Jurisdynamics Network authors on SSRN

Nancy B. Rapoport, REVISION: Where Have All the (Legal) Stories Gone?, http://www.ssrn.com/abstract=1545443 (March 10, 2010)

This essay examines whether law schools are doing a good job of teaching the art of storytelling to law students.

J.B. Ruhl, Update: Background Principles, Takings, and Libertarian Property: A Response to Professor Huffman, http://www.ssrn.com/abstract=1567664 (March 10, 2010)

One of the principal, if unexpected, results of the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to
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stefanie lindquist, Consensus, Disorder, and the Supreme Court: A Challenge to Attitudinalism, http://www.ssrn.com/abstract=1564291 (March 5, 2010)

The attitudinal model is widely accepted as the basis for many academic studies of the Supreme Court because of its power in predicting the justices' decision making behavior. Not all votes are easily explained or well predicted by the attitudinal model, however. Consensus in Supreme Court voting, particularly the extreme consensus of unanimity, has often puzzled Court observers who adhere to an attitudinal account of judicial decision making. Are consensus and (ultimately) unanimity driven by

Peter K. Yu, REVISION: Digital Copyright Reform and Legal Transplants in Hong Kong, http://www.ssrn.com/abstract=1538638 (March 2, 2010)

Since the mid-1990s, countries have struggled to respond to copyright challenges created by the internet and new communications technologies. Although the law and policy debate in recent years has focused primarily on the entertainment industry's aggressive tactics toward individual end-users, online service providers, and other third parties, a recent wave of legislative action and lobbying efforts has rejuvenated the debate on the proper legal response to digital copyright challenges. Like

Daniel A. Farber, Uncertainty, http://www.ssrn.com/abstract=1555343 (February 20, 2010)

Many of the pressing policy issues facing us today require confronting the unknown and making difficult choices in the face of limited information. Economists distinguish between “uncertainty” (where the likelihood of the peril is non-quantifiable) and “risk” (where the likelihood is quantifiable). Uncertainty is particularly pernicious in situations where catastrophic outcomes are possible, but conventional decision tools are not equipped to cope with these potentially disastrous results. This

Jim Chen, Code, Custom, and Contract: The Uniform Commercial Code as Law Merchant, http://www.ssrn.com/abstract=1555220 (February 20, 2010)

Rooted in ancient and medieval mercantile experiences, the law of commercial transactions draws from private agreements, customs and usages, and legislation. In this century, three sources – contract, custom and code – have transcended national laws and legal institutions. Codification has occurred on an international scale. In particular, the United Nations Convention on Contracts for the International Sale of Goods (CISG) and Incoterms govern many international commercial transactions.

Jim Chen, Pax Mercatoria: Globalization as a Second Chance at ‘Peace for Our Time', http://www.ssrn.com/abstract=1555302 (February 20, 2010)

This Essay completes a scholarly cycle in which I have defended free trade and international economic cooperation against charges that globalization will harm the environment and drain jobs from the high-wage economies of western Europe, Japan, and the United States. The demolition of geographic and social barriers since the end of the Cold War has delivered not only material wealth but also physical tranquility, political stability, and personal freedom to vast portions of the world's populatio

Arthur J. Cockfield, REVISION: Manager's Guide to International Tax: Featuring 'La Brienza Winery: Tax Trouble in Wine Country' (A , http://www.ssrn.com/abstract=1547967 (February 19, 2010)

The main purpose of the Manager's Guide to International Tax is to show business managers, CEOs, and CFOs how tax laws affect global management decision-making. The book also serves as a training manual or reference guide for professionals such as accountants, lawyers, enrolled agents, and other tax advisors who wish to gain insight into the field of international taxation. Part I of the book is a case study (or ‘tax novella') called La Brienza Winery: Tax Trouble in Wine Country that illustrate

J.B. Ruhl, Gaming the Past: The Theory and Practice of Historic Baselines in the Administrative State, http://www.ssrn.com/abstract=1553484 (February 18, 2010)

Goals based on absolute targets, risk, technology, or cost are found throughout the administrative state. “Historic baselines,” a point in the past used to ground a policy goal, are just as commonplace, yet remain unexamined. Whether in budgeting or tax, criminal sentencing or environmental protection, historic baselines direct a wide range of agency activities. Their ubiquity begs some important questions. What makes baselines more attractive than other approaches for implementing regulatory go

J.B. Ruhl, Update: Adaptive Management in the Courts, http://www.ssrn.com/abstract=1542632 (February 16, 2010)

Adaptive management has become the tonic of natural resources policy. With its core idea of “learning while doing,” adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending “adaptive” in front of “management” somehow make natural resou
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Arthur J. Cockfield, REVISION: Student Edition of the Income Tax Act 2009: Featuring 'How to Manage a Difficult Tax Partner' (A Tax, http://www.ssrn.com/abstract=1547984 (February 16, 2010)

The Student Edition of the Income Tax Act is designed to supplement tax courses taught at law and business schools. It can also serve as a convenient reference tool for lawyers, accountants, and others who work in the tax field. The book is comprised of two elements: selected provisions of the federal Income Tax Act and a tax teaching tool called ‘How to Manage a Difficult Tax Partner.' The second element - the ‘tax novella' - is meant to focus a tax student's attention on the most critical i

stefanie lindquist, REVISION: The Multi-Staged Process of Judicial Review: Facial and As-Applied Constitutional Challenges to Legi, http://www.ssrn.com/abstract=1503572 (February 16, 2010)

The Supreme Court's decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices' choices to invalidate a state or federal enactment on its face or as applied using a Heckman probit technique, and find that the justices are responsive to both Congressional preferences over the s

J.B. Ruhl, REVISION: Governing for Sustainable Coasts: Complexity, Climate Change, and Coastal Ecosystem Protection, http://www.ssrn.com/abstract=1522949 (February 15, 2010)

The world's coastal ecosystems are among the most complex on Earth, and they are currently being governed unsustainably, by any definition. Climate change will only add to this complexity, underscoring the necessity of finding new ways to govern for these ecosystems' sustainable use. After reviewing the problems facing coastal ecosystems and innovations in their governance, this article argues that governance of coastal ecosystems must move to place-based adaptive management regimes that incor

Paul L. Caron, Ten Estate Planning Advantages of Limited Liability Companies, http://www.ssrn.com/abstract=1552482 (February 14, 2010)

In the eight years since the Service blessed the Wyoming limited liability company (LLC) statute, there has been an explosion of interest in LLCs, which are now available in 48 states and the District of Columbia (with Hawaii and Vermont the lone holdouts). See Bruce P. Ely, "The LLC Scoreboard," Tax Notes, Dec. 25, 1995, p. 1661. Although much has been written of the uses of LLCs in tax and business planning, comparatively little commentary has focused on the role of LLCs in estate planning. Th

Peter K. Yu, REVISION: The Political Economy of Data Protection, http://www.ssrn.com/abstract=1046781 (February 9, 2010)

Information is the lifeblood of a knowledge-based economy. The control of data and the ability to translate them into meaningful information is indispensable to businesspeople, policymakers, scientists, engineers, researchers, students, and consumers. Having useful, and at times exclusive, information improves productivity, advances education and training, and helps create a more informed citizenry. In the past two decades, those who collected or obtained access to a large amount of data began t

Peter K. Yu, REVISION: The Global Intellectual Property Order and Its Undetermined Future, http://www.ssrn.com/abstract=1485285 (February 5, 2010)

As an introduction to the inaugural issue of the new WIPO Journal, this essay highlights some of the key recent developments in the intellectual property field. The essay begins by discussing the increasingly complex, and at times incoherent, international legal order governing the protection and enforcement of intellectual property rights. It shows how much the system has been transformed since the launch of the Paris and Berne Conventions in the 1880s. The essay then examines the increasingly

Nancy B. Rapoport, REVISION: Academic Freedom and Academic Responsibility: Reviewing Matthew W. Finkin & Robert C. Post, 'For the, http://www.ssrn.com/abstract=1544932 (February 3, 2010)

In this book review, I examine Finkin & Post's study of academic freedom in higher education institutions in the U.S. and links the issues surrounding academic freedom to the issues surrounding shared governance. I argue that the problems with shared governance can create a race to the bottom in academic units.

Nancy B. Rapoport, Debtor's Counsel's Fiduciary Duty: Is There a Duty to Rat in Chapter 11?, http://www.ssrn.com/abstract=1544930 (February 2, 2010)

This article discusses what duties counsel to the debtor-in-possession owe (and to whom they owe these duties) when the debtor-in-possession wants to do something illegal or just plain dumb.

Paul L. Caron, Estate and Gift Tax Problems of Principals and Agents Under Durable Powers of Attorney, http://www.ssrn.com/abstract=1545332 (January 31, 2010)

The combination of advances in life expectancies and improvements in medical technologies has made it increasingly important to plan for a client's possible future incapacity. As a result, the use of durable powers of attorney has exploded in recent years. Indeed, estate planners now typically include such powers and living wills as components of a client's estate plan along with traditional wills and trusts. However, the use of durable powers of attorney can create serious estate and gift tax p

J.B. Ruhl, Ecosystem Services and Federal Public Lands: Start-Up Policy Questions and Research Needs, http://www.ssrn.com/abstract=1543388 (January 29, 2010)

This Essay, based on a presentation at Duke Law School's 2009 symposium, Next Generation Conservation: The Government's Role in Emerging Ecosystem Service Markets, briefly examines the emerging policy front of ecosystem services and federal public lands and proposes a set of key policy questions, research needs, and options for building on what policy work has been done to date. Part I outlines the basic context for thinking about the role federal public lands might play in the management of ec

Peter K. Yu, REVISION: The Objectives and Principles of the TRIPs Agreement, http://www.ssrn.com/abstract=1398746 (January 7, 2010)

The Agreement on Trade-Related Aspects of Intellectual Property Rights, which established the minimum standards for the protection and enforcement of intellectual property rights for WTO members, remains one of the more controversial international intellectual property agreements that have entered into force. Although that Agreement embraces a highly problematic super-size-fits-all approach, it includes a number of safeguards and flexibilities to facilitate economic development and to protect th

Elizabeth A. Weeks, Book Review: Populations, Public Health, and the Law, http://www.ssrn.com/abstract=1523936 (December 21, 2009)

This is an invited book review of a monograph by Wendy Parmet, the George J. and Kathleen Waters Matthews Distinguished University Professor of Law at Northeastern University. Parmet proposes a new approach, called “population-based legal analysis," which considers the impact of laws and judicial decisions on the population as a whole, rather than individual parties to a lawsuit. Her starting premise is that protection and promotion of public health is a fundamental objective of the law. Afte

Andrea M. Matwyshyn, Imagining the Intangible, http://www.ssrn.com/abstract=1473590 (December 20, 2009)

Existing paradigms in corporate law do not adequately conceptualize today's corporations. Corporate assets have become increasingly intangible, and operational structures have been materially altered in the last two decades by information technology. This article argues in favor of "asset sensitive" governance. Asset sensitivity embodies three important additions to prior corporate law scholarship. First, using developmental psychology theory as its starting point, asset sensitive governance

J.B. Ruhl, REVISION: Climate Change Adaptation and the Structural Transformation of Environmental Law, http://www.ssrn.com/abstract=1517374 (December 17, 2009)

The path of environmental law has come to a cliff called climate change, and there is no turning around. As climate change policy dialogue emerged in the 1990s, however, the perceived urgency of attention to mitigation strategies designed to regulate sources of greenhouse gas emissions quickly snuffed out meaningful progress on the formulation of adaptation strategies designed to respond to the effects of climate change on humans and the environment. Only recently has this “adaptation deficit” b

Alfred L. Brophy, REVISION: Considering Reparations for the Dred Scott Case, http://www.ssrn.com/abstract=997900 (December 17, 2009)

"Considering Reparations for the Dred Scott Case," which was prepared for a volume reassessing Dred Scott on its 150th anniversary, asks how the case might fit into discussion of reparations for slavery. Is some reparative action advisable for that case standing by itself? Or might Dred Scott be used as part of a larger discussion? The essay begins with a brief assessment of where the movement for reparations for slavery is right now; then it turns to the case and asks what the Supreme Court'

Chad M. Oldfather, REVISION: Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Rev, http://www.ssrn.com/abstract=1461427 (December 16, 2009)

During his confirmation hearings, Chief Justice John Roberts famously likened the judicial role to that of a baseball umpire. The increased prevalence of video evidence makes it likely that judges will find another sporting analogue for their role – that of the instant replay official in the NFL. (Indeed, many have already done so.) This Essay explores the analogy. In so doing it seeks not only to consider its appropriateness in a narrow sense (much as many commentators considered the appropri

J.B. Ruhl, REVISION: Who's Number One?, http://www.ssrn.com/abstract=1498640 (December 16, 2009)

What do environmental lawyers consider the most significant environmental cases? In 2001, Jim Salzman conducted a survey of the envlawprofs listserv for the "Most Excellent" environmental law cases in the field, tabulating the top cases for law profs and for practicing attorneys. Given the significant decisions over the eight years, we thought it would be useful to conduct the survey again, this time using a dedicated website and surveying both the envlawprofs listserv and members of the ABA's

Ronen Perry, REVISION: Israel, Palestine and the ICC, http://www.ssrn.com/abstract=1391963 (December 2, 2009)

This Article provides a critical assessment of theoretical and practical arguments for judicial state recognition by the International Criminal Court (ICC). It does so both generally and with regard to a highly pertinent contemporary example, namely a judge-made Palestinian state. In the wake of the Israel–Gaza 2008-09 armed conflict and the recently commenced process in the ICC, the Court will soon face a major challenge – one that holds the potential to define its degree of judicial independen

Paul L. Caron, Section 2036 Ruling May Force Bengals Out of Cincinnati, http://www.ssrn.com/abstract=1508440 (November 18, 2009)

Lee Sheppard has written recently in these pages of how the Service has assisted the estate planning objectives of plutocrats who own professional sports teams to keep their franchises in their local communities. (See Tax Notes, May 15, 1995, p. 881.) As Ms. Sheppard has explained, the Service recently approved an elaborate plan devised by the late Ewing Kauffman to keep the Royals baseball team in Kansas City. When Kauffman died in 1993, he left the team to the Greater Kansas City Community Fou

Andrea M. Matwyshyn, Imagining the Intangible, http://www.ssrn.com/abstract=1503091 (November 10, 2009)

Existing paradigms in corporate law do not adequately conceptualize today's corporations. Corporate assets have become increasingly intangible, and operational structures have been materially altered in the last two decades by information technology. This article argues in favor of "asset sensitive" governance. Asset sensitivity embodies three important additions to prior corporate law scholarship. First, using developmental psychology theory as its starting point, asset sensitive governance foc

Paul L. Caron, Tax Court Fumbles Substance-Over-Form Ball in Estate of Brown, http://www.ssrn.com/abstract=1499779 (November 5, 2009)

Tax lawyers are abuzz over Tax Court Judge David Laro's aggressive application of the substance-over-form doctrine in ACM Partnership v. Commissioner, T.C. Memo. 1997-115. In that case, Judge Laro rejected Colgate-Palmolive's use of the contingent payment installment sales rules to shelter $100 million of gain. In contrast, Tax Court Judge John O. Colvin recently rejected the Service's substance-over-form argument in Estate of Brown v. Commissioner, T.C. Memo. 1997-195, thereby permitting contro

Arthur J. Cockfield, REVISION: Examining Policy Options for the Taxation of Outbound Direct Investment, http://www.ssrn.com/abstract=1456485 (November 4, 2009)

The Department of Finance (Canada) appointed an Advisory Panel on Canada's System of International Taxation (the ‘Advisory Panel') to review and recommend changes to Canada's international tax regime. This report provides background research to assist the Advisory Panel with its deliberations. More specifically, the objective of this report, provided by the Advisory Panel, is to identify and assess options for accessing a broader or full exemption tax system with regard to the taxation of outbou

Andrea M. Matwyshyn, REVISION: CSR and the Corporate Cyborg: Ethical Corporate Information Security Practices, http://www.ssrn.com/abstract=1473594 (October 19, 2009)

Relying heavily on Thomas Dunfee's work, this article conducts an in-depth analysis of the relationship between law and business ethics in the context of corporate information security. It debunks the two dominant arguments against corporate investment in information security and explains why socially responsible corporate conduct necessitates strong information security practices. This article argues that companies have ethical obligations to improve information security arising out of a dut

Paul L. Caron, Tax Archaeology, http://www.ssrn.com/abstract=1484698 (October 13, 2009)

This paper provides an overview and introduction of the second edition of the Tax Stories book, which unpacks ten seminal U.S. Supreme Court federal income tax cases, as well as a recent decision of the U.S. Court of Appelas for the District of Columbia Circuit. Each of the chapters sets forth the social, factual, and legal background of the case, discusses the various court proceedings and judicial opinions, and explores the immediate impact and continuing importance of the case. The University

Elizabeth A. Weeks, REVISION: State Constitutionalism and the Right to Health Care, http://www.ssrn.com/abstract=1421504 (October 7, 2009)

This Article examines state constitutions and health care rights. Notably, close to a third of states' constitutions recognize health while the U.S. Constitution contains no reference. Ample scholarly commentary exists on the absence of a right to health care under the U.S. Constitution but little attention has been paid to state constitutional law. This Article begins by explaining the absence of a federal right and the rationale for looking to state constitutional protections for health. T

Elizabeth A. Weeks, REVISION: Public Health Law for a Brave New World; Book Review: Lawrence O. Gostin, Public Health Law: Power, , http://www.ssrn.com/abstract=1334762 (October 7, 2009)

This is book review of Lawrence O. Gostin's new edition of Public Health Law: Power, Duty, Restraint (University of California Press, Berkeley, California, 2d ed., 2008). A review of a second edition of a book may be somewhat unusual as subsequent editions of already published works typically do not break new ground. But this book is different. Gostin's first edition, published in 2000, established and defined the modern field of public health law. The revised and expanded second edition emerges

Andrea M. Matwyshyn, REVISION: Hidden Engines of Destruction, http://www.ssrn.com/abstract=958437 (September 30, 2009)

This article explores whether a duty to warn should exist in the context of digital products. It argues in favor of creating a "reasonable expectation of code safety." Section I explains the dominant ways that digital products can harm consumers through their code and not their content, focusing on functionality and information security harms. Section II reviews existing regulation of digital products and highlights their focus on improving information parity and consumer control over digital p

Arthur J. Cockfield, The Taxation of Permanent Establishments in Canada, http://www.ssrn.com/abstract=1476998 (September 24, 2009)

This article was prepared for the Bulletin for International Taxation's Special Issue for the 63rd International Fiscal Association Congress. The article examines some of the main features of Canada's tax laws and policies regarding the taxation of permanent establishments (PEs). The article discusses the definition of PE in Canada's tax treaties and sets out the tax laws and policies on agency PEs and the entertainer and athlete PE fiction. The article also reviews Canada's approach to attribut

Paul L. Caron, REVISION: The Story of Murphy: A New Front in the War on the Income Tax, http://www.ssrn.com/abstract=1474523 (September 22, 2009)

This chapter from the second edition of Tax Stories (Foundation Press) unpacks the D.C. Circuit's stunning decision in Murphy v. United States, 460 F.3d 79 (D.C. Cir. 2006), which unsettled more than a half-century of tax jurisprudence in holding, based on an originalist view of the Sixteenth Amendment, that a personal injury award for emotional and reputational injuries could not be constitutionally treated as income. The chapter explores the background of the case, examines the parties' conduc

Daniel A. Farber, REVISION: 'Practical Reasoning' and the Scholarship of Philip P. Frickey, http://www.ssrn.com/abstract=1474044 (September 21, 2009)

Phil Frickey has made important contributions to constitutional law, statutory interpretation, and Indian law. This is the Introduction to a forthcoming symposium in the California Law Review on Frickey's scholarship. The contributors include Bethany Berger, James Brudney, William Eskridge, Sarah Krakoff, John Manning, Robert Post, Peter Strauss and Ernie Young. Besides providing an overview, the Introduction explores three important themes of Frickey's scholarship: (1) his reliance on practi

Nancy B. Rapoport, Restructuring the Misperception of Lawyers: Another Task for Bankruptcy Professionals, http://www.ssrn.com/abstract=1472211 (September 12, 2009)

This essay discusses why the increase in high-profile, high-fees chapter 11 bankruptcy cases creates some real public relations problems for bankruptcy professionals and what those professionals might do to avert a backlash in the media and in the public opinion of lawyers.

Daniel A. Farber, REVISION: Rethinking the Role of Cost-Benefit Analysis, http://www.ssrn.com/abstract=1324388 (September 10, 2009)

In their excellent new book, Retaking Rationality, Richard Revesz and Michael Livermore make a strong case for reforming cost-benefit analysis (CBA). Too often, as they convincingly document, CBA has been identified with an anti-regulatory agenda rather than reflecting sound economic analysis - and I would add, too often CBA has served as a means of hindering the implementation of statutory mandates. Their specific proposals for reforming CBA seem sensible. So does their desire to reform the

Daniel A. Farber, REVISION: Climate Adaptation and Federalism: Mapping the Issues, http://www.ssrn.com/abstract=1468621 (September 9, 2009)

A great deal of attention has been devoted to federalism issues relating to climate change mitigation. In contrast, the federalism dimension of adaptation has only begun to receive attention. Regardless of mitigation efforts, however, it is clear that society will experience substantial climate impacts and that major adaptation efforts will be required. What roles should the states and the federal government play in adaptation? This exploratory paper considers the policy issues involved in deter

Paul L. Caron, REVISION: Estate Planning Implications of the Right of Publicity, http://www.ssrn.com/abstract=1426629 (September 9, 2009)

It is not very often that an estate tax case is featured in the Harvard Law Review, as recently happened with Estate of Andrews, 850 F. Supp. 1279 (E.D. Va. 1994). In that case, the district court concluded that the value of the right of publicity embodied in a famous decedent's name is includable in the decedent's estate under section 2033. The Harvard article claims that the case 'sent shock waves through the estate planning profession,' and that 'knowledgeable estate attorneys are scrambling

Daniel A. Farber, Legal Guidelines for Cooperation between the European Union and American State Governments, http://www.ssrn.com/abstract=1468643 (September 5, 2009)

Although we are used to thinking of international cooperation as nation-to-nation, cooperation between the European Union and individual American states is becoming increasingly important in areas such as consumer safety and environmental regulation. This paper surveys the potential legal pitfalls - primarily the dormant commerce clause and preemption on the U.S. side, and the limitations of EU enforcement on the European side. It suggests some approaches to designing cooperative agreement to mi

J.B. Ruhl, REVISION: Cities, Green Construction, and the Endangered Species Act, http://www.ssrn.com/abstract=1282284 (August 31, 2009)

The geographic footprint of cities - the space they occupy - is relatively small in comparison to their ecological footprint measured in terms of impact on the sustainability of resources situated mostly outside of the urban realm. Ironically, the Endangered Species Act (ESA), though widely regarded as one of the most powerful environmental laws, has been and continues to be administered with respect to urbanized land masses primarily with the objective of managing their geographic footprints. T

J.B. Ruhl, REVISION: Keeping the Endangered Species Act Relevant, http://www.ssrn.com/abstract=1281040 (August 31, 2009)

The Endangered Species Act (ESA) has long been the workhorse of species protection in contexts for which a species-specific approach can effectively be employed to address discrete human-induced threats that have straightforward causal connections to the decline of a species, such as clearing of occupied habitat for development or damming of a river. Its resounding success there, however, has led to the misperception that it can duplicate that record anywhere and for any reason a species is at r

Gregory N. Mandel, REVISION: The Non-Obvious Problem: How the Indeterminate Non-Obvious Standard Produces Excessive Patent Grants, http://www.ssrn.com/abstract=1117618 (August 25, 2009)

The dominant current perception in patent law is that the core patent requirement that an invention be non-obvious is applied too leniently, resulting in a proliferation of patents on trivial inventions that actually retard technological innovation in the long run. This article reveals that the common wisdom is only half correct. The non-obvious standard is not too low, but both too high and too low. It is indeterminate. Three principal factors produce nonobviousness indeterminacy: a failure

J.B. Ruhl, New Sustainable Governance Institutions for Estuaries and Coasts, http://www.ssrn.com/abstract=1460981 (August 25, 2009)

The central point of inquiry in this chapter - how to design sustainable governance institutions for estuaries and coasts - lends itself to no straightforward answers. Sustainability, while practically a household term in environmental policy dialogue, has proven elusive at best when it comes to setting policy goals into concrete policy text. Governance institutions come in all variety of structures and arrangements, and what might work well to support sustainability in one context may prove ent

Gregory N. Mandel, REVISION: When to Open Infrastructure Access, http://www.ssrn.com/abstract=1034081 (August 25, 2009)

This Essay comments on and develops Professor Brett Frischmann's concept of infrastructure commons, a theory which suggests that a variety of public and social resources (including information, transportation, environmental, and intellectual property resources) should be managed through open access regimes. Infrastructure theory remains underdeveloped, as it does not identify under which circumstances public and social infrastructure should be managed as commons or how the commons should operate

Gregory N. Mandel, REVISION: History Lessons for a General Theory of Law and Technology, http://www.ssrn.com/abstract=1012612 (August 25, 2009)

Studying how prior law and technology issues were handled, and particularly how they were sometimes mishandled, provides valuable lessons for responding to current and future law and technology issues as they arise. This contribution to a symposium on whether and to what extent there can be a general theory of law and technology focuses on lessons that can be learned from past responses to once-new legal issues created by technological advance. The history lessons do not provide a complete ro

Gregory N. Mandel, REVISION: Nanotechnology Governance, http://www.ssrn.com/abstract=1018707 (August 25, 2009)

Experts expect nanotechnology to transform society, revolutionizing fields as diverse as health care, energy, and the environment. Though a number of nanotechnology products are already on the market, the major developments are yet to come, and the nascent stage of this technology combined with current scientific uncertainty raises questions about new health, safety, and environmental concerns. Most discussion of nanotechnology presents a polarized debate between "proponents" who argue for rap

Gregory N. Mandel, REVISION: Another Missed Opportunity: The Supreme Court's Failure to Define Nonobviousness or Combat Hindsight, http://www.ssrn.com/abstract=1144199 (August 25, 2009)

This Article analyzes two significant errors of omission in the Supreme Court's recent patent decision, KSR v. Teleflex. First, though KSR represents the Court's eighth decision on nonobviousness since the standard was enacted in 1952, the Court still has never defined what this core patent standard requires. The failure to instruct on the level of ingenuity necessary to satisfy nonobviousness leads to inconsistent and unpredictable nonobvious decisions. Second, despite recognizing the problem o

Susan A. Schneider, A Reconsideration of Agricultural Law: A Call for the Law of Food, Farming, and Sustainability, http://www.ssrn.com/abstract=1446131 (August 9, 2009)

American agricultural policy has evolved from its early focus on agricultural development and expansion to its current emphasis on providing economic support for the agricultural sector. Agricultural law as a discipline has tracked this policy, with agricultural law scholars debating the origins and the validity of the special treatment of agriculture under the law. This article reviews these debates and calls for a reconsideration of agricultural law and policy. It argues for agricultural poli

Elizabeth A. Weeks, REVISION: The Public's Right to Health: When Patient Rights Threaten the Commons, http://www.ssrn.com/abstract=1234542 (August 7, 2009)

This Article offers a contemporary examination of traditional public health objectives to address social problems not amenable to individual resolution. Taking the tradition a step further, it defines a "public health right" that may justify certain government actions that otherwise appear to impair individual rights. For example, lawmakers are considering whether current regulations on prescription drugs should be loosened to allow terminally ill patients to access drugs before they have been

Nancy B. Rapoport, REVISION: Lessons from Enron -- And Why We Don't Learn from Them, http://www.ssrn.com/abstract=1413937 (August 1, 2009)

This article discusses why even the smartest of people can make boneheaded decisions, and it suggests that the only way to avoid future Enrons is to take into account the cognitive mistakes that humans tend to make.

Jordan K. Paradise, Patient Advocacy Group Collaboration in Genetic Research and The Scope of 'Joint Inventorship' Und, http://www.ssrn.com/abstract=983115 (July 28, 2009)

Patent systems have traditionally operated to reward scientific innovation and discovery rather than the level and type of contribution of raw materials and other support. As U.S. and international patient advocacy groups continue to launch efforts to organize patients, collect and bank genetic material, and interface with researchers to find cures for diseases, there is need for critical examination of the scope of inventorship as constructed both in the U.S. patent law and abroad. In recent

Alfred L. Brophy, REVISION: Applied Legal History: Demystifying the Doctrine of Odious Debts, http://www.ssrn.com/abstract=1366028 (July 23, 2009)

"Odious debts" have been the subject of debate in academic, activist, and policy circles in recent years. The term refers to the debts of a nation that a despotic leader incurs against the interests of the populace. When the despot is overthrown, the new government-understandably-does not wish to repay creditors who helped prop up the despot. One argument has focused on whether customary international law supports a "doctrine" of odious debts that justifies non-payment of sovereign debts when

Alfred L. Brophy, Update: “The Most Esteemed Act of My Life”: Family, Property, Will, and Trust in the Antebellum South, http://www.ssrn.com/abstract=1398522 (July 18, 2009)

"The Most Esteemed Act of My Life" combines an empirical study of probate in Greene County, Alabama, one of the wealthiest counties in the United States in the years leading into Civil War, with a qualitative examination of property doctrine and ideology at that time. The data address three key themes in recent trusts and estates literature. First, what testators did with their extraordinary wealth; in particular, how they worked to maintain property within their families--and especially how m
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stefanie lindquist, Attorney Expertise, Litigant Success, and Judicial Decision Making in the U.S. Courts of Appeals, http://www.ssrn.com/abstract=1428566 (July 3, 2009)

In the U.S. legal system, litigants frequently retain counsel to represent their interest in civil cases, particularly when the stakes are high. Scholarly work and anecdotal evidence suggest that variation in the quality of advocacy has the potential to affect litigant success. We examine the relationship between attorney characteristics, case outcomes, and judicial voting in products liability decisions of the U.S. Courts of Appeals. Our analysis found some differences in the levels of exper

Nancy B. Rapoport, The Real Reason Why Businesses Make Bad Decisions (Book Review of Jonathan R. Macey, Corporate Gover, http://www.ssrn.com/abstract=1425118 (July 2, 2009)

This book review examines Professor Jonathan Macey's latest book on corporate governance, and it uses Professor Macey's analysis to explain the latest rash of corporate scandals.

Alfred L. Brophy, REVISION: The Signaling Value of Law Reviews: An Exploration of Citations and Prestige, http://www.ssrn.com/abstract=1095799 (June 22, 2009)

This brief essay reports a study of citations to every article published in 1992 in thirteen leading law journals. It uses citations as a proxy (an admittedly poor one) of article quality and then compares the citations across journals. There are, not surprisingly, vast differences in number of citations per article. While articles in the most elite journals receive more citations on average than the less elite (but still highly regarded) other journals studied, some articles in the less elit

J.B. Ruhl, REVISION: Massive Problems in the Administrative State: Strategies for Whittling Away, http://www.ssrn.com/abstract=1280896 (June 18, 2009)

Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, "agencies, like legislatures, do not generally resolve massive problems in one fell s

J.B. Ruhl, REVISION: Implementing the New Ecosystem Services Mandate of the Section 404 Compensatory Mitigation Program: , http://www.ssrn.com/abstract=1281048 (June 18, 2009)

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 ove

Jim Chen, Something Old, Something New, Something Borrowed, Something Blue, http://www.ssrn.com/abstract=1418709 (June 13, 2009)

The Bluebook has transcended its role as a legal citation manual. As the citation for the flagship law reviews at Harvard, Yale, Columbia, and Penn, the Bluebook acts as the contract, combination, or conspiracy in restraint of trade that keeps its publishers solvent. As the condensed expression of the familial relationship between legal academia and student-edited law reviews, the Bluebook represents the prenuptial contract between the professors and the journals. Finally, as the unofficial U

Jim Chen, Feudalism Unmodified: Discourses on Farms and Firms, http://www.ssrn.com/abstract=1418690 (June 13, 2009)

The regulation of firm size and structure, in agriculture and industry, assumes that certain forms of market structure and industrial organization are economically or socially pernicious. Large farms and large firms, according to this view, are reservoirs of economic and social evils. The law often targets these purported evils by restricting the formation and structure of firms. Structural regulation exploits the connection between the internal firm organization and overall market structure.

Peter K. Yu, REVISION: A Tale of Two Development Agendas, http://www.ssrn.com/abstract=1349967 (June 8, 2009)

In October 2004, Argentina and Brazil introduced a proposal to establish the WIPO Development Agenda. Although scholars have focused primarily on this agenda, as well as the WTO Doha Development Agenda, development agendas have also been established at other international fora, such as those governing public health, human rights, biological diversity, food and agriculture, and information and communications. Interestingly, these development agendas bear strong resemblances to another set of dev

Paul L. Caron, REVISION: The Estate Tax Non-Gap: Why Repeal a 'Voluntary' Tax?, http://www.ssrn.com/abstract=1295702 (June 2, 2009)

Over thirty years ago, George Cooper wrote a seminal article arguing that the estate tax was largely voluntary. Although many academics subsequently embraced Cooper's thesis that the estate tax easily can be avoided through a modicum of planning, we argue that the voluntary tax metaphor crumbles under scrutiny. The unprecedented repeal efforts over the past twenty years belie the notion that the estate tax is easily avoided. Moreover, many of the techniques described by Cooper simply no longer p

Daniel A. Farber, REVISION: Confronting Uncertainty under NEPA, http://www.ssrn.com/abstract=1403723 (May 26, 2009)

Quantifying risks with confidence is often difficult. For the past thirty years, agencies and courts have struggled with the treatment of uncertainty in environmental impact statements. As we will see, the results have been an unsatisfactory muddle. We should be able to do better. This problem is all the more important today. Climate change will require innovative solutions - new energy technologies, new adaptation strategies. These innovations will inevitably pose risks, often in the form of p

Chad M. Oldfather, REVISION: Universal De Novo Review, http://www.ssrn.com/abstract=1139864 (May 22, 2009)

This article takes up the question of why appellate courts always review questions of law pursuant to the de novo standard of review. Put another way, it examines the familiar idea that appellate courts owe no deference to the legal rulings of trial judges. They must instead engage in what I refer to as universal de novo review - a practice pursuant to which appellate courts faced with legal questions always enjoy the authority to engage in plenary review, and never have the responsibility (or

Daniel A. Farber, REVISION: Justice Stevens, Habeas Jurisdiction, and the War on Terror, http://www.ssrn.com/abstract=1405538 (May 18, 2009)

The Bush Administration chose Guantanamo as a detention site in the belief that the military base was immune from federal habeas jurisdiction, leading to a protracted dispute between the Executive Branch, the Supreme Court, and Congress. Justice Stevens played an important role in this struggle over federal jurisdiction, writing two critical majority opinions and an important dissent about habeas jurisdiction. His two majority opinions were countered by fervent dissents by Justice Scalia. Exami

Susan A. Schneider, REVISION: Reconnecting Consumers and Producers: On the Path Toward a Sustainable Food and Agriculture Policy, http://www.ssrn.com/abstract=1359832 (May 6, 2009)

Food, as the most essential element to human survival is inherently connected to the fabric of our social structure. Yet over time, American consumers have become disassociated with how their food is produced, processed, and marketed. At the same time, methods of food production have moved in ways that fail to adequately take into account consumer preferences, societal values, or sustainability. This article examines how and why consumers have become disconnected from the food system and what ev

Elizabeth A. Weeks, REVISION: Right to Experimental Treatment: FDA New Drug Approval, Constitutional Rights, and the Public's Heal, http://www.ssrn.com/abstract=1208428 (May 4, 2009)

Do terminally ill patients who have exhausted all other available, government-approved treatment options have a constitutional right to experimental treatment that may prolong their lives? On May 2, 2006, a divided panel of the U.S. Court of Appeals for the District of Columbia, in a startling opinion, Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, held "Yes." The plaintiffs, Abigail Alliance for Better Access to Developmental Drugs and Washington Legal Foundation, s

Gaia Bernstein, REVISION: In the Shadow of Innovation, http://www.ssrn.com/abstract=1395779 (May 4, 2009)

We are in the midst of the intellectual property wars. Scholars, judges, legislators, corporations, creators and inventors disagree about the role of intellectual property rights. Yet, surprisingly everyone agrees about innovation - everyone loves innovation. Innovation appears everywhere: In legal scholarship, case law, legislative hearings, newspapers, and blogs. It is uniformly admired and aspired to - though almost never questioned. Innovation is often assumed to have historically held a

Jim Chen, Creamskimming and Competition, http://www.ssrn.com/abstract=1395554 (April 27, 2009)

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 entr

Lori A. Ringhand, REVISION: In Defense of Ideology: A Principled Approach to the Supreme Court Confirmation Process, http://www.ssrn.com/abstract=1361102 (April 21, 2009)

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question m

Nancy B. Rapoport, REVISION: The Corporate Lawyer's Role in a Contemporary Democracy, http://www.ssrn.com/abstract=1376475 (April 10, 2009)

In this paper, we review the traditional arguments for corporate social responsibility and ask the question of what corporate lawyers should do to help their clients do the "right thing" ethically. We also set out a test--the "technically" test--that highlights when something is usually on the wrong side of the ethical line. (If you have to give legal advice starting with, "Well, technically...," you're on the wrong side of the line.)

Elizabeth A. Weeks, REVISION: Teaching Sicko, http://www.ssrn.com/abstract=1310367 (April 10, 2009)

This brief essay, appearing in a regular column on "Teaching Health Law," describes the author's experience using the Michael Moore film, "Sicko," in the classroom. Students were assigned to watch the film and discuss relevant legal rules and policy issues in health care financing, health care reform, and public health law. The "Teaching Health Law" column is intended to share pedagogical experiences and insights among health law professors. This article also provides a summary of the substantiv

Gregory N. Mandel, REVISION: Regulating Emerging Technologies, http://www.ssrn.com/abstract=1355674 (April 10, 2009)

A range of emerging technologies, including biotechnology, nanotechnology, and synthetic biology, are expected to transform society. Handling the development and regulation of these promising technologies is a daunting task as the risks presented will not be understood until the technologies are further developed. This paper proposes a new governance model that seeks manage the dynamic of emerging technology promise versus risk by moving the point of first governance earlier in a technology's de

J.B. Ruhl, Sustainable Development: A Five-Dimensional Algorithm for Environmental Law, http://www.ssrn.com/abstract=1368909 (March 27, 2009)

This article describes sustainable development as involving five dimensions: environment, economy, equity, time, and space (or scale). I suggest that the complexity inherent in balancing these five dimensions demand algorithmic approaches like those being explored in complex adaptive systems theory.

Chad M. Oldfather, Error Correction, http://www.ssrn.com/abstract=1368894 (March 27, 2009)

Under most accounts of appellate review, error correction stands with law declaration as the core purposes of the process. Yet while a vast amount of scholarship addresses the process of judicial law creation, error correction has received comparatively little attention. Indeed, there appears to be a consensus that it is straightforward and settled, and that the lack of attention is warranted. One goal of this article is to challenge this understanding. To be sure, the architecture of our ju

Andrea M. Matwyshyn, Technology, Commerce, Development, Identity, http://www.ssrn.com/abstract=958438 (March 23, 2009)

Traditional paradigms of technology regulation ask how technology-mediated space is different from non-technology mediated space. Regulation rarely focuses on how technology makes a user develop differently than she/he otherwise would and what those differences might mean for regulatory approaches. This article introduces nonlinear developmental paradigms of contextualist and ecological developmental psychology theory to the debate over technology regulation. It argues that technology regulation

Frank A. Pasquale, REVISION: Rankings, Reductionism, and Responsibility, http://www.ssrn.com/abstract=888327 (March 16, 2009)

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merel

J.B. Ruhl, REVISION: The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and its Pra, http://www.ssrn.com/abstract=1353428 (March 16, 2009)

This article is the second in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. Building on the model outlined in the first installment (in the Duke Law Journal), this work develops an evolutionary theory of legal systems as CAS. It suggests that long-term fitness of the legal system will require use of innovative, adaptive legal institutions and instruments.

J.B. Ruhl, REVISION: Malpractice and Environmental Law: Should Environmental Law Specialists be Worried?, http://www.ssrn.com/abstract=1353431 (March 16, 2009)

This article examines the field of environmental law as a potential minefield for malpractice claims given its complex and dynamic nature. The article outlines principles for malpractice law applied to environmental law, based on malpractice principles applied in the tax and patent fields.

Susan A. Schneider, REVISION: What is Agricultural Law?, http://www.ssrn.com/abstract=1331422 (March 16, 2009)

The Association of American Law Schools (AALS) Agricultural Law Section chair, Professor Anthony Schutz identified two related goals for the 2009 AALS Agricultural Law section session: (1) To consider the pedagogical and scholarly value of agricultural law, and (2) To identify what belongs in the canon of agricultural law. This article defines agricultural law in the context of the contemporary law school curriculum, considering the particularly relevancy of consumers' increasing interest in foo

J.B. Ruhl, REVISION: Three Questions for Agriculture About the Environment, http://www.ssrn.com/abstract=1357696 (March 16, 2009)

This article is the third in my series studying agriculture and environmental law. It asks why agriculture has not evolved toward more environmentally responsible behavior and points to possible "green" solutions that will move agriculture into necessary transformations.

J.B. Ruhl, REVISION: The Myth of What is Inevitable Under Ecosystem Management: A Response to Pardy, http://www.ssrn.com/abstract=1358333 (March 16, 2009)

This article, second in a five-part dialogue appearing in the Pace ELR, responds to Professor Bruce Pardy's initial evaluation of ecosystem management. I defend ecosystem management, arguing it is not directed at changing nature as Pardy suggests.

J.B. Ruhl, REVISION: Section 7(a)(1) of the 'New' Endangered Species Act: Rediscovering and Redefining the Untapped Power, http://www.ssrn.com/abstract=1353336 (March 16, 2009)

This article probes the history, meaning, and potential applications of section 7(a)(1) of the Endangered Species Act, which by its terms imposes a "duty to conserve" on all federal agencies. The article examines how agencies and courts have watered down this potentially forceful species conservation directive and suggests that, by linking it with the recovery planning function of section 4(f) of the Act, the duty to conserve could help us gain traction on species recovery.

J.B. Ruhl, REVISION: Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Ti, http://www.ssrn.com/abstract=1353330 (March 16, 2009)

This article offers an early examination of the law and governance of biodiversity (circa 1995) through the lenses of the Endangered Species Act, Clean Water Act, and Coastal Zone Management. It suggests that true multi-scalar, cooperative federalism will be needed to manage complex ecological resources for biodiversity conservation. A suggested model employing regional biodiversity management approaches is outlined.

J.B. Ruhl, REVISION: The Pardy-Ruhl Dialogue on Ecosystem Management, Part IV: Narrowing and Sharpening the Questions, http://www.ssrn.com/abstract=1358338 (March 16, 2009)

This article, fourth in a five-part dialogue appearing in the Pace ELR, further responds to Professor Bruce Pardy's critique of ecosystem management. I defend ecosystem management, arguing it does not involve the standardless, unbridled administrative discretion Pardy suggests.

J.B. Ruhl, REVISION: Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: A Wake-Up Call for Legal R, http://www.ssrn.com/abstract=1353409 (March 16, 2009)

This article is the first in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. It builds the basic model of CAS and maps it onto legal systems, offering some suggestions for what it means in terms of legal institution and instrument design.

J.B. Ruhl, A Practical Guide to Habitat Conservation Banking Law and Policy, http://www.ssrn.com/abstract=1357707 (March 13, 2009)

This article describes and evaluates the habitat conservation banking program the Clinton Administration conceived and the Bush Administration adopted under the Endangered Species Act.

J.B. Ruhl, Sustainable Agriculture: Food for the Future Farmland Stewardship: Can Ecosystems Stand Any More of, http://www.ssrn.com/abstract=1357691 (March 13, 2009)

Second in my series of articles on farming and environmental policy, this article examines farmland stewardship rhetoric in light of the reality of extensive agricultural exemptions from environmental regulation.

J.B. Ruhl, Water Wars, Eastern Style: Divvying Up the Apalachicola-Chattahoochee-Flint River Basin, http://www.ssrn.com/abstract=1357762 (March 13, 2009)

This article takes lessons learned from western states' water conflicts and applies them to eastern contexts as exemplified by the dispute between Florida and Georgia over water allocation in the ACF River basin.

Tom W. Bell, Graduated Consent Theory, Explained and Applied, http://www.ssrn.com/abstract=1357825 (March 12, 2009)

We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, 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. This article reviews how a wide range of author

Arthur J. Cockfield, Protecting Taxpayer Privacy Rights Under Enhanced Cross-Border Tax Information Exchange: Toward a Mu, http://www.ssrn.com/abstract=1356841 (March 12, 2009)

For a number of important policy reasons, tax authorities share information they collect about taxpayers with tax authorities from other countries. These tax authorities along with tax scholars generally recognize the need for enhanced cross-border tax information exchange (TIE) to assist with the enforcement of tax laws as well as for other reasons, but often disagree on the appropriate reform path. This Article identifies and discusses the challenges to taxpayer privacy rights and interests p

Arthur J. Cockfield, Finding Silver Linings in the Storm: An Evaluation of Recent Canada-US Crossborder Tax Developments, http://www.ssrn.com/abstract=1352557 (March 12, 2009)

Recently, a storm of activity has swirled around rules governing the tax treatment of Canada-US crossborder investment. The high degree of integration of the Canadian and US economies means that the economic effects of such tax changes can be significant. This paper reviews and evaluates a number of recent developments, including revisions to the Canada-US tax treaty and ongoing Canadian efforts to engage in corporate income tax competition with the United States. Further crossborder tax reform

Arthur J. Cockfield, Tax Integration under NAFTA: Resolving the Conflict between Economic and Sovereignty Concerns, http://www.ssrn.com/abstract=117928 (March 3, 2009)

Arthur Cockfield investigates the impact of national tax differences in North America on cross-border investment flows. He argues that proposals to deal with problems associated with these tax differences must balance both the economic and political interests of the United States, Canada and Mexico. Tax differences in North America likely distort investment flows and inhibit certain cross border investment activities. But comprehensive tax integration schemes like tax harmonization would place

Arthur J. Cockfield, The Impact of U.S. Consumption Tax Reform on Canada, http://www.ssrn.com/abstract=117988 (March 3, 2009)

Arthur Cockfield investigates the likely impact of radical United States consumption-based tax reform (such as a flat tax)on the Canadian economy. This type of reform would lower the cost of new investments in the United States. It would encourage capital outflows from Canada to the United States and provide incentives for multinational firms with operations in Canada to shift profits to their corporate affiliates based in the United States. These strategies would erode the Canadian corporate