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www.newsindiatimes.com – that’s all you need to know Opinion News India Times May 7, 2021 4 The Use Of Race- And Sex-Based Data To Calculate Damages Is A Stain On Our Legal System companies and someWestern govern- ments vehemently opposed the new law. They feared that Bangladesh’s challenge toWestern capitalist interests could spur other countries to take similar actions. In response to the pressure campaign against the Bangladeshi government, HAI members joined other civil society groups to lobby their home governments to stop targeting Bangladesh. These ef- forts worked - Bangladesh maintained the law, domestic drug production increased and prices dropped. Such successes proved rare. In par- ticular, the rise of fervently pro-capitalist neoliberal politics around the world in the 1980s stymied activists’ efforts. As a pharmaceutical representative told the World Health Organization secretary gen- eral in 1988, while the “late ‘70s and early ‘80s might have been characterized as a period of confrontation . . . now we are entering a period of accommodation.” The ascent of pro-corporate politics hit a new peak in 1995 with the launch of theWTO. Signatory countries gave the WTO a wide mandate to set norms across a wide array of economic sectors, from services to agriculture. One of the most dramatic of the newWTO agreements was TRIPS. TRIPS set global enforcement stan- dards for intellectual property. It in- cluded rules standardizing the lengths of patents and eliminating countries’ ability to treat domestic companies differently frommultinational ones. TRIPS also included means for robust enforcement. A country or countries believing that another country’s policies violatedWTO rules could employ “dispute resolution” mechanisms to press for compliance, including trade sanctions. Within a few years of theWTO’s launch, tensions around intellec- tual property and pharmaceuticals access erupted. The cause: the HIV/ AIDS pandemic. By the late 1990s, new medicines finally came online that held real promise. However, prices for these new medicines made them prohibitively expensive to the very populations most in need of them. South Africa was one of the countries hardest hit by HIV/AIDS. In 1997, the new democratic government passed a law aimed at ensuring wide distribution of medicines. It included provisions such as compulsory licensing that challenged the predominance of intellectual prop- erty rights. In response, a group of 41 drug companies, along with pharmaceutical industry lobbies, sued the South Afri- can government. Several global North governments also blasted the law. Both the companies and governments accused South Africa’s law of violating TRIPS. As with the Bangladeshi case, the com- panies and rich country governments feared a slippery slope; if South Africa succeeded in defying TRIPS, it could lead to the agreement becoming toothless. The actions of governments such as the United States and the pharmaceuti- cal industry provoked immediate global outrage. Social movements and advo- cacy groups across the world mobilized. In South Africa, the Treatment Action Campaign brought together people living with HIV, unions, faith groups and nonprofits to mount protests and file lawsuits defending the law. In the United States, activists disrupted public events featuring Vice President Al Gore (then campaigning for the Democratic presidential nomination), accusing the Clinton administration of engaging in a “morally reprehensible” defense of profits over people. The campaign worked. Rich country governments ceased their diplomatic and economic pressure. Within a few years, pharmaceutical companies withdrew their legal challenges. Some even agreed to voluntary price reductions. In the years following, prices of antiretrovirals dropped substantially and, most criti- cally, more people gained access to these medicines. However, internationally, the TRIPS framework remained. This history continues to resonate. Recently, the head of the U.N. agency tasked with confronting HIV/AIDS, Win- nie Byanyima, remarked that, “we cannot repeat the painful lessons from the early years of the AIDS response, when people in wealthier countries got back to health, while millions of people in developing countries were left behind.” TRIPS is one reason for the disparities in vaccination rates between the wealthy and the impoverished of the world. How- ever, recent history shows that activism can bring change. Pressure is growing on the Biden administration to back a TRIPS waiver, including a recent letter support- ing this idea from 10 Senate Democrats, including Bernie Sanders (Vt.), Raphael G. Warnock, Ga., and ElizabethWarren, Mass. A TRIPS waiver would save lives. It would also offer a needed win for global civil society. It would empower the forces demanding that equity be a core prin- ciple in addressing the many crises, from pandemics to climate change, that we face today and will continue to face for the foreseeable future. Ishaan Tharoor is a columnist on the foreign desk of The Washington Post, where he authors the Today’s World- View newsletter and column. He previously was a senior editor and correspondent at Time magazine, based first in Hong Kong and later in New York. -TheWashington Post I n 2011, a young couple expecting the birth of their first child moved into an apartment in Brooklyn. Their son was born healthy, but one year later a routine medical exam detected lead in his blood. It turned out that dust from lead paint in the apartment had been poisoning their baby. Over the next several years, he suffered significant cognitive delays as well as severe social and emotional impairments. The child’s mother brought a tort action against the landlord, who was found negligent. In calculating damages, a critical question for the jury was how much this child would have earned over the course of his life had he not been injured. Experts for the plaintiff and the defendant took into consideration the fact that the baby was Hispanic. As a result, their damage estimates were significantly lower than would have been the case had the baby beenWhite. That reliance on race- and sex-based data to calculate tort damages has been standard practice for more than a century. The only thing unusual about this case was that the federal judge, JackWeinstein of the Eastern District of NewYork, refused to allow it. The use of data that explicitly distinguishes and de- fines people based on race and sex ensures that victims who are female, Black or from other marginalized com- munities receive lower damage awards than do victims who areWhite men. The effects are significant, as was demonstrated in a 2004 case involving the death of a 3-month-old Native American girl. In an unusual move, the court ordered its own expert to estimate damages in the standard way - taking into account the plaintiff’s race and sex - as well as using tables that blended rather than differentiated the race and sex factors. Using the standard data, the expert calculated projected earnings for the baby girl of $171,366. The blended data provided a result of $308,633, about 80% higher. Certainly, forensic economists need to rely on statisti- cal tables and data - often created by the federal govern- ment and reflecting aggregate economic realities - to esti- mate for a court how much money it would take to make a victim whole. But the use of race- and sex-based tables means that past levels of discrimination are embedded in predictions of the future. Imagine a 3-year-old Black girl seriously injured in a car crash. Even though this child has not herself suffered discrimination in the workplace, and even though discrimination may be expected to diminish over the course of her life, projections about her future earnings will incorporate the levels of race and sex discrimination suffered by Black women who came of age generations before her. The result is that the girl’s compensation will be tainted not only by discrimination but also by a level of race and sex discrimination that she probably will not face. In a broader societal context, the problem is not just one of fair compensation after the fact but also of fair distribution of risks beforehand. Imagine that a waste- management company is looking for a site for disposal of hazardous material. The company and local government officials must evaluate the risk an accident could pose to the surrounding community - and consider their po- tential liability. If race-based tables are used to estimate liability, there is a financial incentive to locate the facility among residents who probably would be awarded lower damages. Although such targeting is rarely explicit, there is a history of legislative bodies disproportionately siting hazardous waste dumps in minority communities. The use of race-based data in calculating tort damages is not just wrong but unconstitutional. A couple of judges have agreed, and a few states have recently enacted leg- islation prohibiting its use. It is time, however, for a more sweeping and consistent approach. We cannot recall a moment in U.S. history when the nation was as ready for such a change. We urge the Biden administration to support federal legislation that would bar the use of race- and sex-based data in the calculation of tort damages. This single stroke will not result in damage awards that are entirely free of the taint of discrimination. Generational disparities in health care, edu- cation and wealth will still in- fluence the calculations. Yet the gesture would not be merely symbolic: It would disrupt the perpetuation of past discrimi- nation and loosen its hold on victims’ futures. The use of data based on race and sex is a stain on our legal system, and it must end. Ronen Avraham is a professor of law at Tel Aviv University and a lecturer at the University of Texas law school. Kimberly Yuracko is the Judd and Mary Morris Leighton Professor of Law at the Northwestern Pritzker School of Law. - Special To TheWashington Post Biden’s Foreign Policy Aims To ‘Win The 21st Century’ Photo:law.utexas.edu Photo:law.northwestern.edu TheWashington Post By Ronen Avraham,KimberlyYuracko - Continued From Page 3

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