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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J.B. Ruhl, Cities, Green Construction, and the Endangered Species Act,
http://www.ssrn.com/abstract=1282284 (October 13, 2008)
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. This Article uses the example of "green construction" techniques to explore this disconnect between the macro-scale contribution of cities' ecological footprints to species endangerment and the micro-scale orientation of ESA law and policy toward cities' geographic footprints. The movement toward codifying standards for green construction is less concerned with geographic footprints than with ecological footprints, and widespread adoption of green construction codes thus could significantly improve ...
J.B. Ruhl, Implementing the New Ecosystem Services Mandate of the Section 404 Compensatory Mitigation Program: A Catalyst for Advancing Science and Policy,
http://www.ssrn.com/abstract=1281048 (October 12, 2008)
On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that results when wetlands are filled at impact sites and mitigation wetlands are provided at possibly significant distances away. Although motivated primarily by the need to bring the program under one comprehensive regulatory framework, the new rule also for the first time introduces ecosystem services into ...
Chad M. Oldfather, The Hidden Ball: A Substantive Critique of Baseball Metaphors in Judicial Opinions,
http://www.ssrn.com/abstract=1281731 (October 12, 2008)
This article draws on literary and linguistic theory, as well as prior work studying the effects of metaphor in judicial opinions, to study the use of a specific type of metaphor - baseball metaphors - in judicial opinions. The article surveys several specific metaphors that have been recurrently used - including the judge as "umpire," "hit-and-run," and "three strikes and you're out" - and considers the ways in which the use of such metaphors might direct thought about the underlying subject matter in inappropriate directions. (And it is, in reality, more interesting than those two sentences might make it sound. You should totally download it.)
J.B. Ruhl, Keeping the Endangered Species Act Relevant,
http://www.ssrn.com/abstract=1281040 (October 11, 2008)
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 risk. Yet is the statute adaptable to the sprawling, sometimes global phenomena that are wearing down our environmental fabric on landscape scales through complex causal mechanisms? For example, can the ESA effectively be used to combat climate change by regulating greenhouse gas emissions, to combat the impacts of urbanization by mandating green buildings, or to mitigate ecological degradation by demanding that resource users take into account the values of natural capital and ecosystem ...
J.B. Ruhl, Whittling Away,
http://www.ssrn.com/abstract=1280896 (October 8, 2008)
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 swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed." In this Article we explore what it means for agencies to whittle away at massive problems. Administrative law scholarship and practice have largely assumed that massive problems are similar to one another, focusing on jurisdiction and instrument choice - who should whittle and which knife they should use. We argue that the nature of ...
Peter K. Yu, Building Intellectual Property Coalitions for Development,
http://www.ssrn.com/abstract=1272732 (October 4, 2008)
The adoption of the WIPO Development Agenda in October 2007 has provided less developed countries with a rare and unprecedented opportunity to reshape the international intellectual property system in a way that would better advance their interests. However, if these countries are to succeed, they need to take advantage of the current momentum, coordinate better with other countries and nongovernmental organizations, and more actively share with others their experience, knowledge, and best practices.
Commissioned by the EDGE (Emerging Dynamic Global Economies) Network of the University of Ottawa, this paper begins by explaining how building intellectual property coalitions for development (IPC4D) can help less developed countries strengthen their collective bargaining position, influence negotiation outcomes, and promote effective and democratic decision making in the international intellectual property regime. The paper then discusses four coordination strategies that can be used ...
Peter K. Yu, Cultural Relics, Intellectual Property, and Intangible Heritage,
http://www.ssrn.com/abstract=1272727 (September 24, 2008)
In recent years, the protection of traditional knowledge and cultural expressions has received widespread international attention. In 2003, delegates of 190 countries adopted the Convention on the Safeguarding of Intangible Cultural Heritage. Two years later, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted under the auspices of UNESCO. In 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples. In addition, there are active developments to strengthen protection of traditional knowledge and cultural expressions in the areas of international trade, intellectual property, and biological diversity. Taken together, all of these conventions, declarations, laws, and policy discussions have helped establish a new international framework for the protection of intangible cultural heritage.
As part of the "Law Without Borders: Current Legal Challenges Around the Globe" Symposium, this ...
Jim Chen, The Story of Wickard V. Filburn: Agriculture, Aggregation, and Commerce,
http://www.ssrn.com/abstract=1268162 (September 17, 2008)
This article tells the story of Wickard v. Filburn, 317 U.S. 111 (1942). After providing a survey of American agriculture and its regulation between the World Wars, this article describes the constitutional landmark that began as a controversy over Roscoe Filburn's 1941 wheat crop. Wickard v. Filburn represents a pivotal moment in the Supreme Court's effort to define Congress's power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Greater turmoil over commerce clause jurisprudence has breathed new life into Wickard v. Filburn.
Gregory N. Mandel, Cultural Cognition and Synthetic Biology Risk Perceptions: A Preliminary Analysis,
http://www.ssrn.com/abstract=1264804 (September 10, 2008)
We describe the results of a study to determine the synthetic-biology risk perceptions of a large and diverse sample of Americans (N = 1,500). The survey found that hierarchical, conservative, and highly religious individuals - one who normally are skeptical of claims of environmental risks (including those relating to global warming) - are the most concerned about synthetic biology risks. We offer an interpretation that identifies how selective risk-skepticism and risk-sensitivity can convey a cultural commitment to traditional forms of authority.
Elizabeth A. Weeks, Everything Old is New Again: The Re-emerging Public Health Right,
http://www.ssrn.com/abstract=1234542 (August 19, 2008)
This Article offers a contemporary examination of traditional public health objectives to address social problems not amenable to individual resolution. Taking the tradition a step further, it defines a "public health right" that may justify certain government actions that otherwise appear to impair individual rights. For example, lawmakers are considering whether current regulations on prescription drugs should be loosened to allow terminally ill patients to access drugs before they have been tested and approved for the general public. This Article concludes that expanding access to experimental drugs would violate the public health right to scientific knowledge and new drug development. The choice of a few patients to avail themselves of untested drugs depletes the "commons" of biomedical research. The Article concludes by briefly testing the public health right against other contemporary laws intended to promote public health and welfare, finding some but not all justified.
Jim Chen, From Red Lion to Red List: The Dominance and Decline of the Broadcast Medium,
http://www.ssrn.com/abstract=1219382 (August 12, 2008)
This essay proposes a little housecleaning in the law of communications regulation. Red Lion Broadcasting Co. v. FCC, 395 U.S. 369 (1969), deserves to be transferred in its entirety from the realm of doctrine to that of history. Defenders of Red Lion and the discourse-based model of free speech jurisprudence symbolized by that decision seek to preserve one communicative niche where the public at large does absolutely nothing besides watch or listen. Appeals to civic republicanism and other lofty ideals notwithstanding, what Red Lion privileges above all else is sloth, the idea that there should be one form of mass communication that all citizens, without regard to wealth or power, can access solely by virtue of buying a receiving device and turning it on.
For four decades Congress and the FCC have imposed mandatory carriage obligations on cable and broadcast satellite operators for the benefit of conventional television stations. The emergence of intermediate constitutional ...
Alfred L. Brophy, Property and Progress: Antebellum Landscape Art and Property Law,
http://www.ssrn.com/abstract=1212663 (August 9, 2008)
Landscape art in the antebellum era (the period before the American Civil War, 1861-1865), often depicts the role of humans on the landscape. Humans appear as hunters, settlers, and travelers and human structures appear as well, from rude paths, cabins, mills, bridges, and canals to railroads and telegraph wires. Those images parallel cases, treatises, orations, essays, and fictional literature that discuss property's role in fostering economic and moral development. The images also parallel developments in property doctrine, particularly related to adverse possession, mistaken improvers, nuisance, and eminent domain.
Some of the conflicts in property rights that gripped antebellum thought also appear in paintings, including ambivalence about progress, concern over development of land, and fear of the excesses of commerce. The concerns about wealth, as well as the concerns about the lack of control through law, appear at various points. Other paintings celebrate ...
Elizabeth A. Weeks, Right to Experimental Treatment: FDA New Drug Approval, Constitutional Rights, and the Public's Health,
http://www.ssrn.com/abstract=1208428 (August 8, 2008)
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, sought to enjoin the Food and Drug Administration ("FDA") from refusing to allow the sale of investigational new drugs that had not yet been FDA-approval for marketing.
The Abigail Alliance decision generated considerable interest from various constituencies. On one side, libertarian, free market scholars support the panel's decision as a strong recognition of individual rights. On the other side, public health and consumer safety advocates are concerned that the decision may do more harm ...
Ronen Perry, The Economic Bias in Tort Law,
http://www.ssrn.com/abstract=1162005 (July 17, 2008)
Economic loss is moving to the forefront of tort discourse on both sides of the Atlantic. A Council draft of the Restatement (Third) of Torts: Economic Torts and Related Wrongs is being appraised and discussed by prominent American tort scholars, and European academics are seeking common ground regarding liability for economic loss in the European Union. The time may well be ripe to focus on an unexplored, perhaps unnoticed, mystery in the common law of torts: the consequential/relational economic loss dichotomy. Consequential economic loss is economic loss that stems from physical injury to the plaintiff's own person or property. Relational economic loss is purely economic loss that stems from physical injury to the person or property of a third party, or to an ownerless resource. The difference between the two may often seem normatively immaterial, but it has far-reaching implications in tort law. This Article endeavors to unveil the political--redistributive--underpinning of ...
stefanie lindquist, Supreme Court Auditing of the US Courts of Appeals: An Organizational Perspective,
http://www.ssrn.com/abstract=1157236 (July 9, 2008)
Using an aggregate-level model of Supreme Court-circuit court interactions, this study assesses the extent to which the Court's auditing process of circuit court outputs is shaped by organizational dynamics such as structural capacity, institutionalization, and demographic characteristics. Principals in organizational hierarchies must audit the behavior of their agents to ensure that the agents are faithfully complying with the principals' preferences. In the case of the Supreme Court, such auditing activities must take place in the face of very limited institutional capacity on the Court's part. We propose that the Court considers certain broad organizational and institutional characteristics at the circuit level when performing this task. In particular, we find that the Court strategically allocates its limited institutional resources to audit decisions to respond to its recent interactions with individual circuits in past terms, the circuits' internal decision-making dynamics ...
Nancy B. Rapoport, REVISION: Swimming with Shark,
http://www.ssrn.com/abstract=1157053 (July 9, 2008)
In this essay, which is part of Michael Asimow's forthcoming book on lawyers on TV, I discuss how Sebastian Stark (played by James Woods) seduces the lawyers on his legal team into ignoring legal ethics in favor of Stark's own version of "ethics." Stark -- a criminal defense lawyer who becomes a deputy district attorney -- bends the ethics rules past the breaking point in order to put bad guys behind bars. His team of lawyers knows right from wrong but follows Stark's lead in breaking the rules anyway.
Jim Chen, Truth and Beauty: A Legal Translation,
http://www.ssrn.com/abstract=1157093 (July 8, 2008)
This essay addresses questions of truth and beauty, of poetry and fidelity, as applied to legal education and ultimately to law. After discussing how law schools can most faithfully translate their teachings to lawyers' real concerns, I shall ponder how the law itself reconciles its duty to truth with its practitioners' longing for beauty.
J.B. Ruhl, Law's Complexity A Primer,
http://www.ssrn.com/abstract=1153514 (July 2, 2008)
The legal system. It rolls easily off the tongues of lawyers like a single word - the legal system - as if we all know what it means. But what is the legal system? How does it behave? What are its boundaries? What is its input and output? How will it look in one year? In ten years? How should we use it to make change in some other aspect of social life? Why do answers to these questions make the legal system seem so complex?
Would assembling a cogent, descriptively accurate theory of what makes the legal system complex help us to formulate more accurate and useful propositions about the legal system? I have to believe it would, and in my pursuit of such an explanation I have leaned heavily on the theory of complex adaptive systems - the study of systems comprised of a macroscopic, heterogeneous set of autonomous agents interacting and adapting in response to one another and to external environment inputs.
At its deepest level, complex adaptive systems theory as applied to ...
Alfred L. Brophy, Thomas Ruffin: Of Moral Philosophy and Monuments,
http://www.ssrn.com/abstract=1147869 (June 25, 2008)
"Thomas Ruffin: Of Moral Philosophy and Monuments" returns to Justice Thomas Ruffin's opinions, particularly on slavery, to excavate his jurisprudence and to try to assess what Ruffin's legacy means for us today. It begins with an exploration of Ruffin's 1830 opinion in State v. Mann, where he self-consciously separated his feelings from his legal opinion to release a man who abused a slave from criminal liability. Anti-slavery activists frequently wrote about Mann, because of its brutal honesty about the harsh nature of slavery. After discussing Harriet Beecher Stowe's fictional account of Ruffin and Mann in Dred: "A Tale of the Great Dismal Swamp", which further developed the theme of separation of law and morals, the paper turns to some of Ruffin's other opinions. It looks to slavery opinions including Heathcock v. Pennington (which released a renter of a slave from liability for the boy's death in a coal mine) and Green v. Lane (which dealt with a trust to give quasi-freedom to ...
Gregory N. Mandel, REVISION: Another Missed Opportunity: The Supreme Court's Failure to Define Nonobviousness or Combat Hindsight Bias in KSR v. Teleflex,
http://www.ssrn.com/abstract=1144199 (June 13, 2008)
This Article analyzes two significant errors of omission in the Supreme Court's recent patent decision, KSR v. Teleflex. First, though KSR represents the Court's eighth decision on nonobviousness since the standard was enacted in 1952, the Court still has never defined what this core patent standard requires. The failure to instruct on the level of ingenuity necessary to satisfy nonobviousness leads to inconsistent and unpredictable nonobvious decisions. Second, despite recognizing the problem of hindsight bias in nonobviousness analysis and the importance of ameliorating this bias to achieve accurate non-obvious decisions, the Supreme Court not only failed to take the hindsight problem seriously in KSR, but actually appeared to misconstrue the problem. As a result, nonobviousness decisions will continue to be systematically biased with respect to the legal inquiry required by section 103. This is a symposium article based on a presentation given at Nonobviousness: The Shape of ...
Jim Chen, Telecommunications Mergers,
http://www.ssrn.com/abstract=1143577 (June 12, 2008)
Telecommunications mergers are at once a historical mirror and a harbinger of the legal future. Since the passage of the Telecommunications Act of 1996, no significant telecommunications merger has failed to receive regulatory approval in the United States.
The Telecommunications Act of 1996 has accelerated the trend toward consolidation and concentration. Having devoted most of its energy on issues doomed to become technologically and economically obsolete, the Act failed to anticipate the technological conditions (especially the emergence of the Internet) that drove telecommunications carriers to consolidate. Nevertheless, possible avenues for reform remain open should the federal government ever conclude that the anticompetitive potential of telecommunications mergers outweighs their salutary effects.
Jordan K. Paradise, Exploring Emerging Nanobiotechnology Drugs and Medical Devices,
http://www.ssrn.com/abstract=1140749 (June 5, 2008)
Nanotechnology expands across research domains, applications and products and remains a field with neither a single scientific definition nor a formal regulatory or statutory definition. However, health and medical applications are burgeoning. This article examines the field of nanomedicine in order to highlight existing products and future applications now in research and development phases. We present existing oversight mechanisms for products in the drug and device realm; specifically examine nanodrugs and nanodevices approved by the FDA; and highlight emerging nanoproducts that may pose a challenge for current regulatory schemes both in the U.S. and internationally.
Chad M. Oldfather, Universal De Novo Review,
http://www.ssrn.com/abstract=1139864 (June 3, 2008)
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 even the option) to defer to their trial-level counterparts. Despite - or perhaps because of - its familiarity and prevalence, universal de novo review has gone relatively unexamined by legal scholars. The article looks to fulfill that gap by undertaking a comprehensive analysis of its possible justifications. I also consider the appropriateness of a regime incorporating deference - something of a Chevron doctrine for trial courts - and outline some of the factors that should guide the ...
Jim Chen, Law Among the Ruins,
http://www.ssrn.com/abstract=1138910 (May 30, 2008)
Hurricane Katrina broke America's collective heart. No previous natural disaster in the nation's history inflicted a grimmer toll. The legendary city of New Orleans all but sank when its levees failed and the resulting storm surge drowned much of the city and many of its feeblest, most vulnerable residents. Katrina exposed flaws in virtually every aspect of disaster management at every level of American government. The magnitude and senselessness of the loss indicted American society for its callous disregard of social vulnerability.
There is no such thing as a natural disaster. Understanding the interplay of environmental events with social conditions holds the key to the optimal application of legal tools for preventing, mitigating, and remedying natural tragedies - the grand social exercise called law among the ruins.
Tom W. Bell, Private Prediction Markets and the Law,
http://www.ssrn.com/abstract=1134563 (May 18, 2008)
This paper analyses the legality of private prediction markets under U.S. law, describing both the legal risks they raise and how to manage those risks. As the label "private" suggests, such markets offer trading not to the public but rather only to members of a particular firm. The use of private prediction markets has grown in recent years because they can efficiently collect and quantify information that firms find useful in making management decisions. Along with that considerable benefit, however, comes a particularly worrisome cost: the risk that running a private prediction market might violate U.S. state or federal laws. The ends and means of private prediction markets differ materially from those of futures, securities, or gambling markets. Laws written for those latter three institutions nonetheless threaten to limit or even outlaw private prediction markets, as the paper details. The paper also details, however, how certain legal strategies can protect private ...
Frank A. Pasquale, Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines,
http://www.ssrn.com/abstract=1134159 (May 16, 2008)
Unaccountable power at any layer of online life can stifle innovation elsewhere. Dominant search engines rightly worry that carriers will use their control of the physical layer of internet infrastructure to pick winners among content and application providers. Though they advocate net neutrality, they have been much less quick to recognize the threat to openness and fair play their own practices may pose.
Just as dominant search engines fear an unfairly tiered online world, they should be required to provide access to their archives and indices in a nondiscriminatory manner. If dominant search engines want carriers to disclose their traffic management tactics, they should submit to regulation that bans stealth marketing and reliably verifies the absence of the practice. Finally, search engines' concern about the applications and content disadvantaged by carrier fast-tracking should lead them to provide annotation remedies to indexed sites whose marks have been unfairly ...
J.B. Ruhl, Agriculture and Ecosystem Services: Strategies for State and Local Governments,
http://www.ssrn.com/abstract=1130899 (May 10, 2008)
In recent years, ecologists and economists focusing on agriculture have forged a vision of agricultural lands as housing the natural capital capable of providing a stream of diverse good and services, including ecosystem services such as increased biodiversity, carbon sequestration, pollination, groundwater recharge, and improvement of water quality. This Article explores the emerging theme of farms as multifunctional land uses and suggests ways state and local governments can help ground it through flexible, efficient policy instruments. Although federal farm subsidy programs surely could be repositioned to better promote farm multifunctionality directly, the benefits of multifunctional agricultural production, compared to the conventional commodity production orientation, are primarily local. On this policy front, therefore, I envision federal policy providing support to state and local innovations rather than dominating the field as has been the case historically.
Part I ...
Marie T. Reilly, In Good Times and in Debt: The Evolution of Marital Agency and the Meaning of Marriage,
http://www.ssrn.com/abstract=1123612 (April 22, 2008)
A married person sometimes acts solely for herself and at other times on behalf of her spouse. If she incurs debt solely for herself, then only she is liable to the creditor. If, however, she incurs debt both for herself and on behalf of her spouse, both are liable - the debtor directly and the spouse indirectly by imputed liability. Before married women's property reform, imputed marital liability followed from marital status. As marriage changed to recognize the legal individuality of both spouses, so too did the scope of a spouse's imputed liability for the debts of the other spouse. Today, the scope of a spouse's imputed liability for the debts of an insolvent spouse defines an important and largely unexamined aspect of what it means to be married. Despite change in the terms of marriage between the parties, courts continue to view imputed marital liability with sensitivity to the historical privilege of marital investment and the unique social value of trust and dependency ...
Alfred L. Brophy, Considering William and Mary's History with Slavery: The Case of President Thomas Roderick Dew,
http://www.ssrn.com/abstract=1122457 (April 21, 2008)
Amidst the recent apologies for slavery from the legislatures of Virginia, Maryland, North Carolina, Florida, and Alabama, there is significant controversy over the wisdom of investigations of institution's connections to slavery and apologies for those connections. The divide over attitudes towards apologies falls along racial lines. This paper briefly looks to the controversy on both sides of the apology debates.
Among those questions about investigations of the past, Universities occupy a special place. Efforts at recovery of their connections to slavery include a study released by graduate students at Yale in 2001, Brown University's Steering Committee on Slavery and Justice, and the University of Virginia's board of visitors' spring 2007 apology for that institution's connections to slavery.
That leads to a question about whether other schools ought to consider a self-investigation. William and Mary is a particularly good place to ask such questions. This paper ...
Daniel A. Farber, Constitutional Cadenzas,
http://www.ssrn.com/abstract=1122064 (April 18, 2008)
A cadenza is a standard part of the concerto, originally intended to be improvised by the performer rather than supplied by the composer. This essay asks whether the Constitution contains cadenzas - that is, instructions for the interpreter to improvise upon the Constitution's grand themes. The best examples are the Ninth Amendment and the Privileges and Immunities Clause of the Fourteenth Amendment. I argue that both of these constitutional provisions call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration. I also argue that foreign human rights protections as well as American traditions are relevant to that process of elaboration.
To continue the musical metaphor, the essay comes in four movements. The first movement reprises constitutional history and text; the second considers some methodological issues; the third sketches some applications, including abortion and homosexuality; and the fourth ...
Daniel A. Farber, Security V. Liberty,
http://www.ssrn.com/abstract=1120932 (April 17, 2008)
Threats to national security generally prompt incursions on civil liberties. The relationship has existed since the presidency of John Adams and has continued through two World Wars, the Cold War, Vietnam, and to the present day. Though this historical phenomenon is commonplace, the implications of that history for our post-9/11 world are less clear.
In the long run, if we are to cope with present and future crises, we must think deeply about how our historical experience bears on a changing world. This book, published by the Russell Sage Foundation, addresses the past and present relationship between civil liberties and national crises, with contributions from leading legal scholars and historians. They seek both to draw historical lessons and to explore how the present situation poses unique issues. The contributors include Alan Brinkley, Daniel Farber, Stephen Holmes, Ronald D. Lee, Jan Ellen Lewis, L.A. Powe, Jr., Ellen Schrecker, Paul M. Schwartz, Geoffrey R. Stone, and John ...
Jim Chen, Liberating 'Red Lion' from the Glass Menagerie of Free Speech Jurisprudence,
http://www.ssrn.com/abstract=1121043 (April 17, 2008)
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), decreed a medium-specific approach to first amendment controversies involving radio and broadcast television. Although the Supreme Court has never applied Red Lion's scarcity rationale to any medium besides broadcasting, the Court has frequently resolved free speech disputes by drawing analogies to broadcasting.
Red Lion declared that courts should condition constitutional protection on the technological and economic characteristics of a regulated communications conduit. It specifically concluded that broadcasting, as a conduit, merited less rigorous first amendment review because of scarcity, the historic extent of governmental involvement in broadcasting, and the ongoing public interest in access to this intensely regulated medium. Most judicial and academic objections to Red Lion have addressed scarcity. This article takes aim instead at Red Lion's prescription of conduit-specific first amendment review, urging close ...
Daniel A. Farber, Tort Law in the Era of Climate Change, Katrina and 9/11: Exploring Liability for Extraordinary Risks,
http://www.ssrn.com/abstract=1121125 (April 16, 2008)
Tort cases generally deal with routine risks - the kind of risk that a person encounters as a result of driving a car or buying a product. These risks are also staples of the insurance industry. Today, however, society faces risks that threaten massive harms to large segments of the public. Such risks materialized with 9/11 and Hurricane Katrina, and may confront us with climate change.
The first part of this article is comprised of case studies of how the tort system has responded to catastrophic risks such as large-scale flooding, terrorist acts, and climate change. Liability approaches vary depending on the problem and jurisdiction, but there is at least no consistent pattern of immunity for those who have created catastrophic risks or failed to take reasonable precautions against them.
Part II examines how compensation for catastrophic risks could contribute to societal goals such as deterring undesirable risks and social risk-spreading. The risk-spreading goal is ...
Peter K. Yu, Three Questions That Will Make Your Rethink the U.S.-China Intellectual Property Debate,
http://www.ssrn.com/abstract=1118629 (April 14, 2008)
The debate on China's piracy and counterfeiting problems has been ongoing for more than two decades. However, in the past few years, this debate has taken on a new sense of urgency and importance. In August 2008, the City of Beijing will host the Summer Olympic Games. Two years later, the 2010 World Expo will be held in the City of Shanghai. In addition, two World Trade Organization dispute settlement panels were recently established to resolve disputes between China and the United States over inadequate enforcement of intellectual property rights and inadequate market access to U.S. media products. All of these developments, of course, take place against a background of China's rise to emerging world power status.
Although the Olympics, the World Expo, and the two WTO dispute settlement panels all constitute new developments in the U.S.-China intellectual property debate, the existing debate is not that different from the debate in the late 1990s when I began studying ...
Alfred L. Brophy, Reparations Pro and Con,
http://www.ssrn.com/abstract=1118466 (April 14, 2008)
Long before the phrase 40 acres and a mule was coined to describe what black Americans were owed for slavery, abolitionists discussed compensating slaves for what had been unjustly taken from them. Today, the debate over reparations for slavery and Jim Crow - whether African-Americans should be compensated for decades of racial subjugation - stands as the most racially divisive issue in American politics.
Discussion of reparations leads often to more animosity than serious consideration of the issue, with reparations advocates and skeptics taking extreme positions, rather than reaching for common ground. In a concise compass, Reparations Pro and Con considers the debate over reparations from the 1700s to the present, examining the arguments on both sides of the current debate. Brophy tells the story of the black reparations movement from Thaddeus Stevens, through the dark days of Jim Crow and then the Harlem Renaissance, to critical race theory, and relates it to other movements ...
Gregory N. Mandel, REVISION: The Non-Obvious Problem: How the Indeterminate Non-Obvious Standard Produces Excessive Patent Grants,
http://www.ssrn.com/abstract=1117618 (April 9, 2008)
The dominant current perception in patent law is that the core patent requirement that an invention be non-obvious is applied too leniently, resulting in a proliferation of patents on trivial inventions that actually retard technological innovation in the long run. This article reveals that the common wisdom is only half correct. The non-obvious standard is not too low, but both too high and too low. It is indeterminate. Three principal factors produce nonobviousness indeterminacy: a failure to identify the quantum of innovation necessary to satisfy the standard, a failure to define the baseline level of ordinary skill against which to measure an innovation, and the epistemic infeasibility of requiring a technologically lay decision-maker to make a judgment from the perspective of a more highly trained and educated person of ordinary skill in the art.
This article introduces a mathematical model of innovation and patenting in order to analyze the effects of non-obvious ...
Jim Chen, REVISION: Biolaw: Cracking the Code,
http://www.ssrn.com/abstract=1115332 (April 2, 2008)
The neologism "biolaw" describes all areas of law informed by the life sciences. Health law, bioethics, environmental law, natural resources law, agricultural law, food and drug law, biotechnology, law and neuroscience, law and behavioral psychology, and evolutionary analysis of law all share a common scientific core. Lawyers and legal scholars too often address these topics in isolation. This piecemeal approach undermines the scientific cohesion that connects these areas of legal practice and theory. The common core, of course, is biology - all of the life sciences, unified in pursuit of subjects considered worthy of legal attention.
This essay defines biolaw as the field of law and the life sciences in its entirety. Part I of this essay will provide a brief guide to the various branches of biolaw. Part II offers some thoughts on the intellectual significance of treating biolaw as a scientifically coherent enterprise. In other words, I will first define biolaw. Then I will ...
Frank A. Pasquale, Reclaiming Egalitarianism in the Political Theory of Campaign Finance Reform,
http://www.ssrn.com/abstract=1111566 (March 20, 2008)
Recent advocacy for campaign finance reform has been based on an ideal of the democratic process which is unrealistic and unhelpful. Scholars should instead return to its egalitarian roots. This article examines how deliberative democratic theory became the main justification for campaign finance reform. It exposes the shortcomings of this deliberativist detour and instead models campaign spending as an effort to commodify issue-salience. Given this dominant function of money in politics, a more effective paradigm for reform is equalizing influence. Advocates of campaign regulation should return to the original principles of reformers; not an idealized vision of the democratic process, but pragmatic concerns about moneyed interests acquiring too much influence over the nation's politics.
J.B. Ruhl, Equitable Apportionment of Ecosystem Services: New Water Law for a New Water Age,
http://www.ssrn.com/abstract=1106379 (March 19, 2008)
This article examines the interstate water controversy between Florida, Georgia, and Alabama regarding allocation of water in the Apalachicola-Chattahoochee-Flint River Basin (ACF). The three states have been unable after 20 years of negotiation to resolve conflicts between urbanization in Atlanta, commercial uses in Alabama, and ecological protection in Florida. This article proposes that, were the states to seek apportionment of water by the Supreme Court under the Court's doctrine of equitable apportionment, the ecosystem services flowing within the ACF should be an integral allocation factor in deciding the flow regime Georgia and Alabama must ensure enters the Florida portion of the ACF.
J.B. Ruhl, Toward a Common Law of Ecosystem Services,
http://www.ssrn.com/abstract=1106417 (March 18, 2008)
This article suggests ways in which the common law can integrate concepts of ecosystem services to fulfill pragmatic objectives of common law doctrine. Rather than requiring a radical departure from traditional common law doctrine as is often proposed in environmental literature on the common law, ecosystem services can fold seamlessly into existing common law principles as a source of new knowledge and changed circumstances.
J.B. Ruhl, Is the Endangered Species Act Eco-Pragmatic?,
http://www.ssrn.com/abstract=1106408 (March 18, 2008)
The Article evaluates the Endangered Species Act using Dan Farber's theory of eco-pragmatism. Eco-pragmatism employs environmental baselines, a moderated precautionary principle, and adaptive management to mediate environmental policy issues. I conclude that the ESA reflects some of these attributes, but does not coherently assemble a truly eco-pragmatic framework.
Jordan K. Paradise, Developing Oversight Frameworks for Nanobiotechnology,
http://www.ssrn.com/abstract=1103114 (March 9, 2008)
Oversight systems specific to nanotechnology have not yet been created; stakeholders, government, industry, academia, and the public are debating whether and how to craft such systems and address emerging safety, social, and ethical issues. The United States has no coordinated policy for oversight of the products and applications of nanotechnology and uncertainty prevails over how existing general regulatory regimes and industry standards apply to emerging nanotechnologies. Empirical assessment of health and environmental risks is still in process. At the same time, public understanding of nanotechnology is rudimentary and public concern exists. This article focuses on nanobiotechnology, which most directly raises questions of how oversight can address safety and efficacy, outlines the current debate on oversight in the United States, suggests why deliberate development of oversight strategies is important, and recommends how to develop them.
Alfred L. Brophy, REVISION: The Signaling Value of Law Reviews: An Exploration of Citations and Prestige,
http://www.ssrn.com/abstract=1095799 (February 20, 2008)
This brief essay reports a study of citations to every article published in 1992 in thirteen leading law journals. It uses citations as a proxy (an admittedly poor one) of article quality and then compares the citations across journals. There are, not surprisingly, vast differences in number of citations per article. While articles in the most elite journals receive more citations on average than the less elite (but still highly regarded) other journals studied, some articles in the less elite journals are more heavily cited than many articles in even the most elite journals. In keeping with studies in other disciplines and other citation studies of legal journals, the results here suggest that we should we wary of judgments about quality based on place of publication. We should also be wary of judgments about quality of scholarship based on number of citations and we should, therefore, continue to evaluate scholarship through close reads of it.
Frank A. Pasquale, Asterisk Revisited: Debating a Right of Reply on Search Results,
http://www.ssrn.com/abstract=1091124 (February 12, 2008)
What happens when high-ranking results about a certain searched term are harmful from either a societal perspective, or from the perspective of an entity with a stake in the search term? For example, if all the results about a (hypothetical) person named Xavier Hollidayly are negative opinions or mistaken accusations, should he get any chance to reply to them on the search page on which they appear - or at least to indicate with an asterisk a link that leads to a page that will do so? Or if the owner of the (again fictitious) trademark Flanakapan Popsicles finds that all the results in response to that term lead to competitors' websites, should she be able to indicate on that page that she owns the mark Flanakapan?
This essay proposes some solutions to these problems, and responds to critiques.
Tom W. Bell, The Specter of Copyism v. Blockheaded Authors: How User-Generated Content Affects Copyright Policy,
http://www.ssrn.com/abstract=1089589 (February 6, 2008)
Technological advances, because they have radically lowered the costs of creating and distributing expressive works, have shaken the foundations of copyright policy. Once, those who held copyrights in sound recordings, movies, television shows, magazines, and the like could safely assume that the public would do little more than passively consume. Now, though, the masses have seized (peacefully acquired, really) the means of reproducing copyright works, making infringement cheap, easy, and, notwithstanding the law's dictates, widespread. Copyright holders thus understandably fear that their customers have begun to treat expressive works like common property, free for all to use. That, the specter of copyism, does risk upsetting copyright policy, leading to a market failure in the production of expressive works. Even as we recognize that threat, however, we should also appreciate that technological advances have greatly reduced the costs of creating and distributing new works of ...
Peter K. Yu, REVISION: Access to Medicines, BRICS Alliances, and Collective Action,
http://www.ssrn.com/abstract=1088893 (February 1, 2008)
Most discussions on the public health implications of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights focus on the right of less developed countries to issue compulsory licenses and the need for these countries to exploit flexibilities within the TRIPs Agreement. However, there are other means by which countries can enhance access to essential medicines. To provide an illustration of these other means, this article explores the possibility for greater collaboration among the BRICS countries (Brazil, Russia, India, China, and South Africa) and between these countries and other less developed countries.
This article begins by offering a brief discussion of each BRICS country in the area of international intellectual property protection. It advances the hypothesis that, if the BRICS countries are willing to join together to form a coalition, it is very likely that the resulting coalition will precipitate a negotiation deadlock similar to the historic ...
Lori A. Ringhand, An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court,
http://www.ssrn.com/abstract=1086705 (January 23, 2008)
Despite the high degree of interest generated by Supreme Court confirmation hearings, surprisingly little work has been done comparing the statements made by nominees at their confirmation hearings with their voting behavior once on the Supreme Court. This paper begins to explore this potentially rich area by examining confirmation statements made by nominees regarding three different methods of constitutional interpretation: stare decisis, originalism and the use of legislative history. We also look at nominees' statements about one specific area of law: protection of the rights of criminal defendants. We then compare the nominees' statements to decisions made by the Justices once confirmed. Our results indicate that confirmation hearings statements about a nominee's preferred interpretive methodologies provide very little information about future judicial behavior. Inquiries into specific issue areas - such as the rights of criminal defendants - may be slightly more informative. We ...
Lori A. Ringhand, I'm Sorry, I Can't Answer That,
http://www.ssrn.com/abstract=1084457 (January 18, 2008)
Professors Robert Post and Reva Siegel have suggested that nominees to the U.S. Supreme Court should answer questions posed at their Senate confirmation hearings regarding how they would have voted in cases the Supreme Court has already decided. This practice, they argue, would enable the Senate to exercise its constitutional advice and consent duties without compromising judicial independence. This paper uses positive scholarship to support Post and Siegel's conclusion that objections to their proposal are not easily justified by the concerns about judicial independence on which they purport to be based. In doing so, I examine the confirmation hearing transcripts of the nine justices who sat on the final Rehnquist Court. I find that these nominees in fact provided opinions about many previously decided Supreme Court cases, and that there was surprising variety in the cases on which they would and would not opine. I also show that much of that variety is not attributable to the ...
Daniel A. Farber, Building a Better Judiciary,
http://www.ssrn.com/abstract=1080037 (January 16, 2008)
We have spent much of our academic careers arguing that judicial decision-making - even in constitutional cases - is a specialized craft, not merely an exercise in politics. We have suggested that good judging requires both expertise and a certain set of dispositional traits, and that it can be enhanced or hindered by both personal traits and situational characteristics. This essay is part of that continuing project.
In a forthcoming book, Judgment Calls: Principle and Politics in Constitutional Law, we describe and defend our vision of the process of constitutional adjudication. We also provide examples of good and bad judicial opinions, and identify existing and proposed structural supports conducive to good constitutional decision-making. In this essay, to be published in an edited volume on the psychology of judicial decision-making, we call on some of the ideas from our book to translate our theorizing into concrete suggestions for further research. In Part One, we describe ...
Daniel A. Farber, Climate Change, Federalism, and the Constitution,
http://www.ssrn.com/abstract=1081664 (January 11, 2008)
The federal government so far has shown little initiative in addressing the issue of climate change. Perhaps surprisingly, however, state governments have moved much more aggressively. By 2006, every state had taken steps of some kind to address climate change. California has been the leader, with legislation aimed at reducing greenhouse emissions from automobiles and electrical generators, as well as an ambitious mandate to reduce emissions to 1990 levels by the end of the next decade.
Federal climate change legislation seems increasingly likely, but at least some states are likely to continue pursuing independent initiatives. Courts, state governments, and the EPA will then be faced with the question of how much room remains for state climate regulations.
This Article argues for a bifurcated approach to the constitutional authority of states to pursue climate change mitigation. Courts should reject regulations that violate clear statutory preemption clauses, discriminate ...
Jordan K. Paradise, Tales from the Crypt: Scientific, Ethical, and Legal Considerations for Biohistorical Analysis of Deceased Historical Figures,
http://www.ssrn.com/abstract=1010656 (January 10, 2008)
Biohistorical analysis involves using historic specimens of human remains or human material extracted or derived from historical artifacts to gather evidence about specimens that are identifiable or at least attributed to a historic figure at the time of the research. Biohistorical studies are being undertaken for myriad reasons, such as identification and authentication of remains, investigation into alleged criminal behavior, investigation into medical or psychological conditions, and even for purposes of commercialization. This article analyzes federal statutes, case law, and codes and guidelines from twenty-six professional organizations and societies informative to the field of biohistory. We surveyed the field, identified deficiencies in oversight and guidance, investigated prior biohistorical studies, and concluded that greater consideration of a variety of scientific, ethical and legal issues is needed. The article uses legal and ethical precedents to propose ways to avert ...
Arthur J. Cockfield, REVISION: Purism and Contextualism within International Tax Law Analysis: How Traditional Analysis Fails Developing Countries,
http://www.ssrn.com/abstract=1080073 (January 3, 2008)
There are two broad approaches to the study of international tax law. Purists adopt a traditional approach, emphasizing conceptually pure tax solutions based on efficiency interests. Contextualists combine economic analysis with political, historical, social, institutional and other perspectives. It is argued that the Purist approach is overly-reliant on international tax economics which, in turn, is challenged by significant theoretical, empirical, and behavioral uncertainty. The Purist analysis nevertheless can be effective in respect of situations in which there are relatively balanced capital flows between countries with developed economies. Developing countries, however, are generally capital importing nations and their interests tend to be downplayed under the Purist approach. In an increasingly integrated global economy, the Contextualist perspective is more effective at taking account of the interests and needs of developing countries and, in so doing, promotes the ...
Peter K. Yu, REVISION: The Political Economy of Data Protection,
http://www.ssrn.com/abstract=1046781 (December 4, 2007)
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 to explore ways to use the collected data as an income stream. Because the then-existing laws did not offer adequate protection for that particular purpose, they actively lobbied for stronger protection of their data assets.
As part of the Data Devolution: Corporate Information Security, Consumers and the Future of Regulation Symposium, this essay recounts the development of two new forms of data protection: sui generis database protection and data exclusivity. It also discusses the ...
Gregory N. Mandel, REVISION: When to Open Infrastructure Access,
http://www.ssrn.com/abstract=1034081 (December 2, 2007)
This essay comments on and develops Professor 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 for such resources. Differentiating the developmental stage of an infrastructure resource - whether it is yet to be conceived, yet to be produced, or needs to be managed - can help to fill this gap. Infrastructure at different stages of development poses different challenges for optimizing social value, and the strength and justification of rationales supporting open access varies significantly across the different infrastructure stages. This essay is based on a presentation at a panel on ...
Arthur J. Cockfield, Protecting the Social Value of Privacy in the Context of State Investigations Using New Technologies,
http://www.ssrn.com/abstract=1031964 (November 23, 2007)
In pursuit of security, governments around the world are adopting powerful technologies to collect and share detailed personal information, potentially leading to an erosion of privacy. This article discusses how legal analysis should respond to situations where technology developments challenge privacy interests in the context of state investigations. In particular, judges, lawyers and policy-makers need to take into more explicit account both the individual rights aspect of privacy as well as the social value of privacy, that is, society's interest in preserving privacy apart from a particular individual's interest. Both of these aspects of privacy are critical to the functioning of our democratic state. This approach demonstrates that legal analysis sometimes overstates the tension between privacy and security as both can be portrayed as social interests. To establish that a state search is constitutionally permissible under s. 8 of the Charter of Rights and Freedoms, the need ...
Jim Chen, REVISION: The Most Dangerous Justice Rides into the Sunset,
http://www.ssrn.com/abstract=1031146 (November 19, 2007)
In this essay, our third and last in a series, we employ our previously developed techniques to measure the power of the Justices in the Rehnquist Court over its full 11 year run. Once again, Justice Kennedy rises to the top of our rankings, as he had done earlier. Our methods identify Justices Souter, Breyer and Ginsburg as being notable either for their influence or lack thereof. In addition, we rejoin the debate on the connection between being the median justice and being the most powerful one. We question whether even the most sophisticated methods of finding the median justice are adequate to the task of assessing power on the Court.
Daniel A. Farber, Climate Models: A User's Guide,
http://www.ssrn.com/abstract=1030607 (November 17, 2007)
This article has two goals: providing legal and policy analysts with a basic understanding of the types of computer models that are used in studying climate change, and thinking through the uses and limitations of these models for courts and agencies. Because this article covers a good deal of fairly diverse terrain, it may be helpful to identify four key “take away” points:
1. Climate models establish a lower end estimate for global temperature impacts, but the distribution is less clearly bounded on the high side - or in simpler terms, the high-end risk may be considerable. The models are better at predicting temperature patterns than precipitation patterns, and global predictions are considerably firmer than more localized ones.
2. Economic models are much less advanced, and their conclusions should be used with caution. Unfortunately, economists are not always carefully about incorporating uncertainty into their policy recommendations.
3. Climate scientists have ...
Paul L. Caron, The Civil Jury: The Disregarded Constitutional Actor,
http://www.ssrn.com/abstract=1029376 (November 12, 2007)
This lecture “The Civil Jury: The Disregarded Constitutional Actor” argues that the significant division of power between the judiciary and the jury should be recognized alongside the separation of powers between the branches and the federalism division between the federal government and the states. While the jury is a separate constitutional actor with important powers, the judiciary and the legislature have not recognized it as such. This has led to the constitutionalization of modern procedures which take away the jury trial right before, during and after trial, including through remittitur, summary judgment, the motion to dismiss and federal caps. This jurisprudence on the civil jury exhibits an odd alignment under which so-called liberal justices may hold a jury trial right does not exist, whereas other so-called conservative justices may hold such a right exists. This appears to result from the tendency of liberal justices to shun originalism, even in the context of the Seventh ...
J.B. Ruhl, The Law and Policy Beginnings of Ecosystem Services,
http://www.ssrn.com/abstract=1028759 (November 10, 2007)
Over the past decade, there has been an explosion of interest in ecosystem services from scientists, economists, government officials, entrepreneurs, and the media. This article traces the development of the ecosystem services concept in law and policy. We prepared it in connection with a symposium held at Florida State University in April 2006.
The presentations at the symposium, which then developed into the articles in a special issue of the Journal of Land Use and Environmental Law (volume 22, issue 2), approached the topic of ecosystem services and the law from two perspectives. One set of presentations focused on the law of specific natural resources, and the other set focused on different legal institutions as agents of integration of ecosystem services into law and policy. The resource presentations covered water and watershed resources, agricultural and rangeland resources, and coastal resources, while the institutional presentations addressed land use regulation, common ...
Alfred L. Brophy, REVISION: Utility, History, and the Rule of Law: The Fugitive Slave Act of 1850 in Antebellum Jurisprudence,
http://www.ssrn.com/abstract=1024033 (November 5, 2007)
In the years before the Civil War, the Fugitive Slave Act of 1850 focused public discussion of the duty to abide by law, as well as the obligations of individual (and religiously inspired) conscience. This paper addresses the debate over the act in Congress, where the Senators could already foresee conflict between law and conscience, as well as subsequent commentary by southern jurists, lawyers, religious leaders, novelists, and professors. They explored the competing considerations of individual morality, abstract duty to abide the law, and expediency in passage and enforcement of the Act. A final section explores the implications for the rich public debate for the judiciary and for politics in the years leading into Civil War. This paper exhumes the Act and places it at the center of American jurisprudence in the antebellum period.
This paper is the first chapter to a monograph ...
Ronen Perry, Legal Citation Rules: Reflections on the Formation of Discourse Norms,
http://www.ssrn.com/abstract=1025530 (November 1, 2007)
In the spring of 2006, an 80 pages booklet, sponsored by four Israeli law reviews, and titled Uniform Citation Rules in Legal Writing, was published in Israel. Given its cover color and notable similarity to the American Bluebook, we called it The Purplebook. The Haifa Law Review had to decide whether to substitute the new rules for its traditional citation method. The Editors' reflections on this seemingly technical matter generated interesting queries about the need for uniform citation rules, the process of their formulation, endorsement and modification, their substance and their form. The unprecedented opportunity to seriously deliberate on the various aspects of legal citation has yielded this essay. To begin with, the essay examines the need for uniformity in citation, and discusses the advantages and shortcomings of such uniformity on different levels of abstraction. Considerations pertaining to aesthetics, efficiency, and preservation of unique-identities (pluralism) go ...
Tom W. Bell, REVISION: Copyright as Intellectual <S>Property</S> Privilege,
http://www.ssrn.com/abstract=1023735 (October 23, 2007)
We often call copyright a species of intellectual property, abbreviating it, "IP." This brief paper suggests that we consider copyright as another sort of IP: an intellectual privilege. Though copyright doubtless has some property-like attributes, it more closely resembles a special statutory benefit than it does a right, general in nature and grounded in common law, deserving the title of property. To call copyright a privilege accurately reflects legal and popular usage, past and present. It moreover offers salutary policy results, protecting property's good name and rebalancing the public choice pressures that drive copyright policy. We face a choice between two ways of thinking about, and talking about, copyright: As an intellectual property that authors and their assigns own, or as an intellectual privilege that they merely hold. Perhaps no label can fully capture the unique and protean nature of copyright. Recognizing it as form of intellectual privilege would, however, help to ...
Ronen Perry, REVISION: Re-torts,
http://www.ssrn.com/abstract=1021547 (October 17, 2007)
Tom Broadbent, George Bernard Shaw's memorable hero in John Bull's Other Island, forcefully avers in Act IV that “there are only two qualities in the world: efficiency and inefficiency, and only two sorts of people: the efficient and the inefficient.” Broadbent is an Englishman, but his commitment to the gospel of efficiency has made him representative of modern America in the eyes of many commentators. Peter Keegan, Broadbent's ideological adversary, mocks his simple-mindedness, and concludes his ironic reproach with an inspiring prediction: “For four wicked centuries the world has dreamed this foolish dream of efficiency; and the end is not yet. But the end will come.” Will it?
Broadbent's scorned vision seems to underlie the proposed definition of negligent-conduct in the draft Restatement (Third) of Torts. Section 3 embraces the renowned “Hand formula,” which defines negligence in economic, cost-benefit, terms. This Article endeavors to disprove the drafters' alleged ...
Arthur J. Cockfield, A Synthetic Theory of Law and Technology,
http://www.ssrn.com/abstract=1020993 (October 14, 2007)
This Article outlines a synthetic theory of law and technology that could contribute to the development of legal analysis at the intersection of law and technology. The theory is "synthetic" as it is based upon a synthesis of instrumental and substantive theories of technology. Generally speaking, instrumental theories tend to treat technology as a neutral tool without examining its broader social, cultural, and political impacts. In contrast, substantive theories emphasize the ways in which technological systems can exert "control" over individuals, often without their knowledge, as well as the ways that technologies can have a substantive social, political, economic or other impact on society apart from a technology's initial intended use. A synthesis is necessary because each theory, standing alone, has disadvantages that reduce its potential for interfacing with legal analysis. Yet both theories and their accompanying bodies of literature have much to offer legal analysis in ...
Gregory N. Mandel, REVISION: Nanotechnology Governance,
http://www.ssrn.com/abstract=1018707 (October 3, 2007)
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 rapid development unfettered by excessive regulation and “opponents” who advocate an overhauled, stringent regulatory regime to protect against nanotechnology risks. This article recommends a different approach, one that turns the greatest challenge of nanotechnology - scientific uncertainty - on its head to create incentives for all stakeholders to work together in a new governance system.
The nanotechnology governance proposal includes methods to close existing regulatory gaps, improve ...
Daniel A. Farber, A Place-Based Theory of Standing,
http://www.ssrn.com/abstract=1013084 (September 10, 2007)
Standing doctrine is well-known to be a quagmire, plagued by inconsistent results and judicial dissension. Worse, leading scholars have cast doubt on its historical pedigree and conceptual underpinnings. Yet, there seems to be little prospect for a radical change in direction. This article proposes a more modest doctrinal shift. The proposed approach is much simpler than the current test, but preserves the core intuition that plaintiffs must have some special connection to the subject-matter of the dispute, as opposed to a generalized interest in law enforcement or public policy. The proposal addresses standing in environmental cases, which form a major part of the Supreme Court's standing jurisprudence.
The place-based standard is easily stated. Under this approach, a plaintiff has standing to contest environmental violations involving a specific geographic area, provided that the plaintiff has an appropriate personal connection to the area. The place-based approach would ...
Frank A. Pasquale, REVISION: Technology, Competition, and Values,
http://www.ssrn.com/abstract=1002463 (July 27, 2007)
Law can advance or retard the distributive effects of innovation and its diffusion in many ways. Certain technologies merit special monitoring because they promote the leveraging of economic advantage into social or cultural advantage without substantially increasing overall social welfare. Others threaten to undermine collective values and perceptions commonly used to evaluate technology. A final category threatens to do both, creating unfair or wasteful competition while blunting our capacity to recognize its morally dubious character.
As new sectors of life become more game-like and competitive, methods of leveling the playing field developed in sports and college admissions might become more broadly relevant. Inequality impact statements may be as important to our cultural environment as environmental impact statements are to the natural world. Finally, current laws regulating the use of controlled substances may need to be extended to precision chemical-based emotional ...
Frank A. Pasquale, Federal Search Commission? Access, Fairness and Accountability in the Law of Search,
http://www.ssrn.com/abstract=1002453 (July 26, 2007)
Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets.
After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may constrain abusive companies to some extent, they have little chance of checking untoward behavior by the oligopolists who now dominate the search market. Against the trend of courts that would declare search results unregulable speech, this article makes a case for an ongoing conversation on search engine regulation.
Lori A. Ringhand, Fig Leaves, Fairy Tales, and Constitutional Foundations: Debating Judicial Review in Britain,
http://www.ssrn.com/abstract=991182 (June 5, 2007)
This paper examines an ongoing debate about the origins and legitimacy of judicial review as practiced in Britain. I begin by examining how British law traditionally has attempted to justify judicial review of governmental actions. I then discuss how that orthodox view has been challenged, and how the proponents of the orthodoxy responded to that challenge. In doing so, I explain how the British debate has evolved into a far-reaching examination of the role of interpretive methodologies in legitimating judicial power. I conclude by exploring how the richness and depth of the British discussion can inform the larger debate about the role of judicial power, and our efforts to explain and contain that power, in the United States.
Arthur J. Cockfield, REVISION: Purism and Contextualism With International Tax Law Analysis: How Traditional Analysis Fails Developing Countries,
http://www.ssrn.com/abstract=989770 (May 30, 2007)
There are two broad approaches to the study of international tax law. Purists adopt a traditional approach, emphasizing conceptually pure tax solutions based on efficiency interests. Contextualists combine economic analysis with political, historical, social, institutional and other perspectives. It is argued that the Purist approach is overly-reliant on international tax economics which, in turn, is challenged by significant theoretical, empirical, and behavioral uncertainty. The Purist analysis nevertheless can be effective in respect of situations in which there are relatively balanced capital flows between countries with developed economies. Developing countries, however, are generally capital importing nations and their interests tend to be downplayed under the Purist approach. In an increasingly integrated global economy, the Contextualist perspective is more effective at taking account of the interests and needs of developing countries and, in so doing, promotes the long-term ...
Paul L. Caron, When Does Life Begin for Tax Purposes?,
http://www.ssrn.com/abstract=971070 (March 19, 2007)
I have written before about what I call “tax myopia” - the tax law's failure to consider insights from other areas of law that would inform the tax debate. (Tax Myopia, 13 Va. Tax Rev. 517 (1994); http://ssrn.com/abstract=799007). One illustration of this theme is how the tax law has ignored insights from other areas of law on perhaps the dominant social issue of our time: when does human life begin? The question was addressed in two tax cases decided over 55 years ago, and then revisited recently.
Although Wilson v. Commissioner, 41 B.T.A. 456 (1940), refused to treat an unborn child as a person for purposes of the income tax dependency exemption, Faulkner v. Commissioner, 41 B.T.A. 875 (1940), treated as unborn child as a person for purposes of the gift tax annual exclusion. The Board of Tax Appeals justified the different results on the ground that the dependency exemption benefitted the parents while the annual exclusion benefitted the unborn child. In subsequent rulings, ...
Paul L. Caron, REVISION: Are Scholars Better Bloggers? - Bloggership: How Blogs are Transforming Legal Scholarship,
http://www.ssrn.com/abstract=947637 (November 29, 2006)
These are the opening remarks I delivered at the Symposium on Bloggership: How Blogs Are Transforming Legal Scholarship at Harvard Law School on April 28, 2006. Part One describes how my work on TaxProf Blog and the Law Professor Blog Network led me to organize this Symposium. Part Two takes inspiration from Jim Lindgren's work, Are Scholars Better Teachers?, to ask, using our twenty-three panelists as guinea pigs, Are Scholars Better Bloggers? The data indicate that our participants include some of the most heavily-cited and heavily-downloaded legal scholars who edit many of the most heavily-trafficked law blogs. Although the data do not do not conclusively answer the question raised, they demonstrate that we have assembled an impressive array of scholar-bloggers in the first conference on the impact of blogs on legal scholarship.
The papers and commentary are organized around four themes: (1) Law Blogs as Legal Scholarship (papers by Doug Berman, Orin Kerr, Kate Litvak, and ...
Gil Grantmore, The Death of Contra,
http://www.ssrn.com/abstract=933007 (September 27, 2006)
Lemon isn't dead, but contra is. Once upon a time, truth was truth, and we had a way to signal what wasn't. Until 1996, the Bluebook directed lawyers to use contra when cited authority directly states the contrary of the proposition. The 16th edition of the Bluebook removed contra from the list of valid introductory signals.
The death of contra is the latest, surest sign of decadence and decline in American legal culture. It symbolizes the subtle subversion of law and legal scholarship. Where once clarity ruled, negation now lacks legal voice.
Poor contra! A legal culture that neither knows contra and nor respects its power is one in which the Supreme Court can spurn a condemned man's habeas petition because the Court had used cf. instead of see in another man's case. Lambrix v. Singletary, 520 U.S. 518 (1997).
O contra, now sent to Heaven, cursed by your fate. Accord, remain; you will be used, in courts as in the law reviews. Give us a way to signal lies, and ...
Gil Grantmore, The Headnote,
http://www.ssrn.com/abstract=933013 (September 27, 2006)
Every Supreme Court opinion is prefaced by a curiously self-contradictory citation. The Syllabus is accompanied by a footnote warning of the Syllabus's unofficial status. By the same token, of course, the footnote itself is unofficial and has no legal standing. This essay reexamines the status of the Syllabus, and argues that it should have precedential authority.
Gil Grantmore, Mark My Words,
http://www.ssrn.com/abstract=933014 (September 27, 2006)
The Harvard Law Review is the Word of Law. America's premier student-edited law review derives much of its reputation from its premier student-written features. Written in a coporate yet incorporeal voice, Harvard's Supreme Court and Development notes have epitomized the fiction that student-written legal commentary should be regarded as a collective product.
Throughout it all the Review has never forgotten its humble origins as the brainchild of a small group of Harvard students. Till now. The Harvard Law Review's 1999 Developments note, dedicated to "The Law of Cyberspace," 112 Harv. L. Rev. 1574, trashed a half-century of tradition by breaking into the first-person singular.
Behold the new covenant, cast in the hallowed pages of the Harvard Law Review: "Le droit, c'est moi."
Susan A. Schneider, Bankruptcy Reform and Family Farmers: Correcting the Disposable Income Problem,
http://www.ssrn.com/abstract=928255 (September 5, 2006)
When the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was signed into law on April 20, 2005, it marked the conclusion of years of contentious debate. Much of the new law is directed toward consumer bankruptcy reform, and some of the most controversial aspects of it were debated at length by Congress and reported widely in the media. Buried within this massive law, however, are important changes that will significantly benefit family farmers who seek relief under Chapter 12 of the Bankruptcy Code. This article focuses on one of these changes — the prohibition on the retroactive assessment of disposable income. It is an amendment that has not been widely reported, yet it reverses over a decade of misinterpretation of the original Chapter 12 disposable income requirement. As is evidenced throughout the article, it is a significant change that promises to greatly enhance the likelihood of successful family farm reorganizations throughout the country.
Susan A. Schneider, Who Gets the Check: Determining When Federal Farm Program Payments are Property of the Bankruptcy Estate,
http://www.ssrn.com/abstract=928254 (September 5, 2006)
This article discusses a unique area of law that is of great importance to rural America - agricultural payments made pursuant to the various federal farm programs. In recent years, these payments have grown to become a significant component of net farm income that is capitalized into the value of agricultural real estate, provided as collateral for agricultural loans, and justified as support to the overall rural economy. When an agricultural producer experiences financial distress and files for relief in bankruptcy, rights to these payments are often vigorously contested. In particular, the question of when the payments are property of the bankruptcy estate has been an issue of controversy. At what point in the complex process of federal farm program policy does a producer have a right to payment? What factors are significant - contract performance, contract formation, implementation of the program, or the statutory enactment of the program? How far back in time does the ...