Jurisdynamics Network authors on SSRN

stefanie lindquist, Attorney Expertise, Litigant Success, and Judicial Decision Making in the U.S. Courts of Appeals, http://www.ssrn.com/abstract=1428566 (July 2, 2009)

In the U.S. legal system, litigants frequently retain counsel to represent their interest in civil cases, particularly when the stakes are high. Scholarly work and anecdotal evidence suggest that variation in the quality of advocacy has the potential to affect litigant success. We examine the relationship between attorney characteristics, case outcomes, and judicial voting in products liability decisions of the U.S. Courts of Appeals. Our analysis found some differences in the levels of experience and specialization of counsel, representing defendants and plaintiffs and that counsel expertise was, at times, related to litigant success. In a multivariate model of decision making, judge were less likely to support the position of plaintiffs when they were represented by counsel appearing for the first time before the circuit. When defendants were represented by attorneys who did not specialize in relevant areas of the law, judges were more likely to decide in favor of the ...

Paul L. Caron, Estate Planning Implications of the Right of Publicity, http://www.ssrn.com/abstract=1426629 (July 1, 2009)

It is not very often that an estate tax case is featured in the Harvard Law Review, as recently happened with Estate of Andrews, 850 F. Supp. 1279 (E.D. Va. 1994). In that case, the district court concluded that the value of the right of publicity embodied in a famous decedent's name is includable in the decedent's estate under section 2033. The Harvard article claims that the case 'sent shock waves through the estate planning profession,' and that 'knowledgeable estate attorneys are scrambling to determine what famous personalities must do to protect their estates from potentially devastating tax burdens.' Federal Estate Tax and the Right of Publicity: Taxing Estates for Celebrity Value, 108 Harv. L . Rev. 683, 683 (1995). This article explores the estate planning implications of the Andrews decision.

Elizabeth A. Weeks, State Constitutionalism and the Right to Health Care, http://www.ssrn.com/abstract=1421504 (June 18, 2009)

This Article assesses the viability and desirability of private lawsuits under state constitutions to effect health care reform. The federal constitution contains no right to health, but several state constitutions hold the possibility of enforceable health or health care claims. State law focus is appropriate because states play essential, inevitable roles in health care, including administering large government assistance programs, such as Medicaid, and regulating medical providers and health insurers. Although private lawsuits may be an effective means of indirect regulation and policy change in other contexts, this Article explains why that approach offers little promise for improving health care in the United States.

Nancy B. Rapoport, Lessons from Enron -- And Why We Don't Learn from Them, http://www.ssrn.com/abstract=1413937 (June 5, 2009)

This article discusses why even the smartest of people can make boneheaded decisions, and it suggests that the only way to avoid future Enrons is to take into account the cognitive mistakes that humans tend to make.

Daniel A. Farber, Justice Stevens, Habeas Jurisdiction, and the War on Terror, http://www.ssrn.com/abstract=1405538 (May 17, 2009)

The Bush Administration chose Guantanamo as a detention site in the belief that the military base was immune from federal habeas jurisdiction, leading to a protracted dispute between the Executive Branch, the Supreme Court, and Congress. Justice Stevens played an important role in this struggle over federal jurisdiction, writing two critical majority opinions and an important dissent about habeas jurisdiction. His two majority opinions were countered by fervent dissents by Justice Scalia. Examining these clashes is well worthwhile because of the importance of the legal issues, but also because of the light they may shed on the different analytic approaches of these two influential Justices. This paper gives particular attention to a seemingly arcane and technical battle over the retroactivity of jurisdiction-stripping statutes. Not unusually, where Justice Scalia saw a bright-line rule, which he accused the Court of wantonly trammeling, Justice Stevens instead saw a more ...

Daniel A. Farber, Confronting Uncertainty under NEPA, http://www.ssrn.com/abstract=1403723 (May 13, 2009)

Quantifying risks with confidence is often difficult. For the past thirty years, agencies and courts have struggled with the treatment of uncertainty in environmental impact statements. As we will see, the results have been an unsatisfactory muddle. We should be able to do better. This problem is all the more important today. Climate change will require innovative solutions - new energy technologies, new adaptation strategies. These innovations will inevitably pose risks, often in the form of possible harm to human welfare or the environment. Climate change itself involves uncertainties. Evaluating these risks and informing decision makers and members of the public will be challenging. Part I of this article provides background on the National Environmental Policy Act (NEPA) for the uninitiated. It will then use the example of dam failure to illuminate the problem of risk assessment in impact statements. Part II uses nuclear power as the basis for a detailed case study. It is ...

Peter K. Yu, The Objectives and Principles of the TRIPs Agreement, http://www.ssrn.com/abstract=1398746 (May 6, 2009)

The Agreement on Trade-Related Aspects of Intellectual Property Rights, which established the minimum standards for the protection and enforcement of intellectual property rights for WTO members, remains one of the more controversial international intellectual property agreements that have entered into force. Although that Agreement embraces a highly problematic super-size-fits-all approach, it includes a number of safeguards and flexibilities to facilitate economic development and to protect the public interest. Articles 7 and 8, in particular, lay out explicit and important objectives and principles that can play important roles in the interpretation and implementation of the Agreement. This article begins by tracing the origins and development of Articles 7 and 8 of the TRIPs Agreement. It then examines the normative content of these provisions while highlighting the interpretations made by WTO panels and the Appellate Body as well as the implications of the two Doha ...

Gaia Bernstein, In the Shadow of Innovation, http://www.ssrn.com/abstract=1395779 (April 28, 2009)

We are in the midst of the intellectual property wars. Scholars, judges, legislators, corporations, creators and inventors disagree about the role of intellectual property rights. Yet, surprisingly everyone agrees about innovation - everyone loves innovation. Innovation appears everywhere: In legal scholarship, case law, legislative hearings, newspapers, and blogs. It is uniformly admired and aspired to - though almost never questioned. Innovation is often assumed to have historically held a central role in the technology regulating legal regime. The Article presents a study of case law, which demonstrates that contrary to common belief, the celebration of innovation is, in fact, a relatively recent trend originating in the mid-1980s - at the advent of the intellectual property wars. The Article critically examines this celebration of innovation. It argues that while innovation is promoted as the key to progress and advancement of human welfare, the exclusive status it obtained ...

Jim Chen, Creamskimming and Competition, http://www.ssrn.com/abstract=1395554 (April 27, 2009)

The concept of “creamskimming” arises with regularity in the law of regulated industries. As a rhetorical weapon, the term “creamskimming” readily conjures images of the sort of putatively destructive competition that regulatory commissions are charged with patrolling. As a result, allegations of creamskimming have become a standard weapon in the legal arsenal of incumbent firms seeking to resist competitive entry. At an extreme, incumbent firms will characterize all forms of competitive entry as creamskimming. Sound regulatory responses to these allegations therefore depend on a proper understanding of the creamskimming concept. This article proposes a definition of creamskimming that will help state and federal regulatory agencies distinguish genuine objections to proposed competitive entry from reflexive (and often improper) efforts to shield incumbent firms from competition. “Creamskimming” should be defined as “the practice of targeting only the customers that are the ...

J.B. Ruhl, Sustainable Development: A Five-Dimensional Algorithm for Environmental Law, http://www.ssrn.com/abstract=1368909 (March 27, 2009)

This article describes sustainable development as involving five dimensions: environment, economy, equity, time, and space (or scale). I suggest that the complexity inherent in balancing these five dimensions demand algorithmic approaches like those being explored in complex adaptive systems theory.

Chad M. Oldfather, Error Correction, http://www.ssrn.com/abstract=1368894 (March 27, 2009)

Under most accounts of appellate review, error correction stands with law declaration as the core purposes of the process. Yet while a vast amount of scholarship addresses the process of judicial law creation, error correction has received comparatively little attention. Indeed, there appears to be a consensus that it is straightforward and settled, and that the lack of attention is warranted. One goal of this article is to challenge this understanding. To be sure, the architecture of our judiciary reflects a worldview in which legal questions have correct answers and courts' role is simply to find them. On that understanding there is nothing for appellate courts to do but correct error. We no longer inhabit that world. Instead, as the saying goes, "we are all Realists" in that we accept the indeterminacy of legal standards and recognize that courts must often make (rather than merely find) law. This jurisprudential shift has significant implications for error correction. ...

Andrea M. Matwyshyn, Technology, Commerce, Development, Identity, http://www.ssrn.com/abstract=958438 (March 23, 2009)

Traditional paradigms of technology regulation ask how technology-mediated space is different from non-technology mediated space. Regulation rarely focuses on how technology makes a user develop differently than she/he otherwise would and what those differences might mean for regulatory approaches. This article introduces nonlinear developmental paradigms of contextualist and ecological developmental psychology theory to the debate over technology regulation. It argues that technology regulation presents a strong example of the dangers and inefficiencies of blindly adopting an approach to regulating human conduct based solely on linear developmental assumptions. This article specifically explores the legal implications of technology-mediated human development using the technology policy arena of corporate child data security regulation.

Alfred L. Brophy, Applied Legal History: Demystifying the Doctrine of Odious Debts, http://www.ssrn.com/abstract=1366028 (March 21, 2009)

"Odious debts" have been the subject of debate in academic, activist, and policy circles in recent years. The term refers to the debts of a nation that a despotic leader incurs against the interests of the populace. When the despot is overthrown, the new government-understandably-does not wish to repay creditors who helped prop up the despot. One argument has focused on whether customary international law supports a "doctrine" of odious debts that justifies non-payment of sovereign debts when three conditions are met: (1) the debts were incurred by a despotic ruler (without the consent of the populace); (2) the funds were used in ways that did not benefit the populace; and (3) the creditors were aware of the likely illegality of the loans. Advocates of this doctrine, which was synthesized by Alexander Sack in 1927, typically cite two examples of U.S. state practice for support: the negotiations between the United States and Spain following the Spanish-American War, in which the ...

Lori A. Ringhand, In Defense of Ideology: A Principled Approach to the Supreme Court Confirmation Process, http://www.ssrn.com/abstract=1361102 (March 18, 2009)

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation process. Second, Professor Ringhand explains how an ideologically-based approach to the confirmations process is not just unobjectionable, but can in fact play a normatively desirable role in ongoing efforts to construct alternative constitutional narratives, narratives that attempt to guide or justify the use ...

J.B. Ruhl, The Myth of What is Inevitable Under Ecosystem Management: A Response to Pardy, http://www.ssrn.com/abstract=1358333 (March 12, 2009)

This article, second in a five-part dialogue appearing in the Pace ELR, responds to Professor Bruce Pardy's initial evaluation of ecosystem management. I defend ecosystem management, arguing it is not directed at changing nature as Pardy suggests.

J.B. Ruhl, The Pardy-Ruhl Dialogue on Ecosystem Management, Part IV: Narrowing and Sharpening the Questions, http://www.ssrn.com/abstract=1358338 (March 12, 2009)

This article, fourth in a five-part dialogue appearing in the Pace ELR, further responds to Professor Bruce Pardy's critique of ecosystem management. I defend ecosystem management, arguing it does not involve the standardless, unbridled administrative discretion Pardy suggests.

Tom W. Bell, Graduated Consent Theory, Explained and Applied, http://www.ssrn.com/abstract=1357825 (March 12, 2009)

We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This article reviews how a wide range of authorities regard consent, discovering that they treat consent as a matter of degree and a measure of justification. By abstracting from that evidence, we can outline a theory of graduated consent. This article concludes by testing a graduated consent theory against such problems as enforcing standardized agreements, justifying political coercion, and reading a constitution. In those and other applications, a theory of graduated consent can contribute to legal, moral, and economic ...

J.B. Ruhl, Sustainable Agriculture: Food for the Future Farmland Stewardship: Can Ecosystems Stand Any More of it?, http://www.ssrn.com/abstract=1357691 (March 12, 2009)

Second in my series of articles on farming and environmental policy, this article examines farmland stewardship rhetoric in light of the reality of extensive agricultural exemptions from environmental regulation.

J.B. Ruhl, Three Questions for Agriculture About the Environment, http://www.ssrn.com/abstract=1357696 (March 12, 2009)

This article is the third in my series studying agriculture and environmental law. It asks why agriculture has not evolved toward more environmentally responsible behavior and points to possible "green" solutions that will move agriculture into necessary transformations.

Arthur J. Cockfield, Finding Silver Linings in the Storm: An Evaluation of Recent Canada-US Crossborder Tax Developments, http://www.ssrn.com/abstract=1352557 (March 12, 2009)

Recently, a storm of activity has swirled around rules governing the tax treatment of Canada-US crossborder investment. The high degree of integration of the Canadian and US economies means that the economic effects of such tax changes can be significant. This paper reviews and evaluates a number of recent developments, including revisions to the Canada-US tax treaty and ongoing Canadian efforts to engage in corporate income tax competition with the United States. Further crossborder tax reforms are suggested to reduce undue restrictions on, or distortions of, crossborder investment.

J.B. Ruhl, Water Wars, Eastern Style: Divvying Up the Apalachicola-Chattahoochee-Flint River Basin, http://www.ssrn.com/abstract=1357762 (March 12, 2009)

This article takes lessons learned from western states' water conflicts and applies them to eastern contexts as exemplified by the dispute between Florida and Georgia over water allocation in the ACF River basin.

J.B. Ruhl, A Practical Guide to Habitat Conservation Banking Law and Policy, http://www.ssrn.com/abstract=1357707 (March 12, 2009)

This article describes and evaluates the habitat conservation banking program the Clinton Administration conceived and the Bush Administration adopted under the Endangered Species Act.

Arthur J. Cockfield, Protecting Taxpayer Privacy Rights Under Enhanced Cross-Border Tax Information Exchange: Toward a Multilateral Taxpayer Bill of Rights, http://www.ssrn.com/abstract=1356841 (March 12, 2009)

For a number of important policy reasons, tax authorities share information they collect about taxpayers with tax authorities from other countries. These tax authorities along with tax scholars generally recognize the need for enhanced cross-border tax information exchange (TIE) to assist with the enforcement of tax laws as well as for other reasons, but often disagree on the appropriate reform path. This Article identifies and discusses the challenges to taxpayer privacy rights and interests presented by TIE to see whether reform efforts are needed. The analysis suggests that effective TIE should be understood to consist of two discrete but related elements: efficient TIE (that is, rules and policies that promote low compliance costs for taxpayers and ease of administration and enforcement by tax authorities) and fair TIE (that is, rules and policies that respect the rights of taxpayers, including privacy rights). The main policy proposal is for governments to consider the ...

Gregory N. Mandel, Regulating Emerging Technologies, http://www.ssrn.com/abstract=1355674 (March 10, 2009)

A range of emerging technologies, including biotechnology, nanotechnology, and synthetic biology, are expected to transform society. Handling the development and regulation of these promising technologies is a daunting task as the risks presented will not be understood until the technologies are further developed. This paper proposes a new governance model that seeks manage the dynamic of emerging technology promise versus risk by moving the point of first governance earlier in a technology's development, but enabling the governance structure to evolve after formation. The model aims to turn some of the greatest challenges of managing emerging technologies-scientific uncertainty and the disruption of extant regulatory systems-on their head to create incentives for widespread stakeholder cooperation to produce more proactive, flexible governance.

J.B. Ruhl, The Arrow of the Law in Modern Administrative States: Using Complexity Theory to Reveal the Diminishing Returns and Increasing Risks the Burgeoning of Law Poses to Society, http://www.ssrn.com/abstract=1354089 (March 7, 2009)

This article is the third in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. Building on the model outlined in the first two installments (in the Duke and Vanderbilt law reviews), this work examines the "arrow" or direction of the legal system in the context of the administrative state. Drawing from diverse work such as Burke's study of history's nonlinearity and Tainter's classic study of the collapse of complex civilizations, we argue that the administrative state is becoming too resource intensive and burdened by a proliferation of rules.

J.B. Ruhl, The Co-Evolution of Sustainable Development and Environmental Justice: Cooperation, then Competition, then Conflict, http://www.ssrn.com/abstract=1354736 (March 7, 2009)

This article explores sustainable development and environmental justice as potentially conflicting policy goals. Sustainable development includes equity as one of its five dimensions (in addition to environment, economy, time, and space), whereas environmental justice focuses principally on equity. Over time there is likely to be an increasing number of contexts in which sustainability-based policy solutions do not satisfy environmental justice advocates.

J.B. Ruhl, The Metrics of Constitutional Amendments: And Why Proposed Environmental Quality Amendments Don't Measure Up, http://www.ssrn.com/abstract=1354732 (March 6, 2009)

This article builds a model of federal constitutional amendments using proposed environmental quality rights amendments as a case study. I argue that environmental quality rights amendments are unworkable and violate the underpinnings of federal constitutional design.

J.B. Ruhl, Thinking of Mediation as a Complex Adaptive System, http://www.ssrn.com/abstract=1354171 (March 6, 2009)

This article uses my work on complex adaptive systems to think about how litigation and mediation differ in terms of adaptive qualities, suggesting that mediation is indeed a more adaptive mode of dispute resolution in certain contexts.

J.B. Ruhl, The Case of the Speluncean Polluters: Six Themes of Environmental Law, Policy, and Ethics, http://www.ssrn.com/abstract=1354195 (March 6, 2009)

This article uses a hypothetical future based on Lon Fullers classic Speluncean Explorers work to construct and contrast different perspectives on environmental law and policy: cost-benefit analysis; free market environmentalism; precautionary principles; sustainability; environmental justice; property rights; and deep ecology.

J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean Up the Environment by Making a Mess of Environmental Law, http://www.ssrn.com/abstract=1354166 (March 6, 2009)

This article is the fourth in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. It applies the model built in the three prior installments (in the Duke, Vanderbilt, and UC-Davis law reviews) to the specific context of environmental law. The work describes the subject matter of environmental law as a CAS and explains why environmental law thus must "think like a complex adaptive system" in order to accomplish its objectives.

J.B. Ruhl, The Seven Degrees of Relevance: Why Should Real-World Environmental Attorneys Care <Em>Now</Em> About Sustainable Development Policy?, http://www.ssrn.com/abstract=1354181 (March 6, 2009)

This article explores the evolution of the concept of "sustainable development" through what I suggest are the "seven degrees" of relevance of legal conceptualizations: (1) translation of concept into norm; (2) uncontestability of the norm; (3) intolerance of violation of the norm; (4) demand for fulfillment of the norm; (5) translation of the norm as policy goal; (6) policy consequences based on the norm; (7) translation into hard law to apply. I suggest that, at the time of the writing (1998), sustainable development was stuck on level five.

J.B. Ruhl, The Endangered Species Act and Private Property: A Matter of Timing and Location, http://www.ssrn.com/abstract=1354724 (March 6, 2009)

This article examines some of the perverse consequences of the structure of the Endangered Species Act, namely that it deters property owners from conserving threatened species and lacks proactive measures.

J.B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, http://www.ssrn.com/abstract=1353330 (March 5, 2009)

This article offers an early examination of the law and governance of biodiversity (circa 1995) through the lenses of the Endangered Species Act, Clean Water Act, and Coastal Zone Management. It suggests that true multi-scalar, cooperative federalism will be needed to manage complex ecological resources for biodiversity conservation. A suggested model employing regional biodiversity management approaches is outlined.

J.B. Ruhl, Section 7(a)(1) of the 'New' Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies' Duty to Conserve Species, http://www.ssrn.com/abstract=1353336 (March 4, 2009)

This article probes the history, meaning, and potential applications of section 7(a)(1) of the Endangered Species Act, which by its terms imposes a "duty to conserve" on all federal agencies. The article examines how agencies and courts have watered down this potentially forceful species conservation directive and suggests that, by linking it with the recovery planning function of section 4(f) of the Act, the duty to conserve could help us gain traction on species recovery.

J.B. Ruhl, Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: A Wake-Up Call for Legal Reductionism and the Modern Administrative State, http://www.ssrn.com/abstract=1353409 (March 4, 2009)

This article is the first in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. It builds the basic model of CAS and maps it onto legal systems, offering some suggestions for what it means in terms of legal institution and instrument design.

J.B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and its Practical Meaning for Democracy, http://www.ssrn.com/abstract=1353428 (March 4, 2009)

This article is the second in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. Building on the model outlined in the first installment (in the Duke Law Journal), this work develops an evolutionary theory of legal systems as CAS. It suggests that long-term fitness of the legal system will require use of innovative, adaptive legal institutions and instruments.

Peter K. Yu, A Tale of Two Development Agendas, http://www.ssrn.com/abstract=1349967 (February 26, 2009)

In October 2004, Argentina and Brazil introduced a proposal to establish the WIPO Development Agenda. Although scholars have focused primarily on this agenda, as well as the WTO Doha Development Agenda, development agendas have also been established at other international fora, such as those governing public health, human rights, biological diversity, food and agriculture, and information and communications. Interestingly, these development agendas bear strong resemblances to another set of development agendas less developed countries advanced in the 1960s and 1970s. Bringing together these two sets of development agendas, this Article examines whether the present agenda can avoid the path of its ill-fated predecessor. The article begins by tracing the development of the Old Agenda. It discusses the drafting of the Stockholm Protocol, the formation of WIPO as a U.N. specialized agency, the establishment of the draft International Code of Conduct on the Transfer of Technology, and ...

Gregory N. Mandel, Risk and Culture: Is Synthetic Biology Different?, http://www.ssrn.com/abstract=1347165 (February 21, 2009)

Cultural cognition refers to the influence that individuals' values have on their perceptions of technological risk. We conducted a study to assess the cultural cognition of synthetic biology risks. Examining the attitudes of a large and diverse sample of Americans (N = 1,500), we found that hierarchical, conservative, and highly religious individuals - persons who normally are most skeptical of claims of environmental risks (including those relating to nuclear power and global warming) - are the persons most concerned about synthetic biology risks. We attribute this in-version of the normal cultural profile of risk perceptions to the seemingly anti-religious connotations of synthetic biology. We discuss implications of this finding for future study and for risk communication.

Tom W. Bell, The Scale of Consent, http://www.ssrn.com/abstract=1322180 (February 13, 2009)

We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This working paper reviews how legal and other authorities regard consent, revealing that they treat consent as a matter of degree and a measure of justification. The scale described here plays a vital role in a larger project, one that will also explain consent's importance and apply graduated consent theory to such longstanding puzzles as the enforceability of standard form agreements, the justifiability of political coercion, and the meaning of a constitution. As a preliminary to that project, this working paper explains how consent ...

Daniel A. Farber, Adaptation Planning and Climate Impact Assessments: Learning from Nepa's Flaws, http://www.ssrn.com/abstract=1341902 (February 13, 2009)

As we begin to design climate adaptation into our institutions, we should be careful to learn from past failures rather than repeating them. After almost four decades, we have had many opportunities to see NEPA's system of environmental assessment in action. We can do better in approaching climate adaptation assessment. We can learn five valuable lessons from NEPA's shortcomings: (1) Assessment of climate impacts and adaptation needs must be an integral part of the agency's decision making process, not an afterthought as is too often the case for environmental assessments. (2) Climate impact assessments should be available on-line and linked with GIS systems. (3) Formal follow-up mechanisms must be institutionalized, and information about the effectiveness of adaptation measures must be readily available on-line. (4) Planning should consider a range of potential adaptation scenarios to identify robust adaptation measures. (5) To ensure that agencies adopt a proactive approach to ...

J.B. Ruhl, Adaptive Management for Natural Resources - Inevitable, Impossible, or Both?, http://www.ssrn.com/abstract=1337749 (February 5, 2009)

The disconnect between adaptive management in practice and adaptive management in law is quite palpable. Today's practitioner of natural resources law is bombarded with adaptive management. It is firmly entrenched in natural resource management agency practice from headquarters to the field level. It shows up in land management plans, resource development permits, and agency guidance documents. Yet, it appears almost nowhere as codified statutory and regulatory text, and it is dealt with significantly in only a handful of judicial opinions. Agencies can practice adaptive management because their organic statutes are sufficiently vague to allow it, but few statutes mention adaptive management and even fewer require it. No other principle of natural resources management has so deeply permeated the practice on the basis of so little mention in the law. Is this because adaptive management is both inevitable for the practice of natural resources management while being impossible under ...

J.B. Ruhl, The Tragedy of Ecosystem Services, http://www.ssrn.com/abstract=1337585 (February 4, 2009)

Derived from funds of natural capital, ecosystem services contribute greatly to human welfare, yet are rarely traded in markets. Most supporting (e.g., soil formation) and regulating (e.g., water purification, pest regulation) ecosystem services, and some cultural (e.g., aesthetic enrichment) and provisioning (e.g., capture fisheries, fuel wood) ecosystem services are declining because of a complex social trap, the "tragedy of ecosystem services," which results in part from the overconsumption of common-pool resources. Additionally, current economic incentives encourage the development of funds of natural capital on private lands for marketable commodities at the expense of ecosystem services that benefit the public. Such ecosystem services are therefore underprovided. Most critically, property law reinforces these market failures by creating incentives to convert funds of natural capital into marketable goods and by assigning no property rights to ecosystem service benefits. ...

Elizabeth A. Weeks, Public Health Law for a Brave New World; Book Review: Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint, http://www.ssrn.com/abstract=1334762 (January 29, 2009)

This is book review of Lawrence O. Gostin's new edition of Public Health Law: Power, Duty, Restraint (University of California Press, Berkeley, California, 2d ed., 2008). A review of a second edition of a book may be somewhat unusual as subsequent editions of already published works typically do not break new ground. But this book is different. Gostin's first edition, published in 2000, established and defined the modern field of public health law. The revised and expanded second edition emerges in the post-9/11, post-Katrina, post-Bush world. Gostin now seeks to apply public health paradigms to social problems beyond the field's traditional realm, offering a comprehensive, encyclopedic source of public health laws and a sound prescription for health care reform.

Peter K. Yu, Sino Trade Agreements and China's Global Intellectual Property Strategy, http://www.ssrn.com/abstract=1333431 (January 27, 2009)

In the past decade, the European Communities and the United States have pushed aggressively for the development of bilateral and regional trade agreements. Termed economic partnership agreements by the European Communities and free trade agreements by the United States, these instruments seekt to transplant laws from the more powerful signatories to the less powerful ones. In the intellectual property area, these agreements have been fairly controversial. By introducing laws that go beyond the multilateral standards required by the TRIPS Agreement, these agreements have ignored the local needs, national interests, technological capabilities, institutional capacities, and public health conditions of many less developed members of the WTO. Although the use of bilateral and regional trade agreements is not limited to the European Communities and the United States, the scholarly literature thus far has focused mostly on these agreements. To fill the void, this chapter examines ...

Susan A. Schneider, REVISION: What is Agricultural Law?, http://www.ssrn.com/abstract=1331422 (January 22, 2009)

The Association of American Law Schools (AALS) Agricultural Law Section chair, Professor Anthony Schutz identified two related goals for the 2009 AALS Agricultural Law section session: (1) To consider the pedagogical and scholarly value of agricultural law, and (2) To identify what belongs in the canon of agricultural law. This article defines agricultural law in the context of the contemporary law school curriculum, considering the particularly relevancy of consumers' increasing interest in food. It concludes with suggestions for those interested in teaching in this dynamic area.

Daniel A. Farber, Rethinking the Role of Cost-Benefit Analysis, http://www.ssrn.com/abstract=1324388 (January 8, 2009)

In their excellent new book, Retaking Rationality, Richard Revesz and Michael Livermore make a strong case for reforming cost-benefit analysis (CBA). Too often, as they convincingly document, CBA has been identified with an anti-regulatory agenda rather than reflecting sound economic analysis - and I would add, too often CBA has served as a means of hindering the implementation of statutory mandates. Their specific proposals for reforming CBA seem sensible. So does their desire to reform the role of OMB in overseeing regulatory policy. The trouble is that these reforms do not go far enough. The antiregulatory bias of OMB certainly has handicapped environmental policy, but more fundamental changes are needed if we are to achieve real progress. Toxics policy needs to be rethought from the ground up along the lines of the EU REACH Directive, while climate policy needs to be guided by a precautionary attitude toward mitigation and a search for robust adaptation strategies. As ...

Elizabeth A. Weeks, Teaching Sicko, http://www.ssrn.com/abstract=1310367 (December 2, 2008)

This brief essay, slated for publication in a regular column on "Teaching Health Law," describes the author's experience using the Michael Moore film, "Sicko," in the classroom. Students were assigned to watch the film and discuss relevant legal rules and policy issues in health care financing, health care reform, and public health law. The "Teaching Health Law" column is intended to share pedagogical experiences and insights among health law professors. This article also provides a summary of the substantive health laws implicated by the film.

Jim Chen, The Agroecological Opium of the Masses, http://www.ssrn.com/abstract=1304200 (November 21, 2008)

A specter is haunting agriculture, the specter of agroecological ideology. Extreme agroecological rhetoric transparently disguises a willingness to sacrifice environmental objectives whenever they conflict with the pecuniary interests of incumbent farmers. Agroecological ideology conceals an ugly truth about agriculture: farming is not an environmentally benign activity. In particular, the legal controversy over recombinant bovine somatotropin demonstrates how an agroecological response to new biotechnology can favor producer incomes over consumer welfare and environmental integrity. O brave moo world, that has such creatures in it!

Daniel A. Farber, Five Regulatory Lessons from REACH, http://www.ssrn.com/abstract=1301306 (November 16, 2008)

The EU REACH directive was enacted at the end of 2006. It contains perhaps the most rigorous testing requirements of any regulatory regime in the world. It also requires registration of all existing and new chemicals produced or imported in volumes of a ton or more per year per manufacturer or importer. This Directive promises to transform the legal context of the chemical industry. This essay begins by discussing the difficulty of risk assessment and the very mixed record of the United States in regulating toxics. It then discusses the directive in more detail. Finally, the article suggests that five lessons can be drawn from REACH: (1) the potential for international learning, which allowed the EU to benefit from its own experiences as well as the American struggles with toxic regulation; (2) the power of "next generation" environmental policies to mold industry behavior; (3) the need to attack the "tyranny of the status quo" rather than granting permanent regulatory ...

Paul L. Caron, The Estate Tax Non-Gap: Why Repeal a 'Voluntary' Tax?, http://www.ssrn.com/abstract=1295702 (November 5, 2008)

Over thirty years ago, George Cooper wrote a seminal article arguing that the estate tax was largely voluntary. Although many academics subsequently embraced Cooper's thesis that the estate tax easily can be avoided through a modicum of planning, we argue that the voluntary tax metaphor crumbles under scrutiny. The unprecedented repeal efforts over the past twenty years belie the notion that the estate tax is easily avoided. Moreover, many of the techniques described by Cooper simply no longer provide significant estate tax savings. The techniques that do work to lower the tax burden on an estate often do so by reducing the actual economic value of assets transferred to heirs. We argue that the voluntary tax metaphor has infected analysis of estate tax empirical data and computation of the estate tax "gap." We contend that commentators confuse the concept of the effective estate tax rate in examining the efficacy of the estate tax; when one correctly computes the effective estate ...

Daniel A. Farber, REVISION: 'Judgment Calls: Principle and Politics in Constitutional Law', http://www.ssrn.com/abstract=1288146 (October 23, 2008)

"Judgment Calls" addresses the problem of judicial discretion in constitutional law. Many political scientists and some prominent legal scholars suggest that constitutional adjudication is just politics in disguise. Others propose the use of methodologies like textualism or originalism to constrain what they view as an alarming degree of judicial discretion in interpretation. At bottom, both sorts of thinkers believe that judging has to be either tightly constrained and inflexible or purely political and unfettered: There is, they argue, no middle ground. We disagree. In this book, we argue that judging can be - and often is - both principled and flexible. In other words, we attempt to reconcile the democratic rule of law with the recognition that judges have discretion. We explain how judicial discretion can be exercised responsibly, describe the existing constraints that guide and cabin such discretion, and suggest improvements. In exploring how constitutional adjudication ...

J.B. Ruhl, Cities, Green Construction, and the Endangered Species Act, http://www.ssrn.com/abstract=1282284 (October 13, 2008)

The geographic footprint of cities - the space they occupy - is relatively small in comparison to their ecological footprint measured in terms of impact on the sustainability of resources situated mostly outside of the urban realm. Ironically, the Endangered Species Act (ESA), though widely regarded as one of the most powerful environmental laws, has been and continues to be administered with respect to urbanized land masses primarily with the objective of managing their geographic footprints. This Article uses the example of "green construction" techniques to explore this disconnect between the macro-scale contribution of cities' ecological footprints to species endangerment and the micro-scale orientation of ESA law and policy toward cities' geographic footprints. The movement toward codifying standards for green construction is less concerned with geographic footprints than with ecological footprints, and widespread adoption of green construction codes thus could significantly ...

Chad M. Oldfather, The Hidden Ball: A Substantive Critique of Baseball Metaphors in Judicial Opinions, http://www.ssrn.com/abstract=1281731 (October 12, 2008)

This article draws on literary and linguistic theory, as well as prior work studying the effects of metaphor in judicial opinions, to study the use of a specific type of metaphor - baseball metaphors - in judicial opinions. The article surveys several specific metaphors that have been recurrently used - including the judge as "umpire," "hit-and-run," and "three strikes and you're out" - and considers the ways in which the use of such metaphors might direct thought about the underlying subject matter in inappropriate directions. (And it is, in reality, more interesting than those two sentences might make it sound. You should totally download it.)

J.B. Ruhl, Implementing the New Ecosystem Services Mandate of the Section 404 Compensatory Mitigation Program: A Catalyst for Advancing Science and Policy, http://www.ssrn.com/abstract=1281048 (October 12, 2008)

On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that results when wetlands are filled at impact sites and mitigation wetlands are provided at possibly significant distances away. Although motivated primarily by the need to bring the program under one comprehensive regulatory framework, the new rule also for the first time introduces ecosystem services into ...

J.B. Ruhl, Keeping the Endangered Species Act Relevant, http://www.ssrn.com/abstract=1281040 (October 11, 2008)

The Endangered Species Act (ESA) has long been the workhorse of species protection in contexts for which a species-specific approach can effectively be employed to address discrete human-induced threats that have straightforward causal connections to the decline of a species, such as clearing of occupied habitat for development or damming of a river. Its resounding success there, however, has led to the misperception that it can duplicate that record anywhere and for any reason a species is at risk. Yet is the statute adaptable to the sprawling, sometimes global phenomena that are wearing down our environmental fabric on landscape scales through complex causal mechanisms? For example, can the ESA effectively be used to combat climate change by regulating greenhouse gas emissions, to combat the impacts of urbanization by mandating green buildings, or to mitigate ecological degradation by demanding that resource users take into account the values of natural capital and ecosystem ...

J.B. Ruhl, REVISION: Whittling Away, http://www.ssrn.com/abstract=1280896 (October 8, 2008)

Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, "agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed." In this Article we explore what it means for agencies to whittle away at massive problems. Administrative law scholarship and practice have largely assumed that massive problems are similar to one another, focusing on jurisdiction and instrument choice - who should whittle and which knife they should use. We argue that the nature of ...

Peter K. Yu, Building Intellectual Property Coalitions for Development, http://www.ssrn.com/abstract=1272732 (October 4, 2008)

The adoption of the WIPO Development Agenda in October 2007 has provided less developed countries with a rare and unprecedented opportunity to reshape the international intellectual property system in a way that would better advance their interests. However, if these countries are to succeed, they need to take advantage of the current momentum, coordinate better with other countries and nongovernmental organizations, and more actively share with others their experience, knowledge, and best practices. Commissioned by the EDGE (Emerging Dynamic Global Economies) Network of the University of Ottawa, this paper begins by explaining how building intellectual property coalitions for development (IPC4D) can help less developed countries strengthen their collective bargaining position, influence negotiation outcomes, and promote effective and democratic decision making in the international intellectual property regime. The paper then discusses four coordination strategies that can be used ...

Peter K. Yu, Cultural Relics, Intellectual Property, and Intangible Heritage, http://www.ssrn.com/abstract=1272727 (September 24, 2008)

In recent years, the protection of traditional knowledge and cultural expressions has received widespread international attention. In 2003, delegates of 190 countries adopted the Convention on the Safeguarding of Intangible Cultural Heritage. Two years later, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted under the auspices of UNESCO. In 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples. In addition, there are active developments to strengthen protection of traditional knowledge and cultural expressions in the areas of international trade, intellectual property, and biological diversity. Taken together, all of these conventions, declarations, laws, and policy discussions have helped establish a new international framework for the protection of intangible cultural heritage. As part of the "Law Without Borders: Current Legal Challenges Around the Globe" Symposium, this ...

Gregory N. Mandel, Cultural Cognition and Synthetic Biology Risk Perceptions: A Preliminary Analysis, http://www.ssrn.com/abstract=1264804 (September 10, 2008)

We describe the results of a study to determine the synthetic-biology risk perceptions of a large and diverse sample of Americans (N = 1,500). The survey found that hierarchical, conservative, and highly religious individuals - one who normally are skeptical of claims of environmental risks (including those relating to global warming) - are the most concerned about synthetic biology risks. We offer an interpretation that identifies how selective risk-skepticism and risk-sensitivity can convey a cultural commitment to traditional forms of authority.

Elizabeth A. Weeks, REVISION: Everything Old is New Again: The Re-emerging Public Health Right, http://www.ssrn.com/abstract=1234542 (August 19, 2008)

This Article offers a contemporary examination of traditional public health objectives to address social problems not amenable to individual resolution. Taking the tradition a step further, it defines a "public health right" that may justify certain government actions that otherwise appear to impair individual rights. For example, lawmakers are considering whether current regulations on prescription drugs should be loosened to allow terminally ill patients to access drugs before they have been tested and approved for the general public. This Article concludes that expanding access to experimental drugs would violate the public health right to scientific knowledge and new drug development. The choice of a few patients to avail themselves of untested drugs depletes the "commons" of biomedical research. The Article concludes by briefly testing the public health right against other contemporary laws intended to promote public health and welfare, finding some but not all justified.

Jim Chen, From Red Lion to Red List: The Dominance and Decline of the Broadcast Medium, http://www.ssrn.com/abstract=1219382 (August 12, 2008)

This essay proposes a little housecleaning in the law of communications regulation. Red Lion Broadcasting Co. v. FCC, 395 U.S. 369 (1969), deserves to be transferred in its entirety from the realm of doctrine to that of history. Defenders of Red Lion and the discourse-based model of free speech jurisprudence symbolized by that decision seek to preserve one communicative niche where the public at large does absolutely nothing besides watch or listen. Appeals to civic republicanism and other lofty ideals notwithstanding, what Red Lion privileges above all else is sloth, the idea that there should be one form of mass communication that all citizens, without regard to wealth or power, can access solely by virtue of buying a receiving device and turning it on. For four decades Congress and the FCC have imposed mandatory carriage obligations on cable and broadcast satellite operators for the benefit of conventional television stations. The emergence of intermediate constitutional ...

Alfred L. Brophy, Property and Progress: Antebellum Landscape Art and Property Law, http://www.ssrn.com/abstract=1212663 (August 9, 2008)

Landscape art in the antebellum era (the period before the American Civil War, 1861-1865), often depicts the role of humans on the landscape. Humans appear as hunters, settlers, and travelers and human structures appear as well, from rude paths, cabins, mills, bridges, and canals to railroads and telegraph wires. Those images parallel cases, treatises, orations, essays, and fictional literature that discuss property's role in fostering economic and moral development. The images also parallel developments in property doctrine, particularly related to adverse possession, mistaken improvers, nuisance, and eminent domain. Some of the conflicts in property rights that gripped antebellum thought also appear in paintings, including ambivalence about progress, concern over development of land, and fear of the excesses of commerce. The concerns about wealth, as well as the concerns about the lack of control through law, appear at various points. Other paintings celebrate ...

Elizabeth A. Weeks, REVISION: Right to Experimental Treatment: FDA New Drug Approval, Constitutional Rights, and the Public's Health, http://www.ssrn.com/abstract=1208428 (August 8, 2008)

Do terminally ill patients who have exhausted all other available, government-approved treatment options have a constitutional right to experimental treatment that may prolong their lives? On May 2, 2006, a divided panel of the U.S. Court of Appeals for the District of Columbia, in a startling opinion, Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, held "Yes." The plaintiffs, Abigail Alliance for Better Access to Developmental Drugs and Washington Legal Foundation, sought to enjoin the Food and Drug Administration ("FDA") from refusing to allow the sale of investigational new drugs that had not yet been FDA-approval for marketing. The Abigail Alliance decision generated considerable interest from various constituencies. On one side, libertarian, free market scholars support the panel's decision as a strong recognition of individual rights. On the other side, public health and consumer safety advocates are concerned that the decision may do more harm ...

Ronen Perry, The Economic Bias in Tort Law, http://www.ssrn.com/abstract=1162005 (July 17, 2008)

Economic loss is moving to the forefront of tort discourse on both sides of the Atlantic. A Council draft of the Restatement (Third) of Torts: Economic Torts and Related Wrongs is being appraised and discussed by prominent American tort scholars, and European academics are seeking common ground regarding liability for economic loss in the European Union. The time may well be ripe to focus on an unexplored, perhaps unnoticed, mystery in the common law of torts: the consequential/relational economic loss dichotomy. Consequential economic loss is economic loss that stems from physical injury to the plaintiff's own person or property. Relational economic loss is purely economic loss that stems from physical injury to the person or property of a third party, or to an ownerless resource. The difference between the two may often seem normatively immaterial, but it has far-reaching implications in tort law. This Article endeavors to unveil the political - redistributive - underpinning of ...

stefanie lindquist, Supreme Court Auditing of the US Courts of Appeals: An Organizational Perspective, http://www.ssrn.com/abstract=1157236 (July 9, 2008)

Using an aggregate-level model of Supreme Court-circuit court interactions, this study assesses the extent to which the Court's auditing process of circuit court outputs is shaped by organizational dynamics such as structural capacity, institutionalization, and demographic characteristics. Principals in organizational hierarchies must audit the behavior of their agents to ensure that the agents are faithfully complying with the principals' preferences. In the case of the Supreme Court, such auditing activities must take place in the face of very limited institutional capacity on the Court's part. We propose that the Court considers certain broad organizational and institutional characteristics at the circuit level when performing this task. In particular, we find that the Court strategically allocates its limited institutional resources to audit decisions to respond to its recent interactions with individual circuits in past terms, the circuits' internal decision-making dynamics ...

Nancy B. Rapoport, REVISION: (Almost) Everything We Learned about Pleasing Bankruptcy Judges, We Learned in Kindergarten, http://www.ssrn.com/abstract=1157103 (July 8, 2008)

In this essay, we demonstrate that most ethics violations (at least the ones that irritate bankruptcy judges) are also violations of simple rules of behavior that people should have learned in kindergarten.

Jim Chen, Truth and Beauty: A Legal Translation, http://www.ssrn.com/abstract=1157093 (July 8, 2008)

This essay addresses questions of truth and beauty, of poetry and fidelity, as applied to legal education and ultimately to law. After discussing how law schools can most faithfully translate their teachings to lawyers' real concerns, I shall ponder how the law itself reconciles its duty to truth with its practitioners' longing for beauty.

J.B. Ruhl, Law's Complexity - A Primer, http://www.ssrn.com/abstract=1153514 (July 2, 2008)

The legal system. It rolls easily off the tongues of lawyers like a single word - the legal system - as if we all know what it means. But what is the legal system? How does it behave? What are its boundaries? What is its input and output? How will it look in one year? In ten years? How should we use it to make change in some other aspect of social life? Why do answers to these questions make the legal system seem so complex? Would assembling a cogent, descriptively accurate theory of what makes the legal system complex help us to formulate more accurate and useful propositions about the legal system? I have to believe it would, and in my pursuit of such an explanation I have leaned heavily on the theory of complex adaptive systems - the study of systems comprised of a macroscopic, heterogeneous set of autonomous agents interacting and adapting in response to one another and to external environment inputs. At its deepest level, complex adaptive systems theory as applied to ...

Alfred L. Brophy, Thomas Ruffin: Of Moral Philosophy and Monuments, http://www.ssrn.com/abstract=1147869 (June 25, 2008)

"Thomas Ruffin: Of Moral Philosophy and Monuments" returns to Justice Thomas Ruffin's opinions, particularly on slavery, to excavate his jurisprudence and to try to assess what Ruffin's legacy means for us today. It begins with an exploration of Ruffin's 1830 opinion in State v. Mann, where he self-consciously separated his feelings from his legal opinion to release a man who abused a slave from criminal liability. Anti-slavery activists frequently wrote about Mann, because of its brutal honesty about the harsh nature of slavery. After discussing Harriet Beecher Stowe's fictional account of Ruffin and Mann in Dred: "A Tale of the Great Dismal Swamp", which further developed the theme of separation of law and morals, the paper turns to some of Ruffin's other opinions. It looks to slavery opinions including Heathcock v. Pennington (which released a renter of a slave from liability for the boy's death in a coal mine) and Green v. Lane (which dealt with a trust to give quasi-freedom to ...

Gregory N. Mandel, REVISION: Another Missed Opportunity: The Supreme Court's Failure to Define Nonobviousness or Combat Hindsight Bias in KSR v. Teleflex, http://www.ssrn.com/abstract=1144199 (June 13, 2008)

This Article analyzes two significant errors of omission in the Supreme Court's recent patent decision, KSR v. Teleflex. First, though KSR represents the Court's eighth decision on nonobviousness since the standard was enacted in 1952, the Court still has never defined what this core patent standard requires. The failure to instruct on the level of ingenuity necessary to satisfy nonobviousness leads to inconsistent and unpredictable nonobvious decisions. Second, despite recognizing the problem of hindsight bias in nonobviousness analysis and the importance of ameliorating this bias to achieve accurate non-obvious decisions, the Supreme Court not only failed to take the hindsight problem seriously in KSR, but actually appeared to misconstrue the problem. As a result, nonobviousness decisions will continue to be systematically biased with respect to the legal inquiry required by section 103. This is a symposium article based on a presentation given at Nonobviousness: The Shape of ...

Jim Chen, Telecommunications Mergers, http://www.ssrn.com/abstract=1143577 (June 12, 2008)

Telecommunications mergers are at once a historical mirror and a harbinger of the legal future. Since the passage of the Telecommunications Act of 1996, no significant telecommunications merger has failed to receive regulatory approval in the United States. The Telecommunications Act of 1996 has accelerated the trend toward consolidation and concentration. Having devoted most of its energy on issues doomed to become technologically and economically obsolete, the Act failed to anticipate the technological conditions (especially the emergence of the Internet) that drove telecommunications carriers to consolidate. Nevertheless, possible avenues for reform remain open should the federal government ever conclude that the anticompetitive potential of telecommunications mergers outweighs their salutary effects.

Jordan K. Paradise, Exploring Emerging Nanobiotechnology Drugs and Medical Devices, http://www.ssrn.com/abstract=1140749 (June 5, 2008)

Nanotechnology expands across research domains, applications and products and remains a field with neither a single scientific definition nor a formal regulatory or statutory definition. However, health and medical applications are burgeoning. This article examines the field of nanomedicine in order to highlight existing products and future applications now in research and development phases. We present existing oversight mechanisms for products in the drug and device realm; specifically examine nanodrugs and nanodevices approved by the FDA; and highlight emerging nanoproducts that may pose a challenge for current regulatory schemes both in the U.S. and internationally.

Chad M. Oldfather, Universal De Novo Review, http://www.ssrn.com/abstract=1139864 (June 3, 2008)

This article takes up the question of why appellate courts always review questions of law pursuant to the de novo standard of review. Put another way, it examines the familiar idea that appellate courts owe no deference to the legal rulings of trial judges. They must instead engage in what I refer to as universal de novo review - a practice pursuant to which appellate courts faced with legal questions always enjoy the authority to engage in plenary review, and never have the responsibility (or even the option) to defer to their trial-level counterparts. Despite - or perhaps because of - its familiarity and prevalence, universal de novo review has gone relatively unexamined by legal scholars. The article looks to fulfill that gap by undertaking a comprehensive analysis of its possible justifications. I also consider the appropriateness of a regime incorporating deference - something of a Chevron doctrine for trial courts - and outline some of the factors that should guide the ...

Jim Chen, Law Among the Ruins, http://www.ssrn.com/abstract=1138910 (May 30, 2008)

Hurricane Katrina broke America's collective heart. No previous natural disaster in the nation's history inflicted a grimmer toll. The legendary city of New Orleans all but sank when its levees failed and the resulting storm surge drowned much of the city and many of its feeblest, most vulnerable residents. Katrina exposed flaws in virtually every aspect of disaster management at every level of American government. The magnitude and senselessness of the loss indicted American society for its callous disregard of social vulnerability. There is no such thing as a natural disaster. Understanding the interplay of environmental events with social conditions holds the key to the optimal application of legal tools for preventing, mitigating, and remedying natural tragedies - the grand social exercise called law among the ruins.

Tom W. Bell, Private Prediction Markets and the Law, http://www.ssrn.com/abstract=1134563 (May 18, 2008)

This paper analyses the legality of private prediction markets under U.S. law, describing both the legal risks they raise and how to manage those risks. As the label "private" suggests, such markets offer trading not to the public but rather only to members of a particular firm. The use of private prediction markets has grown in recent years because they can efficiently collect and quantify information that firms find useful in making management decisions. Along with that considerable benefit, however, comes a particularly worrisome cost: the risk that running a private prediction market might violate U.S. state or federal laws. The ends and means of private prediction markets differ materially from those of futures, securities, or gambling markets. Laws written for those latter three institutions nonetheless threaten to limit or even outlaw private prediction markets, as the paper details. The paper also details, however, how certain legal strategies can protect private ...

Frank A. Pasquale, Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines, http://www.ssrn.com/abstract=1134159 (May 16, 2008)

Unaccountable power at any layer of online life can stifle innovation elsewhere. Dominant search engines rightly worry that carriers will use their control of the physical layer of internet infrastructure to pick winners among content and application providers. Though they advocate net neutrality, they have been much less quick to recognize the threat to openness and fair play their own practices may pose. Just as dominant search engines fear an unfairly tiered online world, they should be required to provide access to their archives and indices in a nondiscriminatory manner. If dominant search engines want carriers to disclose their traffic management tactics, they should submit to regulation that bans stealth marketing and reliably verifies the absence of the practice. Finally, search engines' concern about the applications and content disadvantaged by carrier fast-tracking should lead them to provide annotation remedies to indexed sites whose marks have been unfairly ...

J.B. Ruhl, Agriculture and Ecosystem Services: Strategies for State and Local Governments, http://www.ssrn.com/abstract=1130899 (May 10, 2008)

In recent years, ecologists and economists focusing on agriculture have forged a vision of agricultural lands as housing the natural capital capable of providing a stream of diverse good and services, including ecosystem services such as increased biodiversity, carbon sequestration, pollination, groundwater recharge, and improvement of water quality. This Article explores the emerging theme of farms as multifunctional land uses and suggests ways state and local governments can help ground it through flexible, efficient policy instruments. Although federal farm subsidy programs surely could be repositioned to better promote farm multifunctionality directly, the benefits of multifunctional agricultural production, compared to the conventional commodity production orientation, are primarily local. On this policy front, therefore, I envision federal policy providing support to state and local innovations rather than dominating the field as has been the case historically. Part I ...

Marie T. Reilly, In Good Times and in Debt: The Evolution of Marital Agency and the Meaning of Marriage, http://www.ssrn.com/abstract=1123612 (April 22, 2008)

A married person sometimes acts solely for herself and at other times on behalf of her spouse. If she incurs debt solely for herself, then only she is liable to the creditor. If, however, she incurs debt both for herself and on behalf of her spouse, both are liable - the debtor directly and the spouse indirectly by imputed liability. Before married women's property reform, imputed marital liability followed from marital status. As marriage changed to recognize the legal individuality of both spouses, so too did the scope of a spouse's imputed liability for the debts of the other spouse. Today, the scope of a spouse's imputed liability for the debts of an insolvent spouse defines an important and largely unexamined aspect of what it means to be married. Despite change in the terms of marriage between the parties, courts continue to view imputed marital liability with sensitivity to the historical privilege of marital investment and the unique social value of trust and dependency ...

Alfred L. Brophy, Considering William and Mary's History with Slavery: The Case of President Thomas Roderick Dew, http://www.ssrn.com/abstract=1122457 (April 21, 2008)

Amidst the recent apologies for slavery from the legislatures of Virginia, Maryland, North Carolina, Florida, and Alabama, there is significant controversy over the wisdom of investigations of institution's connections to slavery and apologies for those connections. The divide over attitudes towards apologies falls along racial lines. This paper briefly looks to the controversy on both sides of the apology debates. Among those questions about investigations of the past, Universities occupy a special place. Efforts at recovery of their connections to slavery include a study released by graduate students at Yale in 2001, Brown University's Steering Committee on Slavery and Justice, and the University of Virginia's board of visitors' spring 2007 apology for that institution's connections to slavery. That leads to a question about whether other schools ought to consider a self-investigation. William and Mary is a particularly good place to ask such questions. This paper ...

Alfred L. Brophy, Reparations Pro and Con, http://www.ssrn.com/abstract=1118466 (April 14, 2008)

Long before the phrase 40 acres and a mule was coined to describe what black Americans were owed for slavery, abolitionists discussed compensating slaves for what had been unjustly taken from them. Today, the debate over reparations for slavery and Jim Crow - whether African-Americans should be compensated for decades of racial subjugation - stands as the most racially divisive issue in American politics. Discussion of reparations leads often to more animosity than serious consideration of the issue, with reparations advocates and skeptics taking extreme positions, rather than reaching for common ground. In a concise compass, Reparations Pro and Con considers the debate over reparations from the 1700s to the present, examining the arguments on both sides of the current debate. Brophy tells the story of the black reparations movement from Thaddeus Stevens, through the dark days of Jim Crow and then the Harlem Renaissance, to critical race theory, and relates it to other movements ...

Frank A. Pasquale, Reclaiming Egalitarianism in the Political Theory of Campaign Finance Reform, http://www.ssrn.com/abstract=1111566 (March 20, 2008)

Recent advocacy for campaign finance reform has been based on an ideal of the democratic process which is unrealistic and unhelpful. Scholars should instead return to its egalitarian roots. This article examines how deliberative democratic theory became the main justification for campaign finance reform. It exposes the shortcomings of this deliberativist detour and instead models campaign spending as an effort to commodify issue-salience. Given this dominant function of money in politics, a more effective paradigm for reform is equalizing influence. Advocates of campaign regulation should return to the original principles of reformers; not an idealized vision of the democratic process, but pragmatic concerns about moneyed interests acquiring too much influence over the nation's politics.

Jordan K. Paradise, Developing Oversight Frameworks for Nanobiotechnology, http://www.ssrn.com/abstract=1103114 (March 9, 2008)

Oversight systems specific to nanotechnology have not yet been created; stakeholders, government, industry, academia, and the public are debating whether and how to craft such systems and address emerging safety, social, and ethical issues. The United States has no coordinated policy for oversight of the products and applications of nanotechnology and uncertainty prevails over how existing general regulatory regimes and industry standards apply to emerging nanotechnologies. Empirical assessment of health and environmental risks is still in process. At the same time, public understanding of nanotechnology is rudimentary and public concern exists. This article focuses on nanobiotechnology, which most directly raises questions of how oversight can address safety and efficacy, outlines the current debate on oversight in the United States, suggests why deliberate development of oversight strategies is important, and recommends how to develop them.

Jordan K. Paradise, Tales from the Crypt: Scientific, Ethical, and Legal Considerations for Biohistorical Analysis of Deceased Historical Figures, http://www.ssrn.com/abstract=1010656 (January 10, 2008)

Biohistorical analysis involves using historic specimens of human remains or human material extracted or derived from historical artifacts to gather evidence about specimens that are identifiable or at least attributed to a historic figure at the time of the research. Biohistorical studies are being undertaken for myriad reasons, such as identification and authentication of remains, investigation into alleged criminal behavior, investigation into medical or psychological conditions, and even for purposes of commercialization. This article analyzes federal statutes, case law, and codes and guidelines from twenty-six professional organizations and societies informative to the field of biohistory. We surveyed the field, identified deficiencies in oversight and guidance, investigated prior biohistorical studies, and concluded that greater consideration of a variety of scientific, ethical and legal issues is needed. The article uses legal and ethical precedents to propose ways to avert ...

Paul L. Caron, The Civil Jury: The Disregarded Constitutional Actor, http://www.ssrn.com/abstract=1029376 (November 12, 2007)

This lecture “The Civil Jury: The Disregarded Constitutional Actor” argues that the significant division of power between the judiciary and the jury should be recognized alongside the separation of powers between the branches and the federalism division between the federal government and the states. While the jury is a separate constitutional actor with important powers, the judiciary and the legislature have not recognized it as such. This has led to the constitutionalization of modern procedures which take away the jury trial right before, during and after trial, including through remittitur, summary judgment, the motion to dismiss and federal caps. This jurisprudence on the civil jury exhibits an odd alignment under which so-called liberal justices may hold a jury trial right does not exist, whereas other so-called conservative justices may hold such a right exists. This appears to result from the tendency of liberal justices to shun originalism, even in the context of the Seventh ...

Ronen Perry, Legal Citation Rules: Reflections on the Formation of Discourse Norms, http://www.ssrn.com/abstract=1025530 (November 1, 2007)

In the spring of 2006, an 80 pages booklet, sponsored by four Israeli law reviews, and titled Uniform Citation Rules in Legal Writing, was published in Israel. Given its cover color and notable similarity to the American Bluebook, we called it The Purplebook. The Haifa Law Review had to decide whether to substitute the new rules for its traditional citation method. The Editors' reflections on this seemingly technical matter generated interesting queries about the need for uniform citation rules, the process of their formulation, endorsement and modification, their substance and their form. The unprecedented opportunity to seriously deliberate on the various aspects of legal citation has yielded this essay. To begin with, the essay examines the need for uniformity in citation, and discusses the advantages and shortcomings of such uniformity on different levels of abstraction. Considerations pertaining to aesthetics, efficiency, and preservation of unique-identities (pluralism) go ...

Ronen Perry, REVISION: Re-torts, http://www.ssrn.com/abstract=1021547 (October 17, 2007)

Tom Broadbent, George Bernard Shaw's memorable hero in John Bull's Other Island, forcefully avers in Act IV that “there are only two qualities in the world: efficiency and inefficiency, and only two sorts of people: the efficient and the inefficient.” Broadbent is an Englishman, but his commitment to the gospel of efficiency has made him representative of modern America in the eyes of many commentators. Peter Keegan, Broadbent's ideological adversary, mocks his simple-mindedness, and concludes his ironic reproach with an inspiring prediction: “For four wicked centuries the world has dreamed this foolish dream of efficiency; and the end is not yet. But the end will come.” Will it? Broadbent's scorned vision seems to underlie the proposed definition of negligent-conduct in the draft Restatement (Third) of Torts. Section 3 embraces the renowned “Hand formula,” which defines negligence in economic, cost-benefit, terms. This Article endeavors to disprove the drafters' alleged ...

Gil Grantmore, Mark My Words, http://www.ssrn.com/abstract=933014 (September 27, 2006)

The Harvard Law Review is the Word of Law. America's premier student-edited law review derives much of its reputation from its premier student-written features. Written in a coporate yet incorporeal voice, Harvard's Supreme Court and Development notes have epitomized the fiction that student-written legal commentary should be regarded as a collective product. Throughout it all the Review has never forgotten its humble origins as the brainchild of a small group of Harvard students. Till now. The Harvard Law Review's 1999 Developments note, dedicated to "The Law of Cyberspace," 112 Harv. L. Rev. 1574, trashed a half-century of tradition by breaking into the first-person singular. Behold the new covenant, cast in the hallowed pages of the Harvard Law Review: "Le droit, c'est moi."

Gil Grantmore, The Headnote, http://www.ssrn.com/abstract=933013 (September 27, 2006)

Every Supreme Court opinion is prefaced by a curiously self-contradictory citation. The Syllabus is accompanied by a footnote warning of the Syllabus's unofficial status. By the same token, of course, the footnote itself is unofficial and has no legal standing. This essay reexamines the status of the Syllabus, and argues that it should have precedential authority.

Gil Grantmore, The Death of Contra, http://www.ssrn.com/abstract=933007 (September 27, 2006)

Lemon isn't dead, but contra is. Once upon a time, truth was truth, and we had a way to signal what wasn't. Until 1996, the Bluebook directed lawyers to use contra when cited authority directly states the contrary of the proposition. The 16th edition of the Bluebook removed contra from the list of valid introductory signals. The death of contra is the latest, surest sign of decadence and decline in American legal culture. It symbolizes the subtle subversion of law and legal scholarship. Where once clarity ruled, negation now lacks legal voice. Poor contra! A legal culture that neither knows contra and nor respects its power is one in which the Supreme Court can spurn a condemned man's habeas petition because the Court had used cf. instead of see in another man's case. Lambrix v. Singletary, 520 U.S. 518 (1997). O contra, now sent to Heaven, cursed by your fate. Accord, remain; you will be used, in courts as in the law reviews. Give us a way to signal lies, and ...

Gil Grantmore, REVISION: Lex and the City, http://www.ssrn.com/abstract=928108 (September 4, 2006)

Even in the legal arena, fashion is a topic of utmost importance. Fashion can overturn criminal convictions. Fashion has also had communicative aspects from time immemorial. This article therefore examines the impact of fashion, as a means of self-expression, on law. It reaches the conclusion that every junior high girl knows: how you dress expresses who you are. In other words, Fashion is Speech. Because appearance is inherently communicative, cases involving the regulation of dress and appearance should be decided under strict scrutiny. Government must advance a compelling justification for such regulation. It is especially important to maintain this strict standard when the speech in question occurs in school.

Gil Grantmore, REVISION: True Blue, http://www.ssrn.com/abstract=928113 (September 4, 2006)

Constitutional Commentary has decided to abandon The Chicago Manual of Legal Citation in favor of The Bluebook: A Uniform System of Citation. This decision should not be construed as a wholesale endorsement of the Bluebook. Constitutional Commentary feels no obligation to defer to the law reviews at Harvard, Yale, Columbia, and Penn on any subject, least of all on questions of legal citation. Constitutional Commentary has identified specific Bluebook rules that it will ignore, modify, or clarify. All rules of legal citation, including those outlined here, may be suspended when common sense so dictates. Where Bluebook rules have proved undesirable, unworkable, or ugly in the experience of Constitutional Commentary's editors, they will be broken without hesitation or regret. In the spirit of norm entrepreneurship, Constitutional Commentary invites other journals to adopt any of its rules. Acknowledgement is appreciated but not necessary.

Michael S. Mireles, REVISION: The United States Patent Reform Quagmire: A Balanced Proposal, http://www.ssrn.com/abstract=925490 (August 21, 2006)

This paper reviews Innovation and Its Discontents: How Our Patent System Is Endangering Innovation and Progress, and What To Do About It. The debate concerning patent reform has produced proposals from law professors, economists, the Federal Trade Commission, the United States Patent and Trademark Office and the National Academy of Sciences. In Innovation and Its Discontents, economists Adam Jaffe and Josh Lerner rely upon over two decades of research concerning innovation policy to paint a picture of the problem raised by the current United States patent system and offer balanced proposals for reform. Their ambitious analysis of the problem as well as their proposals for reform are thoughtful and clear. While some may disagree at the margins with the characterization of the problem as well as the proposals for reform, the work advances understanding the issue of United States patent reform.

Shay David, Six Degrees of Reputation: The Use and Abuse of Online Review and Recommendation Systems, http://www.ssrn.com/abstract=892333 (March 28, 2006)

This paper reports initial findings from a study that used quantitative and qualitative research methods and custom-built software to investigate online economies of reputation and user practices in online product reviews at several leading ecommerce sites (primarily Amazon.com). We explore several cases in which book and CD reviews were copied in part or in whole from one item to another and show that hundreds of product reviews on Amazon.com might be copies of one another. We further explain the strategies involved in these suspect product reviews, and the ways in which the collapse of the barriers between authors and readers affect the ways in which these information goods are being produced, and exchanged. We report on techniques that are employed by authors, artists, editors, and readers to ensure they promote their agendas while they build their identities as experts. We suggest a framework for discussing the changes of the categories of authorship, creativity, expertise, and ...

Shay David, Six Degrees of Reputation: The Use and Abuse of Online Review and Recommendation Systems, http://www.ssrn.com/abstract=857505 (December 1, 2005)

This paper reports initial findings from a study that used quantitative and qualitative research methods and custom-built software to investigate online economies of reputation and user practices in online product reviews at several leading ecommerce sites (primarily Amazon.com). We explore several cases in which book and CD reviews were copied in part or in whole from one item to another and show that hundreds of product reviews on Amazon.com might be copies of one another. We further explain the strategies involved in these suspect product reviews, and the ways in which the collapse of the barriers between authors and readers affect the ways in which these information goods are being produced, and exchanged. We report on techniques that are employed by authors, artists, editors, and readers to ensure they promote their agendas while they build their identities as experts. We suggest a framework for discussing the changes of the categories of authorship, creativity, expertise, and ...

Shay David, A License to Kill (Innovation)? Open Source Licenses and Their Implications for Innovation, http://www.ssrn.com/abstract=858104 (November 29, 2005)

This paper examines the implications of Open Source License (OSL) selection on software innovation, and suggests how modifying the Open Source Definition, or modifying certain provisions in OSLs that have become de-facto standard licenses in open source development, could better accommodate the competing needs and diverse motivations of different would-be software innovators. We make an important distinction between initial developers those developers who decide what license will apply to the code they write, and later developers - those developers who subsequently wish to use code that was previously released under a certain OSL (and are therefore affected by license terms selected by initial developers). This distinction facilitates the analysis of the effect OSL provisions have on the development of new independent code and, importantly, their effect on any subsequent use of code released under an OSL. The changes we propose could considerably increase the likelihood that a wider ...

Shay David, Opening the Sources of Accountability, http://www.ssrn.com/abstract=858084 (November 29, 2005)

This paper scrutinizes the concept of accountability in light of free and open source software. On the view that increasing accountability grants value to society by motivating those most likely and able to prevent risk and harm to do so, I argue that developing software collaboratively, licensing it openly, and distributing its source code freely are promising first steps in the long journey to rehabilitate accountability in our highly computerized society, and that at the same time these practices change our very understanding of what accountability is. The paper analyzes the concept of accountability in an open environment and explores the implications in two mission-critical application fields in which software plays a significant role: electronic voting, and electronic medical records. It further considers the potential remedies to accountability's erosion that free and open source software offer, and the ways in which accountability can be generalized to collective action if we ...