Wednesday, July 14, 2010

Spain: In a landmark asbestos ruling, court awards damages to victims of environmental exposure

A Spanish court has for the first time ordered a firm to pay millions of euros in compensation to residents whose health was harmed by exposure to asbestos from one of its factories. These cases are known as cases of "environmental exposure." Previously, Spanish courts had awarded damages only to victims who had been exposed to asbestos in the course of their employment ("professional exposure cases.") The 45 victims had for decades lived near a cement factory owned by Uralita in a Barcelona suburb.

More from El Pais.

Here is the text of the opinion.

Wednesday, May 26, 2010

Spanish prosecutor Baltasar Garzón suspended

Prosecutor Baltasar Garzón hits the headlines once again. Famous for prosecuting Mr. Pinochet in the late 1990s, Garzón investigated a series of complaints relating to more than 100,000 cases of enforced disappearances that are alleged to have occurred during the Spanish civil war and the regime of General Francisco Franco. The case is now ripe for trial.

Yet, this trial is not welcomed by some Spaniards. Spain’s General Council of the Judiciary suspended Garzón earlier this month based on the charge that Garzón acted “knowingly exceeding his jurisdiction.” The claim of lack of jurisdiction is based on the argument that these crimes are not longer subject to prosecution after Spain enacted an amnesty law right after General Franco’s death. Furthermore, the statute of limitations has allegedly passed as well.

This law is certainly problematic. First, criminal trial have often being used to establish an historical record of horrendous events (Nazi prosecutions and various international courts are examples of such efforts). Second, the disappearances clearly led to death of the disappeared. As a matter of justice, the statute of limitations for murder should not have expired yet. Investigating and prosecuting murders committed against kidnapped individuals require time, often a generation, perhaps more. It is thus essential that the statue of limitations is generous enough to accommodate the reality of these cases

Sunday, May 23, 2010

Notes on a previous bailout

I am reading a Seth Borgos's chapter on industrial policy in the US (published in 'Managing Modern Capitalism: Industrial Renewal and Workplace Democracy in the United States and Western Europe' a book edited by Hancock and colleagues in 1991) and on page 75 I found this interesting observation with regard to the 1980 bailout of Chrysler:

Chrysler Corporation embodied the ills of American manufacturing as defined by the new corporativists: short term profit taking, inattention to quality, lack of innnovation, warfare between labor and management. Thus, the effort to rescue Chrisler from bankruptcy in 1979-1980 offered an ideal opportunity to articulate a national industrial policy. But the deabate was framed in a much more expdient fashion; bailout advocates [...] argued simply that the impact of a Chrysler failure would devastate their local economies. On those narrow terms, they collected just enough votes in Congress to win. some innovative features in the Chrysler legislation, including an employee.

In times of wholesale bailouts, it's interesting to note that (1) 30 years ago similar things were happening, (2) some of the reasons why firms need bailout are the same, and (3) that bailouts tend not to lead to policy reform.

Monday, April 26, 2010

World Intellectual Property Day - 2010

WIPO celebrates IP day. Emphatically, WIPO proclaims that:

WIPO is dedicated to ensuring that the intellectual property system continues to serve its most fundamental purpose of encouraging innovation and creativity; and that the benefits of the system are accessible to all – helping to bring the world closer.
WIPO's optimism seems to be odd with the growing sense that the IP system is hugely problematic and increasingly indefensible. US federal courts seem to look at the issue from a different angle by scrutinizing patents. The legal successes of the Havasupai Indians from Arizona and the group of geneticists that challenged patents on two genes linked to breast and ovarian cancer tell us a different story. furthermore, empirical evidence shows that innovation and patents are often one against the other. Chapman and Heald demonstrated the intellectual property system does not seem to drive the rate of innovation in the market for vegetable varieties. They claim that:
Drawing on a unique data set of all plant patents, plant variety protection certificates, and utility patents among 42 vegetable varieties, this short paper examines the relationship between intellectual property rights in vegetable crops and the diversity of commercially available varieties. Three findings are of particular interest: 1) Only 3.8% of varieties available in 2004 were ever subject to protection under patent law or the Plant Variety Protection Act; 2) More than 16% of all vegetable varieties that have ever been patented were commercially available in 2004; and 3) In 2004, approximately 4.5% of protected, or once protected, varieties consisted of inventions that were at least twenty years old. Although intellectual property rights appear to be an insignificant part of the crop diversity story, they exhibit much higher commercialization rates than expected (the conventional wisdom suggests a 5% rate), and they exhibit a slower rate of obsolescence than expected. Complete data on individual vegetable types are provided, and the sui generis nature of corn is also discussed.
While more empirical evidence is needed, we can certainly say that corporate ownership of science is no longer untouchable.

Wednesday, March 31, 2010

Biobanks and the 'well-being' of humanity: integrating consent to research with the capability approach - Critical Public Health

One of my papers on biobanks and genetic research appears in the latest issue of Critical Public Health. The paper (titled 'Biobanks and the 'well-being' of humanity: integrating consent to research with the capability approach') explores if and how the capability approach--an approach proposed by political philosophers Amartya Sen and Martha Nussbaum--can help us think about ethical, legal and social questions raised by genetic research. Throughout the paper, I argue that the capability approach is a conceptual tools that proves to helpful to smoothen the demanding requirements of informed consent, which are perhaps too demanding when it comes to research tools such as biobanks that can be established and efficiently operated only if the informed consent is not narrowly construed in the sense of prohibiting all uses of collected biological samples that are not explicitly mentioned at the time the samples are collected from sample sources. The capability approach contributes by helping us think of the big picture: if we take into account the fact that research participations, biobankers and investigators all belong to a political community in which certain duties and protections are in place (as the capability approach demands), most of the red flags raised by biobanking are no longer problematic. These duties and other constraints provide sufficient protection to research participants even not all sample uses are specified in the informed consent at the time the samples are collected.

Although published in 2010, I started writing the paper in 2004. As a consequence, the paper is in part outdated and in part timely. The discussion on the merits of 'broad' consent in biobanking is not very relevant. In the past few years, consensus has emerged, in the literature and in the policy arena, that such form of consent is justified and appropriate, and that it meets the minimum requirements of informed consent.
The paper is much more relevant with regard to the quest for a theory of political science that is useful and responsive in dealing with difficult policy issues that cut deep into our assumptions of how societies are best arranged. I think, as I argue in this paper, that the capability approach is rather appealing and quite useful. In 2006, I conducted a similar analysis, and reached a similar conclusion, in the area of transnational human rights litigation (see my The Global Enforcement of Human Rights: The Unintended Consequences of Transnational Litigation in the International Journal of Human Rights).
Most recently, I read an thoughtful and persuasive application of the capability approach to the notion of property and ownership rights. In 2009, Professor Gregory Alexander, from Cornell, wrote in the Cornell Law Review about The Social-Obligation Norm in American Property Law. Prof. Alexander proposes a view of property informed by the capability approach and in alternative to the law-and-economics approach. Alexander argues that a social obligation is embedded in the recognition of an individual's right to own property. Once again, Sen and Nussbaum's analysis as political philosophers proves to be far-reaching, indeed useful to legal scholars and legal philosophers in particular.
My thinking about the relationship between political philosophy and law and the contribution of the capability approach to this debate is also the focus of a work in progress on tort law and some of its philosophical underpinnings. It turns out I am writing a paper on the topic, which I will present at a conference in Colombia at the end of April.

Friday, March 26, 2010

Washington, Bruxelles and the crisis of human rights - The Euros

I published a short piece on the role of the USA and the EU with regard to advancing human rights. The point I make is simple: during the past decade, the USA has severely damaged its credibility as human rights promoter in the eyes of the international community (and by 'community,' I primarily refer to people rather than governments and international organizations). Guantanamo, Abu Ghraib, the USA Patriot Act, Copenhagen, the ICC.

My critique of Washington's attitude towards human rights is consistent with 'Empty Promises', a piece by Kenneth Roth of Human Rights Watch, published in Foreign Affairs, as summed by Roth's statement that 'When it comes to promoting human rights at home and abroad, the [the advent of Obama] has undoubtedly been a marked improvement in presidential rhetoric. However, the translation of those words into deeds remains incomplete.'

My piece then argues that the EU has an historic opportunity to become the leading human rights promoter in the world. Yet, to do so, the EU must first shape up its internal human rights policy (primarily by making sure that the basic rights of all EU residents, and in particular those of religious minorities and immigrants, are secured) and structure its organization so that the EU speaks to other international partners with a single voice, that is a voice that is univocally representing all EU members. While this an ambitious goal, it can be realized. Slowly and patiently.

Wednesday, March 24, 2010

Human Embryonic Stem Cells: Steps Back, Steps Forward

[published with Andrea Ballabeni in the World Congress for Freedom of Scientific Research the bulletin, Number 10 (March 2010)]

The scientific and political fate of human embryonic stem cells (hESC) is unsteady. In 2010, their use is still contested, and lab research suffers from that. It is increasingly clear that researchers need them, want to use them, and plan to use them for a long time. While some hailed human induced pluripotent stem cells (hiPS) as the way forward the regenerative medicine, the belief that hiPS and hESC are truly equivalent is slowly eroding. The unequivocal title of a Science commentary on the evidence on hiPS/hESC alleged equivalence tells it all: 'Reprogrammed Cells Come Up Short, for Now.'

In the United States, researchers' expectation finds support in policy. The Obama administration did not hold back its promise to facilitate research with hESC. The restrictions imposed by the Bush administration are gone. Yet, the obstacles and uncertainties still affect investigators. The Obama policy rightfully makes it a requirement for researchers to show that the couple who donated the embryos for the lines creation was fully informed of other options. Such evidence is lacking for several cell lines that were already in existence in 2001, when Bush limited federal funding of hESC. On March 15 2010, the Washington Post reported that ''[s]o far, the NIH has approved 43 lines. But that includes only one of the original 21 'Bush' lines. An additional 115 lines are awaiting review. But that includes only two more of the original lines.'' As a consequence, researchers face uncertainty, an uncertainty that is particularly troublesome with regard to the cell lines that were funded under the Bush era. These cell lines are the bedrock of countless protocols, and the prospect of losing them would result in a significant step back as many projects would have to start from scratch with new cells as opposed to building upon the existing.

The problem is evident, and some have proposed that the NIH revises its guidelines ''to grandfather in the existing lines or give researchers a two-year grace period to continue to work with them until they get formal approval.'' To us, even more appealing, and ultimately very reasonable, would be the proposal that all Bush-era cell lines are approved without further ethical scrutiny. After all, the ethical concerns must be relatively minor as these lines had been deemed 'acceptable' by the clearly conservative gatekeepers appointed by former President Bush. Some of the answers needed by researchers may come from the proposed expansion of the definition of hESC for the purpose of NIH funding. The NIH proposes redefining hESC as:

… pluripotent cells that are derived from early stage human embryos, up to and including the blastocyst stage, are capable of dividing without differentiating for a prolonged period in culture, and are known to develop into cells and tissues of the three primary germ layers.
While the current definition limits hESC to cells taken from the inner layer of a blastocyst (5–6 days after fertilization), the new definition will also include cells taken from a morula, the developmental stage that come before a blastocyst is formed (3–4 days after fertilization). While most researchers are not currently using morula-derived cells, the tweaking of the definition of hESC may be a significant step for two reasons. First, morula-derived cells and blastocyst-derived cells are most certainly biologically different. Thus, unique data will flow from the newly funded research. Second, morula-derived hESC lines may be derived without the need to suppress the entity—the solid ball of 4-16 cells contained within the zona pellucida. This procedure is arguably 'more ethical' as Lanza recently pointed out. The new definition should take away some ammunition from the ever vigilant critics of hESC, thus making access and use to hESC less unsteady.

Monday, March 15, 2010

The EU Commission and the Eternit trial

Laszlo Andor, EU Commissioner for Employment, Social Affairs and Inclusion, indicated that the EU Commission will monitor the Eternit trial held in Torino as the implications for EU law. The EU Commission had touched upon asbestos disease several times in the recent past. Two examples are:

1) In 2003, it had issued a Recommendation 'concerning the European schedule of occupational diseases': although not binding on member states, the Commission recommended national legislatures to list the following asbestos-related diseases:
  • Asbestosis
  • Complication of asbestos in the form of bronchial cancer
  • Fibrotic diseases of the pleura, with respiratory restriction, caused by asbestos
  • Lung cancer following the inhalation of asbestos dust
  • Cancer of the larynx following the inhalation of asbestos dust; and
  • Mesothelioma following the inhalation of asbestos dust.

The decision against Belgium concerns deficiencies in the legislation for the Brussels and Walloon regions. The decision against Ireland concerns a failure to give full effect in Irish legislation to requirements concerning asbestos removal involving the release of asbestos fibres. In the decision against Belgium, both the Brussels and Walloon regions fail to adequately transpose provisions of the Directive (Council Directive 87/217/EEC on the prevention and reduction of environmental pollution by asbestos) dealing with monitoring of air emissions and water discharges from asbestos facilities and the prevention of significant asbestos environmental pollution from the working of products containing asbestos. In addition, the Brussels legislation fails to adequately deal with effluent arising in the manufacture of asbestos.

Friday, February 19, 2010

Can we say that a parliament is bankrupt or that prostitutes populate it?

After blogging about Lessig's remarks on the US Congress, I thought about what would happen if an Italian professor were to write the same things about the Italian Parliament. Would he or she be considered to be a thinker, an intellectual, who has something to contribute to the political debate? Would he or she be asked to talk or write on major networks, magazine, and radio programs? Well (the timing could not have been more perfect) Beppe Grillo, the controversial comedian turned into political commentator (The Guardian ranked his blog at number 9 among the world's 50 most powerful blogs in the world) posted the answer to my question. And thankfully the answer is that, despite all, freedom of political speech is still alive in Italy.

Back in June of 2009, Mr. Grillo addressed the parliamentary commission in charge of constitutional reform. He was invited to present and discuss a citizen's initiative (a citizen's petition proposing a constitutional amendment) led by Mr. Grillo himself. During his talk, Mr. Grillo made the following statement with regard to how candidates were chosen to be on the ballot:
Six people selected those who were to become Member of Parliament. They chose 993 among their friends, lawyers, and, pardon my language, some prostitutes, and they got them elected.
Actually the word used for 'prostitute' was 'zoccola,' which sounds more like 'whore' or 'hoe.' 19 MPs (18 women and 1 man) pressed charges. As required by law, the prosecutor followed up on the charges and requested to a judge that he dismissed the charges. The judge agreed. In dismissing any charges against Mr. Grillo,
she ruled that:
  1. the statement could not be construed of slender or defamation directed to any specific MP;
  2. the statement could be construed as defamatory to the Parliament as a body but that the its chairman or any appointed agent did not press charges and therefore no investigations could be conducted (under Italian law, defamation can only be investigated if the victims activates the process)
Ultimately, the judge ruled that Mr. Grillo's statement was an exercise of his freedom of speech, Citizens have the right to criticize the government...even in Italy.

Wednesday, February 17, 2010

Congress, Money & the Constitution | WBUR and NPR - On Point with Tom Ashbrook

Recently, NPR’s On Point dedicated a segment on the issue of influence of influence of the private sector on policy—which happens to be one of my research interests. Building upon the Supreme Court’s decision in Citizens United v. Federal Election Commission, the radio program featured Larry Lessig, who recently published a thoughtful piece in The Nation in which the Harvard professor argues that Congress is a ‘politically bankrupt’ institution that needs to be reformed. ‘The US Congress has become the Fundraising Congress. And it answers … not to the People, and not even to the president, but increasingly to the relatively small mix of interests that fund the key races that determine which party will be in power,’ Lessig writes. It answers to (and keeps getting blocked by) ‘the defenders of the status quo,’ as President Obama referred to as a candidate during the presidential campaign.

On the radio program, when asked what is the root of our problem (whether the parties or the money that parties receive), Lessig answered that ‘we supposedly have two parties right now but that the money turns them into a single party.’ ‘Both parties begin to sing the same tune to the powerful interests that are going to give them the money to get back into office and until we change that structure, so that they don’t have to sing those tunes that Wall Street or the auto industry or the big banks or pharma or the insurance companies, we will not have real change’ Lessig added.

I find the image of ‘the defenders of the status quo’ and the notion that ‘money turns [the two parties] into a single party’ very helpful in thinking about these issues.

Tuesday, February 16, 2010

Eternit Trial: Pretrial motions

A judge in Torino is hearing an asbestos criminal case against two major shareholder of Eternit SA. After a few hearings, the trial is not open. Pretrial motion are in fact still pending.

6392 victims filed motions to intervene as civil claimants in the trial. Under Italian law (as well as under the law of several European jurisdictions), a person entitled to recover (under tort law or criminal law) damages caused by conduct that is also relevant from a criminal standpoint, can intervene in a criminal trial and have their claim adjudicated along with issues of criminal liability of the defendant. Ordinarily, the judge presiding the criminal trial limits her judgment to issues of civil liability remanding question of damages to a different judge.

Defendants have raised two defenses. First, they requested the court to deny some of the motions because they were filed by victims who had been exposed to asbestos in the course of employment at a plant that was not formally included in criminal charges. Second, defendants filed liability releases forms signed by some of the victims in 1993, in connection to an earlier settlement. Based on my experience, these releases are not likely to be sufficient to deny the motions to intervene as they pertained to a different crime. Similar documents were part of the trial record in the Petrolchimico trial back in the 1990s. However, the trial judges did not consider them.

Saturday, February 13, 2010

New paper on assisted reproduction in Italy

For the Italian readers: I just published the paper La procreazione medicalmente assistita tra diritto e clinica: il ruolo del medico (Medically assisted reproduction between legal and clinical practice: the role of the physician) in 'Pratica Medica e Aspetti Legali', an Italian medical journal published by SEEd edizioni, in which I discuss the professional, legal and ethical responsibility of physicians that arises under Italian law whenever a couple seeks treatment for infertility or sterility. Here is the abstract:

In Italy, assisted reproduction is regulated by a variety of sources, the most important being Law 40/2004. The paper discusses how the tight legal framework allocates ample discretion to physicians who play a major role in various aspects of assisted reproduction – namely in implementing a gatekeeping role whenever a couple applies for access to assisted reproduction, in choosing the techniques that better suits the couple, and in performing preimplantation embryo testing aiming to select which embryo (or embryos) is suitable for implantation. The paper also highlights the professional, legal and ethical responsibility of physicians that arises whenever a couple seeks treatment for infertility or sterility.
Recent developments of ART in Italy: Upon acceptance of the paper, on January 14, 2010, a judge in Salerno ruled that a couple has a right to request that preimplantation genetic diagnosis (PGD) is performed on embryos even is such couple is not infertile or sterile in the sense that the couple cannot have children naturally. Carrying the genes responsible for spinal muscular atrophy type 1 (SMA1), the couple applied to the court for recognition of the right to take advantage of PGD arguing that, although technically fertile and not sterile, they could not have babies because they were not willing to procreate a baby with the risk of the baby carrying the SMA1 gene. The court agreed with the plaintiffs and ordered that PGD is performed on the embryos to be transferred.

Saturday, January 02, 2010

2009 comparative scholarship on mass torts

The 2009 scholarship roundup published by the Mass Tort Litigation Blog lists three papers that address mass torts from a comparative perspective. Seeing papers discussing mass torts from a comparative angle is certainly good news as, traditionally, American legal scholarship and law school curricula have ignored (sometimes even dismissed) such valuable perspective. Here are some of the papers (for the complete list):

  • Richard Nagareda, Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism, 62 Vand. L. Rev. 1 (2009)
  • Samuel Issacharoff, Will Aggregate Litigation Come to Europe? 62 Vand L. Rev. 179 (2009)
  • Angel Oquendo, Upping the Ante: Collective Litigation in Latin America, 47 Columb. J. Tranational L. 248 (2009)