Jurisdynamics Network authors on SSRN

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%SOURCENAMEESCAPED%, REVISION: Regulating Business Innovation as Policy Disruption: From the Model T to Airbnb, http://www.ssrn.com/abstract=2951919 (September 23, 2017)

Many scholars have invoked the term “disruptive innovation” when addressing the platform (sharing) economy, with sweeping claims about the dramatic changes this development promises for law, regulation, and the economy. The challenges raised by the platform economy surely are important, but we argue that recent scholarship focusing on the immediacy and novelty of the platform economy has been ahistorical, and has therefore missed the bigger picture about how to regulate it. History is full of technological and management advances that fundamentally disrupted business models for a brief period of time. When business innovation upends a pre-existing business model in a regulated industry, the result can be a disjunction between the structure of the regulatory system governing incumbent firms and the firms disrupting the industry: a policy disruption. Policy disruption can result from conscious choices by entrepreneurs to exploit legal loopholes or to challenge regulatory protections ...
%SOURCENAMEESCAPED%, New: Climate Change Law, http://www.ssrn.com/abstract=3040312 (September 21, 2017)

Climate Change Law: Concepts & Insights (Foundation Press 2017) is the first book to provide a cogent synthesis of the legal system’s response to climate change. The book is written to be accessible to law students and others who are not experts in environmental or energy law. But it will also provide specialists with important insights into areas aligned with their own, such as introducing international law experts to energy issues and energy law experts to climate science and economics. Climate Change Law provides crisp introductions to U.S. energy regulation, the Clean Air Act, and federalism, as they bear on climate change regulation. The book also covers topic that are directly relevant for the United States but transcend any one country. Those topics include overviews of climate science, the economics of climate change, regulatory tools such as emissions trading, geo-engineering, climate adaptation, and international climate agreements. The book’s goals are not merely to ...
%SOURCENAMEESCAPED%, Update: Regulating Business Innovation as Policy Disruption: From the Model T to Airbnb, http://www.ssrn.com/abstract=2951919 (September 21, 2017)

Many scholars have invoked the term “disruptive innovation” when addressing the platform (sharing) economy, with sweeping claims about the dramatic changes this development promises for law, regulation, and the economy. The challenges raised by the platform economy surely are important, but we argue that recent scholarship focusing on the immediacy and novelty of the platform economy has been ahistorical, and has therefore missed the bigger picture about how to regulate it. History is full of technological and management advances that fundamentally disrupted business models for a brief period of time. When business innovation upends a pre-existing business model in a regulated industry, the result can be a disjunction between the structure of the regulatory system governing incumbent firms and the firms disrupting the industry: a policy disruption. Policy disruption can result from conscious choices by entrepreneurs to exploit legal loopholes or to challenge regulatory protections ...
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%SOURCENAMEESCAPED%, New: Regulating Business Innovation as Policy Disruption: From the Model T to Airbnb, http://www.ssrn.com/abstract=2951919 (September 21, 2017)

Many scholars have invoked the term “disruptive innovation” when addressing the platform (sharing) economy, with sweeping claims about the dramatic changes this development promises for law, regulation, and the economy. The challenges raised by the platform economy surely are important, but we argue that recent scholarship focusing on the immediacy and novelty of the platform economy has been ahistorical, and has therefore missed the bigger picture about how to regulate it. History is full of technological and management advances that fundamentally disrupted business models for a brief period of time. When business innovation upends a pre-existing business model in a regulated industry, the result can be a disjunction between the structure of the regulatory system governing incumbent firms and the firms disrupting the industry: a policy disruption. Policy disruption can result from conscious choices by entrepreneurs to exploit legal loopholes or to challenge regulatory protections ...
%SOURCENAMEESCAPED%, REVISION: Institutional Fracture in Intellectual Property Law: The Supreme Court versus Congress, http://www.ssrn.com/abstract=2926110 (September 20, 2017)

This article presents an original dataset of every intellectual property decision by the Supreme Court and statute passed by Congress from 2002 to 2016. Analysis of the data reveals that the Court and Congress have been significantly at odds over intellectual property law during the early twenty-first century. Whereas more than 80% of the substantive intellectual property laws that Congress enacted during this time made rights stronger, two-thirds of the Supreme Court’s decisions weakened protection. The data indicates that this divergence arises from conflict concerning substantive patent and trademark law; the branches are in accord on copyright law. Though prior scholarship has examined particular fields of intellectual property law in a single branch, none has uncovered these overall trends. The results provide new understanding of the ideological, political, and sociological influences that drive decision-making in Congress and the Supreme Court. Special interest group ...
%SOURCENAMEESCAPED%, REVISION: The RCEP and Intellectual Property Norm-setting in the Asia-Pacific, http://www.ssrn.com/abstract=2810579 (September 15, 2017)

Commissioned for the CEIPI-ICTSD Series on Global Perspectives and Challenges for the Intellectual Property System, this article examines the Regional Comprehensive Economic Partnership (RCEP) with a focus on the intellectual property norms it seeks to develop. It begins by briefly discussing the partnership’s historical origins and ongoing negotiations. It then examines the latest leaked draft of the RCEP intellectual property chapter, highlighting the key provisions concerning copyright and related rights, trademarks, patents, trade secrets and undisclosed information, and intellectual property enforcement. This article concludes by exploring three scenarios concerning the future of this chapter--namely, the lack of an intellectual property chapter, the inclusion of a TPP-like chapter and the eventual compromise on a TPP-lite chapter.
%SOURCENAMEESCAPED%, REVISION: The Quest for a User-Friendly Copyright Regime in Hong Kong, http://www.ssrn.com/abstract=2804360 (September 14, 2017)

The quest for a user-friendly copyright regime began a decade ago when the Hong Kong government launched a public consultation on "Copyright Protection in the Digital Environment" in December 2006. Although this consultation initially sought to address Internet-related challenges, such as those caused by peer-to-peer file-sharing technology, the reform effort quickly evolved into a more comprehensive digital upgrade of the Hong Kong copyright regime. A decade later, however, Hong Kong still has not yet amended its Copyright Ordinance. Thus far, three consultation exercises have been launched in December 2006, April 2008 and July 2013. Two bills have also been introduced in June 2011 and June 2014. Because the latest bill lapsed at the end of the fifth term of the Legislative Council, which expired in July 2016, the Hong Kong government will have to submit a new bill to the legislature after the September 2016 elections to restart the upgrading effort. In the run-up to this third ...
%SOURCENAMEESCAPED%, REVISION: TPP, RCEP and the Crossvergence of Asian Intellectual Property Standards, http://www.ssrn.com/abstract=3032941 (September 14, 2017)

The debate on convergence and divergence has garnered considerable attention from policymakers and commentators involved in regulatory developments in Asia. The recent completion of the negotiations on the Trans-Pacific Partnership (TPP) and the still ongoing negotiations on the Regional Comprehensive Economic Partnership (RCEP) have added fuel to this debate. Given the different leadership in these two mega-regional agreements and the exclusion of many RCEP parties from the TPP negotiations, it will be interesting to see how the agreements will affect the future efforts to set regional intellectual property standards. It will also be curious to see whether the draft and finalized standards could reveal policy preferences of the participating countries. This chapter begins by examining the regulatory convergence narrative, focusing on efforts to harmonize Asian intellectual property standards through the WTO TRIPS Agreement and TRIPS-plus bilateral, regional and plurilateral ...
%SOURCENAMEESCAPED%, REVISION: Development Bridge Over Troubled Intellectual Property Water, http://www.ssrn.com/abstract=3027103 (September 14, 2017)

Written in celebration of Pedro Roffe's life and achievements, this chapter captures the many valuable contributions he has made in his three decades at the U.N. Conference on Trade and Development (UNCTAD) and a decade and a half at the International Centre for Trade and Sustainable Development (ICTSD). It focuses on three sets of development bridges that he has built and helped build in the intellectual property arena, drawing illustrations from the author's personal encounters with him and his organizations. This chapter begins with bridges that allow us to revisit the past developments in the international intellectual property regime. It then turns to bridges that help provide a unique vantage point for taking stock of current developments and recognizing what is new and important in this regime. The chapter concludes with bridges that help advance the debate on intellectual property and global development while reorienting us toward a better future.
%SOURCENAMEESCAPED%, New: Heterodox Antitrust Economics, http://www.ssrn.com/abstract=3032205 (September 7, 2017)

Antitrust economics is a discipline developed by academic economists in concert with the refinement of per se rules and the rule of reason by the Supreme Court. Distinct bodies of antitrust thought — such as the Chicago school, the post-Chicago school, and behavioral antitrust economics — have emerged. These competing schools of thought fall short of capturing the full complexity of economic conduct. Antitrust law cannot and should not seek to replicate often conflicting insights devised by economists. Rather, what antitrust economics can accomplish is at once more modest and more helpful. The laudable resort to economic theory in any of its guises, behavioral or otherwise, should never become detached from economic fundamentals. Antitrust economics and cognate branches of the behavioral sciences should strive to speak of human conduct exactly as it is observed — neither a special magic and accursed, nor preternaturally blessed, but merely here.
%SOURCENAMEESCAPED%, REVISION: Case Note: Sandoz v. Amgen, http://www.ssrn.com/abstract=3013800 (September 5, 2017)

On June 12, 2017, the Supreme Court decided the highly anticipated first case involving the Biologics Price Competition and Innovation Act (BPCIA). The Supreme Court addressed two related questions: (1) whether the statutory language instructing a biosimilar applicant to provide its application and manufacturing information to the reference biologic sponsor after FDA acceptance of the application is enforceable by injunction; and (2) whether the biosimilar applicant must give notice of intended commercial marketing to the reference biologic sponsor only after obtaining an approved license from the FDA. Upholding the decision of the Federal Circuit on the first question (albeit using different reasoning) and reversing the Federal Circuit on the second question, the Court also introduced some uncertainty for the future. This short article discusses some key points following the decision.
%SOURCENAMEESCAPED%, REVISION: A Spatial Critique of Intellectual Property Law and Policy, http://www.ssrn.com/abstract=3013306 (August 25, 2017)

Although geography has had a longstanding and profound impact on the development of intellectual property law and policy, at both the domestic and international levels, geographical perspectives and spatial analysis have thus far not received much attention from policymakers and commentators. Only recently have we seen greater linkage between these two undeniably connected fields. Even with such linkage, the discussion tends to focus narrowly on specific issues, such as the parallel importation of pharmaceuticals, the protection of geographical indications and the treatment of traditional knowledge and traditional cultural expressions. This article aims to provide a systematic analysis of the linkage between intellectual property and geography. It begins by recounting how the post-war decline of academic geography in the United States helps explain the limited role of geographical insights and spatial analysis in law and policy debates. It further explores the revival of ...
%SOURCENAMEESCAPED%, REVISION: Crossfertilizing ISDS with TRIPS, http://www.ssrn.com/abstract=3021225 (August 25, 2017)

In the past few years, investor–state dispute settlement (ISDS) has garnered considerable scholarly, policy and media attention. Such attention can be partly attributed to the negotiation of the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP). It can also be attributed the growing use of ISDS to address international disputes involving intellectual property investments. Recent examples include Philip Morris’s now-failed attempts to challenge the plain packaging regulations for tobacco products in Australia and Uruguay and Eli Lilly's equally unsuccessful effort to challenge the patentability requirements in Canada. Written for a symposium on investor–state arbitration, this article focuses on the growing use of ISDS in the intellectual property area and explores what reforms can be undertaken to improve the mechanism. It begins by highlighting the substantive problems posed by ISDS in this area. It further examines the mechanism's deleterious ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Human Rights and Public-Private Partnerships, http://www.ssrn.com/abstract=2826967 (August 23, 2017)

This chapter focuses on the roles and responsibilities of intellectual property-related public-private partnerships (PPPs) in the international human rights regime. It begins by debunking two key claims transnational corporations (TNCs) have advanced in the area intersecting intellectual property and human rights. Although PPPs involve many types of private sector partners, this discussion singles out TNCs because of their frequent and vocal opposition to business and human rights initiatives. Such a focus will underscore the immense challenge of protecting human rights in the private sphere. This chapter then examines the "protect, respect and remedy" framework and the Guiding Principles on Business and Human Rights, which John Ruggie presented to the U.N. Human Rights Council in his capacity as the U.N. Secretary-General's Special Representative on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises. These documents are highly relevant to the ...
%SOURCENAMEESCAPED%, New: International Taxation Core Concepts, http://www.ssrn.com/abstract=3022096 (August 23, 2017)

The main purpose of International Taxation Core Concepts is to show managers, lawyers, accountants and others how tax laws affect global management decision-making. Part I of the book is a case study (or ‘tax novella’) called La Brienza Winery: Tax Trouble in Wine Country that illustrates how managers confront international tax challenges in the real world. It tells the story of Professor Xavier Montenegro and his tax advice to Dana La Brienza, the owner/manager of a Northern California winery with expanding global operations. Part II of the book contains additional materials on the U.S. and Canadian tax rules governing different cross-border planning strategies, including updates on recent developments. The second edition includes a new chapter on the developing relationship between Xavier and Dana. The attached excerpt provides the table of contents and the first chapter of La Brienza Winery.
%SOURCENAMEESCAPED%, New: Electronic Cigarettes: Smoke-Free Laws, Use Restrictions, and the Public Health, http://www.ssrn.com/abstract=3020348 (August 21, 2017)

Consumer use of e-cigarettes is rising despite a lack of rigorous safety testing, manufacturing controls, and a well-understood risk profile. Many states and municipalities have prohibited e-cigarette sale to minors or amended their smokefree laws to restrict public use. I discuss the public health impact of e-cigarettes and the current lack of Food and Drug Administration regulation, and advocate that states and localities reexamine their smoke-free laws and sale restrictions to appropriately regulate public use and youth access.
%SOURCENAMEESCAPED%, New: Regulatory Silence at the FDA: Impact on Drug and Biologic Competition, http://www.ssrn.com/abstract=3020383 (August 21, 2017)

Congress creates federal administrative agencies, crafts their fundamental organizational structure and mission, and bestows upon them authority to perform tasks such as rulemaking, adjudication, investigation, and licensing. Often, Congress expressly directs an agency to perform a specific task within a timeframe subject to carefully enumerated factors or considerations. Many times, however, an agency is left with much discretion, either express or implied, to determine appropriate action within the scope of their authority, the statutory language, the Constitution, and procedural laws. It is in these instances that the Supreme Court’s deference precedent has flourished, setting forth when a court ought to defer to an agency’s reasonable interpretation of the statute that it administers when the statute itself is silent or ambiguous. As muddled and disputed as this deference case law is, it probes an important area of agency behavior: when an agency affirmatively acts to ...
%SOURCENAMEESCAPED%, REVISION: The Transplant and Transformation of Intellectual Property Laws in China, http://www.ssrn.com/abstract=2645010 (August 19, 2017)

The history of intellectual property laws in China is a history of legal transplants. From the introduction of intellectual property laws during the late Qing dynasty and the Republican era to the recent laws and amendments adopted by the People’s Republic, legal transplant was the primary means by which the modern Chinese intellectual property regime was established. This chapter begins with a brief history of the transplant of intellectual property laws in China. It then examines the drawbacks and benefits of legal transplants. The chapter further discusses four key questions that policymakers should consider when transplanting laws from abroad. The answers to these questions, in turn, may result in not only transplant but also transformation. Although this chapter focuses on China, the discussion here is likely to be relevant to other jurisdictions.
%SOURCENAMEESCAPED%, REVISION: The ACTA Committee, http://www.ssrn.com/abstract=2154500 (August 19, 2017)

In discussing the Anti-Counterfeiting Trade Agreement (ACTA), most policymakers and commentators have focused on either the lack of transparency and accountability in the negotiation process or the problems raised by the TRIPS-plus standards included in the Agreement. While these issues deserve our urgent attention, it is important not to ignore the institutional arrangements laid out in Chapter V of the Agreement. In the long run, this chapter is likely to become the most far-reaching and dangerous of all the chapters in ACTA. Behind only the chapter on substantive standards, Chapter V is the second longest chapter in the Agreement. Included in this chapter are provisions creating and governing a little institution called the "ACTA Committee." On its face, those provisions are boring, mundane, and highly administrative. In reality, they govern matters ranging from membership to amendments to rules and procedures. Those provisions also help institutionalize ACTA as a freestanding, ...
%SOURCENAMEESCAPED%, REVISION: The RCEP and Trans-Pacific Intellectual Property Norms, http://www.ssrn.com/abstract=2851354 (August 19, 2017)

In the past few years, the Trans-Pacific Partnership has garnered considerable media, policy and scholarly attention. Rarely analyzed and only occasionally mentioned is the Regional Comprehensive Economic Partnership (RCEP). This agreement is currently being negotiated between Australia, China, India, Japan, New Zealand, South Korea and the 10 members of the Association of Southeast Asian Nations (ASEAN). Launched in November 2012 under the ASEAN 6 framework, the RCEP negotiations built on past trade and non-trade discussions between ASEAN and its six major Asia-Pacific neighbors. This article examines the RCEP with a focus on the intellectual property norms that it seeks to develop. The first half of the article focuses on the partnership as a mega-regional agreement. It begins by briefly discussing the agreement's historical origins. It then explores three possible scenarios in which the RCEP Agreement will help shape trade and intellectual property norms in the Asia-Pacific ...
%SOURCENAMEESCAPED%, REVISION: Decoding the Research Exemption, http://www.ssrn.com/abstract=897742 (August 17, 2017)

While debate continues as to whether genetic sequences, which many argue represent natural phenomena rather than inventions, should be subject to standard patent protections, issuance of patents that claim DNA sequences remains common practice. In an attempt to insulate researchers from patent claims that could hinder scientific progress, many countries have provided general exemptions for scientific research. However, there is no international consensus about the extent of required protections, and even existing exemptions vary widely in clarity and are limited in practical application. We believe that gene patents raise several unique issues that are inadequately handled by the current research exemptions.
%SOURCENAMEESCAPED%, REVISION: Patient Advocacy Group Collaboration in Genetic Research and the Scope of 'Joint Inventorship' Under U.S. Patent Law, http://www.ssrn.com/abstract=983115 (August 17, 2017)

Patent systems have traditionally operated to reward scientific innovation and discovery rather than the level and type of contribution of raw materials and other support. As U.S. and international patient advocacy groups continue to launch efforts to organize patients, collect and bank genetic material, and interface with researchers to find cures for diseases, there is need for critical examination of the scope of inventorship as constructed both in the U.S. patent law and abroad. In recently naming a non-scientist advocate a co-inventor on a patent covering a disease gene, the United States Patent & Trademark Office has determined that collaboration with researchers in providing banked genetic samples and participating in the laboratory rises to the level of inventorship. This article will review case law and U.S. patent law and discuss recent patient advocacy collaborative efforts. It will conclude with some considerations for fostering continued collaborative efforts in ...
%SOURCENAMEESCAPED%, New: When Antitrust Becomes Pro-Trust: The Digital Deformation of U.S. Competition Policy, http://www.ssrn.com/abstract=3020163 (August 16, 2017)

U.S. antitrust authorities soberly acknowledge that the centripetal accumulation of data, money and power at massive technology firms is likely to be indefinite without government action. However, they are doing very little about the problem, citing legal doctrine and economic analysis that blesses digital platforms' abusive practices as the culmination of market rationality. That quiescence is based on several misconceptions about platforms, consumers, and markets. Contemporary scholarship on competition in digital industries is far more sophisticated than the approaches now commonly adopted at the Federal Trade Commission's Bureau of Competition and the Antitrust Division at the Department of Justice. To remain relevant in an era when international authorities are at the cutting edge of competition enforcement, these agencies will need to acquaint themselves with cutting edge research. This essay offers a brief introduction to that work.
%SOURCENAMEESCAPED%, REVISION: Une Nouvelle Course aux Armements: Surveillance des Donnees Informatiques et Finance Dematerialisee (Big Data, Digital Finance, and the Surveillance Arms Race), http://www.ssrn.com/abstract=3002528 (August 16, 2017)

French Abstract: A l'heure actuelle, le thème de la surveillance est sujet à controverses. De gigantesques appareils de renseignements nationaux et internationaux sont appams en Europe, en Amérique du Nord et en Asie. Ils commettent parfois des erreurs spectaculaires, ignorant des menaces réelles ou, à l'inverse, stigmatisant et jetant en prison des personnes innocentes. Les services de renseignement ont alors tendance à mettre leurs échecs sur le compte de l'insuffisance des moyens de surveillance. D'après eux, si l'on pouvait avoir accès à de plus grandes réserves de données, et de manière plus immédiate, on serait alors capable de détecter, de prévenir et de mettre en échec davantage de menaces. Quand de tels moyens de surveillance sont demandés, l'on observe que certaines franges de la société ont la possibilité de mobiliser des ressources en vue de s'y opposer, tandis que d'autres ne le peuvent pas . En voici un exemple : une fraude commise aux Etats-Unis par des membres ...
%SOURCENAMEESCAPED%, New: Crowdsourcing Genomics: Exploring Precision FDA, http://www.ssrn.com/abstract=3017395 (August 14, 2017)

Times and technologies are a changin’ in the era of precision medicine. In May 2017, the U.S. Food and Drug Administration (FDA) approved the first cancer treatment based on a genetic biomarker rather than the tissue of origin. One month later, the agency approved a companion diagnostic panel that utilizes next generation sequencing (NGS) to simultaneously screen a genetic sample for 23 cancer genes, three of which have FDA-approved therapies for non-small cell lung cancer. Together, these developments represent a “seismic shift” in the field of oncology and illustrate the tremendous promise for medicine facilitated by NGS. However, innovative NGS research and data-sharing models depart in significant ways from traditional research and development relationships in the life sciences, potentially raising a host of novel legal questions. NGS is getting cheaper and easier, yet generates an overwhelming amount of genomic information. Current NGS technologies utilize various emerging ...
%SOURCENAMEESCAPED%, New: Presidential Administration Under Trump, http://www.ssrn.com/abstract=3015591 (August 9, 2017)

In an enormously influential 2001 article about the increasingly dominant role of the President in regulation, then-Professor Elena Kagan celebrated the rise of what she called presidential administration. Recognizing the unpredictability of future developments, however, she observed that “the practice of presidential control over administration likely will continue to evolve in ways that raise new issues and cast doubt on old conclusions.” In that spirit, this Essay reexamines her thesis in light of experience under subsequent presidents, with a particular focus on the Trump Administration. Though the Trump Administration is still less than a year old, it is not too early to start drawing conclusions about its institutional structure and decision-making processes. These seem to be at odds with Kagan’s assumptions about the implementation of presidential administration. Doctrines must be designed with a range of possible executive behavior in mind, not on the basis of one ...
%SOURCENAMEESCAPED%, New: Toward a Critical Theory of Corporate Wellness, http://www.ssrn.com/abstract=3010313 (August 1, 2017)

In the U.S., ‘employee wellness’ programs are increasingly attached to employer-provided health insurance. These programs attempt to nudge employees, sometimes quite forcefully, into healthy behaviors such as smoking cessation and exercise routines. Despite being widely promoted as saving on healthcare costs, numerous studies undermine this rationale. After documenting the programs’ failure to deliver a positive return on investment, we analyze them as instead providing an opportunity for employers to exercise increasing control over their employees. Based on human capital theory and neoliberal models of subjectivity that emphasize personal control and responsibility, these programs treat wellness as a lifestyle that employees must be cajoled into adopting, extending the workplace not just into the home but into the bodies of workers, and entrenching the view that one belongs to one’s workplace. At the same time, their selective endorsement of health programs (many scientifically ...
%SOURCENAMEESCAPED%, New: Privacy, the Hacker Way, http://www.ssrn.com/abstract=3004803 (July 22, 2017)

This Article seeks to clarify the relationship between contract law and promises of privacy and information security. It challenges three commonly held misconceptions in privacy literature regarding the relationship between contract and data protection — the propertization fatalism, the economic value fatalism, and the displacement fatalism — and argues in favor of embracing contract law as a way to enhance consumer privacy. Using analysis from Sorrell v. IMS Health Inc., marketing theory, and the work of Pierre Bourdieu, it argues that the value in information contracts is inherently relational: consumers provide “things of value” — rights of access to valuable informational constructs of identity and context — in exchange for access to certain services provided by the data aggregator. This Article presents a contract-based consumer protection approach to privacy and information security. Modeled on trade secret law and landlord-tenant law, it advocates for courts and legislatures ...
%SOURCENAMEESCAPED%, New: The Law of the Zebra, http://www.ssrn.com/abstract=3004800 (July 22, 2017)

At the dawn of internet law, scholars and judges debated whether a “law of the horse” — a set of specific laws addressing technology problems — was ever needed. Time has demonstrated that in some cases, the answer is yes. However, some courts are confused about the appropriate trajectory of contract law in technology contexts. Today, a technologycentric analysis threatens to subvert traditional contract law and the future of entrepreneurship, and circuit splits have emerged in what might be called an undesirable “law of the zebra.” Do contracts that involve technology always require exceptional contract rules? In particular, does the use of a computer to breach a contract make the breach inherently worse in law? Using the Computer Fraud and Abuse Act (“CFAA”) as a case study, this Article introduces a paradigm of “restrained technology exceptionalism” in contract law, a paradigm predicated on a return to traditional contract law principles and contractual supremacy over technology ...
%SOURCENAMEESCAPED%, New: The Scholarship of Resonance in an Era of Discord, http://www.ssrn.com/abstract=3002527 (July 19, 2017)

This is a foreword to an issue of the Seton Hall Law Review dedicated to the scholarly legacy of Professor Marc Poirier. Marc was an exceptional scholar, teacher, and colleague. He was a deeply learned man, conversant in areas ranging from the jurisprudence of interpretation to the science of global warming. This foreword both celebrates Marc’s scholarly legacy, and introduces four works in the special issue inspired by his work.
%SOURCENAMEESCAPED%, New: Two Narratives of Platform Capitalism, http://www.ssrn.com/abstract=3002529 (July 19, 2017)

One may challenge conventional narratives of platform capitalism by contesting the empirical validity of their factual foundations. Such an empirical approach is one way of pursuing a fruitful hermeneutics of suspicion. But it is not sufficient to dislodge conventional narratives from the heuristics so often resorted to by policymakers. Rather, just as it “takes a theory to beat a theory,” a plausible counternarrative is far more likely to displace a conventional narrative than isolated empirical challenges to the conventional narrative’s factual foundations. This essay develops a counternarrative to dominant approaches to platform capitalism.
%SOURCENAMEESCAPED%, New: Toward a Fourth Law of Robotics: Preserving Attribution, Responsibility, and Explainability in an Algorithmic Society, http://www.ssrn.com/abstract=3002546 (July 19, 2017)

Jack Balkin makes several important contributions to legal theory and ethics in his lecture, “The Three Laws of Robotics in the Age of Big Data.” He proposes “laws of robotics” for an “algorithmic society” characterized by “social and economic decision making by algorithms, robots, and AI agents.” These laws both elegantly encapsulate, and add new principles to, a growing movement for accountable design and deployment of algorithms. My comment aims to 1) contextualize his proposal as a kind of “regulation of regulation,” familiar from the perspective of administrative law, 2) expand the range of methodological perspectives capable of identifying “algorithmic nuisance,” a key concept in Balkin’s lecture, and 3) propose a fourth law of robotics to ensure the viability of Balkin’s three laws.
%SOURCENAMEESCAPED%, REVISION: Currencies and the Commodification of Environmental Law, http://www.ssrn.com/abstract=254391 (July 15, 2017)

In this article, we reconceptualize the debate over environmental trading markets (ETMs). In exploring efforts to promote nonfungible trading (i.e. trading environmental apples for oranges) we undertake a rigorous examination of environmental commodities and the measures of exchange (currencies) we use to trade them. We argue that by focusing on nonfungible commodities and their currencies we can better explain structure of ETMs, their rules of exchange, and provisions for public participation. In short, we contend that a more complete understanding of the root issues of commodity and currency provides a previously unlaid and strong foundation to understand better the potential and design of ETMs. By breaking down the problem of ensuring environmental protection in the face of nonfungibilities, we create an analytical framework that can inform the assessment of any ETM. The structure flows from three distinct stages of an ETM's operation. Currency adequacy involves selection of the ...
%SOURCENAMEESCAPED%, REVISION: The Fragile Menagerie: Biodiversity Loss, Climate Change, and the Law, http://www.ssrn.com/abstract=2862882 (July 15, 2017)

The greatest vectors of biodiversity loss in the Anthropocene epoch are climate change, habitat destruction, invasive species, pollution, population, and overkill. Perversely enough, the legal understanding of extinction mechanisms remains frozen in time, like a cave dweller in ice. Climate change, habitat destruction, and alien invasive species should figure more prominently than overkill and the marketing of products derived from endangered species. The law, however, imposes its clearest and harshest sanctions precisely where the drivers of extinction are weakest: when humans consciously capture or kill other living things. The Endangered Species Act has been adapted to address habitat destruction on private land and to mitigate climate change. Nevertheless, the law’s lack of congruence with conservation biology impedes efforts to preserve biodiversity and mitigate climate change.
%SOURCENAMEESCAPED%, REVISION: The Conservative as Environmentalist: From Goldwater and the Early Reagan to the 21st Century, http://www.ssrn.com/abstract=2919633 (July 14, 2017)

Today, we often think of conservatives as opposed to environmental regulation. Yet it has not always been so. Conservative icons like William F. Buckley and Barry Goldwater took vigorous public stands in favor of environmental protection. Ronald Reagan championed protection of wilderness when he was governor of California and oversaw the creation of the state’s pollution control agency. He shifted to an anti-regulatory stance in the early years of his presidency, but then shifted again to a more moderate position. Few people know that he personally championed the international ozone agreement and signed a law to require planning for possible climate change. Even today, there are important conservative voices advocating environmental initiatives such as a carbon tax. This Article recovers the forgotten history of conservative environmentalism. It argues that conservative environmentalism faded largely because of external political forces, such as the influence of the fossil ...
%SOURCENAMEESCAPED%, New: Teaching the Law of American Health Care, http://www.ssrn.com/abstract=2995045 (June 30, 2017)

In writing our casebook, The Law of American Health Care, we started from scratch, rethinking the topics to include and themes around which to organize them. Like many health law professors, we were schooled in and continued to propound the traditional themes of cost, quality, access, and choice. While those concerns certainly pervade many areas of health care law, our casebook's overarching themes emphasize different issues, namely: federalism, individual rights, fiduciary relationships, the modem administrative state, and market regulation. These new themes, we believe, better capture the range of issues and topics essential for the new generation of health lawyers. When we set out to write The Law of American Health Care, our objectives were threefold: (1) simplify; (2) emphasize primary sources; and (3) reorganize the classic state-based law approach to "Law and Medicine" to reflect the dominance of federal law in the post-Affordable Care Act (ACA) era. In this essay, we will ...
%SOURCENAMEESCAPED%, REVISION: Cultivating Innovation in Precision Medicine Through Regulatory Flexibility at the FDA, http://www.ssrn.com/abstract=2916387 (June 16, 2017)

Medical researchers perpetually aspire to a future where an individual’s genes will chart the way for the identification and prescription of the right lifesaving drug. The drug will be tailored to a patient’s specific genetic profile, assuring that the drug will work safely and effectively for that patient. During the course of care, a physician will extract a biological sample from the patient, run it through a diagnostic test, and the test results, along with the patient’s medical history, will guide the medical decision on which drug to prescribe. Such an integrative process eliminates the potential for that patient to experience devastating adverse drug events because the drug is not safe for them or receive ineffective (and assuredly expensive) treatment because the drug is not working for them. Such a future provides benefits not only to the patient but also to countless entities and actors within the public health and medical enterprise. This scenario may be coming closer ...
%SOURCENAMEESCAPED%, REVISION: A Nonobvious Comparison: Nonobviousness Decisions at the PTAB and in the Federal Courts, http://www.ssrn.com/abstract=2943504 (June 13, 2017)

In an effort to elucidate how the challenges of nonobviousness decisions affect different decision-makers, this article presents an original dataset of nonobviousness decisions throughout the patent decision process. This dataset includes nonobviousness decisions at the Patent and Trademark Office and in the federal courts for the time period subsequent to the effective date of the Leahy-Smith America Invents Act’s (AIA) first-to-file provisions. The results provide strong evidence that nonobviousness decisions are highly indeterminate: similarly situated decision-makers in the same cases reach differing conclusions on nonobviousness at a strikingly high rate. The data does not support the hypothesis that technologically sophisticated decision-makers are better able to make judgements from the perspective of a person of ordinary skill in the art. Finally, the analysis provides some potential support for the possibility that technologically trained individuals may exhibit slightly ...
%SOURCENAMEESCAPED%, New: In Praise of Margaret Howard, http://www.ssrn.com/abstract=2981404 (June 10, 2017)

One in a series of essays celebrating the scholarship of (and personality of) Professor Margaret Howard.
%SOURCENAMEESCAPED%, REVISION: The Copyright Holdout Problem and New Internet-Based Services, http://www.ssrn.com/abstract=2815825 (June 6, 2017)

This chapter examines the holdout problem involving a copyright holder’s refusal to license digital content to internet users or third-party intermediaries despite the possibilities of socially valuable uses. It begins with two case studies illustrating the classic holdout problem, which often arises when transaction costs are high or when parties have drastically different expectations. The first case study focuses on the developments concerning Google Books. The second case study examines YouTube and the emergent development of user-generated content. The chapter concludes with three sets of preemptive legal responses that can help address the internet-related copyright holdout problem: limitations and exceptions in copyright law, compulsory or statutory licensing arrangements, and exogenous constraints imposed by competition law.
%SOURCENAMEESCAPED%, REVISION: A Seamless Global Digital Marketplace of Entertainment Content, http://www.ssrn.com/abstract=2834367 (June 6, 2017)

In January 2016, Netflix launched its streaming service globally into more than 130 new countries. It also announced its plan to ban the subscribers' use of proxies, unblockers and virtual private networks (VPN) to view movies and TV programs unavailable in the subscribers' countries. With this ban in place, Australian subscribers will no longer be able to watch U.S. shows until they become available Down Under. Likewise, U.S. subscribers who are addicted to British shows will have to wait for those shows to come stateside. The content providers' desire for this geocircumvention ban is easy to understand. If Australian fans have already watched a U.S. show via Netflix, who will tune in when the show finally arrives in Australia? Thus far, movie studios and TV producers have repeatedly criticized Netflix for turning a blind eye to unlicensed viewing. Had the company continued to ignore geographical licensing restrictions, many of these content providers might eventually have pulled ...
%SOURCENAMEESCAPED%, REVISION: The More Copyright Laws Change, the More Digital Challenges Stay the Same, http://www.ssrn.com/abstract=2846857 (June 6, 2017)

This essay was a contribution to the Liber Amicorum for Professor Jan Rosén of Stockholm University, a former president of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP). Drawing on Professor Rosén's scholarship, the essay shows how today's judges, legislators, policymakers and commentators continue to address questions that copyright and media law scholars have explored in the past decades. Specifically, this essay focuses on two topics. The first topic concerns the exhaustion of distribution rights in computer software and other digital works, including regional exhaustion within the European Union. The second topic covers the conflict between copyright and freedom of expression. It ties the discussion to the larger debate on intellectual property and human rights. Both topics remain timely and highly relevant today.
%SOURCENAMEESCAPED%, Update: The Production Function of the Regulatory State: How Much Do Agency Budgets Matter?, http://www.ssrn.com/abstract=2927208 (May 31, 2017)

How much will our budget be cut be this year? This question has loomed ominously over regulatory agencies for over three decades. After the 2016 presidential election, it now stands front and center in federal policy, with the Trump administration pledging over $50 billion in cuts. Yet very little is known about the fundamental relationship between regulatory agencies’ budgets and the social welfare outcomes they are charged to produce. Indeed, the question is scarcely studied in scholarship from law, economics, or political science. This article lays the groundwork for a new field of theoretical and empirical research, using what we call the “regulatory production function,” to understand the marginal effects of changes in regulatory agency budgets (both reductions and increases) on the levels of benefits they produce. Our proposed theoretical framework and empirical findings have important implications across the regulatory state on the relationship between agency funding and ...
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%SOURCENAMEESCAPED%, REVISION: Agencies as Adversaries, http://www.ssrn.com/abstract=2841253 (May 28, 2017)

Conflict between agencies and outsiders — whether private stakeholders, state governments, or Congress — is the primary focus of administrative law. But battles also rage within the administrative state: federal agencies, or actors within them, are the adversaries. Recent examples abound. In President Obama’s Administration, there was the battle between the Federal Bureau of Investigation and the Department of Defense over hacking the iPhone of one of the San Bernardino shooters, the conflict between the State Department and the Central Intelligence Agency over classifying some aspects of Secretary Hillary Clinton’s emails, and the sharp division between the Republican and Democratic members of the Federal Communications Commission on net neutrality. President Trump’s Administration has begun with intense internal conflict. After President Trump issued his first immigration executive order, fights started — largely between holdover appointees (as well as career bureaucrats) and the ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Economic Development, and the China Puzzle, http://www.ssrn.com/abstract=978301 (May 17, 2017)

Since the late 1980s, the Chinese economy has been growing at an enviable average annual rate of about 10 per cent. Accompanying this unprecedented economic development and growth was the maturation of the modern Chinese intellectual property system. Since the reopening of its market to foreign trade in the late 1970s, China introduced its first modern copyright, patent, and trademark laws. A decade later, China revamped its intellectual property system in response to US pressure and did so again in preparation for its accession to the WTO. At present, China is a proud member of many multilateral intellectual property agreements. Notwithstanding these developments, the enforcement of intellectual property rights in China remains inadequate. Although commentators often link intellectual property protection with economic development, China thus far has presented a puzzle to those who study this link. While some commentators consider China a paradigmatic case for showing that rapid ...
%SOURCENAMEESCAPED%, REVISION: The Global Governance of HIV/AIDS and the Rugged Road Ahead: An Epilogue, http://www.ssrn.com/abstract=1938850 (May 17, 2017)

This short essay explores the 'rugged road ahead' for HIV/AIDS governance, with a focus on the intersection between intellectual property and access to essential medicines. It identifies promising changes that have taken place since the launch of the Doha Development Round of Trade Negotiations. It further highlights challenges that continue to haunt the HIV/AIDS governance regime while reducing access to essential medicines in developing countries.
%SOURCENAMEESCAPED%, REVISION: The Middle Intellectual Property Powers, http://www.ssrn.com/abstract=2144505 (May 17, 2017)

Commissioned by a project funded by the Hague Institute for the Internationalisation of Law, this chapter examines a group of middle-income countries that have played or will play important roles in the international intellectual property regime. It begins by noting the challenges in identifying intellectual property developments in middle-income countries, due in large part to their divergent needs, interests, conditions and priorities. The chapter then contends that a smaller subset of this group will play important roles in the international intellectual property regime. Termed the "middle intellectual property powers," this subset includes Brazil, China, India, the uncontested leaders of the developing world. It could also cover other countries such as Argentina, Indonesia, Malaysia, the Philippines, Russia, South Africa and Thailand. Focusing on these emerging powers and drawing on statistics provided by the World Bank, the World Intellectual Property Organization and other ...
%SOURCENAMEESCAPED%, REVISION: Moral Rights 2.0, http://www.ssrn.com/abstract=1692500 (May 17, 2017)

In recent years, commentators have developed a renewed interest in moral rights. Although there remain significant differences between U.S. and European copyright laws, these differences are unlikely to present significant challenges to the future development of moral rights. Instead, challenges are likely to come from the changing socio-technological environment, due in no small part to the internet and the arrival of new media technologies. In the digital age, the protection of moral rights has raised four new sets of questions: (1) Are moral rights becoming obsolete? (2) Can the protection of these rights meet the demands of a growing semiotic democracy? (3) Would such protection threaten the development of a participatory democratic culture in countries with heavy information control? (4) Should moral rights be extended to cover a new ‘right to delete’ in the digital environment? This short essay examines each of these questions.
%SOURCENAMEESCAPED%, REVISION: The First Decade of TRIPS in China, http://www.ssrn.com/abstract=2175385 (May 17, 2017)

This chapter reviews intellectual property developments in China in its first decade of WTO membership, focusing primarily on developments within the organization. It shows how China has transformed from a passive taker of international intellectual property norms to one that has slowly assumed the additional roles of both a norm shaker and a norm maker. The chapter begins by providing an overview of reforms China undertook in the run-up to the accession. It examines the low profile China maintained in the WTO in the first few post-accession years. It also acknowledges China’s limited interest in international intellectual property norm-setting, including its rare submission to the Committee on Technical Barriers to Trade. The chapter then examines the recent U.S.-China WTO dispute over the protection and enforcement of intellectual property rights and its high-profile intervention in the June 2010 meeting of the TRIPS Council. It concludes with a discussion of China’s ...
%SOURCENAMEESCAPED%, REVISION: The Confucian Challenge to Intellectual Property Reforms, http://www.ssrn.com/abstract=2173094 (May 17, 2017)

Written for a special issue on intellectual property and culture, this essay examines the longstanding claim that culture presents a major barrier to intellectual property reforms. In the context of Asia -- China, in particular -- that claim invokes Confucianism, a non-Western culture, to account for the region's -- or the country's -- continued struggle with massive piracy and counterfeiting problems. The claim draws on a century-old tradition of condemning Confucianism for being antithetical to Western modernity. The first half of this essay focuses on the Confucian challenge to intellectual property reforms in China. Drawing on the important distinction between the strong and weak forms of the cultural explanation, this part argues that the latter is more consistent with reality. The second half of the essay expands the discussion to cover other Asian countries. Implicating the decades-old debate on "Asian values", this part points out that Confucianism provides an even greater ...
%SOURCENAMEESCAPED%, REVISION: Enforcement: A Neglected Child in the Intellectual Property Family, http://www.ssrn.com/abstract=2662834 (May 17, 2017)

Effective enforcement is essential to the protection of intellectual property rights. Without enforcement, these rights will be of little value. Although intellectual property enforcement has been around for as long as intellectual property rights have existed, this topic has not caught much attention from intellectual property commentators and instructors until the past decade. Today, there remains a dearth of theoretical literature on intellectual property enforcement, and specialized courses on this topic remain rare. Even when enforcement is covered as part of an intellectual property course, the topic tends to be discussed either at the end of the course or in conjunction with infringements. This chapter begins by identifying four different types of enforcement issues that intellectual property commentators and instructors usually explore. It then discusses why enforcement remains a neglected child in the intellectual property family. It further suggests two different tracks — ...
%SOURCENAMEESCAPED%, REVISION: Law on the Market? Abnormal Stock Returns and Supreme Court Decision-Making, http://www.ssrn.com/abstract=2649726 (May 16, 2017)

What happens when the Supreme Court of the United States decides a case impacting one or more publicly-traded firms? While many have observed anecdotal evidence linking decisions or oral arguments to abnormal stock returns, few have rigorously or systematically investigated the behavior of equities around Supreme Court actions. In this research, we present the first comprehensive, longitudinal study on the topic, spanning over 15 years and hundreds of cases and firms. Using both intra- and interday data around decisions and oral arguments, we evaluate the frequency and magnitude of statistically-significant abnormal return events after Supreme Court action. On a per-term basis, we find 5.3 cases and 7.8 stocks that exhibit abnormal returns after decision. In total, across the cases we examined, we find 79 out of the 211 cases (37%) exhibit an average abnormal return of 4.4% over a two-session window with an average |t|-statistic of 2.9. Finally, we observe that abnormal ...
%SOURCENAMEESCAPED%, REVISION: Beyond Zero-Sum Environmentalism, http://www.ssrn.com/abstract=2945666 (May 16, 2017)

Environmental law and environmental protection are often portrayed as requiring trade offs: “jobs versus environment,” “markets versus regulation,” “enforcement versus incentives.” In the summer of 2016, members of the Environmental Law Collaborative gathered to consider how environmentalism and environmental regulation can advance beyond this framing to include new constituents and offer new pathways to tackle the many significant challenges ahead. Months later, the initial activities of the Trump Administration highlighted the use of zero-sum rhetoric, with the appointment of government officials and the issuance of executive orders that indeed seem to view environmental issues as in a zero-sum relationship with jobs or economic progress. In the essays below, the authors explore the meaning and the role of zero-sum environmentalism as a first step in moving beyond it.
%SOURCENAMEESCAPED%, New: Even-Keeled Moments of Doubt, http://www.ssrn.com/abstract=2967244 (May 13, 2017)

Uncertainty affects all aspects of economics. A principle this vital demands a mathematically precise definition. The distinction between risk and uncertainty, as made by Frank Knight (1921) and John Maynard Keynes (1937), invites the following definition (Anderson, Ghysels & Juergens 2009): An event is risky if its outcome is unknown but the distribution of its outcomes is known. By contrast, an event is uncertain if its outcome is unknown and the distribution of its outcomes is also unknown. In fat-tailed problems where historical evidence does not reflect the true distribution of extreme outcomes, kurtosis approximates uncertainty. This intuition arises from options pricing models where both price and volatility fluctuate stochastically (Heston 1993).
%SOURCENAMEESCAPED%, REVISION: What is IP For? Experiments in Lay and Expert Perceptions, http://www.ssrn.com/abstract=2954010 (May 10, 2017)

The normative justifications for intellectual property (“IP”) law are richly debated. Some policymakers and experts argue that intellectual property should serve utilitarian goals, while others contend that the law should seek to protect natural rights or expressive ends. Such debates have historically lacked data concerning how human actors in the IP system actually conceive of the law. This Essay examines the results of experiments on the understanding of IP law for two critical components of the IP system: the public at large and IP attorneys. The studies of popular perceptions of IP law reveal that the most prevalent perception does not align with any of the commonly accepted bases. Rather, the modal response is that IP law exists to prevent plagiarism. The study of IP attorneys displays much greater alignment with an incentivist approach to IP rights. That being said, even here there is still variation in this conception and in how IP conceptions align with opinions on the ...
%SOURCENAMEESCAPED%, New: Thinking About the Trans-Pacific Partnership (and a Mega-Regional Agreement on Life Support), http://www.ssrn.com/abstract=2957006 (April 24, 2017)

Commissioned for a conference on the Trans-Pacific Partnership (TPP) at VNU University of Economics & Law in Vietnam, this article provides a retrospective analysis of the partnership. It begins with a historical overview of the TPP. The article then examines the partnership’s status in light of the United States' recent withdrawal. It contends that the TPP will exert four sets of influence on trade and intellectual property normsetting even though it has now been placed on life support. The second half of this article identifies three interrelated but distinct aspects of the TPP: (1) as a TRIPS-plus intellectual property agreement; (2) as a regional investment agreement; and (3) as a plurilateral trade agreement. The analysis in this portion of the article will be valid regardless of whether the TPP is dead or alive. It will also be applicable to future bilateral, regional and plurilateral trade agreements.
%SOURCENAMEESCAPED%, New: The Jurisprudence of Slavery, Freedom, and Union at Washington College, 1831-1861, http://www.ssrn.com/abstract=2956911 (April 24, 2017)

In the thirty years leading into Civil War faculty and students at Washington College and the Virginia Military Institute discussed ideas about adherence to Union, the legal justification of slavery, slaves’ claims to freedom, and jurisprudence. Their discussion of jurisprudence included the need for adherence to law, and the roles of morality, sentiment, and utility in law. This article draws upon public addresses, like graduation speeches, at Washington College and VMI, to recover the sophisticated legal ideas in circulation in Lexington. Washington College was a place of Whig values of Union, adherence to law, and concern for utility. Speakers supported common Whig ideas, including the need for republican government to check excesses of democracy and a focus on the ways that a well-ordered society and respect for property and Christianity led to moral and economic progress. It also moved from a place where faculty held Enlightenment ideas about freedom – even if circumscribed by ...
%SOURCENAMEESCAPED%, REVISION: Black Power in a Prison Library, http://www.ssrn.com/abstract=2901475 (April 23, 2017)

"Black Power in a Prison Library" focuses on a list of 90 books on the black experience in America that were ordered added to the Marion, Ohio Correctional Institution in 1972. It uses the list as a way of gauging what books the plaintiffs (and thus the court) thought were essential to telling the African American experience. And in that way, we can use the list to reconstruct the contours of the bibliographic world of the African American experience in the early 1970s. The list reflects an interest in history of slavery, Reconstruction and Jim Crow, the literature of the Harlem Renaissance, the 1960s Civil Rights Movement, and contemporary works on Black Power. Notably thin is prison literature. Together the books help form a picture of the critique of law made by Black Power writers and the ways those claims built on historical, sociological, and civil rights literature. The book list, thus, suggests some of the ways that books propagated and gave definition to Black Power ...
%SOURCENAMEESCAPED%, New: A Generalized Higher-Moment Capital Asset Pricing Model, with Theoretical Implications and Legal Applications, http://www.ssrn.com/abstract=2942637 (March 30, 2017)

The conventional capital asset pricing model (CAPM) has come under severe attack for its failure to reflect investor behavior. This paper describes financial decision-making under uncertainty in formal mathematical terms as a generalized higher-moment capital asset pricing model. It develops that model through the Taylor series expansion of the logarithm of expected financial returns. This mathematical expedient treats the conventional two-moment CAPM and a four-moment variant (expressed in terms of mean, variance, skewness, and kurtosis) as convenient, mentally tractable special cases of a generalized higher-moment model. This paper then explores the theoretical implications and legal applications of higher-moment asset pricing. In prospect theory, perhaps the best known expression of behavioral economics, a “fourfold pattern” of decisionmaking under uncertainty predicts risk-seeking behavior in particular circumstances. Skewness preference arises in a wide variety of economic ...
%SOURCENAMEESCAPED%, New: The Production Function of the Regulatory State: How Much Do Agency Budgets Matter?, http://www.ssrn.com/abstract=2927208 (March 28, 2017)

How much will our budget be cut be this year? This question has loomed ominously over regulatory agencies for over three decades. After the 2016 presidential election, it now stands front and center in federal policy, with the Trump administration pledging over $50 billion in cuts. Yet very little is known about the fundamental relationship between regulatory agencies’ budgets and the social welfare outcomes they are charged to produce. Indeed, the question is scarcely studied in scholarship from law, economics, or political science. This article lays the groundwork for a new field of theoretical and empirical research, using what we call the “regulatory production function,” to understand the marginal effects of changes in regulatory agency budgets (both reductions and increases) on the levels of benefits they produce. Our proposed theoretical framework and empirical findings have important implications across the regulatory state on the relationship between agency funding and ...
%SOURCENAMEESCAPED%, REVISION: Seeing past the Zero Sum Game in Environmental Policy – Harder Than It Looks, http://www.ssrn.com/abstract=2920572 (March 28, 2017)

In Nonzero: The Logic of Human Destiny, Robert Wright offers a sweeping view of human evolution that culminates in his argument that modern society has become so complex and interconnected that there are no true “zero sum” games to be played between people or institutions. Indeed, much of environmental policy rests on the promise of improving the greater good by leveraging the ubiquitous presence of nonzerosumness. But Wright’s thesis turns back on itself. There is no question that social-ecological systems (SES) are highly complex and interconnected, making true zero sum games hard to find. But the sheer complexity of massive SESs is what also makes it excruciatingly difficult to connect all the dots of the nonzero sum game within the SES. At a macro scale, nonzero sum rules; at the micro scale of the farmer seeing more water go by the farm in the river, it looks like zero sum. In this short essay I outline six reasons why seeing past these micro zero sum game is so difficult, ...
%SOURCENAMEESCAPED%, New: Income-Dependent Punitive Damages, http://www.ssrn.com/abstract=2938364 (March 22, 2017)

Punitive damages have been very salient in the media, preoccupied appellate courts, and fascinated scholars for decades. But although their availability seems undisputed in most common law jurisdictions, their measure remains controversial. In particular, it is unclear whether and how courts and juries should take the defendant’s financial condition into account in assessing punitive damages. The Article puts forward and defends an innovative yet simple method for incorporating this factor into the calculation. Our proposal is based on an adaptation of a criminal law model, known as “day-fines,” which has been primarily used in European and Latin-American legal systems. In brief, if the gravity of the wrong seems to justify an extra-compensatory award, the scope of punitive damages will be determined in several steps. First, the court must determine the gravity of the wrong and translate it into corresponding “severity units.” Next, the court must assess the “unit value”—the ...
%SOURCENAMEESCAPED%, REVISION: What Is (and Isn't) Healthism, http://www.ssrn.com/abstract=2646740 (March 18, 2017)

What does it mean to discriminate on the basis of health status? Health is, of course, relevant in a number of ways. It can speak to the length of our lives, our ability to perform mentally and physically, our need for health care, and our risk of injury and incapacity. But the mere relevance of a particular attribute does mean that considering it should be legally permissible. Moreover, the potential harms that may result from health-status discrimination raise important moral questions. This Essay explores when differentiating on the basis of health is socially acceptable and, by contrast, when it is normatively problematic. Given that variations in health may correlate strongly with the kinds of cost- and performance-related factors identified above, the authors provide a theoretical framework for assessing when considering health-related status is justifiable — perhaps even desirable — and when it is discriminatory.
%SOURCENAMEESCAPED%, REVISION: International Technology Contracts, Restrictive Covenants and the UNCTAD Code, http://www.ssrn.com/abstract=2515234 (March 9, 2017)

One set of historical developments that will allow us to gain unique insight into the international debate on trade secrets and restrictive covenants concerns the negotiation of the International Code of Conduct on the Transfer of Technology. Established under the auspices of the UN Conference on Trade and Development (UNCTAD), this Code aimed to remove restrictive business practices that had stifled technology transfer and economic development in developing countries. Although the UNCTAD Code was not adopted after close to a decade of negotiations, it has important legacies that have affected global developments in the area of intellectual property and competition laws. A close study of the negotiations will also enable us to anticipate the challenges concerning the push for reform to strengthen the cross-border protection of workplace knowledge. This chapter begins by outlining the various restrictive business practices that are commonly written into international technology ...
%SOURCENAMEESCAPED%, REVISION: The Investment-Related Aspects of Intellectual Property Rights, http://www.ssrn.com/abstract=2840278 (March 9, 2017)

From the debate among presidential candidates on whether the United States should ratify the Trans-Pacific Partnership (TPP) Agreement to the arbitrations Philip Morris and Eli Lilly have sought through the investor-state dispute settlement (ISDS) mechanism, the investment-related aspects of intellectual property rights have recently garnered considerable policy, scholarly and media attention. This growing attention, to some extent, has brought back memories about the time when the WTO TRIPS Agreement began to transform intellectual property law and policy by redirecting our focus to the trade-related aspects of intellectual property rights. Whether the recent developments on the investment front represent yet another paradigm shift remains an important academic and policy question. To address this question, the present article critically examines the investment-related aspects of intellectual property rights, with a focus on the use of ISDS to address international disputes ...
%SOURCENAMEESCAPED%, New: Amicus Brief on Ecosystem Services in the ACF Equitable Apportionment Proceeding, http://www.ssrn.com/abstract=2920790 (February 22, 2017)

A river is more than water flowing downhill. It follows that equitable apportionment doctrine is about more than just how much water must flow downhill across a state line. While that quantum is often the end product of an interstate river equitable apportionment decree, the underlying question the doctrine must answer to designate such a quantum is, “What is being allocated, and on what basis?” The purpose of this amicus brief is to present the case for using principles from the scientific discipline of “ecosystem services” to help answer that question, specifically in this proceeding but also more generally for the doctrine. Ecosystem services are the benefits humans receive from natural resources in the form of goods, such as water, fish, and timber, and of services, such as groundwater recharge, flood mitigation, and salinity regulation, many of which are public or quasi-public goods and thus not easily accounted for in markets. It should come as no surprise that there are ...
%SOURCENAMEESCAPED%, REVISION: The Copy in Copyright, http://www.ssrn.com/abstract=2632914 (February 16, 2017)

Since their inception, copyright and proto-copyright laws have been developed around the concept of "copy," which primarily referred to printed book manuscripts in the reign of Queen Anne. Although copyright began mostly as a right vested in copies, and therefore a right to prevent others from multiplying copies, the emphasis has now been dramatically shifted to the act of copying itself. The terms "copy" and "copies" have also been slowly re-conceptualized to respond to changing technology and to expand the scope of copyright protection. The first half of this chapter takes a historical perspective. It recounts the use of the concept of "copy" by the Stationers’ Company and in the Statute of Anne. It also addresses two different sets of challenges to this foundational concept. The first set focuses on the seminal case of White-Smith Music Publishing Co. v Apollo Co., the first major challenge to this concept on the other side of the Atlantic. The second set concerns the efforts in ...
%SOURCENAMEESCAPED%, New: Ethics: Why We Must Play Well with Others (And Why We Don’t), http://www.ssrn.com/abstract=2917346 (February 15, 2017)

This essay discusses how ethical behavior is affected by group dynamics.
%SOURCENAMEESCAPED%, REVISION: Fables of the Reconstruction: Human Emotion and Behavioral Heuristics in Environmental Economics, http://www.ssrn.com/abstract=2705196 (February 3, 2017)

Environmental economics provides an especially rich source of insights into the impact of emotion, cognitive bias, and behavioral heuristics on risk assessment and management. In contrast with the ambivalent reception of behavioral psychology within mathematical finance, the impact of emotion and innate heuristics on environmental decision making has never been doubted. From the affect heuristic to the endowment effect and disaster psychology, environmental choices harbor the richest trove of economic departures from strict rationality.
%SOURCENAMEESCAPED%, REVISION: Special Economic Zones in the United States: From Colonial Charters, to Foreign-Trade Zones, Toward USSEZs, http://www.ssrn.com/abstract=2743774 (January 26, 2017)

Special economic zones (SEZs) have a long and complicated relationship with the United States. The lineage of the country runs back to proto-SEZs, created when Old World governments sold entrepreneurs charters to build for-profit colonies in the New World, such as Jamestown and New Amsterdam. In more recent times, though, the United States has lagged behind the rest of the globe in tapping the potential of SEZs, which have exploded in number, types, territory, and population. True, the US hosts a large and growing number of Foreign-Trade Zones (FTZs), but these do little more than exempt select companies from federal customs obligations. Elsewhere, SEZs have done much more to increase jurisdictional competition and improve citizens' lives. Consider the SEZs that spread from Hong Kong throughout China, lifting tens of millions of people out of poverty in the process, or the huge private developments now taking root in Africa, the Middle East, and India. This paper proposes that ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Negotiations, the BRICS Factor and the Changing North–South Debate, http://www.ssrn.com/abstract=2665414 (January 16, 2017)

Since the early 2000s, commentators have lumped Brazil, Russia, India, China and South Africa together under the BRICS acronym. In the past few years, the BRICS countries have also met annually to explore greater cooperation. Although their popularity and collective influence have recently declined, these countries have continued to garner academic and policy attention. As far as international normsetting is concerned, some of the BRICS countries, such as Brazil, China and India, have also assumed leadership in the developing world. This chapter focuses primarily on the presence, impact and significance of what I refer to as the "BRICS factor" in international trade and intellectual property negotiations. It begins by revisiting the negotiation of the WTO TRIPS Agreement. The chapter then explores the negotiation of TRIPS-plus bilateral, regional and plurilateral trade agreements, such as the recently signed Trans-Pacific Partnership Agreement and the yet-to-be-completed Regional ...
%SOURCENAMEESCAPED%, REVISION: Five Decades of Intellectual Property and Global Development, http://www.ssrn.com/abstract=2872682 (January 12, 2017)

The 2016-2017 biennium marks the historical milestones of several major pro-development initiatives relating to intellectual property law and policy. These important milestones include the Intellectual Property Conference of Stockholm in 1967, the adoption of the Declaration on the Right to Development (UNDRD) in 1986 and the establishment of the WIPO Development Agenda in 2007. On January 1, 2016, the UN Sustainable Development Goals (SDGs) also came into force. Adopted by the UN General Assembly in September 2015, the 2030 Agenda for Sustainable Development featured 17 SDGs and 169 targets. Prominently mentioned in Target 3.b of SDG 3 are the WTO TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health. When all of these developments are taken together, the past five decades have seen the launch of a wide variety of pro-development initiatives relating to intellectual property law and policy. Written for a special issue on intellectual property and ...
%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 ...
%SOURCENAMEESCAPED%, REVISION: Virotech Patents, Viropiracy, and Viral Sovereignty, http://www.ssrn.com/abstract=451640 (January 8, 2017)

Although there are many important intellectual property and public health developments in the United States, the domestic debate remains surprisingly disconnected from the international debate. To help bridge this disconnect, this Article discusses the interrelationship between intellectual property and public health in the context of communicable diseases. This type of disease is intentionally picked to highlight how developments abroad could easily affect what happens at home, and vice versa. The first half of this Article recounts three distinct stories about viruses responsible for AIDS, SARS, and the avian influenza (H5N1). The first story focuses on the ongoing developments within the WTO concerning efforts to address the access-to-medicines problems in relation to HIV/AIDS and other pandemics. The second story documents the unusual race among research and health institutions in Canada, Hong Kong, and the United States to patent technologies involving the isolated gene ...
%SOURCENAMEESCAPED%, New: On Shared Governance, Missed Opportunities, and Student Protests, http://www.ssrn.com/abstract=2885539 (December 15, 2016)

This essay discusses the past year's student protests and argues that some of the targets of the protests are misdirected. For example, protests by students of the central administration for a non-diverse faculty have missed the point that the faculty is responsible for selecting faculty candidates. This essay also discusses some failings of certain shared governance models and recommends a more inclusive shared governance system.
%SOURCENAMEESCAPED%, New: The Politics of Professionalism: Reappraising Occupational Licensure and Competition Policy, http://www.ssrn.com/abstract=2881732 (December 8, 2016)

Elite economists and lawyers have united to criticize occupational licensing. They contend that licensure rules raise consumer prices and restrict labor market entry and job mobility. The Obama Administration’s Council of Economic Advisers and Federal Trade Commission have joined libertarians and conservatives in calling for occupational regulations to be scaled back. Billed as a bipartisan boost to market competition, this technocratic policy agenda rests on thin empirical foundation. Studies of the wage effects of licensing rarely couple this analysis of its putative “costs” with convincing analysis of the benefits of the professional or vocational education validated via licensure. While some licensing rules may be onerous and excessive, licensing rules are inadequate or underenforced in other labor markets. Furthermore, by limiting labor market entry, occupational licensing rules, like minimum wage and labor laws, can help raise and stabilize working and middle class ...
%SOURCENAMEESCAPED%, New: How Countries Should Share Tax Information, http://www.ssrn.com/abstract=2877838 (December 1, 2016)

There are increasing policy concerns that aggressive international tax avoidance and offshore tax evasion significantly reduce government revenues. In particular, for some low income countries the amount of capital flight (where elites move and hide monies offshore in tax havens) exceeds foreign aid. Governments struggle to enforce their tax laws to constrain these actions, but are inhibited by a lack of information concerning international capital flows. The main international policy response to these developments has been to promote global financial transparency through heightened cross-border exchanges of tax information. The paper discusses elements of optimal cross-border tax information exchange laws and policies by focusing on three key challenges: information quality, taxpayer privacy, and enforcement. Relatedly, the paper discusses how the exchange of automatic ‘big tax data’ combined with data analytics can help address the challenges.
%SOURCENAMEESCAPED%, REVISION: Legal Responses to Biodiversity Loss and Climate Change, http://www.ssrn.com/abstract=2864062 (November 13, 2016)

The greatest vectors of biodiversity loss today are climate change, habitat destruction, invasive species, pollution, population, and overkill. Climate change, habitat destruction, and alien invasive species should figure more prominently than overkill and the marketing of products derived from endangered species. The law, however, imposes its clearest, harshest sanctions precisely where the drivers of extinction are weakest: when humans consciously capture or kill other living things. More helpfully, the Endangered Species Act has been adapted to address habitat destruction on private land and to mitigate climate change.
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Enforcement and Global Climate Change, http://www.ssrn.com/abstract=2252602 (November 3, 2016)

Issues lying at the intersection of intellectual property and climate change are hot. From the ongoing discussions under the U.N. Framework Convention on Climate Change to the Conference on Innovation and Climate Change held by the World Intellectual Property Organization, countries have actively explored ways to harness the intellectual property system to combat climate change and to reduce the accumulation of greenhouse gases. Notwithstanding these high profile events, intellectual property enforcement issues are rarely discussed in these fora. It would indeed be premature to discuss those issues when we still have no idea what types of international instruments will be developed to address the problems posed by climate change and what types of obligations these instruments will introduce. Nevertheless, if these instruments are to facilitate the development of meaningful policy responses, it is important that the rights they recognize be enforceable. This chapter focuses on ...
%SOURCENAMEESCAPED%, REVISION: The Incremental Development of the ASEAN-China Strategic Intellectual Property Partnership, http://www.ssrn.com/abstract=2657358 (October 22, 2016)

In November 2000, a few years after the Asian Financial Crisis, Premier Zhu Rongji announced China's interest in developing a free trade area with ASEAN within a decade. Since then, the two trading powers have established a framework agreement as well as agreements on trade in goods, trade in services and investment. They have also developed memoranda of understanding on cooperation in the fields of agriculture, sanitation and phytosanitation, intellectual property, and standards, technical regulations and conformity assessment. Taken together, these instruments help build the ASEAN–China Free Trade Area (ACFTA) to serve important economic, geopolitical and strategic goals. This chapter focuses on the cooperation between ASEAN and China in the intellectual property arena. It begins by recounting the historical development of ACFTA. It also briefly examines the provisions in the Memorandum of Understanding on Cooperation in the Field of Intellectual Property. The chapter then ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Asian Philosophy and the Yin-Yang School, http://www.ssrn.com/abstract=2693420 (October 22, 2016)

Written for a special issue on intellectual property philosophy, this article begins by providing a brief discussion of the many different schools of Asian philosophy, including those in China and India. Although Confucianism has garnered considerable attention in intellectual property literature, the nexus between Asian philosophy and the notion of intellectual property rights remains largely understudied. Thus, instead of revisiting the debate on intellectual property and Confucianism, this article aims to introduce to the Western audience Yin-Yang, one of the six dominant ancient schools of Chinese philosophy. It argues that this school’s focus on contexts, relationships and adaptiveness and its high tolerance for contradictions have made it particularly well-equipped to address the ongoing intellectual property challenges concerning both emerging economies and the digital environment.
%SOURCENAMEESCAPED%, REVISION: The Confuzzling Rhetoric Against New Copyright Exceptions, http://www.ssrn.com/abstract=2466544 (October 22, 2016)

In recent years, Australia, Canada, the United States, Ireland, the United Kingdom and other members of the European Union have been busy exploring ways to modernize their copyright laws. In many of these jurisdictions, new copyright exceptions have been introduced or proposed to promote internet users’ access to digital content. Meanwhile, the copyright industries remain adamantly opposed to introducing these exceptions. Published in the inaugural issue of Kritika, this article scrutinizes seven of the industries’ most widely used arguments. Drawing on examples from digital copyright reform in Hong Kong and other jurisdictions, the article explains why the industries’ arguments have thus far been unconvincing. It also calls on policymakers and legislators to critically evaluate these arguments, lest they lead to wrong policy choices that harm internet users and the public at large.
%SOURCENAMEESCAPED%, REVISION: Tales of the Unintended in Copyright Law, http://www.ssrn.com/abstract=2328648 (October 22, 2016)

Having unintended consequences is an oft-cited defect of copyright reform. Whether it is the Digital Millennium Copyright Act, the recently adopted Anti-Counterfeiting Trade Agreement, the still-under-negotiation Trans-Pacific Partnership Agreement, or such highly controversial copyright legislation as the PROTECT IP ACT or the Stop Online Piracy Act, critics of copyright-strengthening measures have lamented their potential for creating collateral damage. As critics have reasoned, the collateral damage caused by these proposed measures outweigh their intended benefits, and policymakers should refrain from adopting these measures. While undertaking cost-benefit analysis is commonsensical and useful, adopting laws that have unintended consequences is nothing new. In the copyright area alone, one could find many examples featuring laws that result in unintended consequences. Indeed, many of the ill-advised copyright laws were adopted long before the active lobbying by the existing ...
%SOURCENAMEESCAPED%, REVISION: The Comparative Economics of International Intellectual Property Agreements, http://www.ssrn.com/abstract=2334107 (October 22, 2016)

Using the WTO TRIPS Agreement as a case study, this book chapter provides a comparative economic analysis of international intellectual property agreements as they relate to both developed and developing countries. Specifically, this chapter discusses three different aspects of the TRIPS Agreement: (1) protection standards; (2) enforcement standards; and (3) the dispute settlement procedure. As this chapter will show, the economic picture concerning the implementation and operation of the TRIPS Agreement in developed countries is drastically different from the corresponding picture of developing countries. As a result, countries need to think more deeply about the Agreement's differing economic impacts.
%SOURCENAMEESCAPED%, New: Tax Law and Technology Change, http://www.ssrn.com/abstract=2853670 (October 19, 2016)

Writings on tax law and technology change often investigate three discrete but related questions: (1) how does tax law react to technology change; (2) how does tax law provoke technology change; and (3) how does tax law seek to preserve traditional interests (such as revenue collection) in light of technology change. In addition, observers sometimes raise concerns that the interaction of technology change and tax law can have a substantive impact on individuals, communities and/or national interests that may differ from the technology’s intended use (for example, automatic tax collection mechanisms may harm taxpayer privacy). The chapter reviews these writings and distills guiding principles for optimal tax law and policy in light of technology change.
%SOURCENAMEESCAPED%, New: Climate Change Law (Elgar 2016), http://www.ssrn.com/abstract=2847663 (October 8, 2016)

This book brings together over seventy authors from a dozen countries for a comprehensive examination of the emerging global regime of climate change law. Despite the relative youth of climate change law, we can already begin to see the outlines of legal regimes addressing climate change mitigation and adaptation (and perhaps geo-engineering). As it has evolved, the system is a combination of international frameworks such as the Paris Agreement and bottom-up efforts by national and subnational governments. This system is substantively linked to other areas of law such as energy regulation, water law, and land use law, while posing new issues to the whole body of law, including public international law, constitutional law, and administrative law. The book’s coverage includes both international law and developments in major legal systems such as the European Union, the United States, China, and India. Rather than delving into the details of each of these legal regimes, the emphasis ...
%SOURCENAMEESCAPED%, REVISION: The Anatomy of the Human Rights Framework for Intellectual Property, http://www.ssrn.com/abstract=2653148 (September 26, 2016)

Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to the interplay of intellectual property rights and human rights in the area of scientific productions. Aiming to fill the lacuna, this article focuses on the complex interactions among scientific productions, intellectual property and human rights. It begins by outlining the various arguments for or against recognizing patent rights as ...
%SOURCENAMEESCAPED%, REVISION: Baryonic Beta Dynamics: Splitting the Atom of Systematic Risk, http://www.ssrn.com/abstract=2832735 (September 19, 2016)

Despite the rise of multi-factor models emphasizing value, firm size, and momentum, beta remains the primary measure of risk in asset pricing. Designed to define systematic risk, net of idiosyncratic risk that can be neutralized through diversification, beta combines a measure of volatility with a measure of correlation. Much of the frustration with beta stems from the failure to disaggregate beta’s discrete components. Conventional beta is often treated as if it were “atomic” in the original Greek sense: uncut and indivisible. This article rehabilitates beta by splitting the atom of systematic risk. Particle physics provides a fruitful framework for evaluating discrete components of financial risk. Quantum chromodynamics (QCD) focuses on six flavors of quarks in three matched pairs: up/down, charm/strange, and top/bottom. Baryons are subatomic particles consisting of three quarks. They include protons and neutrons, which account for most of the mass of the visible ...
%SOURCENAMEESCAPED%, REVISION: Price-Level Regulation and Its Reform, http://www.ssrn.com/abstract=771226 (September 13, 2016)

Price-level, or “price-cap,” regulation offers an alluring alternative to the traditional technique of monitoring a regulated firm’s profits. Part II of this article contrasts price-level regulation with conventional cost-of-service ratemaking and with Ramsey pricing. Price-level regulation stands as a market-based, incentive-driven “third way” between traditional regulation and complete deregulation. Part III provides formal specifications of price-level regulation. Although some jurisdictions have set price caps according to operating cost and rate-of-return calculations that clearly parallel those steps in conventional ratemaking, this article will focus on price-level methodologies that combine an economy-wide measure of inflation with an x-factor reflecting total factor productivity within a regulated industry. Part IV addresses the simpler component of price-level regulation, the choice of an inflation index. Part V devotes detailed attention to the treatment of the ...
%SOURCENAMEESCAPED%, New: Breaking Bad: What Does the First Major Tax Haven Leak Tell Us?, http://www.ssrn.com/abstract=2835652 (September 9, 2016)

While there is now significant literature in law, politics, economics, and other disciplines that examines tax havens, there is little information on what tax haven intermediaries — so-called offshore service providers such as trust, finance and other financial service providers — actually do to facilitate offshore tax evasion and other global financial crimes. To provide insight into this secret world of tax havens, this article relies on the author’s study of the first major tax haven data leak obtained by the International Consortium for Investigative Journalists. A hypothetical involving Breaking Bad’s Walter White is used to explain how offshore service providers help non-resident investors engage in offshore tax evasion.
%SOURCENAMEESCAPED%, REVISION: Platform Neutrality: Enhancing Freedom of Expression in Spheres of Private Power, http://www.ssrn.com/abstract=2779270 (August 30, 2016)

Troubling patterns of suppressed speech have emerged on the corporate internet. A large platform may marginalize (or entirely block) potential connections between audiences and speakers. Consumer protection concerns arise, for platforms may be marketing themselves as open, comprehensive, and unbiased, when they are in fact closed, partial, and self-serving. Responding to protests, the accused platform either asserts a right to craft the information environment it desires, or abjures responsibility, claiming to merely reflect the desires and preferences of its user base. Such responses betray an opportunistic commercialism at odds with the platforms’ touted social missions. Large platforms should be developing (and holding themselves to) more ambitious standards for promoting expression online, rather than warring against privacy, competition, and consumer protection laws. These regulations enable a more vibrant public sphere. They also defuse the twin specters of monopolization and ...
%SOURCENAMEESCAPED%, New: Grand Bargains for Big Data: The Emerging Law of Health Information, http://www.ssrn.com/abstract=2831712 (August 29, 2016)

Health information technology can save lives, cut costs, and expand access to care. But its full promise will only be realized if policymakers broker a “grand bargain” between providers, patients, and administrative agencies. In exchange for subsidizing systems designed to protect intellectual property and secure personally identifiable information, health regulators should have full access to key data those systems collect. Successful data-mining programs at the Centers for Medicare & Medicaid Services (“CMS”) provide one model. By requiring standardized collection of billing data and hiring private contractors to analyze it, CMS pioneered innovative techniques for punishing fraud. Now it must move beyond deterring illegal conduct and move toward data-driven promotion of best practices. With this aim in mind, CMS is already subsidizing technology, but more than money is needed to optimize the collection, analysis, and use of data. Policymakers need to navigate intellectual ...
%SOURCENAMEESCAPED%, REVISION: Law and Economics: Contemporary Approaches, http://www.ssrn.com/abstract=2728030 (August 20, 2016)

A relatively narrow version of Law and Economics has dominated public policy for several decades. This school of thought has mainly focused on neoclassical microeconomics. It fails to recognize the pluralism of contemporary economics in general, and the relevance of macroeconomics in particular. So-called “market forces” are thoroughly intertwined with law and cannot be understood without some reference to history, sociology, psychology, and other social sciences. It is time for legal scholars to develop a law and economics curriculum that catches up with the advance of economics as a discipline. The urgent challenges of the 21st Century also call for a new Law and Economics. Solutions to problems such as extreme inequality, climate change, deindustrialization, infrastructure deterioration, underdevelopment, and financial instability will depend on deepening understandings of how economics is interrelated with complex legal rules and legal institutions. Lawyers with a more ...
%SOURCENAMEESCAPED%, New: Copyrights, Privacy, and the Blockchain, http://www.ssrn.com/abstract=2815717 (July 30, 2016)

The law of the United States forces authors to choose between copyrights and privacy rights. Federal lawmakers have noticed and tried to remedy that problem. The Copyright Act makes express provisions for anonymous and pseudonymous works. The Copyright Office has tried to remedy that tension, too; copyright registration forms do not outwardly require authors to reveal their real world identities. Nonetheless, authors still face a choice between protecting their privacy and enjoying one of copyright’s most powerful incentives: the prospect of transferring to another the exclusive right to use a copyrighted work. That power proves useful, to say the least, when it comes to making money off of copyrights. Run-of-the-mill authors can invoke it by licensing or assigning their unregistered copyrights or by registering their works themselves. But what about anonymous or pseudonymous authors? Despite a good faith effort to respect authorial privacy, current copyright registration practices ...
%SOURCENAMEESCAPED%, REVISION: The Institutionalization of Supreme Court Confirmation Hearings, http://www.ssrn.com/abstract=2741206 (June 14, 2016)

This article uses an original database of confirmation hearing dialogue to examine how the Senate Judiciary Committee’s role in Supreme Court confirmations has changed over time, with particular attention paid to the 1939–2010 era. During this period, several notable developments took place, including a rise in the number of hearing comments, increased attention to nominees’ views of judicial decisions, an expansion of the scope of issues addressed, and the equalization of questioning between majority and minority party senators. We demonstrate that these changes were shaped by both endogenous and exogenous factors to promote the legitimization of the Judiciary Committee’s role in the confirmation process and to foster the instrumental goals of senators. This research contributes to our understanding of the development of political institutions, interbranch interactions, and how institutional change affects the behavior of legal and political actors.
%SOURCENAMEESCAPED%, REVISION: A Confederate History in the Yale Law Journal, http://www.ssrn.com/abstract=2688065 (May 24, 2016)

This essay revisits Yale history professor Allen Johnson’s article “The Constitutionality of the Fugitive Slave Acts,” which appeared in the Yale Law Journal in December 1921. Johnson wrote about a law that had been nullified by the Civil War and the Thirteenth Amendment nearly 70 years before. His article was part of the scholarly reconsideration of the origins of Civil War designed to reconcile North and South. Northerners, especially Northern scholars, blamed the Civil War on fanatics on both sides and in some ways exculpated Southerners for their role in the War. While scholars of memory have explored the rewriting of history in the early twentieth century, no one has noticed how it stretched outside of history books and into the pages of the distinguished Yale Law Journal. The efforts to re-write constitutional history and to defend the south’s case for one of the most reviled acts in American history reached into territory and to scholars we had not previously known. ...
%SOURCENAMEESCAPED%, REVISION: Antislavery Women and the Origins of American Jurisprudence, http://www.ssrn.com/abstract=2635248 (May 1, 2016)

“Antislavery Women and the Origins of American Jurisprudence" is an essay review of Sarah Roth's Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth's account of the dialog between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s -- as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens-in-waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the south moved towards Civil War. Roth ...
%SOURCENAMEESCAPED%, New: Strike-Out, http://www.ssrn.com/abstract=2772053 (April 30, 2016)

The article provides a structured efficiency-oriented response to a highly important question which has been neglected by scholars for decades: should employees and their labor union, involved in a strike against a particular employer, be liable for ensuing third-party harms? Assume, for example, that the Albuquerque firefighters stage a strike for a wage increase. Just then, a fire breaks out and destroys an industrial laundry facility and a surreptitious underground workshop, causing temporary evacuation of adjacent businesses. Should the proprietors have a cause of action against the strikers for property damage and economic loss? The article puts forward a novel framework for assessing third-party claims, incorporating two fundamental principles. Under the first, which I call “the principle of deference,” tort law should not normally undermine a specific legal regime governing the allocation of power in the concrete case, particularly if the applicable regime has been ...
%SOURCENAMEESCAPED%, New: The FDIC as Holder in Due Course: Some Law and Economics, http://www.ssrn.com/abstract=2744948 (March 10, 2016)

When a federally insured bank fails, the Federal Deposit Insurance Corporation (the "FDIC") typically intervenes to protect depositors. As part of the bailout, the FDIC undertakes the role of liquidator of the bank's assets, both physical and intangible. A bank's tangible assets consist primarily on its loan portfolio, that is, its rights to receive repayment from borrowers. A failed bank's loan portfolio is packaged with "troubled" loans, which are of doubtful collectibility for a variety of reasons. In most cases, the borrower is insolvent and simply cannot repay the loan. In other cases, the bank's right to repayment is subject to offset or reduction because the borrower has a valid defense against the bank. For example, a borrower may contend that he is relieved from his obligation to repay his loan on grounds that he lacked mental capacity to contract, or that the bank defrauded him. When the FDIC acquires a loan following a bank's failure, a borrower will assert this defense ...
%SOURCENAMEESCAPED%, New: A Paradigm for Sexual Harassment: Toward the Optimal Level of Loss, http://www.ssrn.com/abstract=2744946 (March 10, 2016)

This article proposes a paradigm that draws from the common-law rule of negligence. It defines actionable sexual conduct in the workplace in terms of the cost of precautionary conduct and the increased safety such precaution would have yielded. Like the rule of negligence, the proposed paradigm creates incentives for men and women to take steps to prevent sexual conduct loss to the point at which the cost of an additional increment of precaution is equal to the value of the reduction in risk of loss. This point is the optimal level of precaution. After this point, additional precaution might further reduce sexual conduct loss, but the cost of such precaution would outweigh the resulting benefit.

  

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