The Commercial Speech Doctrine in Health Regulation: The Clash between the Public Interest in a Robust First Amendment and the Public Interest in Effective Protection from Harm

2011 ◽  
Vol 37 (2-3) ◽  
pp. 299-314 ◽  
Author(s):  
David Orentlicher
Keyword(s):  
Public Interest ◽  
Pharmaceutical Companies ◽  
Bodily Integrity ◽  
Effective Protection ◽  
The Public ◽  
Commercial Speech ◽  
Court Of Appeals ◽  
The Supreme Court ◽  
Constitutional Right ◽  
Right Of Access

Historically, government has been given more leeway when invoking its interests in safeguarding the public health than when asserting other state interests. Thus, for example, when considering a constitutional challenge to mandatory smallpox immunization in Jacobson v. Massachusetts, the Supreme Court employed its highly deferential, rational basis review rather than the stricter level of scrutiny that it normally employs when individuals assert interests in bodily integrity. Similarly, Congress and the Food and Drug Administration (FDA) have imposed greater restrictions on the speech of pharmaceutical companies than have been considered acceptable for speech in other commercial settings.In recent years, however, it appears that a trend is developing toward applying the same level of constitutional scrutiny to health regulation. In Abigail Alliance, a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit overrode FDA regulations to recognize a constitutional right of access for patients to experimental chemotherapy.

scholarly journals The Needs of the Many and the Needs of the Few: A New System of Public Interest Intervention for New Zealand

2005 ◽  
Vol 36 (1) ◽  
pp. 71
Author(s):  
Edward Clark
Keyword(s):  
New Zealand ◽  
Public Interest ◽  
Comprehensive System ◽  
Supreme Court Of Canada ◽  
The Public ◽  
Adversarial System ◽  
The Supreme Court ◽  
Judicial Lawmaking ◽  
The Many ◽  
New System

The traditional adversarial system sees the courts as simply a means of resolving disputes between private parties. The dispute is thus no one else’s concern but the parties’. This view of the courts’ role, however, fails to take into account judicial lawmaking. If a person is affected by an act of lawmaking, it is only just that they should have a chance to be heard. Further, before they make a decision the courts should understand the perspectives of those who will be affected by the rule laiddown.This article argues that allowing affected nonparties to make submissions as public interest intervenors will assist both the affected persons and the courts. In order to balance the interests of the parties, the intervenors, and the public at large effectively, a comprehensive system of rules that both welcome and regulate public interest intervention is needed. This article recommends the adoption of such a system of rules, substantially based on the effective and well established rules on intervention contained in the Rules of the Supreme Court of Canada.

Democratic Justice

Free Justice ◽  
2020 ◽  
pp. 86-116
Author(s):  
Sara Mayeux
Keyword(s):  
New York ◽  
Public Defender ◽  
Way Of Life ◽  
Defense Attorneys ◽  
The Public ◽  
Criminal Defense ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Individual ◽  
The Cold War

In contrast to earlier periods when elite lawyers expressed skepticism of the public defender, this chapter describes the Cold War moment when elite lawyers, like the New York lawyer Harrison Tweed, celebrated the public defender as central to the “American way of life.” By the 1950s, lawyers and political leaders touted the rights that U.S. Constitution afforded to criminal defendants as hallmarks of democracy. These rights were thought to exemplify democratic regard for the individual, in contrast to the state-dominated show trials that symbolized totalitarianism. Within this context, criminal defense attorneys were rhetorically celebrated and the public defender was reframed from a harbinger of socialism into an anticommunist figure. In 1963, the Supreme Court issued its landmark decision in Gideon v. Wainwright, further enshrining the constitutional right to counsel. Gideon held that the Sixth Amendment requires states to provide counsel to indigent defendants in all serious felony trials. The decision was celebrated and chronicled in the widely read book by journalist Anthony Lewis, Gideon’s Trumpet, and the Ford Foundation announced ambitious plans for a nationwide initiative to expand public defender offices.

Information Is Power

2021 ◽  
pp. 230-245
Author(s):  
Mary-Rose Papandrea
Keyword(s):  
National Security ◽  
First Amendment ◽  
Third Parties ◽  
Government Information ◽  
The Public ◽  
The Press ◽  
Security Information ◽  
Constitutional Right ◽  
Government Secrecy ◽  
Right Of Access

Balancing the equally important but sometimes conflicting priorities of government transparency for public accountability versus government secrecy for national security seems intractable. One possibility is to recognize a constitutional right of access to government information. This would support democratic self-governance, allow the public to engage in meaningful oversight, and provide access to necessary information without the game of leaks. It could radically refocus arguments regarding the rights of government employees to reveal national security information and of third parties to publish it. Recognizing this right faces an uphill battle against decades of First Amendment jurisprudence. It also faces innumerable logistical and practical obstacles. It would not eliminate the need to determine when the public, the press, and government insiders can disclose national security information. Nevertheless, the ongoing collapse of press access norms and government’s increasing desire to operate outside public view may warrant dramatically rethinking First Amendment scope and protections.

14. Protecting the public interest

Contract Law ◽  
2017 ◽  
Author(s):  
TT Arvind
Keyword(s):  
Public Interest ◽  
Supreme Court Decision ◽  
Contract Law ◽  
Rule Based ◽  
The Public ◽  
The Supreme Court ◽  
Good Government ◽  
Illegal Acts ◽  
Rule Based Approach ◽  
Restraint Of Trade

This chapter examines how English law deals with contracts against the public interest under the doctrine of illegality. The doctrine of illegality reflects a broader principle that applies across private law, that legal actions cannot be founded on illegal acts. In contract law, its implication is that contracts contrary to law or public policy are void. The chapter first considers the problem of illegal behaviour in contracting before discussing the rule-based approach to illegality and its limits. It then reviews the Supreme Court decision in Patel v Mirza and how it gave rise to the ‘range of factors’ approach to illegality. It also looks at criteria that make a contract illegal, including cases where the illegality consisted of criminal and civil wrongs. The chapter concludes with an overview of other types of illegality, such as the ‘injurious to good government’ ground and restraint of trade.

14. Protecting the public interest

Contract Law ◽  
2019 ◽  
pp. 404-426
Author(s):  
TT Arvind
Keyword(s):  
Public Interest ◽  
Supreme Court Decision ◽  
Contract Law ◽  
Rule Based ◽  
The Public ◽  
The Supreme Court ◽  
Good Government ◽  
Illegal Acts ◽  
Rule Based Approach ◽  
Restraint Of Trade

This chapter examines how English law deals with contracts against the public interest under the doctrine of illegality. The doctrine of illegality reflects a broader principle that applies across private law, that legal actions cannot be founded on illegal acts. In contract law, its implication is that contracts contrary to law or public policy are void. The chapter first considers the problem of illegal behaviour in contracting before discussing the rule-based approach to illegality and its limits. It then reviews the Supreme Court decision in Patel v Mirza and how it gave rise to the ‘range of factors’ approach to illegality. It also looks at criteria that make a contract illegal, including cases where the illegality consisted of criminal and civil wrongs. The chapter concludes with an overview of other types of illegality, such as the ‘injurious to good government’ ground and restraint of trade.

scholarly journals Objection de conscience et aide médicale à mourir : une étude qualitative auprès de médecins québécois

2019 ◽  
Vol 2 (2) ◽  
pp. 110-134
Author(s):  
Isabelle Dumont ◽  
Jocelyn Maclure
Keyword(s):  
Medical Assistance ◽  
The Public ◽  
Medical Assistance In Dying ◽  
Incurable Illness ◽  
Future Selves ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Public Sphere ◽  
Aide Médicale À Mourir ◽  
To Receive

Patients in Quebec can legally obtain medical assistance in dying (MAID) if they are able to give informed consent, have a serious and incurable illness, are at the end of their lives and are in a situation of unbearable suffering. Since the Supreme Court of Canada’s 2015 Carter decision, access to MAID, under certain conditions, has become a constitutional right. Quebec physicians are now likely to receive requests for MAID from their patients. The Quebec and Canadian laws recognize a physician’s right to conscientious objection, but this right is contested both in the medical ethics literature and in the public sphere. This paper presents the results of a qualitative study conducted with twenty Quebec physicians who did not integrate MAID into their medical practice, either because they were opposed to or deeply ambivalent about MAID. The interviews aimed to explore the reasons – religious and secular – for opposition to or ambivalence towards MAID. The secular reasons given by participants were grouped into four main categories: 1) the ends of medicine and professional identity, 2) the philosophy of palliative medicine and resource allocation in palliative care, 3) benevolent paternalism, the “good death”, and the interests of future selves, 4) the risk of a slippery slope and the protection of vulnerable people.

scholarly journals The Legal Framework and Barriers to Access to Environmental Information in Ethiopia

2021 ◽  
Vol 15 (1) ◽  
pp. 139-172
Author(s):  
Abdulkader Mohammed Yusuf
Keyword(s):  
Legal Framework ◽  
Vital Role ◽  
Environmental Information ◽  
Access To Information ◽  
Multilateral Environmental Agreements ◽  
The Public ◽  
Barriers To Access ◽  
Constitutional Right ◽  
The Right ◽  
Right Of Access

Information plays a vital role, both in terms of its importance for a democratic order and as a prerequisite for public participation. Many countries have made provisions for access to information in their respective constitutions. The FDRE Constitution explicitly provides that everyone has the right to seek and receive information. The Freedom of Mass Media and Access to Information Proclamation –which entered into force in 2008– gives effect to this Constitutional guarantee. Moreover, the number of laws on different environmental issues is on the rise, and the same could be said of the multilateral environmental agreements that Ethiopia has ratified. Many of the laws incorporate the right of the public to access environmental information held by public bodies. Despite the existing legal framework, there are still notable barriers to access to environmental information. By analyzing the relevant laws, the aim of this article is to contribute to the dialogue on the constitutional right of access to information with particular emphasis on the legal framework on, and the barriers to, access to environmental information within the meaning of Principle 10 of the Rio Declaration.

scholarly journals Constitutionalizing Access

2021 ◽  
Vol 3 (1) ◽  
pp. 1-17
Author(s):  
Jessica Terkovich ◽  
Aryeh Frank
Keyword(s):  
Case Law ◽  
State Constitutions ◽  
The Supreme Court ◽  
Explicit Recognition ◽  
Constitutional Right ◽  
The Government ◽  
Right To Information ◽  
The Right ◽  
Right Of Access ◽  
The U.S

State constitutions receive relatively little academic attention, yet they are the source of significant substantive rights—and, when compared to the U.S. Constitution, they are relatively easily amended to comport with contemporary needs and values. Unlike the constitutions of dozens of other nations, the U.S. Constitution contains no explicit recognition of a right to information from the government, and the Supreme Court has declined to infer that such a right exists, apart from narrow exceptions. Conversely, seven states expressly memorialize the public’s right of access to government meetings and records in their constitutions. In this paper, the authors examine case law applying the constitutional right of access, concluding that the right is somewhat underutilized and rarely seems to produce an outcome clearly different from what a litigant could expect relying on state statutory rights alone. 

scholarly journals Eliminating a Barrier to Access: Waiving or Reducing Fees for Public Records in Florida

2021 ◽  
Vol 3 (3) ◽  
pp. 14-22
Author(s):  
Virginia Hamrick
Keyword(s):  
Public Interest ◽  
Financial Resources ◽  
State Agencies ◽  
Minimal Effect ◽  
Public Records ◽  
The Public ◽  
Special Service ◽  
Right Of Access ◽  
Affect State ◽  
Made In

Florida, the Sunshine State, is one of the few states that includes a right of access to public records in its constitution. While Florida guarantees a right of access to every person, special service charges and high costs for public records restrict access to only requestors with the financial resources to pay for requests. Some agencies assert that waiving fees for requests that have a public interest would be significantly costly. This article builds on research showing that a fee waiver for requests made in the public interest would have minimal effect on Florida municipalities. This article analyzes agency public records logs to assess how a fee waiver for requests made for noncommercial purposes and in the public interest would affect state agencies. This article finds that only 14% of requests reviewed would be entitled to a fee waiver.

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