Jim Chen's SSRN abstracts

Creamskimming and Competition, http://www.ssrn.com/abstract=1395554 (April 26, 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 ...

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!

From Red Lion to Red List: The Dominance and Decline of the Broadcast Medium, http://www.ssrn.com/abstract=1219382 (August 11, 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 ...

Truth and Beauty: A Legal Translation, http://www.ssrn.com/abstract=1157093 (July 7, 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.

Telecommunications Mergers, http://www.ssrn.com/abstract=1143577 (June 11, 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.

Law Among the Ruins, http://www.ssrn.com/abstract=1138910 (May 29, 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.