Volume 71, Number 8 – May 2022

Articles

Qualified Immunity, Sovereign Immunity, and Systemic Reform
Katherine Mims Crocker
PDF

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for government entities— too. Qualified immunity arises from and interacts with sovereign immunity in doctrinal and functional terms. Both rest on concerns about defense-side expenses and federal-court dockets. Both create harm given the impacts of indemnification and the economics of unconstitutional acts. In important ways, the problem with qualified immunity is actually sovereign immunity.

As one possible strategy, this Article recommends incremental yet systemic reform, contending that Congress should remove qualified immunity and allow entity liability at all levels of government for Fourth Amendment excessive-force claims while paving the way for further-reaching changes. Like qualified immunity, sovereign immunity and related protections for government entities fall hardest on populations that suffer a disproportional share of constitutional harm, including communities of color in the context of police violence. Increasing accountability in this area should help provide equal justice under law while showing that peeling away unwarranted defenses should not wreak havoc on individual or government finances, the judicial system, or substantive rights.

Tax’s Digital Labor Dilemma
Amanda Parsons
PDF

Digitalization has reshaped the relationship between companies and their customers and users. Customers and users increasingly serve a dual role. They are not only consumers but also producers, creating data and content. They are a value-creating workforce, functioning as “digital laborers.”

Digital laborers’ value creation highlights that there are two parts to the question of whether multinational companies are paying their “fair share” of taxes—one of amount and one of location. First, are companies’ total tax bills paid across all countries in line with their global income? Second, is taxing authority over multinational companies’ income being divided amongst countries in a coherent and fair way? Digital laborers’ value creation implicates the second. Under the current international tax system, the presence of digital laborers in a country does not grant that country taxing rights over income stemming directly from those digital laborers’ data and content creation. As a result, what are essentially the same activities— individuals creating products and performing services for a company— are taxed differently when they are performed by digital laborers rather than by a traditional workforce. This inconsistency and the accompanying outcome that countries cannot tax corporate income arising from extensive business activities within their borders have contributed to cries that the current system is unfair.

Recent reforms addressing this outcome share a common weakness. They do not recognize the function of digital laborers as producers in the modern economy. As a result, they overturn the theory of source-based taxation as a taxing right granted only to the country of production and introduce major structural changes to the international tax system that apply only to a subset of global companies. These changes are all to correct an unfairness that can be remedied under the system’s current theoretical framework and structure.

This Article rejects the notion that these major theoretical and structural changes are necessary or even appropriate methods to allow digital laborers’ home countries to tax income directly related to their data and content creation. Instead, the international tax system should recognize digital laborers’ role as a new type of workforce for companies and, accordingly, allow their home countries to tax income related to their work under the existing application of the source principle and with more incremental structural reforms. In addition to minimizing disruption in international tax law, this approach reinforces coherence and fairness by taxing equivalent economic activities equivalently.

Civil Rights as Human Rights
H. Timothy Lovelace, Jr.
PDF

During the early 1960s, government officials in the U.S. Department of State grappled with the following quandary: How could the United States shape and lead a racially diverse world while still denying rights to Black Americans domestically? One way the State Department set out to resolve this disconnect was through diplomacy and negotiations at the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which crafted the International Convention on the Elimination of all Forms of Racial Discrimination. Although extensive documentation exists on the exchanges between the Sub-Commission, the State Department, and the U.S. civil rights community, existing literature fails to examine these rich exchanges in sufficient detail. This Article explores how the United States shaped international human rights regimes through the Sub- Commission, and, in turn, how international affairs shaped the U.S. civil rights movement.

One underexplored aspect of the interplay between the U.S. civil rights movement and the international human rights regime is how the State Department interfaced with the Sub-Commission. By exploring the exchanges between the two high-profile civil rights lawyers the State Department sent to negotiate with the Sub-Commission and other actors at the United Nations, this Article highlights the tension between these lawyers’ values and the U.S. diplomatic agenda. This tension in turn magnifies how the U.S. civil rights movement and the international human rights regime shaped one another.

The history of how the U.S. delegation sought to imbue the International Convention on the Elimination of all Forms of Racial Discrimination with U.S. values remains central to this Article’s discussion. And, at the heart of this contribution was the importation of the state action doctrine. Thus, the doctrine that had vexed civil rights activists’ domestic litigation for decades became enshrined in the international human rights regime. This Article explores the role that the state action doctrine played in the reciprocal relationship between the U.S. civil rights movement and the international human rights regime.

Note

How Non-Product-Specific Manufacturing Patents Block Biosimilars
Chorong Song
PDF

A new class of drugs called biologics has potential to finally cure previously untreatable conditions such as cancer and Alzheimer’s disease. But there is a catch: these innovative drugs are expensive. On average, prices range from $10,000 to $30,000 per year, and the most expensive ones exceed $500,000. The Biologics Price Competition and Innovation Act (“BPCIA”) was passed in 2010 to lower prices by providing a new regulatory pathway in approving biosimilars––copies of brand-name biologics. Yet, the BPCIA’s promised regulation of drug prices has not materialized partly due to brand-name companies’ vast patent portfolios, also known as patent thickets. This Note analyzed all BPCIA patents disputed in BPCIA litigations and found that over half of the asserted patents are manufacturing method patents, many of which were filed years after FDA approval. Given the nonproduct- specific nature of these patents and stringent FDA requirements, these inventions are not only unnecessary, but are also unlikely to be practiced when producing brand-name biologics. Regardless of their actual worth, these patents are extremely valuable to brand-name manufacturers because even a patent of marginal improvement can foreclose biosimilar access entirely. This Note proposes that brand-name manufacturers should be required to disclose related patents at the time of the FDA approval and share the FDA license application with biosimilar manufacturers. Further, Congress should eliminate the availability of injunctive remedies for these problematic assertions of patents.

Volume 71, Number 8 – May 2022

Articles

Qualified Immunity, Sovereign Immunity, and Systemic Reform
Katherine Mims Crocker
PDF

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for government entities— too. Qualified immunity arises from and interacts with sovereign immunity in doctrinal and functional terms. Both rest on concerns about defense-side expenses and federal-court dockets. Both create harm given the impacts of indemnification and the economics of unconstitutional acts. In important ways, the problem with qualified immunity is actually sovereign immunity.

As one possible strategy, this Article recommends incremental yet systemic reform, contending that Congress should remove qualified immunity and allow entity liability at all levels of government for Fourth Amendment excessive-force claims while paving the way for further-reaching changes. Like qualified immunity, sovereign immunity and related protections for government entities fall hardest on populations that suffer a disproportional share of constitutional harm, including communities of color in the context of police violence. Increasing accountability in this area should help provide equal justice under law while showing that peeling away unwarranted defenses should not wreak havoc on individual or government finances, the judicial system, or substantive rights.

Tax’s Digital Labor Dilemma
Amanda Parsons
PDF

Digitalization has reshaped the relationship between companies and their customers and users. Customers and users increasingly serve a dual role. They are not only consumers but also producers, creating data and content. They are a value-creating workforce, functioning as “digital laborers.”

Digital laborers’ value creation highlights that there are two parts to the question of whether multinational companies are paying their “fair share” of taxes—one of amount and one of location. First, are companies’ total tax bills paid across all countries in line with their global income? Second, is taxing authority over multinational companies’ income being divided amongst countries in a coherent and fair way? Digital laborers’ value creation implicates the second. Under the current international tax system, the presence of digital laborers in a country does not grant that country taxing rights over income stemming directly from those digital laborers’ data and content creation. As a result, what are essentially the same activities— individuals creating products and performing services for a company— are taxed differently when they are performed by digital laborers rather than by a traditional workforce. This inconsistency and the accompanying outcome that countries cannot tax corporate income arising from extensive business activities within their borders have contributed to cries that the current system is unfair.

Recent reforms addressing this outcome share a common weakness. They do not recognize the function of digital laborers as producers in the modern economy. As a result, they overturn the theory of source-based taxation as a taxing right granted only to the country of production and introduce major structural changes to the international tax system that apply only to a subset of global companies. These changes are all to correct an unfairness that can be remedied under the system’s current theoretical framework and structure.

This Article rejects the notion that these major theoretical and structural changes are necessary or even appropriate methods to allow digital laborers’ home countries to tax income directly related to their data and content creation. Instead, the international tax system should recognize digital laborers’ role as a new type of workforce for companies and, accordingly, allow their home countries to tax income related to their work under the existing application of the source principle and with more incremental structural reforms. In addition to minimizing disruption in international tax law, this approach reinforces coherence and fairness by taxing equivalent economic activities equivalently.

Civil Rights as Human Rights
H. Timothy Lovelace, Jr.
PDF

During the early 1960s, government officials in the U.S. Department of State grappled with the following quandary: How could the United States shape and lead a racially diverse world while still denying rights to Black Americans domestically? One way the State Department set out to resolve this disconnect was through diplomacy and negotiations at the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which crafted the International Convention on the Elimination of all Forms of Racial Discrimination. Although extensive documentation exists on the exchanges between the Sub-Commission, the State Department, and the U.S. civil rights community, existing literature fails to examine these rich exchanges in sufficient detail. This Article explores how the United States shaped international human rights regimes through the Sub- Commission, and, in turn, how international affairs shaped the U.S. civil rights movement.

One underexplored aspect of the interplay between the U.S. civil rights movement and the international human rights regime is how the State Department interfaced with the Sub-Commission. By exploring the exchanges between the two high-profile civil rights lawyers the State Department sent to negotiate with the Sub-Commission and other actors at the United Nations, this Article highlights the tension between these lawyers’ values and the U.S. diplomatic agenda. This tension in turn magnifies how the U.S. civil rights movement and the international human rights regime shaped one another.

The history of how the U.S. delegation sought to imbue the International Convention on the Elimination of all Forms of Racial Discrimination with U.S. values remains central to this Article’s discussion. And, at the heart of this contribution was the importation of the state action doctrine. Thus, the doctrine that had vexed civil rights activists’ domestic litigation for decades became enshrined in the international human rights regime. This Article explores the role that the state action doctrine played in the reciprocal relationship between the U.S. civil rights movement and the international human rights regime.

Note

How Non-Product-Specific Manufacturing Patents Block Biosimilars
Chorong Song
PDF

A new class of drugs called biologics has potential to finally cure previously untreatable conditions such as cancer and Alzheimer’s disease. But there is a catch: these innovative drugs are expensive. On average, prices range from $10,000 to $30,000 per year, and the most expensive ones exceed $500,000. The Biologics Price Competition and Innovation Act (“BPCIA”) was passed in 2010 to lower prices by providing a new regulatory pathway in approving biosimilars––copies of brand-name biologics. Yet, the BPCIA’s promised regulation of drug prices has not materialized partly due to brand-name companies’ vast patent portfolios, also known as patent thickets. This Note analyzed all BPCIA patents disputed in BPCIA litigations and found that over half of the asserted patents are manufacturing method patents, many of which were filed years after FDA approval. Given the nonproduct- specific nature of these patents and stringent FDA requirements, these inventions are not only unnecessary, but are also unlikely to be practiced when producing brand-name biologics. Regardless of their actual worth, these patents are extremely valuable to brand-name manufacturers because even a patent of marginal improvement can foreclose biosimilar access entirely. This Note proposes that brand-name manufacturers should be required to disclose related patents at the time of the FDA approval and share the FDA license application with biosimilar manufacturers. Further, Congress should eliminate the availability of injunctive remedies for these problematic assertions of patents.