Jurisdynamics Network authors on SSRN

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%SOURCENAMEESCAPED%, New: Copyright Porn Trolls, Wasting Taxi Medallions, and the Propriety of 'Property', http://www.ssrn.com/abstract=2527662 (November 20, 2014)

What happens when the government creates privileges that have powers rivaling those that the common law accords to property? Recent events in two seemingly unrelated areas suggest a troubling answer to that question. First, in copyright, porn trolls have sued thousands of John Does for allegedly participating in illegal file sharing. These suits evidently seek not judicial vindication but merely the defendants' identities, which the plaintiffs then use to reap settlement payments from guilty and innocent alike. Second, taxi drivers in cities across the world have launched legal, political, and physical attacks against Uber and other networked transportation services, accusing their new competitors of stealing customers and destroying the value of taxi medallions. Both conflicts arise from the same basic problem: copyrights and taxi medallions more resemble privileges than property. They not only lack property's natural, customary, and common law roots; they also suffer from ...
%SOURCENAMEESCAPED%, REVISION: Climate Adaptation Law, http://www.ssrn.com/abstract=2514173 (November 18, 2014)

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. Part II defines the key concepts and terms of climate change adaptation as it has been discussed in major policy analyses. Part III then summarizes the scope and focus of federal, state, local, tribal, and private climate change adaptation planning initiatives. Part IV reviews the current law of climate change adaptation, which as mentioned above is not yet extensive. What few morsels of legal initiative exist break down into five types: (1) coastal land use controls; (2) environmental impact assessment programs; (3) corporate disclosure requirements; (4) endangered species protection; and (5) anti-adaptation measures. Part VI surveys the potential legal issues climate change adaptation could spark, organized ...
%SOURCENAMEESCAPED%, REVISION: Challenges to the Development of a Human Rights Framework for Intellectual Property, http://www.ssrn.com/abstract=2517854 (November 10, 2014)

Since the establishment of the WTO TRIPS Agreement, government officials, international intergovernmental organizations, civil society groups, judges, academic commentators and the media have focused considerable attention on the interplay of intellectual property and human rights. In the mid-2000s, scholars have begun advocating the development of a human rights framework for intellectual property law and policy. As I pointed out in earlier works, such a framework will not only be socially beneficial, but will also enable countries to develop a balanced intellectual property system that takes international human rights obligations into consideration. While the development of a human rights framework for intellectual property is important, skeptics have warned about the danger of an "arranged marriage" between intellectual property and human rights. Although their concerns are understandable, it may be too late to deny the protection of human rights-based interests in ...
%SOURCENAMEESCAPED%, New: Capital's Offense: Law's Entrenchment of Inequality, http://www.ssrn.com/abstract=2520251 (November 8, 2014)

Piketty’s Capital in the Twenty-First Century is a rare scholarly achievement. It weaves together description and prescription, facts and values, economics, politics, and history, with an assured and graceful touch. So clear is Piketty’s reasoning, and so compelling the enormous data apparatus he brings to bear, that few can doubt he has fundamentally altered our appreciation of the scope, duration, and intensity of inequality. This review explains Piketty’s analysis and its relevance to law and social theory, drawing lessons for the re-emerging field of political economy. The university enables interdisciplinary work, and political economy is an ideally hybrid discursive space for this process of mutual inspiration and correction. Lawyers are particularly well-suited to the task of studying political economy, because we are the ones drafting, interpreting, and applying the rules governing the interface between state actors and firms. Integrating the long-divided fields of politics ...
%SOURCENAMEESCAPED%, REVISION: 'May the Odds Be Ever in Your Favor': Lotteries in Law, http://www.ssrn.com/abstract=2494550 (November 4, 2014)

Throughout history, lotteries have been used in numerous legal contexts. However, legal theorists have rarely discussed the role of randomization in law, and have never done so systematically and comprehensively. Against this backdrop, the Article has three underlying goals. First, it fills the aforementioned gap by providing a theoretical framework for assessing lotteries’ role in legal resource allocation. It innovatively integrates fairness and efficiency concerns, critically evaluating and applying insights from various disciplines, including economics, philosophy, political science, psychology, and theology. This multidisciplinary framework — of unprecedented breadth and complexity — provides lawyers and policymakers with a powerful analytical tool for assessing the possible use of random allocation schemes. Second, the Article recognizes the importance and highlights the pervasiveness of lotteries in law. It does so by analyzing and appraising the historical and present role of ...
%SOURCENAMEESCAPED%, REVISION: Gender Biases in Perception of Judgments, http://www.ssrn.com/abstract=2097522 (November 4, 2014)

Many studies have explored the effect of judges’ characteristics, such as gender or ethnicity, on their own decisions and perceptions. For example, some studies focused on the relationship between judges’ gender and their judgments on sexually based offenses. None has studied whether such characteristics affect people’s perceptions of the judgments. This question is important, inter alia, because the frequently heard argument that the judiciary must be ‘representative’ or ‘reflective of society’ is often linked to the assumption that representation increases public trust in the judiciary. Representation leads to trust only if members of a specific group have a greater trust in other members of the same group. Alas, empirical studies have not yet examined whether trust is actually dependent on judges’ identities. It this article, we wish to study whether men and women perceive judgments concerning gender-charged events differently, especially in view of the judge’s gender. More ...
%SOURCENAMEESCAPED%, REVISION: Challenges to the Development of a Human-Rights Framework for Intellectual Property, http://www.ssrn.com/abstract=2517854 (November 2, 2014)

Since the establishment of the WTO TRIPS Agreement, government officials, international intergovernmental and nongovernmental organizations, judges, academic commentators and the media have focused considerable attention on the interplay of intellectual property and human rights. In the mid-2000s, scholars have begun advocating the development of a human rights framework for intellectual property law and policy. As I pointed out elsewhere, such a framework would not only be socially beneficial, but would also enable countries to develop a balanced intellectual property system that takes international human rights obligations into consideration. While the development of a human rights framework for intellectual property is important, skeptics have expressed concern over the danger of an "arranged marriage" between intellectual property and human rights. Although this concern is understandable, it may be too late to deny the protection of human-rights-based interests in ...
%SOURCENAMEESCAPED%, REVISION: International Technology Contracts, Restrictive Covenants and the UNCTAD Code, http://www.ssrn.com/abstract=2515234 (October 31, 2014)

One set of historical developments that will allow us to gain unique insight into the international debate on trade secrets and restrictive covenants concerns the negotiation of the International Code of Conduct on the Transfer of Technology. Established under UNCTAD's auspices, this Code aimed to remove restrictive business practices that stifled technology transfer and economic development in developing countries. Although the UNCTAD Code was not adopted after close to a decade of negotiations, it has important legacies in the area of intellectual property and competition laws (including the WTO TRIPS Agreement). A close study of the negotiations will also enable us to anticipate the challenges concerning the push for reform to strengthen the cross-border protection of workplace knowledge. This chapter begins by outlining the various restrictive business practices that are commonly written into international technology contracts between transnational firms and firms or ...
%SOURCENAMEESCAPED%, New: Interview on the Black Box Society, http://www.ssrn.com/abstract=2516442 (October 31, 2014)

Hidden algorithms drive decisions at major Silicon Valley and Wall Street firms. Thanks to automation, those firms can approve credit, rank websites, and make myriad other decisions instantaneously. But what are the costs of their methods? And what exactly are they doing with their digital profiles of us? Leaks, whistleblowers, and legal disputes have shed new light on corporate surveillance and the automated judgments it enables. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only scratched the surface of troublingly monopolistic and exploitative practices. Drawing on the work of social scientists, attorneys, and technologists, The Black Box Society offers a bold new account of the political economy of big data. Data-driven corporations play an ever larger role in determining opportunity and risk. But they depend on ...
%SOURCENAMEESCAPED%, New: Ecosystem Services, Ecosystem Resilience, and Resilience of Ecosystem Management Policy, http://www.ssrn.com/abstract=2514427 (October 26, 2014)

Ecosystem services theory and resilience theory have both gained tremendous stock in ecosystem management policy over the past decade. Each resonates firmly in the modern conception of ecosystems as complex adaptive systems. Ecosystem services theory merges the disciplines of ecology, geography, and economics to gain a better understanding of how complex ecological landscapes produce a natural economy that sustains human and social capital. Resilience theory studies the social-ecological interface to gain a better understanding of how dynamic forces in nature affect social systems, and vice versa. Standing alone, each of these theoretical models has established substantial independent credibility throughout academic, government, and private research bodies. Less attention has been paid, however, to the relationship between ecosystem services theory and resilience theory. Are the two mutually antagonistic, or will one support application of the other? How will knowing about one ...
%SOURCENAMEESCAPED%, New: Ecosystem Services and Ecosystem Management-How Good a Fit?, http://www.ssrn.com/abstract=2514400 (October 24, 2014)

The concepts of ecosystem management and ecosystem services are both firmly implanted in natural resources policy dialogue and as focal points of scientific research, though each has had its detractors and difficulties gaining traction in concrete regulatory programs. Yet little attention has been paid to how they relate, particularly in a way relevant to Grumbine’s call for reconciliation between ecological integrity and use of ecosystems for human prosperity. More specifically, does the concept of ecosystem services light the way for harmonizing the goal of sustaining ecological integrity and the goal of providing goods and services to humans? Is there something about the ecosystem services approach that changes the calculus from that used in traditional resource management in such a way that makes it more likely that ecosystem services concepts will promote sustainable ecological integrity? This chapter explores those questions from two perspectives. The first section of the ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Enforcement and Global Climate Change, http://www.ssrn.com/abstract=2252602 (October 20, 2014)

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 property enforcement issues are rarely discussed in these fora. It would indeed be premature to discuss those issues when we still have no idea what types of international instruments will be developed to address the problems posed by climate change and what types of obligations these instruments will introduce. Nevertheless, if these instruments are to facilitate the development of meaningful policy responses, it is important that the rights they recognize be enforceable. This chapter focuses ...
%SOURCENAMEESCAPED%, REVISION: Tales of the Unintended in Copyright Law, http://www.ssrn.com/abstract=2328648 (October 19, 2014)

Having unintended consequences is an oft-cited defect of copyright reform. Whether it is the Digital Millennium Copyright Act, the recently adopted Anti-Counterfeiting Trade Agreement, the still-under-negotiation Trans-Pacific Partnership Agreement, or such highly controversial copyright legislation as the PROTECT IP ACT or the Stop Online Piracy Act, critics of copyright-strengthening measures have lamented their potential for creating collateral damage. As critics have reasoned, the collateral damage caused by these proposed measures outweigh their intended benefits, and policymakers should refrain from adopting these measures. While undertaking cost-benefit analyses is commonsensical and useful, adopting laws that have unintended consequences is nothing new. In the copyright area alone, one could find many examples featuring laws that result in unintended consequences. Indeed, many of the ill-advised copyright laws were adopted long before the active lobbying by the existing ...
%SOURCENAMEESCAPED%, New: Beps and Global Digital Taxation, http://www.ssrn.com/abstract=2507872 (October 11, 2014)

In 2013, the Organization for Economic Cooperation and Development (OECD) launched its base erosion and profit shifting (BEPS) project to inhibit aggressive international tax planning. Action 1 of the BEPS project requires the OECD to identify the main challenges that the digital economy poses for the application of current international tax rules and develop reforms to address these challenges. The article reviews related academic perspectives, and discusses how the digital world facilitates aggressive tax planning. It concludes that any new tax rules should apply broadly and neutrally to substantively similar economic activities from either the digital or traditional commercial world. In addition, the OECD should more carefully examine how Internet technologies can help enforce national tax laws to constrain aggressive planning.
%SOURCENAMEESCAPED%, REVISION: Clusters and Links in Asian Intellectual Property Law, http://www.ssrn.com/abstract=2492954 (October 9, 2014)

Intellectual property developments in Asia are dynamic, distinct and diverse. There are also significant complexities within both the region and in each individual country. To help advance research and understanding in this area, this chapter underscores the insights provided by two pairs of analytical concepts. The first pair covers divergences and convergences. It aims to shed light on the similarities and differences in intellectual property regimes in Asia. It also explains why intellectual property laws have been developed the way they did. The second pair concerns clusters and links. Instead of asking why similarities and differences exist, countries are clustered together to provide a more systematic and meaningful comparison. Through a discussion of links, this chapter also reminds us that these clusters do not stand alone. Instead, they interact with each other and with intellectual property regimes outside Asia. Taken together, these two pairs of analytical ...
%SOURCENAMEESCAPED%, New: Intellectual Property and Confucianism, http://www.ssrn.com/abstract=2506384 (October 8, 2014)

In the past two decades, policy makers, industry leaders, and academic commentators have repeatedly condemned Confucianism for blocking or slowing down intellectual property reforms. Nevertheless, few have revisited the debate on intellectual property and Confucianism following the recent dramatic changes to the intellectual property landscape in Asia. In 2013, for example, Japan, China, and South Korea were among the top five countries filing international applications through the Patent Cooperation Treaty, along with the United States and Germany. Chinese and Japanese firms such as Panasonic, ZTE, and Huawei Technologies also emerged as the world's top three leaders in corporate filings. If Confucianism has presented a major barrier to intellectual property reforms in China and other parts of Asia, what causes the Sinicized countries to move forward so quickly in the intellectual property world? Is it the World Trade Organization and its TRIPS Agreement? Is it the success of ...
%SOURCENAMEESCAPED%, REVISION: How Copyright Law May Affect Pop Music Without Our Knowing it, http://www.ssrn.com/abstract=2503445 (October 7, 2014)

Commissioned for a symposium on copyright law and the creation of music, this article explores five questions about popular music that can be illuminated by greater insights into copyright law and the music business. Why do popular songs usually last for fewer than five minutes? Why are professional songwriters dissatisfied with Pandora and Spotify? Why can we bring European CDs back to the United States? Why can't YouTube videos be created with ASCAP/BMI licenses? Are digital downloads sales or licenses? And as a bonus: Why did the royalty rate for sheet music stay at seven cents per copy? It is my hope that answering these questions will enable us to develop a deeper understanding of copyright law and how it can affect popular music. The copyright debate has been repeatedly and frequently framed as one among the different stakeholders. However, what laws we include in Title 17 of the United States Code will ultimately affect our music, both directly and indirectly. The more we ...
%SOURCENAMEESCAPED%, REVISION: Incentivizing the Ordinary User, http://www.ssrn.com/abstract=2163142 (October 7, 2014)

Disputes regarding the effectiveness of the patent system focus on the appropriate scope of patent rights. This Article departs from the traditional debate by looking instead at the players regulated by the patent system. The Article shows that the patent system fails to effectively encourage technological dissemination because it focuses on the patent owner and his competitors, while largely ignoring a crucial player: the ordinary user. The user in his everyday decisions of whether to adopt or not to adopt a technology plays a critical role in determining whether a new technology will be disseminated. Yet, patent law contains an overly simplistic view of the ordinary user. It views the ordinary user as motivated by price and availability alone. This Article uncovers the intricacy of ordinary users’ decisions regarding technological adoption. It identifies two main sources of user resistance: resistance due to novelty and resistance due to perceived consequences. Many believe ...
%SOURCENAMEESCAPED%, REVISION: Αρκτούρος (Arcturus): Protecting Biodiversity Against the Effects of Climate Change Through the Endangered Species Act, http://www.ssrn.com/abstract=2436702 (October 5, 2014)

Climate change is driving the anthropocene extinction, the sixth great extinction spasm of the Phanerozoic Eon. Large-scale habitat destruction puts many plant and animal species at risk of extinction. This essay describes the use of the Endangered Species Act to protect biodiversity from the effects of climate change.
%SOURCENAMEESCAPED%, New: Measuring Gaps Between Hypothetical Investment Returns and Actual Investor Returns, http://www.ssrn.com/abstract=2500079 (September 23, 2014)

Actual investor returns from mutual funds lag behind hypothetical returns based on a fixed initial investment and reinvestment of all distributions. This gap arises from behaviorally driven errors in timing. The nonproprietary literature on this performance gap has emphasized the relationship of this gap to overall returns on stocks and mutual funds. This article seeks to address more directly the relationship of behaviorally driven gaps in investment returns to downside risk, upside gain, and overall volatility. Documenting the existence of this gap across the universe of publicly traded securities — not only in the aggregate, but also on a security-by-security basis — may provide a legal basis for requiring mutual fund and exchange-traded fund managers to compute and disclose that gap.
%SOURCENAMEESCAPED%, REVISION: Exit Strategies for the Administrative State, http://www.ssrn.com/abstract=2482392 (September 17, 2014)

Exit is a ubiquitous feature of life, whether breaking up a relationship, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. The same is true for governance. Welfare support ends. Business subsidies expire. While legal scholarship is replete with studies of exit strategies for businesses and investors, the topic of exit has barely been touched in administrative law scholarship. The design “checklist” policy makers and legal academics have devised for new programs leaves exit on the sidelines. In this article, we argue that exit should be a fundamental feature of regulatory design, considered at the time of program creation. Part I starts from first principles and considers the basic features of exit. It addresses the normative aspect of exit strategies, exploring the different metrics to measure the success of an exit strategy. With these descriptive and normative ...
%SOURCENAMEESCAPED%, New: Israel, http://www.ssrn.com/abstract=2494559 (September 13, 2014)

This is the Israeli report to the Tort and Insurance Law Yearbook. It critically evaluates notable developments which took place in Israeli tort law in 2012. Part A discusses legislation and legislative bills in various areas, including state liability, compensation and assistance following the cancellation of a flight or a change in its conditions, road accidents victims' compensation, and disclosure of internet user information in tort litigation. Part B discusses 2012 Supreme Court decisions on wrongful life and wrongful birth, the truth defense in defamation law, the evidentiary weight of acquittal in a criminal procedure, the applicability of the contributory negligence defense in an action for deceit, the interrelation between tort law and property law, a tort-based duty to disclose an anonymous user's identity, and the scope of the medical duty to disclose information. Part B also analyzes recent developments concerning a uniquely Israeli head of damages - "infringement of ...
%SOURCENAMEESCAPED%, REVISION: 'These Great and Beautiful Republics of the Dead': Public Constitutionalism and the Antebellum Cemetery, http://www.ssrn.com/abstract=2304305 (September 9, 2014)

“Public Constitutionalism and the Antebellum Cemetery” joins the growing literature on public constitutionalism by focusing on the seventy addresses given at cemetery dedications from Supreme Court Justice Joseph Story’s address at Mount Auburn Cemetery in Cambridge, Massachusetts, in 1831, through the addresses of Edward Everett and Abraham Lincoln at Gettysburg in November 1863. The addresses were part of a vibrant public discussion of constitutional principles, which spanned such diverse occasions as July Fourth celebrations, arguments in great constitutional cases (like Daniel Webster’s Dartmouth College argument), dedication of public monuments (like Daniel Webster’s speech at the placement of the cornerstone of the Bunker Hill Monument in 1824), lyceum addresses, and college literary society lectures. For Americans, especially those of the Whig Party, the Constitution was a key component of culture and a key unifier of the nation. Rural cemeteries provided support for such ...
%SOURCENAMEESCAPED%, REVISION: Cornelius Sinclair's Odyssey: Freedom, Slavery, and Freedom Again in the Old South, http://www.ssrn.com/abstract=2469529 (September 9, 2014)

In August 1825 several free, young black people were enticed onto a ship in the Delaware River along the Philadelphia waterfront. Thus began their descent to the heart of the old South. They were kidnapped and held aboard a ship destined for a stop somewhere near Cape Henlopen, Delaware. Some days later they were carried by wagon to Maryland’s eastern shore and another ship took them further south. They walked across Georgia and into Alabama. One young man, Cornelius Sinclair, was sold in Tuscaloosa. He was a free person converted into a slave. But that was not the end. Those who survived were then taken to Mississippi, where a slave-owner realized that they were probably free. The slave-owner contacted the Mayor of Philadelphia to verify the story of kidnapping and eventually most of those held in Mississippi were sent back to Philadelphia. Then the mayor set about rescuing Sinclair, too. In Tuscaloosa, a local minister helped Sinclair by filing a lawsuit to ask for ...
%SOURCENAMEESCAPED%, REVISION: The Confuzzling Rhetoric Against New Copyright Exceptions, http://www.ssrn.com/abstract=2466544 (September 9, 2014)

In recent years, Australia, Canada, the United States, Ireland, the United Kingdom and other members of the European Union have been busy exploring ways to modernize their copyright laws. In many of these jurisdictions, new copyright exceptions have been introduced or proposed to promote internet users’ access to digital content. Meanwhile, the copyright industries have uniformly opposed the introduction of these exceptions. Published in the inaugural issue of Kritika, this article scrutinizes seven of the industries’ most widely used arguments. Drawing on examples from digital copyright reform in Hong Kong and other jurisdictions, the article explains why the industries’ arguments have thus far been unconvincing. It also calls on policymakers and legislators to critically evaluate these arguments, lest they lead to wrong policy choices that harm internet users and the public at large.
%SOURCENAMEESCAPED%, REVISION: Can the Canadian UGC Exception Be Transplanted Abroad?, http://www.ssrn.com/abstract=2405821 (September 8, 2014)

Commentators have examined the international law aspects of the new Canadian UGC exception, including its compliance with the Berne Convention and the WTO TRIPS Agreement. One issue that has not been considered much is whether this exception would serve as an ideal model for other jurisdictions that are undertaking digital copyright reform. Written for the Symposium on User-Generated Content under Canadian Copyright Law, this article uses Hong Kong as a case study to illustrate why the Canadian UGC exception, with appropriate modifications, can be — and should be — transplanted abroad. This article begins by discussing the efforts by the Hong Kong government to transplant copyright laws from abroad and its recent public consultation on the treatment of parody under the copyright regime. It further examines the benefits and drawbacks of legal transplants. Using the U.S. Digital Millennium Copyright Act of 1998 as a point of comparison, the article argues that the Canadian UGC ...
%SOURCENAMEESCAPED%, REVISION: Digital Copyright Enforcement Measures and Their Human Rights Threats, http://www.ssrn.com/abstract=2363945 (September 8, 2014)

This chapter examines the human rights threats posed by those digital copyright enforcement measures that have been incorporated into both domestic laws and international agreements. It begins by providing an overview of the various human rights that have been implicated by these measures. The chapter then briefly discusses those specific measures that have been deemed highly threatening from a human rights standpoint. Although these measures were drawn largely from international agreements, most notably the Anti-Counterfeiting Trade Agreement (ACTA), many of them originate in domestic laws in either the European Union or the United States. This chapter concludes with two case studies. The first study focuses on the so-called "graduated response" system, which has been introduced in Chile, France, Ireland, South Korea, Taiwan and the United States and explored in New Zealand and the United Kingdom. This study illustrates the specific challenges brought about by one of the most ...
%SOURCENAMEESCAPED%, REVISION: Bioprospect Theory, http://www.ssrn.com/abstract=2164848 (September 3, 2014)

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, on the apparent consensus that commercial exploitation of genetic resources holds the key to biodiversity conservation. Both sides of this debate misunderstand the relationship between biodiversity and biotechnology. Both sides have overstated the significance of bioprospecting. It is misleading to frame the issue as whether intellectual property can coexist with the international legal framework for preserving biodiversity. Any lawyer can reconfigure intellectual property to embrace all ...
%SOURCENAMEESCAPED%, REVISION: Towards the Seamless Global Distribution of Cloud Content, http://www.ssrn.com/abstract=2478583 (August 26, 2014)

In the age of cloud computing, consumers expect content to be accessible anywhere, anytime. Since their arrival, cloud platforms and related services have posed considerable challenges to copyright holders. Notwithstanding these challenges, one cannot overlook the boundless opportunities this new technology has provided to rights holders for distributing copyright content across the world. To a large extent, the global distribution of cloud content has brought back the age-old discussion concerning the proper response to disruptive technology and the copyright industries' repeated and arguably short-sighted efforts to protect their outdated business models. To complicate matters further, cloud platforms and related services have raised new questions that have not been widely discussed in the digital technology debate. Because these platforms facilitate simultaneous multijurisdictional access to copyright content, they unsurprisingly are in a collision course with the ...
%SOURCENAMEESCAPED%, New: Déjà Vu in the International Intellectual Property Regime, http://www.ssrn.com/abstract=2486257 (August 26, 2014)

On June 26, 2012, close to 50 members of the World Intellectual Property Organization signed the Beijing Treaty on Audiovisual Performances. A little more than a year later, WIPO also adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. Does the rejuvenation of WIPO norm-setting activities suggest the impending end of a much-feared 'non-multilateral era', precipitated by the active negotiation of bilateral, plurilateral and regional trade agreements? Do the recent norm-setting activities reinforce the Development Agenda painstakingly created by developing countries? Or do these activities indicate just the growing complexity of the international intellectual property regime, within which both multilateralism and non-multilateralism proceed at the same time? This chapter puts the recent multilateral and non-multilateral intellectual property developments in their proper historical contexts. ...
%SOURCENAMEESCAPED%, REVISION: The International Enclosure of China's Innovation Space, http://www.ssrn.com/abstract=2337307 (August 25, 2014)

This chapter highlights the external constraints on China's ability to innovate by recounting how the existing international intellectual property regime has evolved in a way that significantly encloses the innovation space of developing countries. It begins by tracing the development of this regime from its very beginning to the establishment of the WTO TRIPS Agreement. It discusses not only the constraints the Agreement has placed on developing countries, but also the various flexibilities it retains to their benefit. The chapter then examines the rapid proliferation of TRIPS-plus bilateral, plurilateral and regional trade, investment and intellectual property agreements, including both the controversial Anti-Counterfeiting Trade Agreement and the still-under-negotiation Trans-Pacific Partnership Agreement. It also points out that China has been slowly emerging as an innovative power and therefore a potential beneficiary of higher intellectual property standards, just as ...
%SOURCENAMEESCAPED%, New: Unpacking EME Homer: Cost, Proportionality and Emission Reductions, http://www.ssrn.com/abstract=2486236 (August 25, 2014)

EME Homer involved the vexing problem of interstate air pollution, which can make it impossible for even the most diligent downwind state to attain the air quality levels required by federal law. Justice Ginsburg’s opinion for the Court gives EPA broad discretion to craft regulatory solutions for this problem. The case presented the Court with considerable difficulties. Although the specific statutory provision at issue was deceptively simple, the underlying problem of allocating pollution reductions was extremely complex, especially given the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to have fully grasped how allocation would work even in simplified numerical examples. Although the specific question before the Court is now settled, the Court’s holding has continuing ramifications. It will shape further development of EPA’s on-going efforts to deal with the problem of interstate pollution. But it also has broader implications about ...
%SOURCENAMEESCAPED%, REVISION: Autonomy, Welfare, and the Pareto Principle, http://www.ssrn.com/abstract=2392859 (August 25, 2014)

The Pareto principle has great intuitive appeal, but poses perplexities on closer examination. What exactly do we mean by “preferences”? Should the principle apply ex post or ex ante? Does it uphold individual autonomy, individual welfare, or both? This essay argues that the Pareto principle is best understood, in utilitarian terms, as connecting social welfare with an objective appraisal of individual welfare. Indeed, with only modest additional assumptions, the Pareto principle implies a utilitarian social welfare function. It is much more difficult to link Pareto with autonomy norms for several reasons, including not only Sen’s paradox but a bevy of other difficulties.
%SOURCENAMEESCAPED%, Update: The Future of Food Law & Policy: The Responsibility of Lawyers in the Academy and Beyond, http://www.ssrn.com/abstract=2342872 (August 25, 2014)

Food Law & Policy is a flourishing legal field that is fast approaching the tenth anniversary of its inception. The field boasts several key milestones. The first Food Law & Policy course was taught in 2004. The first scholarly journal devoted to the field was created in 2005. And, the first Food Law & Policy legal clinic was established in 2010. Today, interest in the field among legal scholars and law students alike is so widespread that a 2013 news article reported “there may be no hotter topic in law schools right now than food law and policy.” Food Law & Policy incorporates elements from the study of traditional food and drug law as well as elements from the study of traditional agricultural law. It intersects with a new approach to agricultural law studies that involves a more holistic approach including sustainability and a food systems analysis. This article was prepared for the Yale University Food Systems Symposium. It was written by faculty members at several law ...
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%SOURCENAMEESCAPED%, REVISION: Correlation, Coverage, and Catastrophe: The Contours of Financial Preparedness for Disaster, http://www.ssrn.com/abstract=2468361 (August 21, 2014)

Laws regulating financial preparedness for catastrophe reveal the actuarial suppositions underlying disaster law and policy. This article explores three facets of catastrophic risk transfer. First, it explores how risk transfer emerges as the preeminent tool for managing risk. Measures sufficient for managing risks break down as the probability of loss plummets, but the magnitude of potential loss increases. Second, this article explores one alternative risk transfer mechanism by which insurance companies have sought to deepen their financial reserves in anticipation of correlated risks. Correlation among risks, the primary obstacle to functional insurance markets for catastrophic coverage, emerges in new form as the motivation for catastrophe bonds — and as these instruments’ leading pitfall. Finally, this article explores constraints on public intervention into disaster insurance. Along the dimensions of space, time, and human behavior, policies compensating individuals for ...
%SOURCENAMEESCAPED%, REVISION: Indexing Inflation: Why Methodology Matters in Econometrics and Macroeconomic Policymaking, http://www.ssrn.com/abstract=2474949 (August 18, 2014)

Because there is no perfect gauge of inflation, the macroeconomic enterprise of indexing inflation ultimately dissolves into a choice among imperfect methodologies. But that choice still matters. This article will highlight the practical significance of methodological choices made in the course of indexing inflation. It will focus on two different indexes of inflation in the United States: the Consumer Price Index (CPI) and the implicit price deflator of the gross domestic product (IPD). This article identifies a long-term gap in these competing indexes’ measurement of inflation. To explain why the CPI appears to overstate inflation, relative to the IPD, by roughly two-thirds of a percentage point each year, this article more fully describes the distinct methodologies underling the CPI and the IPD. Lawmakers should adopt the implicit price deflator of the GDP, or some other inflation index that shares its best methodological features, as the best practicable measure of real ...
%SOURCENAMEESCAPED%, New: Implementing the New Ecosystem Services Mandate: A Catalyst for Advancing Science and Policy, http://www.ssrn.com/abstract=2481253 (August 17, 2014)

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 ...
%SOURCENAMEESCAPED%, New: Private Certifiers and Deputies in American Health Care, http://www.ssrn.com/abstract=2473634 (July 30, 2014)

So-called “public programs” in U.S. health care pervasively contract with private entities. The contracting does not merely involve the purchase of drugs, devices, information technology, insurance, and medical care. Rather, government agencies are increasingly outsourcing decisions about the nature and standards for such goods and services to private entities. This Article will examine two models of outsourcing such decisions. In private licensure, firms offer a stamp of approval to certify that a given technology or service is up to statutory or regulatory standards. Via deputization, firms can pursue a regulatory or law enforcement role to correct (and even punish) providers who have failed to meet standards or acted fraudulently. Both private licensure and deputization provide new models for administrative governance in rapidly changing, technically complex fields. But they can also be abused if private licensors or deputies are not adequately supervised, or if they are faced ...
%SOURCENAMEESCAPED%, Update: Food, Farming & Sustainability: Perspectives on U.S. Agricultural Production, http://www.ssrn.com/abstract=2343350 (July 15, 2014)

This article offers a discussion of the U.S. agricultural sector and its current focus on an industrialized model of production. Challenges to the longterm sustainability of this approach are presented and an approach based more on natural processes is advocated. The article was prepared for the inaugural symposium of the Agricultural and Food Law Institute in South Korea, “The Conservation and Conversion of Farm Land” held at Yeungnam University Law School in Gyeongsan, South Korea.
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%SOURCENAMEESCAPED%, REVISION: A Systematic Approach to Measures of Systemic Risk, http://www.ssrn.com/abstract=2460486 (July 12, 2014)

The failure of individual firms in the banking industry poses a unique threat to the entire economy. Emerging wisdom on systemic risk has identified two shortcomings in traditional regulatory approaches, all of which failed to anticipate the financial crisis of 2008-09. First, static measures of firm size, designed to identify institutions "too big to fail," fall short of detecting the contributions of correlation and interconnectedness to systemically significant bank failures. Second, traditional regulatory emphasis on capital adequacy has sought to guide the management of expected risks by individual banks under ordinary conditions, at the expense of anticipating the collective reaction of the banking industry to extreme stress. This anthology summarizes work toward a rigorous, systematic understanding of measures of systemic risk.
%SOURCENAMEESCAPED%, New: Land, Slaves, and Bonds: Trust and Probate in the Pre-Civil War Shenandaoh Valley, http://www.ssrn.com/abstract=2113084 (July 6, 2014)

“Land, Slaves, and Bonds” samples wills filed for probate in Rockbridge County in Virginia’s Shenandoah Valley from 1820 to 1861, to detail the changes in probate practice during that era of market revolution. We report the gender, familial status, distributions, and use of trusts of the 128 testators sampled. Their choices often involved leaving part of their property to their surviving spouses for their lives, then outright to their sons and in trust to their daughters. Nearly forty percent owned enslaved human property and distributed their slaves among their children. Occasionally they freed their enslaved human property. This study also traces changes in sophistication of wills and accompanying trusts over time. Thus it provides an important window into how Rockbridge County residents used the legal process to transmit wealth between generations and to preserve it. The forty years leading into Civil War were ones of extraordinary expansion in the economy, communication, ...
%SOURCENAMEESCAPED%, REVISION: Pinwheel of Fortune, http://www.ssrn.com/abstract=2389555 (July 2, 2014)

In principle, neither the global environment nor personal health should come down to gambling. In practice, however, both the law of global biodiversity protection and the constitutional debate on the Patient Protection and Affordable Care Act (PPACA) rest on astoundingly risk-seeking assumptions. Charged with conserving the global biospheric commons, the international community seems eager to place deep, out-of-the-money bets on bioprospecting of rare and endangered species for pharmaceutical gain. The truly desperate state of biodiversity and climate change law has apparently prompted some very rich countries (especially the United States) to behave as if these sources of truly irreparable environmental harm defy meaningful precautions. Within America’s own borders, the constitutional law of public health strikes a comparably risk-seeking pose. Although National Federation of Independent Business v. Sebelius upheld the PPACA as an exercise of the federal government's taxing ...
%SOURCENAMEESCAPED%, REVISION: Ranking Law Schools with LSATs, Employment Outcomes, and Law Review Citations, http://www.ssrn.com/abstract=2456032 (July 1, 2014)

This paper returns to the much-discussed topic of ranking law schools. Where U.S. News & World Report includes a wide variety of factors – some of which are criticized as irrelevant to what prospective students care about or should care about – this paper looks to three variables. They are median LSAT score of entering students, which seeks to capture the quality of the student body; the percentage of the graduating students who are employed at 9 months following graduation at full-time, permanent JD required jobs (a separate analysis excludes school-funded positions and solo practitioners from this variable); and the number of citations to each school’s main law review, which seeks to capture a school’s recent reputation. It rank orders each of those variables, averages those ranks to obtain a new ranking, and then compares those new rankings to the U.S. News & World Report rankings of the 147 schools for which U.S. News provided ranks in March 2014. It identifies the schools ...
%SOURCENAMEESCAPED%, New: 'Nudging' Better Lawyer Behavior: Using Default Rules and Incentives to Change Behavior in Law Firms, http://www.ssrn.com/abstract=2460078 (June 29, 2014)

This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers. In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive biases and basic behavioral economics will help law firms tweak their incentives and default rules to promote the improved delivery of legal services.
%SOURCENAMEESCAPED%, REVISION: TPP and Trans-Pacific Perplexities, http://www.ssrn.com/abstract=2398720 (June 28, 2014)

In the past few years, the United States has been busy negotiating the Trans-Pacific Partnership (TPP) Agreement with countries in the Asia-Pacific region. These countries include Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. Although it remains unclear which chapters or provisions will be included in the final text of the TPP Agreement, the negotiations have been quite controversial. In addition to the usual concerns about having high standards that are heavily lobbied by industries and arguably inappropriate for many participating countries, the TPP negotiations have been heavily criticized for their secrecy and lack of transparency, accountability and democratic participation. Written for the inaugural annual Asia-Pacific issue of the Fordham International Law Journal, this article does not seek to continue this line of criticism, although transparency, accountability and democratic participation remain highly ...
%SOURCENAMEESCAPED%, REVISION: Liability for Online Anonymous Speech: Comparative and Economic Analyses, http://www.ssrn.com/abstract=2448706 (June 19, 2014)

This is a pre-edited draft of of an article presented in the special session of the Annual Conference on European Tort Law. The article examines various models for handling the problem of online anonymous defamation from comparative and economic perspectives. The comparative analysis reveals four main paradigms. The US model bars content providers’ indirect liability, but facilitates identification of the speaker. The Israeli model recognises content providers’ fault-based liability but does not provide procedural tools for identifying the speaker. The EU framework enables the victim to request identification of the speaker, and at the same time bring an action against the content provider. Although there is variance among Member States, this model seems to comply with the relevant Directives and European court decisions. The recently-adopted English model (‘residual indirect liability’) enables the victim to pursue a claim against the speaker and, if the speaker is unavailable, ...
%SOURCENAMEESCAPED%, Update: The Client Who Did Too Much, http://www.ssrn.com/abstract=2412496 (June 19, 2014)

Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.
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%SOURCENAMEESCAPED%, REVISION: Intellectual Property and Public Health – A White Paper, http://www.ssrn.com/abstract=2259089 (June 19, 2014)

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 solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad questions. First, are there alternatives to either the patent system or specific patent doctrines that can provide or help provide sufficient incentives for health-related innovation? Second, is health information being used proprietarily and if so, is this type of protection appropriate? Third, does IP conflict with other ...
%SOURCENAMEESCAPED%, REVISION: The Rise of the End User in Patent Litigation, http://www.ssrn.com/abstract=2440914 (June 7, 2014)

The patent system focuses on the actions of two players: the patentee and its competitor. It assumes that the competitor will represent the interests of the end user. But increasingly, end users are becoming significant players in the patent system, their interests sometimes diverging from those of competitors. Attention has recently turned to Patent Assertion Entities (“PAEs”) – also known as patent trolls – who are suing vast numbers of customers using patented technologies in their everyday businesses. Yet, end users were also principal players in some of the main recent patent cases before the Supreme Court. In Bowman v. Monsanto, Monsanto sued farmers for re-using its patented self-replicating seeds. In Association for Molecular Pathology v. Myriad Genetics, patients and physicians sued to invalidate breast cancer gene patents. And, patients and drug stores repeatedly challenge pay-for-delay agreements between patentees and competitors, claiming they undermine patients’ ...
%SOURCENAMEESCAPED%, REVISION: Leveraging the International Economy of Intellectual Property, http://www.ssrn.com/abstract=2422833 (May 29, 2014)

Most international intellectual property debates ignore the fundamental question of how to optimize the global environment for innovation, focusing instead on whether a particular policy benefits or harms a particular country. The cost of this misplaced focus is significant as states fight bitterly over how to divide fixed benefits, rather than seeking to grow social welfare through greater innovation. This missed opportunity is not a surprise, however, given the difficulty of trying to identify which intellectual property regimes will support greater innovation, a task which has proven impossible to achieve directly. This Article introduces a new empirical methodology that leverages international trade data in an effort to identify indirectly which intellectual property regimes are more likely to provide greater incentives to innovate globally. A country’s trade balance in high-innovation goods tends to dictate the country’s preferences for intellectual property rights regimes. ...
%SOURCENAMEESCAPED%, New: Sharpe-ly Leveraged: A Model of Human Capital Formation Under Debt Service Constraint, http://www.ssrn.com/abstract=2437290 (May 15, 2014)

Human capital, like any other form of wealth, lends itself to analysis through the tools of mathematical finance. No less than in other forms of enterprise, human capital formation involves risk. Returns on human capital and the risks inherent in its formation are affected by leverage. This is especially true in the United States, where a significant number of students finance higher education by borrowing. This article specifies a basic model of human capital formation that attempts to capture the essence of the risk-adjusted returns that students hope to realize when they pursue further education. This article adapts the Sharpe ratio of modern portfolio theory to measure the risk-adjusted benefit of education-enhanced earnings as the ratio of expected earnings to the volatility of those returns on human capital. It then adjusts both earnings and their dispersion to account for educational debt. On the debt service and earnings premium assumptions adopted by this article, ...
%SOURCENAMEESCAPED%, REVISION: FATCA and the Erosion of Canadian Taxpayer Privacy, http://www.ssrn.com/abstract=2433198 (May 13, 2014)

In 2010, the United States enacted a tax reform known as the Foreign Account Tax Compliance Act (FATCA). Under FATCA, all non-U.S. financial institutions, including Canadian banks, must review their records to determine if any accounts are owned by “U.S. persons,” which include U.S. citizens residing abroad and individuals with significant social and/or economic ties with the United States. The United States threatened to economically sanction any foreign country that did cooperate with the new regime. Accordingly, Canada has agreed to implement FATCA via an intergovernmental agreement (IGA) with the United States; at this writing the implementing legislation, Bill C-31, is before Parliament. This report discusses how FATCA and the IGA unduly harm the privacy interests and rights of Canadians in part because detailed financial information concerning hundreds of thousands of Canadians would be transferred to a foreign government for the first time. Canada is getting nothing in return ...
%SOURCENAMEESCAPED%, New: Against Accuracy (as a Measure of Judicial Performance), http://www.ssrn.com/abstract=2433736 (May 7, 2014)

This Essay - a contribution to a symposium reacting to Judge William Young and Professor Jordan Singer's article "Bench Presence: Toward a More Complete Model of Federal District Court Productivity," 118 PENN. ST. L. REV. 55 (2013) - advances the following thesis: Attempting to assess the accuracy of judicial decisions in any scalable way is either impossible or imprudent. Accuracy, in cases where it counts, depends on too many assessments that are too contestable or indeterminable in too many respects. Indeed, our system recognizes this. The familiar concerns of judicial ethics belie any systemic belief in the determinacy of outcomes in close cases. Put simply, if we believed that it is easy to determine whether (some significant subset of) judicial decisions is right or wrong we would not care about such things as whether judges own trivial amounts of stock in corporate parties that appear before them. Because of this, the most we are able to say in many cases is that an ...
%SOURCENAMEESCAPED%, REVISION: The IP Law Book Review: Configuring the Networked Self: Law, Code, and the Play of Every Day Practice, by Julie Cohen, http://www.ssrn.com/abstract=2427888 (May 3, 2014)

Julie Cohen's "Configuring the Networked Self" is an extraordinarily insightful book. Cohen not only applies extant theory to law; she also distills it into her own distinctive social theory of the information age. Thus, even relatively short sections of chapters of her book often merit article-length close readings. I here offer a brief for the practical importance of Cohen’s theory, and ways it should influence intellectual property policy and scholarship.
%SOURCENAMEESCAPED%, REVISION: An Agricultural Law Jeremiad: The Harvest Is Past, the Summer Is Ended, and Seed Is Not Saved, http://www.ssrn.com/abstract=2387998 (May 1, 2014)

The saving of seed exerts a powerful rhetorical grip on American agricultural law and policy. Simply put, farmers want to save seed. Many farmers, and many of their advocates, believe that saving seed is essential to farming. But it is not. Farmers today often buy seed, just as they buy other agricultural inputs. That way lies the path of economic and technological progress. Seed-saving advocates protest that compelling farmers to buy seed every season effectively subjects them to a form of serfdom. So be it. Intellectual property law concerns the progress of science and the useful arts. Collateral economic and social damage, in the form of affronts to the agrarian ego, is of no valid legal concern. The harvest is past, the summer is ended, and seed is not saved.
%SOURCENAMEESCAPED%, New: Breaking Bad? The Uneasy Case for Regulatory Breakeven Analysis, http://www.ssrn.com/abstract=2430263 (April 30, 2014)

Assessing regulatory benefits is crucial to cost-benefit analysis. And yet, quantification can be problematic, either because of the nature of the benefit themselves or because of uncertainty about achieving them. In such situations, Cass Sunstein calls for the use of a breakeven analysis based on a judgment about whether regulatory benefits are at least as high as costs. Even assuming that cost-benefit analysis is the best way of making decisions when benefits can be readily quantified, breakeven analysis may or may not be the right approach when quantification is difficult. Instead, depending on the causes of the difficulty, we might want either to revert to more qualitative methods of decision-making or to move beyond breakeven analysis into more rigorous methodologies. Thus, the case for breakeven analysis remains unproven.
%SOURCENAMEESCAPED%, REVISION: The Lost World of Administrative Law, http://www.ssrn.com/abstract=2395276 (April 29, 2014)

The reality of the modern administrative state diverges considerably from the series of assumptions underlying the Administrative Procedure Act (APA) and classic judicial decisions that followed the APA reviewing agency actions. Those assumptions call for statutory directives to be implemented by one agency led by Senate-confirmed presidential appointees with decision-making authority. The implementation (in the form of a discrete action) is presumed to be through statutorily mandated procedures and criteria, with judicial review to determine whether the reasons given by the agency at the time of its action match the delegated directions. This is the lost world of administrative law, though it is what students largely still learn. Today, there are often statutory and executive directives to be implemented by multiple agencies often missing confirmed leaders, where ultimate decision-making authority may rest outside of those agencies. The process of implementation is also through ...
%SOURCENAMEESCAPED%, REVISION: Sinic Trade Agreements and China's Global Intellectual Property Strategy, http://www.ssrn.com/abstract=1333431 (April 27, 2014)

Since the early 2000s, the European Union and the United States have pushed aggressively for the development of bilateral, plurilateral and regional trade agreements. Termed economic partnership agreements (EPAs) and free trade agreements (FTAs) by the European Union and FTAs by the United States, these instruments seek to transplant laws from the more powerful signatories to the less powerful ones. Although the use of non-multilateral trade agreements is not limited to the European Union and the United States, the scholarly literature thus far has focused mostly on these agreements. To fill the void, this chapter closely examines the bilateral and regional trade agreements established by China -- termed Sinic trade agreements (STAs) -- and the strategies used to deploy them. This chapter begins by examining China’s growing engagement with the developing world, the underlying goals of STAs and the negotiation strategies behind those agreements. Using the China–New Zealand Free ...
%SOURCENAMEESCAPED%, REVISION: Trade Agreement Cats and the Digital Technology Mouse, http://www.ssrn.com/abstract=2220278 (April 27, 2014)

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 for solutions outside multilateral fora. Non-multilateral solutions that have been advanced thus far range from the establishment of bilateral or regional trade agreements to the recent negotiation of plurilateral 'country club' agreements, including the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership Agreement (TPP). This chapter concludes by identifying eight issues that domestic policymakers and international negotiators should seriously consider.
%SOURCENAMEESCAPED%, New: Methodological Stare Decisis and Constitutional Interpretation, http://www.ssrn.com/abstract=2428962 (April 26, 2014)

This chapter assesses the Supreme Court's reluctance to give stare decisis effect to its methodologies of constitutional interpretation. While the Court claims to presumptively follow the substantive results of its prior constitutional decisions, it has never considered itself bound by the interpretive approaches (e.g., originalism, textualism, or "living constitutionalism") used to reach those decisions. The chapter suggests an explanation for this somewhat mysterious state of affairs. A rule of methodological stare decisis would require the Court to employ the same interpretive method in a huge category of cases (most likely all cases involving the Constitution), which would generate unpredictable results in many cases the Court could not reasonably anticipate, thus aggravating the drawbacks of stare decisis. At the same time, the usual benefits of stare decisis (such as predictability and stability) would not be well served. Where the Court can reasonably follow its ...
%SOURCENAMEESCAPED%, New: DeFunis, Defunct, http://www.ssrn.com/abstract=2255162 (April 25, 2014)

November 1998 marks the twenty-fifth anniversary of the Supreme Court's initial decision to accept a case presenting the question of race-conscious university admissions. This silver jubilee merits three cheers for DeFunis v. Odegaard -- and a moment of silence -- upon its passing. Call it three ovations and a funeral.
%SOURCENAMEESCAPED%, New: Minority Television Project, Inc. v. FCC, No. 13-1124, Brief for Amici Curiae Law Professors in Support of Petitioner, http://www.ssrn.com/abstract=2427933 (April 23, 2014)

This brief amicus curiae in support of petitioner Minority Television Project in Minority Television Project, Inc. v. FCC, 736 F.3d 1192 (9th Cir. 2013), petition filed, No. 13-1124 (March 17, 2014), urges the Supreme Court of the United States to overrule Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). The brief presents three reasons why the Court should overrule Red Lion. First, overwhelming technological change compels reexamination of Red Lion. The proliferation of electronic media for distributing multichannel audio and video programming has undermined Red Lion’s scarcity rationale. Second, Red Lion has been so thoroughly discredited in all branches of government that further adherence to that precedent would undermine rather than promote respect for the Court’s decisionmaking process and for the rule of law. Finally, this case demonstrates how the continued isolation of broadcast media from First Amendment norms that govern all other media and conduits inflicts ...
%SOURCENAMEESCAPED%, REVISION: Measuring Market Risk Under the Basel Accords: VaR, Stressed VaR, and Expected Shortfall, http://www.ssrn.com/abstract=2252463 (April 23, 2014)

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 traditional VaR. Part I describes the calculation of VaR in its conventional form. For illustrative purposes, Part I will describe parametric VaR on a Gaussian distribution. Part II summarizes known weaknesses in VaR, from inherent model and estimation risk to VaR’s failure to perform under extreme economic stress and VaR’s failure to satisfy the theoretical constraints on “coherent” measurements of risk. Part III describes how to calculate expected shortfall as an extension of ...
%SOURCENAMEESCAPED%, REVISION: The Scored Society: Due Process for Automated Predictions, http://www.ssrn.com/abstract=2376209 (April 23, 2014)

Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers — or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail — credit — the law focuses on credit history, not the derivation of scores from data. Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform basic safeguards. Regulators should be able to test scoring systems to ensure their fairness and accuracy. Individuals should be granted meaningful opportunities to challenge adverse decisions based on scores miscategorizing them. Without such protections in place, ...
%SOURCENAMEESCAPED%, REVISION: Climate Policy and the United States System of Divided Powers: Dealing with Carbon Leakage and Regulatory Linkage, http://www.ssrn.com/abstract=2174024 (April 21, 2014)

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 link carbon trading schemes with other states or with foreign jurisdictions. The executive branch may address carbon leakage by tailoring regulations to the potential for emissions to shift abroad and may also enter into cooperative agreements with other nations through executive agreements. These important components of climate policy could easily be supplied by Congress, but efforts to supply them by states or executive branch encounter constitutional challenges. This article argues in favor ...
%SOURCENAMEESCAPED%, REVISION: The Living Regulatory Challenges of Synthetic Biology, http://www.ssrn.com/abstract=2410179 (April 18, 2014)

The rapidly emerging technology of synthetic biology will place great strain upon the extant regulatory system due to three atypical characteristics of this nascent technology: (i) synthetic biology organisms can evolve; (ii) traditional risk structures do not apply; and (iii) the conventional regulatory focus on end-products may be a poor match for novel organisms that produce products. This Article presents one of the first assessments of the regulatory and oversight challenges produced by the beneficial application of synthetic biology, for energy, environmental, medical, and other purposes. Due to the uncertainty present at this early stage of synthetic biology development, and the practical political context, it is unlikely that the significant statutory and regulatory gaps identified herein could be cured directly. The Article recommends instead a selection of ‘soft law’ alternatives that could more quickly provide flexible and adaptive measures to help fill regulatory gaps ...
%SOURCENAMEESCAPED%, Update: Plus Ça Change, Plus C’Est La Même Chose (The More Things Change, The More They Stay the Same), http://www.ssrn.com/abstract=2404069 (April 16, 2014)

This essay takes the original plans from NYU Law School and draws analogies between those plans and the issues facing legal education today. Benjamin Butler's 1835 Plan for the Organization of a Law Faculty and for a System of Instruction in Legal Science in the University for the City of New-York1 will make any law school dean feel like Yogi Berra: it’s “deja-vu all over again.” The issue of how best to organize a curriculum to train legal professionals was a hot topic then, and it’s a hot topic now.
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%SOURCENAMEESCAPED%, REVISION: Crafting a Narrative for the Red State Option, http://www.ssrn.com/abstract=2328614 (April 11, 2014)

This Article examines the current state of play following the Supreme Court's decision in NFIB v. Sebelius to allow states the option of expanding their Medicaid programs in accordance with the Patient Protection and Affordable Care Act (ACA). Holding that mandatory expansion was unconstitutionally coercive, the Court created the Red State Option. Despite the enormously generous federal financial support for Medicaid expansion, close to half of the states have declined. At the same time, at least eight Republican-led states have crossed Tea Party lines to accept federal funding for expansion. Drawing lessons from these states, including Arkansas, Arizona, Michigan, and Florida, the Article articulates key elements of a Red State Narrative that would allow other reluctant states to come around to expansion without losing political face.
%SOURCENAMEESCAPED%, REVISION: Death Panels and the Rhetoric of Rationing, http://www.ssrn.com/abstract=2147468 (April 11, 2014)

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 been strongly opposed, as evidenced by the "death panels" controversy. Governor Palin's grossly erroneous characterization of the Patient Protection and Affordable Care Act (ACA) rendered one ACA provision, regarding end-of-life planning, impassable and another, regarding comparative effectiveness research, largely impotent. Even these patient-centered, autonomy-favoring provisions could not be fully enacted once tainted by the suggestion that they would result in rationing of health care. ...
%SOURCENAMEESCAPED%, REVISION: The Strategic and Discursive Contributions of the Max Planck Principles for Intellectual Property Provisions in Bilateral and Regional Agreements, http://www.ssrn.com/abstract=2342677 (April 3, 2014)

In June 2013, the Max Planck Institute for Intellectual Property and Competition Law released its Principles for Intellectual Property Provisions in Bilateral and Regional Agreements. Drafted by the Institute’s directors and research fellows in collaboration with a team of outside experts, this document seeks to facilitate the development of "international rules and procedures that can achieve a better, mutually advantageous and balanced regulation of international [intellectual property]." This essay discusses the important contributions the Principles have made at both the strategic and discursive levels. It situates these two sets of contributions in the context of the ongoing challenges confronting the development of the international trading and intellectual property systems. The essay concludes by briefly highlighting two important areas of interfaces that the Principles, by design, are unable to address.
%SOURCENAMEESCAPED%, New: Property Rights and Climate Change, http://www.ssrn.com/abstract=2418756 (April 1, 2014)

Climate change poses a challenge for maintaining the stable entitlements that are basic to property law. Yet property rights can also serve as aids to climate adaptation. This essay, which was initially delivered as the Wolf Family Lecture on the American Law at the University of Florida, explores both aspects of the property/climate-change relationship. The first part of the article discusses takings issues that may arise in connection with sea level rise. The second part of the article discusses the constructive role that transferrable development rights and the public trust doctrine could play in climate adaptation, including their role in limiting takings claims.
%SOURCENAMEESCAPED%, New: The Client Who Did Too Much, http://www.ssrn.com/abstract=2412496 (March 23, 2014)

Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.
%SOURCENAMEESCAPED%, New: Plus Ça Change, Plus C’Est La Même Chose (The More Things Change, The More They Stay the Same), http://www.ssrn.com/abstract=2404069 (March 21, 2014)

This essay takes the original plans from NYU Law School and draws analogies between those plans and the issues facing legal education today. Benjamin Butler's 1835 Plan for the Organization of a Law Faculty and for a System of Instruction in Legal Science in the University for the City of New-York1 will make any law school dean feel like Yogi Berra: it’s “deja-vu all over again.” The issue of how best to organize a curriculum to train legal professionals was a hot topic then, and it’s a hot topic now.
%SOURCENAMEESCAPED%, New: Flagging Prospect Theory, http://www.ssrn.com/abstract=2216916 (March 19, 2014)

The basic tenets of prospect theory, a bedrock principle of behavioral economics, can be illustrated by what Daniel Kahneman has called prospect theory’s "flag": an asymmetrical sigmoid curve whose inflection point occurs at the origin (thus reflecting human beings' adaptation level relative to their starting economic position), whose slope to the left of the origin is discernibly steeper than its slope to the right (thus reflecting loss aversion), and whose upper and lower asymptotes reflect diminishing sensitivity to losses as well as gains. This paper describes a surprisingly simple and supple method for parametrically modeling prospect theory with closed-form expressions and elementary functions. It accomplishes this task by transforming the cumulative distribution function of the log-logistic distribution. In plainer language, this paper "draws" the flag of prospect theory with the simplest available mathematical functions and the minimum amount of algebraic manipulation ...
%SOURCENAMEESCAPED%, REVISION: Measuring Market Risk Under Basel II, 2.5, and III: VaR, Stressed VaR, and Expected Shortfall, http://www.ssrn.com/abstract=2252463 (March 18, 2014)

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 traditional VaR. Part I describes the calculation of VaR in its conventional form. For illustrative purposes, Part I will describe parametric VaR on a Gaussian distribution. Part II summarizes known weaknesses in VaR, from inherent model and estimation risk to VaR’s failure to perform under extreme economic stress and VaR’s failure to satisfy the theoretical constraints on “coherent” measurements of risk. Part III describes how to calculate expected shortfall as an extension of ...
%SOURCENAMEESCAPED%, New: Application of the Abnormally Dangerous Activities Doctrine to Environmental Cleanups, http://www.ssrn.com/abstract=2408725 (March 14, 2014)

The common law tort doctrine of strict liability for abnormally dangerous activities is emerging as a key element of the law of hazardous substance regulation, which has been dominated by CERCLA. The abnormally dangerous activities doctrine exhibits a formidable potential for expansion. Together with the related torts of nuisance and trespass, strict liability for abnormally dangerous activities have already begun to complement CERCLA's scheme for allocating the costs of cleaning hazardous waste sites. The revitalized application of the abnormally dangerous activities doctrine to environmental cleanups may affect insurance coverage.
%SOURCENAMEESCAPED%, New: Book Review: The Moral Tradition of American Constitutionalism: A Theological Interpretation, http://www.ssrn.com/abstract=2408700 (March 14, 2014)

Just as the Gospel reminds Christians that “the last shall be first,” the observation that “less is more” surely does not damn H. Jefferson Powell's constitutional scholarship with faint praise. In “The Moral Tradition of American Constitutionalism: A Theological Interpretation,” Powell launches an unapologetically Christian attack on America's long-standing civic faith in constitutional law. Powell's core message -- that there is no such thing as a Christian approach to constitutionalism -- heralds a radical and powerful new model for understanding the relationship between personal Christianity and public law.
%SOURCENAMEESCAPED%, New: Submission to Finance Department on Implementation of FATCA in Canada, http://www.ssrn.com/abstract=2407264 (March 14, 2014)

The United States enacted a tax reform in 2010 known as the Foreign Account Tax Compliance Act (FATCA), which will impose an extensive third-party monitoring and disclosure regime on financial institutions around the world in an effort to “smoke out” American tax cheats and expose their undeclared foreign assets to the U.S. Internal Revenue Service (IRS). The flow of information from Canadian financial institutions directly to the IRS that is required by FATCA would violate a number of laws in Canada. Accordingly, the United States has requested changes to these laws. The Canadian government now seeks to accommodate these requests in the form of an “intergovernmental agreement” (IGA) with the United States, which will be enacted into law as the Canada–United States Enhanced Tax Information Exchange Agreement Implementation Act (the Implementation Act) pursuant to a proposal released for comment by the Department of Finance. The Department of Finance invited public comments on these ...
%SOURCENAMEESCAPED%, New: Book Review, Nicholas Mercuro & Steven G. Medema, Economics and the Law: From Posner to Post-Modernism, http://www.ssrn.com/abstract=2408097 (March 13, 2014)

It is no longer credible to speak of a single “law and economics” movement. Rather, there are multiple schools of thought, each applying economic analysis of law in a distinct way and none commanding widespread acceptance. Chaos would seem the natural result of any attempt to marry economics, a value-laden discipline beset by critics who decry the immorality of the “dismal science,” with law, a profession as methodologically incoherent as it is intellectually promiscuous. A literature of staggering size and dazzling diversity thus confronts anyone who tries to survey law and economics “from Posner to post-modernism.” In Economics and the Law, Nicholas Mercuro and Steven G. Medema acknowledge the Herculean nature of their task by confining themselves to “a concise overview” of thisd field. Mercuro and Medema nevertheless promise more than they can deliver. With each blow at the many-headed Hydra that economic analysis of law has become, the authors leave marginally useful ...
%SOURCENAMEESCAPED%, New: Responsibility for Historic Carbon Emissions: Lessons from Tort and Statutory Compensation Schemes, http://www.ssrn.com/abstract=2404372 (March 5, 2014)

Existing legal regimes dealing with analogous issues provide useful guideposts in considering the degree to which emitters bear responsibility for past carbon emissions. With regard to liability for environmental damage, the European Union but not the United States recognizes an exemption from liability if the harm was not understood at the time of the conduct. States have also been reluctant to accept strict liability for environmental damage under international law. Similarly, in European law, a defendant is usually not responsible if the state of scientific knowledge at the time did not enable the discovery of a product defect at the time the product was made. In the United States, many state governments recognize a similar limitation on products liability, although some do not. The problem of climate change is unique in some ways, and the legal system is not always the best gauge of ethical judgments. Nevertheless, understanding how societies have handled other cases of ...
%SOURCENAMEESCAPED%, REVISION: The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State, http://www.ssrn.com/abstract=2397425 (March 4, 2014)

Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the “permit power,” under which legislatures prohibit a specified activity by statute and delegate administrative agencies discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Describing the permit power, accurately, as an “enormous power in the state,” Epstein bemoaned that it had “received scant attention in the academic literature.” He sought to fill that gap. Centered on his premise that the permit power represents “a complete inversion of the proper distribution of power within a legal system,” Epstein launched a scathing critique of regulatory permits in operation, condemning the practice as a “racket” for administrative abuses and excesses. Epstein’s assessment of the permit power was and remains accurate in three respects. First, the permit power is vast. Regulatory permits ...
%SOURCENAMEESCAPED%, REVISION: The Non-multilateral Approach to International Intellectual Property Normsetting, http://www.ssrn.com/abstract=2325766 (March 2, 2014)

Since the early 2000s, the European Union and the United States have pushed aggressively for the development of bilateral and regional trade agreements. In recent years, developed countries have gone even further to establish plurilateral trade, investment and intellectual property agreements that bring together developed and like-minded countries. Using an ill-advised ‘country club’ approach to international intellectual property normsetting, these countries have negotiated agreements ranging from the Anti-Counterfeiting Trade (ACTA) Agreement to the Trans-Pacific Partnership (TPP) Agreement to the Transatlantic Trade and Investment (TTIP) Agreement. While ACTA focuses primarily on intellectual property issues, TPP and TTIP cover trade and trade-related issues, including both the trade- and investment-related aspects of intellectual property rights. To help us take stock of the many recent developments concerning these non-multilateral agreements, this chapter examines the ...
%SOURCENAMEESCAPED%, REVISION: Self-Adjusting Weighted Averages in Standard Scoring, http://www.ssrn.com/abstract=2397637 (February 28, 2014)

Like many of their counterparts in university teaching, law professors routinely rely on all-or-nothing final examinations. But all-or-nothing final exams put enormous pressure on students, who often labor for months with no meaningful feedback on their mastery of the material. One alternative to the all-or-nothing final exam consists of administering some sort of initial graded assignment. Assigning a relatively modest weight to the initial assignment maintains the primacy of the comprehensive final exam. To further minimize the pressure that accompanies the initial assignment, I propose an algorithm for adjusting the weight of the grade on the initial assignment so that students who boost their performance by the time of the final exam will benefit from their improvement. By the same token, students who do well on the initial assignment may wish to “lock in” some of the benefit of that performance as a hedge against declining performance on the final exam. The method for ...
%SOURCENAMEESCAPED%, New: Methodological Pluralism and Constitutional Interpretation, http://www.ssrn.com/abstract=2401247 (February 26, 2014)

This article takes up a significant yet surprisingly overlooked question: What accounts for the Supreme Court’s lack of methodological uniformity in constitutional interpretation? The question can be phrased in other ways: Why do strong methodological pronouncements in one case go unfollowed and unacknowledged in the next? Why, to use an example, does the originalist analysis of District of Columbia v. Heller not create a presumption that subsequent Second Amendment cases must also be analyzed via an originalist approach? An easy answer suggests itself — the justices simply do not want to bind themselves to someone else’s preferred methodology. They hold strongly divergent views, and advocate on behalf of those views in their opinions. Each justice might be willing to adhere to a single approach, but only so long as it is the one he or she favors. This easy answer turns out to be, at best, incomplete. There are many respects in which the Court does adhere to its past ...
%SOURCENAMEESCAPED%, REVISION: The Constitution as if Consent Mattered, http://www.ssrn.com/abstract=2208731 (February 24, 2014)

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 meaning. Each of those conventional approaches has its own virtues and vices. Combining the best of both — the responsiveness of living constitutionalism and the textual fidelity of originalism — generates a distinctly libertarian theory. This theory maximizes the consent of the governed and, thus, the justifiability of constitutional authority.
%SOURCENAMEESCAPED%, New: The Influence of Historical Tax Law Developments on Anglo-American Law and Politics, http://www.ssrn.com/abstract=2397399 (February 18, 2014)

This article highlights the influence of historical Anglo-American tax law developments on the formation of new political institutions and laws. In critical periods of English and U.S. history, individuals rebelled against arbitrary royal taxes. In turn, they demanded new tax laws that became embedded in documents from the Magna Carta to the English Bill of Rights to the Declaration of Independence that promoted democratic constraints on the use of state power to assess and collect taxes. Over time, the idea that individuals are entitled to equal treatment under the law, and possess inalienable human rights, emerged in part as a result of these tax law developments. The discussion in this article supports the view that pragmatic concerns over property and taxation drove important English and American political and legal reforms.
%SOURCENAMEESCAPED%, REVISION: Virotech Patents, Viropiracy, and Viral Sovereignty, http://www.ssrn.com/abstract=451640 (February 16, 2014)

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. The first half of this Article recounts three distinct stories about viruses responsible for AIDS, SARS, and the avian influenza (H5N1). The first story focuses on the ongoing developments within the WTO concerning efforts to address the access-to-medicines problems in relation to HIV/AIDS and other pandemics. The second story documents the unusual race among research and health institutions in Canada, Hong Kong, and the United States to patent technologies involving the isolated gene ...
%SOURCENAMEESCAPED%, New: Public Choice Theory and Legal Institutions, http://www.ssrn.com/abstract=2396056 (February 15, 2014)

This article asks what public choice can teach about legal institutions and their governing framework of public law. The chapter begins with an overview and assessment of two important components of public choice: social choice theory (stemming from Arrow’s Theorem) and interest group theory. It then considers the use of public choice models to explain the behavior of legislatures, agencies, and courts. The core public choice insight is that institutional structures are responses to fundamental problems relating to collective action. The chapter concludes, however, that normative use of specific public choice models should be undertaken with caution. The models are likely to be most useful when (1) they are informed by deep familiarity with specific institutional contexts; (2) reforms are context-specific; and (3) proposed changes are at the margin rather than involving major structural changes.
%SOURCENAMEESCAPED%, REVISION: Arbitration as an Article of Constitutional Faith, http://www.ssrn.com/abstract=2391075 (February 14, 2014)

Scarcely any legal question arises in the United States that is not resolved, sooner or later, through arbitration. If Alexis de Tocqueville could survey contemporary American legal culture, he would rub his eyes with amazement at the privatization of adjudication across a wide swath of issues previously committed to judicial resolution. From trade disputes posing serious questions of economic diplomacy to consumer contracts adhering to cell phones and credit cards, mandatory arbitration has displaced conventional adjudication. In the country that de Tocqueville characterized as driven by its dedication to constitutional lawmaking through litigation, arbitration has become a dominant form of dispute resolution with little if any direct doctrinal influence by federal constitutional law. This is the overriding theme of Peter B. Rutledge’s book, Arbitration and the Constitution (Cambridge, 2012).
%SOURCENAMEESCAPED%, REVISION: Coherence Versus Elicitability in Measures of Market Risk, http://www.ssrn.com/abstract=2385137 (February 14, 2014)

The Basel II and III accords prescribe distinct measures of market risk in the trading book of regulated financial institutions. Basel II has embraced value-at-risk (VaR) analysis, while Basel III has suggested that VaR be replaced by a different measure of risk, expected shortfall. These measures of risk suffer from mutually irreconcilable flaws. VaR fails to satisfy the conditions required of coherent measures of risk. Conversely, expected shortfall fails the mathematical requirements for elicitability. Mathematical limitations therefore force a choice between theoretically sound aggregation of risks and reliable backtesting of risk forecasts against historical observations. This research note is a condensed version of Measuring Market Risk Under Basel II, 2.5, and III: VaR, Stressed VaR, and Expected Shortfall, a full working paper posted at http://ssrn.com/abstract=2252463.
%SOURCENAMEESCAPED%, REVISION: Portfolio Theory as a Pattern of Timeless Moments, http://www.ssrn.com/abstract=2254244 (January 29, 2014)

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 symmetries of modern portfolio theory to the disturbing behavioral insights and the vastly expanded mathematical arsenal of the postmodern critique. This article surveys portfolio theory, from its modern origins through more sophisticated, "postmodern" incarnations, according to the first four moments of any statistical distribution: mean, variance, skewness, and excess kurtosis. Mastery of these quantitative tools and associated behavioral insights holds the key to the efficient frontier of risk ...
%SOURCENAMEESCAPED%, REVISION: Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, http://www.ssrn.com/abstract=307820 (January 27, 2014)

Copyright law, originally excused as a necessary evil, threatens now to become an inescapable burden. Because state and common law rights seemed inadequate to protect expressive works from unrestricted copying, the Founders expressly authorized federal copyright legislation. Lawmakers have read that constitutional mandate liberally. Each new version of the Copyright Act has embodied longer, broader, and more powerful legal protections. Meanwhile, private initiatives have developed increasingly effective means of safeguarding copyrighted works. Alarmed that these dual trends benefit copyright owners at too great an expense to the public interest, many commentators argue that the Copyright Act should limit and preempt non-statutory alternatives. But that puts matters exactly backwards. Besieged by lobbyists and bloated by public choice pressures, the Copyright Act has fallen into statutory failure. Insofar as common law and self-help technologies unite to secure exclusive rights in ...
%SOURCENAMEESCAPED%, REVISION: Designing Administrative Law for Adaptive Management, http://www.ssrn.com/abstract=2222009 (January 23, 2014)

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, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure Act or the states’ parallel statutes. Adaptive management theorists have identified several features of such administrative law requirements — especially public participation, judicial review, and finality — as posing barriers to true adaptive management, but they have put forward no ...
%SOURCENAMEESCAPED%, REVISION: Postmodern Disaster Theory, http://www.ssrn.com/abstract=2141591 (January 21, 2014)

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, http://ssrn.com/abstract=1910669, 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 symmetries of modern portfolio theory to the disturbing behavioral insights and the vastly expanded mathematical arsenal of the postmodern critique. Postmodern disaster theory represents a comprehensive account of catastrophic risk management. It organizes its postmodern agenda for legal management of risk and uncertainty according to higher statistical moments. Skewness has inspired alternative ways to measure risk-adjusted performance. To illustrate how the problem of fat tails and excess ...
%SOURCENAMEESCAPED%, REVISION: The Thirty Years War Over Federal Regulation, http://www.ssrn.com/abstract=2310392 (December 18, 2013)

Using the evidence Tom McGarity assembles in his recent book 'Freedom to Harm', this paper examines regulatory history during the thirty-plus years since Reagan became president. Although the available evidence presented is necessarily incomplete, it suggests strongly that the opponents of regulation have had only mixed success. Legislative efforts to roll back the regulatory state have given rise to pitched political battles, but in the end have not infrequently ended in modest expansions of agency authority. Opponents of regulation have had more luck in the rule-making process, where they have succeeded in delaying or killing regulatory efforts or in weakening the final regulations. They have successfully joined advocates of “smarter regulation” in some of these efforts. Yet, in the end, the body of federal regulation has continued to grow almost unabated. The biggest success of the opponents of regulation has come through budget cuts and policy changes that have weakened ...
%SOURCENAMEESCAPED%, REVISION: Reading Professor Obama: Race and the American Constitutional Tradition, http://www.ssrn.com/abstract=2131395 (December 9, 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 attention to the material Obama assigned or to what it suggests about Obama’s approach to the law and racism. The readings begin by discussing the malleability of racial categories and progress to cases from the nineteenth century on Native Americans and on slavery. The second day’s readings shifted to the Reconstruction era and changes in the Constitution and statutory law, as well as the rise of the “Jim Crow” system of segregation and the response of African American intellectuals. The third class covered ...
%SOURCENAMEESCAPED%, REVISION: Building the Ladder: Three Decades of Development of the Chinese Patent System, http://www.ssrn.com/abstract=2159011 (December 3, 2013)

In the past three decades, China has been very successful in developing its patent system. In 2012, 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 had the largest and fourth largest number of PCT applications, respectively. With significant backing from the Chinese government and the anticipated involvement of the world's largest public sector, China will likely catch up with the existing intellectual property powers more quickly than many have anticipated. Written for a special issue on intellectual property history, this article traces the development of the modern Chinese patent system. It begins with a historical overview of the protection China offered to inventions during the dynastic and Republican eras. The article then identifies five different stages of development of the modern Chinese patent system. ...
%SOURCENAMEESCAPED%, New: The Limits of the International Tax Regime as a Commitment Projector, http://www.ssrn.com/abstract=2357961 (November 22, 2013)

As explained by Ronald Coase, transaction costs are the costs associated with discerning a price on a given exchange. This article conceptualizes the international tax regime as a political and legal system striving to address transaction cost challenges, and claims it has an uneven record. On the one hand, the international tax regime lowers transaction costs and hence promotes global economic growth. It does this by facilitating credible government commitments to ensure that the same cross-border profits are not taxed twice by two countries. Multinational firms are thus protected against the risk that their cross-border activities will be unduly deterred by taxation, which encourages more global economic activities.On the other hand, governments are unable to offer credible commitments that they can effectively address other important international tax policy concerns. First, despite ongoing reform efforts governments are not able to offer reasonably reliable promises that they ...
%SOURCENAMEESCAPED%, REVISION: The Global Governance of HIV/AIDS and the Rugged Road Ahead: An Epilogue, http://www.ssrn.com/abstract=1938850 (November 21, 2013)

This short essay explores the 'rugged road ahead' for HIV/AIDS governance, with a focus on the intersection between intellectual property and access to essential medicines. It identifies promising changes that have taken place since the launch of the Doha Development Round of Trade Negotiations. It further highlights challenges that continue to haunt the HIV/AIDS governance regime while reducing access to essential medicines in developing countries.
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Training and Education for Development, http://www.ssrn.com/abstract=2151285 (November 21, 2013)

Written for 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 and goals recognized in its Development Agenda. It emphasizes the need for an expansion of coverage in intellectual property training and educational programs. It also offers guidelines on ways to redesign these programs. The article then highlights the need for introducing a more diverse set of skills and perspectives through training and educational programs. It concludes by suggesting some innovative methods to enhance delivery of these programs.

  

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