This page summarizes the most recent SSRN abstracts posted by the authors of the Jurisdynamics Network. The Network's authors are serious, productive scholars as well as stimulating bloggers, and we hope you will read and download these papers. This page has its own RSS feed, which you are invited to download by clicking here:. To receive updates as these authors post new scholarship, please use the following form:
%SOURCENAMEESCAPED%, REVISION: Rethinking Education Theft Through the Lens of Intellectual Property and Human Rights, https://www.ssrn.com/abstract=4318316 (June 28, 2023)
Written for the Property and Education Symposium, this essay problematizes the increased propertization and commodification of education and calls for a rethink of the emergent concept of "education theft" through the lens of intellectual property and human rights. This concept refers to the phenomenon where parents, or legal guardians, enroll children in schools outside their school districts by intentionally violating the residency requirements.
This essay begins by revisiting the debate on intellectual property rights as property rights. It discusses the ill fit between intellectual property law and the traditional property model as well as the impediments this law has posed to public access to education. The essay then outlines select reforms advanced by courts, policymakers, and commentators both inside and outside the property regime to improve such access.
This essay then turns to the debate on property and education in the human rights context. The human rights ...%SOURCENAMEESCAPED%, REVISION: Turning Point: Green Industrial Policy and the Future of U.S. Climate Action, https://www.ssrn.com/abstract=4482489 (June 26, 2023)
In the first two years of the Biden Presidency, Congress passed three massive funding bills, which poured hundreds of billions of dollars into clean energy infrastructure, R&D, and deployment. Although the direct effect of these laws will be dramatic, this article focuses on positive feedbacks that will amplify those direct effects. Those feedbacks operate via impacts on innovation, regulation, and politics, all of which lead to expanded use of clean energy at the expense of fossil fuels. In turn, these impacts expand the production and use of clean energy, closing the feedback loops. Taking full advantage of these dynamics will require a more coordinated government effort, and the article discusses a coordination method pioneered by some states.%SOURCENAMEESCAPED%, REVISION: Regional Comprehensive Economic Partnership, https://www.ssrn.com/abstract=4242367 (June 26, 2023)
In November 2020, the Association of Southeast Asian Nations (ASEAN) and its five neighbors (Australia, China, Japan, New Zealand and South Korea) signed the Regional Comprehensive Economic Partnership (RCEP) Agreement. The Agreement entered into force on January 1, 2022. Chapter 11, which is devoted to intellectual property, contains 14 sections: (A) general provisions and basic principles; (B) copyright and related rights; (C) trademarks; (D) geographical indications; (E) patents; (F) industrial designs; (G) genetic resources, traditional knowledge and folklore; (H) unfair competition; (I) country names; (J) enforcement of intellectual property rights; (K) cooperation and consultation; (L) transparency; (M) transition periods and technical assistance; and (N) procedural matters. This short essay provides an overview of the intellectual property provisions in the RCEP Agreement.%SOURCENAMEESCAPED%, REVISION: China, the TRIPS Waiver and the Global Pandemic Response, https://www.ssrn.com/abstract=3975151 (June 26, 2023)
Since the beginning of the COVID-19 pandemic, China has played important roles in the global pandemic response, which ranged from vaccine donation and distribution, to transfer of health and medical technology, to support for international intellectual property reforms. To provide a deeper understanding of these myriad roles, this chapter closely examines China's position in the debate on the COVID-19 TRIPS waiver at the WTO. It begins by discussing how the country's changing pharmaceutical landscape and growing ambition to become an intellectual property power have paved the way for its middle-of-the-road position. The chapter then identifies two additional factors contributing to this position: complex international politics and choices for pandemic diplomacy.
This chapter further explores China's more assertive position toward the end of the waiver debate—specifically during the deliberations on the proposal that provided the basis of the Ministerial Decision on the TRIPS ...%SOURCENAMEESCAPED%, REVISION: The Changing Chemistry Between Intellectual Property and Investment Law, https://www.ssrn.com/abstract=4400784 (June 26, 2023)
Written as part of the festschrift in honor of Professor Rochelle Dreyfuss, this tribute focuses on developments emerging from the use of investor-state dispute settlement in the intellectual property area. It explores the changing chemistry between intellectual property and investment law. Specifically, the chapter discusses future developments in four areas: (1) international trade and investment agreements; (2) investor-state disputes involving intellectual property claims; (3) new developments in intellectual property law; and (4) external considerations outside the intellectual property and investment domains.%SOURCENAMEESCAPED%, REVISION: Turning Point: Green Industrial Policy and the Future of U.S. Climate, https://www.ssrn.com/abstract=4482489 (June 24, 2023)
In the first two years of the Biden Presidency, Congress passed three massive funding bills, which poured hundreds of billions of dollars into clean energy infrastructure, R&D, and deployment. Although the direct effect of these laws will be dramatic, this article focuses on positive feedbacks that will amplify those direct effects. Those feedbacks operate via impacts on innovation, regulation, and politics, all of which lead to expanded use of clean energy at the expense of fossil fuels. In turn, these impacts expand the production and use of clean energy, closing the feedback loops. Taking full advantage of these dynamics will require a more coordinated government effort, and the article discusses a coordination method pioneered by some states.%SOURCENAMEESCAPED%, REVISION: Two Decades of TRIPS in China, https://www.ssrn.com/abstract=3965395 (June 24, 2023)
When China became the 143rd member of the World Trade Organization on December 11, 2001, the country had been heavily criticized for more than a decade for providing inadequate protection and enforcement of intellectual property rights. Fast forward twenty years. China has now become the world's leader in terms of international applications under the Patent Cooperation Treaty. The country also ranked 12th in the 2021 Global Innovation Index. Notwithstanding these rather impressive developments, China remains heavily criticized for its lack of intellectual property protection and enforcement and frequently also for its non-compliance with the TRIPS Agreement.
Written in commemoration of the 20th anniversary of China's accession to the international trading body, this chapter reviews the intellectual property developments in China since the country joined the WTO. It begins by highlighting TRIPS-related developments in the first decade of China's WTO membership. It then ...%SOURCENAMEESCAPED%, REVISION: The COVID-19 TRIPS Waiver and the WTO Ministerial Decision, https://www.ssrn.com/abstract=4150090 (June 24, 2023)
Since the World Health Organization declared COVID-19 a global pandemic in March 2020, countries have experienced wide devastation and disruption. To provide an expedited response and to maximize the policy space in the health arena, India and South Africa submitted an unprecedented proposal to the World Trade Organization in October 2020. This proposal called for the partial suspension of the TRIPS Agreement to facilitate the "prevention, containment or treatment of COVID-19."
Although this proposal quickly garnered considerable support from other WTO members, civil society organizations and individual experts, it faced strong opposition from some developed countries. By December 2021, it was quite clear that the waiver proposal would not have received enough support to achieve consensus within the WTO membership. Around that time, the European Union, India, South Africa and the United States—with the support of the WTO Secretariat—launched high-level quadrilateral ...%SOURCENAMEESCAPED%, REVISION: Modalities, Challenges, and Possibilities: An Introduction to the Pharmaceutical Innovation Symposium, https://www.ssrn.com/abstract=3705735 (June 24, 2023)
On October 25, 2019, the Texas A&M Journal of Property Law and the Center for Law and Intellectual Property at Texas A&M University School of Law jointly organized the "Pharmaceutical Innovation, Patent Protection, and Regulatory Exclusivities" Symposium. Although none of the organizers and participants could predict what was to come in the next few months, there was a wide consensus that the rapid changes in the pharmaceutical landscape and our continuous struggle to strike a proper balance between proprietary protection and public access in the public health arena deserves scholarly, policy and regulatory attention.
To inform readers about the inspirations and motivations behind the Symposium, this introductory article begins by exploring the different modalities of protection--in particular the role of patents and regulatory exclusivities in providing the needed incentives to pharmaceutical developers. It then identifies three sets of challenges that affect the ...%SOURCENAMEESCAPED%, REVISION: Realigning TRIPS-Plus Negotiations with UN Sustainable Development Goals, https://www.ssrn.com/abstract=3251667 (May 25, 2023)
In December 2015, the United Nations adopted the 2030 Agenda for Sustainable Development, which featured 17 sustainable development goals (SDGs). These goals were developed at a time when countries were busy negotiating TRIPS-plus bilateral, regional and plurilateral agreements. This chapter explores how developing countries could realign these negotiations with the SDGs. It begins by discussing the intersection between these goals and the development of the intellectual property system—at both the domestic and international levels.
The chapter then outlines the direct and indirect impediments that the recent and ongoing negotiations for TRIPS-plus trade agreements have placed on the promotion and fulfilment of the SDGs. These agreements include the Anti-Counterfeiting Trade Agreement, the Trans-Pacific Partnership Agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership and the Regional Comprehensive Economic Partnership Agreement. In view of the ...%SOURCENAMEESCAPED%, REVISION: Increased Copyright Flexibilities for User-Generated Creativity, https://www.ssrn.com/abstract=3916671 (May 25, 2023)
The arrival of the Internet, social media and other new communication technologies has presented individuals with an unprecedented ability to create new copyrighted works to benefit society. Moving from consumers to prosumers, these individuals have generated contents such as digitally altered images, music remixes, video mash-ups, synchronized animations, machinimas, parodies and satires, and a dazzling array of fanworks. To unleash the potential provided by this new group of creators, policy makers and commentators have advanced a wide array of proposals to reform copyright law.
This chapter explores how and why copyright law should be reformed to increase flexibilities for user-generated creativity. Based on recent legislative reforms and the Author's personal experience in the copyright reform process, the chapter outlines two distinct but mutually non-exclusive options: (1) the creation of copyright exceptions for user-generated creativity; and (2) the limits to statutory ...%SOURCENAMEESCAPED%, New: Intellectual Property, Foreign Investment and Sustainable Development, https://www.ssrn.com/abstract=4447741 (May 18, 2023)
In December 2015, the United Nations adopted the 2030 Agenda for Sustainable Development. This agenda sought to achieve development for the next fifteen years and featured seventeen sustainable development goals (SDGs). Focusing on issues lying at the intersection of intellectual property rights, investment promotion regimes and the SDGs, this chapter begins by reviewing the ambiguous causal relationships between intellectual property, foreign direct investment and technology transfer. The chapter then discusses the protection of foreign intellectual property investments through international investment agreements, which are broadly defined to cover investment chapters in international trade agreements. Specifically, the discussion explores the standards of protection commonly found in international investment agreements and the investor-state dispute settlement mechanism. This chapter concludes by identifying eight strategies that host states in the Global South may deploy to ensure ...%SOURCENAMEESCAPED%, New: The Greens' Dilemma: Building Tomorrow's Climate Infrastructure Today, https://www.ssrn.com/abstract=4443474 (May 17, 2023)
“We need to make it easier to build electricity transmission lines.” This plea came recently not from an electric utility executive but from Senator Sheldon Whitehouse, one of the Senate’s champions of progressive climate change policy. His concern is that the massive scale of new climate infrastructure urgently needed to meet our nation’s greenhouse gas emissions reduction policy goals will face a substantial obstacle in the form of existing federal, state, and local environmental laws. A small but growing chorus of politicians and commentators with impeccable green credentials agrees that reform of that system will be needed. But how? How can environmental law be reformed to facilitate building climate infrastructure faster without unduly sacrificing its core progressive goals of environmental conservation, distributional equity, and public participation?
That hard question defines what this Article describes as the Greens’ Dilemma, and there are no easy answers. We take ...%SOURCENAMEESCAPED%, New: Hints of Earlier and Other Creation: Unsupervised Machine Learning in Financial Time-Series Analysis, https://www.ssrn.com/abstract=4437366 (May 14, 2023)
This study extends previous work applying unsupervised machine learning to commodity markets. "Clustering Commodity Markets in Space and Time" [DOI: 10.1016/j.resourpol.2021.102162] examined returns and volatility in commodity markets. That paper supported the conventional ontology of commodity markets for precious metals, base metals, agricultural commodities, and crude oil and refined fuels. "A Pattern New in Every Moment" [DOI: 10.3390/en14196099], used temporal clustering to identify critical periods in the trading of crude oil, gasoline, and diesel. This study combines the ontological methodology of "Commodity Markets in Space and Time" with the temporal clustering performed in "A Pattern New in Every Moment." Ontological clustering, contingent upon the identification of structural breaks and other critical periods within financial time series, is this study’s distinctive contribution. Conditional, time-variant ontological clustering should be applicable to any set of re-lated ...%SOURCENAMEESCAPED%, New: Unwired: Gaining Control over Addictive Technologies (Prologue and Chapter 1), https://www.ssrn.com/abstract=4444781 (May 12, 2023)
Our society has a technology problem. Many want to disconnect from screens but can't help themselves. These days we spend more time online than ever. Some turn to self-help-measures to limit their usage, yet repeatedly fail, while parents feel particularly powerless to help their children.
UNWIRED: GAINING CONTROL OVER ADDICTIVE TECHNOLOGIES (Cambridge University Press, 2023) shows us a way out. Rather than blaming users, the book shatters the illusion that we autonomously choose how to spend our time online. It shifts the moral responsibility and accountability for solutions to corporations.
Drawing lessons from the tobacco and food industries, the book demonstrates why government regulation is necessary to curb technology addiction. It describes a grassroots movement already in action across courts and legislative halls. Groundbreaking and urgent, UNWIRED provides a blueprint to develop this movement for change, to one that will allow us to finally gain control.%SOURCENAMEESCAPED%, REVISION: Doctrinal Destruction and Chevron’s Extinction Debt, https://www.ssrn.com/abstract=4392722 (May 9, 2023)
Chevron, the landmark Supreme Court case urging judicial deference to reasonable agency interpretations of vague or ambiguous statutes, has dominated federal administrative law since 1984. The sudden rise of the major questions doctrine, however, has destroyed Chevron’s jurisprudential habitat. Conservation biology suggests that habitat destruction is most devastating to dominant species, often imposing a biological “debt” that must be repaid through extinction. As with biology, so with law: “Major questions” having displaced agency deference, Chevron is doomed.%SOURCENAMEESCAPED%, REVISION: Competition Law and Copyright Misuse, https://www.ssrn.com/abstract=986891 (May 8, 2023)
In the past two decades, copyright protection throughout the world has been greatly expanded to respond to challenges posed by new communications technologies and copyrightable subject matters. As protection has increased, the growing power of copyright owners has also led to market abuses that stifle competition and innovation. In response to these abuses, courts, litigants, policy makers, and commentators have increasingly embraced competition law, the doctrines of copyright misuse and unclean hands, and tort law concepts as counter-balancing tools. This article discusses four different types of abuse that has occurred in the copyright area and examines the various legal doctrines that have been employed by Canadian and U.S. courts to resolve cases involving such abuse.
The first section discusses the limited monopolies of copyright owners and the various safeguards that have been built into the copyright system. Using five recent cases - four in the United States and one in ...%SOURCENAMEESCAPED%, REVISION: Intellectual Property and the Information Ecosystem, https://www.ssrn.com/abstract=578575 (May 8, 2023)
This short essay proceeds in two parts. The first part examines the controversy surrounding the use of the term "intellectual property." It discusses the common criticisms of the term's usage, including those articulated by Richard Stallman. It also challenges the myth that intellectual property did not acquire any property attributes until the establishment of the World Intellectual Property Organization. The essay suggests that the term may remain in common usage despite its uneasy analogy to real property, and a more nuanced understanding of property law may alleviate some of the problems caused by using the term.
The second part focuses on the need for a new conceptual framework to reframe the intellectual property debate. This part articulates three reasons why the information ecosystem would provide such a framework. First, it reminds policymakers and commentators of the problems of the current bipolar intellectual property debate. Second, it highlights the different ...%SOURCENAMEESCAPED%, REVISION: Still Dissatisfied after All These Years: Intellectual Property, Post-WTO China, and the Avoidable Cycle of Futility, https://www.ssrn.com/abstract=578584 (May 8, 2023)
Commentators have widely discussed the piracy and counterfeiting problems in China. Every year, the United States is estimated to lose billions of dollars due to piracy and counterfeiting in China alone. Published as part of the "U.S.-China Trade: Opportunities and Challenges" Symposium, this essay focuses on the recent debate about whether the U.S. administration should file a formal complaint against China with the WTO Dispute Settlement Body over inadequate enforcement of intellectual property rights.
The essay begins by explaining why the administration should not do so. It then discusses the consequences of filing such a complaint. It contends that such action is likely to result in a new “cycle of futility,” similar to the cycles created by the American intellectual property policy toward China in the 1980s and early 1990s. To avoid these cycles, the essay highlights four remedial areas on which the administration and the business community should focus. It concludes ...%SOURCENAMEESCAPED%, REVISION: Currents and Crosscurrents in the International Intellectual Property Regime, https://www.ssrn.com/abstract=578572 (May 8, 2023)
Since the establishment of the TRIPS Agreement, intellectual property protection has been expanding rapidly, and many less developed countries have become dissatisfied with the international intellectual property regime. From bilateral free trade agreements to the increasing use of technological protection measures, many commentators fear that the recent "one-way ratchet" will roll back the substantive and strategic gains made by less developed countries during TRIPS negotiations. Interestingly, intellectual property rights holders feel equally threatened by recent developments, in particular the development of the Doha Declaration on the TRIPS Agreement and Public Health, the World Summit on the Information Society, the WIPO Development Agenda and the Geneva Declaration on the Future of WIPO.
This article challenges the incomplete views held by those on both sides of the international intellectual property debate and argues that the recent developments are neither new nor ...%SOURCENAMEESCAPED%, REVISION: Four Common Misconceptions About Copyright Piracy, https://www.ssrn.com/abstract=443160 (May 8, 2023)
Copyright piracy is one of the most difficult, yet important, transnational problems in the twenty-first century. Although legal literature has discussed copyright piracy extensively, commentators rarely offer a "grand unified theory" on this global problem. Rather, they give nuanced analyses, discussing the many aspects of the problem—political, social, economic, cultural, and historical.
These nuanced discussions, however, are missing in the current public debate, which tends to oversimplify the complicated picture to capture the readers' emotion and to generate support for proposed legislative and executive actions. The debate often exaggerates a particular aspect of the piracy problem or offers an abbreviated, easy-to-understand, yet misleading version of the story. Such oversimplification is dangerous, for it creates misconceptions that confuse the public as to the cause and extent of the problem and mislead policymakers into finding solutions that fail to attack the crux ...%SOURCENAMEESCAPED%, REVISION: Five Disharmonizing Trends in the International Intellectual Property Regime, https://www.ssrn.com/abstract=923177 (May 8, 2023)
Since the creation of the Paris and Berne Conventions, the European Communities and the United States have been pushing for greater harmonization of intellectual property protection throughout the world. In 1994, for example, the World Trade Organization was established, bringing with it the oft-criticized TRIPs Agreement. Less than a decade later, the WIPO Internet Treaties entered into force, updating the international intellectual property regime to reflect changes in the digital environment. At the turn of this century, WIPO also initiated discussions on several harmonization treaties. Two of the more controversial ones concern the Substantive Patent Law Treaty and the Treaty on the Protection of Broadcasting Organizations.
Notwithstanding these harmonization efforts, countries - both developed and less developed - have become increasingly dissatisfied with the international intellectual property regime. To protect themselves and to reclaim autonomy over their ...%SOURCENAMEESCAPED%, REVISION: The Never-ending ccTLD Story, https://www.ssrn.com/abstract=388980 (May 8, 2023)
Country-code top-level domains (ccTLDs) are the two-letter suffixes used by countries to denote their Internet addresses. Examples include .fr (for France), .tv (for Tuvalu) and .uk (for the United Kingdom). When ccTLDs were first developed, ccTLD policymaking was not high on the international lawmaking agenda. However, as the Internet explodes and as countries begin to realize the potential of this key information infrastructure, ccTLDs have received significant attention from the international community.
Added to the ccTLD policymaking debate is the creation and development of the Internet Corporation for Assigned Names and Numbers (ICANN), a non-profit corporation formed to assume responsibility for the IP address space allocation, protocol parameter assignment, domain name system management, and root server system management functions previously performed under U.S. Government contract by IANA and other entities.
This book chapter recounts the power struggle over ...%SOURCENAMEESCAPED%, REVISION: Toward a Nonzero-Sum Approach to Resolving Global Intellectual Property Disputes: What We Can Learn from Mediators, Business Strategists, and International Relations Theorists, https://www.ssrn.com/abstract=309859 (May 8, 2023)
Countries differ in terms of their levels of wealth, economic structures, technological capabilities, political systems and cultural tradition. No two countries have identical conditions, needs and aspirations. As a result, policymakers face different political pressures and make different value judgments as to what would best promote the creation and dissemination of intellectual works in their own countries. These uncoordinated judgments eventually result in a conflicting set of intellectual property laws around the world.
As countries become increasingly interdependent in this globalized economy, these conflicting laws create tensions and sometimes result in disputes. To minimize differences and prevent conflicts, countries use a variety of dispute resolution techniques, including self-help, coercion, mutual exchange of information, international agreements and multilateral regimes. Commentators generally analyze these techniques by focusing on the number of parties ...%SOURCENAMEESCAPED%, REVISION: Piracy, Prejudice, and Perspectives: An Attempt to Use Shakespeare to Reconfigure the U.S.-China Intellectual Property Debate, https://www.ssrn.com/abstract=262530 (May 8, 2023)
Since the mid-1980s, the U.S.-China intellectual property conflict has entered into the public debate. It has also been frequently discussed and debated in Congress. Despite the importance of this issue, the debate thus far has been one-sided, focusing primarily on the unfair competition aspect. While there are undeniably some greedy Chinese who are eager to free ride on the creative efforts of Western authors and inventors, greed alone cannot explain the century-old U.S.-China intellectual property conflict. To understand the roots of this conflict, one must focus on the significant political, social, economic and cultural differences between China and the West. Unless the Chinese government introduces reforms that are sensitive to these differences, the piracy problem will continue. Indeed, the problem will exacerbate as the Chinese economy grows.
To reconfigure the U.S.-China intellectual property debate, this article articulates the various differences between China and ...%SOURCENAMEESCAPED%, REVISION: The Harmonization Game: What Basketball Can Teach About Intellectual Property and International Trade, https://www.ssrn.com/abstract=341242 (May 8, 2023)
In the recent World Men's Basketball Championships in Indianapolis, Team USA found out painfully that the international game is very different from what they play at home and that the gap between USA Basketball and the rest of the world has been closing. While the United States' losses might have a significant impact on how the country will prepare for the 2004 Olympics in Athens and on how Americans train youngsters to play basketball, their teachings go beyond basketball.
The international harmonization process is a game with different rules, different officials, and players with different visions and mindsets. By watching how players interact with rules, officials, and other players, one therefore could gain insight into globalization and the international harmonization process. Team USA's recent loss might be a painful lesson to Americans, but it provides a beneficial lesson to all of us who are involved in intellectual property and international trade.%SOURCENAMEESCAPED%, REVISION: Three Megatrends in the International Intellectual Property Regime, https://www.ssrn.com/abstract=4295524 (May 8, 2023)
Since the establishment of the Paris and Berne Conventions, the international intellectual property regime has encountered two world wars, struggled with several global pandemics, welcomed dozens of newly independent nations and interacted with a wide variety of technologies and innovative practices. Although this regime progressed only slowly for the larger part of its first century, it saw major transformation in the past four decades, including the adoption of the WTO TRIPS Agreement.
Written in commemoration of the centennial of the American Branch of the International Law Association, this article identifies three megatrends to illuminate the magnitude and ramifications of such transformation: (1) the rise of emerging countries; (2) the increased complexity of the international intellectual property regime; and (3) spatial transformation brought about by the proliferation of new technologies. Focusing on the myriad of impacts that changing actors, institutions and ...%SOURCENAMEESCAPED%, REVISION: Marshalling Copyright Knowledge to Understand Four Decades of Berne, https://www.ssrn.com/abstract=3980493 (May 8, 2023)
Published as part of the festschrift in honor of Professor Marshall Leaffer, this tribute focuses on what would have happened had he, like the fictional character Captain Buck Rogers, been frozen on his way to academia in 1978. What will he discover upon his return in 2021? Will he find the developments in the intervening decades interesting or surprising? What observations would he make had he not been frozen?
Because of Marshall's love for copyright law, his many important contributions to the international intellectual property field and his longtime membership in the Association Littéraire et Artistique Internationale (ALAI), this article pays tribute by examining the past four decades of developments surrounding the Berne Convention for the Protection of Literary and Artistic Works.
This article begins by exploring three areas that are usually discussed in relation to the Convention's revision process: (1) the arrival of new members; (2) the advent of new ...%SOURCENAMEESCAPED%, REVISION: China and the WTO: Progress, Perils, and Prospects, https://www.ssrn.com/abstract=491444 (May 8, 2023)
In November 2001, member states of the World Trade Organization (WTO) approved the proposal to admit China to the international trading body. After fifteen years of exhaustive negotiations, China finally became the 143rd member of the WTO on December 11, 2001. To reflect on this event, this panel brings together six China experts to explore the ramifications of China's accession to the WTO. Among the issues addressed are whether China is making progress in its compliance with the WTO requirements, whether China is suffering setbacks in the socio-economic arena, whether there are any prospects for democratic reforms and stronger human rights and environmental protection in the country, and what the WTO accession means to China's neighbors and the global community.%SOURCENAMEESCAPED%, REVISION: Bridging the Digital Divide: Equality in the Information Age, https://www.ssrn.com/abstract=309841 (May 8, 2023)
The digital revolution has transformed the lives of many, but also has left untouched the lives of many others. As a result, a large segment of the world population misses out on the tremendous political, social, economic, educational, and career opportunities created by the digital revolution. This gap between the information haves and have-nots is commonly referred to as the digital divide.
Although evidence suggested that the digital divide in the United States is closing, the same is not true for the less developed countries. In light of the alarming disparities between the information haves and have-nots, the Howard M. Squadron Program in Law, Media and Society at the Benjamin N. Cardozo School of Law, Yeshiva University selected the digital divide as the topic for its Second Squadron Symposium on Internet, Law & Society. Included in the symposium issue published by the Cardozo Arts & Entertainment Law Journal are articles by Andrew Celli, Mark Cooper, Kenneth ...%SOURCENAMEESCAPED%, REVISION: The Escalating Copyright Wars, https://www.ssrn.com/abstract=436693 (May 8, 2023)
Piracy is one of the biggest threats confronting the entertainment industry today. Every year, the industry is estimated to lose billions of dollars in revenue and faces the potential loss of hundreds of thousands of jobs. To protect itself against Internet pirates, the entertainment industry has launched the latest copyright war. So far, the industry has been winning. Among its trophies are the enactment of the Digital Millennium Copyright Act, Vivendi Universal's defeat and purchase of MP3.com, the movie studios' victory in the DeCSS litigation, the bankruptcy and subsequent sale of Napster and its recent relaunch as a legitimate subscription-based music service, the Supreme Court's rejection of the copyright bargain theory in Eldred v. Ashcroft, and the recording industry's relative success in its mass litigation campaign.
Notwithstanding these victories, the war is expanding and has become even more difficult for the industry to fight than it was a year ago. Today, ...%SOURCENAMEESCAPED%, REVISION: A New Approach to the Geopolitics of Chinese Internets, https://www.ssrn.com/abstract=4258574 (May 8, 2023)
Written for a special issue on "The Geopolitics of Chinese Internets," this introductory essay summarizes how our understanding of Chinese internets – in the plural – has shifted in the past two decades. The incumbent approach sees "Chinese tech" as a unitary and statist monolith, an incomplete view whose utility has declined. By contrast, the articles in this special issue collectively substantiate a novel geopolitical approach that analyzes "Chinese internets" as internally diverse and externally border-crossing; as both public (governmental and non-governmental) and private (e.g., corporate); as discursive and policy entanglements beyond the dichotomy of multistakeholderism and multilateralism; and as global, regional, and local formations that are connected to, but not entirely constrained by, their national counterparts. Pluralist and multilayered, this new approach to analyzing Chinese techno-geopolitics shall provide a better fit for contemporary internet research involving ...%SOURCENAMEESCAPED%, REVISION: Customizing Fair Use Transplants, https://www.ssrn.com/abstract=3052158 (May 8, 2023)
In the past decade, policymakers and commentators across the world have called for the introduction of copyright reform based on the fair use model in the United States. Thus far, Israel, Liberia, Malaysia, the Philippines, Singapore, South Korea, Sri Lanka and Taiwan have adopted the fair use regime or its close variants. Other jurisdictions such as Australia, Hong Kong and Ireland have also advanced proposals to facilitate such adoption.
Written for a special issue on "Intellectual Property Law in the New Technological Age: Rising to the Challenge of Change?", this article examines the increasing efforts to transplant fair use into the copyright system based on the U.S. model. It begins by briefly recapturing the strengths and weaknesses of legal transplants. The article then scrutinizes the ongoing effort to transplant fair use from the United States. Specifically, it identifies eight modalities of transplantation, drawing on experiences in China, Australia, Hong Kong, ...%SOURCENAMEESCAPED%, REVISION: China, 'Belt and Road' and Intellectual Property Cooperation, https://www.ssrn.com/abstract=3332346 (May 8, 2023)
In fall 2013, China launched the 'One Belt, One Road' Initiative, covering over 60 percent of the world's population and about a third of global GDP. Now translated officially as the Belt and Road Initiative (BRI), this new development features two distinct routes: the land-based Silk Road Economic Belt and the sea-based 21st-century Maritime Silk Road.
Although burgeoning literature has emerged to analyze the BRI's benefits, drawbacks and ramifications, few scholars have explored the initiative's potential impact on international and regional intellectual property systems. Commissioned for a special issue on the BRI, the present article aims to fill this void by examining the emerging role China and its BRI will play in the intellectual property area.
This article begins by exploring China's growing assertiveness in the international arena. It then explores six areas in which the BRI can play constructive roles in facilitating international and regional cooperation. ...%SOURCENAMEESCAPED%, REVISION: Anticircumvention and Anti-Anticircumvention, https://www.ssrn.com/abstract=931899 (May 8, 2023)
In today's debate on digital rights management systems, there is a considerable divide between the rights holders, their investors and representatives on the one hand and academics, consumer advocates, and civil libertarians on the other. These two groups often talk past each other, concocting their own doomsday scenarios while arguing for laws and policies that vindicate their positions. Unfortunately, neither side has sufficient empirical evidence to either support its position or disprove its rivals'. As the digital economy grows, the debate intensifies, and the divide between the two sides widens. Today, there has emerged an urgent need to find the common ground on this very divisive issue.
Published as part of the Inaugural Summit on Intellectual Property and Digital Media, this article begins by examining the positions taken by the proponents and critics of DRM systems and related laws. It then focuses on anticircumvention laws, highlighting their harms at both the ...%SOURCENAMEESCAPED%, REVISION: A Tale of Two Development Agendas, https://www.ssrn.com/abstract=1349967 (May 8, 2023)
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 Development Agenda will follow the path of its ill-fated predecessor.
Delivered as the opening lecture of the Dean's Lecture Series, this article begins by tracing the development of the Old Development Agenda. It discusses the drafting of the Stockholm Protocol to the Berne Convention, the formation of WIPO as a ...%SOURCENAMEESCAPED%, REVISION: How Copyright Law May Affect Pop Music Without Our Knowing it, https://www.ssrn.com/abstract=2503445 (May 8, 2023)
Commissioned for a symposium on copyright law and the creation of music, this article explores five questions about popular music that can be illuminated by greater insights into copyright law and the music business: Why do popular songs usually last for less than five minutes? Why are professional songwriters dissatisfied with Pandora and Spotify? Why can we bring European CDs back to the United States? Why can't YouTube videos be created with blanket licenses offered by the American Society of Composers, Authors and Publishers and Broadcast Music, Inc.? Are digital downloads sales or licenses? And as a bonus, this article includes a rather obscure yet illuminating sixth question: Why does the royalty rate for sheet music stay at seven cents per copy?
It is my hope that answering these questions will enable us to develop a deeper understanding of copyright law and how it can affect both the music business and popular music. The copyright debate has been repeatedly and ...%SOURCENAMEESCAPED%, REVISION: Cultural Relics, Intellectual Property, and Intangible Heritage, https://www.ssrn.com/abstract=1272727 (May 8, 2023)
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 new conventions, declarations, laws, and policy discussions have helped establish a new international framework for the protection of intangible cultural heritage.
Published as part of the "Law Without Borders: Current Legal Challenges Around the Globe" ...%SOURCENAMEESCAPED%, REVISION: Teaching International Intellectual Property Law, https://www.ssrn.com/abstract=1000783 (May 8, 2023)
Intellectual property law was in the backwater only a few decades ago. The Section on Intellectual Property Law of the Association of American Law Schools was not even founded until the early 1980s, and the creation of intellectual property specialty programs has been a recent phenomenon. As senior legal scholars reminisced, early in their career, they would have been lucky to find a school that would allow them to teach a class on intellectual property law. Although intellectual property law teaching has come of age in the past decade, international intellectual property law courses remain nonexistent in more than half of American law schools. Notwithstanding this limited interest, the momentum has picked up quickly, and international intellectual property law is slowly emerging to become a staple in the core intellectual property law curriculum.
Published as part of the Symposium on Teaching Intellectual Property Law, this essay reflects on the teaching of international ...%SOURCENAMEESCAPED%, REVISION: The Global Intellectual Property Order and Its Undetermined Future, https://www.ssrn.com/abstract=1485285 (May 8, 2023)
As an introduction to the inaugural issue of the new WIPO Journal, this essay highlights some of the key recent developments in the intellectual property field. The essay begins by discussing the increasingly complex, and at times incoherent, international legal order governing the protection and enforcement of intellectual property rights. It shows how much the system has been transformed since the launch of the Paris and Berne Conventions in the 1880s.
The essay then examines the increasingly polarized debate on intellectual property law and policy. Although the debate’s growing divisiveness is understandable, given the rapid expansion of intellectual property rights and the highly contentious nature of boundary drawing, this essay pleads for a more constructive debate that is based on empirical research, historical and comparative analyses, interdisciplinary insights, and holistic perspectives.
Finally, the essay concludes by pointing out that the international ...%SOURCENAMEESCAPED%, REVISION: Intellectual Property Geographies, https://www.ssrn.com/abstract=2534932 (May 8, 2023)
Written for a special issue on intellectual property and geography, this article outlines three sets of mismatches that demonstrate the vitality, utility and richness of analyzing intellectual property developments through a geographical lens. The article begins by examining economic geography, focusing on the tensions and conflicts between territorial borders and sub-national innovation (including those relating to obligations under the WTO TRIPS Agreement). This article then examines the oft-found mismatch between political geography and cultural geography. Illustrating this mismatch is the challenge of protecting traditional knowledge and traditional cultural expressions. The article concludes by exploring the growing mismatch between legal geography and human geography. It discusses issues ranging from the region codes deployed to protect DVDs to the increasing consumer demand for cross-border portability of copyrighted media content.%SOURCENAMEESCAPED%, REVISION: The Trust and Distrust of Intellectual Property Rights, https://www.ssrn.com/abstract=578563 (May 8, 2023)
In the past, intellectual property issues were considered arcane, obscure, complex and highly technical; they were only of interest and concern to specialized attorneys, legal scholars, technology developers and intellectual property rights holders. Thanks to the Internet and new communications technologies, intellectual property has now begun to play a more significant role in society.
In December 2003, the first phase of the World Summit on the Information Society (WSIS) was held in Geneva. While the summit affirmed the importance of intellectual property rights and free access to information and knowledge, the resulting Declaration of Principles and Plan of Action fail to address issues concerning the recent expansion of intellectual property rights. The documents are vague and abstract, and do not provide concrete actions the international community can take to improve the international intellectual property regime.
This article examines the international ...%SOURCENAMEESCAPED%, REVISION: The Copyright Divide, https://www.ssrn.com/abstract=460740 (May 8, 2023)
In September 2003, the Recording Industry Association of America filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh and Gnutella. Although the industry’s approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates and university officials, the RIAA's aggressive tactics are not new.
Indeed, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries lobbied their government to use strong-armed tactics to coerce China into protecting intellectual property rights. Succumbing to U.S. trade pressure, the Chinese authorities eventually raided pirate factories and handed out harsh penalties, including life imprisonment and even death penalty in severe cases.
The ...%SOURCENAMEESCAPED%, REVISION: From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century, https://www.ssrn.com/abstract=245548 (May 8, 2023)
During the late 1980s and early 1990s, the United States repeatedly threatened China with a series of economic sanctions, trade wars, non-renewal of most-favored-nation status, and opposition to entry into the World Trade Organization. Such threats eventually led to compromises by the Chinese government and the signing of intellectual property agreements in 1992, 1995, and 1996. Despite these agreements, intellectual property piracy remains rampant in China.
Although China initially had serious concerns about the United States's threats of trade sanctions, the constant use of such threats by the U.S. government has led China to change its reaction and approach. By 1996, it had become obvious that the existing American foreign intellectual property policy was ineffective, misguided, and self-deluding. The United States not only lost its credibility, but its constant use of trade threats helped China improve its ability to resist American demands. Such threats and bullying also ...%SOURCENAMEESCAPED%, REVISION: P2P and the Future of Private Copying, https://www.ssrn.com/abstract=578568 (May 8, 2023)
Since the beginning of the P2P file-sharing controversy, commentators have discussed the radical expansion of copyright law, the recording industry's controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. Although these discussions have delved into the many aspects of the controversy, none of them presents a big picture of the issues or explains how they fit within the larger file-sharing debate.
Using a holistic approach, this article brings together existing scholarship while offering some thoughts on the future of private copying. The article does not seek to advance a new theory or model, which could quickly become obsolete, given the rapid advance of digital and P2P technologies. Rather, it provides guidelines to help policymakers to craft an effective solution to the unauthorized copying problem.
This article begins by examining the recording ...%SOURCENAMEESCAPED%, New: Ethics for Real Estate Lawyers Today, https://www.ssrn.com/abstract=4417451 (April 26, 2023)
This essay discusses various ethics issues that real estate lawyers experience: everything from new ABA Model Rule 8.4(g) (avoiding discrimination) to rules that apply when a lawyer works from home to technological competence and social media to the attorney-client privilege and to advance conflicts waivers. There is also a social science overlay that discusses why smart people do dumb things.%SOURCENAMEESCAPED%, REVISION: Intellectual Property, Economic Development, and the China Puzzle, https://www.ssrn.com/abstract=978301 (April 26, 2023)
Since the late 1980s, the Chinese economy has been growing at an enviable average annual rate of about 10 per cent. Accompanying this unprecedented economic development and growth was the maturation of the modern Chinese intellectual property system. Since the reopening of its market to foreign trade in the late 1970s, China introduced its first modern copyright, patent, and trademark laws. A decade later, China revamped its intellectual property system in response to US pressure and did so again in preparation for its accession to the WTO. At present, China is a proud member of many multilateral intellectual property agreements. Notwithstanding these developments, the enforcement of intellectual property rights in China remains inadequate.
Although commentators often link intellectual property protection with economic development, China thus far has presented a puzzle to those who study this link. While some commentators consider China a paradigmatic case for showing that ...%SOURCENAMEESCAPED%, REVISION: Can the Right to Science Reduce the Tensions Between Intellectual Property and Human Rights?, https://www.ssrn.com/abstract=4273521 (April 24, 2023)
The right to science—or, more formally, the right to enjoy the benefits of scientific progress and its applications—is one of the most underexplored rights in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Referred to as being "[t]ucked away at the tail end" of the UDHR and the "most obscure of all the international human rights treaty provisions," this right did not become the subject of an authoritative interpretation by the U.N. Committee on Economic, Social and Cultural Rights (CESCR) until April 2020, amid the COVID-19 pandemic.
Taking note of the release of General Comment No. 25 and the considerable frustrations over the tensions and conflicts between intellectual property and human rights during the COVID-19 pandemic, this chapter closely examines the right to science as incorporated in Article 27(1) of the UDHR and Article 15(1)(b) of the ICESCR. The new interpretive comment is of ...%SOURCENAMEESCAPED%, New: Can Regulation Affect the Solvency of Insurers? New Evidence from European Insurers, https://www.ssrn.com/abstract=4405037 (April 20, 2023)
Successive crises in the early twenty-first century prompted regulators around the world to ask financial institutions to implement a series of regulations. These measures aimed to increase transparency, improve consumer and investor protection, restructure financial capital, stabilize insurance and pension markets, and improve solvency. The Solvency II framework introduced in the European Union applied these principles to insurance companies. This study attempts to predict the solvency of an insurer within a set of European insurers. The dataset consists of 29 insurance groups that operate across the European Union with a country of origin within the European Union for the period 2016 to 2020. The variables were constructed from annual financial statements retrieved from (Thomson Reuters) DataStream. The solvency capital requirement ratios were obtained manually from the solvency financial condition reports of each group. Regularized linear regression applying a ℓ1/ ...%SOURCENAMEESCAPED%, REVISION: Scalia’s Major Mousetrap: The Modest Origins of the Major Questions Doctrine, https://www.ssrn.com/abstract=4392469 (April 12, 2023)
The rhetoric if not the reasoning of the Supreme Court’s newly recognized “major questions doctrine” originates in the jurisprudence of Justice Antonin Scalia. The major questions doctrine rests on little more than Justice Scalia’s exercises in Latin etymology and his felicitous announcement that Congress “does not … hide elephants in mouseholes.” This doctrine threatens to eclipse textualist statutory interpretation. Textualism, which had long lived by the ipse dixit, now dies by the ipse dixit. But one must mourn for the Constitution. Justice Scalia’s major mousetrap comes not as a mouse, but as a wolf.%SOURCENAMEESCAPED%, New: RUCHO IN THE STATES: DISTRICTING CASES AND THE NATURE OF STATE JUDICIAL POWER, https://www.ssrn.com/abstract=4405412 (April 3, 2023)
In Rucho v. Common Cause the Supreme Court concluded that claims of excessive partisan gerrymandering present political questions that are beyond the reach of the federal judicial power due to a lack of “judicially discoverable and manageable standards” by which to determine when partisanship has gone too far. In the court of doing so the Court noted the existence other avenues for addressing the problem, one of which is state courts.
This essay focuses on state courts’ reaction to and use of Rucho, which turns out to present as something of a Rorschach test. Some see its reasoning as applying to the American judicial power in a deep and comprehensive sense, such that its logic and conclusions apply to all courts. On that view, the message is that courts and electoral maps simply do not mix. Others see in Rucho a case about the federal judicial power, which leaves space for state courts to determine for themselves whether the legal and institutional frameworks within which ...%SOURCENAMEESCAPED%, REVISION: The Comparative Law and Economics of Counterfeits and Post-Sale Confusion, https://www.ssrn.com/abstract=3987126 (March 28, 2023)
Post-sale confusion is a concept used to protect trademark holders even when no consumer confusion exists at the point of sale. Instead, protection is granted based on the fact that future purchasers or other bystanders will be confused after the sale and that such confusion will harm trademark holders. Despite the widespread criticisms of this doctrine—with many commentators calling for either its abolition or substantial reform—courts continue to grant such protection.
This chapter interrogates the economic justifications for the doctrine of post-sale confusion at both the domestic and international levels. It begins by exploring those justifications in the trademark holder's home market. For analytical purposes, the discussion uses the United States as the proverbial home market and focuses on U.S. trademark law, including the different justifications identified by the U.S. Court of Appeals for the Sixth Circuit in General Motors Corp. v. Keystone Automotive Industries, ...%SOURCENAMEESCAPED%, New: Harmful Precautions, https://www.ssrn.com/abstract=4390957 (March 22, 2023)
The time-honored proverb “one person’s loss is another person’s gain” captures a universal truth: the misfortune of some may be a blessing to others. Surprisingly, this bit of conventional wisdom has been lost in the scholarly discussion of “the most central idea of many first-year torts classes today” (Zipursky, Sleight of Hand, 2007)
According to the conventional definition of reasonableness, commonly known as the Hand formula, a person acts unreasonably (negligently) towards another if they fail to take precautions whose cost for the actor is lower than the expected loss for the other that these precautions can prevent. While law and economics theorists have advocated and courts have often embraced adjustments to both sides of this algebraic formulation, the idea that the expected loss must be compared with the cost of precautions for the potential injurer has remained mostly uncontested. The Article unveils an overlooked yet fundamental flaw in the orthodox understanding ...%SOURCENAMEESCAPED%, New: Supreme Court Update — (The Square Root of) 25 or Six-to-Three, https://www.ssrn.com/abstract=4385851 (March 20, 2023)
The 2021 Term of the Supreme Court was one of the most contentious and controversial in recent memory. This Term represented a striking reversal of five or six decades of jurisprudence. The era of Roe v. Wade, in retrospect, was a halcyon period of relative stability in Supreme Court doctrine. The 2021 Term delivered decisive wins in the 5G agenda of the culture wars: God, guns, gay people, gynecology, and gerrymandering. Most saliently, Roe has been overruled.
Note: The title of this review alludes to “25 or 6 to 4,” a 1970 song by Chicago.%SOURCENAMEESCAPED%, REVISION: Deferring Intellectual Property Rights in Pandemic Times, https://www.ssrn.com/abstract=4062300 (March 15, 2023)
This Article examines an unprecedented proposal that India and South Africa submitted to the World Trade Organization (WTO) in October 2020, which called for a waiver of more than 30 provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights to help combat COVID-19. It begins by recounting the proposal's strengths and weaknesses. The Article then identifies the challenges surrounding the negotiation and implementation of the proposed waiver. It shows why these two sets of challenges were neither separate nor sequential, but deeply entangled at the time of the international negotiations.
To respond to these challenges and the negotiation impasse at the WTO, this Article advances an alternative proposal that calls for the deferral of select intellectual property rights in pandemic times. Aiming to "split the difference" between the proponents and opponents of the waiver, the proposal draws support from precedents involving temporal adjustments to ...%SOURCENAMEESCAPED%, New: Algunas Notas Sobre La Econofísica (Some Notes on Econophysics), https://www.ssrn.com/abstract=4369976 (March 2, 2023)
Spanish abstract: La econofísica es el área multidisciplinar del conocimiento que intenta combinar la física, las matemáticas y los distintos campos que abarcan la economía. Algunos de los conceptos introducidos por los físicos en finanzas, tales como fractalidad o multifractalidad, han sido aceptadas por la mayoría de los economistas. Los trabajos entorno al análisis de esta propiedad se han multiplicado a lo largo de la última década
English abstract: Econophysics is the multidisciplinary domain of knowledge that attempts to combine physics, mathematics and the different fields that cover the economy. Some of the concepts introduced by physicists in finance, such as fractality or multifractality, have been accepted by most economists. Work addressing these concepts has proliferated throughout the last decade.%SOURCENAMEESCAPED%, New: Four Energy Commodity Quartets: Unsupervised Machine Learning and the Four Horsemen of the Fossil Fuel Apocalypse, https://www.ssrn.com/abstract=4369980 (February 28, 2023)
Markets for energy-related commodities figure prominently in developmental economics, international trade, and environmental law and policy. Markets for Brent oil, West Texas intermediate crude, gasoline, and diesel affect not only energy policy but also demand for agricultural commodities that serve as feedstocks for ethanol and biodiesel. The natural resource curse in developmental economics arises largely from fossil fuel markets as well as gemstones and precious metals. Factors affecting oil prices include wars and other political disturbances, shifts in global supply and demand, and technological and regulatory changes promoting demand for renewable energy. Even ephemera such as OPEC production decisions and extreme weather events must be taken into account. Amid climate change and death by pandemic disease, the factors affecting energy commodity markets closely track the four horsemen of the Apocalypse: pestilence, war, famine, and death.
In its original and proper Greek ...%SOURCENAMEESCAPED%, REVISION: Clustering Commodity Markets in Space and Time: Clarifying Returns, Volatility, and Trading Regimes Through Unsupervised Machine Learning, https://www.ssrn.com/abstract=3791138 (February 28, 2023)
Unsupervised machine learning can interpret logarithmic returns and conditional volatility in commodity markets. k-means and hierarchical clustering can generate a financial ontology of markets for fuels, precious and base metals, and agricultural commodities. Manifold learning methods such as multidimensional scaling (MDS) and t-distributed stochastic neighbor embedding (t-SNE) enable the visualization of comovement and other financial relationships in three dimensions.
Different methods of unsupervised learning excel at different tasks. k-means clustering based on logarithmic returns works well with MDS to classify commodities and to create a spatial ontology of commodities trading, A strikingly different application involves k-means clustering of the matrix transpose, such that conditional volatility is evaluated by trading date rather than by commodity. This approach can isolate the two most calamitous temporal regimes of the past two decades: the global financial crisis ...%SOURCENAMEESCAPED%, New: Baker Botts L.L.P. v. ASARCO LLC, Amicus Brief of Neutral Fee Examiners Supporting Neither Party, https://www.ssrn.com/abstract=4357118 (February 15, 2023)
This amicus brief was written by four neutral fee examiners to assist the United States Supreme Court in considering the issue of whether bankruptcy estate-paid professionals could recover fees for responding to fee objections.%SOURCENAMEESCAPED%, REVISION: אבד בתרגום: על זכויות תביעה בנזיקין של חדלי-פירעון Lost in Translation: Tort Actions of Insolvent Victims, https://www.ssrn.com/abstract=3901385 (February 13, 2023)תקציר בעברית: מאמר זה בוחן אם זכות התביעה בנזיקין של חדל פירעון והפיצויים המגיעים או משולמים בעקבות מימושה אמורים להישאר בידי הקורבן או לעבור לידי הנאמן בהליכי חדלות הפירעון לצורך חלוקה בין הנושים. בפרשת ידידיה נקבע על יסוד פרשנות סעיף 21 לפקודת הנזיקין כי תביעה בגין נזקי גוף ופירותיה נותרים בידי הקורבן, ואילו תביעה בגין נזקי רכוש ופירותיה עוברים לנאמן. בפרשת ג'ינר חולל בית המשפט העליון מהפכה כשקבע כי גם הזכות לפיצוי בגין הפסדי השתכרות במקרים של פגיעה גופנית (עבור התקופה שעד למתן הפטר בהליך חדלות הפירעון) עוברת לידי הנאמן, בניגוד לזכות התביעה בגין ראשי נזק אחרים אשר נותרת בידי פושט הרגל. המאמר טוען שהתוצאה אליה הגיע בית המשפט בפסק הדין המאוחר אמנם נכונה מבחינה משפטית, אולם ההנמקה שגויה.
בראש ובראשונה, המאמר מראה כי השינוי שהתחולל בעניין ג'ינר התבסס למעשה על פרשנות בניגוד ללשונה המפורשת של פקודת הנזיקין, פעולה שיפוטית מרחיקת-לכת שאמורה להיות נדירה ביותר אף בשיטת הפרשנות המקובלת בישראל, מבלי שהתקיימה אחת הנסיבות החריגות והמיוחדות המצדיקות מהלך כזה. ...
%SOURCENAMEESCAPED%, REVISION: Instrumental Comparative Tort Law, https://www.ssrn.com/abstract=3973401 (January 26, 2023)
This contribution to the JTL symposium on "The State of Tort Theory" aims to delineate the potential use of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, demonstrates how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications.
Part 2 exemplifies the more traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas, often accompanied by relevant empirical evidence, for domestic tort law gap-filling and reform. It explains the challenges that lawmakers and scholars who use comparative tort law for these purposes might face.
Part 3 maintains that comparative law is the cornerstone of unification endeavors. It starts with coordinated projects, such as the Restatements of Torts and the Principles of European Tort Law, demonstrating that unification is in itself an ...%SOURCENAMEESCAPED%, REVISION: The Unidentified Wrongdoer, https://www.ssrn.com/abstract=3826564 (January 25, 2023)
The Article addresses the untheorized and under-researched problem of strong unidentifiability in tort law, namely the victim’s occasional inability to identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs, and bring an action against him or her. This Article offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine liability and frustrate its goals.
Part I presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: adherence to direct liability with creative procedural identification tools, indirect liability of a third party with some control over the unidentified wrongdoer’s conduct, residual indirect liability, and no causation-based liability.
Part II turns to an economic appraisal of the competing models. It argues that in tailoring solutions to strong ...%SOURCENAMEESCAPED%, REVISION: Negligence Without Harm, https://www.ssrn.com/abstract=4038781 (January 25, 2023)
The colloquial phrase “no harm, no foul” captures one of the most fundamental tenets of negligence law: the tort is incomplete and there can be no legal redress without proof of actual harm. Mere exposure to risk, even when it is foreseeable and unreasonable, is not actionable. The Article dares to challenge this time-honored, deep-rooted, and highly impactful legal axiom.
Part I restates the traditional quadripartite structure of the tort of negligence, highlights the implications of the harm requirement, and briefly reviews and characterizes past attempts to circumvent it.
The Article then launches a three-pronged attack on this traditional structure:
(1) Part II uncovers the internal normative incoherence of existing negligence doctrine (where breach of a legal duty does not in itself have legal repercussions) and offers “negligence without harm” as a coherent alternative.
(2) Part III provides a fairness-based case for abolishing the harm ...%SOURCENAMEESCAPED%, REVISION: Vaccine Development, the China Dilemma and International Regulatory Challenges, https://www.ssrn.com/abstract=4289910 (January 20, 2023)
Since the World Health Organization declared COVID-19 a global pandemic in March 2020, countries, intergovernmental bodies, nongovernmental organizations and individual experts have called for the development of new global frameworks and adjustments to international regulatory standards. As the pandemic has become more successfully contained—at least in the global North—demands for emergency relief measures have given way to debates on the development of new standards to provide a more effective response during the inter-pandemic period and in the post-COVID era.
One challenging and inevitable debate concerns the role of China in such development at the intersection of intellectual property, international trade, and public health. Among the important issues are whether China will support the development of new international regulatory standards, whether its participation will create complications, how its role will evolve in the near future and how other countries should ...%SOURCENAMEESCAPED%, REVISION: A Critical Appraisal of the COVID-19 TRIPS Waiver, https://www.ssrn.com/abstract=3945304 (January 19, 2023)
In October 2020, India and South Africa submitted an unprecedented proposal to the WTO, calling for a temporary waiver to help combat the COVID-19 pandemic. This waiver aimed to suspend Sections 1, 4, 5 and 7 of Part II of the TRIPS Agreement and related enforcement obligations under Part III to facilitate the "prevention, containment or treatment of COVID-19." Lasting for a finite period to be determined by the General Council, the waiver covered not only patents, but also other forms of intellectual property rights.
This chapter offers a critical appraisal of the COVID-19 TRIPS waiver proposal, which was revised in May 2021 but was not adopted at the 12th WTO Ministerial Conference in Geneva in June 2022. It begins by identifying the arguments for and against the waiver, including those questioning its necessity, expediency and effectiveness. The chapter then explores the difficult decision on whether one should support the instrument's ultimate adoption. Breaking down the ...%SOURCENAMEESCAPED%, New: A Window of Opportunity to Regulate Addictive Technologies, https://www.ssrn.com/abstract=4286901 (December 20, 2022)
We spend large parts of our days on screens. Often more than we intend to. Screen time has increased steadily for over a decade, even before the COVID-19 pandemic. This is no coincidence. Reports leaking from Silicon Valley revealed that tech companies used manipulative designs to extend users’ time on screens. The internet economy’s business model relies on extending user time online to collect more data and target more advertising at users.
This Article aims to answer why regulators did not intervene for years to protect users, especially children, from the harms of excessive screen time. It does so by developing law and technology theory to examine what influences the creation and breadth of windows of opportunity to regulate new technologies. Specifically, it identifies three factors that can obstruct the creation of meaningful windows of opportunity: (i) the invisibility of the technology; (ii) rapid entrenchment of norms and business interests; and (iii) social and ...%SOURCENAMEESCAPED%, REVISION: Who Should Be Liable for the COVID-19 Outbreak?, https://www.ssrn.com/abstract=3697283 (December 19, 2022)
The Article systematically and critically evaluates the potential liability of various “suspects” for the physical, emotional, and economic losses arising from the COVID-19 pandemic: the country-of-origin (the People’s Republic of China), international organizations (particularly the World Health Organization), federal, state, and local governments and officers, businesses, and healthcare providers. It concludes that existing legal frameworks fail to provide an appropriate solution for victims, primarily because each of the potential defendants can easily evade liability. The Article then proposes a new hybrid (international-domestic) regime, inspired by the international framework for the compensation of victims of nuclear incidents and by the September 11th Victim Compensation Fund.%SOURCENAMEESCAPED%, New: The Catawba Digital Economic Zone: A Native American SEZ, https://www.ssrn.com/abstract=4283973 (December 13, 2022)
The Catawba Indian Nation recently announced the launch of a new kind of special economic zone (SEZ) on its reservation lands in the Carolinas piedmont region. The Catawba Digital Economic Zone (CDEZ) aims to provide “A Jurisdiction Built for the Fintech and Digital Asset Industry.” Federal and state law affirms that the Nation has original and exclusive jurisdiction over two categories of disputes: those arising from contracts to which the Nation or its members are a party and those arising under any civil code that the Nation issues for the conduct of businesses and individuals on its reservation. Together, these give the Nation sovereign authority over commerce, real or virtual, that takes place on Catawba lands. The Nation has invoked this power to create the CDEZ. The Catawba General Council, a democratic assembly of tribe members, recently enacted the a civil ordinance creating a legal framework specially designed to support e-banking, cryptocurrency, non-fungible tokens, and ...%SOURCENAMEESCAPED%, REVISION: The Incremental Development of the ASEAN-China Strategic Partnership for Intellectual Property, https://www.ssrn.com/abstract=2657358 (December 7, 2022)
In November 2000, a few years after the Asian Financial Crisis, Premier Zhu Rongji announced China’s interest in developing a free trade area with the Association of Southeast Asian Nations (ASEAN) within a decade. Since then, the two trading powers established a framework agreement as well as agreements on dispute settlement, trade in goods, trade in services and investment. They also developed memoranda of understanding on cooperation in a wide variety of areas, including agriculture, disaster management, health, information and communications technology, intellectual property, non-traditional security issues, sanitation and phytosanitation, standards, technical regulations and conformity assessment, and transportation. Taken together, these instruments helped build and strengthen the ASEAN-China Free Trade Area (ACFTA), which has served important economic, geopolitical and strategic goals.
This chapter documents the incremental efforts ASEAN and China have undertaken to ...%SOURCENAMEESCAPED%, REVISION: The Costs of Critical Habitat or Owl’s Well That Ends Well, https://www.ssrn.com/abstract=3691269 (November 16, 2022)
When the Fish and Wildlife Service designated land in four counties of Arizona as “critical habitat” necessary for the protection of the endangered cactus ferruginous pygmy‐owl, property values dropped considerably. When the owl was later delisted, property values jumped back up. We use difference-in-difference and synthetic control designs to identify this effect with Zillow property value data. The results provide an estimate of the costs of this critical habitat designation, and they are considerable, contrary to the regulators’ position that critical habitat protection imposes no incremental costs beyond the original endangered species listing.%SOURCENAMEESCAPED%, New: Pre-planning Transformation to Avoid Collapse--Is It Possible?, https://www.ssrn.com/abstract=4276783 (November 14, 2022)
Although societal collapse has been part of human history for millennia, a growing fear is that social, economic, technological, and environmental systems have become so globally interconnected, and their resilience so under threat, that the next collapse could be global in scale. Drawing from the collapse and social-ecological resilience studies literatures, we conceptualize two stages of collapse-avoidance governance—the pre-trigger adaptive governance stage during which policies draw on systems resilience to avoid the initiation of the collapse spiral, and the post-trigger transformative governance stage during which policies are implemented to steer out of the collapse spiral through fundamental change of systems regimes. Even under continued good collapse-avoidance governance it is possible for a variety of reasons that adaptive governance policies fail to avoid triggering of the collapse spiral, in which case policies to facilitate transformation will likely need to be ...%SOURCENAMEESCAPED%, REVISION: Catastrophic Uncertainty and Regulatory Impact Analysis, https://www.ssrn.com/abstract=4217679 (November 8, 2022)
Cost-benefit analysis embodies techniques for the analysis of possible harmful outcomes when the probability of those outcomes can be quantified with reasonable confidence. But when those probabilities cannot be quantified (“deep uncertainty”), the analytic path is more difficult. The problem is especially acute when potentially catastrophic outcomes are involved, because ignoring or marginalizing them could seriously skewing the analysis. Yet the likelihood of catastrophe is often difficult or impossible to quantify because such events may be unprecedented (runaway AI or tipping points for climate change) or extremely rare (global pandemics caused by novel viruses in the modern world). OMB’s current guidance to agencies on unquantifiable risks is now almost twenty years old and in serious need of updating. It correctly points to scenario analysis as an important tool but it fails to give guidance on the development of scenarios. It then calls for a qualitative analysis of the ...%SOURCENAMEESCAPED%, REVISION: Tragic Allocation Challenges in the COVID-19 Era, https://www.ssrn.com/abstract=3826983 (October 25, 2022)
Human society is facing its worst nightmare—a global pandemic caused by a highly infectious, resilient, and enigmatic virus. Questions that have occupied moral philosophers for ages transform into urgent practical predicaments for doctors, ethicists, and healthcare policymakers facing impossible situations. Societies, grown accustomed to the notion of plentifulness, are forced to grapple with the prospect of scarcity, particularly that of life-saving resources, such as ventilators, ICU beds, health human resources, medication, and vaccines. Leading health ethicists and other professionals have already penned articles addressing the reemerging dilemmas regarding the allocation of scarce life-saving resources. Although several papers discussing these matters have been published in the most prominent medical journals, they lacked a broader interdisciplinary perspective. In this Article, we illuminate the difficult questions ahead from a somewhat different angle – that of legal ...%SOURCENAMEESCAPED%, REVISION: Adapting Private Law for Climate Change Adaptation, https://www.ssrn.com/abstract=4245201 (October 21, 2022)
The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.
To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common law doctrines in climate adaption disputes has not yet taken off the way that the wave of high-profile lawsuits against sources of emissions causing climate change has, but it is inevitable that it will, making it ripe for attention in legal scholarship. The Article begins in Part I by highlighting several features of climate change and adaptation that will ...%SOURCENAMEESCAPED%, REVISION: Retribution Against Catholic Dioceses by Revival: The Evolution and Legacy of the New York Child Victims Act Claims Revival Window, https://www.ssrn.com/abstract=3796138 (October 20, 2022)
This article considers the evolution of limitations relief for time-barred child sexual abuse tort claims in New York culminating with the claims revival window enacted in 2019 as part of the New York Child Victims Act (NYCVA). The story of child sexual abuse litigation against Catholic dioceses and the legal and political history of the NYCVA exposes the important but largely unexplored balance of competing policy objectives that limitations laws strike. How child sexual abuse claimants achieved retribution by revival in the NYCVA reveals the fragility of limitations laws and the importance of coherent and consistent policy for revival of other types of time-barred claims in the future.%SOURCENAMEESCAPED%, New: Contextualizing Corruption: Foreign Financing Bans and Campaign Finance Law, https://www.ssrn.com/abstract=4248221 (October 18, 2022)
Current federal law prohibits foreign nationals (excluding permanent residents) from funding independent express expenditures. Bluman v. FEC, a decision of the U.S. District Court for the District of Columbia authored by then-Judge Brett Kavanaugh, upheld this prohibition by relying on cases excluding foreign nationals from participating in acts of democratic self-governance. The Supreme Court summarily affirmed Bluman. The decision, however, sits on shaky foundations. It relies on a series of “political community” cases which are themselves remnants of an earlier, more xenophobic age. As many commentators have noted, Bluman also is in significant tension with the sweeping condemnation of speaker-based distinctions announced by the Supreme Court in Citizens United v. FEC. Finally, the decision runs seriously afoul of the current Court’s general refusal to accept as legitimate (much less compelling) any state interest in regulating campaign speech on the basis of its effect on voters ...%SOURCENAMEESCAPED%, New: Climate-Induced Wildfires and Strengthening Resilience in Electricity Infrastructure, https://www.ssrn.com/abstract=4201501 (September 26, 2022)
In recent times, climate-induced disasters have overwhelmed many parts of the world destroying human and non-human communities and ecosystems. In this article, we focus on a unique type of infrastructure – electricity grids. We collate the latest climate science, relate it to electricity infrastructure and shine the light on the ways in which electricity infrastructure has been impacted by climate-induced wildfires in Australia and California. The two jurisdictions are comparable in many respects but illustrate different approaches to grid governance. They also conceptualize risk management differently, with Australia focusing on resilience as a standalone concept and California viewing resilience as only one aspect of climate change adaptation. We investigate the resilience strategies of both jurisdictions and identify the strategies, including technological, that are needed to build resilience in the sector.%SOURCENAMEESCAPED%, New: The Arkansas LL.M. Program: Forty Years of Leadership, https://www.ssrn.com/abstract=4226175 (September 25, 2022)
The University of Arkansas School of Law has been a leader in agricultural law education for over forty years through its innovative LL.M. Program in Agricultural and Food Law. This essay memorializes the history of this signature Program and charts its progress through the decades as agricultural law issues evolved and the discipline expanded to incorporate food law and policy. Arkansas has played a unique role in the development of both the discipline of agricultural law and the newer field of food law and policy. This essay chronicles that development.%SOURCENAMEESCAPED%, New: Relevance, Redundancy, and Regularization: Penalized Regression and the Quest for the ℓ₀ Quasi-Norm, https://www.ssrn.com/abstract=4188299 (September 13, 2022)
The vector of a linear model’s coefficients represents the clearest guide to causal inference. Collinearity among variables, however, undermines the interpretation of that model. A wildly large positive coefficient on one variable may be offset by a comparably large negative coefficient on a collinear variable. Neither the size nor the sign of those coefficients can be trusted.
Instability arising from collinearity and high variance can be remedied through regularized or penalized regression. These methods can select model features in graduated or categorical fashion. Enforcing ℓ2 (Ridge) and ℓ1 (Lasso) regularization can blunt or even eliminate irrelevant or redundant variables. Methods incorporating the ℓ1 norm can induce sparsity. The resulting vector of nonzero standardized coefficients delivers the ℓ0 quasi-norm as the best mathematical representation of the model’s causal inferences.
In addition to Lasso, Ridge, and ElasticNet (a hybrid of Lasso and Ridge), this ...%SOURCENAMEESCAPED%, New: No Country for Old Men (or Women): The Impact of Migration on Pension Funding Adequacy and Sustainability, https://www.ssrn.com/abstract=4185168 (August 11, 2022)
Retirement security is of paramount importance to working people. Adequate retirement income is also a leading concern for private and public pension systems. Pension funding adequacy measures the ability of pension scheme assets to meet a system’s liabilities. Pension managers accumulate assets primarily from employee contributions. Assets then grow through investment returns. Liabilities consist mainly of benefits promised and paid to pensioners.
In several countries, even within the European Union, a substantial percentage of the population receives pension income much lower than pre-retirement income or even the poverty line. At the same time, pension funding adequacy is threatened by reduced fertility in most European countries. Economic crises during the first quarter of the twenty-first century — the great recession, a sovereign debt crisis, the Covid-19 pandemic — have decreased individual and family income. These crises have reduced pension payments.
When the ...%SOURCENAMEESCAPED%, REVISION: Adapting To a 4°C World, https://www.ssrn.com/abstract=4053843 (August 8, 2022)
The Paris Agreement’s goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.%SOURCENAMEESCAPED%, New: Inequality and Regulation: Designing Rules to Address Race, Poverty, and Environmental Justice, https://www.ssrn.com/abstract=4178655 (August 5, 2022)
Inequality is a burning issue in our society but plays only a limited rule in the design of regulations. This article rejects arguments in favor of this neglect and forges a vision for moving forward. It argues in favor of features of the existing system that promote inequality: the controversial practice of using uniform valuations of life and health, regardless of income; and the use of disparate impact analysis in rulemaking. Rather than focusing on arguments for using regulation as a possible form of income redistribution or remedy for existing racial disparities, the article argues that justice requires devoting equal resources to prevent equal harms.
The reality is that low-income communities and communities of color often are the ones suffering the greatest harms (and not just by chance). By using far more granular approaches to determining who is exposed to risks and how vulnerable they are to harm, agencies could do far more to implement this principle, identify the ...%SOURCENAMEESCAPED%, New: Catastrophic Uncertainty and Regulatory Impact Analysis, https://www.ssrn.com/abstract=4170257 (July 29, 2022)
Cost-benefit analysis embodies techniques for the analysis of possible harmful outcomes when the probability of those outcomes can be quantified with reasonable confidence. But when those probabilities cannot be quantified (“deep uncertainty”), the analytic path is more difficult. Decision science does not yet provide consensus solutions to the analysis of uncertain catastrophic outcomes. But it has advanced beyond the vague guidance provided by OMB since 2003, which may not have been state-of-the-art even then. This paper surveys these developments and explains how they might best be incorporated into agency practice in considering possible catastrophic risks%SOURCENAMEESCAPED%, New: Billing Judgment, https://www.ssrn.com/abstract=4172409 (July 27, 2022)
In most situations, when a lawyer sends a bill to a client, the client pays the fees. When the client believes that a fee or expense is unreasonable, the client will ask for reductions. Conscientious lawyers review a bill before sending it to the client, exercising judgment in terms of what fees and expenses are reasonable. But in bankruptcy cases, the estate pays the court-appointed professionals’ fees and expenses out of unsecured funds or from a cash collateral carveout. Thus, the responsibility for scrutinizing the fees and expenses falls not to a particular client, but to the court, per 11 U.S.C. § 330. The debtor-in-possession isn’t particularly motivated to pay attention to line items on a bill, especially in a bet-the-company case. Moreover, most debtors in possession aren’t sure what activities are necessary or which level of professional should be performing which tasks. Creditors might pay attention to the overall burn rate of fees, but often, the cost of objecting to a ...%SOURCENAMEESCAPED%, REVISION: The Specter of Malpractice: When Law Firm General Counsel and Risk Management Professionals Are Confronted with Potential Malpractice Claims and Ethics Violations, https://www.ssrn.com/abstract=3932534 (July 26, 2022)
Every day, law firm general counsel and other law firm risk management professionals face a very practical, very vexing problem. The problem is what to do when hearing that a serious ethical mistake or impropriety may have occurred—but without any concrete confirmation that something problematic has, in fact, happened. This essay discusses the most important initial steps and questions that the firm’s general counsel or other risk management professional must address in this confounding situation where the “specter of malpractice” is present. We call this the “specter of malpractice” because a malpractice claim has not yet fully materialized (and it is not entirely clear that one will materialize), but enough risk factors have surfaced to capture the risk management team’s attention. Included among these important and difficult questions are:
• Could this type of mistake constitute an ethics violation or a future malpractice claim?
• What duty does a firm’s general ...%SOURCENAMEESCAPED%, New: Common Law Zones: An Illustrated Review, https://www.ssrn.com/abstract=4141500 (June 28, 2022)
Governments across the globe have created special jurisdictions offering common law rules and practices imported from abroad, the better to attract foreign investment and stimulate local economic growth. Four such common law zones have launched in recent years: the United Arab Emirates’ Dubai International Financial Centre, in 2004; the Abu Dhabi Global Market, also in the UAE, in 2015; Kazakhstan’s Astana International Financial Centre, in 2018; and the first Honduran ZEDE, in 2020. Each of these common law zones has faced the challenge of transplanting foreign rules and practices into a jurisdiction set apart from that of its host government, which instead follows some mix of Napoleonic Civil Code, Sharia, and/or Soviet legal traditions. The first three zones have answered that challenge by importing the common law of England (and sometimes also Wales) and entrusting its interpretation to courts that, while set apart from the local legal system, remain under the control of ...%SOURCENAMEESCAPED%, REVISION: From Transparency to Justification: Toward Ex Ante Accountability for AI, https://www.ssrn.com/abstract=4099657 (June 21, 2022)
At present, policymakers tend to presume that AI used by firms is legal, and only investigate and regulate when there is suspicion of wrongdoing. What if the presumption were flipped? That is, what if a firm had to demonstrate that its AI met clear requirements for security, non-discrimination, accuracy, appropriateness, and correctability, before it was deployed? This paper proposes a system of “unlawfulness by default” for AI systems, an ex-ante model where some AI developers have the burden of proof to demonstrate that their technology is not discriminatory, not manipulative, not unfair, not inaccurate, and not illegitimate in its legal bases and purposes. The EU’s GDPR and proposed AI Act tend toward a sustainable environment of AI systems. However, they are still too lenient and the sanction in case of non-conformity with the Regulation is a monetary sanction, not a prohibition. This paper proposes a pre-approval model in which some AI developers, before launching their systems ...%SOURCENAMEESCAPED%, REVISION: The Legal Industry's Second Chance to Get It Right, https://www.ssrn.com/abstract=3773197 (May 12, 2022)
The legal industry's reaction to the COVID-19 pandemic and how it's response can drive the recovery following the COVID-19 pandemic.%SOURCENAMEESCAPED%, New: Some Observations on Separation of Powers and the Wisconsin Constitution, https://www.ssrn.com/abstract=4096476 (May 3, 2022)
In recent years the Wisconsin Supreme Court has decided several high-profile cases concerning the separation of powers under the state constitution. In the abstract, questions concerning the separation of powers do not seem inherently partisan, largely because the partisan balance of government will shift over time. Yet, as has been the case with many of its recent decisions, the justices’ votes have broken along what most observers regard as partisan lines, and the opinions have featured heated prose including accusations of result orientation and methodological illegitimacy.
This article is the initial product of an effort to read, and attempt to synthesize, the entirety of the Wisconsin Supreme Court’s output relating to separation of powers dating back to the state’s founding. It advances no single thesis and makes no grand claims. It instead seeks to identify some threads running through the caselaw, including with respect to the court’s approaches to interpreting the ...%SOURCENAMEESCAPED%, New: Distributed Self-Government in Protocol Communities: An Introduction and Index of Examples, https://www.ssrn.com/abstract=4058722 (March 20, 2022)
We live in exciting times for governance. Large and powerful institutions used to come in only a few standardized types, such as nation-states and commercial corporations. But the advent of distributed organizations, built on computer code and fueled by digital cash, has supercharged the evolution of social coordination systems. Richly capitalized global communities worth hundreds of billions of U.S. dollars now spring up seemingly overnight. They die just as quickly, too—taking high hopes and huge fortunes with them. This article introduces the fascinations of distributed-protocol communities and analyzes the self-governance of several of the largest and most innovative. It defines seven measures of governance and grades the performance of each of ten protocols on a scale of safe, caution, or danger. The resulting Distributed Governance Index organizes and summarizes the latest developments in the evolution of distributed-protocol communities and provides a framework for continuing ...%SOURCENAMEESCAPED%, New: Insulin Federalism, https://privwww.ssrn.com/abstract=3869876 (June 30, 2021)
In April 2019, U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb decreed interchangeable insulin poised for market entry within the next few years. This makes insulin the first biologic to achieve interchangeable biologic status. Insulin, relatively “simpler” than more complex biologics and with a substantial amount of real-world evidence supporting safety and efficacy, is a natural choice for interchangeable biologic status. The Association for Accessible Medicines (AAM) notes that brand-to-brand switches of insulin products regularly occur at the direction of providers, and “the risk of diminished safety or efficacy from a transition is minimal or not present” due to the nature of insulin products. Interchangeable status for insulin promises a tremendous impact on costs because it allows insulin to be dispensed at retail pharmacies, subject to state interchangeable biologic substitution laws.
The FDA has regulated insulin since it was first used to ...%SOURCENAMEESCAPED%, New: Private Insurance Limits and Responses, https://privwww.ssrn.com/abstract=3808304 (March 23, 2021)
The COVID-19 pandemic exposed a number of existing flaws in the United States’ patchwork approach to paying for and providing access to medical care. Shelter-in-place orders, social distancing, and other public health strategies employed to address the pandemic spawned a global recession, causing rapid and high unemployment rates in many countries. The U.S. unemployment rate peaked in April 2020 at 14.7%, higher than in any previous period since World War II. The United States has long hewed an anachronistic policy of relying heavily on private employers to provide health insurance to a substantial portion of the population. Those who are not eligible for employer-sponsored insurance (ESI) must fend for themselves in the non-group market, unless they qualify for government-sponsored insurance or safety net programs. Companion Chapters in this volume describe the COVID-related challenges for Medicaid and the uninsured, while this Chapter focuses on the private insurance market. The ...%SOURCENAMEESCAPED%, New: International Tax Transparency, https://privwww.ssrn.com/abstract=3753715 (February 8, 2021)
An imbalance exists between tax authorities and taxpayers when it comes to the latter’s financial information. Taxpayers have the information they need to calculate their tax liabilities and file their returns. Tax authorities, on the other hand, tend to have little beyond what is in the tax return. Thus it can be hard for tax authorities to detect non-compliance. The solution? Pass laws to force the taxpayer (or a third party) to provide more and better information to tax authorities. In other words, increase tax transparency. This Article discusses broad international trends that have been the principal catalyst for tax transparency measures such as the Foreign Account Tax Compliance Act, the Common Reporting Standard and Country-by-Country Reporting, which try to inhibit offshore tax evasion and non-compliant international tax avoidance. In a world where data is the “new oil,” tax advisers are increasingly called on to promote and protect their clients’ interests by advising on ...%SOURCENAMEESCAPED%, REVISION: Debunking Intellectual Property Myths: Cross-Cultural Experiments on Perceptions of Property, https://privwww.ssrn.com/abstract=3312822 (January 28, 2021)
For decades the prevailing view in the United States and many Western countries has been that China does not appropriately respect intellectual property rights. These beliefs lie at the heart of President Donald Trump’s current trade war with China. Despite substantial geopolitical debate over differences between American and Chinese attitudes towards intellectual property rights, and despite the critical effects that such attitudes have on international economic markets and the function of the intellectual property system, empirical evidence of these attitudes is largely lacking. This Article presents original survey and experimental research that explores cross-cultural differences between American and Chinese attitudes towards intellectual property rights, personal property rights, and real property rights.
The results of the studies are somewhat counter-intuitive. First, Chinese participants are found to have more consistent preferences towards different types of property ...%SOURCENAMEESCAPED%, REVISION: COVID-IP: Staring Down the Bayh-Dole Act with 2020 Vision, https://privwww.ssrn.com/abstract=3599621 (January 27, 2021)
As the human and economic toll of the COVID-19 coronavirus steadily escalates, there is extreme uncertainty about the timeframe for preventing, detecting, and treating it. There is also concern about the eventual costs associated with approved products and the barriers to access created by the patent system. Industry, government, and academic collaborations are leading the charge in the discovery race, partnerships which have triggered calls for the activation of the federal governments so-called “march-in rights” established in the Bayh-Dole Act. The Bayh-Dole Act dramatically altered the patent protections available to federally funded academic institutions and scientists and initiated a 40-year debate over appropriate incentives for innovation and the scope of the government’s authority.
The COVID-19 coronavirus pandemic provides an opportunity to reflect on the purpose and impact of the historic legislation as well as contemplate the implications for our public ...%SOURCENAMEESCAPED%, REVISION: 21st Century Citizen Pharma: The FDA & Patient-Focused Product Development, https://privwww.ssrn.com/abstract=3131857 (January 27, 2021)
Perpetual debate regarding the delicate balance between access and innovation and the protection of the public health and safety dominate discussions of the United States Food and Drug Administration (FDA). Established chiefly as a command and control federal administrative agency, iterative changes in legislation have shaped the FDA’s activity in drug, biologic, and medical device regulation over the course of the last one-hundred plus years. The most recent fundamental reframing of the agency’s authority and directive presented itself in the 21st Century Cures Act, reflecting an important role for patient perspectives in the regulatory process. This Article explores recent developments in patient-focused product development efforts at the FDA and offers modest insights on the increasing role of patients, and patient advocacy groups, in agency decision-making. The Article terms this era “21st century citizen pharma.”%SOURCENAMEESCAPED%, REVISION: Three Framings of 'Faster' at the FDA and the Federal Right to Try, https://privwww.ssrn.com/abstract=3599624 (January 27, 2021)
In May 2018, Congress passed the controversial Right to Try (“RTT”) Act, creating a process for terminally ill patients to request access to investigational drugs. The federal RTT Act is not the first legal mechanism that fosters quicker access to investigational drugs. This new right to try is distinct from existing pathways created by law, regulation or federal administrative agency policy. Various mechanisms facilitated by the U.S. Food and Drug Administration (“FDA”) are significantly more substantial and important in the context of “faster” access to therapeutic products. These mechanisms lie along a spectrum of product development spanning investigational new drug status to postmarket studies and surveillance. I categorize these mechanisms into three areas: expansion, acceleration, and extension. The federal right to try can be characterized as an expansion, expanding patient access to investigational new drugs as an alternative mechanism to the FDA’s long-standing expanded ...%SOURCENAMEESCAPED%, New: Tax Wars: How to End the Conflict over Taxing Global Digital Commerce, https://privwww.ssrn.com/abstract=3676641 (October 7, 2020)
In the last two years, dozens of governments have proposed or implemented unilateral tax measures to tax foreign-based technology companies. The new tax innovations include special withholding taxes, diverted profit taxes, minimum taxes, and digital services taxes. The rise of these unilateral measures threatens an international tax “war” among governments that could stifle new business models or even the spread of the global digital economy. This Article reviews the failure of international reform efforts to constrain aggressive international tax planning within the digital economy, and how the global digital tax conflict masks a growing dissatisfaction with how to tax value associated with global transactions. The best way to address these global developments is through a coordinated solution that creates an economic presence test (a Quantitative Economic Presence Permanent Establishment) and modifies the division of tax revenues between countries by allocating residual profits to ...%SOURCENAMEESCAPED%, REVISION: Private Insurance Limits and Responses, https://privwww.ssrn.com/abstract=3675889 (August 21, 2020)
The COVID-19 pandemic exposed a number of existing flaws in the United States’ patchwork approach to paying for and providing access to medical care. Shelter-in-place orders, social distancing, and other public health strategies employed to address the pandemic spawned a global recession, causing rapid and high unemployment rates in many countries. The U.S. unemployment rate peaked in April 2020 at 14.7%, higher than in any previous period since World War II. The United States has long hewed an anachronistic policy of relying heavily on private employers to provide health insurance to a substantial portion of the population. Those who are not eligible for employer-sponsored insurance (ESI) must fend for themselves in the non-group market, unless they qualify for government-sponsored insurance or safety net programs. Companion Chapters in this volume describe the COVID-related challenges for Medicaid and the uninsured, while this Chapter focuses on the private insurance market. The ...%SOURCENAMEESCAPED%, New: Tracking Transnational Terrorist Resourcing Nodes and Networks, https://privwww.ssrn.com/abstract=3601189 (June 9, 2020)
In light of persistent terrorist attacks in Europe and elsewhere, the study of terrorist resourcing and financing has attracted renewed attention. How are terrorists’ networks financed? Who raises the financial “resources,” and how do they transfer them across borders? How does the global financial industry facilitate or impede these transfers? Answers to these and other questions can help law enforcement investigate, disrupt, and neutralize cross-border terrorist resourcing. Evidence and data on this phenomenon is scarce, of questionable quality, irreplicable, and can be difficult to come by. This study is the first comprehensive effort to collect, code, analyze, and compare available open-source case law data on transnational terrorist resourcing networks. Under the study’s methodology, the conventional yet strict focus on financing is broadened to resources, which includes forms other than cash, including trade-based fraud and online social networks. The analysis reveals common ...