This page summarizes the most recent SSRN abstracts posted by the authors of the Jurisdynamics Network. The Network's authors are serious, productive scholars as well as stimulating bloggers, and we hope you will read and download these papers. This page has its own RSS feed, which you are invited to download by clicking here: . To receive updates as these authors post new scholarship, please use the following form:
%SOURCENAMEESCAPED%, New: Thinking About the Trans-Pacific Partnership (and a Mega-Regional Agreement on Life Support)
(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
(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
(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%, REVISION: Institutional Fracture in Intellectual Property Law: The Supreme Court versus Congress
(April 21, 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%, New: What is IP For? Experiments in Lay and Expert Perceptions
(April 18, 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: Regulating Business Innovation as Policy Disruption: From the Model T to Airbnb
(April 14, 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: A Nonobvious Comparison: Nonobviousness Decisions at the PTAB and in the Federal Courts
(March 30, 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: A Generalized Higher-Moment Capital Asset Pricing Model, with Theoretical Implications and Legal Applications
(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%, REVISION: The Production Function of the Regulatory State: How Much Do Agency Budgets Matter?
(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
(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
(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: A Seamless Global Digital Marketplace of Entertainment Content
(March 9, 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: International Technology Contracts, Restrictive Covenants and the UNCTAD Code
(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
(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
(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%, New: The Conservative as Environmentalist: From Goldwater and the Early Reagan to the 21st Century
(February 18, 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%, REVISION: The Copy in Copyright
(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: Cultivating Innovation in Precision Medicine Through Regulatory Flexibility at the FDA
(February 14, 2017)
Public support for precision medicine is gaining momentum. President Obama initially channeled $215 million into the Precision Medicine Initiative (PMI), with funds to the National Institutes of Health and the Food and Drug Administration (FDA) “to accelerate biomedical discoveries and provide clinicians with new tools, knowledge, and therapies to select which treatments will work best for which patients.” In remarks at the White House East Room, Obama touted precision medicine as "delivering the right treatments at the right time, every time to the right person.” The 21st Century Cures Act, signed into law on December 13, 2016 further supports the PMI and related cancer and brain research with a $4.8 billion pledge over the next ten years. The Act establishes the authority of the Secretary of the Department of Health and Human Services to foster rapid innovation in this realm, and also sets forth protections for human research subjects and the data generated by research. ...
%SOURCENAMEESCAPED%, REVISION: Special Economic Zones in the United States: From Colonial Charters, to Foreign-Trade Zones, Toward USSEZs
(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
(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
(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
(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
(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: The Politics of Professionalism: Reappraising Occupational Licensure and Competition Policy
(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%, REVISION: Legal Responses to Biodiversity Loss and Climate Change
(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: The Fragile Menagerie: Biodiversity Loss, Climate Change, and the Law
(November 9, 2016)
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: What Is (and Isn't) Healthism
(November 8, 2016)
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: Intellectual Property Enforcement and Global Climate Change
(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
(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: The RCEP and Trans-Pacific Intellectual Property Norms
(October 22, 2016)
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 among Australia, China, India, Japan, New Zealand, South Korea and the 10-member Association of Southeast Asian Nations (ASEAN). Launched in November 2012 under the ASEAN 6 framework, the RCEP negotiations build 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 the partnership agreement seeks to develop. The first half of the article focuses on the RCEP as a mega-regional agreement. It begins by briefly discussing the partnership’s historical origins. It then explores three possible scenarios in which the Agreement will help shape trade and intellectual property norms in the Asia-Pacific ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Asian Philosophy and the Yin-Yang School
(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
(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
(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
(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
(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%, REVISION: The RCEP and Intellectual Property Norm-setting in the Asia-Pacific
(October 15, 2016)
Commissioned for the CEIPI-ICTSD Publication Series, this article discusses the Regional Comprehensive Economic Partnership (RCEP), with a focus on intellectual property issues. The partnership is currently being negotiated among Australia, China, India, Japan, New Zealand, South Korea and members of the Association of Southeast Asian Nations (ASEAN).
This article begins by briefly discussing the historical origins of the RCEP. It then examines the latest leaked draft of its intellectual property chapter. The article concludes by examining three future scenarios concerning intellectual property norm-setting in the Asia-Pacific region.
%SOURCENAMEESCAPED%, New: Climate Change Law (Elgar 2016)
(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%, New: The More Copyright Laws Change, the More Digital Challenges Stay the Same
(October 7, 2016)
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%, REVISION: The Anatomy of the Human Rights Framework for Intellectual Property
(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: Intellectual Property, Human Rights and Public-Private Partnerships
(September 24, 2016)
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%, REVISION: The Quest for a User-Friendly Copyright Regime in Hong Kong
(September 24, 2016)
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%, New: Agencies as Adversaries
(September 21, 2016)
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, such as the battle between the Federal Bureau of Investigation and the Department of Defense over hacking the iPhone of one of the San Bernandino shooters, the conflict between the State Department and the Central Intelligence Agency over classifying some aspects of Hillary Clinton’s emails, and the sharp conflict between the Republican and Democratic members of the Federal Communications Commission on net neutrality.
This Article draws on rich institutional accounts to illuminate and classify the plethora of agency conflict and dispute resolution mechanisms. Then, by applying social scientific work on agency and firm design as well as constitutional theory, we aim to explain the creation of such ...
%SOURCENAMEESCAPED%, REVISION: Baryonic Beta Dynamics: Splitting the Atom of Systematic Risk
(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
(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%, REVISION: The Copyright Holdout Problem and New Internet-Based Services
(September 9, 2016)
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%, New: Breaking Bad: What Does the First Major Tax Haven Leak Tell Us?
(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: A Profile of Bio-Pharma Consolidation Activity
(September 2, 2016)
The bio-pharmaceutical sector is no stranger to consolidation. Over the last three decades, over 110 companies have consolidated to approximately thirty. Notably, the rate and extent of bio-pharmaceutical consolidation has measurably accelerated in recent years with projections of a similar pace into the near future. Ernst & Young reports that bio-pharmaceutical deals reached a ten-year high in 2014, when twenty-seven biotech companies were acquired by pharmaceutical companies - a 46% increase over 2013 numbers. Deloitte’s 2015 outlook reveals “life sciences companies are expected to continue expanding their presence in emerging markets through acquisitions and joint ventures.” While the form, terms, and size of these deals - whether they are mergers, acquisitions, or joint ventures - vary widely, they share the overarching characteristic of changing the make-up of the entire industry. Research and development priorities and product ownership will inevitably shift as ...
%SOURCENAMEESCAPED%, REVISION: Platform Neutrality: Enhancing Freedom of Expression in Spheres of Private Power
(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
(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: The Promise and the Peril of Parametric Value-at-Risk (VaR) Analysis
(August 22, 2016)
Leptokurtosis, or the risk lurking in “fat tails,” poses the deepest epistemic threat to economic forecasting. Parametric value-at-risk (VaR) models are extremely vulnerable to kurtosis in excess of the levels associated with a normal, Gaussian distribution. This article provides step-by-step guidance on the use of Student’s t-distribution to enhance the statistical robustness of VaR forecasts. For degrees of freedom greater than 4, Student’s t-distribution can emulate any level of kurtosis exceeding that of a Gaussian distribution. Because VaR is elicitable from historical data, observed levels of excess kurtosis can inform the proper use of Student’s t-distribution to measure value-at-risk. In addition, the calculation of parametric VaR according to the number of degrees of freedom implied by historical levels of excess kurtosis leads directly to the corresponding value of expected shortfall. Conducted in this fashion, parametric VaR not only exploits the elicitability of that ...
%SOURCENAMEESCAPED%, REVISION: Law and Economics: Contemporary Approaches
(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%, REVISION: Sinking, Fast and Slow: Bifurcating Beta in Financial and Behavioral Space
(August 19, 2016)
Modern portfolio theory accords symmetrical treatment to all deviations from expected return, positive or negative. This assumption is vulnerable on both descriptive and behavioral grounds. Many of the predictive flaws in contemporary finance stem from mathematically elegant but empirically flawed Gaussian models. In reality, returns are skewed. The presumption that returns and volatility are symmetrical also defies human behavior. Losing hurts worse than winning feels good; investors do not react equally to upside gain and downside loss. Moreover, correlation tightening during bear markets, not offset by changes in correlation during bull markets, suggest that standard diversification strategies may erode upside returns without providing adequate protection during times of stress.
This article outlines mathematical tools for calculating volatility, variance, covariance, correlation, and beta, not merely across the entire spectrum of returns, but also on either side of mean ...
%SOURCENAMEESCAPED%, REVISION: Legal Quanta: A Mathematical Romance of Many Dimensions
(August 19, 2016)
Many things can be measured and expressed numerically. Nature speaks in the language of mathematics. Mathematical analysis of law is often associated with the application of established empirical techniques to ever-growing bodies of legal data. Other distinct applications of mathematics to law include machine learning, legal networks, and analytical modeling. Mathematical analysis of law ultimately follows not only the data describing the legal world as we find it, but also the own internal logic of mathematics.
%SOURCENAMEESCAPED%, REVISION: Momentary Lapses of Reason: The Psychophysics of Law and Behavior
(August 19, 2016)
The conventional capital asset pricing model (CAPM) remains the preferred approach to risk management in a wide range of economic settings. At the same time, the neoclassical assumptions underlying the CAPM have come under severe attack by behavioral economics. In sharp contrast with the purely rational agents of neoclassical economics, real humans make decisions under the constraints imposed by their innate heuristics. The tension between conventional asset pricing theory and behavioral economics puts particular pressure on law. As an applied branch of social science, law purports to subject human conduct to rules that should optimize objective well-being as well as subjective satisfaction.
This paper proposes a mathematically expedient method of alleviating this tension. A four-moment capital asset pricing model captures the emotional impact of odd and even moments of statistical distributions. Critically, a four-moment CAPM transcends the limits of financial models that ...
%SOURCENAMEESCAPED%, REVISION: Law on the Market? Evaluating the Securities Market Impact of Supreme Court Decisions
(August 14, 2016)
Do judicial decisions affect the securities markets in discernible and perhaps predictable ways? In other words, is there “law on the market” (LOTM)? This is a question that has been raised by commentators, but answered by very few in a systematic and financially rigorous manner. Using intraday data and a multiday event window, this large scale event study seeks to determine the existence, frequency and magnitude of equity market impacts flowing from Supreme Court decisions.
We demonstrate that, while certainly not present in every case, "law on the market" events are fairly common. Across all cases decided by the Supreme Court of the United States between the 1999-2013 terms, we identify 79 cases where the share price of one or more publicly traded company moved in direct response to a Supreme Court decision. In the aggregate, over fifteen years, Supreme Court decisions were responsible for more than 140 billion dollars in absolute changes in wealth. Our analysis not only ...
%SOURCENAMEESCAPED%, New: Copyrights, Privacy, and the Blockchain
(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%, New: U.S. Regulatory Challenges for Gene Editing
(July 29, 2016)
Researchers are now realizing the promise of molecular biology and genomic engineering. In the United States, President Obama has prioritized innovations in genomic research and therapies with funding infusions into national programs such as the Precision Medicine Initiative and the Cancer Moon Shot 2020. More than a decade after the completion of the Human Genome Project, our understanding of the human genome has now ushered us into the era of genetic modification capabilities known as genome editing, or gene editing. Building on the scientific foundation of recombinant DNA (rDNA) technology and human gene transfer research, gene editing enables the alteration of the genetic make-up in a manner that was previously only a theoretical possibility. Current gene editing technology improves on prior cellular-based therapies and gene therapies because it directly targets nucleotides in the defective gene. Following the discoveries of zinc finger nuclease (ZFN) and transcription ...
%SOURCENAMEESCAPED%, REVISION: Anthropocene Agricultural Law
(June 30, 2016)
Agricultural controversies in affluent, comfortably fed countries increasingly emphasize the esthetic or expressive elements of food. Consumer advocates can indulge in litigation over foie gras, for instance, or coffee production certification. This expressive turn elevates the ornamental aspects of food at the expense of agriculture's utilitarian purposes. The modernist principles articulated in Adolf Loos's "Ornament und Verbrechung" urge the subordination of agriculture's ornamental aspects in favor of its original instrumentalist underpinnings.
Meanwhile, ecological disaster looms. Human ecological impacts are so severe that geological history has arguably entered a new epoch, the Anthropocene. Exhaustion of vital inputs (petroleum, phosphorus) and evolutionary calamity (mass extinctions, herbicide and pesticide resistance) threatens future agricultural productivity. Food security and the economic foundations of civilization hang precariously in the balance.
Human beings, ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Law's Plagiarism Fallacy
(June 19, 2016)
Intellectual property law is caught in a widespread debate over whether it should serve incentive or natural rights objectives, and what the best means for achieving those ends are. This article reports a series of experiments revealing that these debates are actually orthogonal to how most users and many creators understand intellectual property law. The most common perception of intellectual property among the American public is that intellectual property law is designed to prevent plagiarism.
The plagiarism fallacy in intellectual property law is not an innocuous misperception. This fallacy likely helps explain pervasive illegal infringing activity on the Internet, common dismissal of copyright warnings, and other previously puzzling behavior. The received wisdom has been that the public is ethically dismissive or indifferent towards intellectual property rights. This research reveals instead that experts have failed to comprehend what the public’s conception of intellectual ...
%SOURCENAMEESCAPED%, REVISION: To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity
(June 17, 2016)
Though a primary goal of intellectual property law is to promote creativity in technology and the arts, intellectual property doctrine pays remarkably little attention to psychology research on how to advance creativity. Psychology studies on motivation, collaboration, and divergent versus convergent cognitive thought processes provide significant insight into the creative process and indicate that certain intellectual property law hinders the very creativity the law is designed to inspire. These insights intersect at an issue vital to the forefront of creative achievement: promoting large-scale collaborative creativity. Large-scale collaborative projects have become critical in many areas of innovation due to the need for multidisciplinary expertise and substantial resources to push the envelope of human knowledge. From partnerships across private, government, and university research sectors to open and collaborative peer production, large-scale collaboration is revolutionizing ...
%SOURCENAMEESCAPED%, REVISION: Technology Wars: Mending the Failure of Democratic Discourse
(June 17, 2016)
Controversies over the use and regulation of various technologies pervade public discourse and have serious implications for the public interest. Conflicts over the regulation of genetically modified food, nuclear power, and nanotechnology, among others, fuel some of the most socially and politically explosive debates of our time. These technology conflicts extract a substantial cost from society - they create costly inefficiencies, prevent society from optimally managing new technologies, consume vast resources, and retard technological growth.
Existing scholarship does not explain or adequately address the teleology of conflict over technology. This Article examines the nature of legal and regulatory technology conflict, diagnoses the sources of that conflict, and proposes innovative solutions to the conflicts. This analysis integrates original empirical research and a multi-disciplinary body of scholarship from the fields of law, behavioral economics, psychology, and political ...
%SOURCENAMEESCAPED%, REVISION: The Future of Biotechnology Litigation and Adjudication
(June 17, 2016)
This Article, based on a presentation at a United Nations Environmental Programme and New York State Judicial Institute Symposium, attempts to forecast biotechnology issues expected to come before courts in the future. The Article begins with a discussion of what biotechnology is, provides a survey of past and present biotechnology litigation, and includes predictions about what trends and additional issues are in store for courts in biotechnology litigation and adjudication in the future. The Article concludes with an analysis of, and recommendations for, the use of scientific evidence and expert testimony concerning biotechnology in the courtroom.
%SOURCENAMEESCAPED%, REVISION: Innovation Rewards: Towards Solving the Twin Market Failures of Public Goods
(June 17, 2016)
The challenge of achieving socially optimal incentives for innovation in public goods faces twin market failures: a market failure to adequately promote public goods invention and a market failure to implement innovative public goods once developed. Though innovation in private goods sometimes faces the former hurdle, often ameliorated by intellectual property law, the interaction of both market failures for public goods innovation raises unique difficulties.
Environmentally beneficial technology presents an illustration of the innovation problem for public goods. Private actors lack sufficient incentives both to engage in environmentally beneficial innovation and to implement such innovation. While traditional intellectual property law and environmental law fail to cure the interaction of these public goods market failures, an innovation rewards system could produce more socially appropriate incentives. Using environmentally beneficial innovation as an example, this Article ...
%SOURCENAMEESCAPED%, REVISION: Proxy Signals: Capturing Private Information for Public Benefit
(June 17, 2016)
This Article presents an original empirical methodology to identify which patent laws will best promote optimal incentives to innovate for society. Vociferous debates over patent reform pit the United States’ largest innovation industries against each other in a dispute concerning whether stronger or weaker patent rights are necessary to promote innovation. Past efforts to answer this question have been thwarted by an inability to parse the impossibly complex social and legal relationship between innovation and patent law. Rather than considering such problems directly, the proxy technique introduced here offers a new framework to leverage indirect signals that capture better information than previously available concerning how best to promote incentives to innovate. In certain contexts, it is possible to use empirical information about the trade-off between the incentives and exclusivity costs of patent law to identify particular private industries that (1) face trade-offs ...
%SOURCENAMEESCAPED%, REVISION: The Living Regulatory Challenges of Synthetic Biology
(June 17, 2016)
The rapidly emerging technology of synthetic biology will place great strain upon the extant regulatory system due to three atypical characteristics of this nascent technology: (1) synthetic biology organisms can evolve; (2) traditional risk structures do not apply; and (3) the conventional regulatory focus on end-products may be a poor match for novel organisms that produce products. This Article presents one of the first assessments of the regulatory and oversight challenges produced by the beneficial application of synthetic biology, for energy, environmental, medical, and other purposes. Due to the uncertainty present at this early stage of synthetic biology development, and the practical political context, it is unlikely that the significant statutory and regulatory gaps identified herein could be cured directly. This Article recommends instead a selection of “soft law” alternatives that could more quickly provide flexible and adaptive measures to help fill regulatory gaps in a ...
%SOURCENAMEESCAPED%, REVISION: Promoting Environmental Innovation with Intellectual Property Innovation: A New Basis for Patent Rewards
(June 17, 2016)
Despite numerous and diverse efforts, environmental law generally fails to promote technological innovation with environmental benefits. Such innovation could have myriad human health and environmental benefits, while simultaneously reducing the cost of environmental protection for industry and society. This Article explores whether intellectual property law can step in where environmental law has failed to efficiently provide greater incentives for environmental innovation. A patent rewards system for environmental innovation holds substantial promise. Because environmental innovation often produces significant positive externalities by reducing environmental harms for many individuals beyond the implementing firm, inventors do not face efficient incentives for environmental innovation - a market failure that patent rewards can ameliorate. Along these lines, the analysis reveals a previously unrecognized benefit of patent rewards in certain circumstances.
%SOURCENAMEESCAPED%, REVISION: The Public Perception of Intellectual Property
(June 17, 2016)
Though the success of intellectual property law depends upon its ability to affect human perception and behavior, the public psychology of intellectual property has barely been explored. Over 1,700 U.S. adults took part in an experimental study designed to investigate popular conceptions of intellectual property rights. Respondents’ views of what intellectual property rights ought to be differed substantially from what intellectual property law actually provides, and popular conceptions of the basis for intellectual property rights were contrary to commonly accepted bases relied upon in legal and policy decision-making. Linear regression analysis reveals previously unrecognized cultural divides concerning intellectual property law based upon respondents’ income, age, education, political ideology, and gender.
%SOURCENAMEESCAPED%, REVISION: First Amendment Freeze Play: Bennett's Strategy for Entrenching Inequality
(June 15, 2016)
For decades, the U.S. Supreme Court has struck down campaign finance limitations by arguing that deregulation promoted more speech. As Justice Roberts opined in Citizens United
, "it is our law and our tradition that more speech, not less, is the governing rule." But in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett
(2011), the Court struck down a state effort to increase the communicative capacities of certainly publicly funded candidates.
Prior deregulatory campaign finance jurisprudence — strained as it was — at least paid lip service to the ideal of promoting more speech. In Bennett
, the Court announced that even speech-promotion could be trumped by another, higher purpose: freezing into place extant disparities in communicative resources. But just as the 14th Amendment does not enact Mr. Herbert Spencer's Social Statics, this principle of power entrenchment should have no place in the American constitutional order. The narrow majority ...
%SOURCENAMEESCAPED%, REVISION: The Institutionalization of Supreme Court Confirmation Hearings
(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: The Public Psychology of Intellectual Property
(May 26, 2016)
Though the success of intellectual property law depends upon its ability to affect human perception and behavior, the public psychology of intellectual property has barely been explored. Over 1700 U.S. adults took part in an experimental study designed to investigate popular conceptions of intellectual property rights. Respondents’ views of what intellectual property rights should be differed substantially from actual law, and popular conceptions of the basis for intellectual property rights are contrary to commonly accepted bases relied on in legal and policy decision-making. Linear regression analysis reveals previously unrecognized cultural divides concerning intellectual property based on people’s income, age, education, political ideology, and gender.
%SOURCENAMEESCAPED%, REVISION: Patently Non-Obvious: Empirical Demonstration that the Hindsight Bias Renders Patent Decisions Irrational
(May 26, 2016)
This Article reports an experimental study that provides the first empirical demonstration of the hindsight bias in patent law. The results are dramatic along several fronts: (1) the hindsight bias distorts patent decisions far more than anticipated, and to a greater extent than other legal judgments; (2) jury instructions that explicitly identify and warn against the hindsight bias do not ameliorate its impact; (3) the admission of secondary consideration evidence does not cure the hindsight bias; (4) neither the Federal Circuit's suggestion test nor the Supreme Court's Graham requirements appear to solve the hindsight problem; and (5) the hindsight problem pervades patent law to an extent not previously recognized - it biases decisions under the doctrine of equivalents, claim construction, the on-sale bar, and enablement.
These findings run counter to the dominant patent analysis of the last decade and have significant implications for patent and innovation policy. The study ...
%SOURCENAMEESCAPED%, REVISION: The Non-Obvious Problem: How the Indeterminate Non-Obvious Standard Produces Excessive Patent Grants
(May 26, 2016)
The dominant current perception in patent law is that the core requirement of nonobviousness is applied too leniently, resulting in a proliferation of patents on trivial inventions that actually retard technological innovation in the long run. This Article reveals that the common wisdom is only half correct. The nonobviousness standard is not too low, but both too high and too low. It is indeterminate. Three principal factors produce nonobviousness indeterminacy: a failure to identify the quantum of innovation necessary to satisfy the standard, a failure to define the baseline level of ordinary skill against which to measure an innovation, and the epistemic infeasibility of requiring a technologically lay decision maker to judge from the perspective of a more highly trained and educated person of ordinary skill in the art.
This Article introduces a mathematical model of innovation and patenting to analyze the effects of nonobviousness indeterminacy. Based on the model, indeterminacy ...
%SOURCENAMEESCAPED%, REVISION: Patently Non-Obvious II: Experimental Study on the Hindsight Issue Before the Supreme Court in KSR v. Teleflex
(May 26, 2016)
For the first time in thirty years, the Supreme Court will consider the core patent requirement that an invention be non-obvious. At the heart of the case lies the challenge of how to insulate non-obvious decisions from the distortion of the hindsight bias. This Article reports the latest empirical studies in a line of hindsight research, which present experimental data bearing directly on the issue before the Court: how individuals make non-obvious decisions under existing Supreme Court and Federal Circuit precedent.
The study results indicate that the Federal Circuit's suggestion, teaching, or motivation requirement, the precedent challenged before the Supreme Court in KSR v. Teleflex, does not produce erroneous non-obvious outcomes. This result contradicts the claims of the petitioners in KSR and other critics of the suggestion requirement. On the other hand, the results do not demonstrate that the suggestion test ameliorates the hindsight bias in the manner usually claimed ...
%SOURCENAMEESCAPED%, REVISION: A Confederate History in the Yale Law Journal
(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: Book Review: Automating the Professions?
(May 7, 2016)
Richard Susskind (and his son Daniel) offer a technocratic, neoliberal, and techno-utopian outlook on the future of the professions. Thanks to these ideological priors, a persistent mistake undermines their book: they conflate the professional role with the delivery of expertise. Thus they fail to seriously address two issues at the core of professional identity. First, there is some degree of self-governance among professionals. They primarily work with
clients or patients, for example, and not for bosses or shareholders. Second, the main reason they enjoy this autonomy is because they must handle intractable conflicts of values that repeatedly require thoughtful discretion, negotiation, and personal attention and responsibility. In isolation, these factors damage the Susskinds’ case; together, they prove fatal to it.
%SOURCENAMEESCAPED%, REVISION: Antislavery Women and the Origins of American Jurisprudence
(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
(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%, REVISION: Judging Adaptive Management Practices of U.S. Agencies
(April 19, 2016)
All U.S. federal agencies administering environmental laws purport to practice adaptive management (AM), but little is known about how they actually implement this conservation tool. A gap between the theory and practice of AM is revealed in judicial decisions reviewing agency adaptive management plans. We analyzed all U.S. federal court opinions published through 1 January 2015 to identify the agency AM practices courts found most deficient. The shortcomings included lack of clear objectives and processes, monitoring thresholds, and defined actions triggered by thresholds. This trio of agency shortcuts around critical, iterative steps characterizes what we call AM-lite. Passive AM differs from active AM in its relative lack of management interventions through experimental strategies. In contrast, AM-lite is a distinctive form of passive AM that fails to provide for the iterative steps necessary to learn from management. Courts have developed a sophisticated understanding of AM and ...
%SOURCENAMEESCAPED%, REVISION: Inflation-Based Adjustments in Federal Civil Monetary Penalties
(April 7, 2016)
Civil monetary penalties play a vital role in federal law. The Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. No. 101-410, prescribes rules for the regular adjustment of federal civil monetary penalties in response to inflation. Three statutory defects have undermined the Inflation Adjustment Act. First, the Act's 10 percent cap on initial adjustments creates an "inflation gap" relative to the level that would properly reflect inflation. Second, the Act directs federal agencies to use Consumer Price Index data that are at least 7 months and as many as 18 months out of date. This creates "CPI lag" in the adjustment of civil monetary penalties. Third, the Act's rounding rules can force some agencies to wait 15 years or more between adjustments.
Originally prepared as a report for the Administrative Conference of the United States, this article examines the Inflation Adjustment Act and recommends possible legislative remedies for the Act's defects.
%SOURCENAMEESCAPED%, New: Big Data and Tax Haven Secrecy
(April 1, 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 — actually do to facilitate offshore evasion, international money laundering, and the financing of global terrorism. To provide insight into this secret world of tax havens, this Article relies on the Author’s study of big data derived from the financial data leak obtained by the International Consortium for Investigative Journalists (ICIJ). A hypothetical involving Breaking Bad’s Walter White is used to explain how offshore service providers facilitate global financial crimes. A transaction cost perspective assists in understanding the information and incentive problems revealed by the ICIJ data leak, including how tax haven secrecy enables elites in nondemocratic countries to transfer their monies for ultimate investment in stable democratic countries. The approach ...
%SOURCENAMEESCAPED%, New: The FDIC as Holder in Due Course: Some Law and Economics
(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
(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.
%SOURCENAMEESCAPED%, New: The Latent Efficiency of Fraudulent Transfer Law
(March 10, 2016)
A creditor holding a claim against a debtor typically holds the right, subject to the debtor's default, to obtain a judgment against the debtor, liquidate the debtor's assets, and apply the proceeds against his claim. If the debtor's assets are insufficient to satisfy the creditor's claim, the creditor is usually, but not always, out of luck. Under limited circumstances, a creditor can reach property the debtor transferred to a third party and apply the value of such property to satisfy his claim. The creditor can undo the transfer and obtain the property or its value from the transferee as though the debtor had never transferred it. The circumstances under which the creditors can undo or "avoid" a transfer of the debtor's property, deprive the transferee of the value of the property, and apply such value to satisfy their claims are the subject of fraudulent transfer law.
Part II of this article sets out the fraudulent transfer rules and explains in basic terms how they work. It ...
%SOURCENAMEESCAPED%, New: Making Sense of Successor Liability
(March 10, 2016)
A firm that buys assets from another firm ordinarily does not acquire liability to the seller's creditors simply by buying its assets. This ordinary rule is subject to important exceptions. The buyer's consent triggers an exception. If a buyer agrees to assume the seller's liability to third parties, it is for that reason liable. This article considers a more controversial exception - successor liability. When a court decides that an asset acquirer should be treated as a "successor" to the transferor, it is liable for the transferor's debts as though it were the transferor.
%SOURCENAMEESCAPED%, New: Privacy, Autonomy, and Internet Platforms
(February 25, 2016)
To what extent will academics study data-driven firms like Facebook, and to what extent will they try to join forces with such firms’ own researchers, to study the firms’ users, clients, and suppliers? This essay, a chapter in a collection on the future of privacy law, examines the stakes of data collection, analysis, and use in an era of corporate social science. Social scientists, as users of models, may find that they can only access important data if they shift their inquiries toward the creation of “model users” (i.e., platform participants whose behavior maximizes the profits of the platform controlling the data). More disinterested or emancipatory research agendas can better promote the autonomy and well-being of platform users.
%SOURCENAMEESCAPED%, REVISION: Democratizing Higher Education
(February 21, 2016)
This article addresses many critiques of income-based repayment programs for student loan debt. These programs are not helping many of the students they were designed to aid. Their terms are too harsh, especially given repeated failures by relevant authorities to fully account for the benefits of higher education. If reformers fail to substantially improve the terms and accessibility of IBR programs, they will lose popularity and credibility.
%SOURCENAMEESCAPED%, New: Reforming the Law of Reputation
(February 6, 2016)
Unfair and deceptive practices of controllers and processors of data have adversely affected many citizens. New threats to individuals’ reputations have seriously undermined the efficacy of extant regulation concerning health privacy, credit reporting, and expungement. The common thread is automated, algorithmic arrangements of information, which could render data properly removed or obscured in one records system, nevertheless highly visible or dominant in other, more important ones.
As policymakers reform the law of reputation, they should closely consult European approaches to what is now called the “right to be forgotten.” Health privacy law, credit reporting, and criminal conviction expungement need to be modernized for the digital age to reflect the power of aggregating intermediaries. Search engines, social networks, and other digital tools may maintain the salience and power of certain information long after formal processes have determined it to be untrue, irrelevant, or ...
%SOURCENAMEESCAPED%, New: Synergy and Tradition: The Unity of Research, Service, and Teaching in Legal Education
(February 5, 2016)
Most non-profit law schools generate public goods of enormous value: important research, service to disadvantaged communities, and instruction that both educates students about present legal practice and encourages them to improve it. Each of these missions informs and enriches the others. However, technocratic management practices menace law schools’ traditional missions of balancing theory and practice, advocacy and scholarly reflection, study of and service to communities. This article defends the unity and complementarity of law schools’ research, service, and teaching roles. (For those short on time, the chart on pages 45-46 encapsulates the conflicting critiques of law schools which this article responds to.)
%SOURCENAMEESCAPED%, New: Voter Viewpoint Discrimination: Reconsidering a First Amendment Challenge to Voter Participation Restrictions
(February 4, 2016)
The Supreme Court's recent decision in Shelby County v. Holder has generated a flurry of scholarly thinking about alternative ways to approach legislatively enacted restrictions on voting rights. One alternative that deserves additional attention is the possibility of challenging voter participation restrictions (such as voter ID laws) as viewpoint discriminatory under existing First Amendment doctrine. Many of these laws, after all, are perceived as embodying a legislative choice to burden some voters but not others based on legislative expectations about how the most burdened voters are likely to vote. A viewpoint discrimination approach therefore seems ripe for further exploration. Part 1 of this paper explains why a First Amendment, viewpoint based challenge to at least some such laws is indeed appropriate. Part 2 uses existing First Amendment doctrine to ground the approach in existing case law, and to specify what it would look like in the election law context.
%SOURCENAMEESCAPED%, New: Of Judges, Law, and the River: Tacit Knowledge and the Judicial Role
(September 10, 2015)
Judges and commentators on judging have long recognized that the judicial role frequently requires its holders to draw upon some source of inarticulable knowledge. Judge Joseph Hutcheson spoke of it in terms of “intuition,” Karl Llewellyn by reference to “situation sense,” and Justice Potter Stewart by reference to the phrase “I know it when I see it.” This essay, prepared in connection with a conference on judicial education, addresses the topic in terms of philosopher Michael Polanyi’s concept of “tacit knowledge.” Using the example of judging in aesthetic sports as a means of illustration, I suggest that our efforts to identify and limit the influence of improper unconscious influences — ideology, cognitive biases, and the like — must be tempered by a recognition of the ways in which judging necessarily, and desirably, draws on the proper sorts of unconscious influences that make up judges’ base of tacit knowledge.
%SOURCENAMEESCAPED%, New: Predicting the Future: Our Food System in 2025
(July 9, 2015)
Our food system faces many challenges - increasing population, concerns about the sustainability of current agricultural production practices, and the impact of climate change. This article looks to the future and makes predictions about our food system in ten years. It was presented by invitation at the The Journal of Food Law & Policy's ten-year anniversary symposium, The Past, Present, and Future of Food Law and Policy.
%SOURCENAMEESCAPED%, New: Beyond the Food We Eat: Animal Drugs in Livestock Production
(July 9, 2015)
How we raise livestock in the United States has changed dramatically in the last fifty years. Greater efficiency in production has resulted in an increased supply of meat and a significantly lower cost to the consumer. That efficiency, however, has hidden costs. A wide range of drugs are used in U.S. livestock production to enhance growth, alter the characteristics of the meat produced, prevent disease in crowded living conditions, and increase feed conversion ratios. The pharmaceutical industry is primarily responsible for all testing of these drugs and most are available without prescription. Many of these drugs pass through the animal's system and can be found in animal waste, yet environmental considerations are rarely even considered. This article describes the use of drugs in livestock production, the types of drugs used, and the regulatory process for drug approval. It argues that the review process is ineffective and insufficient and that it fails to consider the critical ...
%SOURCENAMEESCAPED%, New: Of Umpires, Judges, and Metaphors: Adjudication in Aesthetic Sports and Its Implications for Law
(February 19, 2015)
In his confirmation hearings, Chief Justice Roberts famously described his vision of the judicial role as analogous to that of an umpire. “Judges are like umpires,” he said. “Umpires don’t make the rules; they apply them.” The Chief Justice was, of course, hardly the first to draw this analogy, and he will certainly not be the last. The comparison is natural, for both roles require their occupant to “make the call,” or, more formally, to serve as the presumptively final adjudicator of the rights of competing parties.
Yet while the “judge as umpire” seems to have naturally captured the imagination of judges, commentators, and laypersons alike, it has also come in for its share of critique, with critics pointing out the various ways in which the comparison is inapt. Perhaps the most frequently mentioned distinction is that judges, unlike umpires, and contrary to the Chief Justice’s suggestion, actually do have to role to play in the creation and refinement of the rules they must ...
%SOURCENAMEESCAPED%, REVISION: Methodological Pluralism and Constitutional Interpretation
(February 19, 2015)
This article takes up a significant yet surprisingly overlooked question: What accounts for the Supreme Court’s lack of methodological uniformity in constitutional interpretation? The question can be phrased in other ways: Why do strong methodological pronouncements in one case go unfollowed and unacknowledged in the next? Why, to use an example, does the originalist analysis of District of Columbia v. Heller not create a presumption that subsequent Second Amendment cases must also be analyzed via an originalist approach?
An easy answer suggests itself — the justices simply do not want to bind themselves to someone else’s preferred methodology. They hold strongly divergent views, and advocate on behalf of those views in their opinions. Each justice might be willing to adhere to a single approach, but only so long as it is the one he or she favors.
This easy answer turns out to be, at best, incomplete. There are many respects in which the Court does adhere to its past ...
%SOURCENAMEESCAPED%, Update: The Future of Food Law & Policy: The Responsibility of Lawyers in the Academy and Beyond
(August 25, 2014)
Food Law & Policy is a flourishing legal field that is fast approaching the tenth anniversary of its inception. The field boasts several key milestones. The first Food Law & Policy course was taught in 2004. The first scholarly journal devoted to the field was created in 2005. And, the first Food Law & Policy legal clinic was established in 2010. Today, interest in the field among legal scholars and law students alike is so widespread that a 2013 news article reported “there may be no hotter topic in law schools right now than food law and policy.”
Food Law & Policy incorporates elements from the study of traditional food and drug law as well as elements from the study of traditional agricultural law. It intersects with a new approach to agricultural law studies that involves a more holistic approach including sustainability and a food systems analysis.
This article was prepared for the Yale University Food Systems Symposium. It was written by faculty members at several law ...New PDF Uploaded