Emory Law Journal

Volume 60Issue 3

The Experiential Future of the Law

Adam J. Kolber | 60 Emory L.J. 585 (2010)

Pain, suffering, anxiety, and other experiences are fundamentally important to civil and criminal law. Despite their importance, we have limited ability to measure experiences, even though legal proceedings turn on such measurements every day. Fortunately, technological advances in neuroscience are improving our ability to measure experiences and will do so more dramatically in what I call “the experiential future.” In this Article, I describe how new technologies will improve our assessments of physical pain, emotional distress, and a variety of psychiatric disorders. I argue that as new technologies emerge to better reveal people’s experiences, virtually every area of the law should do more to take these experiences into account.

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Biased Advice

Christopher Tarver Robertston | 60 Emory L.J. 653 (2010)

The modern capitalist society, characterized by decentralized decision making and increasingly sophisticated products and services, turns on relationships of epistemic reliance, where laypersons depend upon advisors to guide their most important decisions. Yet many of those advisors lack real expertise and many are biased by conflicting interests. In such situations, laypersons are likely to make suboptimal decisions that sometimes aggregate into systematic failures, from soaring health care costs to market crashes. In the end, the presence of an unbiased advisor is the strongest determinant of layperson performance, and thus policymakers must develop ways of aligning the interests of advisors and laypersons. Pay-for-performance, blinding of experts, and mandatory or subsidized second-opinion policies are likely to be helpful in aligning these interests.

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Smoking Out Big Tobacco: Can the Family Smoking Prevention and Tobacco Control Act Equip the FDA to Regulate Tobacco Without Infringing on the First Amendment?

Matt Shechtman | 60 Emory L.J. 705 (2010)

Tobacco use is one of the most catastrophic public health issues facing the world today. The recently passed Family Smoking Prevention and Tobacco Control Act (FSPTCA) gives the United States Food and Drug Administration (FDA) unprecedented power to regulate tobacco products. These provisions, however, may unconstitutionally infringe on First Amendment commercial speech under the judicially crafted commercial speech doctrine governed by Central Hudson Gas & Electric Corp. v. Public Service Commission. Indeed, after the FSPTCA’s passage, several tobacco companies filed suit, arguing that these advertising restrictions violate the First Amendment. If these provisions are not modified to fall within the constitutional confines of Central Hudson, the FSPTCA will be nothing more than an impotent piece of legislation, leaving an overworked FDA to pick up the pieces.

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The Doctrine of Equivalents: Fairness and Uncertainty in an Era of Biologic Pharmaceuticals

D. Alan White | 60 Emory L.J. 751 (2010)

Research in the rapidly developing area of biologic pharmaceuticals promises to improve the lives of millions of patients suffering from disorders that were, until very recently, untreatable. The staggering potential market for such treatments has attracted enormous investment from the pharmaceutical industry, with a concomitant increase in related patent disputes. This investment, coupled with proposed legislation that would pave the way for the creation of “follow-on” biologic treatments via a statutory pathway similar to the one created for generic pharmaceuticals by the Hatch–Waxman legislation of the early 1980s, should ensure that the number of patent disputes involving biologic pharmaceuticals will continue to rise dramatically in the coming years.

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