Horizontal constitutional rights as conflict-of-laws rules

How transnational pharmaceutical groups manipulate scientific publications

in Critical theory and legal autopoiesis
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The term ‘publication bias’ describes the statistical distortion of data when pharmaceutical groups suppress or manipulate research data. This chapter uses publication bias as a paradigmatic case in order to examine four aspects of the third-party effects of constitutional rights, and to develop alternatives. (1) The third-party effect has so far been configured in an individualist perspective only, but in order to deal with structural conflicts within society constitutional rights in private relations have to be reformulated in their collective-institutional dimension. (2) Instead of being limited to the protection against state-equivalent power in society, the third-party effect must be widened and directed against all communication media with expansive tendencies. (3) Contextualising constitutional rights ought not to be limited to adapting these rights to the particularities of private law. (4) Instead of imposing duties to protect exclusively on state actors, third-party effects must address private actors who violate constitutional rights and at the same time activate counter-forces within society.

Critical theory and legal autopoiesis

The case for societal constitutionalism

Editor: Diana Göbel

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