Jurisdynamics Network authors on SSRN

This page summarizes the most recent SSRN abstracts posted by the authors of the Jurisdynamics Network. The Network's authors are serious, productive scholars as well as stimulating bloggers, and we hope you will read and download these papers. This page has its own RSS feed, which you are invited to download by clicking here:  . To receive updates as these authors post new scholarship, please use the following form:

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%SOURCENAMEESCAPED%, New: Supreme Court Update — (The Square Root of) 25 or Six-to-Three, https://www.ssrn.com/abstract=4385851 (March 20, 2023)

The 2021 Term of the Supreme Court was one of the most contentious and controversial in recent memory. This Term represented a striking reversal of five or six decades of jurisprudence. The era of Roe v. Wade, in retrospect, was a halcyon period of relative stability in Supreme Court doctrine. The 2021 Term delivered decisive wins in the 5G agenda of the culture wars: God, guns, gay people, gynecology, and gerrymandering. Most saliently, Roe has been overruled.

Note: The title of this review alludes to “25 or 6 to 4,” a 1970 song by Chicago.
%SOURCENAMEESCAPED%, REVISION: Deferring Intellectual Property Rights in Pandemic Times, https://www.ssrn.com/abstract=4062300 (March 15, 2023)

This Article examines an unprecedented proposal that India and South Africa submitted to the World Trade Organization (WTO) in October 2020, which called for a waiver of more than 30 provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights to help combat COVID-19. It begins by recounting the proposal's strengths and weaknesses. The Article then identifies the challenges surrounding the negotiation and implementation of the proposed waiver. It shows why these two sets of challenges were neither separate nor sequential, but deeply entangled at the time of the international negotiations.

To respond to these challenges and the negotiation impasse at the WTO, this Article advances an alternative proposal that calls for the deferral of select intellectual property rights in pandemic times. Aiming to "split the difference" between the proponents and opponents of the waiver, the proposal draws support from precedents involving temporal adjustments to ...
%SOURCENAMEESCAPED%, New: Algunas Notas Sobre La Econofísica (Some Notes on Econophysics), https://www.ssrn.com/abstract=4369976 (March 2, 2023)

Spanish abstract: La econofísica es el área multidisciplinar del conocimiento que intenta combinar la física, las matemáticas y los distintos campos que abarcan la economía. Algunos de los conceptos introducidos por los físicos en finanzas, tales como fractalidad o multifractalidad, han sido aceptadas por la mayoría de los economistas. Los trabajos entorno al análisis de esta propiedad se han multiplicado a lo largo de la última década

English abstract: Econophysics is the multidisciplinary domain of knowledge that attempts to combine physics, mathematics and the different fields that cover the economy. Some of the concepts introduced by physicists in finance, such as fractality or multifractality, have been accepted by most economists. Work addressing these concepts has proliferated throughout the last decade.
%SOURCENAMEESCAPED%, New: Four Energy Commodity Quartets: Unsupervised Machine Learning and the Four Horsemen of the Fossil Fuel Apocalypse, https://www.ssrn.com/abstract=4369980 (February 28, 2023)

Markets for energy-related commodities figure prominently in developmental economics, international trade, and environmental law and policy. Markets for Brent oil, West Texas intermediate crude, gasoline, and diesel affect not only energy policy but also demand for agricultural commodities that serve as feedstocks for ethanol and biodiesel. The natural resource curse in developmental economics arises largely from fossil fuel markets as well as gemstones and precious metals. Factors affecting oil prices include wars and other political disturbances, shifts in global supply and demand, and technological and regulatory changes promoting demand for renewable energy. Even ephemera such as OPEC production decisions and extreme weather events must be taken into account. Amid climate change and death by pandemic disease, the factors affecting energy commodity markets closely track the four horsemen of the Apocalypse: pestilence, war, famine, and death.

In its original and proper Greek ...
%SOURCENAMEESCAPED%, REVISION: Clustering Commodity Markets in Space and Time: Clarifying Returns, Volatility, and Trading Regimes Through Unsupervised Machine Learning, https://www.ssrn.com/abstract=3791138 (February 28, 2023)

Unsupervised machine learning can interpret logarithmic returns and conditional volatility in commodity markets. k-means and hierarchical clustering can generate a financial ontology of markets for fuels, precious and base metals, and agricultural commodities. Manifold learning methods such as multidimensional scaling (MDS) and t-distributed stochastic neighbor embedding (t-SNE) enable the visualization of comovement and other financial relationships in three dimensions.

Different methods of unsupervised learning excel at different tasks. k-means clustering based on logarithmic returns works well with MDS to classify commodities and to create a spatial ontology of commodities trading, A strikingly different application involves k-means clustering of the matrix transpose, such that conditional volatility is evaluated by trading date rather than by commodity. This approach can isolate the two most calamitous temporal regimes of the past two decades: the global financial crisis ...
%SOURCENAMEESCAPED%, REVISION: Rethinking Education Theft Through the Lens of Intellectual Property and Human Rights, https://www.ssrn.com/abstract=4318316 (February 15, 2023)

Written for the Property and Education Symposium, this essay problematizes the increased propertization and commodification of education and calls for a rethink of the emergent concept of "education theft" through the lens of intellectual property and human rights. This concept refers to the phenomenon where parents, or legal guardians, enroll children in schools outside their school districts by intentionally violating the residency requirements.

This essay begins by revisiting the debate on intellectual property rights as property rights. It discusses the ill fit between intellectual property law and the traditional property model as well as the impediments this law has posed to public access to education. The essay then outlines select reforms advanced by courts, policymakers, and commentators both inside and outside the property regime to improve such access.

This essay then turns to the debate on property and education in the human rights context. The human rights ...
%SOURCENAMEESCAPED%, New: Baker Botts L.L.P. v. ASARCO LLC, Amicus Brief of Neutral Fee Examiners Supporting Neither Party, https://www.ssrn.com/abstract=4357118 (February 15, 2023)

This amicus brief was written by four neutral fee examiners to assist the United States Supreme Court in considering the issue of whether bankruptcy estate-paid professionals could recover fees for responding to fee objections.
%SOURCENAMEESCAPED%, REVISION: אבד בתרגום: על זכויות תביעה בנזיקין של חדלי-פירעון Lost in Translation: Tort Actions of Insolvent Victims, https://www.ssrn.com/abstract=3901385 (February 13, 2023)

תקציר בעברית: מאמר זה בוחן אם זכות התביעה בנזיקין של חדל פירעון והפיצויים המגיעים או משולמים בעקבות מימושה אמורים להישאר בידי הקורבן או לעבור לידי הנאמן בהליכי חדלות הפירעון לצורך חלוקה בין הנושים. בפרשת ידידיה נקבע על יסוד פרשנות סעיף 21 לפקודת הנזיקין כי תביעה בגין נזקי גוף ופירותיה נותרים בידי הקורבן, ואילו תביעה בגין נזקי רכוש ופירותיה עוברים לנאמן. בפרשת ג'ינר חולל בית המשפט העליון מהפכה כשקבע כי גם הזכות לפיצוי בגין הפסדי השתכרות במקרים של פגיעה גופנית (עבור התקופה שעד למתן הפטר בהליך חדלות הפירעון) עוברת לידי הנאמן, בניגוד לזכות התביעה בגין ראשי נזק אחרים אשר נותרת בידי פושט הרגל. המאמר טוען שהתוצאה אליה הגיע בית המשפט בפסק הדין המאוחר אמנם נכונה מבחינה משפטית, אולם ההנמקה שגויה.

בראש ובראשונה, המאמר מראה כי השינוי שהתחולל בעניין ג'ינר התבסס למעשה על פרשנות בניגוד ללשונה המפורשת של פקודת הנזיקין, פעולה שיפוטית מרחיקת-לכת שאמורה להיות נדירה ביותר אף בשיטת הפרשנות המקובלת בישראל, מבלי שהתקיימה אחת הנסיבות החריגות והמיוחדות המצדיקות מהלך כזה. ...

%SOURCENAMEESCAPED%, REVISION: Can the Right to Science Reduce the Tensions Between Intellectual Property and Human Rights?, https://www.ssrn.com/abstract=4273521 (February 9, 2023)

The right to science—or, more formally, the right to enjoy the benefits of scientific progress and its applications—is one of the most underexplored rights in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Referred to as being "[t]ucked away at the tail end" of the UDHR and the "most obscure of all the international human rights treaty provisions," this right did not become the subject of an authoritative interpretation by the U.N. Committee on Economic, Social and Cultural Rights (CESCR) until April 2020, amid the COVID-19 pandemic.

Taking note of the release of General Comment No. 25 and the considerable frustrations over the tensions and conflicts between intellectual property and human rights during the COVID-19 pandemic, this chapter closely examines the right to science as incorporated in Article 27(1) of the UDHR and Article 15(1)(b) of the ICESCR. The new interpretive comment is of ...
%SOURCENAMEESCAPED%, REVISION: Three Megatrends in the International Intellectual Property Regime, https://www.ssrn.com/abstract=4295524 (January 27, 2023)

Since the establishment of the Paris and Berne Conventions, the international intellectual property regime has encountered two world wars, struggled with several global pandemics, welcomed many newly independent nations and interacted with a wide variety of technologies and innovative practices. Although this regime progressed only slowly for the larger part of its first century, it saw major transformation in the past four decades, including the adoption of the WTO TRIPS Agreement.

Written in commemoration of the centennial of the American Branch of the International Law Association, this Article identifies three megatrends to illuminate the magnitude and ramifications of such transformation: (1) the rise of emerging countries; (2) the increased complexity of the international intellectual property regime; and (3) spatial transformation brought about by new technology. Focusing on the myriad impacts changing actors, institutions and technologies have brought to the ...
%SOURCENAMEESCAPED%, REVISION: Instrumental Comparative Tort Law, https://www.ssrn.com/abstract=3973401 (January 26, 2023)

This contribution to the JTL symposium on "The State of Tort Theory" aims to delineate the potential use of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, demonstrates how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications.

Part 2 exemplifies the more traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas, often accompanied by relevant empirical evidence, for domestic tort law gap-filling and reform. It explains the challenges that lawmakers and scholars who use comparative tort law for these purposes might face.

Part 3 maintains that comparative law is the cornerstone of unification endeavors. It starts with coordinated projects, such as the Restatements of Torts and the Principles of European Tort Law, demonstrating that unification is in itself an ...
%SOURCENAMEESCAPED%, REVISION: The COVID-19 TRIPS Waiver and the WTO Ministerial Decision, https://www.ssrn.com/abstract=4150090 (January 26, 2023)

Since the World Health Organization declared COVID-19 as a global pandemic in March 2020, countries have experienced wide devastation and disruption. To provide an expedited response and to maximize the policy space in the health area, India and South Africa submitted an unprecedented proposal to the World Trade Organization in October 2020, calling for the partial suspension of the TRIPS Agreement to facilitate the "prevention, containment or treatment of COVID-19."

Although this proposal quickly garnered considerable support from other WTO members, civil society organizations and individual experts, it faced strong opposition from some developed countries. By December 2021, it was quite clear that the waiver proposal would not receive enough support to achieve consensus within the WTO membership. Around that time, the European Union, India, South Africa and the United States, with the support of the WTO Secretariat, launched high-level quadrilateral consultations to find a ...
%SOURCENAMEESCAPED%, REVISION: The Unidentified Wrongdoer, https://www.ssrn.com/abstract=3826564 (January 25, 2023)

The Article addresses the untheorized and under-researched problem of strong unidentifiability in tort law, namely the victim’s occasional inability to identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs, and bring an action against him or her. This Article offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine liability and frustrate its goals.

Part I presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: adherence to direct liability with creative procedural identification tools, indirect liability of a third party with some control over the unidentified wrongdoer’s conduct, residual indirect liability, and no causation-based liability.

Part II turns to an economic appraisal of the competing models. It argues that in tailoring solutions to strong ...
%SOURCENAMEESCAPED%, REVISION: Negligence Without Harm, https://www.ssrn.com/abstract=4038781 (January 25, 2023)

The colloquial phrase “no harm, no foul” captures one of the most fundamental tenets of negligence law: the tort is incomplete and there can be no legal redress without proof of actual harm. Mere exposure to risk, even when it is foreseeable and unreasonable, is not actionable. The Article dares to challenge this time-honored, deep-rooted, and highly impactful legal axiom.

Part I restates the traditional quadripartite structure of the tort of negligence, highlights the implications of the harm requirement, and briefly reviews and characterizes past attempts to circumvent it.

The Article then launches a three-pronged attack on this traditional structure:

(1) Part II uncovers the internal normative incoherence of existing negligence doctrine (where breach of a legal duty does not in itself have legal repercussions) and offers “negligence without harm” as a coherent alternative.

(2) Part III provides a fairness-based case for abolishing the harm ...
%SOURCENAMEESCAPED%, REVISION: Vaccine Development, the China Dilemma and International Regulatory Challenges, https://www.ssrn.com/abstract=4289910 (January 20, 2023)

Since the World Health Organization declared COVID-19 a global pandemic in March 2020, countries, intergovernmental bodies, nongovernmental organizations and individual experts have called for the development of new global frameworks and adjustments to international regulatory standards. As the pandemic has become more successfully contained—at least in the global North—demands for emergency relief measures have given way to debates on the development of new standards to provide a more effective response during the inter-pandemic period and in the post-COVID era.

One challenging and inevitable debate concerns the role of China in such development at the intersection of intellectual property, international trade, and public health. Among the important issues are whether China will support the development of new international regulatory standards, whether its participation will create complications, how its role will evolve in the near future and how other countries should ...
%SOURCENAMEESCAPED%, REVISION: China, the TRIPS Waiver and the Global Pandemic Response, https://www.ssrn.com/abstract=3975151 (January 20, 2023)

Since the beginning of the COVID-19 pandemic, China has played important roles in the global pandemic response, which ranged from vaccine donation and distribution, to transfer of health and medical technology, to support for international intellectual property reforms. To provide a deeper understanding of these myriad roles, this chapter closely examines China's position in the debate on the COVID-19 TRIPS waiver at the WTO. It begins by discussing how the country's changing pharmaceutical landscape and growing ambition to become an intellectual property power have paved the way for its middle-of-the-road position. The chapter then identifies two additional factors contributing to this position: complex international politics and choices for pandemic diplomacy.

This chapter further explores China's more assertive position toward the end of the waiver debate—specifically during the deliberations on the proposal that provided the basis of the Ministerial Decision on the TRIPS ...
%SOURCENAMEESCAPED%, REVISION: A Critical Appraisal of the COVID-19 TRIPS Waiver, https://www.ssrn.com/abstract=3945304 (January 19, 2023)

In October 2020, India and South Africa submitted an unprecedented proposal to the WTO, calling for a temporary waiver to help combat the COVID-19 pandemic. This waiver aimed to suspend Sections 1, 4, 5 and 7 of Part II of the TRIPS Agreement and related enforcement obligations under Part III to facilitate the "prevention, containment or treatment of COVID-19." Lasting for a finite period to be determined by the General Council, the waiver covered not only patents, but also other forms of intellectual property rights.

This chapter offers a critical appraisal of the COVID-19 TRIPS waiver proposal, which was revised in May 2021 but was not adopted at the 12th WTO Ministerial Conference in Geneva in June 2022. It begins by identifying the arguments for and against the waiver, including those questioning its necessity, expediency and effectiveness. The chapter then explores the difficult decision on whether one should support the instrument's ultimate adoption. Breaking down the ...
%SOURCENAMEESCAPED%, REVISION: Regional Comprehensive Economic Partnership, https://www.ssrn.com/abstract=4242367 (December 23, 2022)

In November 2020, the Association of Southeast Asian Nations (ASEAN) and its five neighbors (Australia, China, Japan, New Zealand and South Korea) signed the Regional Comprehensive Economic Partnership (RCEP) Agreement. The Agreement entered into force on January 1, 2022. Chapter 11, which is devoted to intellectual property, contains 14 sections: (A) general provisions and basic principles; (B) copyright and related rights; (C) trademarks; (D) geographical indications; (E) patents; (F) industrial designs; (G) genetic resources, traditional knowledge and folklore; (H) unfair competition; (I) country names; (J) enforcement of intellectual property rights; (K) cooperation and consultation; (L) transparency; (M) transition periods and technical assistance; and (N) procedural matters. This short essay provides an overview of the intellectual property provisions in the RCEP Agreement.
%SOURCENAMEESCAPED%, New: A Window of Opportunity to Regulate Addictive Technologies, https://www.ssrn.com/abstract=4286901 (December 20, 2022)

We spend large parts of our days on screens. Often more than we intend to. Screen time has increased steadily for over a decade, even before the COVID-19 pandemic. This is no coincidence. Reports leaking from Silicon Valley revealed that tech companies used manipulative designs to extend users’ time on screens. The internet economy’s business model relies on extending user time online to collect more data and target more advertising at users.

This Article aims to answer why regulators did not intervene for years to protect users, especially children, from the harms of excessive screen time. It does so by developing law and technology theory to examine what influences the creation and breadth of windows of opportunity to regulate new technologies. Specifically, it identifies three factors that can obstruct the creation of meaningful windows of opportunity: (i) the invisibility of the technology; (ii) rapid entrenchment of norms and business interests; and (iii) social and ...
%SOURCENAMEESCAPED%, REVISION: Who Should Be Liable for the COVID-19 Outbreak?, https://www.ssrn.com/abstract=3697283 (December 19, 2022)

The Article systematically and critically evaluates the potential liability of various “suspects” for the physical, emotional, and economic losses arising from the COVID-19 pandemic: the country-of-origin (the People’s Republic of China), international organizations (particularly the World Health Organization), federal, state, and local governments and officers, businesses, and healthcare providers. It concludes that existing legal frameworks fail to provide an appropriate solution for victims, primarily because each of the potential defendants can easily evade liability. The Article then proposes a new hybrid (international-domestic) regime, inspired by the international framework for the compensation of victims of nuclear incidents and by the September 11th Victim Compensation Fund.
%SOURCENAMEESCAPED%, New: The Catawba Digital Economic Zone: A Native American SEZ, https://www.ssrn.com/abstract=4283973 (December 13, 2022)

The Catawba Indian Nation recently announced the launch of a new kind of special economic zone (SEZ) on its reservation lands in the Carolinas piedmont region. The Catawba Digital Economic Zone (CDEZ) aims to provide “A Jurisdiction Built for the Fintech and Digital Asset Industry.” Federal and state law affirms that the Nation has original and exclusive jurisdiction over two categories of disputes: those arising from contracts to which the Nation or its members are a party and those arising under any civil code that the Nation issues for the conduct of businesses and individuals on its reservation. Together, these give the Nation sovereign authority over commerce, real or virtual, that takes place on Catawba lands. The Nation has invoked this power to create the CDEZ. The Catawba General Council, a democratic assembly of tribe members, recently enacted the a civil ordinance creating a legal framework specially designed to support e-banking, cryptocurrency, non-fungible tokens, and ...
%SOURCENAMEESCAPED%, REVISION: Marshalling Copyright Knowledge to Understand Four Decades of Berne, https://www.ssrn.com/abstract=3980493 (December 7, 2022)

Written as part of the festschrift in honor of Professor Marshall Leaffer, this tribute focuses on what would have happened had he, like the fictional character Captain Buck Rogers, been frozen on his way to academia in 1978. What will he discover upon his return in 2021? Will he find the developments in the intervening decades interesting or surprising? What observations would he make had he not been frozen?

Because of Marshall's love for copyright law, his many important contributions to the international intellectual property field and his longtime membership in the Association Littéraire et Artistique Internationale (ALAI), this article pays tribute by examining the past four decades of developments surrounding the Berne Convention for the Protection of Literary and Artistic Works.

This article begins by exploring three areas that are usually discussed in relation to the Convention's revision process: (1) the arrival of new members; (2) the advent of new ...
%SOURCENAMEESCAPED%, REVISION: The Incremental Development of the ASEAN-China Strategic Partnership for Intellectual Property, https://www.ssrn.com/abstract=2657358 (December 7, 2022)

In November 2000, a few years after the Asian Financial Crisis, Premier Zhu Rongji announced China’s interest in developing a free trade area with the Association of Southeast Asian Nations (ASEAN) within a decade. Since then, the two trading powers established a framework agreement as well as agreements on dispute settlement, trade in goods, trade in services and investment. They also developed memoranda of understanding on cooperation in a wide variety of areas, including agriculture, disaster management, health, information and communications technology, intellectual property, non-traditional security issues, sanitation and phytosanitation, standards, technical regulations and conformity assessment, and transportation. Taken together, these instruments helped build and strengthen the ASEAN-China Free Trade Area (ACFTA), which has served important economic, geopolitical and strategic goals.

This chapter documents the incremental efforts ASEAN and China have undertaken to ...
%SOURCENAMEESCAPED%, REVISION: The Costs of Critical Habitat or Owl’s Well That Ends Well, https://www.ssrn.com/abstract=3691269 (November 16, 2022)

When the Fish and Wildlife Service designated land in four counties of Arizona as “critical habitat” necessary for the protection of the endangered cactus ferruginous pygmy‐owl, property values dropped considerably. When the owl was later delisted, property values jumped back up. We use difference-in-difference and synthetic control designs to identify this effect with Zillow property value data. The results provide an estimate of the costs of this critical habitat designation, and they are considerable, contrary to the regulators’ position that critical habitat protection imposes no incremental costs beyond the original endangered species listing.
%SOURCENAMEESCAPED%, New: Pre-planning Transformation to Avoid Collapse--Is It Possible?, https://www.ssrn.com/abstract=4276783 (November 14, 2022)

Although societal collapse has been part of human history for millennia, a growing fear is that social, economic, technological, and environmental systems have become so globally interconnected, and their resilience so under threat, that the next collapse could be global in scale. Drawing from the collapse and social-ecological resilience studies literatures, we conceptualize two stages of collapse-avoidance governance—the pre-trigger adaptive governance stage during which policies draw on systems resilience to avoid the initiation of the collapse spiral, and the post-trigger transformative governance stage during which policies are implemented to steer out of the collapse spiral through fundamental change of systems regimes. Even under continued good collapse-avoidance governance it is possible for a variety of reasons that adaptive governance policies fail to avoid triggering of the collapse spiral, in which case policies to facilitate transformation will likely need to be ...
%SOURCENAMEESCAPED%, REVISION: Catastrophic Uncertainty and Regulatory Impact Analysis, https://www.ssrn.com/abstract=4217679 (November 8, 2022)

Cost-benefit analysis embodies techniques for the analysis of possible harmful outcomes when the probability of those outcomes can be quantified with reasonable confidence. But when those probabilities cannot be quantified (“deep uncertainty”), the analytic path is more difficult. The problem is especially acute when potentially catastrophic outcomes are involved, because ignoring or marginalizing them could seriously skewing the analysis. Yet the likelihood of catastrophe is often difficult or impossible to quantify because such events may be unprecedented (runaway AI or tipping points for climate change) or extremely rare (global pandemics caused by novel viruses in the modern world). OMB’s current guidance to agencies on unquantifiable risks is now almost twenty years old and in serious need of updating. It correctly points to scenario analysis as an important tool but it fails to give guidance on the development of scenarios. It then calls for a qualitative analysis of the ...
%SOURCENAMEESCAPED%, REVISION: A New Approach to the Geopolitics of Chinese Internets, https://www.ssrn.com/abstract=4258574 (October 26, 2022)

Written for a special issue on "The Geopolitics of Chinese Internets," this introductory essay summarizes how our understanding of Chinese internets – in the plural – has shifted in the past two decades. The incumbent approach sees "Chinese tech" as a unitary and statist monolith, an incomplete view whose utility has declined. By contrast, the articles in this special issue collectively substantiate a novel geopolitical approach that analyzes "Chinese internets" as internally diverse and externally border-crossing; as both public (governmental and non-governmental) and private (e.g., corporate); as discursive and policy entanglements beyond the dichotomy of multistakeholderism and multilateralism; and as global, regional, and local formations that are connected to, but not entirely constrained by, their national counterparts. Pluralist and multilayered, this new approach to analyzing Chinese techno-geopolitics shall provide a better fit for contemporary internet research involving ...
%SOURCENAMEESCAPED%, REVISION: Tragic Allocation Challenges in the COVID-19 Era, https://www.ssrn.com/abstract=3826983 (October 25, 2022)

Human society is facing its worst nightmare—a global pandemic caused by a highly infectious, resilient, and enigmatic virus. Questions that have occupied moral philosophers for ages transform into urgent practical predicaments for doctors, ethicists, and healthcare policymakers facing impossible situations. Societies, grown accustomed to the notion of plentifulness, are forced to grapple with the prospect of scarcity, particularly that of life-saving resources, such as ventilators, ICU beds, health human resources, medication, and vaccines. Leading health ethicists and other professionals have already penned articles addressing the reemerging dilemmas regarding the allocation of scarce life-saving resources. Although several papers discussing these matters have been published in the most prominent medical journals, they lacked a broader interdisciplinary perspective. In this Article, we illuminate the difficult questions ahead from a somewhat different angle – that of legal ...
%SOURCENAMEESCAPED%, REVISION: Adapting Private Law for Climate Change Adaptation, https://www.ssrn.com/abstract=4245201 (October 21, 2022)

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common law doctrines in climate adaption disputes has not yet taken off the way that the wave of high-profile lawsuits against sources of emissions causing climate change has, but it is inevitable that it will, making it ripe for attention in legal scholarship. The Article begins in Part I by highlighting several features of climate change and adaptation that will ...
%SOURCENAMEESCAPED%, REVISION: Retribution Against Catholic Dioceses by Revival: The Evolution and Legacy of the New York Child Victims Act Claims Revival Window, https://www.ssrn.com/abstract=3796138 (October 20, 2022)

This article considers the evolution of limitations relief for time-barred child sexual abuse tort claims in New York culminating with the claims revival window enacted in 2019 as part of the New York Child Victims Act (NYCVA). The story of child sexual abuse litigation against Catholic dioceses and the legal and political history of the NYCVA exposes the important but largely unexplored balance of competing policy objectives that limitations laws strike. How child sexual abuse claimants achieved retribution by revival in the NYCVA reveals the fragility of limitations laws and the importance of coherent and consistent policy for revival of other types of time-barred claims in the future.
%SOURCENAMEESCAPED%, New: Contextualizing Corruption: Foreign Financing Bans and Campaign Finance Law, https://www.ssrn.com/abstract=4248221 (October 18, 2022)

Current federal law prohibits foreign nationals (excluding permanent residents) from funding independent express expenditures. Bluman v. FEC, a decision of the U.S. District Court for the District of Columbia authored by then-Judge Brett Kavanaugh, upheld this prohibition by relying on cases excluding foreign nationals from participating in acts of democratic self-governance. The Supreme Court summarily affirmed Bluman. The decision, however, sits on shaky foundations. It relies on a series of “political community” cases which are themselves remnants of an earlier, more xenophobic age. As many commentators have noted, Bluman also is in significant tension with the sweeping condemnation of speaker-based distinctions announced by the Supreme Court in Citizens United v. FEC. Finally, the decision runs seriously afoul of the current Court’s general refusal to accept as legitimate (much less compelling) any state interest in regulating campaign speech on the basis of its effect on voters ...
%SOURCENAMEESCAPED%, New: Climate-Induced Wildfires and Strengthening Resilience in Electricity Infrastructure, https://www.ssrn.com/abstract=4201501 (September 26, 2022)

In recent times, climate-induced disasters have overwhelmed many parts of the world destroying human and non-human communities and ecosystems. In this article, we focus on a unique type of infrastructure – electricity grids. We collate the latest climate science, relate it to electricity infrastructure and shine the light on the ways in which electricity infrastructure has been impacted by climate-induced wildfires in Australia and California. The two jurisdictions are comparable in many respects but illustrate different approaches to grid governance. They also conceptualize risk management differently, with Australia focusing on resilience as a standalone concept and California viewing resilience as only one aspect of climate change adaptation. We investigate the resilience strategies of both jurisdictions and identify the strategies, including technological, that are needed to build resilience in the sector.
%SOURCENAMEESCAPED%, New: The Arkansas LL.M. Program: Forty Years of Leadership, https://www.ssrn.com/abstract=4226175 (September 25, 2022)

The University of Arkansas School of Law has been a leader in agricultural law education for over forty years through its innovative LL.M. Program in Agricultural and Food Law. This essay memorializes the history of this signature Program and charts its progress through the decades as agricultural law issues evolved and the discipline expanded to incorporate food law and policy. Arkansas has played a unique role in the development of both the discipline of agricultural law and the newer field of food law and policy. This essay chronicles that development.
%SOURCENAMEESCAPED%, REVISION: Two Decades of TRIPS in China, https://www.ssrn.com/abstract=3965395 (September 25, 2022)

China became the 143rd member of the World Trade Organization on December 11, 2001. Written in commemoration of the 20th anniversary of China's accession to the international trading body, this chapter reviews the intellectual property developments in China since the country joined the WTO.

This chapter begins by highlighting the developments relating to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in the first decade of China's WTO membership. It then discusses the country's "innovative turn" in the mid-2000s and the ramifications of its changing policy positions. The chapter continues to examine the US–China trade war, in particular the second TRIPS complaint that the United States filed against China in March 2018. This chapter concludes with observations about the impact of the TRIPS Agreement on China, China's impact on that agreement and how the changing Chinese intellectual property landscape has altered the developing ...
%SOURCENAMEESCAPED%, New: Relevance, Redundancy, and Regularization: Penalized Regression and the Quest for the ℓ₀ Quasi-Norm, https://www.ssrn.com/abstract=4188299 (September 13, 2022)

The vector of a linear model’s coefficients represents the clearest guide to causal inference. Collinearity among variables, however, undermines the interpretation of that model. A wildly large positive coefficient on one variable may be offset by a comparably large negative coefficient on a collinear variable. Neither the size nor the sign of those coefficients can be trusted.

Instability arising from collinearity and high variance can be remedied through regularized or penalized regression. These methods can select model features in graduated or categorical fashion. Enforcing ℓ2 (Ridge) and ℓ1 (Lasso) regularization can blunt or even eliminate irrelevant or redundant variables. Methods incorporating the ℓ1 norm can induce sparsity. The resulting vector of nonzero standardized coefficients delivers the ℓ0 quasi-norm as the best mathematical representation of the model’s causal inferences.

In addition to Lasso, Ridge, and ElasticNet (a hybrid of Lasso and Ridge), this ...
%SOURCENAMEESCAPED%, New: No Country for Old Men (or Women): The Impact of Migration on Pension Funding Adequacy and Sustainability, https://www.ssrn.com/abstract=4185168 (August 11, 2022)

Retirement security is of paramount importance to working people. Adequate retirement income is also a leading concern for private and public pension systems. Pension funding adequacy measures the ability of pension scheme assets to meet a system’s liabilities. Pension managers accumulate assets primarily from employee contributions. Assets then grow through investment returns. Liabilities consist mainly of benefits promised and paid to pensioners.

In several countries, even within the European Union, a substantial percentage of the population receives pension income much lower than pre-retirement income or even the poverty line. At the same time, pension funding adequacy is threatened by reduced fertility in most European countries. Economic crises during the first quarter of the twenty-first century — the great recession, a sovereign debt crisis, the Covid-19 pandemic — have decreased individual and family income. These crises have reduced pension payments.

When the ...
%SOURCENAMEESCAPED%, REVISION: Adapting To a 4°C World, https://www.ssrn.com/abstract=4053843 (August 8, 2022)

The Paris Agreement’s goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.
%SOURCENAMEESCAPED%, New: Inequality and Regulation: Designing Rules to Address Race, Poverty, and Environmental Justice, https://www.ssrn.com/abstract=4178655 (August 5, 2022)

Inequality is a burning issue in our society but plays only a limited rule in the design of regulations. This article rejects arguments in favor of this neglect and forges a vision for moving forward. It argues in favor of features of the existing system that promote inequality: the controversial practice of using uniform valuations of life and health, regardless of income; and the use of disparate impact analysis in rulemaking. Rather than focusing on arguments for using regulation as a possible form of income redistribution or remedy for existing racial disparities, the article argues that justice requires devoting equal resources to prevent equal harms.

The reality is that low-income communities and communities of color often are the ones suffering the greatest harms (and not just by chance). By using far more granular approaches to determining who is exposed to risks and how vulnerable they are to harm, agencies could do far more to implement this principle, identify the ...
%SOURCENAMEESCAPED%, New: Catastrophic Uncertainty and Regulatory Impact Analysis, https://www.ssrn.com/abstract=4170257 (July 29, 2022)

Cost-benefit analysis embodies techniques for the analysis of possible harmful outcomes when the probability of those outcomes can be quantified with reasonable confidence. But when those probabilities cannot be quantified (“deep uncertainty”), the analytic path is more difficult. Decision science does not yet provide consensus solutions to the analysis of uncertain catastrophic outcomes. But it has advanced beyond the vague guidance provided by OMB since 2003, which may not have been state-of-the-art even then. This paper surveys these developments and explains how they might best be incorporated into agency practice in considering possible catastrophic risks
%SOURCENAMEESCAPED%, New: Billing Judgment, https://www.ssrn.com/abstract=4172409 (July 27, 2022)

In most situations, when a lawyer sends a bill to a client, the client pays the fees. When the client believes that a fee or expense is unreasonable, the client will ask for reductions. Conscientious lawyers review a bill before sending it to the client, exercising judgment in terms of what fees and expenses are reasonable. But in bankruptcy cases, the estate pays the court-appointed professionals’ fees and expenses out of unsecured funds or from a cash collateral carveout. Thus, the responsibility for scrutinizing the fees and expenses falls not to a particular client, but to the court, per 11 U.S.C. § 330. The debtor-in-possession isn’t particularly motivated to pay attention to line items on a bill, especially in a bet-the-company case. Moreover, most debtors in possession aren’t sure what activities are necessary or which level of professional should be performing which tasks. Creditors might pay attention to the overall burn rate of fees, but often, the cost of objecting to a ...
%SOURCENAMEESCAPED%, REVISION: The Specter of Malpractice: When Law Firm General Counsel and Risk Management Professionals Are Confronted with Potential Malpractice Claims and Ethics Violations, https://www.ssrn.com/abstract=3932534 (July 26, 2022)

Every day, law firm general counsel and other law firm risk management professionals face a very practical, very vexing problem. The problem is what to do when hearing that a serious ethical mistake or impropriety may have occurred—but without any concrete confirmation that something problematic has, in fact, happened. This essay discusses the most important initial steps and questions that the firm’s general counsel or other risk management professional must address in this confounding situation where the “specter of malpractice” is present. We call this the “specter of malpractice” because a malpractice claim has not yet fully materialized (and it is not entirely clear that one will materialize), but enough risk factors have surfaced to capture the risk management team’s attention. Included among these important and difficult questions are:

• Could this type of mistake constitute an ethics violation or a future malpractice claim?

• What duty does a firm’s general ...
%SOURCENAMEESCAPED%, New: Common Law Zones: An Illustrated Review, https://www.ssrn.com/abstract=4141500 (June 28, 2022)

Governments across the globe have created special jurisdictions offering common law rules and practices imported from abroad, the better to attract foreign investment and stimulate local economic growth. Four such common law zones have launched in recent years: the United Arab Emirates’ Dubai International Financial Centre, in 2004; the Abu Dhabi Global Market, also in the UAE, in 2015; Kazakhstan’s Astana International Financial Centre, in 2018; and the first Honduran ZEDE, in 2020. Each of these common law zones has faced the challenge of transplanting foreign rules and practices into a jurisdiction set apart from that of its host government, which instead follows some mix of Napoleonic Civil Code, Sharia, and/or Soviet legal traditions. The first three zones have answered that challenge by importing the common law of England (and sometimes also Wales) and entrusting its interpretation to courts that, while set apart from the local legal system, remain under the control of ...
%SOURCENAMEESCAPED%, REVISION: From Transparency to Justification: Toward Ex Ante Accountability for AI, https://www.ssrn.com/abstract=4099657 (June 21, 2022)

At present, policymakers tend to presume that AI used by firms is legal, and only investigate and regulate when there is suspicion of wrongdoing. What if the presumption were flipped? That is, what if a firm had to demonstrate that its AI met clear requirements for security, non-discrimination, accuracy, appropriateness, and correctability, before it was deployed? This paper proposes a system of “unlawfulness by default” for AI systems, an ex-ante model where some AI developers have the burden of proof to demonstrate that their technology is not discriminatory, not manipulative, not unfair, not inaccurate, and not illegitimate in its legal bases and purposes. The EU’s GDPR and proposed AI Act tend toward a sustainable environment of AI systems. However, they are still too lenient and the sanction in case of non-conformity with the Regulation is a monetary sanction, not a prohibition. This paper proposes a pre-approval model in which some AI developers, before launching their systems ...
%SOURCENAMEESCAPED%, REVISION: Increased Copyright Flexibilities for User-Generated Creativity, https://www.ssrn.com/abstract=3916671 (June 3, 2022)

The arrival of the Internet, social media and other new communication technologies has presented individuals with an unprecedented ability to create new copyrighted works to benefit society. Moving from consumers to prosumers, these individuals have generated contents such as digitally altered images, music remixes, video mash-ups, synchronized animations, machinimas, parodies and satires, and a dazzling array of fanworks. To unleash the potential provided by this new group of creators, policy makers and commentators have advanced a wide array of proposals to reform copyright law.

This chapter explores how and why copyright law should be reformed to increase flexibilities for user-generated creativity. Based on recent legislative reforms and the Author's personal experience in the copyright reform process, the chapter outlines two distinct but mutually non-exclusive options: (1) the creation of copyright exceptions for user-generated creativity; and (2) the limits to statutory ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Global Inequality and Subnational Policy Variations, https://www.ssrn.com/abstract=3760413 (May 27, 2022)

The North-South divide has been frequently invoked in the debate on intellectual property, innovation and global inequality. While developed countries in the Global North complained about the inadequate protection and enforcement of intellectual property rights in developing countries, the Global South lamented the unfair distribution of benefits within the international intellectual property regime. Developing countries were also frustrated that they bore the brunt of globalization and the detrimental effects of strong intellectual property protection and enforcement.

The arrival of middle-income countries, in particular those with considerable and ever-growing strengths in the intellectual property area, has called into question the North-South Debate. First, that debate is both dated and oversimplified. It overlooks the many complications raised by Brazil, China, India and other fast-growing emerging countries. With increasing abilities to compete effectively against ...
%SOURCENAMEESCAPED%, REVISION: Transplanting Anti-suit Injunctions, https://www.ssrn.com/abstract=3937716 (May 16, 2022)

When adjudicating high-value cases involving the licensing of patents covering industry standards such as Wi-Fi and 5G (standards-essential patents or SEPs), courts around the world have increasingly issued injunctions preventing one party from pursuing parallel litigation in another jurisdiction (anti-suit injunctions or ASIs). In response, courts in other jurisdictions have begun to issue anti-anti-suit injunctions, or even anti-anti-anti suit injunctions, to prevent parties from hindering the proceedings in those courts. Most of these activities have been limited to the United States and Europe, but in 2020 China emerged as a powerful new source of ASIs in global SEP litigation.

The comparative law literature uses the notion of legal transplant to describe the introduction of a foreign legal concept, rule, or procedure. Taking the view that the emergence of ASIs in China represents a new form of transplant from Western legal systems, this article analyzes the ...
%SOURCENAMEESCAPED%, REVISION: The Legal Industry's Second Chance to Get It Right, https://www.ssrn.com/abstract=3773197 (May 12, 2022)

The legal industry's reaction to the COVID-19 pandemic and how it's response can drive the recovery following the COVID-19 pandemic.
%SOURCENAMEESCAPED%, New: Some Observations on Separation of Powers and the Wisconsin Constitution, https://www.ssrn.com/abstract=4096476 (May 3, 2022)

In recent years the Wisconsin Supreme Court has decided several high-profile cases concerning the separation of powers under the state constitution. In the abstract, questions concerning the separation of powers do not seem inherently partisan, largely because the partisan balance of government will shift over time. Yet, as has been the case with many of its recent decisions, the justices’ votes have broken along what most observers regard as partisan lines, and the opinions have featured heated prose including accusations of result orientation and methodological illegitimacy.

This article is the initial product of an effort to read, and attempt to synthesize, the entirety of the Wisconsin Supreme Court’s output relating to separation of powers dating back to the state’s founding. It advances no single thesis and makes no grand claims. It instead seeks to identify some threads running through the caselaw, including with respect to the court’s approaches to interpreting the ...
%SOURCENAMEESCAPED%, REVISION: Modalities, Challenges, and Possibilities: An Introduction to the Pharmaceutical Innovation Symposium, https://www.ssrn.com/abstract=3705735 (April 19, 2022)

On October 25, 2019, the Texas A&M Journal of Property Law and the Center for Law and Intellectual Property at Texas A&M University School of Law jointly organized the "Pharmaceutical Innovation, Patent Protection, and Regulatory Exclusivities" Symposium. Although none of the organizers and participants could predict what was to come in the next few months, there was a wide consensus that the rapid changes in the pharmaceutical landscape and our continuous struggle to strike a proper balance between proprietary protection and public access in the public health arena deserves scholarly, policy and regulatory attention.

To inform readers about the inspirations and motivations behind the Symposium, this introductory article begins by exploring the different modalities of protection--in particular the role of patents and regulatory exclusivities in providing the needed incentives to pharmaceutical developers. It then identifies three sets of challenges that affect the ...
%SOURCENAMEESCAPED%, REVISION: The Long and Winding Road to Effective Copyright Protection in China, https://www.ssrn.com/abstract=3960557 (April 19, 2022)

In November 2020, China adopted the Third Amendment to the Copyright Law, providing a major overhaul of its copyright regime. This amendment entered into effect on June 1, 2021. The last time the regime was completely revamped was in October 2001, when the Copyright Law was amended two months before China joined the World Trade Organization. While U.S. policymakers and industry groups have had mixed reactions to the recent amendment, the new law presents an opportunity to take stock of the progress China has made in the copyright reform process.

Written for the Symposium on "Hindsight Is 2020: A Look at Unresolved Issues in Music Copyright," this article begins by mapping the long and winding road to effective copyright protection in China, especially in relation to U.S. rights holders. It then focuses on the recent amendment, highlighting five sets of upgrades or changes while offering some overarching observations. The article concludes by identifying five road tips to help ...
%SOURCENAMEESCAPED%, REVISION: The U.S.-China Forced Technology Transfer Dispute, https://www.ssrn.com/abstract=4014481 (April 13, 2022)

The past few years have seen not only a trade war between China and the United States involving tariffs on close to $750 billion worth of goods, but also multiple complaints filed by both countries before the WTO Dispute Settlement Body. A key driver behind these ongoing tensions and conflicts concerns the challenges confronting U.S. technology companies—both online and offline. Although the inadequate protection and enforcement of intellectual property rights in China has been the subject of a perennial debate since the mid-1980s, the recent concerns have raised new issues that have been lumped together under the umbrella of "forced technology transfer."

Written for the Seton Hall Law Review Symposium on "Intellectual Property and Technology in the New Global Age," this article closely examines the U.S.-China forced technology transfer dispute. It begins by offering a critical assessment of the complaint filed by the United States in March 2018, which alleged violations of ...
%SOURCENAMEESCAPED%, REVISION: US-China Intellectual Property Trade Wars, https://www.ssrn.com/abstract=3925290 (April 13, 2022)

More than two decades ago, the literature on the Chinese intellectual property system was filled with commentaries on the trade threats exchanged between the United States and China in relation to the inadequate protection and enforcement of intellectual property rights in the latter. At that time, China has not yet joined the World Trade Organization. In the past few years, we once again have been confronted with multiple rounds of trade threats—this time as part of a trade war, which has thus far involved tariffs on close to $750 billion worth of goods. Although the current U.S.-China trade war implicates many items ranging from agricultural produce to electronic goods to financial services, inadequate protection and enforcement of intellectual property rights in China remains one of the few oft-cited justifications.

This chapter begins by recounting the trade threats exchanged between the two countries in the early 1990s in relation to the lack of intellectual property ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Cultural Heritage and Human Rights, https://www.ssrn.com/abstract=3950888 (April 11, 2022)

The relationship between intellectual property and human rights in the cultural heritage context is both complex and challenging. Although these two sets of rights frequently align, they also compete against each other. The resulting tensions and conflicts affect not only the relevant cultural groups but all of us. Even more challenging, there has so far been no consensus on how to protect cultural heritage. Nor are there generally agreed definitions of "culture" and "cultural heritage." Although a diverse array of conventions, protocols, declarations, laws, policies and guidelines has been established to protect cultural heritage and cultural diversity, many of these normative documents include definitions that were drafted on a text-by-text basis. It is therefore difficult to generalize definitions across a variety of contexts, including those at the intersection of intellectual property and human rights.

This chapter begins by mapping the contours of the international human ...
%SOURCENAMEESCAPED%, New: Distributed Self-Government in Protocol Communities: An Introduction and Index of Examples, https://www.ssrn.com/abstract=4058722 (March 20, 2022)

We live in exciting times for governance. Large and powerful institutions used to come in only a few standardized types, such as nation-states and commercial corporations. But the advent of distributed organizations, built on computer code and fueled by digital cash, has supercharged the evolution of social coordination systems. Richly capitalized global communities worth hundreds of billions of U.S. dollars now spring up seemingly overnight. They die just as quickly, too—taking high hopes and huge fortunes with them. This article introduces the fascinations of distributed-protocol communities and analyzes the self-governance of several of the largest and most innovative. It defines seven measures of governance and grades the performance of each of ten protocols on a scale of safe, caution, or danger. The resulting Distributed Governance Index organizes and summarizes the latest developments in the evolution of distributed-protocol communities and provides a framework for continuing ...
%SOURCENAMEESCAPED%, REVISION: Legal Pragmatism and Presidential Power: A Case Study, https://www.ssrn.com/abstract=3839787 (March 15, 2022)

This essay explores the differences between legal pragmatism and formalism as working forms of legal thought. After a short overview of pragmatism and a discussion of Louis Brandeis as an exemplar, it turns to the evolving caselaw regarding presidential removal. This issue has led to notable faceoffs between formalists and pragmatist, from Taft v. Holmes and Brandeis, to Roberts and Thomas v. Kagan. Because of their preference for bright-line rules, formalists have tended to oversimplify Founding era history and post-Founding practice. Pragmatist judges have provided more nuanced historical accounts and have tried to come to grips with the tradeoffs involved in issues of institutional design. The choice between these styles of thought is not inherently tied to differences in ideology or substantive constitutional views. Legal pragmatism has the potential, however, to connect judicial decisions to issues that are meaningful to the public, to provide more transparency into the ...
%SOURCENAMEESCAPED%, REVISION: Israel (2014 Report), https://www.ssrn.com/abstract=3973555 (February 22, 2022)

This is the Israeli report to the Tort and Insurance Law Yearbook. It critically evaluates notable developments which took place in Israeli tort law in 2014. Part A discusses new legislation and Part B discusses case law on the relation between negligence and breach of statutory duty, the structure of the tort of negligence, liability in negligence for pure economic loss, the truth defense in defamation law, road accidents, and collateral benefits.
%SOURCENAMEESCAPED%, REVISION: Israel (2013 Report), https://www.ssrn.com/abstract=3973549 (February 22, 2022)

This is the Israeli report to the Tort and Insurance Law Yearbook. It critically evaluates notable developments which took place in Israeli tort law in 2013. Part A discusses legislation and legislative bills on liability for sexual harassment and road accidents. Part B discusses Supreme Court decisions on the structure of the tort of negligence, alienation of affections, liability for failure to prevent third-party crime, mitigation of damages, and assignment of a cause of action in tort. Part C reviews new Israeli tort law literature.
%SOURCENAMEESCAPED%, New: Staying within the Guardrails, https://www.ssrn.com/abstract=4033777 (February 18, 2022)

Cost-benefit analysis has been central to the process of issuing new regulations since 1981. Today, it's under assault from both ends of the political spectrum. This essay offers some thoughts about how cost-benefit analysis can still play a useful but more restricted role in the future. Rather than serving as the controlling standard for regulatory agencies it can be more usefully seen as an important part of a multi-factor analysis of regulatory effects. In that role, it can serve as a reality check on regulations that, in the pursuit of other goals, impose costs that are grossly disproportionate to a regulation's positive effects.
%SOURCENAMEESCAPED%, REVISION: Environmental Law, Disrupted by COVID-19, https://www.ssrn.com/abstract=3985629 (January 25, 2022)

As we were in the final phases of editing a book on disruption in environmental law, a pandemic swept across the world disrupting daily life and the functioning of society to an extent unprecedented in living memory. The novel coronavirus known as COVID-19 was identified in China in late 2019 and by late February 2020, it had spread to every continent except Antarctica; as of April, 2021, the World Health Organization (WHO) estimated that over 148 million people had been infected worldwide with over 3 million deaths. Scientists and public health experts have raced to understand the virus—how is it transmitted and spreads, who is vulnerable, how is it dangerous, and what are effective treatments—to help governments respond. In many places, including the United States, governments slowed the spread of the virus by relying primarily on the blunt tool of physical distancing, typically in the form of stay-at-home orders. Physical distancing, whether engaged in voluntarily as a result of ...
%SOURCENAMEESCAPED%, REVISION: 4° Celsius, https://www.ssrn.com/abstract=3806040 (December 7, 2021)

Conventional climate change wisdom tells governments to plan for a 2°C increase in global average temperature. However, increasingly robust science indicates that the planet is well on its way to at least 4°C of warming, possibly by the end of the 21st century or shortly thereafter. That much warming is a governance game changer, taking the multiple and interconnected complex systems that define U.S. society across thresholds and tipping points into cascades of transformational change. Critically, these systems potentially include the United States’ system of government—the key system that must successfully adapt to the coming changes in order for the country as a whole to have any chance of adapting peacefully, equitably, and productively to systemic transformation while still remaining a democracy.

This Article seeks to push U.S. climate change adaptation policy toward an entirely new mode of governance necessary to meet the challenges ahead. It does so by making five novel ...
%SOURCENAMEESCAPED%, New: Insulin Federalism, https://privwww.ssrn.com/abstract=3869876 (June 30, 2021)

In April 2019, U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb decreed interchangeable insulin poised for market entry within the next few years. This makes insulin the first biologic to achieve interchangeable biologic status. Insulin, relatively “simpler” than more complex biologics and with a substantial amount of real-world evidence supporting safety and efficacy, is a natural choice for interchangeable biologic status. The Association for Accessible Medicines (AAM) notes that brand-to-brand switches of insulin products regularly occur at the direction of providers, and “the risk of diminished safety or efficacy from a transition is minimal or not present” due to the nature of insulin products. Interchangeable status for insulin promises a tremendous impact on costs because it allows insulin to be dispensed at retail pharmacies, subject to state interchangeable biologic substitution laws.

The FDA has regulated insulin since it was first used to ...
%SOURCENAMEESCAPED%, New: Private Insurance Limits and Responses, https://privwww.ssrn.com/abstract=3808304 (March 23, 2021)

The COVID-19 pandemic exposed a number of existing flaws in the United States’ patchwork approach to paying for and providing access to medical care. Shelter-in-place orders, social distancing, and other public health strategies employed to address the pandemic spawned a global recession, causing rapid and high unemployment rates in many countries. The U.S. unemployment rate peaked in April 2020 at 14.7%, higher than in any previous period since World War II. The United States has long hewed an anachronistic policy of relying heavily on private employers to provide health insurance to a substantial portion of the population. Those who are not eligible for employer-sponsored insurance (ESI) must fend for themselves in the non-group market, unless they qualify for government-sponsored insurance or safety net programs. Companion Chapters in this volume describe the COVID-related challenges for Medicaid and the uninsured, while this Chapter focuses on the private insurance market. The ...
%SOURCENAMEESCAPED%, New: International Tax Transparency, https://privwww.ssrn.com/abstract=3753715 (February 8, 2021)

An imbalance exists between tax authorities and taxpayers when it comes to the latter’s financial information. Taxpayers have the information they need to calculate their tax liabilities and file their returns. Tax authorities, on the other hand, tend to have little beyond what is in the tax return. Thus it can be hard for tax authorities to detect non-compliance. The solution? Pass laws to force the taxpayer (or a third party) to provide more and better information to tax authorities. In other words, increase tax transparency. This Article discusses broad international trends that have been the principal catalyst for tax transparency measures such as the Foreign Account Tax Compliance Act, the Common Reporting Standard and Country-by-Country Reporting, which try to inhibit offshore tax evasion and non-compliant international tax avoidance. In a world where data is the “new oil,” tax advisers are increasingly called on to promote and protect their clients’ interests by advising on ...
%SOURCENAMEESCAPED%, REVISION: Debunking Intellectual Property Myths: Cross-Cultural Experiments on Perceptions of Property, https://privwww.ssrn.com/abstract=3312822 (January 28, 2021)

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

The results of the studies are somewhat counter-intuitive. First, Chinese participants are found to have more consistent preferences towards different types of property ...
%SOURCENAMEESCAPED%, REVISION: COVID-IP: Staring Down the Bayh-Dole Act with 2020 Vision, https://privwww.ssrn.com/abstract=3599621 (January 27, 2021)

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

The COVID-19 coronavirus pandemic provides an opportunity to reflect on the purpose and impact of the historic legislation as well as contemplate the implications for our public ...
%SOURCENAMEESCAPED%, REVISION: 21st Century Citizen Pharma: The FDA & Patient-Focused Product Development, https://privwww.ssrn.com/abstract=3131857 (January 27, 2021)

Perpetual debate regarding the delicate balance between access and innovation and the protection of the public health and safety dominate discussions of the United States Food and Drug Administration (FDA). Established chiefly as a command and control federal administrative agency, iterative changes in legislation have shaped the FDA’s activity in drug, biologic, and medical device regulation over the course of the last one-hundred plus years. The most recent fundamental reframing of the agency’s authority and directive presented itself in the 21st Century Cures Act, reflecting an important role for patient perspectives in the regulatory process. This Article explores recent developments in patient-focused product development efforts at the FDA and offers modest insights on the increasing role of patients, and patient advocacy groups, in agency decision-making. The Article terms this era “21st century citizen pharma.”
%SOURCENAMEESCAPED%, REVISION: Three Framings of 'Faster' at the FDA and the Federal Right to Try, https://privwww.ssrn.com/abstract=3599624 (January 27, 2021)

In May 2018, Congress passed the controversial Right to Try (“RTT”) Act, creating a process for terminally ill patients to request access to investigational drugs. The federal RTT Act is not the first legal mechanism that fosters quicker access to investigational drugs. This new right to try is distinct from existing pathways created by law, regulation or federal administrative agency policy. Various mechanisms facilitated by the U.S. Food and Drug Administration (“FDA”) are significantly more substantial and important in the context of “faster” access to therapeutic products. These mechanisms lie along a spectrum of product development spanning investigational new drug status to postmarket studies and surveillance. I categorize these mechanisms into three areas: expansion, acceleration, and extension. The federal right to try can be characterized as an expansion, expanding patient access to investigational new drugs as an alternative mechanism to the FDA’s long-standing expanded ...
%SOURCENAMEESCAPED%, New: Tax Wars: How to End the Conflict over Taxing Global Digital Commerce, https://privwww.ssrn.com/abstract=3676641 (October 7, 2020)

In the last two years, dozens of governments have proposed or implemented unilateral tax measures to tax foreign-based technology companies. The new tax innovations include special withholding taxes, diverted profit taxes, minimum taxes, and digital services taxes. The rise of these unilateral measures threatens an international tax “war” among governments that could stifle new business models or even the spread of the global digital economy. This Article reviews the failure of international reform efforts to constrain aggressive international tax planning within the digital economy, and how the global digital tax conflict masks a growing dissatisfaction with how to tax value associated with global transactions. The best way to address these global developments is through a coordinated solution that creates an economic presence test (a Quantitative Economic Presence Permanent Establishment) and modifies the division of tax revenues between countries by allocating residual profits to ...
%SOURCENAMEESCAPED%, REVISION: Private Insurance Limits and Responses, https://privwww.ssrn.com/abstract=3675889 (August 21, 2020)

The COVID-19 pandemic exposed a number of existing flaws in the United States’ patchwork approach to paying for and providing access to medical care. Shelter-in-place orders, social distancing, and other public health strategies employed to address the pandemic spawned a global recession, causing rapid and high unemployment rates in many countries. The U.S. unemployment rate peaked in April 2020 at 14.7%, higher than in any previous period since World War II. The United States has long hewed an anachronistic policy of relying heavily on private employers to provide health insurance to a substantial portion of the population. Those who are not eligible for employer-sponsored insurance (ESI) must fend for themselves in the non-group market, unless they qualify for government-sponsored insurance or safety net programs. Companion Chapters in this volume describe the COVID-related challenges for Medicaid and the uninsured, while this Chapter focuses on the private insurance market. The ...
%SOURCENAMEESCAPED%, New: Tracking Transnational Terrorist Resourcing Nodes and Networks, https://privwww.ssrn.com/abstract=3601189 (June 9, 2020)

In light of persistent terrorist attacks in Europe and elsewhere, the study of terrorist resourcing and financing has attracted renewed attention. How are terrorists’ networks financed? Who raises the financial “resources,” and how do they transfer them across borders? How does the global financial industry facilitate or impede these transfers? Answers to these and other questions can help law enforcement investigate, disrupt, and neutralize cross-border terrorist resourcing. Evidence and data on this phenomenon is scarce, of questionable quality, irreplicable, and can be difficult to come by. This study is the first comprehensive effort to collect, code, analyze, and compare available open-source case law data on transnational terrorist resourcing networks. Under the study’s methodology, the conventional yet strict focus on financing is broadened to resources, which includes forms other than cash, including trade-based fraud and online social networks. The analysis reveals common ...
%SOURCENAMEESCAPED%, REVISION: Taxing Global Digital Commerce, https://privwww.ssrn.com/abstract=3515446 (May 22, 2020)

This latest edition of the preeminent text on the taxation of cross-border digital commerce transactions — formerly titled Electronic Commerce and International Taxation (1999), Electronic Commerce and Multijurisdictional Taxation (2001) — revises, updates, and expands the book’s coverage. It includes a detailed and up-to-date analysis of digital VAT and global income tax developments, and explores the implications of digital commerce for the US state and local sales and use tax regime in the wake of the US Supreme Court decision in South Dakota v. Wayfair, Inc. (2018). Analysing the practical tax consequences of digital commerce from a multijurisdictional perspective and using examples to illustrate the application of different taxes to digital commerce transactions, the book offers in-depth treatment of such topics as: (a) the OECD and G20’s digital tax reforms under the Base Erosion and Profit Shifting project; (b) the new or proposed equalization levies, digital services taxes, ...
%SOURCENAMEESCAPED%, New: One Child Town: The Health Care Exceptionalism Case Against Agglomeration Economies, https://privwww.ssrn.com/abstract=3560171 (March 27, 2020)

This Article offers an extended rebuttal to the suggestion to move residents away from dying communities to places with greater economic promise. Rural America, arguably, is one of those dying places. A host of strategies aim to shore up those communities and make them more economically viable. But one might ask, “Why bother?” In similar vein, David Schleicher’s provocative 2017 Yale Law Journal article, Stuck! The Law and Economics of Residential Stagnation urged dismantling a host of state and local government laws operating as barriers to migration by Americans from failing economies to robust agglomeration economies. But Schleicher said little about the fate of the places left behind. Schleicher’s article drew a number of pointed responses, urging the value and preservation of Small Town America. But those arguments failed fully to meet the rational economic thesis, countering instead with more sentimental or humanitarian concerns. This article offers a way to reconcile ...
%SOURCENAMEESCAPED%, New: Measure for Measure: The Risks of Incorporating Citations Data into U.S. News Rankings, https://privwww.ssrn.com/abstract=3518770 (February 5, 2020)

This short essay responds to Paul Heald and Ted Sichelman’s article, Ranking the Academic Impact of 100 American Law Schools. Heald and Sichelman's work provides a rigorous analysis of law school faculties’ citation and download statistics. Their recommendation to incorporate these statistics into U.S. News & World Report’s annual law school rankings, however, appears misguided. Heald and Sichelman do not fully take into account the concerning gaming behavior and problem¬atic incentives related to faculty hiring that such incorporation would likely produce over time.
%SOURCENAMEESCAPED%, REVISION: The Internet of Bodies, https://www.ssrn.com/abstract=3452891 (November 4, 2019)

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal and policy battle over the integrity of the human body and mind. Framing this integrity battle in light of current regulatory approaches, this Article offers a set of specific innovation-sensitive proposals to bolster corporate conduct safeguards through regulatory agency action, contract, tort, intellectual property, and secured ...
%SOURCENAMEESCAPED%, New: Broken, https://www.ssrn.com/abstract=3452930 (September 20, 2019)

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

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

This Article challenges the basic assumptions of the emerging legal area of “cyber” or “cybersecurity.” It argues that the two dominant “cybersecurity” paradigms—information sharing and deterrence—fail to recognize that corporate information security and national “cybersecurity” concerns are inextricable. This problem of “reciprocal security vulnerability” means that in practice our current legal paradigms channel us in suboptimal directions. Drawing insights from the work of philosopher of science Michael Polanyi, this Article identifies three flaws that pervade the academic and policy analysis of security, exacerbating the problem of reciprocal security vulnerability—privacy conflation, incommensurability, and internet exceptionalism. It then offers a new paradigm—reciprocal security. Reciprocal security reframes information security law and policy as part of broader security policy, focusing on two key elements: security vigilance infrastructure and defense primacy. The Article ...
%SOURCENAMEESCAPED%, New: The Case for the Repeal of the Fifteenth Amendment in the Yale Law Journal, https://www.ssrn.com/abstract=2957111 (August 20, 2018)

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


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