Deconstitutionalism

'Decolonial Constitutionalism' by Richard Albert comments 

The American Declaration of Independence kindled the first successful decolonial movement in the modern world, culminating in the enactment of the United States Constitution. From colony to sovereign state to Great Power, the United States modeled for subordinated peoples abroad how to launch and win their own battles for sovereignty. Since the end of the Second World War, however, America’s eighteenth-century precedent of revolutionary self-determination is no longer the prevailing path to decolonization. The traditional warmaking toolkit for winning independence—revolution, illegality, and violence—has been replaced by more orderly tactics consonant with the rule of law. Evolution, lawfulness, and continuity are the touchstones in the new global model of decolonial constitutionalism that now lights the path to self-determination. 

Decolonial constitutionalism is the use of legal, legitimate, and non-violent means to assert sovereignty, to secure rights, or to achieve recognition for a people, nation, or state that is legally or politically subordinate to domestic or foreign actors. In contrast to the American model of revolutionary self-determination, this new global model of decolonial constitutionalism has pluralized actors and sites of contestation, though the decisive objective of decolonization remains the same. Once won in the theatre of war, decolonization is now prosecuted in parliaments, courts of law, and the public square. The protagonists are no longer soldiers and generals; they are politicians, lawyers, judges, and civil society. Nor does self-determination today necessarily entail establishing a new state in the international order and taking a seat among equals alongside the countries of the world. In our new era of non-violent claims to sovereignty, decolonial movements choose instead to write new constitutions for existing states, to amend enduring constitutions, to enforce treaty rights, to promulgate multilateral agreements, or to pursue analogous courses of disruptive constitutional activity well short of declarations of independence. Decolonial constitutionalism therefore refers to a suite of strategies to exercise self-determination, defined expansively to comprise a broad scope of decolonial objectives consistent with the rule of law. 

In this Article, I introduce, illustrate, and theorize decolonial constitutionalism as the modern form of self-determination. Drawing from historical and modern decolonial movements, I show how subordinated peoples have seized the levers of law and politics to innovate new paths to self-determination without taking up arms, in the process showing similarly situated peoples how to achieve their own goals of independence, nationhood, or constitution-making in a manner that reinforces rather than undermines the rule of law. These strategies have proven ultimately more productive for decolonial movements to free their peoples from bondage in law or politics, to attract ideologically aligned partners at home and abroad, and to more effectively communicate to internal and external audiences the moral legitimacy of their claims to self-determination.

Secrets and semiconductors

'Bordering Secrecy: An Empirical Study on Cross-Border Trade Secret Misappropriation in the Semiconductor Sector' by Tzu-I Lee in (2024) 39(2) Connecticut Journal of International Law 166-237 comments 

Nation-states take steps to prevent the theft of domestic entities’ trade secrets and other intellectual property (“IP”). The United States has issued complaints, passed laws, and implemented initiatives and sanctions targeting China’s unfair and illegal economic practices, which include trade-secret theft. Although China has responded by amending its civil, criminal, and administrative trade-secret regime, foreign companies still routinely struggle with thefts connected to China. The semiconductor industry– essential to daily-life, commercial, and military needs–is one of the most brutal battlegrounds of today’s IP and tech wars. A leader in the industry is the Taiwanese semiconductor sector, which, along with the Taiwanese government and like-minded democracies, must confront a particularly complex set of economic, security, and geopolitical challenges from China. Currently, poor grasp of cross-border trade secret thefts has greatly weakened sincere efforts to deal with the grave threat posed by China. In this Article, I cross-analyze empirical quantitative and qualitative data regarding U.S. and Taiwanese semiconductor trade-secret litigation to better understand the dynamics of Chinese trade-secret theft. I propose that individuals, companies, governments, and international organizations should respond to trade-secret threats by restoring trust within a geopolitical economic framework, rather than by pursuing purely legalistic IP approaches.

US Pharma Prices

'International Prescription Drug Price Comparisons: Estimates Using 2022 Data' (RAND Research & Commentary Research Reports 2024) by Andrew W Mulcahy, Daniel Schwam and Susan L Lovejoy comments 

 Understanding the extent to which prescription drug prices are higher in the United States than in other countries—after accounting for differences in the volume and mix of drugs—is useful when developing and targeting policies to address both growth in drug spending and the financial impact of prescription drugs on consumers. This report summarizes findings from comparisons of drug prices in the United States and other high-income countries based on 2022 data and presents results for specific types of drugs, including brand-name originator drugs and unbranded generic drugs, and from sensitivity analyses. 

Except for unbranded generics, manufacturer gross drug prices in the United States were substantially higher than those in other countries. Across all drugs, U.S. prices were 278 percent of other countries’ prices. 

U.S. gross prices for brand-name originator drugs were 422 percent of prices in comparison countries. 

After applying an adjustment for rebates paid by manufacturers, U.S. net prices for brand-name originator drugs were relatively lower but still over three times as high as prices in other countries. 

The United States had lower prices for unbranded generics than most countries. Unbranded generics accounted for 90 percent of U.S. prescription drug volume—a much larger share than the 41 percent for the comparison countries—but only 8 percent of U.S. prescription drug spending at manufacturer gross prices (compared with 13 percent in other countries). 

In contrast, brand-name originator drugs accounted for only 7 percent of U.S. prescription drug volume and 87 percent of U.S. prescription drug spending (compared with 29 percent of volume and 74 percent of spending in other countries). 

Overall, the United States' considerable unbranded generic market share and low average unbranded generic prices did not fully offset higher brand-name originator prices. ...

Understanding the extent to which prescription drug prices are higher in the United States than in other countries—after accounting for differences in the volume and mix of drugs—is useful when developing and targeting policies to address both growth in drug spending and the financial impact of prescription drugs on consumers. 

A prior RAND analysis compared 2018 manufacturer gross drug prices in the United States with those in 32 Organisation for Economic Co-operation and Development (OECD) countries using a price index approach. The earlier analysis reported results for all drugs combined, for specific categories of drugs, and under different methodological approaches. This report updates the main results from this earlier report using more recent data through 2022. It also includes new analyses focusing on price comparisons for biosimilars and changes in price comparison results over time. 

In brief, when analyzing data for all prescription drugs available in the United States and comparison countries, we found that U.S. manufacturer gross prices for drugs in 2022 were 278 percent of prices in the 33 OECD comparison countries combined. Put another way, prices in other countries were 36 percent—or a little more than one-third—of those in the United States. 

These results stem from the combination of starkly different price comparison findings for brand-name versus generic drugs: U.S. prices for brand-name originator drugs were 422 percent of prices in comparison countries, while U.S. unbranded generics, which we found account for 90 percent of U.S. prescription volume, were on average cheaper at 67 percent of prices in comparison countries, where on average only 41 percent of prescription volume is for unbranded generics. U.S. prices for brand-name drugs remained 308 percent of prices in other countries even after adjustments to account for rebates paid by drug companies to U.S. payers and their pharmacy benefit managers. 

These high-level findings from the current report are consistent with results from the prior analysis using 2018 data. Overall, the gap between U.S. and other countries’ prices widened slightly between the two analyses because of faster growth in U.S. prices, a change in U.S. drug mix, a change in the overlap of drugs sold in both the United States and other countries, or a combination of factors.

Ethics

“Just teach them the law!”: the ethics of value inculcation within legal education' by Alex Green in (2023) 57(3) The Law Teacher comments 

 To what extent should law teachers be permitted to advance controversial ethical, moral or political views as part of the LLB curriculum? This short paper grapples with that question by defending the ethical permissibility of such behaviour subject to the important proviso that it does not cause students “pedagogical harm”. In reaching this conclusion, three alternative views are considered and dismissed, each of which seeks either to eliminate value inculcation entirely or to restrict its scope to the moral-political values currently immanent within established law. The approach taken is argumentative, drawing upon analytical philosophy, with each contested and contestable view being presented in propositional form. Ultimately, it is concluded that value inculcation cannot be avoided within legal education and that, given this fact, the question becomes which values law teachers have a responsibility to advance. It is contended that this judgement, fraught though it might be for various reasons, is best left to individual teachers and that, for this reason among others, a permissive “no-harm” approach to value inculcation best justifies current pedagogical practices.

Birds and unconscionability

Edelman J in Productivity Partners Pty Ltd v Australian Competition & Consumer Commission; Wills v Australian Competition & Consumer Commission [2024] HCA 27 comments 

 The difficulty with the application of the values of Australian common law and statute is that they apply at such a high level of generality, and can point in so many different directions, that the concept of unconscionability has been said to be no more useful than the category of "small brown bird" to an ornithologist. In one recent case, three members of this Court considered conduct to be unconscionable where it involved a system of exploitation of illiterate and innumerate Aboriginal customers involving sales on credit at up to three times market value, without any proper accounting, with requirements of tied purchasing and the surrender of the customer's bank card and personal identification number. But four members of this Court considered that this exploitation of vulnerable persons from another culture took on a different perspective of conscience because, among other things, it was said that the conduct: was "appropriate" according to other cultures and values; was "a convenient way of managing money"; "suited the interests" of those vulnerable persons "and their families having regard to their own preferences and distinctive cultural practices"; and took place in a remote Aboriginal community where onerous terms were more "acceptable".

Section 22 of the Australian Consumer Law does not codify the values of Australian statute and common law, nor does it resolve such difficulties in application. Rather, it articulates a list of wide-ranging matters to consider when applying these values, including: the terms and conditions of the supply (ss 22(1)(b), 22(1)(e), 22(1)(j), 22(1)(k)); discrimination, undue influence, pressure, unfair tactics and the extent of good faith towards customers by the supplier (ss 22(1)(d), 22(1)(f), 22(1)(l)); conduct of the parties in connection with their relationship, difference in bargaining power and ability to negotiate (ss 22(1)(a), 22(1)(j)); the contents of any industry code (ss 22(1)(g), 22(1)(h)); and the ability of a customer to understand documents and the extent of any unreasonable failure of the supplier to disclose (ss 22(1)(c), 22(1)(i)). 

In applying the relevant values of Australian common law and statute, all matters and circumstances enunciated in s 22 that are potentially relevant must be considered. So too must any other circumstance that potentially bears upon standards of trade and commerce be considered. Otherwise, the assessment of conscience will have proceeded by reference only to a subset of the relevant values. However, contrary to the submissions of the College, the need for all relevant matters to be considered does not require an assumption that all matters weigh in favour of a supplier unless shown otherwise.

Academia

‘People look at you like you’re mad if you say good things about academia’: Collective Negativity, Anti-neoliberalism, and Hostility to Institutions in UK Higher Education – The Dark Side of Solidarity?' by Jessica Wren Butler in (2024) 6(2) Philosophy and Theory in Higher Education 257-280 comments 

Contemporary UK academia is riven with discontent: academics perform dissatisfaction on picket lines1 and social media, and higher education (HE) researchers internationally critique the so-called “neoliberal” university in which staff are over-worked, under-paid, over-managed, and under- valued.  Record numbers report a desire to leave the sector, and, curiously for a profession often characterised by ideals of independence and freedom,  academics position themselves as disempowered, ‘besieged’, and ‘under attack’. 

While critics of modern academia point to a ‘competition fetish’instilled by recent developments in HE policy and argue that compared to a collegiate past the present climate of universities is one of ruthless individualism, this perception of atomisation sits uncomfortably alongside the collective eschewal of neoliberal and managerialist ideologies. If there is space for solidarity in academia, its common ground appears to be dissatisfaction, negativity, and vocal disavowal of contemporary trends. 

This article considers the implications of such complaint, arguing that belief in the toxicity of neoliberal academia and a corresponding romanticised investment in a ‘golden age’ of HE have become required thinking for those wishing to be ‘part of the club’ (Participant 18).Drawing on interviews with academic staff in English higher education institutions (HEIs) in 2018 I demonstrate the ubiquity of a particular version of “critical thinking” as an idealised academic trait and suggest that, regardless of the legitimacy of the criticism, the need to visibly communicate disavowal of “the neoliberal academy”, particularly through hostility towards institutions and those who play managerial roles within them, risks perpetuating a joyless and exclusionary environment.  While I do not wish to deny or defend many aspects of con- temporary academia, I do seek to complexify the conventional groupthink around this topic and suggest that the logical extension of certain arguments against supposedly “neoliberal” moves take us not towards a utopian future but a regressive past. 

I begin with a brief description of the underpinning research before mov- ing to consider neoliberalism as a concept, evaluating its meaning and utility as context for my argument that academics’ anti-neoliberal critiques of HE may not be as productive as intended. I then briefly summarise what is meant by “the neoliberal university” in order to clarify the types of policies, processes, and practices deemed problematic. Finally, I suggest that valorisation of critical thinking results in a collective thought pattern around contemporary UK HE – namely that university management, as a metonym for the institution (and the wider construct of “the neoliberal university”), are suspect. I conclude that the prevalence of this belief and its normative status, especially when epitomised through group action such as union strikes, may promote solidarity between (some) academics, but at a cost. Every collective act also contains tensions, contradictions, and exclusions, which may go unexamined when the prevailing ideology is believed to be underpinned by the progressive and socially liberal ideals many participants saw as emblematic of academics’ politics.

CryoRisks

'Life-Suspending Technologies, Cryonics, and Catastrophic Risks' by Andrea Sauchelli in (2024) 30 Science and Engineering Ethics comments

 This paper explores one way of empowering future generations by giving them causal efficacy over at least some members of their previous generations. Such an empowering, I argue, would be beneficial, as it contributes to diminishing a catastrophic and existential risk factor, namely the expressions of insufficient concern that some present influential individuals and institutions demonstrate towards the welfare of future people—a form of what I call ‘generational egoism’. The type of technology analysed in this paper, which would reduce the temporal parochialism of the present generation, can be characterised as a life-suspending or life-extending technology, and cryonics is one of the most well-known examples. 

Although this essay focuses on the risks posed by climate change, I find it useful to deploy the broader concepts of ‘catastrophic’ and ‘existential risk’ to discuss the range of benefits related to cryonics or other relevantly similar life-suspending technologies. The reason is that such technologies may mitigate not only climate change-related risks but also risks of a broader and more heterogeneous category, namely, those risks related to some present individuals’ or collectives’ lack of (sufficient) concern for future people. More specifically, my argument includes the claim that in the case of certain catastrophic and existential risks, a general attitude—a form of generational egoism—is at least a risk factor, where a risk factor is something that causally increases the likelihood of a risk (see final appendix). In the case of an attitude or motivation being a risk factor, I will mean that such an attitude or motivation underlies actions increasing the likelihood of certain risks. However, under specific circumstances, some features of this attitude can become a security factor (i.e., something that causally decreases the likelihood of a risk). Cryonics or other similar life-suspending technology, which can give rise to such circumstances, may thus be considered a security factor for at least certain catastrophic and existential risks or risk factors. If I am right, insofar as we are interested in promoting what is beneficial to humanity, we would have a good (defeasible) reason to invest more widely in developing and making more available such technologies. 

Unfortunately, at least in the academic philosophical literature, the ethical and practical impact of such technologies seems to be severely under-researched. I think that this is unfortunate and that, since life-suspending technologies would be extremely beneficial to humanity, they deserve more discussion. This paper is structured as follows. The first section briefly introduces the notions of catastrophic and existential risks. The second section of the paper clarifies what is meant by ‘cryonics’. The key aspect of cryonics relevant to this paper is that it may allow people existing at a certain time to somehow recommence or restart their lives at a later time, perhaps even significantly later (e.g., at a time significantly distant temporally from when they started the procedure). I wish to emphasise that cryonics (1) is here discussed qua life-suspending or life-extending technology—any other technology with the same functions would play the same theoretical role in this paper—and (2) need not be understood as a technology primarily intended to enable humans to achieve immortality. Even if we could never become immortal or everlasting, we would still have reasons to develop and make life-suspending technologies widely available. The third section outlines the general argument that cryonics is a security factor for a heterogeneous set of catastrophic and existential risks. The fourth section focuses on one of these risks: climate change. In the same section, I articulate in more detail some aspects of the problem of climate change that relate to its intergenerational character and that would be mitigated by the widespread use of cryonics. Some objections are then discussed in the final section.