This page summarizes the most recent SSRN abstracts posted by the authors of the Jurisdynamics Network. The Network's authors are serious, productive scholars as well as stimulating bloggers, and we hope you will read and download these papers. This page has its own RSS feed, which you are invited to download by clicking here: . To receive updates as these authors post new scholarship, please use the following form:
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Negotiations, the BRICS Factor and the Changing North–South Debate
(January 16, 2017)
Since the early 2000s, commentators have lumped Brazil, Russia, India, China and South Africa together under the BRICS acronym. In the past few years, the BRICS countries have also met annually to explore greater cooperation. Although their popularity and collective influence have recently declined, these countries have continued to garner academic and policy attention. As far as international normsetting is concerned, some of the BRICS countries, such as Brazil, China and India, have also assumed leadership in the developing world.
This chapter focuses primarily on the presence, impact and significance of what I refer to as the "BRICS factor" in international trade and intellectual property negotiations. It begins by revisiting the negotiation of the WTO TRIPS Agreement. The chapter then explores the negotiation of TRIPS-plus bilateral, regional and plurilateral trade agreements, such as the recently signed Trans-Pacific Partnership Agreement and the yet-to-be-completed Regional ...
%SOURCENAMEESCAPED%, REVISION: Five Decades of Intellectual Property and Global Development
(January 12, 2017)
The 2016-2017 biennium marks the historical milestones of several major pro-development initiatives relating to intellectual property law and policy. These important milestones include the Intellectual Property Conference of Stockholm in 1967, the adoption of the Declaration on the Right to Development (UNDRD) in 1986 and the establishment of the WIPO Development Agenda in 2007.
On January 1, 2016, the UN Sustainable Development Goals (SDGs) also came into force. Adopted by the UN General Assembly in September 2015, the 2030 Agenda for Sustainable Development featured 17 SDGs and 169 targets. Prominently mentioned in Target 3.b of SDG 3 are the WTO TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health.
When all of these developments are taken together, the past five decades have seen the launch of a wide variety of pro-development initiatives relating to intellectual property law and policy. Written for a special issue on intellectual property and ...
%SOURCENAMEESCAPED%, New: The End User's Predicament: User Standing in Patent Litigation
(January 9, 2017)
The traditional parties in patent litigation are technologically savvy competitors. Yet recently, patent owners have begun hauling end users—including farmers, small cafés, and podcasters—into patent disputes. This Article shows that end users, unlike competitors, cannot take proactive measures to protect their interests in defending against patent enforcement. The standing doctrine impedes end users’ access to federal court to challenge a patent’s validity in a declaratory judgment action. At the same time, standing and timing requirements prevent end users from taking advantage of the new procedures created under the America Invents Act to challenge patents at the U.S. Patent and Trademark Office (“PTO”).
This Article argues that although standing requirements impose a significant obstacle for competitors as well as end users, the unique characteristics of end users place them in a particular predicament. First, the U.S. Court of Appeals for the Federal Circuit requires that ...
%SOURCENAMEESCAPED%, REVISION: Virotech Patents, Viropiracy, and Viral Sovereignty
(January 8, 2017)
Although there are many important intellectual property and public health developments in the United States, the domestic debate remains surprisingly disconnected from the international debate. To help bridge this disconnect, this Article discusses the interrelationship between intellectual property and public health in the context of communicable diseases. This type of disease is intentionally picked to highlight how developments abroad could easily affect what happens at home, and vice versa.
The first half of this Article recounts three distinct stories about viruses responsible for AIDS, SARS, and the avian influenza (H5N1). The first story focuses on the ongoing developments within the WTO concerning efforts to address the access-to-medicines problems in relation to HIV/AIDS and other pandemics. The second story documents the unusual race among research and health institutions in Canada, Hong Kong, and the United States to patent technologies involving the isolated gene ...
%SOURCENAMEESCAPED%, New: The Politics of Professionalism: Reappraising Occupational Licensure and Competition Policy
(December 8, 2016)
Elite economists and lawyers have united to criticize occupational licensing. They contend that licensure rules raise consumer prices and restrict labor market entry and job mobility. The Obama Administration’s Council of Economic Advisers and Federal Trade Commission have joined libertarians and conservatives in calling for occupational regulations to be scaled back.
Billed as a bipartisan boost to market competition, this technocratic policy agenda rests on thin empirical foundation. Studies of the wage effects of licensing rarely couple this analysis of its putative “costs” with convincing analysis of the benefits of the professional or vocational education validated via licensure. While some licensing rules may be onerous and excessive, licensing rules are inadequate or underenforced in other labor markets. Furthermore, by limiting labor market entry, occupational licensing rules, like minimum wage and labor laws, can help raise and stabilize working and middle class ...
%SOURCENAMEESCAPED%, REVISION: Legal Responses to Biodiversity Loss and Climate Change
(November 13, 2016)
The greatest vectors of biodiversity loss today are climate change, habitat destruction, invasive species, pollution, population, and overkill. 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, harshest sanctions precisely where the drivers of extinction are weakest: when humans consciously capture or kill other living things. More helpfully, the Endangered Species Act has been adapted to address habitat destruction on private land and to mitigate climate change.
%SOURCENAMEESCAPED%, REVISION: The Fragile Menagerie: Biodiversity Loss, Climate Change, and the Law
(November 9, 2016)
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.
%SOURCENAMEESCAPED%, REVISION: What Is (and Isn't) Healthism
(November 8, 2016)
What does it mean to discriminate on the basis of health status? Health is, of course, relevant in a number of ways. It can speak to the length of our lives, our ability to perform mentally and physically, our need for health care, and our risk of injury and incapacity. But the mere relevance of a particular attribute does mean that considering it should be legally permissible. Moreover, the potential harms that may result from health-status discrimination raise important moral questions. This Essay explores when differentiating on the basis of health is socially acceptable and, by contrast, when it is normatively problematic. Given that variations in health may correlate strongly with the kinds of cost- and performance-related factors identified above, the authors provide a theoretical framework for assessing when considering health-related status is justifiable — perhaps even desirable — and when it is discriminatory.
%SOURCENAMEESCAPED%, REVISION: A Seamless Global Digital Marketplace of Entertainment Content
(November 8, 2016)
In January 2016, Netflix launched its streaming service globally into more than 130 new countries. It also announced its plan to ban the subscribers' use of proxies, unblockers and virtual private networks (VPN) to view movies and TV programs unavailable in the subscribers' countries. With this ban in place, Australian subscribers will no longer be able to watch U.S. shows until they become available Down Under. Likewise, U.S. subscribers who are addicted to British shows will have to wait for those shows to come stateside.
The content providers' desire for this geocircumvention ban is easy to understand. If Australian fans have already watched a U.S. show via Netflix, who will tune in when the show finally arrives in Australia? Thus far, movie studios and TV producers have repeatedly criticized Netflix for turning a blind eye to unlicensed viewing. Had the company continued to ignore geographical licensing restrictions, many of these content providers might eventually have pulled ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Enforcement and Global Climate Change
(November 3, 2016)
Issues lying at the intersection of intellectual property and climate change are hot. From the ongoing discussions under the U.N. Framework Convention on Climate Change to the Conference on Innovation and Climate Change held by the World Intellectual Property Organization, countries have actively explored ways to harness the intellectual property system to combat climate change and to reduce the accumulation of greenhouse gases.
Notwithstanding these high profile events, intellectual property enforcement issues are rarely discussed in these fora. It would indeed be premature to discuss those issues when we still have no idea what types of international instruments will be developed to address the problems posed by climate change and what types of obligations these instruments will introduce. Nevertheless, if these instruments are to facilitate the development of meaningful policy responses, it is important that the rights they recognize be enforceable.
This chapter focuses on ...
%SOURCENAMEESCAPED%, REVISION: International Technology Contracts, Restrictive Covenants and the UNCTAD Code
(October 24, 2016)
One set of historical developments that will allow us to gain unique insight into the international debate on trade secrets and restrictive covenants concerns the negotiation of the International Code of Conduct on the Transfer of Technology. Established under the auspices of the UN Conference on Trade and Development (UNCTAD), this Code aimed to remove restrictive business practices that had stifled technology transfer and economic development in developing countries. Although the UNCTAD Code was not adopted after close to a decade of negotiations, it has important legacies that have affected global developments in the area of intellectual property and competition laws. A close study of the negotiations will also enable us to anticipate the challenges concerning the push for reform to strengthen the cross-border protection of workplace knowledge.
This chapter begins by outlining the various restrictive business practices that are commonly written into international technology ...
%SOURCENAMEESCAPED%, REVISION: The Incremental Development of the ASEAN-China Strategic Intellectual Property Partnership
(October 22, 2016)
In November 2000, a few years after the Asian Financial Crisis, Premier Zhu Rongji announced China's interest in developing a free trade area with ASEAN within a decade. Since then, the two trading powers have established a framework agreement as well as agreements on trade in goods, trade in services and investment. They have also developed memoranda of understanding on cooperation in the fields of agriculture, sanitation and phytosanitation, intellectual property, and standards, technical regulations and conformity assessment. Taken together, these instruments help build the ASEAN–China Free Trade Area (ACFTA) to serve important economic, geopolitical and strategic goals.
This chapter focuses on the cooperation between ASEAN and China in the intellectual property arena. It begins by recounting the historical development of ACFTA. It also briefly examines the provisions in the Memorandum of Understanding on Cooperation in the Field of Intellectual Property. The chapter then ...
%SOURCENAMEESCAPED%, REVISION: The RCEP and Trans-Pacific Intellectual Property Norms
(October 22, 2016)
In the past few years, the Trans-Pacific Partnership has garnered considerable media, policy and scholarly attention. Rarely analyzed and only occasionally mentioned is the Regional Comprehensive Economic Partnership (RCEP). This Agreement is currently being negotiated among Australia, China, India, Japan, New Zealand, South Korea and the 10-member Association of Southeast Asian Nations (ASEAN). Launched in November 2012 under the ASEAN 6 framework, the RCEP negotiations build on past trade and non-trade discussions between ASEAN and its six major Asia-Pacific neighbors.
This article examines the RCEP, with a focus on the intellectual property norms that the partnership agreement seeks to develop. The first half of the article focuses on the RCEP as a mega-regional agreement. It begins by briefly discussing the partnership’s historical origins. It then explores three possible scenarios in which the Agreement will help shape trade and intellectual property norms in the Asia-Pacific ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Asian Philosophy and the Yin-Yang School
(October 22, 2016)
Written for a special issue on intellectual property philosophy, this article begins by providing a brief discussion of the many different schools of Asian philosophy, including those in China and India. Although Confucianism has garnered considerable attention in intellectual property literature, the nexus between Asian philosophy and the notion of intellectual property rights remains largely understudied. Thus, instead of revisiting the debate on intellectual property and Confucianism, this article aims to introduce to the Western audience Yin-Yang, one of the six dominant ancient schools of Chinese philosophy. It argues that this school’s focus on contexts, relationships and adaptiveness and its high tolerance for contradictions have made it particularly well-equipped to address the ongoing intellectual property challenges concerning both emerging economies and the digital environment.
%SOURCENAMEESCAPED%, REVISION: The Confuzzling Rhetoric Against New Copyright Exceptions
(October 22, 2016)
In recent years, Australia, Canada, the United States, Ireland, the United Kingdom and other members of the European Union have been busy exploring ways to modernize their copyright laws. In many of these jurisdictions, new copyright exceptions have been introduced or proposed to promote internet users’ access to digital content. Meanwhile, the copyright industries remain adamantly opposed to introducing these exceptions.
Published in the inaugural issue of Kritika, this article scrutinizes seven of the industries’ most widely used arguments. Drawing on examples from digital copyright reform in Hong Kong and other jurisdictions, the article explains why the industries’ arguments have thus far been unconvincing. It also calls on policymakers and legislators to critically evaluate these arguments, lest they lead to wrong policy choices that harm internet users and the public at large.
%SOURCENAMEESCAPED%, REVISION: Tales of the Unintended in Copyright Law
(October 22, 2016)
Having unintended consequences is an oft-cited defect of copyright reform. Whether it is the Digital Millennium Copyright Act, the recently adopted Anti-Counterfeiting Trade Agreement, the still-under-negotiation Trans-Pacific Partnership Agreement, or such highly controversial copyright legislation as the PROTECT IP ACT or the Stop Online Piracy Act, critics of copyright-strengthening measures have lamented their potential for creating collateral damage. As critics have reasoned, the collateral damage caused by these proposed measures outweigh their intended benefits, and policymakers should refrain from adopting these measures.
While undertaking cost-benefit analysis is commonsensical and useful, adopting laws that have unintended consequences is nothing new. In the copyright area alone, one could find many examples featuring laws that result in unintended consequences. Indeed, many of the ill-advised copyright laws were adopted long before the active lobbying by the existing ...
%SOURCENAMEESCAPED%, REVISION: The Comparative Economics of International Intellectual Property Agreements
(October 22, 2016)
Using the WTO TRIPS Agreement as a case study, this book chapter provides a comparative economic analysis of international intellectual property agreements as they relate to both developed and developing countries. Specifically, this chapter discusses three different aspects of the TRIPS Agreement: (1) protection standards; (2) enforcement standards; and (3) the dispute settlement procedure. As this chapter will show, the economic picture concerning the implementation and operation of the TRIPS Agreement in developed countries is drastically different from the corresponding picture of developing countries. As a result, countries need to think more deeply about the Agreement's differing economic impacts.
%SOURCENAMEESCAPED%, New: Tax Law and Technology Change
(October 19, 2016)
Writings on tax law and technology change often investigate three discrete but related questions: (1) how does tax law react to technology change; (2) how does tax law provoke technology change; and (3) how does tax law seek to preserve traditional interests (such as revenue collection) in light of technology change. In addition, observers sometimes raise concerns that the interaction of technology change and tax law can have a substantive impact on individuals, communities and/or national interests that may differ from the technology’s intended use (for example, automatic tax collection mechanisms may harm taxpayer privacy). The chapter reviews these writings and distills guiding principles for optimal tax law and policy in light of technology change.
%SOURCENAMEESCAPED%, REVISION: The RCEP and Intellectual Property Norm-setting in the Asia-Pacific
(October 15, 2016)
Commissioned for the CEIPI-ICTSD Publication Series, this article discusses the Regional Comprehensive Economic Partnership (RCEP), with a focus on intellectual property issues. The partnership is currently being negotiated among Australia, China, India, Japan, New Zealand, South Korea and members of the Association of Southeast Asian Nations (ASEAN).
This article begins by briefly discussing the historical origins of the RCEP. It then examines the latest leaked draft of its intellectual property chapter. The article concludes by examining three future scenarios concerning intellectual property norm-setting in the Asia-Pacific region.
%SOURCENAMEESCAPED%, REVISION: The Investment-Related Aspects of Intellectual Property Rights
(October 14, 2016)
From the debate among presidential candidates on whether the United States should ratify the Trans-Pacific Partnership (TPP) Agreement to the arbitrations Philip Morris and Eli Lilly have sought through the investor-state dispute settlement (ISDS) mechanism, the investment-related aspects of intellectual property rights have recently garnered considerable policy, scholarly, and media attention.
This growing attention, to some extent, has brought back memories about the time when the WTO TRIPS Agreement began to transform intellectual property law by redirecting our focus to the trade-related aspects of intellectual property rights. Whether the recent developments on the investment front represent yet another paradigm shift in intellectual property law remains an important academic and policy question.
To address this question, the present article critically examines the investment-related aspects of intellectual property rights, including the use of ISDS to address international ...
%SOURCENAMEESCAPED%, New: Climate Change Law (Elgar 2016)
(October 8, 2016)
This book brings together over seventy authors from a dozen countries for a comprehensive examination of the emerging global regime of climate change law. Despite the relative youth of climate change law, we can already begin to see the outlines of legal regimes addressing climate change mitigation and adaptation (and perhaps geo-engineering). As it has evolved, the system is a combination of international frameworks such as the Paris Agreement and bottom-up efforts by national and subnational governments. This system is substantively linked to other areas of law such as energy regulation, water law, and land use law, while posing new issues to the whole body of law, including public international law, constitutional law, and administrative law.
The book’s coverage includes both international law and developments in major legal systems such as the European Union, the United States, China, and India. Rather than delving into the details of each of these legal regimes, the emphasis ...
%SOURCENAMEESCAPED%, New: The More Copyright Laws Change, the More Digital Challenges Stay the Same
(October 7, 2016)
This essay was a contribution to the Liber Amicorum for Professor Jan Rosén of Stockholm University, a former president of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP). Drawing on Professor Rosén's scholarship, the essay shows how today's judges, legislators, policymakers and commentators continue to address questions that copyright and media law scholars have explored in the past decades.
Specifically, this essay focuses on two topics. The first topic concerns the exhaustion of distribution rights in computer software and other digital works, including regional exhaustion within the European Union. The second topic covers the conflict between copyright and freedom of expression. It ties the discussion to the larger debate on intellectual property and human rights. Both topics remain timely and highly relevant today.
%SOURCENAMEESCAPED%, REVISION: The Anatomy of the Human Rights Framework for Intellectual Property
(September 26, 2016)
Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to the interplay of intellectual property rights and human rights in the area of scientific productions.
Aiming to fill the lacuna, this article focuses on the complex interactions among scientific productions, intellectual property and human rights. It begins by outlining the various arguments for or against recognizing patent rights as ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Human Rights and Public-Private Partnerships
(September 24, 2016)
This chapter focuses on the roles and responsibilities of intellectual property-related public-private partnerships (PPPs) in the international human rights regime. It begins by debunking two key claims transnational corporations (TNCs) have advanced in the area intersecting intellectual property and human rights. Although PPPs involve many types of private sector partners, this discussion singles out TNCs because of their frequent and vocal opposition to business and human rights initiatives. Such a focus will underscore the immense challenge of protecting human rights in the private sphere.
This chapter then examines the "protect, respect and remedy" framework and the Guiding Principles on Business and Human Rights, which John Ruggie presented to the U.N. Human Rights Council in his capacity as the U.N. Secretary-General's Special Representative on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises. These documents are highly relevant to the ...
%SOURCENAMEESCAPED%, REVISION: The Quest for a User-Friendly Copyright Regime in Hong Kong
(September 24, 2016)
The quest for a user-friendly copyright regime began a decade ago when the Hong Kong government launched a public consultation on "Copyright Protection in the Digital Environment" in December 2006. Although this consultation initially sought to address Internet-related challenges, such as those caused by peer-to-peer file-sharing technology, the reform effort quickly evolved into a more comprehensive digital upgrade of the Hong Kong copyright regime.
A decade later, however, Hong Kong still has not yet amended its Copyright Ordinance. Thus far, three consultation exercises have been launched in December 2006, April 2008 and July 2013. Two bills have also been introduced in June 2011 and June 2014. Because the latest bill lapsed at the end of the fifth term of the Legislative Council, which expired in July 2016, the Hong Kong government will have to submit a new bill to the legislature after the September 2016 elections to restart the upgrading effort.
In the run-up to this third ...
%SOURCENAMEESCAPED%, New: Agencies as Adversaries
(September 21, 2016)
Conflict between agencies and outsiders — whether private stakeholders, state governments, or Congress — is the primary focus of administrative law. But battles also rage within the administrative state: federal agencies, or actors within them, are the adversaries. Recent examples abound, such as the battle between the Federal Bureau of Investigation and the Department of Defense over hacking the iPhone of one of the San Bernandino shooters, the conflict between the State Department and the Central Intelligence Agency over classifying some aspects of Hillary Clinton’s emails, and the sharp conflict between the Republican and Democratic members of the Federal Communications Commission on net neutrality.
This Article draws on rich institutional accounts to illuminate and classify the plethora of agency conflict and dispute resolution mechanisms. Then, by applying social scientific work on agency and firm design as well as constitutional theory, we aim to explain the creation of such ...
%SOURCENAMEESCAPED%, REVISION: Baryonic Beta Dynamics: Splitting the Atom of Systematic Risk
(September 19, 2016)
Despite the rise of multi-factor models emphasizing value, firm size, and momentum, beta remains the primary measure of risk in asset pricing. Designed to define systematic risk, net of idiosyncratic risk that can be neutralized through diversification, beta combines a measure of volatility with a measure of correlation.
Much of the frustration with beta stems from the failure to disaggregate beta’s discrete components. Conventional beta is often treated as if it were “atomic” in the original Greek sense: uncut and indivisible.
This article rehabilitates beta by splitting the atom of systematic risk. Particle physics provides a fruitful framework for evaluating discrete components of financial risk. Quantum chromodynamics (QCD) focuses on six flavors of quarks in three matched pairs: up/down, charm/strange, and top/bottom. Baryons are subatomic particles consisting of three quarks. They include protons and neutrons, which account for most of the mass of the visible ...
%SOURCENAMEESCAPED%, REVISION: Price-Level Regulation and Its Reform
(September 13, 2016)
Price-level, or “price-cap,” regulation offers an alluring alternative to the traditional technique of monitoring a regulated firm’s profits. Part II of this article contrasts price-level regulation with conventional cost-of-service ratemaking and with Ramsey pricing. Price-level regulation stands as a market-based, incentive-driven “third way” between traditional regulation and complete deregulation. Part III provides formal specifications of price-level regulation. Although some jurisdictions have set price caps according to operating cost and rate-of-return calculations that clearly parallel those steps in conventional ratemaking, this article will focus on price-level methodologies that combine an economy-wide measure of inflation with an x-factor reflecting total factor productivity within a regulated industry.
Part IV addresses the simpler component of price-level regulation, the choice of an inflation index. Part V devotes detailed attention to the treatment of the ...
%SOURCENAMEESCAPED%, REVISION: The Copyright Holdout Problem and New Internet-Based Services
(September 9, 2016)
This chapter examines the holdout problem involving a copyright holder’s refusal to license digital content to internet users or third-party intermediaries despite the possibilities of socially valuable uses. It begins with two case studies illustrating the classic holdout problem, which often arises when transaction costs are high or when parties have drastically different expectations. The first case study focuses on the developments concerning Google Books. The second case study examines YouTube and the emergent development of user-generated content. The chapter concludes with three sets of preemptive legal responses that can help address the internet-related copyright holdout problem: limitations and exceptions in copyright law, compulsory or statutory licensing arrangements, and exogenous constraints imposed by competition law.
%SOURCENAMEESCAPED%, New: Breaking Bad: What Does the First Major Tax Haven Leak Tell Us?
(September 9, 2016)
While there is now significant literature in law, politics, economics, and other disciplines that examines tax havens, there is little information on what tax haven intermediaries — so-called offshore service providers such as trust, finance and other financial service providers — actually do to facilitate offshore tax evasion and other global financial crimes. To provide insight into this secret world of tax havens, this article relies on the author’s study of the first major tax haven data leak obtained by the International Consortium for Investigative Journalists. A hypothetical involving Breaking Bad’s Walter White is used to explain how offshore service providers help non-resident investors engage in offshore tax evasion.
%SOURCENAMEESCAPED%, REVISION: A Profile of Bio-Pharma Consolidation Activity
(September 2, 2016)
The bio-pharmaceutical sector is no stranger to consolidation. Over the last three decades, over 110 companies have consolidated to approximately thirty. Notably, the rate and extent of bio-pharmaceutical consolidation has measurably accelerated in recent years with projections of a similar pace into the near future. Ernst & Young reports that bio-pharmaceutical deals reached a ten-year high in 2014, when twenty-seven biotech companies were acquired by pharmaceutical companies - a 46% increase over 2013 numbers. Deloitte’s 2015 outlook reveals “life sciences companies are expected to continue expanding their presence in emerging markets through acquisitions and joint ventures.” While the form, terms, and size of these deals - whether they are mergers, acquisitions, or joint ventures - vary widely, they share the overarching characteristic of changing the make-up of the entire industry. Research and development priorities and product ownership will inevitably shift as ...
%SOURCENAMEESCAPED%, REVISION: Platform Neutrality: Enhancing Freedom of Expression in Spheres of Private Power
(August 30, 2016)
Troubling patterns of suppressed speech have emerged on the corporate internet. A large platform may marginalize (or entirely block) potential connections between audiences and speakers. Consumer protection concerns arise, for platforms may be marketing themselves as open, comprehensive, and unbiased, when they are in fact closed, partial, and self-serving. Responding to protests, the accused platform either asserts a right to craft the information environment it desires, or abjures responsibility, claiming to merely reflect the desires and preferences of its user base. Such responses betray an opportunistic commercialism at odds with the platforms’ touted social missions. Large platforms should be developing (and holding themselves to) more ambitious standards for promoting expression online, rather than warring against privacy, competition, and consumer protection laws. These regulations enable a more vibrant public sphere. They also defuse the twin specters of monopolization and ...
%SOURCENAMEESCAPED%, New: Grand Bargains for Big Data: The Emerging Law of Health Information
(August 29, 2016)
Health information technology can save lives, cut costs, and expand access to care. But its full promise will only be realized if policymakers broker a “grand bargain” between providers, patients, and administrative agencies. In exchange for subsidizing systems designed to protect intellectual property and secure personally identifiable information, health regulators should have full access to key data those systems collect.
Successful data-mining programs at the Centers for Medicare & Medicaid Services (“CMS”) provide one model. By requiring standardized collection of billing data and hiring private contractors to analyze it, CMS pioneered innovative techniques for punishing fraud. Now it must move beyond deterring illegal conduct and move toward data-driven promotion of best practices.
With this aim in mind, CMS is already subsidizing technology, but more than money is needed to optimize the collection, analysis, and use of data. Policymakers need to navigate intellectual ...
%SOURCENAMEESCAPED%, REVISION: The Promise and the Peril of Parametric Value-at-Risk (VaR) Analysis
(August 22, 2016)
Leptokurtosis, or the risk lurking in “fat tails,” poses the deepest epistemic threat to economic forecasting. Parametric value-at-risk (VaR) models are extremely vulnerable to kurtosis in excess of the levels associated with a normal, Gaussian distribution. This article provides step-by-step guidance on the use of Student’s t-distribution to enhance the statistical robustness of VaR forecasts. For degrees of freedom greater than 4, Student’s t-distribution can emulate any level of kurtosis exceeding that of a Gaussian distribution. Because VaR is elicitable from historical data, observed levels of excess kurtosis can inform the proper use of Student’s t-distribution to measure value-at-risk. In addition, the calculation of parametric VaR according to the number of degrees of freedom implied by historical levels of excess kurtosis leads directly to the corresponding value of expected shortfall. Conducted in this fashion, parametric VaR not only exploits the elicitability of that ...
%SOURCENAMEESCAPED%, REVISION: Law and Economics: Contemporary Approaches
(August 20, 2016)
A relatively narrow version of Law and Economics has dominated public policy for several decades. This school of thought has mainly focused on neoclassical microeconomics. It fails to recognize the pluralism of contemporary economics in general, and the relevance of macroeconomics in particular. So-called “market forces” are thoroughly intertwined with law and cannot be understood without some reference to history, sociology, psychology, and other social sciences. It is time for legal scholars to develop a law and economics curriculum that catches up with the advance of economics as a discipline.
The urgent challenges of the 21st Century also call for a new Law and Economics. Solutions to problems such as extreme inequality, climate change, deindustrialization, infrastructure deterioration, underdevelopment, and financial instability will depend on deepening understandings of how economics is interrelated with complex legal rules and legal institutions. Lawyers with a more ...
%SOURCENAMEESCAPED%, REVISION: Sinking, Fast and Slow: Bifurcating Beta in Financial and Behavioral Space
(August 19, 2016)
Modern portfolio theory accords symmetrical treatment to all deviations from expected return, positive or negative. This assumption is vulnerable on both descriptive and behavioral grounds. Many of the predictive flaws in contemporary finance stem from mathematically elegant but empirically flawed Gaussian models. In reality, returns are skewed. The presumption that returns and volatility are symmetrical also defies human behavior. Losing hurts worse than winning feels good; investors do not react equally to upside gain and downside loss. Moreover, correlation tightening during bear markets, not offset by changes in correlation during bull markets, suggest that standard diversification strategies may erode upside returns without providing adequate protection during times of stress.
This article outlines mathematical tools for calculating volatility, variance, covariance, correlation, and beta, not merely across the entire spectrum of returns, but also on either side of mean ...
%SOURCENAMEESCAPED%, REVISION: Legal Quanta: A Mathematical Romance of Many Dimensions
(August 19, 2016)
Many things can be measured and expressed numerically. Nature speaks in the language of mathematics. Mathematical analysis of law is often associated with the application of established empirical techniques to ever-growing bodies of legal data. Other distinct applications of mathematics to law include machine learning, legal networks, and analytical modeling. Mathematical analysis of law ultimately follows not only the data describing the legal world as we find it, but also the own internal logic of mathematics.
%SOURCENAMEESCAPED%, REVISION: Momentary Lapses of Reason: The Psychophysics of Law and Behavior
(August 19, 2016)
The conventional capital asset pricing model (CAPM) remains the preferred approach to risk management in a wide range of economic settings. At the same time, the neoclassical assumptions underlying the CAPM have come under severe attack by behavioral economics. In sharp contrast with the purely rational agents of neoclassical economics, real humans make decisions under the constraints imposed by their innate heuristics. The tension between conventional asset pricing theory and behavioral economics puts particular pressure on law. As an applied branch of social science, law purports to subject human conduct to rules that should optimize objective well-being as well as subjective satisfaction.
This paper proposes a mathematically expedient method of alleviating this tension. A four-moment capital asset pricing model captures the emotional impact of odd and even moments of statistical distributions. Critically, a four-moment CAPM transcends the limits of financial models that ...
%SOURCENAMEESCAPED%, REVISION: Law on the Market? Evaluating the Securities Market Impact of Supreme Court Decisions
(August 14, 2016)
Do judicial decisions affect the securities markets in discernible and perhaps predictable ways? In other words, is there “law on the market” (LOTM)? This is a question that has been raised by commentators, but answered by very few in a systematic and financially rigorous manner. Using intraday data and a multiday event window, this large scale event study seeks to determine the existence, frequency and magnitude of equity market impacts flowing from Supreme Court decisions.
We demonstrate that, while certainly not present in every case, "law on the market" events are fairly common. Across all cases decided by the Supreme Court of the United States between the 1999-2013 terms, we identify 79 cases where the share price of one or more publicly traded company moved in direct response to a Supreme Court decision. In the aggregate, over fifteen years, Supreme Court decisions were responsible for more than 140 billion dollars in absolute changes in wealth. Our analysis not only ...
%SOURCENAMEESCAPED%, New: Copyrights, Privacy, and the Blockchain
(July 30, 2016)
The law of the United States forces authors to choose between copyrights and privacy rights. Federal lawmakers have noticed and tried to remedy that problem. The Copyright Act makes express provisions for anonymous and pseudonymous works. The Copyright Office has tried to remedy that tension, too; copyright registration forms do not outwardly require authors to reveal their real world identities. Nonetheless, authors still face a choice between protecting their privacy and enjoying one of copyright’s most powerful incentives: the prospect of transferring to another the exclusive right to use a copyrighted work. That power proves useful, to say the least, when it comes to making money off of copyrights. Run-of-the-mill authors can invoke it by licensing or assigning their unregistered copyrights or by registering their works themselves. But what about anonymous or pseudonymous authors? Despite a good faith effort to respect authorial privacy, current copyright registration practices ...
%SOURCENAMEESCAPED%, New: U.S. Regulatory Challenges for Gene Editing
(July 29, 2016)
Researchers are now realizing the promise of molecular biology and genomic engineering. In the United States, President Obama has prioritized innovations in genomic research and therapies with funding infusions into national programs such as the Precision Medicine Initiative and the Cancer Moon Shot 2020. More than a decade after the completion of the Human Genome Project, our understanding of the human genome has now ushered us into the era of genetic modification capabilities known as genome editing, or gene editing. Building on the scientific foundation of recombinant DNA (rDNA) technology and human gene transfer research, gene editing enables the alteration of the genetic make-up in a manner that was previously only a theoretical possibility. Current gene editing technology improves on prior cellular-based therapies and gene therapies because it directly targets nucleotides in the defective gene. Following the discoveries of zinc finger nuclease (ZFN) and transcription ...
%SOURCENAMEESCAPED%, REVISION: Anthropocene Agricultural Law
(June 30, 2016)
Agricultural controversies in affluent, comfortably fed countries increasingly emphasize the esthetic or expressive elements of food. Consumer advocates can indulge in litigation over foie gras, for instance, or coffee production certification. This expressive turn elevates the ornamental aspects of food at the expense of agriculture's utilitarian purposes. The modernist principles articulated in Adolf Loos's "Ornament und Verbrechung" urge the subordination of agriculture's ornamental aspects in favor of its original instrumentalist underpinnings.
Meanwhile, ecological disaster looms. Human ecological impacts are so severe that geological history has arguably entered a new epoch, the Anthropocene. Exhaustion of vital inputs (petroleum, phosphorus) and evolutionary calamity (mass extinctions, herbicide and pesticide resistance) threatens future agricultural productivity. Food security and the economic foundations of civilization hang precariously in the balance.
Human beings, ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Law's Plagiarism Fallacy
(June 19, 2016)
Intellectual property law is caught in a widespread debate over whether it should serve incentive or natural rights objectives, and what the best means for achieving those ends are. This article reports a series of experiments revealing that these debates are actually orthogonal to how most users and many creators understand intellectual property law. The most common perception of intellectual property among the American public is that intellectual property law is designed to prevent plagiarism.
The plagiarism fallacy in intellectual property law is not an innocuous misperception. This fallacy likely helps explain pervasive illegal infringing activity on the Internet, common dismissal of copyright warnings, and other previously puzzling behavior. The received wisdom has been that the public is ethically dismissive or indifferent towards intellectual property rights. This research reveals instead that experts have failed to comprehend what the public’s conception of intellectual ...
%SOURCENAMEESCAPED%, REVISION: To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity
(June 17, 2016)
Though a primary goal of intellectual property law is to promote creativity in technology and the arts, intellectual property doctrine pays remarkably little attention to psychology research on how to advance creativity. Psychology studies on motivation, collaboration, and divergent versus convergent cognitive thought processes provide significant insight into the creative process and indicate that certain intellectual property law hinders the very creativity the law is designed to inspire. These insights intersect at an issue vital to the forefront of creative achievement: promoting large-scale collaborative creativity. Large-scale collaborative projects have become critical in many areas of innovation due to the need for multidisciplinary expertise and substantial resources to push the envelope of human knowledge. From partnerships across private, government, and university research sectors to open and collaborative peer production, large-scale collaboration is revolutionizing ...
%SOURCENAMEESCAPED%, REVISION: Technology Wars: Mending the Failure of Democratic Discourse
(June 17, 2016)
Controversies over the use and regulation of various technologies pervade public discourse and have serious implications for the public interest. Conflicts over the regulation of genetically modified food, nuclear power, and nanotechnology, among others, fuel some of the most socially and politically explosive debates of our time. These technology conflicts extract a substantial cost from society - they create costly inefficiencies, prevent society from optimally managing new technologies, consume vast resources, and retard technological growth.
Existing scholarship does not explain or adequately address the teleology of conflict over technology. This Article examines the nature of legal and regulatory technology conflict, diagnoses the sources of that conflict, and proposes innovative solutions to the conflicts. This analysis integrates original empirical research and a multi-disciplinary body of scholarship from the fields of law, behavioral economics, psychology, and political ...
%SOURCENAMEESCAPED%, REVISION: The Future of Biotechnology Litigation and Adjudication
(June 17, 2016)
This Article, based on a presentation at a United Nations Environmental Programme and New York State Judicial Institute Symposium, attempts to forecast biotechnology issues expected to come before courts in the future. The Article begins with a discussion of what biotechnology is, provides a survey of past and present biotechnology litigation, and includes predictions about what trends and additional issues are in store for courts in biotechnology litigation and adjudication in the future. The Article concludes with an analysis of, and recommendations for, the use of scientific evidence and expert testimony concerning biotechnology in the courtroom.
%SOURCENAMEESCAPED%, REVISION: Innovation Rewards: Towards Solving the Twin Market Failures of Public Goods
(June 17, 2016)
The challenge of achieving socially optimal incentives for innovation in public goods faces twin market failures: a market failure to adequately promote public goods invention and a market failure to implement innovative public goods once developed. Though innovation in private goods sometimes faces the former hurdle, often ameliorated by intellectual property law, the interaction of both market failures for public goods innovation raises unique difficulties.
Environmentally beneficial technology presents an illustration of the innovation problem for public goods. Private actors lack sufficient incentives both to engage in environmentally beneficial innovation and to implement such innovation. While traditional intellectual property law and environmental law fail to cure the interaction of these public goods market failures, an innovation rewards system could produce more socially appropriate incentives. Using environmentally beneficial innovation as an example, this Article ...
%SOURCENAMEESCAPED%, REVISION: Proxy Signals: Capturing Private Information for Public Benefit
(June 17, 2016)
This Article presents an original empirical methodology to identify which patent laws will best promote optimal incentives to innovate for society. Vociferous debates over patent reform pit the United States’ largest innovation industries against each other in a dispute concerning whether stronger or weaker patent rights are necessary to promote innovation. Past efforts to answer this question have been thwarted by an inability to parse the impossibly complex social and legal relationship between innovation and patent law. Rather than considering such problems directly, the proxy technique introduced here offers a new framework to leverage indirect signals that capture better information than previously available concerning how best to promote incentives to innovate. In certain contexts, it is possible to use empirical information about the trade-off between the incentives and exclusivity costs of patent law to identify particular private industries that (1) face trade-offs ...
%SOURCENAMEESCAPED%, REVISION: The Living Regulatory Challenges of Synthetic Biology
(June 17, 2016)
The rapidly emerging technology of synthetic biology will place great strain upon the extant regulatory system due to three atypical characteristics of this nascent technology: (1) synthetic biology organisms can evolve; (2) traditional risk structures do not apply; and (3) the conventional regulatory focus on end-products may be a poor match for novel organisms that produce products. This Article presents one of the first assessments of the regulatory and oversight challenges produced by the beneficial application of synthetic biology, for energy, environmental, medical, and other purposes. Due to the uncertainty present at this early stage of synthetic biology development, and the practical political context, it is unlikely that the significant statutory and regulatory gaps identified herein could be cured directly. This Article recommends instead a selection of “soft law” alternatives that could more quickly provide flexible and adaptive measures to help fill regulatory gaps in a ...
%SOURCENAMEESCAPED%, REVISION: Promoting Environmental Innovation with Intellectual Property Innovation: A New Basis for Patent Rewards
(June 17, 2016)
Despite numerous and diverse efforts, environmental law generally fails to promote technological innovation with environmental benefits. Such innovation could have myriad human health and environmental benefits, while simultaneously reducing the cost of environmental protection for industry and society. This Article explores whether intellectual property law can step in where environmental law has failed to efficiently provide greater incentives for environmental innovation. A patent rewards system for environmental innovation holds substantial promise. Because environmental innovation often produces significant positive externalities by reducing environmental harms for many individuals beyond the implementing firm, inventors do not face efficient incentives for environmental innovation - a market failure that patent rewards can ameliorate. Along these lines, the analysis reveals a previously unrecognized benefit of patent rewards in certain circumstances.
%SOURCENAMEESCAPED%, REVISION: The Public Perception of Intellectual Property
(June 17, 2016)
Though the success of intellectual property law depends upon its ability to affect human perception and behavior, the public psychology of intellectual property has barely been explored. Over 1,700 U.S. adults took part in an experimental study designed to investigate popular conceptions of intellectual property rights. Respondents’ views of what intellectual property rights ought to be differed substantially from what intellectual property law actually provides, and popular conceptions of the basis for intellectual property rights were contrary to commonly accepted bases relied upon in legal and policy decision-making. Linear regression analysis reveals previously unrecognized cultural divides concerning intellectual property law based upon respondents’ income, age, education, political ideology, and gender.
%SOURCENAMEESCAPED%, REVISION: First Amendment Freeze Play: Bennett's Strategy for Entrenching Inequality
(June 15, 2016)
For decades, the U.S. Supreme Court has struck down campaign finance limitations by arguing that deregulation promoted more speech. As Justice Roberts opined in Citizens United
, "it is our law and our tradition that more speech, not less, is the governing rule." But in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett
(2011), the Court struck down a state effort to increase the communicative capacities of certainly publicly funded candidates.
Prior deregulatory campaign finance jurisprudence — strained as it was — at least paid lip service to the ideal of promoting more speech. In Bennett
, the Court announced that even speech-promotion could be trumped by another, higher purpose: freezing into place extant disparities in communicative resources. But just as the 14th Amendment does not enact Mr. Herbert Spencer's Social Statics, this principle of power entrenchment should have no place in the American constitutional order. The narrow majority ...
%SOURCENAMEESCAPED%, REVISION: The Institutionalization of Supreme Court Confirmation Hearings
(June 14, 2016)
This article uses an original database of confirmation hearing dialogue to examine how the Senate Judiciary Committee’s role in Supreme Court confirmations has changed over time, with particular attention paid to the 1939–2010 era. During this period, several notable developments took place, including a rise in the number of hearing comments, increased attention to nominees’ views of judicial decisions, an expansion of the scope of issues addressed, and the equalization of questioning between majority and minority party senators. We demonstrate that these changes were shaped by both endogenous and exogenous factors to promote the legitimization of the Judiciary Committee’s role in the confirmation process and to foster the instrumental goals of senators. This research contributes to our understanding of the development of political institutions, interbranch interactions, and how institutional change affects the behavior of legal and political actors.
%SOURCENAMEESCAPED%, REVISION: The Public Psychology of Intellectual Property
(May 26, 2016)
Though the success of intellectual property law depends upon its ability to affect human perception and behavior, the public psychology of intellectual property has barely been explored. Over 1700 U.S. adults took part in an experimental study designed to investigate popular conceptions of intellectual property rights. Respondents’ views of what intellectual property rights should be differed substantially from actual law, and popular conceptions of the basis for intellectual property rights are contrary to commonly accepted bases relied on in legal and policy decision-making. Linear regression analysis reveals previously unrecognized cultural divides concerning intellectual property based on people’s income, age, education, political ideology, and gender.
%SOURCENAMEESCAPED%, REVISION: Patently Non-Obvious: Empirical Demonstration that the Hindsight Bias Renders Patent Decisions Irrational
(May 26, 2016)
This Article reports an experimental study that provides the first empirical demonstration of the hindsight bias in patent law. The results are dramatic along several fronts: (1) the hindsight bias distorts patent decisions far more than anticipated, and to a greater extent than other legal judgments; (2) jury instructions that explicitly identify and warn against the hindsight bias do not ameliorate its impact; (3) the admission of secondary consideration evidence does not cure the hindsight bias; (4) neither the Federal Circuit's suggestion test nor the Supreme Court's Graham requirements appear to solve the hindsight problem; and (5) the hindsight problem pervades patent law to an extent not previously recognized - it biases decisions under the doctrine of equivalents, claim construction, the on-sale bar, and enablement.
These findings run counter to the dominant patent analysis of the last decade and have significant implications for patent and innovation policy. The study ...
%SOURCENAMEESCAPED%, REVISION: The Non-Obvious Problem: How the Indeterminate Non-Obvious Standard Produces Excessive Patent Grants
(May 26, 2016)
The dominant current perception in patent law is that the core requirement of nonobviousness is applied too leniently, resulting in a proliferation of patents on trivial inventions that actually retard technological innovation in the long run. This Article reveals that the common wisdom is only half correct. The nonobviousness standard is not too low, but both too high and too low. It is indeterminate. Three principal factors produce nonobviousness indeterminacy: a failure to identify the quantum of innovation necessary to satisfy the standard, a failure to define the baseline level of ordinary skill against which to measure an innovation, and the epistemic infeasibility of requiring a technologically lay decision maker to judge from the perspective of a more highly trained and educated person of ordinary skill in the art.
This Article introduces a mathematical model of innovation and patenting to analyze the effects of nonobviousness indeterminacy. Based on the model, indeterminacy ...
%SOURCENAMEESCAPED%, REVISION: Patently Non-Obvious II: Experimental Study on the Hindsight Issue Before the Supreme Court in KSR v. Teleflex
(May 26, 2016)
For the first time in thirty years, the Supreme Court will consider the core patent requirement that an invention be non-obvious. At the heart of the case lies the challenge of how to insulate non-obvious decisions from the distortion of the hindsight bias. This Article reports the latest empirical studies in a line of hindsight research, which present experimental data bearing directly on the issue before the Court: how individuals make non-obvious decisions under existing Supreme Court and Federal Circuit precedent.
The study results indicate that the Federal Circuit's suggestion, teaching, or motivation requirement, the precedent challenged before the Supreme Court in KSR v. Teleflex, does not produce erroneous non-obvious outcomes. This result contradicts the claims of the petitioners in KSR and other critics of the suggestion requirement. On the other hand, the results do not demonstrate that the suggestion test ameliorates the hindsight bias in the manner usually claimed ...
%SOURCENAMEESCAPED%, REVISION: A Confederate History in the Yale Law Journal
(May 24, 2016)
This essay revisits Yale history professor Allen Johnson’s article “The Constitutionality of the Fugitive Slave Acts,” which appeared in the Yale Law Journal in December 1921. Johnson wrote about a law that had been nullified by the Civil War and the Thirteenth Amendment nearly 70 years before. His article was part of the scholarly reconsideration of the origins of Civil War designed to reconcile North and South. Northerners, especially Northern scholars, blamed the Civil War on fanatics on both sides and in some ways exculpated Southerners for their role in the War.
While scholars of memory have explored the rewriting of history in the early twentieth century, no one has noticed how it stretched outside of history books and into the pages of the distinguished Yale Law Journal. The efforts to re-write constitutional history and to defend the south’s case for one of the most reviled acts in American history reached into territory and to scholars we had not previously known. ...
%SOURCENAMEESCAPED%, REVISION: Book Review: Automating the Professions?
(May 7, 2016)
Richard Susskind (and his son Daniel) offer a technocratic, neoliberal, and techno-utopian outlook on the future of the professions. Thanks to these ideological priors, a persistent mistake undermines their book: they conflate the professional role with the delivery of expertise. Thus they fail to seriously address two issues at the core of professional identity. First, there is some degree of self-governance among professionals. They primarily work with
clients or patients, for example, and not for bosses or shareholders. Second, the main reason they enjoy this autonomy is because they must handle intractable conflicts of values that repeatedly require thoughtful discretion, negotiation, and personal attention and responsibility. In isolation, these factors damage the Susskinds’ case; together, they prove fatal to it.
%SOURCENAMEESCAPED%, REVISION: Special Economic Zones in the United States: From Colonial Charters, to Foreign-Trade Zones, Toward USSEZs
(May 3, 2016)
Special economic zones (SEZs) have a long and complicated relationship with the United States. The lineage of the country runs back to proto-SEZs, created when Old World governments sold entrepreneurs charters to build for-profit colonies in the New World, such as Jamestown and New Amsterdam. In more recent times, though, the United States has lagged behind the rest of the globe in tapping the potential of SEZs, which have exploded in number, types, territory, and population. True, the US hosts a large and growing number of Foreign-Trade Zones (FTZs), but these do little more than exempt select companies from federal customs obligations. Elsewhere, SEZs have done much more to increase jurisdictional competition and improve citizens' lives. Consider the SEZs that spread from Hong Kong throughout China, lifting tens of millions of people out of poverty in the process, or the huge private developments now taking root in Africa, the Middle East, and India. This paper proposes that ...
%SOURCENAMEESCAPED%, REVISION: Antislavery Women and the Origins of American Jurisprudence
(May 1, 2016)
“Antislavery Women and the Origins of American Jurisprudence" is an essay review of Sarah Roth's Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth's account of the dialog between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s -- as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens-in-waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the south moved towards Civil War. Roth ...
%SOURCENAMEESCAPED%, New: Strike-Out
(April 30, 2016)
The article provides a structured efficiency-oriented response to a highly important question which has been neglected by scholars for decades: should employees and their labor union, involved in a strike against a particular employer, be liable for ensuing third-party harms? Assume, for example, that the Albuquerque firefighters stage a strike for a wage increase. Just then, a fire breaks out and destroys an industrial laundry facility and a surreptitious underground workshop, causing temporary evacuation of adjacent businesses. Should the proprietors have a cause of action against the strikers for property damage and economic loss?
The article puts forward a novel framework for assessing third-party claims, incorporating two fundamental principles. Under the first, which I call “the principle of deference,” tort law should not normally undermine a specific legal regime governing the allocation of power in the concrete case, particularly if the applicable regime has been ...
%SOURCENAMEESCAPED%, REVISION: Ranking Law Schools with LSATs, Employment Outcomes, and Law Review Citations
(April 22, 2016)
This paper returns to the much-discussed topic of ranking law schools. Where U.S. News & World Report includes a wide variety of factors – some of which are criticized as irrelevant to what prospective students care about or should care about – this paper looks to three variables. They are median LSAT score of entering students, which seeks to capture the quality of the student body; the percentage of the graduating students who are employed at 9 months following graduation at full-time, permanent JD required jobs (a separate analysis excludes school-funded positions and solo practitioners from this variable); and the number of citations to each school’s main law review, which seeks to capture a school’s recent reputation. It rank orders each of those variables, averages those ranks to obtain a new ranking, and then compares those new rankings to the U.S. News & World Report rankings of the 147 schools for which U.S. News provided ranks in March 2014. It identifies the schools that ...
%SOURCENAMEESCAPED%, REVISION: Enforcement: A Neglected Child in the Intellectual Property Family
(April 20, 2016)
Effective enforcement is essential to the protection of intellectual property rights. Without enforcement, these rights will be of little value. Although intellectual property enforcement has been around for as long as intellectual property rights have existed, this topic has not caught much attention from intellectual property commentators and instructors until the past decade.
Today, there remains a dearth of theoretical literature on intellectual property enforcement, and specialized courses on this topic remain rare. Even when enforcement is covered as part of an intellectual property course, the topic tends to be discussed either at the end of the course or in conjunction with infringements.
This chapter begins by identifying four different types of enforcement issues that intellectual property commentators and instructors usually explore. It then discusses why enforcement remains a neglected child in the intellectual property family. It further suggests two different ...
%SOURCENAMEESCAPED%, REVISION: Judging Adaptive Management Practices of U.S. Agencies
(April 19, 2016)
All U.S. federal agencies administering environmental laws purport to practice adaptive management (AM), but little is known about how they actually implement this conservation tool. A gap between the theory and practice of AM is revealed in judicial decisions reviewing agency adaptive management plans. We analyzed all U.S. federal court opinions published through 1 January 2015 to identify the agency AM practices courts found most deficient. The shortcomings included lack of clear objectives and processes, monitoring thresholds, and defined actions triggered by thresholds. This trio of agency shortcuts around critical, iterative steps characterizes what we call AM-lite. Passive AM differs from active AM in its relative lack of management interventions through experimental strategies. In contrast, AM-lite is a distinctive form of passive AM that fails to provide for the iterative steps necessary to learn from management. Courts have developed a sophisticated understanding of AM and ...
%SOURCENAMEESCAPED%, REVISION: Inflation-Based Adjustments in Federal Civil Monetary Penalties
(April 7, 2016)
Civil monetary penalties play a vital role in federal law. The Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. No. 101-410, prescribes rules for the regular adjustment of federal civil monetary penalties in response to inflation. Three statutory defects have undermined the Inflation Adjustment Act. First, the Act's 10 percent cap on initial adjustments creates an "inflation gap" relative to the level that would properly reflect inflation. Second, the Act directs federal agencies to use Consumer Price Index data that are at least 7 months and as many as 18 months out of date. This creates "CPI lag" in the adjustment of civil monetary penalties. Third, the Act's rounding rules can force some agencies to wait 15 years or more between adjustments.
Originally prepared as a report for the Administrative Conference of the United States, this article examines the Inflation Adjustment Act and recommends possible legislative remedies for the Act's defects.
%SOURCENAMEESCAPED%, New: Big Data and Tax Haven Secrecy
(April 1, 2016)
While there is now significant literature in law,politics, economics, and other disciplines that examines tax havens, there is little information on what tax haven intermediaries — so-called offshore service providers — actually do to facilitate offshore evasion, international money laundering, and the financing of global terrorism. To provide insight into this secret world of tax havens, this Article relies on the Author’s study of big data derived from the financial data leak obtained by the International Consortium for Investigative Journalists (ICIJ). A hypothetical involving Breaking Bad’s Walter White is used to explain how offshore service providers facilitate global financial crimes. A transaction cost perspective assists in understanding the information and incentive problems revealed by the ICIJ data leak, including how tax haven secrecy enables elites in nondemocratic countries to transfer their monies for ultimate investment in stable democratic countries. The approach ...
%SOURCENAMEESCAPED%, REVISION: Agencies Running from Agency Discretion
(March 25, 2016)
Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming pre-decision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such pre-decision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations of the nature and scope of agency discretion available in modern administrative law, but agency discretion aversion and the concerns it raises have gone largely unaddressed in legal scholarship. And yet the discretion aversion syndrome is primed only to expand as climate change implicates a ...
%SOURCENAMEESCAPED%, REVISION: Land, Slaves, and Bonds: Trust and Probate in the Pre-Civil War Shenandaoh Valley
(March 18, 2016)
“Land, Slaves, and Bonds” samples wills filed for probate in Rockbridge County in Virginia’s Shenandoah Valley from 1820 to 1861, to detail the changes in probate practice during that era of market revolution. We report the gender, familial status, distributions, and use of trusts of the 128 testators sampled. Their choices often involved leaving part of their property to their surviving spouses for their lives, then outright to their sons and in trust to their daughters. Nearly forty percent owned enslaved human property and distributed their slaves among their children. Occasionally they freed their enslaved human property. This study also traces changes in sophistication of wills and accompanying trusts over time. Thus it provides an important window into how Rockbridge County residents used the legal process to transmit wealth between generations and to preserve it.
The forty years leading into Civil War were ones of extraordinary expansion in the economy, communication, ...
%SOURCENAMEESCAPED%, REVISION: Scholarships at Risk: The Mathematics of Merit Stipulations in Financial Aid Awards
(March 14, 2016)
Many law schools in the United States condition financial aid grants on the recipients’ maintenance of a certain grade point average. These merit stipulations require students to meet or exceed minimum academic standards in order to keep all or part of their financial aid. Law students should take merit stipulations into account when they decide whether to accept an offer of admission paired with a conditional grant of financial aid. By all accounts, they do not. Law schools should transparently disclose the likely effect of merit stipulations on their financial aid awards. By all accounts, law schools do no such thing. Absent external coercion, they are unlikely to change their current practices. In the absence of industry-wide standards counseling full disclosure of financial aid practices, this article will try to equip law school applicants with the mathematical tools to assess the real impact of merit stipulations on their financial well being.
This article first presents very ...
%SOURCENAMEESCAPED%, New: The FDIC as Holder in Due Course: Some Law and Economics
(March 10, 2016)
When a federally insured bank fails, the Federal Deposit Insurance Corporation (the "FDIC") typically intervenes to protect depositors. As part of the bailout, the FDIC undertakes the role of liquidator of the bank's assets, both physical and intangible. A bank's tangible assets consist primarily on its loan portfolio, that is, its rights to receive repayment from borrowers. A failed bank's loan portfolio is packaged with "troubled" loans, which are of doubtful collectibility for a variety of reasons. In most cases, the borrower is insolvent and simply cannot repay the loan. In other cases, the bank's right to repayment is subject to offset or reduction because the borrower has a valid defense against the bank. For example, a borrower may contend that he is relieved from his obligation to repay his loan on grounds that he lacked mental capacity to contract, or that the bank defrauded him. When the FDIC acquires a loan following a bank's failure, a borrower will assert this defense ...
%SOURCENAMEESCAPED%, New: A Paradigm for Sexual Harassment: Toward the Optimal Level of Loss
(March 10, 2016)
This article proposes a paradigm that draws from the common-law rule of negligence. It defines actionable sexual conduct in the workplace in terms of the cost of precautionary conduct and the increased safety such precaution would have yielded. Like the rule of negligence, the proposed paradigm creates incentives for men and women to take steps to prevent sexual conduct loss to the point at which the cost of an additional increment of precaution is equal to the value of the reduction in risk of loss. This point is the optimal level of precaution. After this point, additional precaution might further reduce sexual conduct loss, but the cost of such precaution would outweigh the resulting benefit.
%SOURCENAMEESCAPED%, New: The Latent Efficiency of Fraudulent Transfer Law
(March 10, 2016)
A creditor holding a claim against a debtor typically holds the right, subject to the debtor's default, to obtain a judgment against the debtor, liquidate the debtor's assets, and apply the proceeds against his claim. If the debtor's assets are insufficient to satisfy the creditor's claim, the creditor is usually, but not always, out of luck. Under limited circumstances, a creditor can reach property the debtor transferred to a third party and apply the value of such property to satisfy his claim. The creditor can undo the transfer and obtain the property or its value from the transferee as though the debtor had never transferred it. The circumstances under which the creditors can undo or "avoid" a transfer of the debtor's property, deprive the transferee of the value of the property, and apply such value to satisfy their claims are the subject of fraudulent transfer law.
Part II of this article sets out the fraudulent transfer rules and explains in basic terms how they work. It ...
%SOURCENAMEESCAPED%, New: Making Sense of Successor Liability
(March 10, 2016)
A firm that buys assets from another firm ordinarily does not acquire liability to the seller's creditors simply by buying its assets. This ordinary rule is subject to important exceptions. The buyer's consent triggers an exception. If a buyer agrees to assume the seller's liability to third parties, it is for that reason liable. This article considers a more controversial exception - successor liability. When a court decides that an asset acquirer should be treated as a "successor" to the transferor, it is liable for the transferor's debts as though it were the transferor.
%SOURCENAMEESCAPED%, New: Privacy, Autonomy, and Internet Platforms
(February 25, 2016)
To what extent will academics study data-driven firms like Facebook, and to what extent will they try to join forces with such firms’ own researchers, to study the firms’ users, clients, and suppliers? This essay, a chapter in a collection on the future of privacy law, examines the stakes of data collection, analysis, and use in an era of corporate social science. Social scientists, as users of models, may find that they can only access important data if they shift their inquiries toward the creation of “model users” (i.e., platform participants whose behavior maximizes the profits of the platform controlling the data). More disinterested or emancipatory research agendas can better promote the autonomy and well-being of platform users.
%SOURCENAMEESCAPED%, REVISION: Cornelius Sinclair's Odyssey: Freedom, Slavery, and Freedom Again in the Old South
(February 23, 2016)
In August 1825 several free, young black people were enticed onto a ship in the Delaware River along the Philadelphia waterfront. Thus began their descent to the heart of the old South. They were kidnapped and held aboard a ship destined for a stop somewhere near Cape Henlopen, Delaware. Some days later they were carried by wagon to Maryland’s eastern shore and another ship took them further south. They walked across Georgia and into Alabama. One young man, Cornelius Sinclair, was sold in Tuscaloosa. He was a free person converted into a slave. But that was not the end.
Those who survived were then taken to Mississippi, where a slave-owner realized that they were probably free. The slave-owner contacted the Mayor of Philadelphia to verify the story of kidnapping and eventually most of those held in Mississippi were sent back to Philadelphia. Then the mayor set about rescuing Sinclair, too. In Tuscaloosa, a local minister helped Sinclair by filing a lawsuit to ask for his ...
%SOURCENAMEESCAPED%, REVISION: Democratizing Higher Education
(February 21, 2016)
This article addresses many critiques of income-based repayment programs for student loan debt. These programs are not helping many of the students they were designed to aid. Their terms are too harsh, especially given repeated failures by relevant authorities to fully account for the benefits of higher education. If reformers fail to substantially improve the terms and accessibility of IBR programs, they will lose popularity and credibility.
%SOURCENAMEESCAPED%, REVISION: Coping with Uncertainty: Cost-Benefit Analysis, the Precautionary Principle, and Climate Change
(February 8, 2016)
Two competing strategies for setting climate policy are cost-benefit analysis and the precautionary principle. This Article analyzes these strategies and considers their application to climate risks in four case studies: determination of the social cost of carbon, international endorsement of a 2° ceiling on warming, EPA’s endangerment finding, and the polar bear listing decision. In practice, cost-benefit analysis of climate change encounters great difficulties. The precautionary principle works well in determining whether to regulate, but gives modest guidance about the level of regulation. One possibility might be to combine the approaches in a two-step process: (1) using economic models to help identify feasible emissions trajectories that minimize the risk of catastrophic outcomes, and then (2) backing out the social cost of carbon based on compliance costs along the optimum trajectories. In the meantime, the four case studies indicate that decision makers have managed to make ...
%SOURCENAMEESCAPED%, New: Racing the Clock: Deadlines, Conflict, and Negotiation in Lawmaking
(February 8, 2016)
Deadlines are a ubiquitous feature of lawmaking in contexts such diverse settings as agency rulemakings, federal appropriations, and international negotiations. Despite the expectation that these deadlines will drive conflicting parties toward agreement or overcome bureaucratic inertia, their impact on decision making is mixed, often producing only modest improvements in speed, and perhaps sometimes none at all. On the downside, deadlines can sometimes reduce the quality of decisions or encourage brinksmanship when missing a deadline would have draconian consequences. If there is a case for deadlines, then, it is an uneasy one. Game theory suggests some possibilities for to increase the effectiveness of deadlines as action-forcing strategies, such as improving information sharing between actors and providing enforcement mechanisms for negotiated outcomes.
%SOURCENAMEESCAPED%, New: Reforming the Law of Reputation
(February 6, 2016)
Unfair and deceptive practices of controllers and processors of data have adversely affected many citizens. New threats to individuals’ reputations have seriously undermined the efficacy of extant regulation concerning health privacy, credit reporting, and expungement. The common thread is automated, algorithmic arrangements of information, which could render data properly removed or obscured in one records system, nevertheless highly visible or dominant in other, more important ones.
As policymakers reform the law of reputation, they should closely consult European approaches to what is now called the “right to be forgotten.” Health privacy law, credit reporting, and criminal conviction expungement need to be modernized for the digital age to reflect the power of aggregating intermediaries. Search engines, social networks, and other digital tools may maintain the salience and power of certain information long after formal processes have determined it to be untrue, irrelevant, or ...
%SOURCENAMEESCAPED%, New: Synergy and Tradition: The Unity of Research, Service, and Teaching in Legal Education
(February 5, 2016)
Most non-profit law schools generate public goods of enormous value: important research, service to disadvantaged communities, and instruction that both educates students about present legal practice and encourages them to improve it. Each of these missions informs and enriches the others. However, technocratic management practices menace law schools’ traditional missions of balancing theory and practice, advocacy and scholarly reflection, study of and service to communities. This article defends the unity and complementarity of law schools’ research, service, and teaching roles. (For those short on time, the chart on pages 45-46 encapsulates the conflicting critiques of law schools which this article responds to.)
%SOURCENAMEESCAPED%, New: Voter Viewpoint Discrimination: Reconsidering a First Amendment Challenge to Voter Participation Restrictions
(February 4, 2016)
The Supreme Court's recent decision in Shelby County v. Holder has generated a flurry of scholarly thinking about alternative ways to approach legislatively enacted restrictions on voting rights. One alternative that deserves additional attention is the possibility of challenging voter participation restrictions (such as voter ID laws) as viewpoint discriminatory under existing First Amendment doctrine. Many of these laws, after all, are perceived as embodying a legislative choice to burden some voters but not others based on legislative expectations about how the most burdened voters are likely to vote. A viewpoint discrimination approach therefore seems ripe for further exploration. Part 1 of this paper explains why a First Amendment, viewpoint based challenge to at least some such laws is indeed appropriate. Part 2 uses existing First Amendment doctrine to ground the approach in existing case law, and to specify what it would look like in the election law context.
%SOURCENAMEESCAPED%, REVISION: Supply and Demand: Barriers to a New Energy Future
(January 13, 2016)
Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon-constrained world. Accounting for carbon has induced scholars to challenge the implicit assumption of the early scholarship that the price of energy reflects all important externalities, and that efficiency therefore can be assumed to mean the generation of the most energy at the lowest cost. Accounting for carbon also has contributed to the growing nexus between energy and environmental law, and has called on practitioners, regulators, and scholars to develop new regulatory solutions that integrate these previously ...
%SOURCENAMEESCAPED%, REVISION: Back to the Future? Legal Scholarship in the Progressive Era and Today
(December 6, 2015)
This article introduces volume 100 of the Minnesota Law Review. Like much of legal scholarship today, Issue 1 was deeply and unapologetically embedded in the concerns of its day, which was on the cusp between the Progressive Era and the outbreak of World War I. It is not uncommon to contrast modern legal scholarship with some past era in which scholarship was more doctrinal, less policy oriented, and more focused on issues relevant to practicing lawyers. Yet, of the four articles in Issue 1 of the law review (published in 1917), two are international or comparative, and three (including the comparative article) rely on policy arguments rather than limiting themselves to doctrinal analysis. The subjects include children’s rights and the juvenile justice system along with American neutrality in World War I. Indeed, even by the late nineteenth Century, there were complaints that law professors and law school education had departed too far from the realities of legal practice. The ...
%SOURCENAMEESCAPED%, New: Unconstitutional Quartering, Governmental Immunity, and Van Halen's Brown M&M Test
(December 4, 2015)
The jurisprudence of the Third Amendment, which limits the quartering of troops in private homes, effectively consists of just one case: Engblom v. Carey. But what a case! In addition to showcasing an unjustly neglected corner of our constitutional heritage, Engblom demonstrates the troubling effects of a dubious legal doctrine: governmental immunity. Though the court of appeals had held New York officials potentially liable for violating the Third Amendment when they had quartered National Guard troops in the dormitory rooms of striking prison guards, the lower court on remand in Engblom denied the plaintiffs a remedy. Why? Because throughout the United States, all levels of government — federal, state, and local — enjoy immunity from civil lawsuits. Courts have moreover extended this privilege from sovereigns to their officials; hence Engblom’s refusal to hold New York officials liable for violating the Third Amendment and various common law rights. Few people today worry about the ...
%SOURCENAMEESCAPED%, REVISION: Regulatory Exit
(December 2, 2015)
Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for businesses and individuals, the topic of exit has barely been touched in administrative law scholarship. Yet exit plays just as central a role in the regulatory state as elsewhere – welfare support ends; government steps out of rate-setting. In this article, we argue that exit is a fundamental feature of regulatory design and should be explicitly considered at the time of program creation.
Part I starts from first principles and sets out the basic features of regulatory exit. It addresses the design challenges of exit strategies and how to measure success of exit. With these descriptive and normative foundations in place, Part II develops a framework that explains the four ...
%SOURCENAMEESCAPED%, REVISION: Measuring, Monitoring, and Managing Legal Complexity
(December 2, 2015)
The American legal system is often accused of being “too complex.” For example, most Americans believe the Tax Code is too complex. But what does that mean, and how would one prove the Tax Code is too complex? The descriptive claim that an element of law is complex, and the normative claim that it is too complex, should be empirically testable hypotheses, yet in fact very little is known about how to measure legal complexity, much less to monitor and manage it.
Legal scholars have begun to employ the science of complex adaptive systems, also known as complexity science, to probe these kinds of descriptive and normative questions about the legal system. This body of work has focused primarily on developing theories of legal complexity and positing reasons for, and ways of, managing it. Legal scholars thus have skipped the hard part — developing quantitative metrics and methods for measuring and monitoring law’s complexity. But the theory of legal complexity will remain stuck in ...
%SOURCENAMEESCAPED%, REVISION: Liability for Online Anonymous Speech: Comparative and Economic Analyses
(November 2, 2015)
This is a pre-edited draft of of an article presented in the special session of the Annual Conference on European Tort Law. The article examines various models for handling the problem of online anonymous defamation from comparative and economic perspectives. The comparative analysis reveals four main paradigms. The US model bars content providers’ indirect liability, but facilitates identification of the speaker. The Israeli model recognises content providers’ fault-based liability but does not provide procedural tools for identifying the speaker. The EU framework enables the victim to request identification of the speaker, and at the same time bring an action against the content provider. Although there is variance among Member States, this model seems to comply with the relevant Directives and European court decisions. The recently-adopted English model (‘residual indirect liability’) enables the victim to pursue a claim against the speaker and, if the speaker is unavailable, ...
%SOURCENAMEESCAPED%, REVISION: Climate Adaptation Law
(October 24, 2015)
In anticipation of the inevitable shift from adaptation planning to adaptation action, this chapter provides a background on climate change adaptation policy and a survey of climate impacts and adaptation responses likely to put some demand on legal institutions and rules. Part II defines the key concepts and terms of climate change adaptation as it has been discussed in major policy analyses. Part III then summarizes the scope and focus of federal, state, local, tribal, and private climate change adaptation planning initiatives. Part IV reviews the current law of climate change adaptation, which as mentioned above is not yet extensive. What few morsels of legal initiative exist break down into five types: (1) coastal land use controls; (2) environmental impact assessment programs; (3) corporate disclosure requirements; (4) endangered species protection; and (5) anti-adaptation measures. Part VI surveys the potential legal issues climate change adaptation could spark, organized ...
%SOURCENAMEESCAPED%, REVISION: Managing Systemic Risk in Legal Systems
(October 24, 2015)
The American legal system has proven remarkably robust even in the face vast and often tumultuous political, social, economic, and technological change. Yet our system of law is not unlike other complex social, biological, and physical systems in exhibiting local fragility in the midst of its global robustness. Understanding how this “robust yet fragile” (RYF) dilemma operates in legal systems is important to the extent law is expected to assist in managing systemic risk — the risk of large local or even system-wide failures — in other social systems. Indeed, legal system failures have been blamed as partly responsible for disasters such as the recent financial system crisis and the Deepwater Horizon oil spill. If we cannot effectively manage systemic risk within the legal system, however, how can we expect the legal system to manage systemic risk elsewhere?
This Article employs a complexity science model of the RYF dilemma to explore why systemic risk persists in legal systems ...
%SOURCENAMEESCAPED%, New: Who Should Be Liable for Online Anonymous Defamation?
(October 10, 2015)
The paper discusses the question of liability for online anonymous defamation. Its main theoretical contribution lies in recognizing that the legal response to online anonymous defamation should be viewed and analyzed as a combination of two components. The first is the ability (or inability) to bring an action against the platform enabling the defamatory statement, which we call “the content provider.” Such an action may require modification of substantive law, namely recognition of some sort of indirect liability. The second component is the ability (or inability) to bring an action against the anonymous user, whom we call “the speaker.” Such an action does not require modification of substantive defamation law, but entails adaptation of procedural law, namely establishing a de-anonymization process. Because this framework provides two potential defendants, and each can be either liable or non-liable, there seem to be four possible liability regimes: (1) neither the speaker nor the ...
%SOURCENAMEESCAPED%, New: 'He Said, She Said,' With A Twist
(September 18, 2015)
Many studies have explored the effect of judges’ characteristics, such as gender or ethnicity, on their own decisions and perceptions. For example, some studies focused on the relationship between judges’ gender and their judgments on sexually based offenses. None has studied whether such characteristics affect people’s perceptions of the judgments. This question is important, inter alia, because the frequently heard argument that the judiciary must be ‘representative’ or ‘reflective of society’ is often linked to the assumption that representation increases public trust in the judiciary. Representation leads to trust only if members of a specific group have a greater trust in other members of the same group. Alas, empirical studies have not yet examined whether trust is actually dependent on judges’ identities.
It this article, we wish to study whether men and women perceive judgments concerning gender-charged events differently, especially in view of the judge’s gender. More ...
%SOURCENAMEESCAPED%, New: Getting Incentives Righter
(September 15, 2015)
This book review critically evaluates Robert Cooter & Ariel Porat's "Getting Incentives Right" (Princeton University Press, 2014). The review makes four general arguments, each addresses the book from a different angle.
First, the book provides universally applicable theoretical insights, but limits the critical evaluation of existing law, and the consequent reform proposals, to the United States. It thereby gives up accuracy, vigor, and audience. While this observation applies to the entire book, I provide several examples for the possible benefits of a comparative legal perspective.
Second, C&P seem to miss problematic incentives that implementing their proposals might entail. Specifically, some of the most innovative proposals for reform involve upward or downward adjustments of the scope of damages for the purpose of securing injurers' (and sometimes also victims') efficient conduct. I show that in adjusting damages to properly incentivize injurers, these reforms may also ...
%SOURCENAMEESCAPED%, New: Of Judges, Law, and the River: Tacit Knowledge and the Judicial Role
(September 10, 2015)
Judges and commentators on judging have long recognized that the judicial role frequently requires its holders to draw upon some source of inarticulable knowledge. Judge Joseph Hutcheson spoke of it in terms of “intuition,” Karl Llewellyn by reference to “situation sense,” and Justice Potter Stewart by reference to the phrase “I know it when I see it.” This essay, prepared in connection with a conference on judicial education, addresses the topic in terms of philosopher Michael Polanyi’s concept of “tacit knowledge.” Using the example of judging in aesthetic sports as a means of illustration, I suggest that our efforts to identify and limit the influence of improper unconscious influences — ideology, cognitive biases, and the like — must be tempered by a recognition of the ways in which judging necessarily, and desirably, draws on the proper sorts of unconscious influences that make up judges’ base of tacit knowledge.
%SOURCENAMEESCAPED%, New: The Eugenics Movement in North Carolina
(August 30, 2015)
“The Eugenics Movement in North Carolina” places North Carolina into the social, political, and legal context of the movement in the United States that resulted in the sterilization of more than thirty thousand people from the 1920s through the 1960s. We sketch the social and political arguments that were mobilized to support sterilization, as well as the arguments judges developed alongside these arguments from the 1910s through the 1930s. State courts slowly accepted sterilization until the United States Supreme Court’s decision in 1927 in Buck v. Bell. Then courts and legislatures around the United States more readily accepted it, even as legal scholars expressed reservations about sterilization. North Carolina was one of those states that embraced sterilization. The machinery of the state went into facilitating sterilization. The Eugenics Board of North Carolina, the state board in charge of reviewing petitions from public health officials for sterilization, produced ...