Jim Chen's SSRN abstracts

New: Intellectual Property and Public Health – A White Paper, http://www.ssrn.com/abstract=2259089 (May 2, 2013)

On October 26, 2012, the University of Akron School of Law's Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutio

New: Force Majeure in Legal Scholarship, http://www.ssrn.com/abstract=2255155 (April 23, 2013)

Who's to blame when legal scholarship is bad? Not pedestrian, repetitive, uninspired, or poorly conceived-just bad. If those crazy Minnesotans at Constitutional Commentary are to be believed, the fault lies with us scholars, that we are overweening. The "manifestly reasonable strategy" of "taking... shocking position[s]" in the quest for tenure generates "Gresham's Law of Legal Scholarship." Warped as it is by rampant "Ph.D. envy," the market for legal scholarship values ''paradigmshak[ing]'" hy

New: Portraits of the Scholar as a Young Clerk, http://www.ssrn.com/abstract=2255153 (April 23, 2013)

Bob Hudec was an invaluable colleague, a kind man, and a generous friend. The experience of irrevocably losing a colleague is a new and unpleasant one for many of us at the University of Minnesota Law School. In my eleven years here, many faculty members have retired or moved to other law schools, but only Bob Hudec has passed away. When a colleague dies, especially one as treasured as Bob Hudec, there simply is no way to fill the resulting void.

New: Hope a Better Rate for Me, http://www.ssrn.com/abstract=2255140 (April 23, 2013)

Ratemaking, the dreariest legal expression of the dismal science, is sexy again. Once upon a time, judicially enforced constitutional restraints on the setting of public utility rates strengthened the intellectual backbone of the Lochner era. Contemporary interest in this doctrine stems from the imposition of "the duty to interconnect, to lease unbundled network elements, and to sell services for resale" on incumbent firms in the few remaining "market segments that have natural monopoly characte

New: Law as Industrial Policy: Economic Analysis of Law in a New Key, http://www.ssrn.com/abstract=2255150 (April 23, 2013)

If justice be the end of law, ask on. How we pose normative legal questions "limits and disposes the way in which any answer -right or wrong-may be given." Economic analysis of law has firmly established itself as a controversial but respected neorealist approach to legal criticism. Ever since the 1960 publication of Ronald Coase's pathblazing article, The Problem of Social Cost, conventional law-and-economics literature has evaluated legal rules according to a microeconomic criterion called "ef

New: Rational Basis Revue, http://www.ssrn.com/abstract=2255136 (April 23, 2013)

Constitutional Commentary is no stranger to legal analysis of music or to musings on legal analysis. "Seven years [have] disappear[ed] below [our] feet" since this journal last exercised its quasiconstitutional right to make bad parodies of copyrighted music. Those same seven years have lapsed since the Supreme Court lauded Creedence Clearwater Revival as "one of the greatest American rock and roll bands of all time." "Who'll stop the rain?" Ah, those seven years were an innocent time, when we

New: Brilliance Remembered, http://www.ssrn.com/abstract=2255133 (April 23, 2013)

Twenty years ago Daniel Farber cofounded Constitutional Commentary. Dan's essay on McCulloch v. Maryland, "Banking on National Power," concludes the twentieth volume of this journal. Among his many achievements in twenty-two years on the faculty of the University of Minnesota Law School, Dan helped secure Constitutional Commentary's place as one of America's preeminent law journals. As of 2004, Dan will be teaching full-time at the University of California at Berkeley. Once again, glitzy Califo

New: Book Review: Regulatory Education and its Reform, http://www.ssrn.com/abstract=2255128 (April 23, 2013)

Regulation and Deregulation: Cases and Materials, Jeffrey L. Harrison, Thomas D. Morgan & Paul R. Verkuil. St. Paul, Minn.: West Publishing Co., 1997. Pp. 567. $48.00. Ours is unquestionably an Age of Statutes. Yet the comprehensive study of statutes, the legal lifeblood of the regulatory state, is a relatively recent phenomenon. Law school courses in legislation have begun to bridge this gap. The substantive law underlying the most economically sophisticated statutes, however, continues to elu

New: Epiphytic Economics and the Politics of Place, http://www.ssrn.com/abstract=2255126 (April 23, 2013)

A specter is haunting academia, the specter of globalization. In Globalization and Its Losers, an essay published in the winter 2000 issue of the Minnesota Journal of Global Trade, I described legal and economic integration across borders as an epochal moment for a broad array of ecological, cultural, and economic interests. The summer 2000 issue of this journal published replies by two historians, an agricultural ethicist, and an advocate of regional self-reliance. At their mildest, my critics

New: Globalization and Its Losers, http://www.ssrn.com/abstract=2255123 (April 23, 2013)

Globalization marks the end of an epoch. Not merely an epoch in the colloquial sense, but an epoch in the geological sense. The spread of Homo sapiens around the earth has brought about mass extinctions and related ecological changes on a scale not seen since the Cretaceous period. In its evolutionary impact, comprehensive human colonization of the planet easily outclasses an ice age, or even twenty. The previous geological event of comparable magnitude ushered out the dinosaurs; the one befor

New: Preemption and Regulatory Efficiency in Federal Energy Statutes, http://www.ssrn.com/abstract=2255142 (April 23, 2013)

As local utility regulation enacted early this century proved inadequate to deal with complex concerns, Congress passed statutes formulating a national energy policy. Under the resulting programs of concurrent state and federal regulation, competing authorities sometimes clashed. In the context of federal statutes, the supremacy clause governs competing state and federal claims to authority. Under traditional doctrine, a federal statute may preempt state law in one of three ways. First, a stat

New: A Sober Second Look at Appellations of Origin: How the United States Will Crash France's Wine and Ch, http://www.ssrn.com/abstract=2255120 (April 23, 2013)

France regulates the production methods of certain fine foods and beverages through appellations of controlled origin, or appellations d'origine controlee (AOCS). The AOC system restricts the right to produce select wines and cheeses to a designated geographic region associated with those foods. Sparkling wine from Champagne and Roquefort cheese are but two celebrated examples. French law ensures localized control of AOCregulated products by requiring them to be processed in the same region wher

New: The Magnificent Seven: American Telephony's Deregulatory Shootout, http://www.ssrn.com/abstract=2255078 (April 23, 2013)

The Telecommunications Act of 1996 promised the world. It has would "promote competition and reduce regulation," "secure lower prices and bigher quality services... and encourage the rapid deployment of new telecommunications technologies." On its first occasion to review the Act's provisions on local and long-distance telephony, the Supreme Court spoke in far less glamorous terms. "[M]ost unfortunate," lamented the Justices, "for a piece of legislation that profoundly affects a crucial segment

New: The Mystery and the Mastery of the Judicial Power, http://www.ssrn.com/abstract=2255113 (April 23, 2013)

What do law clerks do at the Supreme Court? One day this question took me entirely by surprise. Not because of its substance: I have repeatedly answered this question ever since Justice Clarence Thomas invited me to serve as his clerk for October Term 1992. As with so much else in law, context had triumphed over content. While teaching my first-year legislation class at the University of Minnesota, I asked a student to resolve the apparent tension between Justice Antonin Scalia's willingness to

New: The Legal Process and Political Economy of Telecommunications Reform, http://www.ssrn.com/abstract=2255106 (April 23, 2013)

American telecommunications law as regulatory phoenix appears to smolder in repeating cycles of reform, only to rise again from its ashes. From the heyday of public utility law's regulatory compact, through "mid-life" phases oj crisis and reform, to the mix of triumph and letdown that is the Telecommunications Act of 1996, telecommunications law has passed through four distinct "ages." In each age, a dominant institution arose to address the perceived economic concerns of the day, only to run he

New: 'Duel' Diligence: Second Thoughts About the Supremes as Sultans of Swing, http://www.ssrn.com/abstract=2255104 (April 23, 2013)

We respond to Professor Lynn A. Baker's criticisms of our article, The Most Dangerous Justice: The Supreme Court at the Bar of Mathematics. Professor Baker fundamentally misunderstands our measure of Supreme Court voting power. Moreover, she erroneously presumes that the "median Justice" wields the bulk of the Court's power. Even if there were a median Justice, it is far from clear whether he would be the Most Dangerous Justice. We conclude with a clarification of the median voter theorem and it

New: The Second Coming of Smyth v. Ames, http://www.ssrn.com/abstract=2255074 (April 23, 2013)

The last time a book on regulatory policy caused this great a stir, "Bork" was a proper noun rather than an impertinent verb. Deregulatory Takings and the Regulatory Contract: The Competitive transformation of Network Industries in the United States, is almost surely the most controversial book of its kind in two decades. For the last three years, Gregory Sidak and Daniel F. Spulber have comprehensively reconceptualized public utility law as a branch of Takings Clause jurisprudence. Their aggre

New: The Pragmatic Ecologist: Environmental Protection as a Jurisdynamic Experience, http://www.ssrn.com/abstract=2255070 (April 22, 2013)

Among his many contributions to the field of environmental law, Professor Dan Farber is perhaps best known for his development of a systematically "pragmatic approach to environmental problems." Within the tool kit that Professor Farber has used to breach the "wall between economics and ethics," one technique merits especially close examination. Professor Farber has often stressed the centrality of "learning strategies" in an environmental enterprise marked not only by a "high degree of uncert

New: Portfolio Theory as a Pattern of Timeless Moments, http://www.ssrn.com/abstract=2254244 (April 21, 2013)

Quantitative finance traces its roots to modern portfolio theory. Despite the deficiencies of modern portfolio theory, mean-variance optimization nevertheless continues to form the basis for contemporary finance. The term "postmodern portfolio theory" expresses many of the theoretical advances in financial learning since the original articulation of modern portfolio theory. Any complete overview of financial risk management must address all aspects of portfolio theory, from the beautiful symme

New: Measuring Market Risk Under Basel II, 2.5, and III: VAR, Stressed VAR, and Expected Shortfall, http://www.ssrn.com/abstract=2252463 (April 17, 2013)

Each of the most recent accords of the Basel Committee on Banking Regulation, known as Basel II, 2.5, and II, has embraced a different primary measure of market risk in global banking regulation: traditional value-at-risk (VaR), stressed VaR, and expected shortfall. After introducing the mathematics of VaR and expected shortfall, this note will evaluate how well the reforms embraced by Basel 2.5 and III - stressed VaR and expected shortfall - have addressed longstanding regulatory concerns with

REVISION: Postmodern Disaster Theory, http://www.ssrn.com/abstract=2141591 (April 8, 2013)

Legal preparedness for disaster consists of implementing the optimal portfolio of rules for managing catastrophic risks. This article extends the simpler model of modern disaster theory, <a href="http://ssrn.com/abstract=1910669">http://ssrn.com/abstract=1910669</a>, into a more ambitious model of postmodern disaster theory. A complete account of disaster law and policy based on an extended analogy to quantitative finance must address all aspects of that discipline, from the beautiful symmetri

New: Measuring the Downside Risk of Law School Attendance, http://www.ssrn.com/abstract=2214337 (February 11, 2013)

Legal education has come under severe political pressure, both external and internal, for its perceived failure to deliver tangible economic benefits to law students. But legal education is not alone. The financial crisis of 2008 and the economic recession triggered by it have forced many other industries, to reevaluate their balance of costs and benefits. Many institutions, even entire industries, must now endure stress-testing in the form of debt-to-income or debt-to-capital ratios. This d

Update: Inflation-Based Adjustments in Federal Civil Monetary Penalties, http://www.ssrn.com/abstract=2148650 (December 12, 2012)

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 age
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Update: Scholarships at Risk: The Mathematics of Merit Stipulations in Law School Financial Aid, http://www.ssrn.com/abstract=2133018 (October 26, 2012)

Many law schools in the United States condition financial aid grants on the recipients' maintenance of a certain grade point average. These merit stipulations require students to meet or exceed minimum academic standards in order to keep all or part of their financial aid. Law students should take merit stipulations into account when they decide whether to accept an offer of admission paired with a conditional grant of financial aid. By all accounts, they do not. Law schools should transparent
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New: Bioprospect Theory, http://www.ssrn.com/abstract=2164848 (October 21, 2012)

Conventional wisdom treats biodiversity and biotechnology as rivalrous values. The global south is home to most of earth's vanishing species, while the global north holds the capital and technology needed to develop this natural wealth. The south argues that intellectual property laws enable the industrialized north to commit biopiracy. By contrast, the United States has characterized calls for profit-sharing as a threat to the global life sciences industry. Both sides magnify the dispute,

REVISION: Standing in the Shadows of Giants: The Role of Intergenerational Equity in Telecommunications Reform, http://www.ssrn.com/abstract=2134524 (August 24, 2012)

This article addresses the role of intergenerational equity in telecommunications reform. It examines two specific controversies through the lens of intergenerational justice. Stranded cost recovery and expanded universal service support should be analyzed as explicit wealth transfers across generational lines. These policies reflect deep disagreement over how telecommunications law can best reconcile claims by competing generations. Stranded cost recovery proceeds from the assumption that futur

REVISION: Merger to Monopsony: AT&T, T-Mobile, and the Clayton Act, http://www.ssrn.com/abstract=2130962 (August 24, 2012)

In a pivotal antitrust decision, Cellular South, Inc. v. AT&T Inc., 821 F. Supp. 2d 308 (D.D.C. 2011), the United States District Court for the District of Columbia allowed Sprint and Cellular South to pursue their suits to enjoin AT&T's proposed acquisition of T-Mobile. These suits posed a significant barrier to the merger of AT&T and T-Mobile. The ability of Sprint and Cellular South to pursue their claims represents a modest but important victory against the domination of the American wireles

REVISION: The Echoes of Forgotten Footfalls: Telecommunications Mergers at the Dawn of the Digital Millennium, http://www.ssrn.com/abstract=896303 (August 24, 2012)

The Telecommunications Act of 1996 promised to promote competition and reduce regulation, secure lower prices and higher quality services . . . and encourage the rapid deployment of new telecommunications technologies. One decade later, the Act has drawn sharp criticism for having prompted a wave of mergers among incumbent carriers without having generated a corresponding increase in consumer welfare. For instance, the very sort of merger that was once considered unthinkable - a reunification o

REVISION: Food and Superfood: Organic Labeling and the Triumph of Gay Science Over Dismal and Natural Science , http://www.ssrn.com/abstract=2033958 (June 26, 2012)

The nearly silent and seamless convergence of American and European standards for organic labeling represents a pivotal moment in contemporary agricultural policy. Effective June 1, 2012, the United States and the European Union have each agreed to treat the other jurisdiction's system of organic certification as equivalent to its own. Because organic labeling under the Organic Foods Production Act serves as the practical (if legally imperfect) vehicle by which American farmers and agribusine

REVISION: Progressive Taxation: An Aesthetic and Moral Defense, http://www.ssrn.com/abstract=1980731 (May 24, 2012)

The power to tax is at once the power to create and the power to destroy. If the United States government hopes to discharge its primary duty as creator and protector of its citizens' wealth, it must be willing to destroy wealth, from time to time, by redistributing it. More than any other tool, the means by which government finances and depletes its treasury affects the societal distribution of wealth. Differential taxation and targeted spending are the most significant and most effective means

REVISION: Poetic Justice, http://www.ssrn.com/abstract=778884 (May 5, 2012)

All deliberate speed, the remedial formula adopted in Brown v. Board of Education, 349 U.S. 294 (1955), has a singularly interesting literary lineage. Contrary to Justices Holmes and Frankfurter's assumption, all deliberate speed is not a phrase from the traditional language of the English Chancery, but rather a variant on a line from an 1893 poem by Francis Thompson, The Hound of Heaven. How Thompson's line, "Deliberate speed, majestic instancy," came to dominate one of the defining moments in

REVISION: Truth and Beauty: A Legal Translation, http://www.ssrn.com/abstract=1157093 (May 4, 2012)

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.

New: Appointments with Disaster: The Unconstitutionality of Binational Arbitral Review Under the United S, http://www.ssrn.com/abstract=2050646 (May 3, 2012)

The United States-Canada Free Trade Agreement (FTA) of 1989 guaranteed free trade between the United States and its largest trading partner. One aspect of the treaty provoked intense constitutional scrutiny in the United States. The FTA requires binding binational arbitral review of antidumping and countervailing duty orders issued by administrative agencies of each nation. This article argues that the FTA violates Article III and the Appointments Clause of