as racialized social control. (My colleagues and I once calculated that African American males can expect to spend on average 3.09 years in prison or jail over their lifetime.) Douglas Husak argues that we need a theory of criminalization to help us get less of it.

One of the best examples of criminal law rushing in where angels fear to tread is the criminalization of HIV exposure. From the start, there was reason to fear that these laws would not reduce HIV transmission, and might exacerbate stigma and social hostility towards people with HIV. There was concern they might be used selectively, or just randomly.

This summer, the UN’s Global Commission on HIV and the Law advised states to repeal or abstain from enacting such laws.  The Commission drew on a set of background papers that reviewed the extent of the phenomenon globally and addressed the argument that these laws are justified by moral values even if they are ineffective.

In this country, the President’s National AIDS Strategy suggested states reconsider these laws, but no laws have been repealed and prosecutions continue.  Fortunately, so does research, and it continues to show that these laws are not promoting public health. This week, the American Journal of Public Health published a new PHLR-funded study by Carol Galletley. This video sums up her findings:

More on Conscience and Civil Disobedience

Over at The Hastings Center’s Bioethics Forum blog, there’s an interesting post from Rosana Triviño addressing the difference between conscientious refusal and civil disobedience, in relation to Spain’s new law limiting care for undocumented immigrants.  This links nicely to some conversation we’ve been having here at Bill of Health as to whether conscientious refusals and actions ought to be thought of similarly and granted similar protections.

One thing I’m puzzling over is the relevance (or not) of institutional support for the conscientious behavior in question.  So in Spain, several medical organizations have encouraged physicians to avoid withdrawing care from undocumented immigrants, and of course in the US and elsewhere, there are many groups that encourage physicians not to perform abortions and other controversial services.  Does institutional involvement make something look more like civil disobedience?  I think the answer is “kind of.”

Ultimately, something is clearly civil disobedience when refusers or actors – 1 or 100 or 1000 – violate the law on the books for conscientious reasons.  But where numbers or institutions can matter is when refusers refuse on grounds of conscience to do something that is legal but not required.  Their refusals are not violating the law, individually or collectively, and there is no technical disobedience.  But when there are enough refusals to do what the law allows, the law may as well say something different.  And particularly when those refusals are coordinated in some way to prevent access to what the law allows, things start to look a lot more like civil disobedience.  So conscientious violation of law seems to be sufficient but not necessary for civil disobedience, which on a broad view could also include efforts to sabotage or impede a law through collective inaction.

What do you think?

Intellectual Property in Investment Agreements: More “Teeth” for Foreign Investors’ IP Rights, Less for Access to Medicines

By Adriana Benedict

Last week, Public Citizen published a Health GAP analysis entitled “Leaked TPP Investment Chapter Presents a Grave Threat to Access to Medicines,” in which Professor Brook Baker explains four ways in which access to medicines is compromised by the USTR’s leaked investment chapter proposal for the Trans-Pacific Partnership Agreement.  The problematic provisions he identifies — inclusion of intellectual property (IP) in the definition of “investment”, ambiguous scope of minimum standards of treatment, inadequate exceptions and limitations for public interest measures, and performance requirement limitations preventing development of local and sustainable production—are not new, but have been included either implicitly or explicitly in countless bilateral investment treaties (BITs) (including the U.S. Model BIT) and the investment chapters of free trade agreements (FTAs) (including virtually all US FTAs and the proposed EU-India FTA).  Such inclusion gives more “teeth” to foreign investors’ IP rights, but what of access to medicines?

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Sunder on Patents and Access to Drugs

By Frank Pasquale

Last week, the blog Concurring Opinions featured a symposium on Madhavi Sunder’s new book, From Goods to a Good Life: Intellectual Property and Global Justice. A chapter relevant to health law scholars is available online, here.  The chapter focuses on access to drugs in less developed countries (LDCs), and makes the following case:

Not too long ago, an HIV-positive diagnosis was tantamount to a death sentence — for people in the East and the West, in the South and the North. The drug companies that perfected the antiretroviral therapies invested princely sums to find these miracle cures. To justify their investment, they rely on the promise of a patent . . . . Thus patents have saved countless lives. But this structure has its limits. Indeed, the evidence is mounting that in crucial ways patents fail to promote the health of people in the developing world, and in some cases in the developed world as well.

The chapter begins by telling the moving story of Thembisa Mkhosana, one of thousands of South Africans who cannot afford the third-line antiretroviral treatments needed to survive AIDS.   “My blood test results have worsened dramatically,” Mkhosana told a reporter, “And now I suddenly have fever and am in pain. I’m really worried.”  “I know that I’m going to die,” she said, but “who is going to look after my children?”  Her story appears in this video.

Mkhosana’s plight raises difficult interpretive issues.  Is she “collateral damage” from a patent system that depends on the strict rules that deny her access to the medicine she needs? Or is this an entirely avoidable tragedy, a consequence of misapplied and misinterpreted laws?  Sunder makes the case for the latter view very convincingly, while providing a compact and accessible account of the development of international patent policy over the past 20 years.

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Greenpeace Out to Sea on GM Rice Issue

[posted on behalf of Art Caplan]

Greenpeace, perhaps best known for its battles at sea to protect whales and the oceans, has gotten itself involved in a huge controversy over genetically modified food.

The group is charging that unsuspecting children were put at risk in a “dangerous” study of genetically engineered rice in rural China. It’s a serious claim, because it is putting research seeking to put more nutrition into food at risk.

Genetically engineered rice has the potential to help solve a big nutritional problem—vitamin A deficiency.  A lack of vitamin A kills 670,000 kids under 5 every year and causes 250,000 to 500,000 to go blind. Half die within a year of losing their sight, according to the World Health Organization. I think Greenpeace is being ethically irresponsible and putting those lives at continued risk.

Read the rest over at NBCNews Vitals.

The Body Snatchers: Human Recycling in The Global Age

By Michele Goodwin

For all the attention by legal scholars, doctors, and politicians to the global organ shortage—and particularly the crisis in the United States, relatively little is said about tissue demand and that supply industry.  Well known are the horrific stories involving black markets specializing in organs like kidneys and livers.  The troubling stories of Indian women, Pakistani men, and Brazilian boys pillaged for parts and left suffering with grotesque scars, owing debts, and in medical need are chronicled by a growing chorus of scholars (see here, here, and here).  Even those of us who support incentives to encourage organ donation strongly oppose human rights abuses paraded as free markets.  What scholars continually overlook, however, are the surreptitious, global tissue trades that effect more people and have the potential to cause greater harm, such as diseased tissues, bones, and other body parts entering the stream of US commerce and transplantation.

Several years ago, I presaged some of these problems and wrote about these issues; one of the articles can be found here.  More recently, an international consortium of journalist have come on board with an eye-opening special report, revealing black markets in Europe for human tissues and bones.  Their story begins in the Ukraine, where earlier this year security guards discovered body parts and skin stuffed into coolers, and envelopes filled with cash–transported on a “grimy white minibus.”  Authorities stumbled onto this body part heist thinking that a mass-murder had been uncovered. To their surprise, the bus and its contents were headed off to Germany before shipment of the parcels to Korea, the US and other countries.

On its own, tissue transplantation makes as much sense as organ transplantation, because they help to improve patients’ quality of life and in some instances may be vital to saving lives, such as heart valve transplants.  The problem is that the dark-side of this industry operates nefariously.  Sometimes this includes pillaging parts from cadavers dead from communicable diseases such as HIV and hepatitis or acquiring tissues through illegal means, or mislabeling parts—claiming that body parts are from Germany, when in fact they are from developing countries.  Often companies that trade on stock exchanges are linked to the darker side.  For example, investigators discovered that a US business, RTI, located in Florida is linked to the Ukraine discovery.  As Dr. Martin Zizi remarked to reporters, “once a [body part] is in the European Union, it can be shipped to the U.S. with few questions asked…They assume you’ve done the quality check, [but] we are more careful with fruit and vegetables than with body parts.”

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Is the USTR Trading Away Doctors’ Rights to Freely Perform Medical Procedures?

By Adriana Lee Benedict 

The 14th round of negotiations for the Trans-Pacific Partnership Agreement (TPPA, a multilateral trade agreement currently being negotiated by the USTR and 10 other countries) is currently underway in Leesburg, VA.  Last month, KEI posted a brief video blog about an interesting provision (Article 8.2) of the TTPA’s leaked draft IP chapter calling for patentability of diagnostic, therapeutic and surgical methods.  Critically, KEI pointed out that current US law (35 U.S.C. 287(c))—which was amended after widespread concern from physicians’ associations regarding the adverse public health effects of medical method patent liability were brought to light with Pallin v. Singer, 36 U.S.P.Q.2d (BNA) 1050 (D. Vt. 1995)—immunizes medical practitioners from patent infringement suits concerning medical methods, although the draft TPPA provision makes no such exception.  The proposed provision is also contrary to Article 27(3) of TRIPS and Article 1709(3)(a) of NAFTA, all of which allow countries to exclude such medical methods from patentability, as well as Rule 39.1 of the 1970 PCT, which exempts International Searching Authorities from having to conduct patent searches relating to medical methods.

Medical professional societies, including the WMA, AMA, AAOS, ACOG and ASRC, have also opposed medical procedure patents on ethical grounds.  The WMA has explained that patents are not necessary to incentivize innovation in medical procedures: “Unlike device development, which requires investment in engineers, production processes, and factories, development of medical procedures consists of physicians attaining and perfecting manual and intellectual skills… physicians already have both obligations to engage in these professional activities as well as rewards for doing so.”  The WMA has also noted a number of adverse effects on access to medical care resulting from medical procedure patents, including higher costs, fewer physicians available and/or willing to perform patented procedure, and less innovation in medical procedures.

So what does this mean for the TPPA negotiating parties? Read More