Jurisdynamics Network authors on SSRN

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:

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%SOURCENAMEESCAPED%, New: Who Should Be Liable for the COVID-19 Pandemic?, https://privwww.ssrn.com/abstract=3697283 (September 22, 2020)

The Article systematically and critically evaluates the potential liability of various “suspects” for the physical, emotional, and economic losses arising from the COVID-19 pandemic: the country-of-origin (the People’s Republic of China), international organizations (particularly the World Health Organization), federal, state, and local governments and officers, businesses, and healthcare providers. It concludes that existing legal frameworks fail to provide an appropriate solution for victims, primarily because each of the potential defendants can easily evade liability. The Article then proposes a new hybrid (international-domestic) regime, inspired by the international framework for the compensation of victims of nuclear incidents and by the September 11th Victim Compensation Fund.
%SOURCENAMEESCAPED%, REVISION: Artificial Intelligence, the Law-Machine Interface, and Fair Use Automation, https://privwww.ssrn.com/abstract=3665489 (September 21, 2020)

From IBM Watson's success in Jeopardy! to Google DeepMind's victories in Go, the past decade has seen artificial intelligence advancing in leaps and bounds. Such advances have captured the attention of not only computer experts and academic commentators but also policymakers, the mass media and the public at large. In recent years, legal scholars have also actively explored how artificial intelligence will impact the law. Such exploration has resulted in a fast-growing body of scholarship.

One area that has not received sufficient policy and scholarly attention concerns the law-machine interface in a hybrid environment in which both humans and intelligent machines will make legal decisions at the same time. To fill this void, the present article utilizes the case study of fair use automation to explore how legal standards can be automated and what this specific case study can teach us about the law-machine interface. Although this article utilizes an example generated from a ...
%SOURCENAMEESCAPED%, REVISION: The Second Transformation of the International Intellectual Property Regime, https://privwww.ssrn.com/abstract=3481553 (September 10, 2020)

A quarter of a century ago, the adoption of the TRIPS Agreement and the marriage of intellectual property and trade through the WTO transformed the international intellectual property regime. This Agreement ushered in not only new international minimum standards for protecting and enforcing intellectual property rights but also major changes to domestic intellectual property systems across the world.

Today, the international intellectual property regime is being transformed once again. Thanks to the proliferation of bilateral, regional and plurilateral trade and investment agreements, new international minimum standards are being developed to protect the investment-related aspects of intellectual property rights. Unlike the WTO, which provides for only state-to-state dispute settlement, the investor-state dispute settlement mechanism built into these newly adopted international agreements enables private investors, such as intellectual property rights holders, to sue foreign ...
%SOURCENAMEESCAPED%, REVISION: Challenges to the Development of a Human Rights Framework for Intellectual Property, https://privwww.ssrn.com/abstract=2517854 (September 10, 2020)

Since the establishment of the WTO TRIPS Agreement, government officials, international intergovernmental organizations, civil society groups, judges, academic commentators and the media have focused considerable attention on the interplay of intellectual property and human rights. In the mid-2000s, scholars have begun advocating the development of a human rights framework for intellectual property law and policy. As I pointed out in earlier works, such a framework will not only be socially beneficial, but will also enable countries to develop a balanced intellectual property system that takes international human rights obligations into consideration.

While the development of a human rights framework for intellectual property is important, skeptics have warned about the danger of an "arranged marriage" between intellectual property and human rights. Although their concerns are understandable, it may be too late to deny the protection of human rights-based interests in ...
%SOURCENAMEESCAPED%, REVISION: TRIPS and Its Contents, https://privwww.ssrn.com/abstract=3448332 (September 10, 2020)

In 2006, I published TRIPS and Its Discontents in a symposium commemorating the tenth anniversary of the WTO TRIPS Agreement. At that time, developing countries were deeply discontent with the Agreement and the new and higher intellectual property standards that the WTO had imposed upon them. By contrast, when the TRIPS Agreement was about to celebrate its twenty-fifth anniversary in April 2019, the developing countries' trenchant critiques of the Agreement were mostly gone. Also disappearing were their usual accusations of neoimperialism.

What has happened? Have developing countries successfully adjusted, or become sensitized, to the high intellectual property standards in the TRIPS Agreement? Have these countries and their supportive commentators and nongovernmental organizations become tired of criticizing the Agreement? Have developing countries and their supporters moved on to more pressing issues in the areas of intellectual property and international trade? Have these ...
%SOURCENAMEESCAPED%, REVISION: Can Algorithms Promote Fair Use?, https://privwww.ssrn.com/abstract=3507612 (September 3, 2020)

In the past few years, advances in big data, machine learning and artificial intelligence have generated many questions in the intellectual property field. One question that has attracted growing attention concerns whether algorithms can be better deployed to promote fair use in copyright law. The debate on the feasibility of developing automated fair use systems is not new; it can be traced back to more than a decade ago. Nevertheless, recent technological advances have invited policymakers and commentators to revisit this earlier debate.

As part of the Symposium on "Intelligent Entertainment: Algorithmic Generation and Regulation of Creative Works," this Article examines whether algorithms can be better deployed to promote fair use in copyright law. It begins by explaining why policymakers and commentators have remained skeptical about such deployment. The article then builds the case for greater algorithmic deployment to promote fair use. It concludes by identifying areas ...
%SOURCENAMEESCAPED%, REVISION: The Algorithmic Divide and Equality in the Age of Artificial Intelligence, https://privwww.ssrn.com/abstract=3455772 (September 3, 2020)

In the age of artificial intelligence, highly sophisticated algorithms have been deployed to provide analysis, detect patterns, optimize solutions, accelerate operations, facilitate self-learning, minimize human errors and biases and foster improvements in technological products and services. Notwithstanding these tremendous benefits, algorithms and intelligent machines do not provide equal benefits to all. Just as the digital divide has separated those with access to the Internet, information technology and digital content from those without, an emerging and ever-widening algorithmic divide now threatens to take away the many political, social, economic, cultural, educational and career opportunities provided by machine learning and artificial intelligence.

Although policy makers, commentators and the mass media have paid growing attention to algorithmic bias and the shortcomings of machine learning and artificial intelligence, the algorithmic divide has yet to attract much ...
%SOURCENAMEESCAPED%, REVISION: China's Innovative Turn and the Changing Pharmaceutical Landscape, https://privwww.ssrn.com/abstract=3437632 (September 3, 2020)

For more than a decade, China has been the world's leading supplier of active pharmaceutical ingredients. Today, it is not only the world's second largest pharmaceutical market, behind only the United States, but it also produces about four percent of the world's new pharmaceutical products. Despite these impressive accomplishments, China does not have internationally recognized pharmaceutical brands that are comparable to those found in Europe or the United States, such as Johnson & Johnson, Merck, Novartis, Pfizer, Roche and Sanofi. Nor does China rival India in its status as the "pharmacy of the world," providing generic drugs to needy countries from around the world, especially those in sub-Saharan Africa.

Since the mid-2000s, China has taken an innovative turn that has serious ramifications for the global pharmaceutical landscape and future developments at the intersection of intellectual property and public health. To be sure, many policymakers and commentators still ...
%SOURCENAMEESCAPED%, New: Forecasting Mortgage Demand: An Application of Traditional Methods, Machine Learning, and Neural Networks, https://privwww.ssrn.com/abstract=3656924 (August 27, 2020)

Demand forecasting relies heavily on traditional methods with well known limitations. Improved accuracy in predicting demand for mortgages, whether for purposes of purchase or refinance, is critical to profitability in home lending. To overcome obstacles to prediction using nonlinear relationships between variables and to long-term accuracy, we apply time-invariant machine-learning methods such as random forests. We also perform time-series analysis with a wide variety of deep learning architectures, including convolutional and recurrent neural networks. Time-series analysis through deep learning produces the most accurate results. Even shortcomings in forecast accuracy can reveal tacit changes in relationships among household-level and macroeconomic predictors of mortgage demand.
%SOURCENAMEESCAPED%, REVISION: The Intersection of IDL and Climate Change Law, https://privwww.ssrn.com/abstract=3655189 (August 21, 2020)

Scientists project serious increases in society’s exposure to extreme weather events as a result of climate change. Indeed, they have begun to link current disasters to climate change. As a result, international disaster law has begun to acknowledge the importance of taking account of climate change in disaster risk management. Simultaneously, climate negotiations are beginning to address disasters as a form of “loss and damage,” and more broadly under the rubric of climate change adaptation. Both fields of law can be enriched by this trend. This article discusses the growing interconnections of these two fields and future avenues for fruitful collaboration.
%SOURCENAMEESCAPED%, REVISION: Private Insurance Limits and Responses, https://privwww.ssrn.com/abstract=3675889 (August 21, 2020)

The COVID-19 pandemic exposed a number of existing flaws in the United States’ patchwork approach to paying for and providing access to medical care. Shelter-in-place orders, social distancing, and other public health strategies employed to address the pandemic spawned a global recession, causing rapid and high unemployment rates in many countries. The U.S. unemployment rate peaked in April 2020 at 14.7%, higher than in any previous period since World War II. The United States has long hewed an anachronistic policy of relying heavily on private employers to provide health insurance to a substantial portion of the population. Those who are not eligible for employer-sponsored insurance (ESI) must fend for themselves in the non-group market, unless they qualify for government-sponsored insurance or safety net programs. Companion Chapters in this volume describe the COVID-related challenges for Medicaid and the uninsured, while this Chapter focuses on the private insurance market. The ...
%SOURCENAMEESCAPED%, New: From Struggle to Surge: China's TRIPS Experience and Its Lessons for Access to Medicines, https://privwww.ssrn.com/abstract=3677329 (August 20, 2020)

The WTO TRIPS Agreement has imposed unprecedented burdens on countries in the developing world. Although many developing and least developed countries continue to struggle with the Agreement's high intellectual property protection and enforcement standards, large or populous emerging economies, such as Brazil, China, India, South Africa, Thailand, have managed to adapt the Agreement with some success. As economic and technological conditions improved, these emerging economies began to secure even greater benefits from the TRIPS-based intellectual property system, thereby initiating a self-reinforcing virtuous cycle.

Out of all emerging economies, no country provides a better illustration for a complete transformation of its intellectual property system and pharmaceutical landscape than China. This chapter therefore aims to document the country's journey from its struggle with the TRIPS Agreement to its recent surge in the global pharmaceutical arena. It begins by recounting ...
%SOURCENAMEESCAPED%, New: Beyond Transparency and Accountability: Three Additional Features Algorithm Designers Should Build into Intelligent Platforms, https://privwww.ssrn.com/abstract=3670295 (August 17, 2020)

In the age of artificial intelligence, innovative businesses are eager to deploy intelligent platforms to detect and recognize patterns, predict customer choices and shape user preferences. Yet, such deployment has brought along the widely documented problems of automated systems, including coding errors, corrupt data, algorithmic biases, accountability deficits and dehumanizing tendencies. In response to these problems, policymakers, commentators and consumer advocates have increasingly called on businesses seeking to ride the artificial intelligence wave to build transparency and accountability into algorithmic designs.

While acknowledging the benefits and urgency of these calls for actions, this article highlights the complications the growing use of artificial intelligence and intelligent platforms has brought to this area. Commissioned for the 2020 Northeastern University Law Review Symposium entitled "Eyes on Me: Innovation and Technology in Contemporary Times," this ...
%SOURCENAMEESCAPED%, REVISION: The Inconspicuous DHS: The Supreme Court, Celebrity Culture, and Justice David H. Souter, https://privwww.ssrn.com/abstract=3651361 (August 11, 2020)

Thirty years ago this summer President George H.W. Bush nominated Judge David H. Souter to fill the Supreme Court seat from which Justice William Brennan had just announced his retirement. Souter quickly became known as the “stealth nominee”—he had taken no public positions on the controversial issues of the day and lived an unusually disconnected personal life. Liberals were convinced he had given private assurances he would provide the fifth vote to overrule Roe and conservatives hoped that was the case. Those who knew Souter—and Souter himself—claimed he would bring no agenda to the Court. This latter group proved most prescient. Indeed, in just his second term Justice Souter teamed with Justices Kennedy and O’Connor to author a joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which they provided the crucial votes to uphold Roe. As a result, “No More Souters” became a conservative refrain. More generally, Souter’s behavior as a justice tracked that of ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Human Rights and Methodological Reflections, https://privwww.ssrn.com/abstract=3247346 (August 11, 2020)

Since the mid-2000s, scholars have paid considerable attention to the interface between intellectual property and human rights. Today, one can easily find books and law review articles on the subject. Initially, most of these discussions focused on topics such as access to essential medicines, access to knowledge, and the protection of traditional knowledge and traditional cultural expressions. In recent years, however, the literature has been expanded to cover new or underexplored areas, such as Internet-related human rights, the right to science and culture, the use of human rights impact assessments in the intellectual property area, the human rights challenges posed by bilateral, regional, and plurilateral trade agreements, and, more recently, human rights issues implicated by artificial intelligence.

Although scholarship on intellectual property and human rights has been growing rapidly, commentators rarely articulate the different methods used to conduct research in this ...
%SOURCENAMEESCAPED%, REVISION: Caught in the Middle: WIPO and Emerging Economies, https://privwww.ssrn.com/abstract=3464171 (August 11, 2020)

When the World Intellectual Property Organization was established in April 1970--with its origins tracing back to the adoption of the WIPO Convention in July 1967--the organization was at the center of a deeply divisive debate between developed and developing countries over the appropriate design of the international intellectual property system. A few years later, WIPO became a U.N. specialized agency. With the UN Department of Economic and Social Affairs and the United Nations Conference on Trade and Development, it coauthored the report entitled The Role of the Patent System in the Transfer of Technology to Developing Countries. The report’s pro-development views contrasted significantly with the traditional positions taken by WIPO and its predecessor. Those positions closely aligned with the views of inventors and their supportive developed countries.

More than five decades after the adoption of the WIPO Convention, the North-South divide continued to dominate debates ...
%SOURCENAMEESCAPED%, REVISION: The Incremental Development of the ASEAN-China Strategic Partnership for Intellectual Property, https://privwww.ssrn.com/abstract=2657358 (August 11, 2020)

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 the Association of Southeast Asian Nations (ASEAN) within a decade. Since then, the two trading powers established a framework agreement as well as agreements on dispute settlement, trade in goods, trade in services and investment. They also developed memoranda of understanding on cooperation in a wide variety of areas, including agriculture, disaster management, health, information and communications technology, intellectual property, non-traditional security issues, sanitation and phytosanitation, standards, technical regulations and conformity assessment, and transportation. Taken together, these instruments helped build and strengthen the ASEAN-China Free Trade Area (ACFTA), which has served important economic, geopolitical and strategic goals.

This chapter documents the incremental efforts ASEAN and China have undertaken to ...
%SOURCENAMEESCAPED%, REVISION: Introduction to Intellectual Property Law and Policy in China, https://privwww.ssrn.com/abstract=3280257 (August 11, 2020)

This essay provides an introduction to Intellectual Property Law and Policy in China, a multiple-volume reference set on the Chinese intellectual property system. It discusses how the 90 articles and chapters selected for this reference set have been organized into four broadly defined areas: (1) historical evolution; (2) special topics; (3) interdisciplinary understanding; and (4) possible futures. The essay further explains why these four areas are important to readers who are eager to develop a deeper understanding of the Chinse intellectual property system.
%SOURCENAMEESCAPED%, REVISION: Exceptional Circumstances: Immigration, Imports and Climate Change as Emergencies, https://privwww.ssrn.com/abstract=3546613 (August 4, 2020)

President Trump has used emergency powers to achieve key parts of his policy agenda, exemplified by his travel ban, funding for the border wall, and tariffs on many imports. This essay examines how the Administration has invoked the need for urgent action in these and other settings, along with the responses of the courts. The essay also consider how these actions could be used as precedents by future presidents, such as declaring a climate change emergency. Finally, the essay discusses the risks of normalizing the use of emergency powers, along with the forces that may impel presidents in that direction.
%SOURCENAMEESCAPED%, REVISION: Unconstitutional Quartering, Governmental Immunity, and Van Halen's Brown M&M Test, https://privwww.ssrn.com/abstract=2698885 (July 23, 2020)

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: Client-Focused Management of Expectations for Legal Fees in Large Chapter 11 Cases, https://privwww.ssrn.com/abstract=3541347 (July 22, 2020)

This article discusses the dynamics that create a disincentive for most parties to monitor fees in large chapter 11 cases and will then provide suggestions to inside counsel whose organizations find themselves involved in those cases — as the debtor, as a member of the creditors' committee, or as a secured creditor whose collateral is being tapped for the carve-out to pay the professionals' fees.
%SOURCENAMEESCAPED%, New: Internet Nondiscrimination Principles Revisited, https://privwww.ssrn.com/abstract=3634625 (July 16, 2020)

Unfair and sometimes illegal business practices have contributed to the massive growth and power of dominant digital platforms. These platforms therefore enjoy undeserved power. Policymakers should embrace basic principles of fairness to ensure their power is reduced, or at least is exercised in a more responsible way. Nondiscrimination is critical: these platforms should not be able to undercut smaller businesses to promote their own offerings in a biased way. A nondiscrimination model could help policymakers better develop targeted regulation. Antitrust enforcement, transparency, and some aspects of public utility regulation are also critical.
%SOURCENAMEESCAPED%, REVISION: The Long Shadow of Jacobson v. Massachusetts: Epidemics, Fundamental Rights, and the Courts, https://privwww.ssrn.com/abstract=3635740 (July 7, 2020)

When emergency health measures have impinged on constitutional rights, judges have often turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, which upheld a state law requiring smallpox vaccination.

Courts are all over the map on how to apply Jacobson.. Some have viewed Jacobson as providing a special constitutional standard during epidemics. As this paper shows, history doesn’t support that view. Other judges have used “business as usual” constitutional analysis that ignore the crisis conditions under which the government must contend with today.

During a pandemic, the government confronts a fast-changing situation presenting risks of catastrophic loss of life, under conditions of uncertainty. Similar conditions prevail in national security cases. There, courts apply the normal constitutional tests but give extra deference to the government. Many though not all of the reasons are similar to the coronavirus situation. The lesson would be to ...
%SOURCENAMEESCAPED%, REVISION: After Agrarian Virtue, https://privwww.ssrn.com/abstract=3449558 (July 2, 2020)

What constitutes agrarian virtue? Across human or even geological history, agrarian virtue subsists in the sustained production of food, fiber, and fuel without the exhaustion of finite resources or the undue disruption of evolutionary processes on which human survival depends. Contemporary agricultural law, however, often emphasizes the expressive self-actualization of food preferences. This natural sublimation of economic independence from producers to consumers epitomizes agrarian vice. Restoration of agrarian virtue demands not telos (τέλος) in its purposive sense, but rather acceptance of kyklos (κύκλος), or cyclicality in its full economic and ecological sense.
%SOURCENAMEESCAPED%, REVISION: Aesthetic Judging and the Constitution (Or, Why Supreme Court Justices Are Less like Umpires, and More like Figure-Skating Judges), https://privwww.ssrn.com/abstract=3459021 (June 25, 2020)

This essay advances the claim that Supreme Court justices, especially in constitutional cases, are better analogized to judges in aesthetic sports, such as figure skating, than to the more familiar baseball umpire. The metaphor is descriptively stronger, in that both sets of actors make considerable use of unarticulated (and often inarticulable) norms and internalized conceptual knowledge in addition to the formal rules governing their respective domains, in that it accounts for the significance of acculturation in the acquisition of those norms and that knowledge, and in that it provides an account of how a system such as constitutional law can evolve apart from (and even without) changes to the formal rules. Finally, the metaphor serves as a useful caution. Figure skating judges, after all, do not enjoy a reputation for probity. Conceiving of the justices in those terms thus invites consideration of the sorts of factors that might lead to crisis in either context, an exercise that ...
%SOURCENAMEESCAPED%, New: Ulex: Open Source Law for Non-Territorial Governance, https://privwww.ssrn.com/abstract=3605807 (June 15, 2020)

Communities that stretch across international borders struggle to resolve their members’ disputes. It is not a trifling problem. Distributed protocols such as Ethereum, EOS, and Dash host hundreds of billions of dollars in assets and handle transactions worth millions daily. Their members likely number in the tens of millions, scattered in unknown locations across the globe. Even the most successful of these communities have fractured over questions of how to interpret, apply, and amend their rules. The resulting “governance by hardfork” has generated skepticism about all things crypto – from currencies, to economics, to governments. Distributed protocols need a comprehensive, trustworthy, independent set of rules for resolving disputes. Ulex, an open source legal system, offers a solution. Its substantive and procedural rules can resolve the disputes of communities stretching across international borders. Its flag-free rules, drawn from tested and trusted private and ...
%SOURCENAMEESCAPED%, New: Regulatory Frameworks for Precision Medicine at the Food & Drug Administration, https://privwww.ssrn.com/abstract=3264371 (June 8, 2020)

The concept of precision medicine is not new; its promise and allure have a rich history in genetics and genomics, building squarely on international research efforts begun decades ago and culminating in the publication of the complete human genome sequence in 2004. Now, nearly 15 years following the conclusion of the Human Genome Project (HGP), the terminology describing the idea of channeling genomic information into more targeted medical products has evolved, to include pharmacogenomics, personalized medicine, targeted medicine, and, most recently, precision medicine. All envisage the ability to make medical care and medical products “precise” for the patient; that is, tailored to an individual’s genetic makeup in order to maximize safety, efficacy, mortality, and quality of life. In his unveiling of the Precision Medicine Initiative in 2015, President Obama noted this program is about “delivering the right treatments, at the right time, every time to the right person.” Similar to ...
%SOURCENAMEESCAPED%, New: Three Framings of 'Faster' at the FDA and the Federal Right to Try, https://privwww.ssrn.com/abstract=3599624 (June 8, 2020)

In May 2018, Congress passed the controversial Right to Try (“RTT”) Act, creating a process for terminally ill patients to request access to investigational drugs. The federal RTT Act is not the first legal mechanism that fosters quicker access to investigational drugs. This new right to try is distinct from existing pathways created by law, regulation or federal administrative agency policy. Various mechanisms facilitated by the U.S. Food and Drug Administration (“FDA”) are significantly more substantial and important in the context of “faster” access to therapeutic products. These mechanisms lie along a spectrum of product development spanning investigational new drug status to postmarket studies and surveillance. I categorize these mechanisms into three areas: expansion, acceleration, and extension. The federal right to try can be characterized as an expansion, expanding patient access to investigational new drugs as an alternative mechanism to the FDA’s long-standing expanded ...
%SOURCENAMEESCAPED%, New: Training Law Students to Maintain Civility in Their Law Practices as a Way to Improve Public Discourse, https://privwww.ssrn.com/abstract=3616995 (June 3, 2020)

Our current social discourse is broken. Not only have we resorted to name-calling instead of reasoned discussion, but we have also resorted to the fundamental attribution error: we attribute bad motives to people with whose positions we disagree rather than starting with the presumption that, perhaps, buried deep within their positions could be a grain of truth. We need to find a way to reach across the void. As a way of mending our torn social fabric, I recommend that we train law students not only to pick apart bad arguments but also to find ways to pick arguments apart without showing disrespect for the person making the argument. By training law students to behave civilly, even when they are convinced that the other person is flat-out wrong, we might just be able to get people to hear each other, rather than speak past each other--not just in law schools, not just in universities, but in our society.
%SOURCENAMEESCAPED%, New: Using General Counsel to Set the Tone for Work in Large Chapter 11 Cases, https://privwww.ssrn.com/abstract=3591118 (May 28, 2020)

Building on my earlier work on professional fees in large Chapter 11 cases, this article suggests that the best way to monitor and control those fees is for the general counsel / chief legal officer of the debtor-in-possession and for major creditors to set the ground rules for how professionals carry out their work. Paying far closer attention to budgets and staffing will help keep those fees reasonable.
%SOURCENAMEESCAPED%, REVISION: Taxing Global Digital Commerce, https://privwww.ssrn.com/abstract=3515446 (May 22, 2020)

This latest edition of the preeminent text on the taxation of cross-border digital commerce transactions — formerly titled Electronic Commerce and International Taxation (1999), Electronic Commerce and Multijurisdictional Taxation (2001) — revises, updates, and expands the book’s coverage. It includes a detailed and up-to-date analysis of digital VAT and global income tax developments, and explores the implications of digital commerce for the US state and local sales and use tax regime in the wake of the US Supreme Court decision in South Dakota v. Wayfair, Inc. (2018). Analysing the practical tax consequences of digital commerce from a multijurisdictional perspective and using examples to illustrate the application of different taxes to digital commerce transactions, the book offers in-depth treatment of such topics as: (a) the OECD and G20’s digital tax reforms under the Base Erosion and Profit Shifting project; (b) the new or proposed equalization levies, digital services taxes, ...
%SOURCENAMEESCAPED%, REVISION: Governing Cascade Failures in Complex Social-Ecological-Technological Systems: Framing Context, Strategies, and Challenges, https://privwww.ssrn.com/abstract=3471945 (May 18, 2020)

Systems fail, and bigger, faster, more powerful and complex systems cause bigger, faster, more powerful and complex failures. Power grid blackouts have long attracted attention to cascade failure in technological systems; the 2008 financial collapse put a spotlight on cascade failure in economic systems; climate change threatens cascade failure in ecological systems triggering cascade failure in human systems; cyber attacks and the sense that social media platforms are out of control are the new cascade failure policy concerns. These are not independent phenomena—they are interdependently embedded in and cascading through large-scale social-ecological-technological systems (SETS). As such, they are not independent governance propositions either; rather, they go to the essence of how policies can build resilience into SETS while balancing the systemic risk that comes with bigger, faster, more powerful and complex systems.

Governing systemic risk to cascade failure in SETS thus ...
%SOURCENAMEESCAPED%, REVISION: The Roman Public Trust Doctrine: What Was It, and Does It Support an Atmospheric Trust?, https://privwww.ssrn.com/abstract=3440244 (May 18, 2020)

Through building waves of legal scholarship and litigation, a group of legal academics and practitioners is advancing a theory of the public trust doctrine styled as the “atmospheric trust.” The atmospheric trust would require the federal and state governments to regulate public and private actors to reduce greenhouse gas emissions so as to abate climate change. The traditional common law version of the American public trust doctrine requires the states to hold title to lands submerged under navigable waters in trust for the public to use for navigation, fishing, and commerce, and that the states not alienate such resources to the detriment of this public interest. Some states have incrementally expanded the public trust doctrine to other resources and other uses, but thus far no federal or state court of last resort has adopted anything like the atmospheric trust.

Advocates of the atmospheric trust argue that it, like the traditional doctrine, enjoys a pedigree that traces ...
%SOURCENAMEESCAPED%, REVISION: What Happens When the Green New Deal Meets the Old Green Laws?, https://privwww.ssrn.com/abstract=3531895 (May 18, 2020)

The multi-faceted infrastructure goals of the Green New Deal will be impossible to achieve in the desired time frames if the existing federal, state, and local siting and environmental protection statutory regimes are applied. Business, labor, property rights, environmental protection, and social justice interests will use them to grind the Green New Deal to a snail’s pace. Using the renewable energy transition as the infrastructure case study, this Essay is a call to arms for the need to design New Green Laws for the Green New Deal. Part I briefly summarizes what we are learning about the pace and magnitude of climate change impacts and the need for rapid and robust mitigation and adaptation responses. Part II demonstrates the magnitude and urgency of new renewable energy infrastructure needed to fulfill Green New Deal goals. Part III points to the intensity of pushback renewable energy has faced under existing siting and environmental protection laws. Part IV uses the Texas wind ...
%SOURCENAMEESCAPED%, REVISION: COVID-IP: Staring down the Bayh-Dole Act with 2020 Vision, https://privwww.ssrn.com/abstract=3599621 (May 14, 2020)

As the human and economic toll of the COVID-19 coronavirus steadily escalates, there is extreme uncertainty about the timeframe for preventing, detecting, and treating it. There is also concern about the eventual costs associated with approved products and the barriers to access created by the patent system. Industry, government, and academic collaborations are leading the charge in the discovery race, partnerships which have triggered calls for the activation of the federal governments so-called “march-in rights” established in the Bayh-Dole Act. The Bayh-Dole Act dramatically altered the patent protections available to federally funded academic institutions and scientists and initiated a 40-year debate over appropriate incentives for innovation and the scope of the government’s authority.

The COVID-19 coronavirus pandemic provides an opportunity to reflect on the purpose and impact of the historic legislation as well as contemplate the implications for our public ...
%SOURCENAMEESCAPED%, REVISION: Adaptive Management for Ecosystem Services at the Wildland-Urban Interface, https://privwww.ssrn.com/abstract=3407579 (May 5, 2020)

Managing the wildland-urban interface (WUI) is a widely-recognized land use problem plagued by a fractured geography of land parcels, management jurisdictions, and governance mandates and objectives. People who work in this field have suggested a variety of approaches to managing this interface, from informal governance to contracting to insurance. To date, however, none of these scholars have fully embraced the dynamism, uncertainty, and complexity of the WUI — that is, its status as a complex adaptive system. In focusing almost exclusively on the management of this interface to control wildfire, this scholarship largely ignores the factor that rampant wildfire is itself the product of incursions into important ecosystem services on both sides of the interface. In many cases, people tend to expand out towards the wildland not just for economics (cheaper housing) but also because of a suite of ecosystem services that are readily accessible at the interface, including aesthetics, a ...
%SOURCENAMEESCAPED%, New: One Child Town: The Health Care Exceptionalism Case Against Agglomeration Economies, https://privwww.ssrn.com/abstract=3560171 (March 27, 2020)

This Article offers an extended rebuttal to the suggestion to move residents away from dying communities to places with greater economic promise. Rural America, arguably, is one of those dying places. A host of strategies aim to shore up those communities and make them more economically viable. But one might ask, “Why bother?” In similar vein, David Schleicher’s provocative 2017 Yale Law Journal article, Stuck! The Law and Economics of Residential Stagnation urged dismantling a host of state and local government laws operating as barriers to migration by Americans from failing economies to robust agglomeration economies. But Schleicher said little about the fate of the places left behind. Schleicher’s article drew a number of pointed responses, urging the value and preservation of Small Town America. But those arguments failed fully to meet the rational economic thesis, countering instead with more sentimental or humanitarian concerns. This article offers a way to reconcile ...
%SOURCENAMEESCAPED%, New: The Law and Economics of Online Republication, https://privwww.ssrn.com/abstract=3552301 (March 18, 2020)

Jerry publishes unlawful content about Newman on Facebook, Elaine shares Jerry’s post, the share automatically turns into a tweet because her Facebook and Twitter accounts are linked, and George immediately retweets it. Should Elaine and George be liable for these republications? The question is neither theoretical nor idiosyncratic. On occasion, it reaches the headlines, as when Jennifer Lawrence’s representatives announced she would sue every person involved in the dissemination, through various online platforms, of her illegally obtained nude pictures. Yet this is only the tip of the iceberg. Numerous potentially offensive items are reposted daily, their exposure expands in widening circles, and they sometimes “go viral.”

This Article is the first to provide a law and economics analysis of the question of liability for online republication. Its main thesis is that liability for republication generates a specter of multiple defendants which might dilute the originator’s ...
%SOURCENAMEESCAPED%, New: Public Health Preparedness & Response: An Exercise in Administrative Law, https://privwww.ssrn.com/abstract=3535949 (March 10, 2020)

Responses to epidemics, pandemics, and other biological disasters require multiple coordinated initiatives that combine sophisticated planning, sound emergency management, effective stockpiles, solid geographic information systems, well-developed laboratory surveillance and response, and effective management capabilities. Critical to the noted elements of planning and response is the existence of a legal structure, which underpins the operations of necessary programs. While the law may not be the first public health tool considered in a disaster, it is fundamental to the effective functioning of multiple actors and must be harmonized across jurisdictional lines. This article explores the role of law in pandemics and other biological catastrophes, highlighting broad developments in public health law that have been sparked by recent events. The piece will consider general responses and trends in health disaster management in the context of administrative law with a particular focus on ...
%SOURCENAMEESCAPED%, New: Leveraging Legal Analytics and Spend Data as a Law Firm Self-Governance Tool, https://privwww.ssrn.com/abstract=3525660 (February 24, 2020)

This paper discusses the advantages that law firms can get by using legal analytics (big data) to analyze how they do their work for their clients (and how their clients can benefit as well). We discuss the external forces that are reshaping the economics of today’s legal industry; the types of decisions, in determining how best to represent a client in a given matter, that tend to drive up costs; the possible reasons for those decisions; how law firms can use data-analytics tools to examine their own choices; and the benefits that stem from a data-driven analysis of those choices.
%SOURCENAMEESCAPED%, REVISION: Ecosystem Services and Federal Public Lands: A Quiet Revolution in Natural Resources Management, https://privwww.ssrn.com/abstract=3471445 (February 21, 2020)

The major federal public land management agencies (the Forest Service, Bureau of Land Management, Park Service, Fish & Wildlife Service, and Department of Defense) have increasingly adopted a language that did not exist twenty-five years ago—the language of ecosystem services. Ecosystem services are the range of benefits that ecological resources provide to humans, from water purification and pollination to carbon sequestration and wildlife habitat. The scientific discipline advancing the ecosystem services framework arose in the mid-1990s and quickly became a central strategy for fusing ecological and economics research. Despite its ascendance in research communities, the recognition and conservation of ecosystem services in law and policy has been a more gradual, incremental process. While largely unrecognized, the federal public land management agencies have been embedding consideration of ecosystem services in their policy decision making. Looking back, it is remarkable how ...
%SOURCENAMEESCAPED%, New: Economic Forecasting With Autoregressive Methods and Neural Networks, https://privwww.ssrn.com/abstract=3521532 (February 12, 2020)

Neural networks can forecast economic data with accuracy matching that of conventional autoregressive methods such as SARIMA and VAR. This study uses dense, recurrent, convolutional, and convnet/RNN hybrids to conduct time-series analysis of interest rates, consumer and producer prices, and labor market data. Training on 14 years of data, neural networks produce accurate 50-year forecasts. Gaps in these forecasts may reveal macroeconomic regime changes. Failures in otherwise accurate neural network forecasts may thus inform theoretical economic hypotheses through unsupervised machine learning.
%SOURCENAMEESCAPED%, REVISION: Exploring Precision FDA, an Online Platform for Crowdsourcing Genomics, https://privwww.ssrn.com/abstract=3017395 (February 11, 2020)

Precision medicine is here, with rapid advancements in the technologies, tools, and life-saving products entering the market for the treatment of serious and life-threatening disease. In May 2017, the United States Food and Drug Administration (FDA) approved the first cancer treatment for solid tumors based on a genetic biomarker rather than the tissue of origin. One month later, the agency approved a companion diagnostic panel that utilizes next generation sequencing (NGS) to simultaneously screen a genetic sample for 23 cancer genes, three of which have FDA-approved therapies for non-small cell lung cancer. Together, these developments represent a “seismic shift” in the field of oncology and illustrate the tremendous promise for medicine facilitated by NGS. However, innovative NGS research and data-sharing models depart in significant ways from traditional research and development relationships in the life sciences, potentially raising a host of novel legal ...
%SOURCENAMEESCAPED%, New: Measure for Measure: The Risks of Incorporating Citations Data into U.S. News Rankings, https://www.ssrn.com/abstract=3518770 (February 5, 2020)

This short essay responds to Paul Heald and Ted Sichelman’s article, Ranking the Academic Impact of 100 American Law Schools. Heald and Sichelman's work provides a rigorous analysis of law school faculties’ citation and download statistics. Their recommendation to incorporate these statistics into U.S. News & World Report’s annual law school rankings, however, appears misguided. Heald and Sichelman do not fully take into account the concerning gaming behavior and problem¬atic incentives related to faculty hiring that such incorporation would likely produce over time.
%SOURCENAMEESCAPED%, New: Sharing Tax Information in the 21st Century: Big Data Flows and Taxpayers as Data Subjects, https://privwww.ssrn.com/abstract=3510273 (February 3, 2020)

In the last 10 years, governments have initiated several reforms to automatically exchange bulk taxpayer information with other governments (mainly via the Foreign Account Tax Compliance Act, the common reporting standard, and country-by-country reporting). This enhanced sharing of tax information has been encouraged both by technological change, including digitization, big data, and data analytics; and by political trends, including governments' efforts to reduce offshore tax evasion and aggressive international tax avoidance. In some cases, however, legal protections for taxpayer privacy and other interests are insufficiently robust for this emerging international sharing framework. Conceptually, taxpayers should be seen as "data subjects" whose rights are proactively protected by data protection laws and policies, including fair information practices. An optimal regime, which would balance the interests of taxpayers against those of tax authorities, should include a multilateral ...
%SOURCENAMEESCAPED%, Update: The Pathways of Multinational Intellectual Property Dispute Settlement, https://privwww.ssrn.com/abstract=3284942 (January 3, 2020)

Multinational intellectual property dispute settlement is fraught with challenges. While most right holders have relied on domestic litigation in countries in which they invest or conduct business – or host states in investment lingo – the arrival of new international trade, investment and intellectual property agreements have provided alternative mechanisms for settling these disputes.

To deepen our understanding of the different pathways of multinational intellectual property dispute settlement, this chapter assesses three distinct mechanisms: (1) domestic litigation in host states; (2) state-to-state dispute settlement (SSDS); and (3) investor-state dispute settlement (ISDS).

This chapter begins by identifying the various challenges multinational intellectual property right holders encounter when they seek to resolve foreign disputes. It then highlights the improvements provided by international intellectual property agreements and the agreements’ mixed success in ...
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%SOURCENAMEESCAPED%, New: Tax Wars: How to End the Conflict over Taxing Global Digital Commerce, https://privwww.ssrn.com/abstract=3493940 (December 31, 2019)

In the last two years, dozens of governments have proposed or introduced unilateral tax measures to tax foreign-based technology companies. The new tax innovations include special withholding taxes, diverted profit taxes, minimum taxes and digital services taxes. The rise of these unilateral measures threatens an international tax ‘war’ among governments that could stifle new business models or even the spread of the global digital economy. This Article reviews how international reform efforts have failed to constrain aggressive international tax planning and how the global digital tax conflict masks a growing dissatisfaction with how to tax value associated with global transactions. A coordinated solution that creates an economic presence test (a Quantitative Economic Presence Permanent Establishment) and modifies how tax revenues are divided between countries (e.g., the Residual Profit Split by Income proposal) is the best way to address these global developments.
%SOURCENAMEESCAPED%, New: Data-Informed Duties in AI Development, https://privwww.ssrn.com/abstract=3503121 (December 13, 2019)

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to industry to help it avoid preventable accidents. It will also assist a judiciary that is increasingly called upon to develop common law in response to legal disputes arising out of the deployment of AI.
%SOURCENAMEESCAPED%, New: Moving in Opposite Directions? Exploring Trends in Consumer Demand and Agricultural Production, https://www.ssrn.com/abstract=3493430 (December 13, 2019)

This article explores two divergent trends in the American food system: (1) consumer demand for “real” food that is sustainably produced and (2) the economic and political forces that continue to encourage consolidation and industrialization in agricultural production. It first considers consumer preferences for their food system, noting the evolution of the food movement from elite to mainstream in its significance. It then explores the latest data regarding agricultural production from the Census of Agriculture, revealing strong movement in a seemingly opposite direction from the consumer food movement. The article concludes by offering some signs that the future may provide hope for reconciliation, moving our food system in a positive, healthy, and sustainable direction.
%SOURCENAMEESCAPED%, New: Examining Food Safety From a Food Systems Perspective: The Need for a Holistic Approach, https://www.ssrn.com/abstract=3493366 (December 13, 2019)

There has been an effort to shift the focus of the Food and Drug Administration’s (FDA) food safety approach from reactive to preventative. The recently enacted Food Safety Modernization Act was hailed as a means to “transform the FDA from an agency that tracks down outbreaks after the fact, to an agency focused on preventing food contamination in the first place.” While this attempted proactivity is laudable in many respects, the United States’ overall approach toward food safety remains highly compartmentalized and is seemingly unable to consider safety concerns on a systemic scale. This has resulted in actions based on narrow and immediate justification with unanticipated negative consequences. This Article considers the inherently systemic nature of our food system and the inability of the agencies involved to address it as such.
%SOURCENAMEESCAPED%, New: Artificial Intelligence, Machine Learning, and Bias In Finance: Toward Responsible Innovation, https://privwww.ssrn.com/abstract=3486441 (December 6, 2019)

Over the last decade, a growing number of digital startups launched bids to lure business from the financial services industry. Financial technology (“fintech”) firms deploying ever more complex and opaque algorithms assess the creditworthiness of consumers. Armed with vast quantities of data and complex algorithms to interpret the data, these firms are reigniting debates about how best to regulate financial institutions and technology firms engaged in consumer banking activities.

With a few quick taps on a smart phone, consumers can access a growing universe of apps that offer discounted interest rates on consumer loans. For proponents, the launch of fintech firms marks a new frontier in the ever-expanding utopian vision of the “technological sublime” or faith-like devotion to the potential for technology to transform us into a more equitable and just society. Consumer advocates are justifiably skeptical. While legally prohibited today, well-documented discriminatory, ...
%SOURCENAMEESCAPED%, REVISION: A Hater's Guide to Geoblocking, https://privwww.ssrn.com/abstract=3361772 (November 20, 2019)

Geoblocking restricts access to online content based on the user's geographical location. Territorially based access control is strongly disliked, if not passionately hated, by those who frequently travel abroad as well as those who consume a considerable amount of foreign content. While the past has seen the use of geoblocking as technological self-help, this form of geographical access control has growing support from policymakers and judges.

Commissioned for a symposium on "Intellectual Property in a Globalized Economy: United States Extraterritoriality in International Business," this article begins by briefly recounting five sets of arguments against geoblocking. The article then draws on the latest developments in Europe and at the World Intellectual Property Organization. It reiterates the need for copyright holders to adopt strategies to disseminate copyrighted content at the global level.

The second half of the article responds to the copyright industries' ...
%SOURCENAMEESCAPED%, REVISION: Total Scholarly Impact: Law Professor Citations in Non-Law Journals, https://privwww.ssrn.com/abstract=3451542 (November 17, 2019)

This Article provides the first ranking of legal scholars and law faculties based on citations in non-law journals. Applying the methods, as much as possible, of the widely used Leiter-Sisk “Scholarly Impact Score,” which includes only citations in law publications, we calculate a “Interdisciplinary Scholarly Impact Score” from the non-law citations over a five-year period (2012-2018) to the work of tenured law faculty published in that period in non-law journals. We also provide the weighted scores for law faculty at the top 25 law schools as ranked by the US News rankings, a school-by-school ranking, and lists of the top five faculty by non-law citations at each school and of the top fifty scholars overall.

The work of legal scholars outside of law journals is not trivial. Over 600 faculty members from the 25 schools in our cohort published almost 3,000 articles in non-law journals from 2012-2018, and those articles received close to 21,000 citations in non-law journals. ...
%SOURCENAMEESCAPED%, REVISION: First Amendment (Un)Exceptionalism: A Comparative Taxonomy of Campaign Finance Reform Proposals in the US and UK, https://www.ssrn.com/abstract=3475526 (November 4, 2019)

There is an urgent conversation happening among the world’s democracies about how to respond to the combined threat of online electioneering and foreign interference in domestic elections. Despite the shadow such activities cast over the 2016 presidential election in the United States, the US has been largely absent from comparative discussions about how to tackle the problem. This is not just because of a recalcitrant president. The assumption that America’s “First Amendment Exceptionalism” – the idea that American freedom of expression law is simply too much of an outlier to warrant useful comparative consideration – is strong on both sides of the Atlantic. This is especially true in regard to the regulation of political campaigns.

This article challenges that assumption, and argues that America’s more libertarian approach to the legal regulation of political speech does not pose a barrier to fruitful comparative work in this area. It does so by comparing the law of the US ...
%SOURCENAMEESCAPED%, REVISION: The Internet of Bodies, https://www.ssrn.com/abstract=3452891 (November 4, 2019)

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal and policy battle over the integrity of the human body and mind. Framing this integrity battle in light of current regulatory approaches, this Article offers a set of specific innovation-sensitive proposals to bolster corporate conduct safeguards through regulatory agency action, contract, tort, intellectual property, and secured ...
%SOURCENAMEESCAPED%, New: Environmental Law at the Borders, https://privwww.ssrn.com/abstract=3471310 (October 28, 2019)

This brief essay provides the legal background of two border projects generating intense environmental controversy--the Project XL pipeline border-crossing permit and the so-called border wall. In both contexts the law affords the Executive Branch a surprising degree of discretion and near-total freedom from environmental regulation. The litigation that has continued since this essay was written thus far confirms that "environmental law at the borders" is remarkably thin in these two contexts.
%SOURCENAMEESCAPED%, New: What Is Habitat?, https://privwww.ssrn.com/abstract=3471285 (October 28, 2019)

This short essay summarizes and assesses the recent Supreme Court opinion in Weyerhaeuser v U.S. Fish & Wildlife Service, which involved a landowner challenge to FWS's decision to designate an area of land as "critical habitat" under the Endangered Species Act notwithstanding the area could support the species in question only after significant habitat restoration. The ESA allows unoccupied areas to be designated as critical habitat, but is silent on the question of unoccupiable but restorable habitat. Rather than reach that question, the Court ruled that it must first be determined than an area is a species' "habitat" before it can be designated as critical habitat, a finding that neither the FWS nor the lower courts made. Yet, neither the statute, FWS regulations and policies, nor case law define "habitat" for purposes of the ESA. The essay closes with suggestions for doing so.
%SOURCENAMEESCAPED%, REVISION: Ecosystem Services and Federal Lands: A Quiet Revolution in Public Lands Management, https://privwww.ssrn.com/abstract=3471445 (October 27, 2019)

The major federal public land management agencies (the Forest Service, Bureau of Land Management, Park Service, Fish & Wildlife Service, and Department of Defense) have increasingly adopted a language that did not exist twenty-five years ago—the language of ecosystem services. Ecosystem services are the range of benefits that ecological resources provide to humans, from water purification and pollination to carbon sequestration and wildlife habitat. The scientific discipline advancing the ecosystem services framework arose in the mid-1990s and quickly became a central strategy for fusing ecological and economics research. Despite its ascendance in research communities, the recognition and conservation of ecosystem services in law and policy has been a more gradual, incremental process. While largely unrecognized, the federal public land management agencies have been embedding consideration of ecosystem services in their policy decision making. Looking back, it is remarkable how ...
%SOURCENAMEESCAPED%, REVISION: Ranking Legal Publications: The Israeli Inter-University Committee Report, https://privwww.ssrn.com/abstract=3422168 (October 25, 2019)

The Report offers a global ranking of academic legal publications, covering more than 900 outlets, and using a four-tier categorization. The ranking is based on a combined quantitative and qualitative methodology. The Report was composed in the context of the Israeli academic system, but the methodology and the results are not jurisdiction-specific.

Evaluating academic publications is a never-ending challenge. Such evaluation is an integral part of internal hiring, promotion, and tenure procedures, and of external funding decisions and institutional rankings. The proper way to evaluate academic publications has been the subject of fierce debate. The traditional method for academic evaluation is specific review of each publication, assessing its originality, rigor, and significance. This method, known as "peer-review", is often difficult to perform and might be subjective and biased. These concerns have generated an increased interest in the use of quantitative indicators in ...
%SOURCENAMEESCAPED%, REVISION: Environmental Law. Disrupted, https://privwww.ssrn.com/abstract=3308550 (October 24, 2019)

The U.S. regulatory environment is changing rapidly, at the same time that visible and profound impacts of climate change are already being felt throughout the world, and enormous, potentially existential threats loom in the not-so-distant future. What does it mean to think about and practice environmental law in this setting? In this latest in a biannual series of postings and essays, the authors, members of the Environmental Law Collaborative (ELC), have taken on the question of whether environmental law as we currently know it is up to the job of addressing these threats; and, if not, what the path forward should be.
%SOURCENAMEESCAPED%, New: American Idols, https://privwww.ssrn.com/abstract=3458553 (September 24, 2019)

In 2001 and 2009 we conducted an online survey of environmental law professionals, asking them to list their ten "most significant" environmental law cases. We repeated the survey in 2019. Our key finding was there has been no real shift of the most important cases since 2009. Apart from minor moves up and down, five of the top six cases were unchanged. Since the 2001 survey, four cases have remained in the top ten. Not a single recent case made the top ten. We explain why certain cases have come and gone, and why the canon of cases such as Chevron, TVA v. Hill, Rapanos, and Mass v. EPA have endured. Environmental law is now a mature field. While change is always a constant, we expect most of the classics to remain the most significant cases when we conduct the next survey in 2029.
%SOURCENAMEESCAPED%, REVISION: Why Environmental Zero-Sum Games are Real, https://privwww.ssrn.com/abstract=3401601 (September 23, 2019)

Most environmental policies have winners and losers. That is one reason why it is such a contested terrain. One might argue that these policies benefit society overall, but it rarely feels like a benefit to the local resource-dependent communities or polluting industries and their employees. Indeed, just as the environmental justice movement emphasizes protection of local communities from the harms of broader economic interests, the zero-sum tension in regulatory contexts is most salient when the winners are geographically diffuse and the losers are locally concentrated. The difference, of course, is that environmental policy increasingly is coming to the rescue of the local community in the case of environmental justice, whereas it can be the agent of locally concentrated economic harm in the case of environmental regulation. The local community of losers in those cases sense that they are trapped in a zero-sum conflict where they need to stand their ground against distant opposing ...
%SOURCENAMEESCAPED%, New: Broken, https://www.ssrn.com/abstract=3452930 (September 20, 2019)

This article argues that the CFAA as currently written is unsalvageable and requires a rewrite of its core provisions. Shifting paradigms to an approach driven by principles from computer security and epidemiology theory, this Article offers an attempted rewrite of the CFAA in a manner more attuned to the current security reality.
%SOURCENAMEESCAPED%, New: Cyber Harder, https://www.ssrn.com/abstract=3452936 (September 20, 2019)

The predecessor article to this essay, CYBER!, offered a fresh approach to security – the paradigm of reciprocal security. This essay continues where CYBER! concluded and offers elaborations on concrete policy suggestions for charting a new course for security in both the public and private sectors. It offers implementation suggestions for the five sets of security policy proposals arising from the reciprocal security paradigm advocated by CYBER!
%SOURCENAMEESCAPED%, New: CYBER!, https://www.ssrn.com/abstract=3452934 (September 20, 2019)

This Article challenges the basic assumptions of the emerging legal area of “cyber” or “cybersecurity.” It argues that the two dominant “cybersecurity” paradigms—information sharing and deterrence—fail to recognize that corporate information security and national “cybersecurity” concerns are inextricable. This problem of “reciprocal security vulnerability” means that in practice our current legal paradigms channel us in suboptimal directions. Drawing insights from the work of philosopher of science Michael Polanyi, this Article identifies three flaws that pervade the academic and policy analysis of security, exacerbating the problem of reciprocal security vulnerability—privacy conflation, incommensurability, and internet exceptionalism. It then offers a new paradigm—reciprocal security. Reciprocal security reframes information security law and policy as part of broader security policy, focusing on two key elements: security vigilance infrastructure and defense primacy. The Article ...
%SOURCENAMEESCAPED%, New: Enabling Adaptive Governance: Defining the Role of Government in New Governance, https://privwww.ssrn.com/abstract=3432504 (August 8, 2019)

Regulation of landscape scale social-ecological systems is insufficient alone to navigate accelerating environmental change. In parallel with experimentation in new governance in the face of globalization, adaptive governance is emerging to address problems of scarcity and value-based conflict over use and preservation at the landscape scale. This paper explores how governance is evolving to address increasing complexity; why adaptive governance emerges in response to the inadequacy of existing governance at the landscape scale; the relation of adaptive governance to traditional regulatory and market approaches; and what legal reform is necessary to allow government to navigate among governance options to enhance the capacity of society to adapt to accelerating change. State assistance in building adaptive capacity, and capacity to itself adapt, accelerating change must complement traditional approaches to governance if society is to navigate accelerating environmental and social ...
%SOURCENAMEESCAPED%, REVISION: New Realities Require New Priorities: Rethinking Sustainable Development Goals in the Anthropocene, https://privwww.ssrn.com/abstract=3401301 (June 28, 2019)

The United Nations 17 sustainable development goals are nominally unprioritized. However, numerically and rhetorically, the list effectively makes development goals more important than the environmental goals. This de facto prioritization, however, is deeply flawed in two respects. First, as early sustainable development theorists acknowledged, the environment is the boundary of, not co-equal to, development, constraining potential progress both economically and socially. The Anthropocene’s rapidly accelerating deterioration of the global ecological and physical processes that make human development possible will ultimately constrain development options and potential. Second, human priorities will also change dramatically as adaptation to climate change — the most visible impact of the Anthropocene — becomes a pressing and unavoidable necessity. Development will become secondary to survival for vast expanses of the human global population, who will demote environmental goals where ...
%SOURCENAMEESCAPED%, REVISION: Debunking Intellectual Property Myths: Cross-Cultural Experiments on Perceptions of Property, https://www.ssrn.com/abstract=3312822 (June 12, 2019)

For decades the prevailing view in the United States and many Western countries has been that China does not appropriately respect intellectual property rights. These beliefs lie at the heart of President Donald Trump’s current trade war with China. Despite substantial geopolitical debate over differences between American and Chinese attitudes towards intellectual property rights, and despite the critical effects that such attitudes have on international economic markets and the function of the intellectual property system, empirical evidence of these attitudes is largely lacking. This Article presents original survey and experimental research that explores cross-cultural differences between American and Chinese attitudes towards intellectual property rights, personal property rights, and real property rights.

The results of the studies are somewhat counter-intuitive. First, Chinese participants are found to have more consistent preferences towards different types of property ...
%SOURCENAMEESCAPED%, New: The Role of Public Perception in the Rule of Law, https://www.ssrn.com/abstract=3383666 (May 30, 2019)

This essay is based on a speech that was part of the Tsinghua China Law Review's 10th Anniversary Symposium: China’s Role Under the Globalization of the Rule of Law. The essay discusses the important role that public perception and understanding of law plays in the success of the rule of law. Empirical studies concerning American and Chinese awareness and attitudes towards intellectual property rights are used to provide examples of legitimacy and functionality challenges for the rule of law.
%SOURCENAMEESCAPED%, New: Catholic Dioceses in Bankruptcy, https://www.ssrn.com/abstract=3253092 (October 13, 2018)

The Catholic Church is coping with mass tort liability for sexual abuse of children by priests. Since 2004, eighteen Catholic organizations have filed for relief in bankruptcy. Fifteen debtors emerged from bankruptcy after settling with sexual abuse claimants and insurers. During settlement negotiations, sexual abuse claimants and debtors clashed over the extent of the debtors’ property and ability to pay claims. Although such disputes are common in chapter 11 plan negotiations, the Catholic cases required the parties and bankruptcy courts to account for unique religious attributes of Catholic debtors. This article reviews the arguments and outcomes on property issues based on reported decisions, pleadings, plans, and disclosure statements. It explains the key characteristics of Catholic dioceses under canon and secular organization law and the bankruptcy contexts in which these characteristics became hot button issues. It offers an analysis of the legacy of the Catholic cases ...
%SOURCENAMEESCAPED%, New: The Case for the Repeal of the Fifteenth Amendment in the Yale Law Journal, https://www.ssrn.com/abstract=2957111 (August 20, 2018)

In June 1903, in the depths of the Jim Crow system, the Yale Law Journal published an article by famed New York corporate lawyer John R. Dos Passos (whose son, with the same name, later became a famous modernist novelist and socialist). The article, entitled “The Negro Question,” argued that many African American citizens in southern state were not yet ready for voting rights. The article defended the restriction of rights in southern states since the end of Reconstruction among African-Americans. Dos Passos’ article has received virtually no attention in recent years. It is important evidence of the intellectual credibility of ideas of segregation and second-class citizenship at the turn of the twentieth century. It reveals the breadth of the entrenched opposition to the ideas of racial equality. And it invites further examination of how law reviews in the early twentieth century supported Jim Crow segregation.  
%SOURCENAMEESCAPED%, New: The End User's Predicament: User Standing in Patent Litigation, http://www.ssrn.com/abstract=2894922 (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 ...


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