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%, New: The Rise of the End User in Patent Litigation and Attorney Fee Shifting
(April 18, 2015)
This short piece focuses on the growing role that that end users are playing in our patent system. It highlights that end users differ from competitors in that they lack technological sophistication, are often onetime players and tend to become involved in the patent dispute relatively late in the life of the patent. The paper proposes inclusion of end user status as a factor that weighs toward fee shifting, as the first in a set of procedural reforms, to address the new role of end users in patent litigation.
%SOURCENAMEESCAPED%, New: Intellectual Property Law's Plagiarism Fallacy
(April 15, 2015)
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%, New: Separated at Birth? Addressing the Twin Global Crises of Biodiversity and Climate Change
(April 13, 2015)
Climate change is a growing threat to biodiversity, particularly in hotspots such as tropical forests and coral reefs. At the same time, deforestation is a major source of carbon emissions. The REDD effort is an attempt to make positive use of this connection. But negative impacts are also possible, such as the destruction of tropical forests as an indirect result of U.S. corn ethanol production. More generally, biodiversity and climate change both raise issues about the legality and effectiveness of bottom-up actions in the absence of global agreement.
Finally, climate change and biodiversity threats both have links to the global food system. Sustainable aquaculture can reduce pressures on wild fish stocks. Conversion to agricultural use is a major threat to wild lands that store large amounts of carbon and harbor immense biodiversity. Increased crop yields, dietary changes, and population control can reduce those pressures, with both biodiversity and climate benefits.
%SOURCENAMEESCAPED%, REVISION: Sustainable Consumption, Engery Policy and Individual Well-being
(April 12, 2015)
Environmental law focuses on regulating the production of energy and goods. Less attention has been given to reducing the environmental footprint of consumption. This Article brings together several strands of research, including psychological and economic research on subjective well-being; research on energy efficiency; writings by urban planners on sustainable communities; and recent work on individual behavior and sustainability. The conclusion, in a nutshell, is that changes in consumption of goods and energy, assisted by improvements in urban design and transportation infrastructure, can significantly reduce energy use and environmental harm. A variety of legal tools are available to promote these changes. Remarkably, many of the steps needed for sustainability can actually improve quality of life, adding to individual satisfaction. Thus, sustainability for society and the pursuit of individual happiness need not be at odds.
%SOURCENAMEESCAPED%, New: The Fragility of the Affordable Care Act's Universal Coverage Strategy
(April 11, 2015)
This Essay examines the very fragile nature of the Patient Protection and Affordable Care Act’s (ACA) approach to near-universal health insurance coverage, as accentuated by a variety of implementation hurdles and challenges. The ACA’s vision for expanding insurance coverage was to build on our existing patchwork of market-based health insurance delivery for most, combined with government insurance for select segments of the population. But that patchwork strategy is only as strong as the threads that tie it together. Over the past four and a half years since the ACA was enacted, the threads have unraveled in several critical spots. The essay examines the impact and potential impact of judicial, administrative, and other attacks on three key areas of reform: government health care programs, employer-sponsored health insurance, and the individual private market.
%SOURCENAMEESCAPED%, New: Best Practices for a State Alzheimer's Disease Registry: Lessons from Georgia
(April 11, 2015)
In May 2014, the Georgia General Assembly enacted legislation establishing the Alzheimer’s Disease Registry (“Registry”) in order to generate new data for research and policy planning. The Task Force bill followed similar federal legislation. This state action has not only drawn tremendous attention to the continued prevalence of Alzheimer’s disease among the population of Georgia but also raised a series of questions regarding the practicability, legality, and effectiveness of the Registry. The lessons learned in Georgia, as Registry implementation moves forward, will provide guidance for other states interested in collecting similar data. In Part I of this article we describe the legislative history and operation of the Registry. In Part II we compare the two other population-based Alzheimer’s disease registries in the United States. In Part III we identify legal and ethical problems that may arise as the Registry becomes fully operational. In Part IV we identify specific ...
%SOURCENAMEESCAPED%, REVISION: Towards the Seamless Global Distribution of Cloud Content
(April 8, 2015)
In the age of cloud computing, consumers expect content to be accessible anywhere, anytime. Since their arrival, cloud platforms and related services have posed considerable challenges to copyright holders. Notwithstanding these challenges, one cannot overlook the boundless opportunities this new technology has provided to rights holders for distributing copyright content across the world. To a large extent, the global distribution of cloud content has brought back the age-old discussion concerning the proper response to disruptive technology and the copyright industries' repeated and arguably short-sighted efforts to protect outdated business models.
To complicate matters further, cloud platforms and related services have raised new questions that have not been widely discussed in the digital technology debate. Because these platforms facilitate simultaneous multijurisdictional access to copyright content, they unsurprisingly are in a collision course with the territoriality ...
%SOURCENAMEESCAPED%, New: Taking Turns
(April 7, 2015)
Two siblings jointly inherit their late father’s rocking chair. The chair has principally sentimental and no real economic value; it cannot be physically divided between them, and selling it to distribute the proceeds will compensate neither for the sentimental loss. What, then, should become of the disputed property? In a self-confessed “strange” decision in the McDowell case, the Surrogate’s Court of New York ordered that the two siblings take possession of the chair alternately for six-month periods; and that when one passed away, the other would obtain exclusive possession. An allocation method based on alternating enjoyment (or suffering) is commonly known as “rotation,” or more colloquially “taking turns.” Yet despite its manifestation in different legal contexts, and its considerable potential, rotation has been almost neglected by legal theorists. This Article makes the first attempt to delineate and exemplify the proper boundaries of this method’s utilization by and under ...
%SOURCENAMEESCAPED%, REVISION: 'May the Odds Be Ever in Your Favor': Lotteries in Law
(April 4, 2015)
Throughout history, lotteries have been used in numerous legal contexts. However, legal theorists have rarely discussed the role of randomization in law, and have never done so systematically and comprehensively. Against this backdrop, the Article has three underlying goals. First, it fills the aforementioned gap by providing a theoretical framework for assessing lotteries’ role in legal resource allocation. It innovatively integrates fairness and efficiency concerns, critically evaluating and applying insights from various disciplines, including economics, philosophy, political science, psychology, and theology. This multidisciplinary framework — of unprecedented breadth and complexity — provides lawyers and policymakers with a powerful analytical tool for assessing the possible use of random allocation schemes. Second, the Article recognizes the importance and highlights the pervasiveness of lotteries in law. It does so by analyzing and appraising the historical and present role of ...
%SOURCENAMEESCAPED%, REVISION: Graduated Consent in Contract and Tort Law: Toward a Theory of Justification
(March 27, 2015)
We often speak of consent in binary terms, boiling it down to 'yes' or 'no.' In truth, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions, too. Those gradations of consent mark a deep structure of our social world, one especially evident in the contours of contract and tort law. This article draws on those and other sources to outline a theory of graduated consent, one that establishes a standard for measuring the justification of a wide variety of human relationships. Though its basic tenets comfortably agree with everyday common sense, graduated-consent theory offers surprising answers to such old problems as enforcing standardized agreements, justifying political coercion, and ...
%SOURCENAMEESCAPED%, REVISION: David Foster Wallace on Tax Policy, How to Be an Adult, and Other Mysteries of the Universe
(March 11, 2015)
As one of the most highly acclaimed fiction writers of his generation, David Foster Wallace had many things to say on a seemingly endless variety of topics. In his last work, the unfinished novel The Pale King, he chose to elaborate on, of all things, tax policy and tax administration. Wallace directed tax topics at one of the novel’s main themes: true adulthood often involves overcoming boredom in the workplace to derive a sense of community and care for others. In a sense, the book serves as a guide on how to become a reasonably happy and fulfilled adult. This Essay integrates archival research from the Collected Works of David Foster Wallace at the Harry Ransom Center at the University of Texas at Austin.
%SOURCENAMEESCAPED%, REVISION: Regulatory Exit
(March 10, 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: Leaps, Metes, and Bounds: Innovation Law and Its Logistics
(March 6, 2015)
Economic analysis of technological innovation, diffusion, and decline often proceeds according to sigmoid (S-shaped) models, either directly or as a component in more elaborate mathematical representations of the creative process. Three distinct aspects of American innovation policy — Aereo’s failed attempt to retransmit television broadcasts, agricultural biotechnology, and network neutrality — invite analysis according to one variant or another of the logistic function. Innovation and legal policies designed to foster it follow the leaps, metes, and bounds of sigmoid functions.
Part I introduces the logistic function as the simplest analytical expression of a sigmoid function. Its parameters provide very clear interpretations grounded in physical principles. Part II evaluates the Aereo controversy and agricultural biotechnology as instances of logistic substitution between competing products. The deployment of plant-incorporated pesticides and herbicide-resistant crops ...
%SOURCENAMEESCAPED%, REVISION: Tales of the Unintended in Copyright Law
(March 1, 2015)
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 ...
%SOURCENAMEESCAPED%, REVISION: The Confuzzling Rhetoric Against New Copyright Exceptions
(February 22, 2015)
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 have uniformly opposed the introduction of 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: Creamskimming and Competition
(February 21, 2015)
The concept of “creamskimming” arises with regularity in the law of regulated industries. As a rhetorical weapon, the term “creamskimming” readily conjures images of the sort of putatively destructive competition that regulatory commissions are charged with patrolling. As a result, allegations of creamskimming have become a standard weapon in the legal arsenal of incumbent firms seeking to resist competitive entry. At an extreme, incumbent firms will characterize all forms of competitive entry as creamskimming. Sound regulatory responses to these allegations therefore depend on a proper understanding of the creamskimming concept.
This article proposes a definition of creamskimming that will help state and federal regulatory agencies distinguish genuine objections to proposed competitive entry from reflexive (and often improper) efforts to shield incumbent firms from competition. “Creamskimming” should be defined as “the practice of targeting only the customers that are the ...
%SOURCENAMEESCAPED%, New: Measuring, Monitoring, and Managing Legal Complexity
(February 19, 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%, New: Agencies, Courts, and the Limits of Balancing
(February 12, 2015)
Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.
This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these categories. It articulates three such guiding principles. Finally, it argues that the one area of disparity between agencies and courts under current law should be resolved by bringing doctrines governing judicial discretion more in line with those governing agency discretion.
%SOURCENAMEESCAPED%, REVISION: Modeling Citation and Download Data in Legal Scholarship
(February 2, 2015)
Impact factors among law reviews provide a measure of influence among these journals and the schools that publish them. Downloads from the Social Science Research Network (SSRN) serve a similar function. Bibliometrics is rapidly emerging as a preferred alternative to more subjective assessments of academic prestige and influence. Law should embrace this trend.
This paper evaluates the underlying mathematics of law review impact factors and per-author SSRN download rates by institution. Both of these measures follow the sort of stretched exponential distribution that characterizes many right-skewed distributions found in the natural and social sciences. Indeed, an ordinary exponential distribution — that is, a stretched exponential distribution with an exponent of 1 — generates strikingly accurate, even beautiful, models of both phenomena. Mindful of physicist Hermann Weyl's admonition that any choice between truth and beauty should favor beauty, I freely admit to sacrificing some ...
%SOURCENAMEESCAPED%, New: The Algebra of Financial Asymmetry: A Schematic Approach to Semideviation and Semivariance
(January 19, 2015)
Modern portfolio theory remains the dominant paradigm of financial risk management. Behavioral economics, however, targets one of modern portfolio theory’s greatest pitfalls: its symmetrical view of all deviations from expected return, positive or negative, as if investors viewed excess returns to be as troubling as failures to meet a targeted level of returns. This article evaluates a range of measures designed to gauge financial risk through semideviation or semivariance: the Sortino ratio, Morningside's upside and downside capture ratios, and the omega and kappa measures.
%SOURCENAMEESCAPED%, REVISION: The Living Regulatory Challenges of Synthetic Biology
(January 5, 2015)
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: Leveraging the International Economy of Intellectual Property
(December 24, 2014)
Most international intellectual property debates ignore the fundamental question of how to optimize the global environment for innovation, focusing instead on whether a particular policy benefits or harms a particular country. The cost of this misplaced focus is significant as states fight bitterly over how to divide fixed benefits, rather than seeking to grow social welfare through greater innovation. This missed opportunity is not a surprise, however, given the difficulty of trying to identify which intellectual property regimes will support greater innovation, a task that has proven impossible to achieve directly.
This Article introduces a new empirical methodology that leverages international trade data in an effort to identify indirectly which intellectual property regimes are more likely to provide greater incentives to innovate globally. A country’s trade balance in high-innovation goods tends to dictate the country’s preferences for intellectual property rights regimes. ...
%SOURCENAMEESCAPED%, Update: 'Nudging' Better Lawyer Behavior: Using Default Rules and Incentives to Change Behavior in Law Firms
(December 16, 2014)
This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers.
In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive biases and basic behavioral economics will help law firms tweak their incentives and default rules to promote the improved delivery of legal services.New PDF Uploaded
%SOURCENAMEESCAPED%, REVISION: Brief of Amici Curiae, In re David Marshall Brown, Case No. 12-cv-60016-KAM, United States District Court, Southern District of Florida
(December 12, 2014)
This amicus brief argues that, when the only objection to a proof of claim in an individual debtor's bankruptcy case is that some paperwork is missing, but not that the amount is incorrect, filing an objection that moves to strike the entire claim is a violation of Bankruptcy Rule 9011 and sanctions should be upheld.
%SOURCENAMEESCAPED%, New: 'Nudging' Better Lawyer Behavior: Using Default Rules and Incentives to Change Behavior in Law Firms
(December 12, 2014)
This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers.
In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive biases and basic behavioral economics will help law firms tweak their incentives and default rules to promote the improved delivery of legal services.
%SOURCENAMEESCAPED%, New: Intellectual Property Geographies
(December 9, 2014)
Written for a special issue on intellectual property and geography, this article outlines three sets of mismatches that demonstrate the vitality, utility and richness of analyzing intellectual property developments through a geographical lens. The article begins by examining economic geography, focusing on the tensions and conflicts between territorial borders and sub-national innovation (including those relating to obligations under the WTO TRIPS Agreement). This article then examines the oft-found mismatch between political geography and cultural geography. Illustrating this mismatch is the challenge of protecting traditional knowledge and traditional cultural expressions. The article concludes by exploring the growing mismatch between legal geography and human geography. It discusses issues ranging from the region codes deployed to protect DVDs to the increasing consumer demand for cross-border portability of copyrighted media content.
%SOURCENAMEESCAPED%, REVISION: Weighted-Average Methodologies for Evaluating Bar Examination Passage Rates
(December 8, 2014)
There are few truly “national” law schools in the United States. Most American law schools in the United States have a “dominant” state bar. A greater number of the graduates of nearly any law school take the bar examination administered by one state than any other bar examination. The American Bar Association and U.S. News and World Report's law school rankings rely on bar passage rates for the single largest cohort within any school’s graduating class. But the modal passage rate is misleading as a measure of any one school’s overall bar passage rates. The modal passage rate also fails to facilitate direct comparisons of bar examination performance at different schools.
To evaluate the overall bar examination performance of the graduates of any law school, I propose the use of weighted-average methodologies. Ideally, we should be able to measure, by use of weighted averages, each school’s bar passage z-score. Since the data needed to conduct proper standard scoring is ...
%SOURCENAMEESCAPED%, REVISION: Price-Level Regulation and Its Reform
(December 6, 2014)
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 Rise of the End User in Patent Litigation
(December 5, 2014)
The patent system focuses on the actions of two players: the patentee and its competitor. It assumes that the competitor will represent the interests of the end user. But, end users are increasingly becoming significant players in the patent system, with their interests sometimes diverging from those of competitors. Attention has recently turned to Patent Assertion Entities (“PAEs”) — also known as patent trolls — who are suing vast numbers of customers using patented technologies in their everyday businesses. Yet, end users were also principal players in some of the main recent patent cases before the U.S. Supreme Court. In Bowman v. Monsanto Co., Monsanto sued farmers for re-using its patented self-replicating seeds. In Association for Molecular Pathology v. Myriad Genetics, patients and physicians sued to invalidate breast cancer gene patents. And, patients and drug stores repeatedly challenge pay-for-delay agreements between patentees and competitors, claiming they undermine ...
%SOURCENAMEESCAPED%, REVISION: Correlation, Coverage, and Catastrophe: The Contours of Financial Preparedness for Disaster
(December 4, 2014)
Laws regulating financial preparedness for catastrophe reveal the actuarial suppositions underlying disaster law and policy. This article explores three facets of catastrophic risk transfer. First, it explores how risk transfer emerges as the preeminent tool for managing risk. Measures sufficient for managing risks break down as the probability of loss plummets, but the magnitude of potential loss increases. Second, this article explores one alternative risk transfer mechanism by which insurance companies have sought to deepen their financial reserves in anticipation of correlated risks. Correlation among risks, the primary obstacle to functional insurance markets for catastrophic coverage, emerges in new form as the motivation for catastrophe bonds — and as these instruments’ leading pitfall. Finally, this article explores constraints on public intervention into disaster insurance. Along the dimensions of space, time, and human behavior, policies compensating individuals for ...
%SOURCENAMEESCAPED%, REVISION: The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State
(November 22, 2014)
Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the “permit power,” under which legislatures prohibit a specified activity by statute and delegate administrative agencies discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Describing the permit power, accurately, as an “enormous power in the state,” Epstein bemoaned that it had “received scant attention in the academic literature.” He sought to fill that gap. Centered on his premise that the permit power represents “a complete inversion of the proper distribution of power within a legal system,” Epstein launched a scathing critique of regulatory permits in operation, condemning the practice as a “racket” for administrative abuses and excesses.
Epstein’s assessment of the permit power was and remains accurate in three respects. First, the permit power is vast. Regulatory permits ...
%SOURCENAMEESCAPED%, REVISION: Private Prediction Markets and the Law
(November 21, 2014)
This paper analyses the legality of private prediction markets under U.S. law, describing both the legal risks they raise and how to manage those risks. As the label "private" suggests, such markets offer trading not to the public but rather only to members of a particular firm. The use of private prediction markets has grown in recent years because they can efficiently collect and quantify information that firms find useful in making management decisions. Along with that considerable benefit, however, comes a particularly worrisome cost: the risk that running a private prediction market might violate U.S. state or federal laws. The ends and means of private prediction markets differ materially from those of futures, securities, or gambling markets. Laws written for those latter three institutions nonetheless threaten to limit or even outlaw private prediction markets, as the paper details. The paper also details, however, how certain legal strategies can protect private ...
%SOURCENAMEESCAPED%, REVISION: Government Prediction Markets: Why, Who, and How
(November 21, 2014)
This paper describes how prediction markets can make governments smarter, cheaper, and more responsive to changing conditions. A prediction market resembles a stock exchange where traders buy and sell not shares of companies, but claims about future events. Academic and commercial use of prediction markets suggests that they offer a useful tool for encouraging, collecting, and quantifying widely scattered expertise. Government administrators have begun experimenting with prediction markets, too. Many questions remain, however, about the proper way to implement government prediction markets. This paper opens with a brief survey of the costs and benefits of government prediction markets. It then turns to ironing out the statutory and regulatory wrinkles occasioned by government prediction markets in general, and by federal executive prediction markets in particular. Government agencies should outsource the provision of prediction markets and let employees and outside contractors trade ...
%SOURCENAMEESCAPED%, REVISION: The Specter of Copyism v. Blockheaded Authors: How User-Generated Content Affects Copyright Policy
(November 21, 2014)
Technological advances, because they have radically lowered the costs of creating and distributing expressive works, have shaken the foundations of copyright policy. Once, those who held copyrights in sound recordings, movies, television shows, magazines, and the like could safely assume that the public would do little more than passively consume. Now, though, the masses have seized (peacefully acquired, really) the means of reproducing copyright works, making infringement cheap, easy, and, notwithstanding the law's dictates, widespread. Copyright holders thus understandably fear that their customers have begun to treat expressive works like common property, free for all to use. That, the specter of copyism, does risk upsetting copyright policy, leading to a market failure in the production of expressive works. Even as we recognize that threat, however, we should also appreciate that technological advances have greatly reduced the costs of creating and distributing new works of ...
%SOURCENAMEESCAPED%, REVISION: Pornography, Privacy, and Digital Self-Help
(November 21, 2014)
With regard both to inhibiting Internet pornography and promoting Internet privacy, the adequacy of self-help alternatives ought to play a crucial role in evaluating the propriety of state action. Legislation that would have restricted Internet speech considered indecent or harmful to minors has already faced and failed that test. Several prominent organizations dedicated to preserving civil liberties argued successfully that self-help technologies offered less restrictive means of achieving the purported ends of such legislation, rendering it unconstitutional. Surprisingly, those same organizations have, of late, joined the call for subjecting another kind of speech - speech within or by commercial entities and about Internet users - to political regulation. With regard to privacy no less than pornography, however, self-help offers Internet users a less restrictive means of preventing the alleged harms of free speech than does state action. Indeed, a review of privacy-protecting ...
%SOURCENAMEESCAPED%, New: Copyright Porn Trolls, Wasting Taxi Medallions, and the Propriety of 'Property'
(November 20, 2014)
What happens when the government creates privileges that have powers rivaling those that the common law accords to property? Recent events in two seemingly unrelated areas suggest a troubling answer to that question. First, in copyright, porn trolls have sued thousands of John Does for allegedly participating in illegal file sharing. These suits evidently seek not judicial vindication but merely the defendants' identities, which the plaintiffs then use to reap settlement payments from guilty and innocent alike. Second, taxi drivers in cities across the world have launched legal, political, and physical attacks against Uber and other networked transportation services, accusing their new competitors of stealing customers and destroying the value of taxi medallions. Both conflicts arise from the same basic problem: copyrights and taxi medallions more resemble privileges than property. They not only lack property's natural, customary, and common law roots; they also suffer from ...
%SOURCENAMEESCAPED%, REVISION: Climate Adaptation Law
(November 18, 2014)
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: Challenges to the Development of a Human Rights Framework for Intellectual Property
(November 10, 2014)
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%, New: Capital's Offense: Law's Entrenchment of Inequality
(November 8, 2014)
Piketty’s Capital in the Twenty-First Century is a rare scholarly achievement. It weaves together description and prescription, facts and values, economics, politics, and history, with an assured and graceful touch. So clear is Piketty’s reasoning, and so compelling the enormous data apparatus he brings to bear, that few can doubt he has fundamentally altered our appreciation of the scope, duration, and intensity of inequality. This review explains Piketty’s analysis and its relevance to law and social theory, drawing lessons for the re-emerging field of political economy.
The university enables interdisciplinary work, and political economy is an ideally hybrid discursive space for this process of mutual inspiration and correction. Lawyers are particularly well-suited to the task of studying political economy, because we are the ones drafting, interpreting, and applying the rules governing the interface between state actors and firms. Integrating the long-divided fields of politics ...
%SOURCENAMEESCAPED%, REVISION: Gender Biases in Perception of Judgments
(November 4, 2014)
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%, REVISION: Challenges to the Development of a Human-Rights Framework for Intellectual Property
(November 2, 2014)
Since the establishment of the WTO TRIPS Agreement, government officials, international intergovernmental and nongovernmental organizations, 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 elsewhere, such a framework would not only be socially beneficial, but would 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 expressed concern over the danger of an "arranged marriage" between intellectual property and human rights. Although this concern is understandable, it may be too late to deny the protection of human-rights-based interests in ...
%SOURCENAMEESCAPED%, REVISION: International Technology Contracts, Restrictive Covenants and the UNCTAD Code
(October 31, 2014)
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 UNCTAD's auspices, this Code aimed to remove restrictive business practices that 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 in the area of intellectual property and competition laws (including the WTO TRIPS Agreement). 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 contracts between transnational firms and firms or ...
%SOURCENAMEESCAPED%, New: Interview on the Black Box Society
(October 31, 2014)
Hidden algorithms drive decisions at major Silicon Valley and Wall Street firms. Thanks to automation, those firms can approve credit, rank websites, and make myriad other decisions instantaneously. But what are the costs of their methods? And what exactly are they doing with their digital profiles of us?
Leaks, whistleblowers, and legal disputes have shed new light on corporate surveillance and the automated judgments it enables. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only scratched the surface of troublingly monopolistic and exploitative practices.
Drawing on the work of social scientists, attorneys, and technologists, The Black Box Society offers a bold new account of the political economy of big data. Data-driven corporations play an ever larger role in determining opportunity and risk. But they depend on ...
%SOURCENAMEESCAPED%, New: Ecosystem Services, Ecosystem Resilience, and Resilience of Ecosystem Management Policy
(October 26, 2014)
Ecosystem services theory and resilience theory have both gained tremendous stock in ecosystem management policy over the past decade. Each resonates firmly in the modern conception of ecosystems as complex adaptive systems. Ecosystem services theory merges the disciplines of ecology, geography, and economics to gain a better understanding of how complex ecological landscapes produce a natural economy that sustains human and social capital. Resilience theory studies the social-ecological interface to gain a better understanding of how dynamic forces in nature affect social systems, and vice versa. Standing alone, each of these theoretical models has established substantial independent credibility throughout academic, government, and private research bodies. Less attention has been paid, however, to the relationship between ecosystem services theory and resilience theory. Are the two mutually antagonistic, or will one support application of the other? How will knowing about one ...
%SOURCENAMEESCAPED%, New: Ecosystem Services and Ecosystem Management-How Good a Fit?
(October 24, 2014)
The concepts of ecosystem management and ecosystem services are both firmly implanted in natural resources policy dialogue and as focal points of scientific research, though each has had its detractors and difficulties gaining traction in concrete regulatory programs. Yet little attention has been paid to how they relate, particularly in a way relevant to Grumbine’s call for reconciliation between ecological integrity and use of ecosystems for human prosperity. More specifically, does the concept of ecosystem services light the way for harmonizing the goal of sustaining ecological integrity and the goal of providing goods and services to humans? Is there something about the ecosystem services approach that changes the calculus from that used in traditional resource management in such a way that makes it more likely that ecosystem services concepts will promote sustainable ecological integrity? This chapter explores those questions from two perspectives. The first section of the ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Enforcement and Global Climate Change
(October 20, 2014)
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 recent 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 ...
%SOURCENAMEESCAPED%, REVISION: Indexing Inflation: The Impact of Methodology on Econometrics and Macroeconomic Policy
(October 17, 2014)
Because there is no perfect gauge of inflation, the macroeconomic enterprise of indexing inflation ultimately dissolves into a choice among imperfect methodologies. But that choice still matters. This article will highlight the practical significance of methodological choices made in the course of indexing inflation. It will focus on two different indexes of inflation in the United States: the Consumer Price Index (CPI) and the implicit price deflator of the gross domestic product (IPD). This article identifies a long-term gap in these competing indexes’ measurement of inflation. To explain why the CPI appears to overstate inflation, relative to the IPD, by roughly two-thirds of a percentage point each year, this article more fully describes the distinct methodologies underlying the CPI and the IPD. Lawmakers should adopt the implicit price deflator of the GDP, or some other inflation index that shares its best methodological features, as the best practicable measure of real ...
%SOURCENAMEESCAPED%, New: Beps and Global Digital Taxation
(October 11, 2014)
In 2013, the Organization for Economic Cooperation and Development (OECD) launched its base erosion and profit shifting (BEPS) project to inhibit aggressive international tax planning. Action 1 of the BEPS project requires the OECD to identify the main challenges that the digital economy poses for the application of current international tax rules and develop reforms to address these challenges. The article reviews related academic perspectives, and discusses how the digital world facilitates aggressive tax planning. It concludes that any new tax rules should apply broadly and neutrally to substantively similar economic activities from either the digital or traditional commercial world. In addition, the OECD should more carefully examine how Internet technologies can help enforce national tax laws to constrain aggressive planning.
%SOURCENAMEESCAPED%, REVISION: Clusters and Links in Asian Intellectual Property Law
(October 9, 2014)
Intellectual property developments in Asia are dynamic, distinct and diverse. There are also significant complexities within both the region and in each individual country. To help advance research and understanding in this area, this chapter underscores the insights provided by two pairs of analytical concepts.
The first pair covers divergences and convergences. It aims to shed light on the similarities and differences in intellectual property regimes in Asia. It also explains why intellectual property laws have been developed the way they did.
The second pair concerns clusters and links. Instead of asking why similarities and differences exist, countries are clustered together to provide a more systematic and meaningful comparison. Through a discussion of links, this chapter also reminds us that these clusters do not stand alone. Instead, they interact with each other and with intellectual property regimes outside Asia.
Taken together, these two pairs of analytical ...
%SOURCENAMEESCAPED%, New: Intellectual Property and Confucianism
(October 8, 2014)
In the past two decades, policy makers, industry leaders, and academic commentators have repeatedly condemned Confucianism for blocking or slowing down intellectual property reforms. Nevertheless, few have revisited the debate on intellectual property and Confucianism following the recent dramatic changes to the intellectual property landscape in Asia. In 2013, for example, Japan, China, and South Korea were among the top five countries filing international applications through the Patent Cooperation Treaty, along with the United States and Germany. Chinese and Japanese firms such as Panasonic, ZTE, and Huawei Technologies also emerged as the world's top three leaders in corporate filings.
If Confucianism has presented a major barrier to intellectual property reforms in China and other parts of Asia, what causes the Sinicized countries to move forward so quickly in the intellectual property world? Is it the World Trade Organization and its TRIPS Agreement? Is it the success of ...
%SOURCENAMEESCAPED%, REVISION: How Copyright Law May Affect Pop Music Without Our Knowing it
(October 7, 2014)
Commissioned for a symposium on copyright law and the creation of music, this article explores five questions about popular music that can be illuminated by greater insights into copyright law and the music business. Why do popular songs usually last for fewer than five minutes? Why are professional songwriters dissatisfied with Pandora and Spotify? Why can we bring European CDs back to the United States? Why can't YouTube videos be created with ASCAP/BMI licenses? Are digital downloads sales or licenses? And as a bonus: Why did the royalty rate for sheet music stay at seven cents per copy?
It is my hope that answering these questions will enable us to develop a deeper understanding of copyright law and how it can affect popular music. The copyright debate has been repeatedly and frequently framed as one among the different stakeholders. However, what laws we include in Title 17 of the United States Code will ultimately affect our music, both directly and indirectly. The more we ...
%SOURCENAMEESCAPED%, REVISION: Incentivizing the Ordinary User
(October 7, 2014)
Disputes regarding the effectiveness of the patent system focus on the appropriate scope of patent rights. This Article departs from the traditional debate by looking instead at the players regulated by the patent system. The Article shows that the patent system fails to effectively encourage technological dissemination because it focuses on the patent owner and his competitors, while largely ignoring a crucial player: the ordinary user.
The user in his everyday decisions of whether to adopt or not to adopt a technology plays a critical role in determining whether a new technology will be disseminated. Yet, patent law contains an overly simplistic view of the ordinary user. It views the ordinary user as motivated by price and availability alone. This Article uncovers the intricacy of ordinary users’ decisions regarding technological adoption. It identifies two main sources of user resistance: resistance due to novelty and resistance due to perceived consequences.
Many believe ...
%SOURCENAMEESCAPED%, New: Measuring Gaps Between Hypothetical Investment Returns and Actual Investor Returns
(September 23, 2014)
Actual investor returns from mutual funds lag behind hypothetical returns based on a fixed initial investment and reinvestment of all distributions. This gap arises from behaviorally driven errors in timing. The nonproprietary literature on this performance gap has emphasized the relationship of this gap to overall returns on stocks and mutual funds. This article seeks to address more directly the relationship of behaviorally driven gaps in investment returns to downside risk, upside gain, and overall volatility. Documenting the existence of this gap across the universe of publicly traded securities — not only in the aggregate, but also on a security-by-security basis — may provide a legal basis for requiring mutual fund and exchange-traded fund managers to compute and disclose that gap.
%SOURCENAMEESCAPED%, REVISION: Exit Strategies for the Administrative State
(September 17, 2014)
Exit is a ubiquitous feature of life, whether breaking up a relationship, 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. The same is true for governance. Welfare support ends. Business subsidies expire. While legal scholarship is replete with studies of exit strategies for businesses and investors, the topic of exit has barely been touched in administrative law scholarship. The design “checklist” policy makers and legal academics have devised for new programs leaves exit on the sidelines. In this article, we argue that exit should be a fundamental feature of regulatory design, considered at the time of program creation.
Part I starts from first principles and considers the basic features of exit. It addresses the normative aspect of exit strategies, exploring the different metrics to measure the success of an exit strategy. With these descriptive and normative ...
%SOURCENAMEESCAPED%, New: Israel
(September 13, 2014)
This is the Israeli report to the Tort and Insurance Law Yearbook. It critically evaluates notable developments which took place in Israeli tort law in 2012. Part A discusses legislation and legislative bills in various areas, including state liability, compensation and assistance following the cancellation of a flight or a change in its conditions, road accidents victims' compensation, and disclosure of internet user information in tort litigation. Part B discusses 2012 Supreme Court decisions on wrongful life and wrongful birth, the truth defense in defamation law, the evidentiary weight of acquittal in a criminal procedure, the applicability of the contributory negligence defense in an action for deceit, the interrelation between tort law and property law, a tort-based duty to disclose an anonymous user's identity, and the scope of the medical duty to disclose information. Part B also analyzes recent developments concerning a uniquely Israeli head of damages - "infringement of ...
%SOURCENAMEESCAPED%, REVISION: 'These Great and Beautiful Republics of the Dead': Public Constitutionalism and the Antebellum Cemetery
(September 9, 2014)
“Public Constitutionalism and the Antebellum Cemetery” joins the growing literature on public constitutionalism by focusing on the seventy addresses given at cemetery dedications from Supreme Court Justice Joseph Story’s address at Mount Auburn Cemetery in Cambridge, Massachusetts, in 1831, through the addresses of Edward Everett and Abraham Lincoln at Gettysburg in November 1863. The addresses were part of a vibrant public discussion of constitutional principles, which spanned such diverse occasions as July Fourth celebrations, arguments in great constitutional cases (like Daniel Webster’s Dartmouth College argument), dedication of public monuments (like Daniel Webster’s speech at the placement of the cornerstone of the Bunker Hill Monument in 1824), lyceum addresses, and college literary society lectures. For Americans, especially those of the Whig Party, the Constitution was a key component of culture and a key unifier of the nation.
Rural cemeteries provided support for such ...
%SOURCENAMEESCAPED%, REVISION: Cornelius Sinclair's Odyssey: Freedom, Slavery, and Freedom Again in the Old South
(September 9, 2014)
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 ...
%SOURCENAMEESCAPED%, REVISION: Can the Canadian UGC Exception Be Transplanted Abroad?
(September 8, 2014)
Commentators have examined the international law aspects of the new Canadian UGC exception, including its compliance with the Berne Convention and the WTO TRIPS Agreement. One issue that has not been considered much is whether this exception would serve as an ideal model for other jurisdictions that are undertaking digital copyright reform. Written for the Symposium on User-Generated Content under Canadian Copyright Law, this article uses Hong Kong as a case study to illustrate why the Canadian UGC exception, with appropriate modifications, can be — and should be — transplanted abroad.
This article begins by discussing the efforts by the Hong Kong government to transplant copyright laws from abroad and its recent public consultation on the treatment of parody under the copyright regime. It further examines the benefits and drawbacks of legal transplants. Using the U.S. Digital Millennium Copyright Act of 1998 as a point of comparison, the article argues that the Canadian UGC ...
%SOURCENAMEESCAPED%, REVISION: Digital Copyright Enforcement Measures and Their Human Rights Threats
(September 8, 2014)
This chapter examines the human rights threats posed by those digital copyright enforcement measures that have been incorporated into both domestic laws and international agreements. It begins by providing an overview of the various human rights that have been implicated by these measures. The chapter then briefly discusses those specific measures that have been deemed highly threatening from a human rights standpoint. Although these measures were drawn largely from international agreements, most notably the Anti-Counterfeiting Trade Agreement (ACTA), many of them originate in domestic laws in either the European Union or the United States.
This chapter concludes with two case studies. The first study focuses on the so-called "graduated response" system, which has been introduced in Chile, France, Ireland, South Korea, Taiwan and the United States and explored in New Zealand and the United Kingdom. This study illustrates the specific challenges brought about by one of the most ...
%SOURCENAMEESCAPED%, REVISION: Bioprospect Theory
(September 3, 2014)
Conventional wisdom treats biodiversity and biotechnology as rivalrous values. The global south is home to most of earth's vanishing species, while the global north holds the capital and technology needed to develop this natural wealth. The south argues that intellectual property laws enable the industrialized north to commit biopiracy. By contrast, the United States has characterized calls for profit-sharing as a threat to the global life sciences industry. Both sides magnify the dispute, on the apparent consensus that commercial exploitation of genetic resources holds the key to biodiversity conservation.
Both sides of this debate misunderstand the relationship between biodiversity and biotechnology. Both sides have overstated the significance of bioprospecting. It is misleading to frame the issue as whether intellectual property can coexist with the international legal framework for preserving biodiversity. Any lawyer can reconfigure intellectual property to embrace all ...
%SOURCENAMEESCAPED%, New: Déjà Vu in the International Intellectual Property Regime
(August 26, 2014)
On June 26, 2012, close to 50 members of the World Intellectual Property Organization signed the Beijing Treaty on Audiovisual Performances. A little more than a year later, WIPO also adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. Does the rejuvenation of WIPO norm-setting activities suggest the impending end of a much-feared 'non-multilateral era', precipitated by the active negotiation of bilateral, plurilateral and regional trade agreements? Do the recent norm-setting activities reinforce the Development Agenda painstakingly created by developing countries? Or do these activities indicate just the growing complexity of the international intellectual property regime, within which both multilateralism and non-multilateralism proceed at the same time?
This chapter puts the recent multilateral and non-multilateral intellectual property developments in their proper historical contexts. ...
%SOURCENAMEESCAPED%, REVISION: The International Enclosure of China's Innovation Space
(August 25, 2014)
This chapter highlights the external constraints on China's ability to innovate by recounting how the existing international intellectual property regime has evolved in a way that significantly encloses the innovation space of developing countries. It begins by tracing the development of this regime from its very beginning to the establishment of the WTO TRIPS Agreement. It discusses not only the constraints the Agreement has placed on developing countries, but also the various flexibilities it retains to their benefit.
The chapter then examines the rapid proliferation of TRIPS-plus bilateral, plurilateral and regional trade, investment and intellectual property agreements, including both the controversial Anti-Counterfeiting Trade Agreement and the still-under-negotiation Trans-Pacific Partnership Agreement. It also points out that China has been slowly emerging as an innovative power and therefore a potential beneficiary of higher intellectual property standards, just as ...
%SOURCENAMEESCAPED%, New: Unpacking EME Homer: Cost, Proportionality and Emission Reductions
(August 25, 2014)
EME Homer involved the vexing problem of interstate air pollution, which can make it impossible for even the most diligent downwind state to attain the air quality levels required by federal law. Justice Ginsburg’s opinion for the Court gives EPA broad discretion to craft regulatory solutions for this problem. The case presented the Court with considerable difficulties. Although the specific statutory provision at issue was deceptively simple, the underlying problem of allocating pollution reductions was extremely complex, especially given the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to have fully grasped how allocation would work even in simplified numerical examples.
Although the specific question before the Court is now settled, the Court’s holding has continuing ramifications. It will shape further development of EPA’s on-going efforts to deal with the problem of interstate pollution. But it also has broader implications about ...
%SOURCENAMEESCAPED%, REVISION: Autonomy, Welfare, and the Pareto Principle
(August 25, 2014)
The Pareto principle has great intuitive appeal, but poses perplexities on closer examination. What exactly do we mean by “preferences”? Should the principle apply ex post or ex ante? Does it uphold individual autonomy, individual welfare, or both?
This essay argues that the Pareto principle is best understood, in utilitarian terms, as connecting social welfare with an objective appraisal of individual welfare. Indeed, with only modest additional assumptions, the Pareto principle implies a utilitarian social welfare function. It is much more difficult to link Pareto with autonomy norms for several reasons, including not only Sen’s paradox but a bevy of other difficulties.
%SOURCENAMEESCAPED%, Update: The Future of Food Law & Policy: The Responsibility of Lawyers in the Academy and Beyond
(August 25, 2014)
Food Law & Policy is a flourishing legal field that is fast approaching the tenth anniversary of its inception. The field boasts several key milestones. The first Food Law & Policy course was taught in 2004. The first scholarly journal devoted to the field was created in 2005. And, the first Food Law & Policy legal clinic was established in 2010. Today, interest in the field among legal scholars and law students alike is so widespread that a 2013 news article reported “there may be no hotter topic in law schools right now than food law and policy.”
Food Law & Policy incorporates elements from the study of traditional food and drug law as well as elements from the study of traditional agricultural law. It intersects with a new approach to agricultural law studies that involves a more holistic approach including sustainability and a food systems analysis.
This article was prepared for the Yale University Food Systems Symposium. It was written by faculty members at several law ...New PDF Uploaded
%SOURCENAMEESCAPED%, REVISION: Indexing Inflation: Why Methodology Matters in Econometrics and Macroeconomic Policymaking
(August 18, 2014)
Because there is no perfect gauge of inflation, the macroeconomic enterprise of indexing inflation ultimately dissolves into a choice among imperfect methodologies. But that choice still matters. This article will highlight the practical significance of methodological choices made in the course of indexing inflation. It will focus on two different indexes of inflation in the United States: the Consumer Price Index (CPI) and the implicit price deflator of the gross domestic product (IPD). This article identifies a long-term gap in these competing indexes’ measurement of inflation. To explain why the CPI appears to overstate inflation, relative to the IPD, by roughly two-thirds of a percentage point each year, this article more fully describes the distinct methodologies underling the CPI and the IPD. Lawmakers should adopt the implicit price deflator of the GDP, or some other inflation index that shares its best methodological features, as the best practicable measure of real ...
%SOURCENAMEESCAPED%, New: Implementing the New Ecosystem Services Mandate: A Catalyst for Advancing Science and Policy
(August 17, 2014)
On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that results when wetlands are filled at impact sites and mitigation wetlands are provided at possibly significant distances away. Although motivated primarily by the need to bring the program under one comprehensive regulatory framework, the new rule also for the first time introduces ecosystem services into ...
%SOURCENAMEESCAPED%, New: Private Certifiers and Deputies in American Health Care
(July 30, 2014)
So-called “public programs” in U.S. health care pervasively contract with private entities. The contracting does not merely involve the purchase of drugs, devices, information technology, insurance, and medical care. Rather, government agencies are increasingly outsourcing decisions about the nature and standards for such goods and services to private entities. This Article will examine two models of outsourcing such decisions. In private licensure, firms offer a stamp of approval to certify that a given technology or service is up to statutory or regulatory standards. Via deputization, firms can pursue a regulatory or law enforcement role to correct (and even punish) providers who have failed to meet standards or acted fraudulently. Both private licensure and deputization provide new models for administrative governance in rapidly changing, technically complex fields. But they can also be abused if private licensors or deputies are not adequately supervised, or if they are faced ...
%SOURCENAMEESCAPED%, REVISION: A Systematic Approach to Measures of Systemic Risk
(July 12, 2014)
The failure of individual firms in the banking industry poses a unique threat to the entire economy. Emerging wisdom on systemic risk has identified two shortcomings in traditional regulatory approaches, all of which failed to anticipate the financial crisis of 2008-09. First, static measures of firm size, designed to identify institutions "too big to fail," fall short of detecting the contributions of correlation and interconnectedness to systemically significant bank failures. Second, traditional regulatory emphasis on capital adequacy has sought to guide the management of expected risks by individual banks under ordinary conditions, at the expense of anticipating the collective reaction of the banking industry to extreme stress. This anthology summarizes work toward a rigorous, systematic understanding of measures of systemic risk.
%SOURCENAMEESCAPED%, New: Land, Slaves, and Bonds: Trust and Probate in the Pre-Civil War Shenandaoh Valley
(July 6, 2014)
“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: Pinwheel of Fortune
(July 2, 2014)
In principle, neither the global environment nor personal health should come down to gambling. In practice, however, both the law of global biodiversity protection and the constitutional debate on the Patient Protection and Affordable Care Act (PPACA) rest on astoundingly risk-seeking assumptions. Charged with conserving the global biospheric commons, the international community seems eager to place deep, out-of-the-money bets on bioprospecting of rare and endangered species for pharmaceutical gain. The truly desperate state of biodiversity and climate change law has apparently prompted some very rich countries (especially the United States) to behave as if these sources of truly irreparable environmental harm defy meaningful precautions.
Within America’s own borders, the constitutional law of public health strikes a comparably risk-seeking pose. Although National Federation of Independent Business v. Sebelius upheld the PPACA as an exercise of the federal government's taxing ...
%SOURCENAMEESCAPED%, REVISION: Ranking Law Schools with LSATs, Employment Outcomes, and Law Review Citations
(July 1, 2014)
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 ...
%SOURCENAMEESCAPED%, REVISION: TPP and Trans-Pacific Perplexities
(June 28, 2014)
In the past few years, the United States has been busy negotiating the Trans-Pacific Partnership (TPP) Agreement with countries in the Asia-Pacific region. These countries include Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. Although it remains unclear which chapters or provisions will be included in the final text of the TPP Agreement, the negotiations have been quite controversial. In addition to the usual concerns about having high standards that are heavily lobbied by industries and arguably inappropriate for many participating countries, the TPP negotiations have been heavily criticized for their secrecy and lack of transparency, accountability and democratic participation.
Written for the inaugural annual Asia-Pacific issue of the Fordham International Law Journal, this article does not seek to continue this line of criticism, although transparency, accountability and democratic participation remain highly ...
%SOURCENAMEESCAPED%, REVISION: Liability for Online Anonymous Speech: Comparative and Economic Analyses
(June 19, 2014)
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: Intellectual Property and Public Health – A White Paper
(June 19, 2014)
On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad questions. First, are there alternatives to either the patent system or specific patent doctrines that can provide or help provide sufficient incentives for health-related innovation? Second, is health information being used proprietarily and if so, is this type of protection appropriate? Third, does IP conflict with other ...
%SOURCENAMEESCAPED%, New: Sharpe-ly Leveraged: A Model of Human Capital Formation Under Debt Service Constraint
(May 15, 2014)
Human capital, like any other form of wealth, lends itself to analysis through the tools of mathematical finance. No less than in other forms of enterprise, human capital formation involves risk. Returns on human capital and the risks inherent in its formation are affected by leverage. This is especially true in the United States, where a significant number of students finance higher education by borrowing.
This article specifies a basic model of human capital formation that attempts to capture the essence of the risk-adjusted returns that students hope to realize when they pursue further education. This article adapts the Sharpe ratio of modern portfolio theory to measure the risk-adjusted benefit of education-enhanced earnings as the ratio of expected earnings to the volatility of those returns on human capital. It then adjusts both earnings and their dispersion to account for educational debt.
On the debt service and earnings premium assumptions adopted by this article, ...
%SOURCENAMEESCAPED%, REVISION: FATCA and the Erosion of Canadian Taxpayer Privacy
(May 13, 2014)
In 2010, the United States enacted a tax reform known as the Foreign Account Tax Compliance Act (FATCA). Under FATCA, all non-U.S. financial institutions, including Canadian banks, must review their records to determine if any accounts are owned by “U.S. persons,” which include U.S. citizens residing abroad and individuals with significant social and/or economic ties with the United States. The United States threatened to economically sanction any foreign country that did cooperate with the new regime. Accordingly, Canada has agreed to implement FATCA via an intergovernmental agreement (IGA) with the United States; at this writing the implementing legislation, Bill C-31, is before Parliament. This report discusses how FATCA and the IGA unduly harm the privacy interests and rights of Canadians in part because detailed financial information concerning hundreds of thousands of Canadians would be transferred to a foreign government for the first time. Canada is getting nothing in return ...
%SOURCENAMEESCAPED%, New: Against Accuracy (as a Measure of Judicial Performance)
(May 7, 2014)
This Essay - a contribution to a symposium reacting to Judge William Young and Professor Jordan Singer's article "Bench Presence: Toward a More Complete Model of Federal District Court Productivity," 118 PENN. ST. L. REV. 55 (2013) - advances the following thesis: Attempting to assess the accuracy of judicial decisions in any scalable way is either impossible or imprudent. Accuracy, in cases where it counts, depends on too many assessments that are too contestable or indeterminable in too many respects. Indeed, our system recognizes this. The familiar concerns of judicial ethics belie any systemic belief in the determinacy of outcomes in close cases. Put simply, if we believed that it is easy to determine whether (some significant subset of) judicial decisions is right or wrong we would not care about such things as whether judges own trivial amounts of stock in corporate parties that appear before them. Because of this, the most we are able to say in many cases is that an ...
%SOURCENAMEESCAPED%, REVISION: An Agricultural Law Jeremiad: The Harvest Is Past, the Summer Is Ended, and Seed Is Not Saved
(May 1, 2014)
The saving of seed exerts a powerful rhetorical grip on American agricultural law and policy. Simply put, farmers want to save seed. Many farmers, and many of their advocates, believe that saving seed is essential to farming. But it is not. Farmers today often buy seed, just as they buy other agricultural inputs. That way lies the path of economic and technological progress. Seed-saving advocates protest that compelling farmers to buy seed every season effectively subjects them to a form of serfdom. So be it. Intellectual property law concerns the progress of science and the useful arts. Collateral economic and social damage, in the form of affronts to the agrarian ego, is of no valid legal concern. The harvest is past, the summer is ended, and seed is not saved.
%SOURCENAMEESCAPED%, New: Breaking Bad? The Uneasy Case for Regulatory Breakeven Analysis
(April 30, 2014)
Assessing regulatory benefits is crucial to cost-benefit analysis. And yet, quantification can be problematic, either because of the nature of the benefit themselves or because of uncertainty about achieving them. In such situations, Cass Sunstein calls for the use of a breakeven analysis based on a judgment about whether regulatory benefits are at least as high as costs.
Even assuming that cost-benefit analysis is the best way of making decisions when benefits can be readily quantified, breakeven analysis may or may not be the right approach when quantification is difficult. Instead, depending on the causes of the difficulty, we might want either to revert to more qualitative methods of decision-making or to move beyond breakeven analysis into more rigorous methodologies. Thus, the case for breakeven analysis remains unproven.
%SOURCENAMEESCAPED%, REVISION: The Lost World of Administrative Law
(April 29, 2014)
The reality of the modern administrative state diverges considerably from the series of assumptions underlying the Administrative Procedure Act (APA) and classic judicial decisions that followed the APA reviewing agency actions. Those assumptions call for statutory directives to be implemented by one agency led by Senate-confirmed presidential appointees with decision-making authority. The implementation (in the form of a discrete action) is presumed to be through statutorily mandated procedures and criteria, with judicial review to determine whether the reasons given by the agency at the time of its action match the delegated directions. This is the lost world of administrative law, though it is what students largely still learn.
Today, there are often statutory and executive directives to be implemented by multiple agencies often missing confirmed leaders, where ultimate decision-making authority may rest outside of those agencies. The process of implementation is also through ...
%SOURCENAMEESCAPED%, REVISION: Sinic Trade Agreements and China's Global Intellectual Property Strategy
(April 27, 2014)
Since the early 2000s, the European Union and the United States have pushed aggressively for the development of bilateral, plurilateral and regional trade agreements. Termed economic partnership agreements (EPAs) and free trade agreements (FTAs) by the European Union and FTAs by the United States, these instruments seek to transplant laws from the more powerful signatories to the less powerful ones.
Although the use of non-multilateral trade agreements is not limited to the European Union and the United States, the scholarly literature thus far has focused mostly on these agreements. To fill the void, this chapter closely examines the bilateral and regional trade agreements established by China -- termed Sinic trade agreements (STAs) -- and the strategies used to deploy them.
This chapter begins by examining China’s growing engagement with the developing world, the underlying goals of STAs and the negotiation strategies behind those agreements. Using the China–New Zealand Free ...
%SOURCENAMEESCAPED%, REVISION: Trade Agreement Cats and the Digital Technology Mouse
(April 27, 2014)
In the past three decades, the copyright industries and their supportive governments have aggressively pushed for introducing high intellectual property standards into trade agreements. This book chapter examines the uneasy case of using these agreements to provide copyright protection in the digital environment. It begins by discussing two widely discussed multilateral solutions: the TRIPS Agreement and the 1996 WIPO Internet Treaties. The chapter then explores the industries' increasing push for solutions outside multilateral fora. Non-multilateral solutions that have been advanced thus far range from the establishment of bilateral or regional trade agreements to the recent negotiation of plurilateral 'country club' agreements, including the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership Agreement (TPP). This chapter concludes by identifying eight issues that domestic policymakers and international negotiators should seriously consider.
%SOURCENAMEESCAPED%, New: Methodological Stare Decisis and Constitutional Interpretation
(April 26, 2014)
This chapter assesses the Supreme Court's reluctance to give stare decisis effect to its methodologies of constitutional interpretation. While the Court claims to presumptively follow the substantive results of its prior constitutional decisions, it has never considered itself bound by the interpretive approaches (e.g., originalism, textualism, or "living constitutionalism") used to reach those decisions. The chapter suggests an explanation for this somewhat mysterious state of affairs. A rule of methodological stare decisis would require the Court to employ the same interpretive method in a huge category of cases (most likely all cases involving the Constitution), which would generate unpredictable results in many cases the Court could not reasonably anticipate, thus aggravating the drawbacks of stare decisis. At the same time, the usual benefits of stare decisis (such as predictability and stability) would not be well served. Where the Court can reasonably follow its ...
%SOURCENAMEESCAPED%, New: DeFunis, Defunct
(April 25, 2014)
November 1998 marks the twenty-fifth anniversary of the Supreme Court's initial decision to accept a case presenting the question of race-conscious university admissions. This silver jubilee merits three cheers for DeFunis v. Odegaard -- and a moment of silence -- upon its passing. Call it three ovations and a funeral.
%SOURCENAMEESCAPED%, New: Minority Television Project, Inc. v. FCC, No. 13-1124, Brief for Amici Curiae Law Professors in Support of Petitioner
(April 23, 2014)
This brief amicus curiae in support of petitioner Minority Television Project in Minority Television Project, Inc. v. FCC, 736 F.3d 1192 (9th Cir. 2013), petition filed, No. 13-1124 (March 17, 2014), urges the Supreme Court of the United States to overrule Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). The brief presents three reasons why the Court should overrule Red Lion. First, overwhelming technological change compels reexamination of Red Lion. The proliferation of electronic media for distributing multichannel audio and video programming has undermined Red Lion’s scarcity rationale. Second, Red Lion has been so thoroughly discredited in all branches of government that further adherence to that precedent would undermine rather than promote respect for the Court’s decisionmaking process and for the rule of law. Finally, this case demonstrates how the continued isolation of broadcast media from First Amendment norms that govern all other media and conduits inflicts ...
%SOURCENAMEESCAPED%, REVISION: Measuring Market Risk Under the Basel Accords: VaR, Stressed VaR, and Expected Shortfall
(April 23, 2014)
Each of the most recent accords of the Basel Committee on Banking Regulation, known as Basel II, 2.5, and II, has embraced a different primary measure of market risk in global banking regulation: traditional value-at-risk (VaR), stressed VaR, and expected shortfall. After introducing the mathematics of VaR and expected shortfall, this note will evaluate how well the reforms embraced by Basel 2.5 and III - stressed VaR and expected shortfall - have addressed longstanding regulatory concerns with traditional VaR.
Part I describes the calculation of VaR in its conventional form. For illustrative purposes, Part I will describe parametric VaR on a Gaussian distribution. Part II summarizes known weaknesses in VaR, from inherent model and estimation risk to VaR’s failure to perform under extreme economic stress and VaR’s failure to satisfy the theoretical constraints on “coherent” measurements of risk. Part III describes how to calculate expected shortfall as an extension of ...
%SOURCENAMEESCAPED%, REVISION: The Scored Society: Due Process for Automated Predictions
(April 23, 2014)
Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers — or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail — credit — the law focuses on credit history, not the derivation of scores from data.
Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform basic safeguards. Regulators should be able to test scoring systems to ensure their fairness and accuracy. Individuals should be granted meaningful opportunities to challenge adverse decisions based on scores miscategorizing them. Without such protections in place, ...
%SOURCENAMEESCAPED%, REVISION: Climate Policy and the United States System of Divided Powers: Dealing with Carbon Leakage and Regulatory Linkage
(April 21, 2014)
In the absence of comprehensive federal climate legislation, state governments and the executive branch have moved forward with efforts to reduce greenhouse gases. Two important components of effective policies are (1) tools to limit the potential for carbon emissions to shift outside a jurisdiction (carbon leakage), and (2) cross-boundary linkages to improve effectiveness and reduce costs. For instance, states may adopt life cycle analysis as part of regulations or carbon taxes, and they may link carbon trading schemes with other states or with foreign jurisdictions. The executive branch may address carbon leakage by tailoring regulations to the potential for emissions to shift abroad and may also enter into cooperative agreements with other nations through executive agreements.
These important components of climate policy could easily be supplied by Congress, but efforts to supply them by states or executive branch encounter constitutional challenges. This article argues in favor ...