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:
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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.
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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
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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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
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
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'
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
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
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
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
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
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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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
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
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
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
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
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, 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