Jurisdynamics Network authors on SSRN

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

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%SOURCENAMEESCAPED%, REVISION: Transplanting Anti-suit Injunctions, https://www.ssrn.com/abstract=3937716 (December 3, 2021)

When adjudicating high-value cases involving the licensing of patents covering industry standards such as Wi-Fi and 5G (standards-essential patents or SEPs), courts around the world have increasingly issued injunctions preventing one party from pursuing parallel litigation in another jurisdiction (anti-suit injunctions or ASIs). In response, courts in other jurisdictions have begun to issue anti-anti-suit injunctions, or even anti-anti-anti suit injunctions, to prevent parties from hindering their own legal proceedings. Most of these activities have been limited to the United States and Europe, but in 2020 China emerged as a powerful new source of ASIs in global SEP litigation. The adoption by a jurisdiction of a foreign legal concept or procedure is referred to as transplantation, and the ASI mechanism in China represents a new form of legal transplant from Western legal systems. This Article analyzes the transplantation of the ASI to China—a development that can be viewed as both ...
%SOURCENAMEESCAPED%, REVISION: A Critical Appraisal of the COVID-19 TRIPS Waiver, https://www.ssrn.com/abstract=3945304 (December 2, 2021)

In October 2020, India and South Africa submitted an unprecedented proposal to the Council for Trade-Related Aspects of Intellectual Property Rights of the World Trade Organization, calling for a temporary waiver to combat the global pandemic. This waiver aims to suspend Sections 1, 4, 5 and 7 of Part II of the TRIPS Agreement and related enforcement under Part III "in relation to prevention, containment or treatment of COVID-19." Lasting for a finite period to be determined by the General Council, the waiver would cover not only patents, but also other forms of intellectual property rights. In May 2021, the proponents, along with over 60 cosponsors, submitted a revised proposal, which set the duration to "at least 3 years" and narrowed the range of products and technologies covered.

This chapter offers a critical appraisal of the COVID-19 TRIPS waiver proposal. It begins by identifying the arguments for the waiver. It then turns to arguments against the proposal, including ...
%SOURCENAMEESCAPED%, REVISION: This Is the Way the World Ends, Not with a Bang but Bonds and Bullets, https://www.ssrn.com/abstract=3904934 (December 2, 2021)

This article explores instinctive frames of human decision-making in environmental and resource economics. Higher-moment asset pricing combines rational, mathematically informed economic reasoning with psychological and biological insights. Leptokurtic blindness and skewness preference combine in particularly challenging ways for carbon mitigation. At their worst, human heuristics may generate perverse decisions. Information uncertainty and the innate preference for bonds-and-bullets portfolios may impair responses to catastrophic climate change.
%SOURCENAMEESCAPED%, New: China, the TRIPS Waiver and the Global Pandemic Response, https://www.ssrn.com/abstract=3975151 (December 1, 2021)

In October 2020, India and South Africa submitted an unprecedented proposal to the Council for Trade-Related Aspects of Intellectual Property Rights of the World Trade Organization. The proposal was subsequently revised in May 2021. Although China is neither a proponent nor cosponsor of this proposal, it has provided considerable support to the ongoing effort to adopt a COVID-19 TRIPS waiver at the WTO.

To document China's role in the global pandemic response, this chapter closely examines its position in the waiver debate. It begins by discussing how the country's changing pharmaceutical landscape and growing ambition to become an intellectual property power have paved the way for its middle-of-the-road position. The chapter then identifies two additional, complementary reasons behind this position: international politics and pandemic diplomacy. Drawing lessons from the ongoing debate at the WTO, the chapter concludes by offering insights into the roles China can or will play ...
%SOURCENAMEESCAPED%, New: Two Decades of TRIPS in China, https://www.ssrn.com/abstract=3965395 (November 17, 2021)

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

This chapter begins by highlighting the developments related to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in the first decade of China's WTO membership. It then discusses the country's "innovative turn" in the late 2000s and its ramifications. The chapter continues to examine the US-China trade war, in particular the second TRIPS complaint that the United States filed against China in March 2018. It concludes with observations about the impact of the TRIPS Agreement on China, China's impact on the Agreement and how the changing Chinese intellectual property landscape has altered the developing countries' coalition dynamics ...
%SOURCENAMEESCAPED%, New: The Long and Winding Road to Effective Copyright Protection in China, https://www.ssrn.com/abstract=3960557 (November 10, 2021)

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

Written for the Symposium on "Hindsight Is 2020: A Look at Unresolved Issues in Music Copyright," this article begins by mapping the long and winding road to effective copyright protection in China, especially in relation to U.S. rights holders. It then focuses on the recent amendment, highlighting five sets of upgrades or changes while offering three closing observations. The article concludes by offering five road ...
%SOURCENAMEESCAPED%, New: Intellectual Property, Cultural Heritage and Human Rights, https://www.ssrn.com/abstract=3950888 (October 27, 2021)

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

This chapter begins by mapping the contours of the international human ...
%SOURCENAMEESCAPED%, REVISION: 4° Celsius, https://www.ssrn.com/abstract=3806040 (October 19, 2021)

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

This Article seeks to push U.S. climate change adaptation policy toward an entirely new mode of governance necessary to meet the challenges ahead. It does so by making five novel ...
%SOURCENAMEESCAPED%, REVISION: US-China Intellectual Property Trade Wars, https://www.ssrn.com/abstract=3925290 (October 19, 2021)

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

This chapter begins by recounting the trade threats exchanged between the two countries in the early 1990s in relation to the lack of intellectual property ...
%SOURCENAMEESCAPED%, New: Being a 'First' - Over and Over Again, https://www.ssrn.com/abstract=3897378 (October 6, 2021)

This short essay discusses how someone who is often a "first" is perceived and provides advice for future "firsts."
%SOURCENAMEESCAPED%, New: The Specter of Malpractice: When Law Firm General Counsel and Risk Management Professionals Are Confronted with Potential Malpractice Claims and Ethics Violations, https://www.ssrn.com/abstract=3932534 (September 28, 2021)

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

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

• What duty does a firm’s general ...
%SOURCENAMEESCAPED%, REVISION: Increased Copyright Flexibilities for User-Generated Creativity, https://www.ssrn.com/abstract=3916671 (September 21, 2021)

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

This chapter explores how and why copyright law should be reformed to increase flexibilities for user-generated creativity. Based on recent legislative reforms and the Author's personal experience in the copyright reform process, the chapter outlines two distinct but mutually non-exclusive options: (1) the creation of copyright exceptions for user-generated creativity and (2) the limits to statutory ...
%SOURCENAMEESCAPED%, REVISION: Third Amendment to the Chinese Copyright Law, https://www.ssrn.com/abstract=3867389 (September 21, 2021)

Since July 2011, China has actively explored ways to upgrade its copyright law. Although the law was already amended the year before, only two changes were made at that time. The last time Chinese copyright law undertook a major overhaul was more than two decades ago, two months before the country became the 143rd member of the WTO in December 2001.

On November 11, 2020, the Standing Committee of the National People's Congress of China finally approved the Third Amendment to the Chinese Copyright Law. Covering a wide range of issues from eligibility to ownership and from enforcement to anti-circumvention protection, the new changes took effect on June 1, 2021.

To foster a deeper understanding of the changes brought about by the Third Amendment, the Journal of the Copyright Society of the U.S.A. brings together leading Chinese copyright law experts in a forthcoming special issue. As an introduction to this issue, the present article provides a brief but critical ...
%SOURCENAMEESCAPED%, REVISION: Conceptual and Institutional Improvements to Investor-State Dispute Settlement, https://www.ssrn.com/abstract=3266356 (September 10, 2021)

This chapter focuses on ways to improve investor-state dispute settlement (ISDS) to address some of the concerns that have been identified when the ISDS mechanism is used in the intellectual property arena. The first half of this chapter identifies three sets of conceptual improvements – namely, those relating to the question about what constitutes investment, the role of intellectual property protection in an investment environment and the interrelationship between an international agreement containing ISDS and the host state’s obligations under other multilateral agreements.

The second half of this chapter turns its attention to three institutional improvements – namely, the creation of an Advisory Centre on Investor-State Disputes, the development of a small claims procedure within the ISDS mechanism and the establishment of an appellate process to address investor-state disputes. Although the focus of these institutional improvements will be devoted to investor-state ...
%SOURCENAMEESCAPED%, REVISION: Realigning TRIPS-Plus Negotiations with UN Sustainable Development Goals, https://www.ssrn.com/abstract=3251667 (September 10, 2021)

In December 2015, the United Nations adopted the 2030 Agenda for Sustainable Development, which featured 17 sustainable development goals (SDGs). These goals were developed at a time when countries were busy negotiating TRIPS-plus bilateral, regional and plurilateral agreements. This chapter explores how developing countries could realign these negotiations with the SDGs. It begins by discussing the intersection between these goals and the development of the intellectual property system—at both the domestic and international levels.

The chapter then outlines the direct and indirect impediments that the recent and ongoing negotiations for TRIPS-plus trade agreements have placed on the promotion and fulfilment of the SDGs. These agreements include the Anti-Counterfeiting Trade Agreement, the Trans-Pacific Partnership Agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership and the Regional Comprehensive Economic Partnership Agreement. In view of the ...
%SOURCENAMEESCAPED%, REVISION: Principles of Political Economy and the Taxation of Nations: Econometric and Machine-Learning Evaluation of Tariffs, https://www.ssrn.com/abstract=3791744 (September 9, 2021)

Demography affects the ability of countries to manage their debt levels and to make macroeconomic policy. By the same token, the demographic attributes of labor influence political decisions among nations, including international trade policy. In particular, the free movement of labor is a bedrock principle of the European Union. That legal guarantee has prompted one country to leave the Union, even as it inspires other countries to join.

This study investigates the influence of (labor) demographics on tariffs in 45 OECD and non-OECD countries. A series of econometric models reveals evidence that the population and labor force may influence tariff levels. By contrast, migration does not. Income per capita and consumption affect tariff rates. Machine-learning methods confirm conclusions reached through conventional econometrics and shed further light on the relationship between tariff levels and their hypothesized predictors. The absence of a significant relationship between ...
%SOURCENAMEESCAPED%, REVISION: Split Decisions: Practical Machine Learning for Empirical Legal Scholarship, https://www.ssrn.com/abstract=3731307 (September 9, 2021)

Multivariable regression may be the most prevalent and useful task in social science. Empirical legal studies rely heavily on the ordinary least squares method. Conventional regression methods have attained credibility in court, but by no means do they dictate legal outcomes. Using the iconic Boston housing study as a source of price data, this Article introduces machine-learning regression methods. Although decision trees and forest ensembles lack the overt interpretability of linear regression, these methods reduce the opacity of black-box techniques by scoring the relative importance of dataset features. This Article will also address the theoretical tradeoff between bias and variance, as well as the importance of training, cross-validation, and reserving a holdout dataset for testing.
%SOURCENAMEESCAPED%, REVISION: The Capital Asset Pricing Model, https://www.ssrn.com/abstract=3844183 (September 9, 2021)

The capital asset pricing model (CAPM) is an influential paradigm in financial risk management. It formalizes mean-variance optimization of a risky portfolio given the presence of a risk-free investment such as short-term government bonds. The CAPM defines the price of financial assets according to the premium demanded by investors for bearing excess risk.
%SOURCENAMEESCAPED%, New: A Pattern New in Every Moment: The Temporal Clustering of Markets for Crude Oil, Refined Fuels, and Other Commodities, https://www.ssrn.com/abstract=3901479 (September 4, 2021)

A suite of clustering methods, applied to the matrix of conditional volatility by trading days and individual assets or asset classes, can identify critical periods in markets for crude oil, refined fuels, and other commodities. Unsupervised machine learning provides a viable alternative to rules-based and subjective definitions of crises in financial markets and the broader economy. Five clustering methods—affinity propagation, mean-shift, spectral, k-means, and hierarchical agglomerative clustering—can identify anomalous periods in commodities trading. These methods identified the financial crisis of 2008–09 and the initial stages of the Covid-19 pandemic. Applied to four energy-related markets—Brent, West Texas intermediate, gasoil, and gasoline—the same methods identified additional periods connected to events such as the September 11 terrorist attacks and the 2003 Persian Gulf war. t-distributed stochastic neighbor embedding facilities the visualization of commodity trading ...
%SOURCENAMEESCAPED%, REVISION: Fear in a Handful of Dust: The Epidemiological, Environmental, and Economic Drivers of Death by PM2.5 Pollution, https://www.ssrn.com/abstract=3879073 (August 25, 2021)

This study evaluates a wide range of epidemiological, environmental, and economic factors affecting morbidity and mortality from PM2.5 exposure in the 27 member-states of the European Union. This form of air pollution inflicts considerable social and economic damage in addition to loss of life and well-being. This study creates and deploys a comprehensive data pipeline. The first step consists of conventional linear models and supervised machine-learning alternatives. Critically, these regression methods do more than predict health outcomes in the EU-27 and relate those predictions to independent variables. Linear regression and its machine-learning equivalents also inform unsupervised machine learning methods such as clustering and manifold learning. Lower-dimension manifolds of this dataset’s feature space reveal the relationship among EU-27 countries and their success (or failure) in managing PM2.5 morbidity and mortality. Principal component analysis informs further ...
%SOURCENAMEESCAPED%, REVISION: Agriculture, End to End, https://www.ssrn.com/abstract=3218894 (August 25, 2021)

Agriculture consists of a process for converting energy and biological information into physical products for human consumption. Increasingly sophisticated biotechnology in agricultural inputs makes manifest this definition of agriculture as information flow. The architectural ideal in information science is the end-to-end principle. All intelligence within an information platform arises from its ends. The corollary of the end-to-end principle, however, is that intervening layers facilitating the transmission of intelligence become “dumb pipe,” whose sole contribution consists of efficient transport of information. Within its own domain, agriculture has become dumb pipe. The rise of bioengineered inputs has rendered obsolete the evolutionary contribution of farmers. At the other end of the value chain, consumer-driven preferences in food restrict the inputs that farmers may deploy. “Intelligence” propelled by preferences and tastes among affluent consumers constrain choices ...
%SOURCENAMEESCAPED%, REVISION: Environmental Law, Disrupted by COVID-19, https://www.ssrn.com/abstract=3855625 (August 17, 2021)

For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year.
%SOURCENAMEESCAPED%, New: אבד בתרגום: על זכויות תביעה בנזיקין של חדלי-פירעון
Lost in Translation: Tort Actions of Insolvent Victims
, https://privwww.ssrn.com/abstract=3901385 (August 12, 2021)

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

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

%SOURCENAMEESCAPED%, REVISION: פיצויים עונשיים בתביעה אזרחית נגררת להרשעה בפלילים Punitive Damages Following a Criminal Sentence, https://privwww.ssrn.com/abstract=3653121 (August 9, 2021)

תקציר בעברית:
הערת פסיקה על החלטתו של בית המשפט המחוזי בת"א (חי') 209/05 פלונית נ' מזרחי, אשר פסק לקורבן אונס
פיצויים עונשיים לאחר שמבצעי העבירה הורשעו ונגזרו עליהם תקופות מאסר ממושכות. העמדה המוצגת בהערת פסיקה זו אומצה על ידי בית המשפט העליון ברע"א 3754/17 פלוני נ' פלוני.

English Abstract:
A comment on Civil Case 209/05 Plonit (Jane Doe) v. Mizrahi (May 1, 2008), in which the Haifa District Court awarded punitive damages to a rape victim, following the conviction and incarceration of the perpetrators. This comment was subsequently endorsed by the Israeli Supreme Court in LCA 3754/17 Ploni (Doe) v. Ploni (Roe) (July 11, 2017).

%SOURCENAMEESCAPED%, New: Insulin Federalism, https://privwww.ssrn.com/abstract=3869876 (June 30, 2021)

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

The FDA has regulated insulin since it was first used to ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Human Rights, and Methodological Reflections, https://www.ssrn.com/abstract=3247346 (June 11, 2021)

Since the mid-2000s, scholars have paid considerable attention to the interface between intellectual property and human rights. Today, one can easily find books and law review articles on the subject. Initially, most of these discussions focused on topics such as access to essential medicines, access to knowledge, and the protection of traditional knowledge and traditional cultural expressions. In recent years, however, the literature has been expanded to cover new or underexplored areas, such as Internet-related human rights, the right to science and culture, the use of human rights impact assessments in the intellectual property area, the human rights challenges posed by bilateral, regional, and plurilateral trade agreements, and, more recently, human rights issues implicated by artificial intelligence.

Although scholarship on intellectual property and human rights has been growing rapidly, commentators rarely articulate the different methods used to conduct research in this ...
%SOURCENAMEESCAPED%, New: Telling the Story on Your Timesheets: A Fee Examiner's Tips for Creditors' Lawyers and Bankruptcy Estate Professionals, https://www.ssrn.com/abstract=3853962 (June 3, 2021)

This essay discusses how much of a lawyer’s embedded assumptions and cognitive errors can come across in something as simple as a time entry on a bill. So much can be revealed about how a lawyer views himself or herself in society and about the lawyer’s relationship with the client that it’s worth examining what we can find when we look at legal bills.
%SOURCENAMEESCAPED%, REVISION: Foreword: Current Trends in Disaster Law and Policy, https://privwww.ssrn.com/abstract=3846376 (June 1, 2021)

The increasing effects of climate change are intensifying many of our most pressing disaster risks. As disaster events are compressed in time and space by the growing potential for both disaster clusters and disaster cascades, current governance challenges will also intensify, heightening both the need for — and the difficulty of — coordinating across fragmented authority, integrating and mainstreaming climate policy, addressing disaster inequality, and managing short-term versus long-term risks. Resilience planning can be an important framework for addressing some of these challenges, but only if resilience initiatives focus more clearly on what we are making more resilient and why, who will benefit from specific resilience measures, the timeframes in which those benefits will be realized, and whether resilience measures that preserve the status quo today merely impede more transformative change that is desirable or necessary in the longer term. While we should not underestimate the ...
%SOURCENAMEESCAPED%, New: Five Reforms for Copyright, https://privwww.ssrn.com/abstract=3847009 (May 19, 2021)

US copyright law deserves credit for encouraging an outpouring of original expressive works, bequeathing us a rich cultural heritage. But the copyright regime has grown too big and too powerful. We need to pursue a new direction in copyright reform: toward freedom. We can best improve copyright by limiting its power, repairing its foundations, and opening up ways to escape it entirely. Specifically, we should strive to (1) reinstate the Founders’ Copyright Act, (2) withdraw the US from the Berne Convention, (3) develop misuse doctrine into an escape from copyright, (4) focus copyright policy on consumers’ costs, not producers’ profits, and (5) reconceive “IP” as “Intellectual Privilege.” Property is neither an accurate label for copyright nor one we have to embrace by default. We can more accurately label copyright a privilege—a statutory exception to common-law rights and obligations that vests its holder with special powers and immunities. Copyright’s statutory privileges come only ...
%SOURCENAMEESCAPED%, REVISION: Climate Adaptation Law, https://www.ssrn.com/abstract=2514173 (May 14, 2021)

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: From Struggle to Surge: China's TRIPS Experience and Its Lessons for Access to Medicines, https://www.ssrn.com/abstract=3677329 (May 10, 2021)

The WTO TRIPS Agreement has imposed unprecedented burdens on countries in the developing world. In the public health arena, its high protection and enforcement standards have not only greatly jeopardized access to medicines—at both the domestic and international levels—but have also eroded the policy space and flexibilities developing countries need to devise solutions for public health challenges.

Although many developing and least developed countries continue to struggle with the high and arguably inappropriate TRIPS standards, large or populous emerging economies, such as Brazil, China, India, South Africa, and Thailand, have managed to adapt the TRIPS Agreement with some success. As economic and technological conditions improved, these emerging economies began to secure even greater benefits from the TRIPS-based intellectual property system, thereby initiating a self-reinforcing virtuous cycle.

Of all emerging economies, no country provides a better illustration for ...
%SOURCENAMEESCAPED%, New: Legal Pragmatism and Presidential Power: A Case Study, https://privwww.ssrn.com/abstract=3839787 (May 6, 2021)

This essay explores the differences between legal pragmatism and formalism as working forms of legal thought. After a short overview of pragmatism and a discussion of Louis Brandeis as an exemplar, it turns to the evolving caselaw regarding presidential removal. This issue has led to notable faceoffs between formalists and pragmatist, from Taft v. Holmes and Brandeis, to Roberts and Thomas v. Kagan. Because of their preference for bright-line rules, formalists have tended to oversimplify Founding era history and post-Founding practice. Pragmatist judges have provided more nuanced historical accounts and have tried to come to grips with the tradeoffs involved in issues of institutional design. The choice between these styles of thought is not inherently tied to differences in ideology or substantive constitutional views. Legal pragmatism has the potential, however, to connect judicial decisions to issues that are meaningful to the public, to provide more transparency into the ...
%SOURCENAMEESCAPED%, REVISION: The Second Transformation of the International Intellectual Property Regime, https://www.ssrn.com/abstract=3481553 (April 30, 2021)

A quarter of a century ago, the adoption of the TRIPS Agreement and the marriage of intellectual property and trade through the WTO transformed the international intellectual property regime. This Agreement ushered in not only new international minimum standards for protecting and enforcing intellectual property rights but also major changes to domestic intellectual property systems across the world.

Today, the international intellectual property regime is being transformed once again. Thanks to the proliferation of bilateral, regional and plurilateral trade and investment agreements, new international minimum standards are being developed to protect the investment-related aspects of intellectual property rights. Unlike the WTO, which provides for only state-to-state dispute settlement, the investor-state dispute settlement mechanism built into these newly adopted international agreements enables private investors, such as intellectual property rights holders, to sue foreign ...
%SOURCENAMEESCAPED%, REVISION: משפטן נזיקי? הגעת ליעד (הערת ספרות - יצחק אנגלרד, פיצויים לנפגעי תאונות דרכים (מהדורה רביעית, 2013) Book Review: Izhak Englard, Road Accidents Victims’ Compensation (4th ed. 2013), https://privwww.ssrn.com/abstract=3653130 (April 27, 2021)

תקציר בעברית:
הערת ספרות על המהדורה הרביעית של ספרו של השופט בדימוס פרופ' יצחק אנגלרד "פיצויים לנפגעי תאונות
דרכים" (2013). הגרסה הסופית פורסמה בכתב העת "עורך הדין" של לשכת עורכי הדין בישראל.

English Abstract:
Book Review of Izhak Englard, Road Accidents Victims’ Compensation (4th ed. 2013)

%SOURCENAMEESCAPED%, REVISION: פיצויים עונשיים בתביעה אזרחית נגררת להרשעה בפלילים
Punitive Damages Following a Criminal Sentence
, https://privwww.ssrn.com/abstract=3653121 (April 26, 2021)

תקציר בעברית:
הערת פסיקה על החלטתו של בית המשפט המחוזי בת"א (חי') 209/05 פלונית נ' מזרחי, אשר פסק לקורבן אונס
פיצויים עונשיים לאחר שמבצעי העבירה הורשעו ונגזרו עליהם תקופות מאסר ממושכות. העמדה המוצגת בהערת פסיקה זו אומצה על ידי בית המשפט העליון ברע"א 3754/17 פלוני נ' פלוני.

English Abstract:
A comment on Civil Case 209/05 Plonit (Jane Doe) v. Mizrahi (May 1, 2008), in which the Haifa District Court awarded punitive damages to a rape victim, following the conviction and incarceration of the perpetrators. This comment was subsequently endorsed by the Israeli Supreme Court in LCA 3754/17 Ploni (Doe) v. Ploni (Roe) (July 11, 2017).

%SOURCENAMEESCAPED%, REVISION: משפטן נזיקי? הגעת ליעד (הערת ספרות - יצחק אנגלרד, פיצויים לנפגעי תאונות דרכים (מהדורה רביעית, 2013)
Book Review: Izhak Englard, Road Accidents Victims’ Compensation (4th ed. 2013)
, https://privwww.ssrn.com/abstract=3653130 (April 26, 2021)

תקציר בעברית:
הערת ספרות על המהדורה הרביעית של ספרו של השופט בדימוס פרופ' יצחק אנגלרד "פיצויים לנפגעי תאונות
דרכים" (2013). הגרסה הסופית פורסמה בכתב העת "עורך הדין" של לשכת עורכי הדין בישראל.

English Abstract:
Book Review of Izhak Englard, Road Accidents Victims’ Compensation (4th ed. 2013)

%SOURCENAMEESCAPED%, REVISION: The Legal Industry's Second Chance to Get It Right, https://www.ssrn.com/abstract=3773197 (April 25, 2021)

The legal industry's reaction to the COVID-19 pandemic and how it's response can drive the recovery following the COVID-19 pandemic.
%SOURCENAMEESCAPED%, REVISION: Climate, Energy, Justice: The Policy Path to a Just Transition for an Energy-Hungry America, https://privwww.ssrn.com/abstract=3766500 (April 21, 2021)

This paper prepared by member faculty scholars of the Center for Progressive Reform provides policy recommendations for the US in energy usage to help protect the climate and provide equitable access. Sections focus on electricity, transportation, public lands, climate justice, and governance mechanisms.
%SOURCENAMEESCAPED%, New: Tragic Allocation Challenges in the COVID-19 Era, https://privwww.ssrn.com/abstract=3826983 (April 20, 2021)

Human society is facing its worst nightmare—a global pandemic caused by a highly infectious, resilient, and enigmatic virus. Questions that have occupied moral philosophers for ages transform into urgent practical predicaments for doctors, ethicists, and healthcare policymakers facing impossible situations. Societies, grown accustomed to the notion of plentifulness, are forced to grapple with the prospect of scarcity, particularly that of life-saving resources, such as ventilators, ICU beds, health human resources, medication, and vaccines. Leading health ethicists and other professionals have already penned articles addressing the reemerging dilemmas regarding the allocation of scarce life-saving resources. Although several papers discussing these matters have been published in the most prominent medical journals, they lacked a broader interdisciplinary perspective. In this Article, we illuminate the difficult questions ahead from a somewhat different angle – that of legal ...
%SOURCENAMEESCAPED%, New: The Unidentified Wrongdoer, https://privwww.ssrn.com/abstract=3826564 (April 19, 2021)

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

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

Part II turns to an economic appraisal of the competing models. It argues that in tailoring solutions to strong ...
%SOURCENAMEESCAPED%, REVISION: TRIPS in the Field of Test Data Protection, https://www.ssrn.com/abstract=3716105 (April 19, 2021)

On April 15, 1994, the TRIPS Agreement was adopted in Marrakesh. For the past twenty-five years, this Agreement has established for both developed and developing countries the international minimum standards for the protection and enforcement of intellectual property rights. One area in which such standards were deficient, if not non-existent, before the founding of the WTO concerns the protections for undisclosed test or other data for pharmaceutical and agrochemical products. Article 39.3 of the TRIPS Agreement became the first multilateral provision in the field of test data protection.

This chapter takes stock of the evolution of international standards for protecting undisclosed test or other data for pharmaceutical, agrochemical and, more recently, biological products. Focusing on Article 39.3 of the TRIPS Agreement, the chapter begins by recapturing the origins and normative contents of this provision. It then identifies several unresolved issues surrounding the ...
%SOURCENAMEESCAPED%, REVISION: State-to-State and Investor-State Copyright Dispute Settlement, https://www.ssrn.com/abstract=3386979 (April 16, 2021)

The starting point for an ALAI audience is easily the Berne Convention for the Protection of Literary and Artistic Works, which owes its origin to the efforts of Victor Hugo and other members of the association. Article 33(1) of the Berne Convention, which was first introduced as Article 27bis at the Brussels Revision Conference in 1948, provides signatories with options to settle disputes through the International Court of Justice.

Although this optional dispute settlement mechanism has existed for more than seven decades, no signatory to the Berne Convention has ever used it to resolve an international copyright dispute. Instead, multinational copyright industries and their supportive governments have turned to two alternative mechanisms: (1) state-to-state dispute settlement (SSDS), such as the WTO dispute settlement process; and (2) investor-state dispute settlement (ISDS).

Commissioned for the ALAI Congress 2018 in Montreal, Canada, this chapter reviews the ...
%SOURCENAMEESCAPED%, REVISION: Who Should Be Liable for the COVID-19 Pandemic?, https://privwww.ssrn.com/abstract=3697283 (April 16, 2021)

The Article systematically and critically evaluates the potential liability of various “suspects” for the physical, emotional, and economic losses arising from the COVID-19 pandemic: the country-of-origin (the People’s Republic of China), international organizations (particularly the World Health Organization), federal, state, and local governments and officers, businesses, and healthcare providers. It concludes that existing legal frameworks fail to provide an appropriate solution for victims, primarily because each of the potential defendants can easily evade liability. The Article then proposes a new hybrid (international-domestic) regime, inspired by the international framework for the compensation of victims of nuclear incidents and by the September 11th Victim Compensation Fund.
%SOURCENAMEESCAPED%, REVISION: Artificial Intelligence, the Law-Machine Interface, and Fair Use Automation, https://www.ssrn.com/abstract=3665489 (April 15, 2021)

From IBM Watson's success in Jeopardy! to Google DeepMind's victories in Go, the past decade has seen artificial intelligence advancing in leaps and bounds. Such advances have captured the attention of not only computer experts and academic commentators but also policymakers, the mass media and the public at large. In recent years, legal scholars have also actively explored how artificial intelligence will impact the law. Such exploration has resulted in a fast-growing body of scholarship.

One area that has not received sufficient policy and scholarly attention concerns the law-machine interface in a hybrid environment in which both humans and intelligent machines will make legal decisions at the same time. To fill this void, the present article utilizes the case study of fair use automation to explore how legal standards can be automated and what this specific case study can teach us about the law-machine interface. Although this article focuses on an example generated from a ...
%SOURCENAMEESCAPED%, New: Clustering Commodity Markets in Space and Time: Clarifying Returns, Volatility, and Trading Regimes Through Unsupervised Machine Learning, https://www.ssrn.com/abstract=3791138 (March 31, 2021)

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

Different methods of unsupervised learning excel at different tasks. k-means clustering based on logarithmic returns works well with MDS to classify commodities and to create a spatial ontology of commodities trading, A strikingly different application involves k-means clustering of the matrix transpose, such that conditional volatility is evaluated by trading date rather than by commodity. This approach can isolate the two most calamitous temporal regimes of the past two decades: the global financial crisis ...
%SOURCENAMEESCAPED%, New: Interpreting Linear Beta Coefficients Alongside Feature Importances in Machine Learning, https://www.ssrn.com/abstract=3795099 (March 29, 2021)

Machine-learning regression models lack the interpretability of their conventional linear counterparts. Tree- and forest-based models offer feature importances, a vector of probabilities indicating the impact of each predictive variable on a model’s results. This brief note describes how to interpret the beta coefficients of the corresponding linear model so that they may be compared directly to feature importances in machine learning.
%SOURCENAMEESCAPED%, REVISION: Thinking Globally, Acting Locally: Lessons from the U.S., China, and Japan, https://privwww.ssrn.com/abstract=3792510 (March 26, 2021)

State and local climate action has played a key role in the global response to climate change. Still, not all jurisdictions are engaged in emissions reductions, and some are actively recalcitrant. What prompts some state and local governments to take action while prompting others to resist?

This Article makes several contributions to understanding state and local climate policies. First, prior efforts have generally had a U.S. focus. We broaden the inquiry to include the two leading Asian economies. Second, we make use of a fifty-state survey of recent state climate and energy initiatives in the United States rather than focusing on a few prominent jurisdictions like California. Third, rather than focusing solely on activist jurisdictions, we discuss the full range of stances on energy policy, from the leadership of states like California in the United States and cities like Shenzhen in China to the resistance of some rural areas of the United States, China, and Japan to ...
%SOURCENAMEESCAPED%, New: Private Insurance Limits and Responses, https://privwww.ssrn.com/abstract=3808304 (March 23, 2021)

The COVID-19 pandemic exposed a number of existing flaws in the United States’ patchwork approach to paying for and providing access to medical care. Shelter-in-place orders, social distancing, and other public health strategies employed to address the pandemic spawned a global recession, causing rapid and high unemployment rates in many countries. The U.S. unemployment rate peaked in April 2020 at 14.7%, higher than in any previous period since World War II. The United States has long hewed an anachronistic policy of relying heavily on private employers to provide health insurance to a substantial portion of the population. Those who are not eligible for employer-sponsored insurance (ESI) must fend for themselves in the non-group market, unless they qualify for government-sponsored insurance or safety net programs. Companion Chapters in this volume describe the COVID-related challenges for Medicaid and the uninsured, while this Chapter focuses on the private insurance market. The ...
%SOURCENAMEESCAPED%, REVISION: Brief of International Intellectual Property Law Professors as Amici Curiae in Support of Neither Party - Ericsson v. Samsung, https://www.ssrn.com/abstract=3802235 (March 20, 2021)

This brief seeks to draw to the Court’s attention historical, practical, and policy matters pertaining to technical standardization and dispute resolution that bear on the arguments made on appeal by Samsung and Ericsson, including by providing context on the use of anti-suit injunctions (ASIs) and anti-anti-suit injunctions (AASIs) in litigation involving global portfolios of standards-essential patents (SEPs) that are encumbered by “fair, reasonable, and non-discriminatory” (FRAND) licensing commitments.
%SOURCENAMEESCAPED%, New: Battle of the Experts: The Strange Career of Meta-Expertise, https://privwww.ssrn.com/abstract=3801102 (March 10, 2021)

Sociologists and philosophers have critically examined the interplay between democracy and expertise. This article develops a law and political economy approach to the topic, focusing on the challenge posed to traditional professions by “meta-experts” (who develop standardized algorithmic and quantitative methods to trans-substantively evaluate experts’ performance and value).

The very concept of meta-expertise confounds traditional distinctions between elite and democratic power. On the one hand, the meta-expert seems to suffer from all the debilities of the traditional expert, only more so. Whereas a traditional expert at least has a bounded set of situations to claim to be knowledgeable about, the meta-expert asserts expansive intellectual authority. On the other hand, skeptics of professions (as well as professional skeptics) claim that experts’ authority must have some substantive (and not merely democratic and procedural) limits. These skeptics tend to see the ...
%SOURCENAMEESCAPED%, New: The Resilient Fragility of Law, https://privwww.ssrn.com/abstract=3800436 (March 10, 2021)

Are current legal processes computable? Given known limitations of computing likely to continue into the near and medium-term future, the answer for all but the simplest processes is: no. Should they become more computable? Some processes could benefit from further algorithmatization, statistical analysis, and quantitative valuation, but context is critical. For reductionist projects in computational law and legal automation (particularly those that seek to replace, rather than complement, legal practitioners), traces of the legal process are all too often mistaken for the process itself. The words in a complaint and an opinion, for instance, are taken to be the essence of the proceeding, and variables gleaned from decisionmakers’ past actions and affiliations are further used to predict their future actions. Such behavioristic approaches undervalue the resilient fragility of law—that is, the capacity of persons and institutions to creatively interpret language, reframe disputes, and ...
%SOURCENAMEESCAPED%, REVISION: Retribution Against Catholic Dioceses by Revival: The Evolution and Legacy of the New York Child Victims Act Claims Revival Window, https://privwww.ssrn.com/abstract=3796138 (March 5, 2021)

This article considers the evolution of limitations relief for time-barred child sexual abuse tort claims in New York culminating with the claims revival window enacted in 2019 as part of the New York Child Victims Act (NYCVA). The story of child sexual abuse litigation against Catholic dioceses and the legal and political history of the NYCVA exposes the important but largely unexplored balance of competing policy objectives that limitations laws strike. How child sexual abuse claimants achieved retribution by revival in the NYCVA reveals the fragility of limitations laws and the importance of coherent and consistent policy for revival of other types of time-barred claims in the future.
%SOURCENAMEESCAPED%, REVISION: Models for Predicting Business Bankruptcies and Their Application to Banking and Financial Regulation, https://www.ssrn.com/abstract=3329147 (February 26, 2021)

Models for predicting business bankruptcies have evolved rapidly. Machine learning is displacing traditional statistical methodologies. Three distinct techniques for approaching the classification problem in bankruptcy prediction have emerged: single classification, hybrid classifiers, and classifier ensembles. Methodological heterogeneity through the introduction and integration of machine-learning algorithms (especially support vector machines, decision trees, and genetic algorithms) has improved the accuracy of bankruptcy prediction models. Improved natural language processing has enabled machine learning to combine textual analysis of corporate filings with evaluation of numerical data. Greater accuracy promotes external processes of banks by minimizing credit risk and by facilitating regulatory compliance.
%SOURCENAMEESCAPED%, New: Roberts, Rules, and Rucho, https://privwww.ssrn.com/abstract=3779414 (February 9, 2021)

This essay arises out of a symposium exploring the connection between the political question doctrine and judicial legitimacy in the wake of the Supreme Court’s decision in Rucho v. Common Cause, and more specifically a panel devoted to the implications of Rucho for theories of judgment and judging. Chief Justice Roberts’s majority opinion in Rucho emphasizes the need for judicial action to “be governed by standard, by rule” and to be “principled, rational, and based on reasoned distinctions.” Yet our analysis—which compares and contrasts the arguments, reasoning, and rhetoric in Rucho with their counterparts in the Chief Justice’s other opinions—suggests that Rucho ultimately fails its own test. Each justification is one that Chief Justice Roberts has disclaimed or acted contrary to in other cases, leading to the impression that they were cynically, rather than sincerely, deployed. In particular, the argumentative structure in Rucho stands in deep tension with that in Shelby County ...
%SOURCENAMEESCAPED%, New: International Tax Transparency, https://privwww.ssrn.com/abstract=3753715 (February 8, 2021)

An imbalance exists between tax authorities and taxpayers when it comes to the latter’s financial information. Taxpayers have the information they need to calculate their tax liabilities and file their returns. Tax authorities, on the other hand, tend to have little beyond what is in the tax return. Thus it can be hard for tax authorities to detect non-compliance. The solution? Pass laws to force the taxpayer (or a third party) to provide more and better information to tax authorities. In other words, increase tax transparency. This Article discusses broad international trends that have been the principal catalyst for tax transparency measures such as the Foreign Account Tax Compliance Act, the Common Reporting Standard and Country-by-Country Reporting, which try to inhibit offshore tax evasion and non-compliant international tax avoidance. In a world where data is the “new oil,” tax advisers are increasingly called on to promote and protect their clients’ interests by advising on ...
%SOURCENAMEESCAPED%, New: The Substance of Poetic Procedure: Law & Humanity in the Work of Lawrence Joseph, https://privwww.ssrn.com/abstract=3779458 (February 5, 2021)

There are elective affinities between poetic expression and legal thought. Well-turned verse can do something more than delight the ear or express emotions. It can also depict social reality in a particularly compelling, value-laden way. Similarly, the lawyer is not simply a technical expert on the drafting or application of rules. Long experience at such work should give a sense of the ultimate function, purpose, and meaning of such rules. Each realization suggests a more ambitious role for the humanities (including law) in social understanding. The quintessential lawyer-poet is not only on a Stevens-ian quest for “ghostlier demarcations, keener sounds.” He or she may also discern the substance behind the forms of social reality: to give us a sense of deep structures in human action via particularly evocative accounts of critical events. That thick description of reality can disclose as much or more truth than any quantitative model. The humanities provide a mode of understanding ...
%SOURCENAMEESCAPED%, REVISION: Anticircumvention and Anti-Anticircumvention, https://www.ssrn.com/abstract=931899 (February 3, 2021)

In today's debate on digital rights management systems, there is a considerable divide between the rights holders, their investors and representatives on the one hand and academics, consumer advocates, and civil libertarians on the other. These two groups often talk past each other, concocting their own doomsday scenarios while arguing for laws and policies that vindicate their positions. Unfortunately, neither side has sufficient empirical evidence to either support its position or disprove its rivals'. As the digital economy grows, the debate intensifies, and the divide between the two sides widens. Today, there has emerged an urgent need to find the common ground on this very divisive issue.

Published as part of the Inaugural Summit on Intellectual Property and Digital Media, this article begins by examining the positions taken by the proponents and critics of DRM systems and related laws. It then focuses on anticircumvention laws, highlighting their harms at both the ...
%SOURCENAMEESCAPED%, REVISION: Beyond Transparency and Accountability: Three Additional Features Algorithm Designers Should Build into Intelligent Platforms, https://www.ssrn.com/abstract=3670295 (February 3, 2021)

In the age of artificial intelligence, innovative businesses are eager to deploy intelligent platforms to detect and recognize patterns, predict customer choices and shape user preferences. Yet such deployment has brought along the widely documented problems of automated systems, including coding errors, corrupt data, algorithmic biases, accountability deficits and dehumanizing tendencies. In response to these problems, policymakers, commentators and consumer advocates have increasingly called on businesses seeking to ride the artificial intelligence wave to build transparency and accountability into algorithmic designs.

While acknowledging these calls for action and appreciating the benefits and urgency of building transparency and accountability into algorithmic designs, this article highlights the complications the growing use of artificial intelligence and intelligent platforms has brought to this area. Commissioned for the 2020 Northeastern University Law Review Symposium ...
%SOURCENAMEESCAPED%, REVISION: The Long Shadow of Jacobson v. Massachusetts: Epidemics, Fundamental Rights, and the Courts, https://privwww.ssrn.com/abstract=3635740 (January 29, 2021)

When emergency health measures have impinged on constitutional rights, judges have often turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, which upheld a state law requiring smallpox vaccination.

Courts are all over the map on how to apply Jacobson.. Some have viewed Jacobson as providing a special constitutional standard during epidemics. As this paper shows, history doesn’t support that view. Other judges have used “business as usual” constitutional analysis that ignore the crisis conditions under which the government must contend with today.

During a pandemic, the government confronts a fast-changing situation presenting risks of catastrophic loss of life, under conditions of uncertainty. Similar conditions prevail in national security cases. There, courts apply the normal constitutional tests but give extra deference to the government. Many though not all of the reasons are similar to the coronavirus situation. The lesson would be to ...
%SOURCENAMEESCAPED%, REVISION: An Introduction to Machine Learning for Panel Data, https://www.ssrn.com/abstract=3717879 (January 28, 2021)

Machine learning has dramatically expanded the range of tools for evaluating economic panel data. This paper applies a variety of machine-learning methods to the Boston housing dataset, an iconic proving ground for machine learning. Though machine learning often lacks the overt interpretability of linear regression, methods based on decision trees score the relative importance of dataset features. In addition to addressing the theoretical tradeoff between bias and variance, this paper discusses practices rarely followed in traditional economics: the splitting of data into training, validation, and test sets; the scaling of data; and the preference for retaining all data. The choice between traditional and machine-learning methods hinges on practical rather than mathematical considerations. In settings emphasizing interpretative clarity through the scale and sign of regression coefficients, machine learning may best play an ancillary role. Wherever predictive accuracy is paramount, ...
%SOURCENAMEESCAPED%, REVISION: Debunking Intellectual Property Myths: Cross-Cultural Experiments on Perceptions of Property, https://privwww.ssrn.com/abstract=3312822 (January 28, 2021)

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

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

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

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

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

In May 2018, Congress passed the controversial Right to Try (“RTT”) Act, creating a process for terminally ill patients to request access to investigational drugs. The federal RTT Act is not the first legal mechanism that fosters quicker access to investigational drugs. This new right to try is distinct from existing pathways created by law, regulation or federal administrative agency policy. Various mechanisms facilitated by the U.S. Food and Drug Administration (“FDA”) are significantly more substantial and important in the context of “faster” access to therapeutic products. These mechanisms lie along a spectrum of product development spanning investigational new drug status to postmarket studies and surveillance. I categorize these mechanisms into three areas: expansion, acceleration, and extension. The federal right to try can be characterized as an expansion, expanding patient access to investigational new drugs as an alternative mechanism to the FDA’s long-standing expanded ...
%SOURCENAMEESCAPED%, New: Using Data Analytics to Predict an Individual Lawyer’s Legal Malpractice Risk Profile (Becoming an LPL 'Precog'), https://www.ssrn.com/abstract=3760626 (January 27, 2021)

The power of data analytics is revolutionizing the way that business is conducted in nearly every industry. The medical industry, the consumer/retail space, and the banking and financial industries are taking their business operations to the next level by leveraging the power of big data. Despite radical transformations in nearly every other aspect of the legal industry, though, the approach to preventing, predicting, assessing, and resolving malpractice claims hasn't really changed. Malpractice insurers and their law firm clients continue to take an old-fashioned approach when it comes to legal professional liability. Unlike the insurers pricing automobile policies, the vast opportunity that LPL insurers could use hasn't been used well--at least not yet. LPL industry experts have confirmed that most legal malpractice insurers aren't leveraging advancements in technology and legal analytics in order to predict risk areas. Instead, LPL carriers primarily are reacting to actual events ...
%SOURCENAMEESCAPED%, New: Help Your Provost Help You During Promotion and Tenure Decisions, https://www.ssrn.com/abstract=3748896 (January 27, 2021)

This short essay discusses how law school faculty members can help make the case for their tenure and promotion when it comes to university-level review.
%SOURCENAMEESCAPED%, REVISION: Product Liability Suits for FDA-Regulated AI/ML Software, https://privwww.ssrn.com/abstract=3719407 (January 22, 2021)

The 21st Century Cures Act confirmed the FDA’s authority to regulate certain categories of software that, increasingly, incorporate artificial intelligence/machine learning (AI/ML) techniques. The agency’s September 27, 2019 draft guidance on Clinical Decision Support Software proposed an approach for regulating CDS software and shed light on plans for regulating genomic bioinformatics software (whether or not it constitutes CDS software). No matter how the FDA’s regulatory approach ultimately evolves, the agency’s involvement in this sphere has an important – and underexamined – implication: FDA-regulated software seemingly has the status of a medical product (as opposed to an informational service), which opens the door to product liability for defects causing patient injury. When a diagnostic or treatment decision relies on FDA-regulated CDS software, will mistakes invite strict liability, as opposed to being judged by the professional or general negligence standards of care that ...
%SOURCENAMEESCAPED%, REVISION: Internet Nondiscrimination Principles Revisited, https://privwww.ssrn.com/abstract=3634625 (January 21, 2021)

Unfair and sometimes illegal business practices have contributed to the massive growth and power of dominant digital platforms. These platforms therefore enjoy undeserved power. Policymakers should embrace basic principles of fairness to ensure their power is reduced, or at least is exercised in a more responsible way. Nondiscrimination is critical: these platforms should not be able to undercut smaller businesses to promote their own offerings in a biased way. A nondiscrimination model could help policymakers better develop targeted regulation. Antitrust enforcement, transparency, and some aspects of public utility regulation are also critical.
%SOURCENAMEESCAPED%, REVISION: An Intellectual Property Structural Engineer Extraordinaire and Her Lifelong Quest for Coherence, https://www.ssrn.com/abstract=3748990 (January 21, 2021)

Commissioned for the festschrift in honor of Professor Annette Kur of Max Planck Institute for Innovation and Competition, this book chapter recognizes her important contributions to the intellectual property field. Specifically, it explores her role as an intellectual property structural engineer extraordinaire and her lifelong quest for a coherent intellectual property system.

This chapter draws illustrations from two of her edited books, Intellectual Property Rights in a Fair World Trade System and The Structure of Intellectual Property Law. It also touches on structural concepts that are essential to the development of intellectual property law, such as foundation, floor, ceiling, frame, space, architecture and construction plan. The chapter concludes by noting Professor Kur’s confidence and positive attitude towards reforming the existing intellectual property system from the inside.
%SOURCENAMEESCAPED%, New: A Job for a Year, an Example for a Lifetime: Clerking for Judge Jane Richards Roth, https://privwww.ssrn.com/abstract=3741657 (January 19, 2021)

This essay, prepared for a volume on the role of law clerks to lower-court judges, includes reflections on clerking for Judge Jane Roth from the author and several of her other past clerks. It also includes observations on clerking more generally, as well as a brief recounting of the author's own clerkship search in the spring of 1992.
%SOURCENAMEESCAPED%, New: A Tale of Two Crises: COVID-19, Climate Change, and Crisis Response, https://privwww.ssrn.com/abstract=3767579 (January 17, 2021)

This very short book chapter provides an overview of how the COVID-19 pandemic has already impacted climate emissions, the potential long-term effects on emissions, and already adopted and proposed green stimulus programs in the U.S. and elsewhere. Experience from the 2008 financial crisis suggests that a green stimulus could provide a long-term boost to renewable energy and related carbon-free technologies and infrastructure.
%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Global Inequality and Subnational Policy Variations, https://www.ssrn.com/abstract=3760413 (January 9, 2021)

The subject of global inequality is at the center of the North-South debate on intellectual property law and policy. While developed countries in the global North complain about the lack of adequate protection and enforcement of intellectual property rights in developing countries, the global South laments the unfair distribution of benefits provided by the current international intellectual property regime. Developing countries are also frustrated that they continue to bear the blunt of globalization and the detrimental effects of high standards of intellectual property protection and enforcement.

The arrival of middle-income countries, in particular those with considerable and ever-growing strengths in the intellectual property area, has shown that the international intellectual property debate has been less simplistic that what a binary North-South debate suggests. Indeed, fast-growing emerging countries such as Brazil, China and India have acquired newfound success in ...
%SOURCENAMEESCAPED%, REVISION: Designing Law to Enable Adaptive Governance of Modern Wicked Problems, https://www.ssrn.com/abstract=3432504 (December 28, 2020)

In the twenty-first century, our planet is facing a period of rapid and fundamental change resulting from human domination so extensive it is expected to be visible in the geologic record. The accelerating rate of change compounds the global social-ecological challenges already deemed “wicked” due to conflicting goals and scientific uncertainty. Understanding how connected natural and human systems respond to change is essential to understanding the governance required to navigate these modern wicked problems. This Article views change through the lens of complexity and resilience theories to inform the challenges of governance in a world dominated by such massive and relentless disruption.

The new theories of governance discussed in this Article have been developed through empirical observation of emerging governance innovation to fill governance gaps that have opened with the increasing complexity of society. Among them, adaptive governance has been described as emerging in ...
%SOURCENAMEESCAPED%, REVISION: Split Decisions: Decision Tree-Based Machine Learning for Empirical Legal Scholarship, https://www.ssrn.com/abstract=3731307 (December 11, 2020)

The most prevalent and useful task in social science may be multivariable regression. Empirical legal studies rely heavily on the ordinary least squares method. Using the iconic Boston housing study as a source of price data, this article introduces machine-learning methods based on decision trees and their ensembles as additional methods for regression. Although trees and forests lack the overt interpretability of linear regression, these methods reduce the opacity of black-box techniques by scoring the relative importance of dataset features. This paper will also address the theoretical tradeoff between bias and variance, as well as the importance of training, cross-validation, and reserving a holdout dataset for testing.
%SOURCENAMEESCAPED%, REVISION: An Introduction to Machine Learning for Panel Data: Decision Trees, Random Forests, and Other Dendrological Methods, https://www.ssrn.com/abstract=3717879 (December 11, 2020)

Perhaps no task is more prevalent, and more useful, in economic analysis than the prediction of a numerical value through its relationship with other variables. By far the most popular tool for regression is the multivariable generalization of ordinary least squares.

Machine learning and artificial intelligence have dramatically expanded the range of tools available in economics. Open-source software and a burgeoning coding community have made these methods more accessible to a broader audience.

"Dendrological" machine-learning methods use decision trees to divide data, variable by variable. Ensembles of decision trees harness the Delphic wisdom of potentially thousands of miniature regressors.

Trees and forests admittedly lack the overt interpretability of linear regression. Machine-learning often offset the opacity of these "black-box" techniques by scoring the relative importance of dataset features. This paper will also address the theoretical tradeoff ...
%SOURCENAMEESCAPED%, REVISION: The Roman Public Trust Doctrine: What Was It, and Does It Support an Atmospheric Trust?, https://www.ssrn.com/abstract=3440244 (November 23, 2020)

Through building waves of legal scholarship and litigation, a group of legal academics and practitioners is advancing a theory of the public trust doctrine styled as the “atmospheric trust.” The atmospheric trust would require the federal and state governments to regulate public and private actors to reduce greenhouse gas emissions so as to abate climate change. The traditional common law version of the American public trust doctrine requires the states to hold title to lands submerged under navigable waters in trust for the public to use for navigation, fishing, and commerce, and that the states not alienate such resources to the detriment of this public interest. Some states have incrementally expanded the public trust doctrine to other resources and other uses, but thus far no federal or state court of last resort has adopted anything like the atmospheric trust.

Advocates of the atmospheric trust argue that it, like the traditional doctrine, enjoys a pedigree that traces ...
%SOURCENAMEESCAPED%, REVISION: The Costs of Critical Habitat or Owl’s Well That Ends Well, https://www.ssrn.com/abstract=3691269 (November 11, 2020)

When the Fish and Wildlife Service designated land in four counties of Arizona as “critical habitat” necessary for the protection of the endangered cactus ferruginous pygmy‐owl, property values dropped considerably. When the owl was later delisted, property values jumped back up. We use difference-in-difference and synthetic control designs to identify this effect with Zillow property value data. The results provide an estimate of the costs of this critical habitat designation, and they are considerable, contrary to the regulators’ position that critical habitat protection imposes no incremental costs beyond the original endangered species listing.
%SOURCENAMEESCAPED%, New: Tax Wars: How to End the Conflict over Taxing Global Digital Commerce, https://privwww.ssrn.com/abstract=3676641 (October 7, 2020)

In the last two years, dozens of governments have proposed or implemented unilateral tax measures to tax foreign-based technology companies. The new tax innovations include special withholding taxes, diverted profit taxes, minimum taxes, and digital services taxes. The rise of these unilateral measures threatens an international tax “war” among governments that could stifle new business models or even the spread of the global digital economy. This Article reviews the failure of international reform efforts to constrain aggressive international tax planning within the digital economy, and how the global digital tax conflict masks a growing dissatisfaction with how to tax value associated with global transactions. The best way to address these global developments is through a coordinated solution that creates an economic presence test (a Quantitative Economic Presence Permanent Establishment) and modifies the division of tax revenues between countries by allocating residual profits to ...
%SOURCENAMEESCAPED%, REVISION: The Intersection of IDL and Climate Change Law, https://privwww.ssrn.com/abstract=3655189 (August 21, 2020)

Scientists project serious increases in society’s exposure to extreme weather events as a result of climate change. Indeed, they have begun to link current disasters to climate change. As a result, international disaster law has begun to acknowledge the importance of taking account of climate change in disaster risk management. Simultaneously, climate negotiations are beginning to address disasters as a form of “loss and damage,” and more broadly under the rubric of climate change adaptation. Both fields of law can be enriched by this trend. This article discusses the growing interconnections of these two fields and future avenues for fruitful collaboration.
%SOURCENAMEESCAPED%, REVISION: Private Insurance Limits and Responses, https://privwww.ssrn.com/abstract=3675889 (August 21, 2020)

The COVID-19 pandemic exposed a number of existing flaws in the United States’ patchwork approach to paying for and providing access to medical care. Shelter-in-place orders, social distancing, and other public health strategies employed to address the pandemic spawned a global recession, causing rapid and high unemployment rates in many countries. The U.S. unemployment rate peaked in April 2020 at 14.7%, higher than in any previous period since World War II. The United States has long hewed an anachronistic policy of relying heavily on private employers to provide health insurance to a substantial portion of the population. Those who are not eligible for employer-sponsored insurance (ESI) must fend for themselves in the non-group market, unless they qualify for government-sponsored insurance or safety net programs. Companion Chapters in this volume describe the COVID-related challenges for Medicaid and the uninsured, while this Chapter focuses on the private insurance market. The ...
%SOURCENAMEESCAPED%, REVISION: The Inconspicuous DHS: The Supreme Court, Celebrity Culture, and Justice David H. Souter, https://privwww.ssrn.com/abstract=3651361 (August 11, 2020)

Thirty years ago this summer President George H.W. Bush nominated Judge David H. Souter to fill the Supreme Court seat from which Justice William Brennan had just announced his retirement. Souter quickly became known as the “stealth nominee”—he had taken no public positions on the controversial issues of the day and lived an unusually disconnected personal life. Liberals were convinced he had given private assurances he would provide the fifth vote to overrule Roe and conservatives hoped that was the case. Those who knew Souter—and Souter himself—claimed he would bring no agenda to the Court. This latter group proved most prescient. Indeed, in just his second term Justice Souter teamed with Justices Kennedy and O’Connor to author a joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which they provided the crucial votes to uphold Roe. As a result, “No More Souters” became a conservative refrain. More generally, Souter’s behavior as a justice tracked that of ...
%SOURCENAMEESCAPED%, REVISION: Exceptional Circumstances: Immigration, Imports and Climate Change as Emergencies, https://privwww.ssrn.com/abstract=3546613 (August 4, 2020)

President Trump has used emergency powers to achieve key parts of his policy agenda, exemplified by his travel ban, funding for the border wall, and tariffs on many imports. This essay examines how the Administration has invoked the need for urgent action in these and other settings, along with the responses of the courts. The essay also consider how these actions could be used as precedents by future presidents, such as declaring a climate change emergency. Finally, the essay discusses the risks of normalizing the use of emergency powers, along with the forces that may impel presidents in that direction.
%SOURCENAMEESCAPED%, REVISION: Unconstitutional Quartering, Governmental Immunity, and Van Halen's Brown M&M Test, https://privwww.ssrn.com/abstract=2698885 (July 23, 2020)

The jurisprudence of the Third Amendment, which limits the quartering of troops in private homes, effectively consists of just one case: Engblom v. Carey. But what a case! In addition to showcasing an unjustly neglected corner of our constitutional heritage, Engblom demonstrates the troubling effects of a dubious legal doctrine: governmental immunity. Though the court of appeals had held New York officials potentially liable for violating the Third Amendment when they had quartered National Guard troops in the dormitory rooms of striking prison guards, the lower court on remand in Engblom denied the plaintiffs a remedy. Why? Because throughout the United States, all levels of government — federal, state, and local — enjoy immunity from civil lawsuits. Courts have moreover extended this privilege from sovereigns to their officials; hence Engblom’s refusal to hold New York officials liable for violating the Third Amendment and various common law rights. Few people today worry about the ...
%SOURCENAMEESCAPED%, REVISION: Aesthetic Judging and the Constitution (Or, Why Supreme Court Justices Are Less like Umpires, and More like Figure-Skating Judges), https://privwww.ssrn.com/abstract=3459021 (June 25, 2020)

This essay advances the claim that Supreme Court justices, especially in constitutional cases, are better analogized to judges in aesthetic sports, such as figure skating, than to the more familiar baseball umpire. The metaphor is descriptively stronger, in that both sets of actors make considerable use of unarticulated (and often inarticulable) norms and internalized conceptual knowledge in addition to the formal rules governing their respective domains, in that it accounts for the significance of acculturation in the acquisition of those norms and that knowledge, and in that it provides an account of how a system such as constitutional law can evolve apart from (and even without) changes to the formal rules. Finally, the metaphor serves as a useful caution. Figure skating judges, after all, do not enjoy a reputation for probity. Conceiving of the justices in those terms thus invites consideration of the sorts of factors that might lead to crisis in either context, an exercise that ...
%SOURCENAMEESCAPED%, New: Ulex: Open Source Law for Non-Territorial Governance, https://privwww.ssrn.com/abstract=3605807 (June 15, 2020)

Communities that stretch across international borders struggle to resolve their members’ disputes. It is not a trifling problem. Distributed protocols such as Ethereum, EOS, and Dash host hundreds of billions of dollars in assets and handle transactions worth millions daily. Their members likely number in the tens of millions, scattered in unknown locations across the globe. Even the most successful of these communities have fractured over questions of how to interpret, apply, and amend their rules. The resulting “governance by hardfork” has generated skepticism about all things crypto – from currencies, to economics, to governments. Distributed protocols need a comprehensive, trustworthy, independent set of rules for resolving disputes. Ulex, an open source legal system, offers a solution. Its substantive and procedural rules can resolve the disputes of communities stretching across international borders. Its flag-free rules, drawn from tested and trusted private and ...
%SOURCENAMEESCAPED%, New: Tracking Transnational Terrorist Resourcing Nodes and Networks, https://privwww.ssrn.com/abstract=3601189 (June 9, 2020)

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

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

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

This short essay responds to Paul Heald and Ted Sichelman’s article, Ranking the Academic Impact of 100 American Law Schools. Heald and Sichelman's work provides a rigorous analysis of law school faculties’ citation and download statistics. Their recommendation to incorporate these statistics into U.S. News & World Report’s annual law school rankings, however, appears misguided. Heald and Sichelman do not fully take into account the concerning gaming behavior and problem¬atic incentives related to faculty hiring that such incorporation would likely produce over time.
%SOURCENAMEESCAPED%, New: Moving in Opposite Directions? Exploring Trends in Consumer Demand and Agricultural Production, https://www.ssrn.com/abstract=3493430 (December 13, 2019)

This article explores two divergent trends in the American food system: (1) consumer demand for “real” food that is sustainably produced and (2) the economic and political forces that continue to encourage consolidation and industrialization in agricultural production. It first considers consumer preferences for their food system, noting the evolution of the food movement from elite to mainstream in its significance. It then explores the latest data regarding agricultural production from the Census of Agriculture, revealing strong movement in a seemingly opposite direction from the consumer food movement. The article concludes by offering some signs that the future may provide hope for reconciliation, moving our food system in a positive, healthy, and sustainable direction.
%SOURCENAMEESCAPED%, New: Examining Food Safety From a Food Systems Perspective: The Need for a Holistic Approach, https://www.ssrn.com/abstract=3493366 (December 13, 2019)

There has been an effort to shift the focus of the Food and Drug Administration’s (FDA) food safety approach from reactive to preventative. The recently enacted Food Safety Modernization Act was hailed as a means to “transform the FDA from an agency that tracks down outbreaks after the fact, to an agency focused on preventing food contamination in the first place.” While this attempted proactivity is laudable in many respects, the United States’ overall approach toward food safety remains highly compartmentalized and is seemingly unable to consider safety concerns on a systemic scale. This has resulted in actions based on narrow and immediate justification with unanticipated negative consequences. This Article considers the inherently systemic nature of our food system and the inability of the agencies involved to address it as such.
%SOURCENAMEESCAPED%, REVISION: First Amendment (Un)Exceptionalism: A Comparative Taxonomy of Campaign Finance Reform Proposals in the US and UK, https://www.ssrn.com/abstract=3475526 (November 4, 2019)

There is an urgent conversation happening among the world’s democracies about how to respond to the combined threat of online electioneering and foreign interference in domestic elections. Despite the shadow such activities cast over the 2016 presidential election in the United States, the US has been largely absent from comparative discussions about how to tackle the problem. This is not just because of a recalcitrant president. The assumption that America’s “First Amendment Exceptionalism” – the idea that American freedom of expression law is simply too much of an outlier to warrant useful comparative consideration – is strong on both sides of the Atlantic. This is especially true in regard to the regulation of political campaigns.

This article challenges that assumption, and argues that America’s more libertarian approach to the legal regulation of political speech does not pose a barrier to fruitful comparative work in this area. It does so by comparing the law of the US ...
%SOURCENAMEESCAPED%, REVISION: The Internet of Bodies, https://www.ssrn.com/abstract=3452891 (November 4, 2019)

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

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

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

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

In June 1903, in the depths of the Jim Crow system, the Yale Law Journal published an article by famed New York corporate lawyer John R. Dos Passos (whose son, with the same name, later became a famous modernist novelist and socialist). The article, entitled “The Negro Question,” argued that many African American citizens in southern state were not yet ready for voting rights. The article defended the restriction of rights in southern states since the end of Reconstruction among African-Americans. Dos Passos’ article has received virtually no attention in recent years. It is important evidence of the intellectual credibility of ideas of segregation and second-class citizenship at the turn of the twentieth century. It reveals the breadth of the entrenched opposition to the ideas of racial equality. And it invites further examination of how law reviews in the early twentieth century supported Jim Crow segregation.  
%SOURCENAMEESCAPED%, New: The End User's Predicament: User Standing in Patent Litigation, http://www.ssrn.com/abstract=2894922 (January 9, 2017)

The traditional parties in patent litigation are technologically savvy competitors. Yet recently, patent owners have begun hauling end users—including farmers, small cafés, and podcasters—into patent disputes. This Article shows that end users, unlike competitors, cannot take proactive measures to protect their interests in defending against patent enforcement. The standing doctrine impedes end users’ access to federal court to challenge a patent’s validity in a declaratory judgment action. At the same time, standing and timing requirements prevent end users from taking advantage of the new procedures created under the America Invents Act to challenge patents at the U.S. Patent and Trademark Office (“PTO”). This Article argues that although standing requirements impose a significant obstacle for competitors as well as end users, the unique characteristics of end users place them in a particular predicament. First, the U.S. Court of Appeals for the Federal Circuit requires that ...


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