Jurisdynamics Network authors on SSRN

SSRN Author: Peter K. Yu, REVISION: Virotech Patents, Viropiracy, and Viral Sovereignty, http://www.ssrn.com/abstract=451640 (May 13, 2013)

Although there are many important intellectual property and public health developments in the United States, the domestic debate remains surprisingly disconnected from the international debate. To help bridge this disconnect, this Article discusses the interrelationship between intellectual property and public health in the context of communicable diseases. This type of disease is intentionally picked to highlight how developments abroad could easily affect what happens at home, and vice versa.

SSRN Author: Peter K. Yu, New: Taking ATRIP Down Memory Lane, http://www.ssrn.com/abstract=2263572 (May 12, 2013)

The International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) was founded in Geneva in July 1981, with the support and assistance of the World Intellectual Property Organization (WIPO). This professional association now includes hundreds of intellectual property professors and researchers from around the world. A forthcoming symposium of The WIPO Journal collects the reminiscences of the past and current ATRIP presidents. As the final contribution to

SSRN Author: Frank A. Pasquale, New: Intellectual Property and Public Health – A White Paper, http://www.ssrn.com/abstract=2259089 (May 2, 2013)

On October 26, 2012, the University of Akron School of Law's Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutio

SSRN Author: Ronen Perry, REVISION: Queues in Law, http://www.ssrn.com/abstract=2147333 (April 30, 2013)

"First in, first out" (FIFO) is an allocation principle, whereby resources are allocated to interested parties in their order of entry. FIFO and its close relatives, "first come, first served" and "first-in-time, first-in-right," have numerous legal applications. These range from traditional private law disputes concerning ownership, secured transactions, and nuisances, through more extensive allocations, as in the cases of employees' seniority benefits, mass torts, and military discharge, all

SSRN Author: Peter K. Yu, REVISION: Five Oft-repeated Questions About China's Recent Rise as a Patent Power, http://www.ssrn.com/abstract=2215008 (April 29, 2013)

Policymakers, industries, commentators and the media have widely criticized China for its failure to adequately protect intellectual property rights. In recent years, however, the discourse on intellectual property developments in China has slowly begun to change. Such a change is the most notable in the patent area. Today, China is already among the top five countries filing patent applications through the Patent Cooperation Treaty (PCT). In 2011, the number of PCT applications increased by 33.

SSRN Author: Nancy B. Rapoport, REVISION: Managing U.S. News & World Report - The Enron Way, http://www.ssrn.com/abstract=2255194 (April 26, 2013)

This essay suggests that lying about the numbers that schools report to US News is no better than the lying that Enron did about its various methods of "earnings management." It also suggests that administrators - being humans - can talk themselves into lying about the numbers for all sorts of (very bad) reasons.

SSRN Author: Andrea M. Matwyshyn, New: Twitter (R)evolution: Privacy, Free Speech and Disclosure, http://www.ssrn.com/abstract=2256129 (April 25, 2013)

Using Twitter as a case study, this paper sets forth the legal tensions faced by social networks that seek to defend privacy interests of users. Recent EC and UN initiatives have begun to suggest an increased role for corporations as protectors of human rights. But, as yet, binding rather than voluntary obligations of this kind under international human rights law seem either non-existent or highly conflicted, and structural limitations to such a shift may currently exist under both US and UK la

SSRN Author: Jim Chen, New: Force Majeure in Legal Scholarship, http://www.ssrn.com/abstract=2255155 (April 23, 2013)

Who's to blame when legal scholarship is bad? Not pedestrian, repetitive, uninspired, or poorly conceived-just bad. If those crazy Minnesotans at Constitutional Commentary are to be believed, the fault lies with us scholars, that we are overweening. The "manifestly reasonable strategy" of "taking... shocking position[s]" in the quest for tenure generates "Gresham's Law of Legal Scholarship." Warped as it is by rampant "Ph.D. envy," the market for legal scholarship values ''paradigmshak[ing]'" hy

SSRN Author: Jim Chen, New: Portraits of the Scholar as a Young Clerk, http://www.ssrn.com/abstract=2255153 (April 23, 2013)

Bob Hudec was an invaluable colleague, a kind man, and a generous friend. The experience of irrevocably losing a colleague is a new and unpleasant one for many of us at the University of Minnesota Law School. In my eleven years here, many faculty members have retired or moved to other law schools, but only Bob Hudec has passed away. When a colleague dies, especially one as treasured as Bob Hudec, there simply is no way to fill the resulting void.

SSRN Author: Jim Chen, New: Hope a Better Rate for Me, http://www.ssrn.com/abstract=2255140 (April 23, 2013)

Ratemaking, the dreariest legal expression of the dismal science, is sexy again. Once upon a time, judicially enforced constitutional restraints on the setting of public utility rates strengthened the intellectual backbone of the Lochner era. Contemporary interest in this doctrine stems from the imposition of "the duty to interconnect, to lease unbundled network elements, and to sell services for resale" on incumbent firms in the few remaining "market segments that have natural monopoly characte

SSRN Author: Jim Chen, New: Law as Industrial Policy: Economic Analysis of Law in a New Key, http://www.ssrn.com/abstract=2255150 (April 23, 2013)

If justice be the end of law, ask on. How we pose normative legal questions "limits and disposes the way in which any answer -right or wrong-may be given." Economic analysis of law has firmly established itself as a controversial but respected neorealist approach to legal criticism. Ever since the 1960 publication of Ronald Coase's pathblazing article, The Problem of Social Cost, conventional law-and-economics literature has evaluated legal rules according to a microeconomic criterion called "ef

SSRN Author: Jim Chen, New: Rational Basis Revue, http://www.ssrn.com/abstract=2255136 (April 23, 2013)

Constitutional Commentary is no stranger to legal analysis of music or to musings on legal analysis. "Seven years [have] disappear[ed] below [our] feet" since this journal last exercised its quasiconstitutional right to make bad parodies of copyrighted music. Those same seven years have lapsed since the Supreme Court lauded Creedence Clearwater Revival as "one of the greatest American rock and roll bands of all time." "Who'll stop the rain?" Ah, those seven years were an innocent time, when we

SSRN Author: Jim Chen, New: Brilliance Remembered, http://www.ssrn.com/abstract=2255133 (April 23, 2013)

Twenty years ago Daniel Farber cofounded Constitutional Commentary. Dan's essay on McCulloch v. Maryland, "Banking on National Power," concludes the twentieth volume of this journal. Among his many achievements in twenty-two years on the faculty of the University of Minnesota Law School, Dan helped secure Constitutional Commentary's place as one of America's preeminent law journals. As of 2004, Dan will be teaching full-time at the University of California at Berkeley. Once again, glitzy Califo

SSRN Author: Jim Chen, New: Book Review: Regulatory Education and its Reform, http://www.ssrn.com/abstract=2255128 (April 23, 2013)

Regulation and Deregulation: Cases and Materials, Jeffrey L. Harrison, Thomas D. Morgan & Paul R. Verkuil. St. Paul, Minn.: West Publishing Co., 1997. Pp. 567. $48.00. Ours is unquestionably an Age of Statutes. Yet the comprehensive study of statutes, the legal lifeblood of the regulatory state, is a relatively recent phenomenon. Law school courses in legislation have begun to bridge this gap. The substantive law underlying the most economically sophisticated statutes, however, continues to elu

SSRN Author: Jim Chen, New: Epiphytic Economics and the Politics of Place, http://www.ssrn.com/abstract=2255126 (April 23, 2013)

A specter is haunting academia, the specter of globalization. In Globalization and Its Losers, an essay published in the winter 2000 issue of the Minnesota Journal of Global Trade, I described legal and economic integration across borders as an epochal moment for a broad array of ecological, cultural, and economic interests. The summer 2000 issue of this journal published replies by two historians, an agricultural ethicist, and an advocate of regional self-reliance. At their mildest, my critics

SSRN Author: Jim Chen, New: Globalization and Its Losers, http://www.ssrn.com/abstract=2255123 (April 23, 2013)

Globalization marks the end of an epoch. Not merely an epoch in the colloquial sense, but an epoch in the geological sense. The spread of Homo sapiens around the earth has brought about mass extinctions and related ecological changes on a scale not seen since the Cretaceous period. In its evolutionary impact, comprehensive human colonization of the planet easily outclasses an ice age, or even twenty. The previous geological event of comparable magnitude ushered out the dinosaurs; the one befor

SSRN Author: Jim Chen, New: Preemption and Regulatory Efficiency in Federal Energy Statutes, http://www.ssrn.com/abstract=2255142 (April 23, 2013)

As local utility regulation enacted early this century proved inadequate to deal with complex concerns, Congress passed statutes formulating a national energy policy. Under the resulting programs of concurrent state and federal regulation, competing authorities sometimes clashed. In the context of federal statutes, the supremacy clause governs competing state and federal claims to authority. Under traditional doctrine, a federal statute may preempt state law in one of three ways. First, a stat

SSRN Author: Jim Chen, New: A Sober Second Look at Appellations of Origin: How the United States Will Crash France's Wine and Ch, http://www.ssrn.com/abstract=2255120 (April 23, 2013)

France regulates the production methods of certain fine foods and beverages through appellations of controlled origin, or appellations d'origine controlee (AOCS). The AOC system restricts the right to produce select wines and cheeses to a designated geographic region associated with those foods. Sparkling wine from Champagne and Roquefort cheese are but two celebrated examples. French law ensures localized control of AOCregulated products by requiring them to be processed in the same region wher

SSRN Author: Jim Chen, New: The Magnificent Seven: American Telephony's Deregulatory Shootout, http://www.ssrn.com/abstract=2255078 (April 23, 2013)

The Telecommunications Act of 1996 promised the world. It has would "promote competition and reduce regulation," "secure lower prices and bigher quality services... and encourage the rapid deployment of new telecommunications technologies." On its first occasion to review the Act's provisions on local and long-distance telephony, the Supreme Court spoke in far less glamorous terms. "[M]ost unfortunate," lamented the Justices, "for a piece of legislation that profoundly affects a crucial segment

SSRN Author: Jim Chen, New: The Mystery and the Mastery of the Judicial Power, http://www.ssrn.com/abstract=2255113 (April 23, 2013)

What do law clerks do at the Supreme Court? One day this question took me entirely by surprise. Not because of its substance: I have repeatedly answered this question ever since Justice Clarence Thomas invited me to serve as his clerk for October Term 1992. As with so much else in law, context had triumphed over content. While teaching my first-year legislation class at the University of Minnesota, I asked a student to resolve the apparent tension between Justice Antonin Scalia's willingness to

SSRN Author: Jim Chen, New: The Legal Process and Political Economy of Telecommunications Reform, http://www.ssrn.com/abstract=2255106 (April 23, 2013)

American telecommunications law as regulatory phoenix appears to smolder in repeating cycles of reform, only to rise again from its ashes. From the heyday of public utility law's regulatory compact, through "mid-life" phases oj crisis and reform, to the mix of triumph and letdown that is the Telecommunications Act of 1996, telecommunications law has passed through four distinct "ages." In each age, a dominant institution arose to address the perceived economic concerns of the day, only to run he

SSRN Author: Jim Chen, New: 'Duel' Diligence: Second Thoughts About the Supremes as Sultans of Swing, http://www.ssrn.com/abstract=2255104 (April 23, 2013)

We respond to Professor Lynn A. Baker's criticisms of our article, The Most Dangerous Justice: The Supreme Court at the Bar of Mathematics. Professor Baker fundamentally misunderstands our measure of Supreme Court voting power. Moreover, she erroneously presumes that the "median Justice" wields the bulk of the Court's power. Even if there were a median Justice, it is far from clear whether he would be the Most Dangerous Justice. We conclude with a clarification of the median voter theorem and it

SSRN Author: Jim Chen, New: The Second Coming of Smyth v. Ames, http://www.ssrn.com/abstract=2255074 (April 23, 2013)

The last time a book on regulatory policy caused this great a stir, "Bork" was a proper noun rather than an impertinent verb. Deregulatory Takings and the Regulatory Contract: The Competitive transformation of Network Industries in the United States, is almost surely the most controversial book of its kind in two decades. For the last three years, Gregory Sidak and Daniel F. Spulber have comprehensively reconceptualized public utility law as a branch of Takings Clause jurisprudence. Their aggre

SSRN Author: Jim Chen, New: The Pragmatic Ecologist: Environmental Protection as a Jurisdynamic Experience, http://www.ssrn.com/abstract=2255070 (April 22, 2013)

Among his many contributions to the field of environmental law, Professor Dan Farber is perhaps best known for his development of a systematically "pragmatic approach to environmental problems." Within the tool kit that Professor Farber has used to breach the "wall between economics and ethics," one technique merits especially close examination. Professor Farber has often stressed the centrality of "learning strategies" in an environmental enterprise marked not only by a "high degree of uncert

SSRN Author: J.B. Ruhl, REVISION: Ecosystem Services and Federal Public Lands: Start-Up Policy Questions and Research Needs, http://www.ssrn.com/abstract=1543388 (April 22, 2013)

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

SSRN Author: Jim Chen, New: Portfolio Theory as a Pattern of Timeless Moments, http://www.ssrn.com/abstract=2254244 (April 21, 2013)

Quantitative finance traces its roots to modern portfolio theory. Despite the deficiencies of modern portfolio theory, mean-variance optimization nevertheless continues to form the basis for contemporary finance. The term "postmodern portfolio theory" expresses many of the theoretical advances in financial learning since the original articulation of modern portfolio theory. Any complete overview of financial risk management must address all aspects of portfolio theory, from the beautiful symme

SSRN Author: Peter K. Yu, New: Intellectual Property Enforcement and Global Climate Change, http://www.ssrn.com/abstract=2252602 (April 18, 2013)

Issues lying at the intersection of intellectual property and climate change are hot. From the ongoing discussions under the U.N. Framework Convention on Climate Change to the recent Conference on Innovation and Climate Change held by the World Intellectual Property Organization, countries have actively explored ways to harness the intellectual property system to combat climate change and to reduce the accumulation of greenhouse gases. Notwithstanding these high profile events, intellectual p

SSRN Author: Peter K. Yu, REVISION: Are Developing Countries Playing a Better TRIPS Game?, http://www.ssrn.com/abstract=1915117 (April 17, 2013)

The Agreement on Trade-Related Aspects of Intellectual Property Rights entered into force more than 15 years ago. Although commentators have widely criticized the Agreement for its failure to address the needs, interests, conditions, and priorities of less developed countries, few have examined whether these countries have now attained greater success in shaping the development of the Agreement than they did before. This Article seeks to fill the void by examining the performance of these countr

SSRN Author: Jim Chen, New: Measuring Market Risk Under Basel II, 2.5, and III: VAR, Stressed VAR, and Expected Shortfall, http://www.ssrn.com/abstract=2252463 (April 17, 2013)

Each of the most recent accords of the Basel Committee on Banking Regulation, known as Basel II, 2.5, and II, has embraced a different primary measure of market risk in global banking regulation: traditional value-at-risk (VaR), stressed VaR, and expected shortfall. After introducing the mathematics of VaR and expected shortfall, this note will evaluate how well the reforms embraced by Basel 2.5 and III - stressed VaR and expected shortfall - have addressed longstanding regulatory concerns with

SSRN Author: J.B. Ruhl, REVISION: Designing Administrative Law for Adaptive Management, http://www.ssrn.com/abstract=2222009 (April 12, 2013)

Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation,

SSRN Author: Paul L. Caron, REVISION: Tax Advice for the Second Obama Administration, http://www.ssrn.com/abstract=2220496 (April 10, 2013)

Twenty-five of the nation's leading tax academics, practitioners, journalists, and public intellectuals gathered in Malibu, California on the Friday before President Obama's second inauguration to plead for tax reform. The papers published in this issue of the Pepperdine Law Review provide very different prescriptions for America's tax ills. But there is a unanimous diagnosis that the country's tax system is sick indeed. A re-elected president's inauguration offers a particularly p

SSRN Author: Paul L. Caron, REVISION: Occupy the Tax Code: Using the Estate Tax to Reduce Inequality and Spur Economic Growth, http://www.ssrn.com/abstract=2200270 (April 10, 2013)

Inequality has been increasing in the United States. We should care about this increase because inequality contributes to a variety of adverse social consequences that persist across generations. There is also substantial empirical evidence that inequality has a long-term negative impact on economic growth. For many decades, federal tax policy has played an important role in reducing inequality, although the impact of federal taxes on inequality has waxed and waned depending on the focus of e

SSRN Author: Peter K. Yu, REVISION: From Pirates to Partners (Episode II): Protecting Intellectual Property in Post-WTO China, http://www.ssrn.com/abstract=578585 (April 9, 2013)

In "From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century," I criticized the ineffectiveness and short-sightedness of the American foreign intellectual property policy toward China. As I argued, the coercive approach taken by the U.S. administrations created a "cycle of futility" in which China and the United States repeatedly threatened each other with trade wars, only to back down in the eleventh hour with a compromise that did not provide sustained im

SSRN Author: Jim Chen, REVISION: Postmodern Disaster Theory, http://www.ssrn.com/abstract=2141591 (April 8, 2013)

Legal preparedness for disaster consists of implementing the optimal portfolio of rules for managing catastrophic risks. This article extends the simpler model of modern disaster theory, <a href="http://ssrn.com/abstract=1910669">http://ssrn.com/abstract=1910669</a>, into a more ambitious model of postmodern disaster theory. A complete account of disaster law and policy based on an extended analogy to quantitative finance must address all aspects of that discipline, from the beautiful symmetri

SSRN Author: Peter K. Yu, REVISION: The First Decade of TRIPS in China, http://www.ssrn.com/abstract=2175385 (March 22, 2013)

This chapter reviews intellectual property developments in China in its first decade of WTO membership, focusing primarily on developments within the organization. It shows how China has transformed from a passive taker of international intellectual property norms to one that has slowly assumed the additional roles of both a norm shaker and a norm maker. The chapter begins by providing an overview of reforms China undertook in the run-up to the accession. It examines the low profile China mai

SSRN Author: Paul L. Caron, New: The Law School Crisis: What Would Jimmy McMillan Do?, http://www.ssrn.com/abstract=2231110 (March 11, 2013)

Several years ago, I co-wrote an article on applying the principles from Michael Lewis's Moneyball book to legal education. What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Tex. L. Rev. 1483 (2004). The article asked what Billy Beane would do as the dean of a law school to capitalize on the inefficiencies in legal education. Perhaps a better model for the crisis facing legal education today is Jimmy McMillan, who ran for New York Governor in 2010 with the slogan

SSRN Author: Jordan K. Paradise, REVISION: No Sisyphean Task: How the FDA Can Regulate Electronic Cigarettes, http://www.ssrn.com/abstract=2118802 (March 10, 2013)

The adverse effects of smoking have fostered a natural market for smoking cessation and smoking reduction products. Smokers have tried everything from “low” or “light” cigarettes; nicotine-infused chewing gum, lozenges and lollipops; dermal patches; and even hypnosis. The latest craze in the quest to find a safer source of nicotine is the electronic cigarette. Electronic cigarettes (e-cigarettes) have swept the internet, reaching a rapidly expanding international market. Boasting nicotin

SSRN Author: J.B. Ruhl, REVISION: Climate Change Meets the Law of the Horse, http://www.ssrn.com/abstract=2010852 (February 24, 2013)

The climate change policy debate has only recently turned its full attention to adaptation - how to address the impacts of climate change we have already begun to experience and that will likely increase over time. Legal scholars have in turn begun to explore how the many different fields of law will and should respond. During this nascent period, one overarching question has gone unexamined: how will the legal system as a whole organize around climate change adaptation? Will a new distinct fiel

SSRN Author: Peter K. Yu, REVISION: Trade Agreement Cats and Digital Technology Mouse, http://www.ssrn.com/abstract=2220278 (February 21, 2013)

In the past three decades, the copyright industries and their supportive governments have aggressively pushed for introducing high intellectual property standards into trade agreements. This book chapter examines the uneasy case of using these agreements to provide copyright protection in the digital environment. It begins by discussing two widely discussed multilateral solutions: the TRIPS Agreement and the 1996 WIPO Internet Treaties. The chapter then explores the industries' increasing push f

SSRN Author: Peter K. Yu, REVISION: Enforcement, Enforcement, What Enforcement?, http://www.ssrn.com/abstract=1948326 (February 14, 2013)

The protection and enforcement of intellectual property rights has been a very hot topic in the past few years. From the introduction of the PROTECT IP Act of 2011 to the adoption of the Anti-Counterfeiting Trade Agreement (ACTA) to a recent U.S.-China dispute before the WTO, the topic has dominated policy debates at both the domestic and international levels. While most policymakers, industry representatives, and commentators have recognized the critical importance of intellectual property enfo

SSRN Author: J.B. Ruhl, REVISION: A Summary of Present and Future Climate Adaptation Law, http://www.ssrn.com/abstract=2214001 (February 13, 2013)

In anticipation of the inevitable shift from adaptation planning to adaptation action, this chapter provides a background on climate change adaptation policy and a survey of climate impacts and adaptation responses likely to put some demand on legal institutions and rules. The chapter opens by defining the key terms and concepts of climate change adaptation as it has been discussed in major policy analyses. The chapter then summarizes the scope and focus of federal, state, local, tribal, and pri

SSRN Author: J.B. Ruhl, REVISION: The Political Economy of Climate Change Winners, http://www.ssrn.com/abstract=1953928 (February 12, 2013)

Many people and businesses in the United States stand to receive market and nonmarket benefits from climate change as it moves forward over the next 100 years. Speaking of climate change benefits is not for polite 'green' conversation, but ignoring them — as climate policy dialogue and legal scholarship consistently have — will not make them go away. It is important to take climate change benefits into account if they lead people and businesses to believe that climate change will not be so b

SSRN Author: Jim Chen, New: Measuring the Downside Risk of Law School Attendance, http://www.ssrn.com/abstract=2214337 (February 11, 2013)

Legal education has come under severe political pressure, both external and internal, for its perceived failure to deliver tangible economic benefits to law students. But legal education is not alone. The financial crisis of 2008 and the economic recession triggered by it have forced many other industries, to reevaluate their balance of costs and benefits. Many institutions, even entire industries, must now endure stress-testing in the form of debt-to-income or debt-to-capital ratios. This d

SSRN Author: Alfred L. Brophy, REVISION: Reading Professor Obama: Race and the American Constitutional Tradition, http://www.ssrn.com/abstract=2131395 (February 6, 2013)

“Reading Professor Obama” mines Barack Obama's syllabus on “Current Issues in Racism and the Law” for evidence of his beliefs about race, law, and jurisprudence. The syllabus for the 1994 seminar at the University of Chicago, which provides the reading assignments and structure for the course, has been available on the New York Times website since July 2008. Other than a few responses solicited by the New York Times when it published the syllabus, however, there has been little attent

SSRN Author: J.B. Ruhl, New: Managing Systemic Risk in Legal Systems, http://www.ssrn.com/abstract=2212212 (February 5, 2013)

The American legal system has proven remarkably robust even in the face vast and often tumultuous political, social, economic, and technological change. Yet our system of law is not unlike other complex social, biological, and physical systems in exhibiting local fragility in the midst of its global robustness. Understanding how this “robust yet fragile” (RYF) dilemma operates in legal systems is important to the extent law is expected to assist in managing systemic risk — the risk of larg

SSRN Author: Tom W. Bell, New: The Constitution as if Consent Mattered, http://www.ssrn.com/abstract=2208731 (January 30, 2013)

Libertarians do not fit into the left-right spectrum very comfortably; by their own account, they transcend it. This brief paper, written for a Chapman Law Review symposium on libertarian legal theory, argues that libertarians should likewise transcend the dichotomy currently dividing constitutional theory. The Left tends to regard the Constitution as adaptable to current needs and defined by judicial authority; the Right tends to search the historical record for the Constitution's original

SSRN Author: Daniel A. Farber, REVISION: Climate Policy in a System of Divided Powers: Dealing with Carbon Leakage and Regulatory Linkage, http://www.ssrn.com/abstract=2174024 (January 28, 2013)

In the absence of comprehensive federal climate legislation, state governments and the executive branch have moved forward with efforts to reduce greenhouse gases. Two important components of effective policies are (1) tools to limit the potential for carbon emissions to shift outside a jurisdiction (carbon leakage), and (2) cross-boundary linkages to improve effectiveness and reduce costs. For instance, states may adopt life cycle analysis as part of regulations or carbon taxes, and they may l

SSRN Author: Chad M. Oldfather, New: Limitations (A Response to Judge Posner), http://www.ssrn.com/abstract=2206568 (January 26, 2013)

In his article Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views, Judge Richard Posner urges his judicial colleagues to be mindful of their limitations - the limitations of his knowledge of the law, the limitations of his knowledge of the case at hand, the limitations of his knowledge of the real-world context of the case, and the limitations (or distortions) of his thinking that result from the biases that all judges bring to judging. This essay, part of a symp

SSRN Author: Chad M. Oldfather, REVISION: Micro-Symposium on Orin Kerr's 'A Theory of Law', http://www.ssrn.com/abstract=2202483 (January 23, 2013)

For more than a century, careful readers of the Green Bag have known that “[t]here is nothing sacred in a theory of law...which has outlived its usefulness or which was radically wrong from the beginning...The question is What is the law and what is the true public policy?” Professor Orin Kerr bravely, creatively, and eloquently answered that question in his article, “A Theory of Law,” in the Autumn 2012 issue of the Green Bag. Uniquely among all theories of law that I know of, Kerr's

SSRN Author: Elizabeth A. Weeks, REVISION: Plunging Into Endless Difficulties: Medicaid and Coercion in National Federation of Independent Bus, http://www.ssrn.com/abstract=2128760 (January 10, 2013)

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise. For the first time in its history, the Court held fede

SSRN Author: Gregory N. Mandel, REVISION: The Polarizing Impact of Science Literacy and Numeracy on Perceived Climate Change Risks, http://www.ssrn.com/abstract=2193133 (January 10, 2013)

Seeming public apathy over climate change is often attributed to a deficit in comprehension. The public knows too little science, it is claimed, to understand the evidence or avoid being misled. Widespread limits on technical reasoning aggravate the problem by forcing citizens to use unreliable cognitive heuristics to assess risk. An empirical study found no support for this position. Members of the public with the highest degrees of science literacy and technical reasoning capacity were not the

SSRN Author: Gregory N. Mandel, REVISION: Proxy Signals: Capturing Private Information for Public Benefit, http://www.ssrn.com/abstract=2030414 (January 9, 2013)

This Article presents an original empirical methodology to identify which patent laws will best promote optimal incentives to innovate for society. Vociferous debates over patent reform pit the United States largest innovation industries against each other in a dispute concerning whether stronger or weaker patent rights are necessary to promote innovation. Past efforts to answer this question have been thwarted by an inability to parse the impossibly complex social and legal relationship between

SSRN Author: Gaia Bernstein, New: Unintended Consequences: Prohibitions on Gamete Donor Anonymity and the Fragile Practice of Surrogac, http://www.ssrn.com/abstract=2190992 (December 19, 2012)

Prohibitions on anonymous egg and sperm donations are a growing international trend. U.S. law does not prohibit anonymous gamete donations. However, an expanding movement is advocating a shift to an open identity regime that will ban anonymity. My earlier study of three jurisdictions: Sweden, Victoria (Australia) and the United Kingdom, which adopted prohibitions on gamete donor anonymity, showed that these prohibitions played a role in creating shortages in egg and sperm supplies. Adoption of

SSRN Author: Jim Chen, Update: Inflation-Based Adjustments in Federal Civil Monetary Penalties, http://www.ssrn.com/abstract=2148650 (December 12, 2012)

Civil monetary penalties play a vital role in federal law. The Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. No. 101-410, prescribes rules for the regular adjustment of federal civil monetary penalties in response to inflation. Three statutory defects have undermined the Inflation Adjustment Act. First, the Act's 10 percent cap on initial adjustments creates an "inflation gap" relative to the level that would properly reflect inflation. Second, the Act directs federal age
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SSRN Author: Jordan K. Paradise, REVISION: Patient Advocacy Group Collaboration in Genetic Research and The Scope of 'Joint Inventorship' Und, http://www.ssrn.com/abstract=983115 (December 5, 2012)

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

SSRN Author: Nancy B. Rapoport, Update: Brief of Amici Curiae, In re David Marshall Brown, Case No. 12-cv-60016-KAM, United States District , http://www.ssrn.com/abstract=2038267 (December 3, 2012)

This amicus brief argues that, when the only objection to a proof of claim in an individual debtor's bankruptcy case is that some paperwork is missing, but not that the amount is incorrect, filing an objection that moves to strike the entire claim is a violation of Bankruptcy Rule 9011 and sanctions should be upheld.
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SSRN Author: J.B. Ruhl, REVISION: Supply and Demand: Barriers to a New Energy Future, http://www.ssrn.com/abstract=2180897 (December 1, 2012)

Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon-constrained world. Accounting

SSRN Author: J.B. Ruhl, REVISION: Panarchy and the Law, http://www.ssrn.com/abstract=2181114 (November 30, 2012)

Panarchy theory focuses on improving theories of change in natural and social systems to improve the design of policy responses. Its central thesis is that successfully working with the dynamic forces of complex adaptive natural and social systems demands an active adaptive management regime that eschews optimization approaches that seek stability. This is a new approach to resources management, and yet no new theory of how to do things in environmental and natural resources management, particul

SSRN Author: J.B. Ruhl, New: Ecosystem Services, Ecosystem Resilience, and Resilience of Ecosystem Management Policy, http://www.ssrn.com/abstract=2181093 (November 28, 2012)

Two emerging theoretical models have captivated ecological science and policy over the past decade. One is the concept of ecosystem services, which focuses on the benefits that people derive from ecosystems, including the flows of economically valuable services to human populations (Costanza 1997, Daily 1997, Ruhl et al. 2007; Ruhl and Salzman 2007). The other is resilience theory, which explores how natural and social systems withstand disturbances over time (Gunderson and Holling 2002, Gunders

SSRN Author: Peter K. Yu, REVISION: The Confucian Challenge to Intellectual Property Reforms, http://www.ssrn.com/abstract=2173094 (November 28, 2012)

Written for a special issue on intellectual property and culture, this essay examines the longstanding claim that culture presents a major barrier to intellectual property reforms. In the context of Asia -- China, in particular -- that claim invokes Confucianism, a non-Western culture, to account for the region's -- or the country's -- continued struggle with massive piracy and counterfeiting problems. The claim draws on a century-old tradition of condemning Confucianism for being antithetical t

SSRN Author: J.B. Ruhl, REVISION: Harmonizing Commercial Wind Power and the Endangered Species Act through Administrative Reform, http://www.ssrn.com/abstract=2070891 (November 27, 2012)

This Article explores the intersection of utility-scale wind power development and the Endangered Species Act, which thus far has not been as happy a union as one might expect. Part I provides background on how the ESA and wind power have met in policy, permitting, and litigation. Part II then examines whether wind power (and other renewable energy sources) can and should receive a “green pass” under the ESA given its unquestioned climate change mitigation benefits, concluding that doing so

SSRN Author: Daniel A. Farber, REVISION: Sustainable Consumption, Engery Policy and Individual Well-being, http://www.ssrn.com/abstract=1918204 (November 27, 2012)

Environmental law focuses on regulating the production of energy and goods. Less attention has been given to reducing the environmental footprint of consumption. This Article brings together several strands of research, including psychological and economic research on subjective well-being; research on energy efficiency; writings by urban planners on sustainable communities; and recent work on individual behavior and sustainability. The conclusion, in a nutshell, is that changes in consumption

SSRN Author: J.B. Ruhl, New: Harmonizing Distributed Energy and the Endangered Species Act, http://www.ssrn.com/abstract=2181024 (November 26, 2012)

At the risk of making a mountain out of a molehill, this Article suggests that the Endangered Species Act could present complications for the rapid and widespread deployment of distributed energy generation. But with some proactive effort on the part of the federal and interested state and local governments, such complications are unnecessary and could amount to no more than a molehill after all. Part I opens by framing the distributed energy problem for the ESA, showing how the proliferation of

SSRN Author: Peter K. Yu, REVISION: Intellectual Property Training and Education for Development, http://www.ssrn.com/abstract=2151285 (November 13, 2012)

Forthcoming from a symposium addressing the need to construct a positive policy and research agenda for international intellectual property law, this article explores ways to improve the design and delivery of intellectual property training and educational programs. The article draws on the author's experience as the rapporteur for the International Roundtable on WIPO Development Agenda for Academics. The article begins by reflecting on WIPO's changing orientation, outlining the principles

SSRN Author: Peter K. Yu, REVISION: The ACTA Committee, http://www.ssrn.com/abstract=2154500 (November 13, 2012)

In discussing the Anti-Counterfeiting Trade Agreement (ACTA), most policymakers and commentators have focused on either the lack of transparency and accountability in the negotiation process or the problems raised by the TRIPS-plus standards included in the Agreement. While these issues deserve our urgent attention, it is important not to ignore the institutional arrangements laid out in Chapter V of the Agreement. In the long run, this chapter is likely to become the most far-reaching and dange

SSRN Author: Susan A. Schneider, New: Update to Food, Farming, and Sustainability, http://www.ssrn.com/abstract=2167913 (October 28, 2012)

This article provides updated information, links to new resources, and suggestions for teaching an agricultural law survey class using the book, Food, Farming and Sustainability: Readings in Agricultural Law.

SSRN Author: Jim Chen, Update: Scholarships at Risk: The Mathematics of Merit Stipulations in Law School Financial Aid, http://www.ssrn.com/abstract=2133018 (October 26, 2012)

Many law schools in the United States condition financial aid grants on the recipients' maintenance of a certain grade point average. These merit stipulations require students to meet or exceed minimum academic standards in order to keep all or part of their financial aid. Law students should take merit stipulations into account when they decide whether to accept an offer of admission paired with a conditional grant of financial aid. By all accounts, they do not. Law schools should transparent
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SSRN Author: Arthur J. Cockfield, REVISION: Canada, http://www.ssrn.com/abstract=2145558 (October 23, 2012)

This chapter reviews some of the main features of Canada's Goods and Services Tax.

SSRN Author: Jordan K. Paradise, REVISION: Synthetic Biology: Does Re-Writing Nature Require Re-Writing Regulation?, http://www.ssrn.com/abstract=1975054 (October 23, 2012)

Technological advancements in the life sciences are continually pressing forward despite frequent and vocal resistance. Examples of such advancements include reproductive technologies, genetics, stem cell research, nanotechnology, and now synthetic biology. In May 2010, the J. Craig Venter Institute, a multidisciplinary scientific organization led by one of the first scientists to sequence the human genome, announced in the journal Science the creation of the first synthetic cell — a man-made,

SSRN Author: Peter K. Yu, REVISION: The Alphabet Soup of Transborder Intellectual Property Enforcement, http://www.ssrn.com/abstract=2054950 (October 23, 2012)

In the past few years, policymakers, academic commentators, consumer advocates, civil liberties groups, and user communities have expressed grave concerns about the steadily increasing levels of enforcement of intellectual property rights. Many of these concerns relate to the "alphabet soup" of transborder intellectual property enforcement, which consists of the following: SECURE, IMPACT, ACTA, TPP, COICA, PIPA, SOPA, and OPEN. Published in the inaugural issue of Drake Law Review Discourse, t

SSRN Author: Peter K. Yu, REVISION: ACTA and Its Complex Politics, http://www.ssrn.com/abstract=1953899 (October 23, 2012)

Written for a special issue on the politics of intellectual property, this article examines the "country club" approach the negotiating parties of the Anti-Counterfeiting Trade Agreement (ACTA) embraced to establish new and higher international intellectual property enforcement standards. It points out that the agreement is flawed not only because it is a country club agreement but also because it is a bad country club agreement. The article then situates ACTA in the context of a recent trend

SSRN Author: Peter K. Yu, REVISION: The Middle Intellectual Property Powers, http://www.ssrn.com/abstract=2144505 (October 22, 2012)

Commissioned by a project funded by the Hague Institute for the Internationalisation of Law, this chapter examines a group of middle-income countries that have played or will play important roles in the international intellectual property regime. It begins by noting the challenges in identifying intellectual property developments in middle-income countries, due in large part to their divergent needs, interests, conditions and priorities. The chapter then contends that a smaller sub-set of thi

SSRN Author: Peter K. Yu, REVISION: The Middle Kingdom and the Intellectual Property World, http://www.ssrn.com/abstract=1934887 (October 22, 2012)

Delivered as the keynote opening address at the Symposium on "China's Role in Regulating the Global Information Economy," this Article scrutinizes China's participation in the international intellectual property regime and its role in both the WTO and WIPO. It begins by discussing China's engagement with international intellectual property norms before its accession to the WTO in December 2001. It points out that China is not a "norm breaker" one typically infers from its disappointing record of

SSRN Author: Peter K. Yu, REVISION: Intellectual Property and Asian Values, http://www.ssrn.com/abstract=1945104 (October 22, 2012)

From Niall Ferguson to Fareed Zakaria, commentators have paid growing attention to the rise of Asia and its implications for the West. Recent years have also seen the emergence of a growing volume of literature on intellectual property developments in Asia, in particular China and India. Few commentators, however, have explored whether Asian countries will take unified positions on international intellectual property law and policy. Commissioned for the Inaugural International Intellectual Pr

SSRN Author: Peter K. Yu, REVISION: The Rise and Decline of the Intellectual Property Powers, http://www.ssrn.com/abstract=2076894 (October 22, 2012)

In the past decade, China has experienced many impressive economic and technological developments. Intriguingly, the narrative about piracy and counterfeiting there is rarely linked to the narrative about the China's technological rise. To provide a more comprehensive picture, this article brings together these two different narratives to explore what their combination would mean for the United States and its intellectual property industries. Delivered as the keynote luncheon address at the S

SSRN Author: Peter K. Yu, REVISION: Building the Ladder: Three Decades of Development of the Chinese Patent System, http://www.ssrn.com/abstract=2159011 (October 22, 2012)

In the past three decades, China has been very successful in developing its patent system. In 2011, the country is among the top five countries filing patent applications through the Patent Cooperation Treaty, behind only the United States, Japan and Germany. Among all the applicants, ZTE Corp. and Huawei Technologies, respectively, had the largest and third largest number of PCT applications, with Panasonic ranking in the second. With significant backing from the Chinese government and the anti

SSRN Author: Jim Chen, New: Bioprospect Theory, http://www.ssrn.com/abstract=2164848 (October 21, 2012)

Conventional wisdom treats biodiversity and biotechnology as rivalrous values. The global south is home to most of earth's vanishing species, while the global north holds the capital and technology needed to develop this natural wealth. The south argues that intellectual property laws enable the industrialized north to commit biopiracy. By contrast, the United States has characterized calls for profit-sharing as a threat to the global life sciences industry. Both sides magnify the dispute,

SSRN Author: Ronen Perry, REVISION: Everything is Foreseen and the Negligence is Given, http://www.ssrn.com/abstract=978538 (October 19, 2012)

The article critically evaluates the reasoning of the Supreme Court in the Clifford rehearing, emphasizing the judicial expansion of tort liability, especially in the context of medical treatment. Part A criticizes the court's reasoning with regard to the defendant's lack of reasonable care. First, the court used a utilitarian-economic rhetoric, but misapplied the economic methodology. Second, the court found that not-implementing a superior medical technique, i.e. one that least discomforts the

SSRN Author: Ronen Perry, REVISION: The Limits of Judicial Creativity, http://www.ssrn.com/abstract=908338 (October 19, 2012)

This Article outlines the limits of judicial creativity, through a critical analysis of the Supreme Court's decision in Serdyuk v. General Military Prosecutor. In that case the appellant was called up for mandatory military service after the limitation period for his conscription had expired. Chief Justice Barak opined that section 49 of the Security Service Act, as interpreted in long-standing decisions of the Court, extended the limitation period for conscription to the extent that pre-conscri

SSRN Author: Ronen Perry, REVISION: Ranking Hebrew Law Reviews: Theoretical Foundations and a Preliminary Empirical Study, http://www.ssrn.com/abstract=908334 (October 19, 2012)

In recent decades several scholars have attempted to rank American law reviews using various methods, quantitative and qualitative. No such attempt has been made with regard to Hebrew law reviews so far. The purpose of the article is twofold. First it offers theoretical foundations for a continuous ranking of law reviews in general, and of Hebrew law reviews in particular. It analyses the various methods employed in the American literature, and rejects those based on author prominence, surveys,

SSRN Author: Ronen Perry, REVISION: Legal Citation Rules: Reflections on the Formation of Discourse Norms, http://www.ssrn.com/abstract=1025530 (October 19, 2012)

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,

SSRN Author: Ronen Perry, REVISION: Israel, http://www.ssrn.com/abstract=2163130 (October 19, 2012)

This is a pre-edited draft of the Israeli report to the Tort and Insurance Law Yearbook. Because the last Israeli report was published in the 2002 Yearbook, this chapter covers a longer than usual period of time. It critically evaluates notable developments in Israeli tort law. The first Part focuses on recent and proposed legislative reforms. It discusses, inter alia, the proposed Israeli Civil Code, tort liability of the state, public authorities, and public servants, environmental legislation

SSRN Author: Tom W. Bell, REVISION: Pirates in the Family Room: How Performances from Abroad, to U.S. Consumers, Might Evade Copyright L, http://www.ssrn.com/abstract=1816726 (October 10, 2012)

What will international copyright law look like in ten years? It will doubtless offer many different facets and will, as at present, elude any comprehensive portrait. This brief paper thus focuses on just one plausible and interesting scenario: Parties overseas will come to offer unauthorized performances of copyrighted works to consumers in the United States, a practice that will rouse the ire of copyright holders but that the Copyright Act will do little to stop. Depending on where the tra

SSRN Author: Elizabeth A. Weeks, REVISION: Death Panels and the Rhetoric of Rationing, http://www.ssrn.com/abstract=2147468 (September 21, 2012)

This essay offers an explanation for the United States' continued resistance to universal health care as grounded in two taboos: taxation and rationing. Even we were willing to pay more in taxes to directly subsidize the cost of medical care for those in need, rather than our current system of indirect subsidization through private insurance risk-pooling and cost-shifting, we still would face the unavoidable reality of resource limitations. Attempts to limit resource consumption, however, have b

SSRN Author: Nancy B. Rapoport, Update: Black Swans, Ostriches, and Ponzi Schemes, http://www.ssrn.com/abstract=2131393 (September 20, 2012)

This essay discusses the relative culpability of the people who invested in Bernie Madoff's Ponzi scheme as well as some of the legal opinions in the case.
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SSRN Author: Peter K. Yu, REVISION: Intellectual Property and Human Rights in the Nonmultilateral Era, http://www.ssrn.com/abstract=1926102 (September 20, 2012)

In the past decade, countries have actively established bilateral, plurilateral and regional trade and investment agreements, such as the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement. Although commentators have examined the conflict and tension between intellectual property and human rights in the past, the arrival of these agreements has ushered in a new era of nonmultilateralism that warrants a reexamination of the complex interrelationship between intellectu

SSRN Author: Peter K. Yu, REVISION: Region Codes and the Territorial Mess, http://www.ssrn.com/abstract=2026737 (September 20, 2012)

Tourists, frequent travelers, and foreign film aficionados hate DVD region codes with a passion. Written for the 30th Anniversary Symposium of the Cardozo Arts & Entertainment Law Journal, this article critically examines the expediency of using region-based restrictions to protect copyrighted media content. The article begins by closely examining four justifications for the deployment of DVD region codes: sequential release; price discrimination; distribution and licensing agreements; and ce

SSRN Author: Elizabeth A. Weeks, REVISION: Employers United: An Empirical Analysis of Corporate Political Speech in the Wake of the Affordable , http://www.ssrn.com/abstract=2138828 (September 17, 2012)

Is the Patient Protection and Affordable Care Act (ACA) bad for business? Did the countries' most prominent companies game the Securities and Exchange Commission (SEC) disclosure process to make negative political statements about ObamaCare? Immediately following the ACA's enactment on March 23, 2010, a number of companies drew scrutiny for issuing SEC filings writing off millions – and in AT&T's case, one billion dollars – against expected earnings for 2010 alone, based on a single, discret

SSRN Author: Arthur J. Cockfield, New: Surveillance as Law, http://www.ssrn.com/abstract=2145559 (September 15, 2012)

Since 9/11, many governments have amended their laws to make it easier for state actors to watch us for security (and efficiency) purposes. As discussed by Surveillance Studies researchers and others, at the same time surveillance technology developments have made it easier and less costly for the private sector and government to compile detailed profiles about us. When government surveillance undermines important democratic practices like privacy, the surveillance itself operates independently

SSRN Author: Arthur J. Cockfield, New: Taxing Foreign Direct Investment in a Non-Cooperative Setting: Contributions by Alex Easson, http://www.ssrn.com/abstract=2145505 (September 13, 2012)

This chapter reviews contributions by the late Alex Easson to the ongoing debate regarding optimal tax laws and policies for foreign direct investment. A theme running through many of Easson's works is that, to discern this optimal policy with respect to taxing foreign direct investment in a non-cooperative setting, tax law scholars should integrate both the underlying economic theories and the relevant political, historical, cultural, or other realities. In particular, Easson focused on how t

SSRN Author: Arthur J. Cockfield, New: Optimal Climate Change Tax Policy for Small Open Economies, http://www.ssrn.com/abstract=2145556 (September 13, 2012)

What are the best climate change tax policies for governments with relatively small open economies such as the Canadian one? This chapter assesses recent Canadian government climate change tax policy initiatives, discusses the merits of carbon taxes versus cap and trade solutions then considers the constraints imposed on optimal climate change (or global warming) tax policy by increasing regional and global economic interdependence. The perhaps obvious conclusion is that governments with small

SSRN Author: Tom W. Bell, REVISION: Copyright as Intellectual <S>Property</S> Privilege, http://www.ssrn.com/abstract=1023735 (September 6, 2012)

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 m

SSRN Author: J.B. Ruhl, REVISION: The Endangered Species Act's Fall from Grace in the Supreme Court, http://www.ssrn.com/abstract=1953339 (September 4, 2012)

Thirty-five years ago, the Endangered Species Act (ESA) had as auspicious a debut in the United States Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended “to halt and reverse the trend toward species extinction, whatever the cost” and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the

SSRN Author: Chad M. Oldfather, REVISION: Judging, Expertise, and the Rule of Law, http://www.ssrn.com/abstract=1799568 (September 1, 2012)

Though we live in an era of hyper-specialization, the judiciary has for the most part remained the domain of generalists. Specialized courts exist, however, and commentators regularly claim that further judicial specialization is desirable or inevitable. Yet recent years have witnessed the beginning of a backlash against the increasing division of intellectual labor, such that it is appropriate to question the merits of judicial specialization. This article engages the existing literature on jud

SSRN Author: Chad M. Oldfather, New: Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Method, http://www.ssrn.com/abstract=2139022 (August 31, 2012)

The increasing availability of digital versions of court documents, coupled with increases in the power and sophistication of computational methods of textual analysis, promises to enable both the creation of new avenues of scholarly inquiry and the refinement of old ones. This Article advances that project in three respects. First, it examines the potential for automated content analysis to mitigate one of the methodological problems that afflicts both content analysis and traditional legal sch

SSRN Author: Jim Chen, REVISION: Standing in the Shadows of Giants: The Role of Intergenerational Equity in Telecommunications Reform, http://www.ssrn.com/abstract=2134524 (August 25, 2012)

This article addresses the role of intergenerational equity in telecommunications reform. It examines two specific controversies through the lens of intergenerational justice. Stranded cost recovery and expanded universal service support should be analyzed as explicit wealth transfers across generational lines. These policies reflect deep disagreement over how telecommunications law can best reconcile claims by competing generations. Stranded cost recovery proceeds from the assumption that futur

SSRN Author: Jim Chen, REVISION: Merger to Monopsony: AT&T, T-Mobile, and the Clayton Act, http://www.ssrn.com/abstract=2130962 (August 25, 2012)

In a pivotal antitrust decision, Cellular South, Inc. v. AT&T Inc., 821 F. Supp. 2d 308 (D.D.C. 2011), the United States District Court for the District of Columbia allowed Sprint and Cellular South to pursue their suits to enjoin AT&T's proposed acquisition of T-Mobile. These suits posed a significant barrier to the merger of AT&T and T-Mobile. The ability of Sprint and Cellular South to pursue their claims represents a modest but important victory against the domination of the American wireles

SSRN Author: Jim Chen, REVISION: The Echoes of Forgotten Footfalls: Telecommunications Mergers at the Dawn of the Digital Millennium, http://www.ssrn.com/abstract=896303 (August 25, 2012)

The Telecommunications Act of 1996 promised to promote competition and reduce regulation, secure lower prices and higher quality services . . . and encourage the rapid deployment of new telecommunications technologies. One decade later, the Act has drawn sharp criticism for having prompted a wave of mergers among incumbent carriers without having generated a corresponding increase in consumer welfare. For instance, the very sort of merger that was once considered unthinkable - a reunification o

SSRN Author: Andrea M. Matwyshyn, REVISION: Generation C: Childhood, Code, and Creativity, http://www.ssrn.com/abstract=2126858 (August 24, 2012)

Four conflicting legal paradigms of childhood are visible among the four bodies of law that control digital spaces — those of contract, copyright, free speech, and data privacy/information security — and the tension among these paradigms is becoming increasingly unsustainable. As online business models become progressively more data intensive, the “breathing room” that childhood has been afforded traditionally is eroding. This article proposes a legal paradigm of childhood that simul