Horizontal Constitutional Rights as Conflict of Laws Rules: How Transnational Pharmagroups Manipulate Scientific Publications

25 Pages Posted: 5 May 2014 Last revised: 8 Jun 2018

See all articles by Isabell Hensel

Isabell Hensel

European University Viadrina Frankfurt (Oder)

Gunther Teubner

Johann Wolfgang Goethe Universität

Date Written: May 4, 2014


The term “publication bias” is used to describe the statistical distortion of data when pharma groups suppress or manipulate research data in scientific publications. The authors discuss the publication bias as a paradigmatic case in order to critically examine four central aspects of third party effect of constitutional rights, and to develop alternatives. (1) The third party effect has so far been configured in an individualist perspective only, as balancing individual constitutional rights of private actors against each other. However, in order to deal with massive 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 only. It must go further than this and take into account the particular normativities of autonomous social institutions that are at risk. (4) Instead of imposing duties to protect exclusively on state actors, third party effects must actually address the private actors who violate constitutional rights themselves and at the same time activate counter-forces within society.

The authors recommend trial registration as a third party effect of academic freedom and the right to health. Publicly accessible registers are set up on a binding basis, which fully record studies from their inception in order to ensure transparency and inspection throughout the entire research process.

Keywords: Horizontal effect of constitutional rights, third party effect of human rights, freedom of science, right to health, publication bias, trial registration

JEL Classification: K00, K10

Suggested Citation

Hensel, Isabell and Teubner, Gunther, Horizontal Constitutional Rights as Conflict of Laws Rules: How Transnational Pharmagroups Manipulate Scientific Publications (May 4, 2014). Available at SSRN: https://ssrn.com/abstract=2432632 or http://dx.doi.org/10.2139/ssrn.2432632

Isabell Hensel

European University Viadrina Frankfurt (Oder) ( email )

Grosse Scharrnstr. 59
Frankfurt (Oder), Brandenburg 15230

Gunther Teubner (Contact Author)

Johann Wolfgang Goethe Universität ( email )

Grüneburgplatz 1
Frankfurt am Main, D-60323
0049 69 71034781 (Phone)
0049 69 798-34405 (Fax)

HOME PAGE: http://www.jura.uni-frankfurt.de/ifawz1/teubner/

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