Indiana Law Journal最新文献

{"title":"A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, and First Amendment Overprotection","authors":"Cynthia M. Ho","doi":"10.2139/SSRN.3152645","DOIUrl":"https://doi.org/10.2139/SSRN.3152645","url":null,"abstract":"This article argues that pharmaceutical marketing to doctors should be more critically considered as “alternative” facts and entitled to less First Amendment protection, contrary to a trend dating back to the Supreme Court’s 2011 decision in Sorrell. This article adds a significant critique based on the existence and impact of cognitive bias literature that has thus far not been recognized in this area. If courts fully embrace this understanding, they should recognize that the government, through the Food and Drug Administration, should have a right to limit statements that may encourage doctors to prescribe unapproved use of drugs with potentially fatal consequences. \u0000 \u0000This article reveals that this recent expansion of First Amendment jurisprudence is based on key cognitive biases and assumptions. First, courts and even some doctors themselves improperly assume that doctors are adequately sophisticated, such that they are protected from self-interested marketing, which this article demonstrates as inconsistent with reality. Second, current case law assumes that the availability of more information necessarily promotes better decisions so long as it is not patently false, a proposition that this article shows is especially unfounded in the unique market of prescription drugs. Importantly, such assumptions can have critical health consequences since they promote uses of drugs for which there is often inadequate scientific basis and serious health consequences. \u0000 \u0000Finally, this article builds upon the revealed cognitive biases to suggest empirically informed changes to cabin the expansion of First Amendment protection of pharmaceutical marketing as well as broader structural reform. This article makes specific proposals to treat potentially misleading information differently than entirely truthful speech, thus giving states greater discretion to regulate potentially misleading information. In addition, the burden of proof in such cases should also be reversed, so that courts will no longer consider disclaimers as a true alternative to speech restriction without proof from companies that they will actually promote more informed decisions. The article also suggests structural changes to medical education, drug development and marketing informed by the cognitive biases revealed here.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"47 6 1","pages":"1"},"PeriodicalIF":0.8,"publicationDate":"2018-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84818216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"November 1934:","authors":"","doi":"10.2307/j.ctt2006119.26","DOIUrl":"https://doi.org/10.2307/j.ctt2006119.26","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"536-571"},"PeriodicalIF":0.0,"publicationDate":"2018-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147905560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"INDEX","authors":"","doi":"10.2307/j.ctt20060mm.33","DOIUrl":"https://doi.org/10.2307/j.ctt20060mm.33","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"579-594"},"PeriodicalIF":0.0,"publicationDate":"2018-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147888119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"China’s Brave New World","authors":"","doi":"10.2307/j.ctt2005w3z.17","DOIUrl":"https://doi.org/10.2307/j.ctt2005w3z.17","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"125-132"},"PeriodicalIF":0.0,"publicationDate":"2018-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147890764","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Heroes in the Trenches","authors":"","doi":"10.2307/j.ctt2005xvt.68","DOIUrl":"https://doi.org/10.2307/j.ctt2005xvt.68","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"85-87"},"PeriodicalIF":0.0,"publicationDate":"2018-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147912845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Happy Birthday to You, and You and You and …","authors":"","doi":"10.2307/j.ctt2005xvt.137","DOIUrl":"https://doi.org/10.2307/j.ctt2005xvt.137","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"184-185"},"PeriodicalIF":0.0,"publicationDate":"2018-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147883912","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bibliography","authors":"","doi":"10.2307/j.ctt1zxz124.19","DOIUrl":"https://doi.org/10.2307/j.ctt1zxz124.19","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"897-910"},"PeriodicalIF":0.0,"publicationDate":"2018-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147920341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"PLAYING TO LOSE:","authors":"BONNIE RUBERG","doi":"10.2307/j.ctt2005rgq.16","DOIUrl":"https://doi.org/10.2307/j.ctt2005rgq.16","url":null,"abstract":"","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"1 1","pages":"197-211"},"PeriodicalIF":0.0,"publicationDate":"2018-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147881615","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Hands on the Wheel: A Call for Greater Regulation of Semi-Autonomous Cars","authors":"Tracy Hresko Pearl","doi":"10.2139/SSRN.2930125","DOIUrl":"https://doi.org/10.2139/SSRN.2930125","url":null,"abstract":"The United States is in the midst of a driverless car revolution. Semi-autonomous cars — those that can steer, accelerate, and brake on their own under certain circumstances — are already available to consumers. Fully autonomous cars will be available within the decade. The federal government and states throughout the nation have responded to these developments by rushing to pass laws designed to regulate the fully autonomous cars that are coming while largely ignoring the semi-autonomous cars that are already on U.S. roads. This is an extremely troubling oversight. New studies suggest that semi-autonomous vehicles are likely far more dangerous than the fully autonomous vehicles being developed. Indeed, despite the fact that semi-autonomous vehicles rely on continuous human supervision to operate safely, a growing body of research demonstrates that drivers of semi-autonomous vehicles are highly prone to distraction and may have significant misunderstandings of the capabilities and limitations of these vehicles. Both the federal government and states should pass laws and regulations designed to address these safety issues. Namely, the federal government should: (1) grant the National Highway Transportation Safety Administration the ability to create and administer a pre-market approval system for autonomous vehicles, (2) require car manufacturers to install attention warning systems on semi-autonomous cars in order to minimize the risk of driver distraction, and (3) place restrictions on the ability of manufacturers to give the semi-autonomous features on their cars names like “Autopilot” that might mislead consumers as to their capabilities. States, in turn, should (1) forbid drivers from tampering with or disabling driver monitoring systems, (2) require owners of semi-autonomous cars to install routine over-the-air software updates that make these vehicles safer, and (3) mandate that drivers of these vehicles complete proper driver training.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"27 1","pages":"4"},"PeriodicalIF":0.8,"publicationDate":"2017-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79431239","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Fragile Menagerie: Biodiversity Loss, Climate Change, and the Law","authors":"J. Chen","doi":"10.2139/SSRN.2862882","DOIUrl":"https://doi.org/10.2139/SSRN.2862882","url":null,"abstract":"The greatest vectors of biodiversity loss in the Anthropocene epoch are climate change, habitat destruction, invasive species, pollution, population, and overkill. Perversely enough, the legal understanding of extinction mechanisms remains frozen in time, like a cave dweller in ice. Climate change, habitat destruction, and alien invasive species should figure more prominently than overkill and the marketing of products derived from endangered species. The law, however, imposes its clearest and harshest sanctions precisely where the drivers of extinction are weakest: when humans consciously capture or kill other living things. The Endangered Species Act has been adapted to address habitat destruction on private land and to mitigate climate change. Nevertheless, the law’s lack of congruence with conservation biology impedes efforts to preserve biodiversity and mitigate climate change.","PeriodicalId":46974,"journal":{"name":"Indiana Law Journal","volume":"6 1","pages":"2"},"PeriodicalIF":0.8,"publicationDate":"2016-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78699854","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}