Jurisdynamics Network authors on SSRN

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%SOURCENAMEESCAPED%, REVISION: מהפך או מפח? סיפורו של חוק פיצויים לנפגעי תאונות דרכים (A Misrepresented Reform: The Story of the Road Accidents Victims' Compensation Act), https://www.ssrn.com/abstract=882860 (May 22, 2018)

Hebrew Abstract: המניע הרשמי לחקיקת חוק פיצויים לנפגעי תאונות דרכים, תשל"ה-1975, היה מניע סוציאלי. בהתאם לתפיסה המסורתית, המוצגת בחלקו הראשון של המאמר, החוק נועד להבטיח פיצוי מהיר ונאות לכל אדם שנפגע בתאונת דרכים. הוויתור על יסוד האשמה, הרחבתה של חובת הביטוח והקמת "קרנית" היו אמורים להפוך את החזון למציאות. כמו כן, כדי להקל על הנפגע את סבלו וכדי למנוע לחץ לפשרה מצד חברות הביטוח העניק המחוקק לכל נפגע זכות לתשלום תכוף, המשולם עוד לפני סיומו של ההליך. אגב הגשמת הייעוד הסוציאלי היה החוק אמור לתרום להפחתת העומס על מערכת המשפט. חלקו השני של המאמר מראה, כי הצגת חוק הפיצויים כהסדר מהפכני המבטיח פיצוי מספק לנפגעים שלא היו זכאים לסעד בלעדיו או שהיו יכולים לזכות בפיצוי חלקי בלבד היא, למצער, מוגזמת. מנסחי החוק ומפרשיו הפריזו בחשיבות הוויתור על דרישת האשמה להרחבת חוג הנפגעים שהיו יכולים לזכות בפיצוי בלעדיו לא רק מפני שהתייחסו לדרישה זו כאל מהמורה גדולה יותר מכפי שהייתה באמת בדרכו של תובע פוטנציאלי, אלא גם משום שיצרו מצג מוטעה ומטעה שלפיו משטר האחריות המוחלטת מגשים את האידיאל של "פיצוי לכל ...
%SOURCENAMEESCAPED%, REVISION: Israel (2012 Report), https://www.ssrn.com/abstract=2494559 (May 20, 2018)

This is the Israeli report to the Tort and Insurance Law Yearbook. It critically evaluates notable developments which took place in Israeli tort law in 2012. Part A discusses legislation and legislative bills in various areas, including state liability, compensation and assistance following the cancellation of a flight or a change in its conditions, road accidents victims' compensation, and disclosure of internet user information in tort litigation. Part B discusses 2012 Supreme Court decisions on wrongful life and wrongful birth, the truth defense in defamation law, the evidentiary weight of acquittal in a criminal procedure, the applicability of the contributory negligence defense in an action for deceit, the interrelation between tort law and property law, a tort-based duty to disclose an anonymous user's identity, and the scope of the medical duty to disclose information. Part B also analyzes recent developments concerning a uniquely Israeli head of damages - "infringement of ...
%SOURCENAMEESCAPED%, REVISION: Israel (2011 Report), https://www.ssrn.com/abstract=2163130 (May 20, 2018)

This is a pre-edited draft of the Israeli report to the Tort and Insurance Law Yearbook. Because the last Israeli report was published in the 2002 Yearbook, this chapter covers a longer than usual period of time. It critically evaluates notable developments in Israeli tort law. The first Part focuses on recent and proposed legislative reforms. It discusses, inter alia, the proposed Israeli Civil Code, tort liability of the state, public authorities, and public servants, environmental legislation, dignitary torts (infringement of privacy, defamation), and the Prevention of Harm to the State of Israel through Boycott Act. The second Part discusses notable developments in case law under the following headings: the interplay between tort law and criminal law, defamation, liability for relational losses (economic and emotional), causation, exceptions to the rule of restitutio in integrum, and damages for personal injuries. The third Part reviews important contributions to Israeli tort law ...
%SOURCENAMEESCAPED%, REVISION: Crowdfunding Civil Justice, https://www.ssrn.com/abstract=3041129 (May 20, 2018)

Crowdfunding—the aggregation of numerous but modest individual contributions through specialized online platforms—is a relatively new finance method. In the last few years, it has started its incursion into the realm of civil litigation funding. Three unrelated events, which took place in different jurisdictions in 2017, demonstrate this evolving trend and its potential impact. In the United States, the Southern Poverty Law Center included the political activist Maajid Nawaz on a list of “anti-Muslim extremists.” Nawaz launched an independent campaign for crowdfunding a defamation action against the organization. In the United Kingdom, a wildlife protection organization brought a defamation action against Andy Wightman, a Member of the Scottish Parliament, over his blog posts about the plaintiff’s practices. Wightman raised more than £60,000 through a British crowdfunding platform to fight this lawsuit. In Israel, the acclaimed journalist Igal Sarna was found liable in defamation for ...
%SOURCENAMEESCAPED%, REVISION: Income-Dependent Punitive Damages, https://www.ssrn.com/abstract=2938364 (May 20, 2018)

Punitive damages have been very salient in the media, preoccupied appellate courts, and fascinated scholars for decades. But although their availability seems undisputed in most common law jurisdictions, their measure remains controversial. In particular, it is unclear whether and how courts and juries should take the defendant’s financial condition into account in assessing punitive damages. The Article puts forward and defends an innovative yet simple method for incorporating this factor into the calculation. Our proposal is based on an adaptation of a criminal law model, known as “day-fines,” which has been primarily used in European and Latin-American legal systems. In brief, if the gravity of the wrong seems to justify an extra-compensatory award, the scope of punitive damages will be determined in several steps. First, the court must determine the gravity of the wrong and translate it into corresponding “severity units.” Next, the court must assess the “unit value”—the ...
%SOURCENAMEESCAPED%, REVISION: Strike-Out, https://www.ssrn.com/abstract=2772053 (May 20, 2018)

The article provides a structured efficiency-oriented response to a highly important question which has been neglected by scholars for decades: should employees and their labor union, involved in a strike against a particular employer, be liable for ensuing third-party harms? Assume, for example, that the Albuquerque firefighters stage a strike for a wage increase. Just then, a fire breaks out and destroys an industrial laundry facility and a surreptitious underground workshop, causing temporary evacuation of adjacent businesses. Should the proprietors have a cause of action against the strikers for property damage and economic loss? The article puts forward a novel framework for assessing third-party claims, incorporating two fundamental principles. Under the first, which I call “the principle of deference,” tort law should not normally undermine a specific legal regime governing the allocation of power in the concrete case, particularly if the applicable regime has been ...
%SOURCENAMEESCAPED%, REVISION: 'He Said, She Said,' With A Twist, https://www.ssrn.com/abstract=2097522 (May 20, 2018)

Many studies have explored the effect of judges’ characteristics, such as gender or ethnicity, on their own decisions and perceptions. For example, some studies focused on the relationship between judges’ gender and their judgments on sexually based offenses. None has studied whether such characteristics affect people’s perceptions of the judgments. This question is important, inter alia, because the frequently heard argument that the judiciary must be ‘representative’ or ‘reflective of society’ is often linked to the assumption that representation increases public trust in the judiciary. Representation leads to trust only if members of a specific group have a greater trust in other members of the same group. Alas, empirical studies have not yet examined whether trust is actually dependent on judges’ identities. It this article, we wish to study whether men and women perceive judgments concerning gender-charged events differently, especially in view of the judge’s gender. More ...
%SOURCENAMEESCAPED%, REVISION: Who Should Be Liable for Online Anonymous Defamation?, https://www.ssrn.com/abstract=2671399 (May 20, 2018)

The paper discusses the question of liability for online anonymous defamation. Its main theoretical contribution lies in recognizing that the legal response to online anonymous defamation should be viewed and analyzed as a combination of two components. The first is the ability (or inability) to bring an action against the platform enabling the defamatory statement, which we call “the content provider.” Such an action may require modification of substantive law, namely recognition of some sort of indirect liability. The second component is the ability (or inability) to bring an action against the anonymous user, whom we call “the speaker.” Such an action does not require modification of substantive defamation law, but entails adaptation of procedural law, namely establishing a de-anonymization process. Because this framework provides two potential defendants, and each can be either liable or non-liable, there seem to be four possible liability regimes: (1) neither the speaker nor the ...
%SOURCENAMEESCAPED%, REVISION: Getting Incentives Righter, https://www.ssrn.com/abstract=2660317 (May 20, 2018)

This book review critically evaluates Robert Cooter & Ariel Porat's "Getting Incentives Right" (Princeton University Press, 2014). The review makes four general arguments, each addresses the book from a different angle. First, the book provides universally applicable theoretical insights, but limits the critical evaluation of existing law, and the consequent reform proposals, to the United States. It thereby gives up accuracy, vigor, and audience. While this observation applies to the entire book, I provide several examples for the possible benefits of a comparative legal perspective. Second, C&P seem to miss problematic incentives that implementing their proposals might entail. Specifically, some of the most innovative proposals for reform involve upward or downward adjustments of the scope of damages for the purpose of securing injurers' (and sometimes also victims') efficient conduct. I show that in adjusting damages to properly incentivize injurers, these reforms may also ...
%SOURCENAMEESCAPED%, REVISION: Pluralistic Legal Theories: In Search of a Common Denominator, https://www.ssrn.com/abstract=2601591 (May 20, 2018)

This Essay embarks on a meta-theoretical project to provide a unifying philosophical framework for pluralistic legal theories. Put differently, it seeks to identify a structural common denominator for all pluralistic theories of law, with a particular emphasis on private law (torts and contracts). The Essay first rejects the notion of complementarity coined by Nobel Prize laureate Niels Bohr, and applied to legal theory by Izhak Englard. It then advocates the allegedly Thomist aphorism hominem unius libri timeo (“I fear the man of a single book”), and connects it to Isaiah Berlin’s renowned distinction between the hedgehog and the fox.
%SOURCENAMEESCAPED%, REVISION: Taking Turns, https://www.ssrn.com/abstract=2589830 (May 20, 2018)

Two siblings jointly inherit their late father’s rocking chair. The chair has principally sentimental and no real economic value; it cannot be physically divided between them, and selling it to distribute the proceeds will compensate neither for the sentimental loss. What, then, should become of the disputed property? In a self-confessed “strange” decision in the McDowell case, the Surrogate’s Court of New York ordered that the two siblings take possession of the chair alternately for six-month periods; and that when one passed away, the other would obtain exclusive possession. An allocation method based on alternating enjoyment (or suffering) is commonly known as “rotation,” or more colloquially “taking turns.” Yet despite its manifestation in different legal contexts, and its considerable potential, rotation has been almost neglected by legal theorists. This Article makes the first attempt to delineate and exemplify the proper boundaries of this method’s utilization by and under ...
%SOURCENAMEESCAPED%, REVISION: Liability for Online Anonymous Speech: Comparative and Economic Analyses, https://www.ssrn.com/abstract=2448706 (May 20, 2018)

This is a pre-edited draft of of an article presented in the special session of the Annual Conference on European Tort Law. The article examines various models for handling the problem of online anonymous defamation from comparative and economic perspectives. The comparative analysis reveals four main paradigms. The US model bars content providers’ indirect liability, but facilitates identification of the speaker. The Israeli model recognises content providers’ fault-based liability but does not provide procedural tools for identifying the speaker. The EU framework enables the victim to request identification of the speaker, and at the same time bring an action against the content provider. Although there is variance among Member States, this model seems to comply with the relevant Directives and European court decisions. The recently-adopted English model (‘residual indirect liability’) enables the victim to pursue a claim against the speaker and, if the speaker is unavailable, ...
%SOURCENAMEESCAPED%, REVISION: 'May the Odds Be Ever in Your Favor': Lotteries in Law, https://www.ssrn.com/abstract=2494550 (May 20, 2018)

Throughout history, lotteries have been used in numerous legal contexts. However, legal theorists have rarely discussed the role of randomization in law, and have never done so systematically and comprehensively. Against this backdrop, the Article has three underlying goals. First, it fills the aforementioned gap by providing a theoretical framework for assessing lotteries’ role in legal resource allocation. It innovatively integrates fairness and efficiency concerns, critically evaluating and applying insights from various disciplines, including economics, philosophy, political science, psychology, and theology. This multidisciplinary framework — of unprecedented breadth and complexity — provides lawyers and policymakers with a powerful analytical tool for assessing the possible use of random allocation schemes. Second, the Article recognizes the importance and highlights the pervasiveness of lotteries in law. It does so by analyzing and appraising the historical and present role of ...
%SOURCENAMEESCAPED%, REVISION: Imbalances of Power in ADR: The Impact of Representation and Dispute Resolution Method on Case Outcomes, https://www.ssrn.com/abstract=2343083 (May 20, 2018)

In recent decades, Alternative Dispute Resolution processes have gained worldwide recognition, a growing role in legal practice, and academic attention. Despite their professed advantages they have also faced fierce opposition. In a seminal article, Owen Fiss argued that ADR exacerbates imbalances of power between the parties. But while the theoretical argument has been widely discussed and developed in academic literature, empirical evidence has remained scant. This Article purports to bridge the gap. It empirically examines the impact of two seemingly relevant factors in inherently imbalanced legal disputes: representation and dispute resolution method. Arguably, professional representation of weaker parties may reduce the effects of inequality, whereas less formal, transparent and adjudicatory processes may exacerbate them. The Article focuses on small claims settlement conferences, using the Israeli labor courts system as a test case. It examines the impact of representation on ...
%SOURCENAMEESCAPED%, REVISION: A Group's a Group, No Matter How Small: An Economic Analysis of Defamation, https://www.ssrn.com/abstract=2277697 (May 20, 2018)

Consider the following case (Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1101 (Fla. 2008)): A Jews-for-Jesus bulletin publishes a report, falsely implying that a Jewish woman became "a believer in the tenets, the actions, and the philosophy of Jews for Jesus." Does this publication constitute defamation? What makes a statement defamatory? Should defamatoriness be determined in accordance with the views of the general non-Jewish community, with those of the Jewish minority, or with a normative ethical commitment? Our Article aims to provide the answers. Part I demonstrates that the definition of defamatoriness in common law jurisdictions is essentially empirical, and distinguishes between the two leading tests — the English test and the American test. Section A shows that English courts have embraced the general community test, whereby a statement is defamatory if considered so by the public at large. The traditional English test, which relies on empirical observations, at least ...
%SOURCENAMEESCAPED%, REVISION: Queues in Law, https://www.ssrn.com/abstract=2147333 (May 20, 2018)

"First in, first out" (FIFO) is an allocation principle, whereby resources are allocated to interested parties in their order of entry. FIFO and its close relatives, "first come, first served" and "first-in-time, first-in-right," have numerous legal applications. These range from traditional private law disputes concerning ownership, secured transactions, and nuisances, through more extensive allocations, as in the cases of employees’ seniority benefits, mass torts, and military discharge, all the way to social and organizational practices regulated by law, such as organ allocation policies, event ticket sales, and data transfers over the internet. Yet although FIFO is an omnipresent and overarching principle in law, it has never been recognized or analyzed as such in legal literature. The Article aims to fill this surprising theoretical gap. Its purpose and novelty are threefold. First, it constructs an innovative and comprehensive theoretical framework — integrating fairness and ...
%SOURCENAMEESCAPED%, REVISION: Good Faith Performance, https://www.ssrn.com/abstract=1988914 (May 20, 2018)

This Article aims to unveil and undermine one of the most resonant truisms in contract law. It shows that a dominant criterion used by courts and academics in applying the omnipresent and overarching principle of good faith is essentially flawed. Our argument is innovative in at least four respects. First, it uncovers a common denominator of the major accounts of good faith performance in case law and academic literature, namely resort to community standards. While not unheard of, this test has never been recognized or addressed as a unifying thread of the various theories. Second, the Article distinguishes two forms of community standards: common views of morality and common practice. This has never been done before in this context. Third, the Article fiercely challenges the common denominator by proving that all definitions of community standards are either theoretically unsound or impractical. This conclusion undermines the validity of judicial practice and contemporary legal ...
%SOURCENAMEESCAPED%, REVISION: Book Review: Compartmentalization and Harmonization of Tort Law in Europe - Damage Caused by GMOs as a Test Case, https://www.ssrn.com/abstract=1973684 (May 20, 2018)

Very few law books are futuristic in the sense that they purport to address imminent risks that have not yet materialized in a notable manner. The recently published Damage Caused by Genetically Modified Organisms, edited by Professor Bernhard Koch, embarks upon such a mission. The extensive volume focuses on damage to persons or property, and environmental harm, thereby complementing a previous study published in the same series three years ago, which dealt with purely economic losses. The book consists of national reports from twenty European and four non-European jurisdictions. The method is similar to that employed in many comparative projects: a standard questionnaire was circulated to and answered by all reporters, and a comparative analysis was compiled by the editor. Supplementary reports encompass applicable international environmental law, choice of law questions in cross-border scenarios, an insurance perspective, and economic analysis of the main issues. Although the ...
%SOURCENAMEESCAPED%, REVISION: Differential Preemption, https://www.ssrn.com/abstract=1838245 (May 20, 2018)

Preemption is a constitutional law doctrine whereby state and local authorities are deprived of their powers in particular areas governed by federal law. In setting the boundaries of state sovereignty within a federal polity, it constitutes one of the pillars of the federal political structure. Viewed differently, preemption is one of the strongest legal unification methods. Recent cases like Williamson v. Mazda and Bruesewitz v. Wyeth highlight the growing salience of preemption in contemporary legal discourse. The Article focuses on a highly important and distinctive niche in preemption debate, namely the interrelation between federal maritime law and state law. It offers an original theoretical framework for maritime preemption analysis, which supports a judicial heuristic standing in stark contrast to that advocated by prominent scholars as the late Professor David Currie. Although maritime preemption remains the source of inspiration and the focal point of the Article, the ...
%SOURCENAMEESCAPED%, REVISION: The Deepwater Horizon Oil Spill and the Limits of Civil Liability, https://www.ssrn.com/abstract=1685963 (May 20, 2018)

The article, which follows up on my recently published work, uses the unprecedented disaster in the Gulf of Mexico as an opportunity to critically evaluate the law pertaining to civil liability for oil pollution before and after the enactment of the Oil Pollution Act. This topic is analyzed as a derivative of a more general concern, namely the internal harmony of civil liability regimes. The article unveils a general incongruity in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation, and examines whether subsequent statutory reform has eliminated the problem in the limited context of marine oil pollution, using the Deepwater Horizon incident as a test case. Part I systematically discusses pre-OPA law. Part II explains why pre-OPA maritime law gave rise to incongruity on the justificatory level, delineates the contours of the problem, and proposes a conceptual framework for resolution. Part III examines whether the enactment of the OPA has ...
%SOURCENAMEESCAPED%, REVISION: Economic Loss, Punitive Damages, and the Exxon Valdez Litigation, https://www.ssrn.com/abstract=1611566 (May 20, 2018)

On March 24, 1989, an Exxon supertanker ran aground on Bligh Reef off the Alaskan coast, spilling millions of gallons of crude oil into Prince William Sound. The spill was probably the worst environmental disaster in American history, and sparked unusually extensive and complex litigation, as well as a vast academic literature. But the natural focus on concrete legal and procedural questions has left at least one abstract juridical puzzle unsolved - one that goes to the very foundation of tort liability. The article uncovers a fundamental yet unnoticed inconsistency in American land-based and maritime tort law that surfaced following the unprecedented spill. The understandable emphasis on the award of punitive damages in recent literature has overshadowed an extremely important part of the Exxon Valdez litigation, namely the wholesale rejection of numerous claims for purely economic loss by the federal district court in the early 1990s. Thus, on the one hand, liability for economic ...
%SOURCENAMEESCAPED%, REVISION: Stealing Sunshine, https://www.ssrn.com/abstract=1611558 (May 20, 2018)

“Stealing Sunshine” is a trial advocacy technique whereby an attorney discloses, in the opening statement or on direct examination of a witness, information that seems advantageous to the opponent’s case, before the latter elicits or reveals it, in order to mitigate its expected impact on fact-finders. Our study is the first to examine the efficacy of this tactic, both theoretically and empirically. Given the primacy of our work, we drew on existing literature on a related courtroom technique commonly known as “stealing thunder,” which is - in a sense - the mirror image of the tactic under scrutiny. We hypothesized that stealing sunshine, just like stealing thunder, would be helpful to a litigant’s case. We experimentally tested the efficacy of the tactic when used by the prosecution in a criminal case. The results support our hypothesis. We found, inter alia, that fact-finders’ assessments of the measure of guilt and of the appropriate level of punishment in the Stealing Sunshine ...
%SOURCENAMEESCAPED%, REVISION: Israel, Palestine and the ICC, https://www.ssrn.com/abstract=1391963 (May 20, 2018)

This Article provides a critical assessment of theoretical and practical arguments for judicial state recognition by the International Criminal Court (ICC). It does so both generally and with regard to a highly pertinent contemporary example, namely a judge-made Palestinian state. In the wake of the Israel–Gaza 2008-09 armed conflict and the recently commenced process in the ICC, the Court will soon face a major challenge – one that holds the potential to define its degree of judicial independence and overall legitimacy. It may need to decide whether a Palestinian state exists, for the purposes of the Court itself, and perhaps in general. Apart from the possibility that such a declaration may constitute a controversial intervention in the Israeli-Palestinian peace process, it would also set a precedent within public international law concerning judicial state recognition. The Rome Statute of 1998 establishing the ICC created a state-based system, so that the existence of a ...
%SOURCENAMEESCAPED%, REVISION: Insurance Regulation: Lessons from a Small Economy, https://www.ssrn.com/abstract=1611583 (May 20, 2018)

In March 2009, the faltering insurance behemoth AIG sparked national outrage when it announced a payment of $165 million in executive bonuses after receiving more than $170 billion in bailout money from the U.S. Treasury. President Obama expressed his personal indignation in a public statement, emphasizing “the need for overall financial regulatory reform.” Is this merely an anecdote, a unique case that requires a tailored solution, or a symptom of a more fundamental deficiency? The recent economic crisis showcased some of the main deficiencies of existing regulatory systems, and rekindled the debate on the importance and scope of regulation in general, and of financial services regulation in particular. Against this backdrop, insurance - one of the main pillars of the financial services sector - merits special attention, because it remains the only financial industry in the United States not regulated on the federal level. The Article unveils the inherent weakness of regulation ...
%SOURCENAMEESCAPED%, REVISION: The Third Form of Justice, https://www.ssrn.com/abstract=1611554 (May 20, 2018)

Izhak Englard, a prominent tort scholar and a former justice of the Supreme Court of Israel, has dedicated the last few years to an unprecedented research project, aimed to “retrace the long and complex history of the Aristotelian conceptual distinction between distributive and corrective justice from antiquity to the present day.” Modern legal theorists are well versed in the Aristotelian concepts. But although these concepts have engaged “the most brilliant philosophical, legal, and theological minds for generations,” the millennial treatment of the Aristotelian distinction has been disregarded in recent times. Englard’s recently published book brings the cumulative knowledge to the attention of contemporary thinkers, offering an opportunity to enhance and deepen ongoing jurisprudential discourse. Englard has structured the book chronologically (with a single exception), on the grounds that a topical arrangement would be impractical due to its complexity. Nonetheless, one can ...
%SOURCENAMEESCAPED%, REVISION: Empowerment and Tort Law, https://www.ssrn.com/abstract=1611540 (May 20, 2018)

Empowerment, a somewhat nebulous construct, has been a key concern in many disciplines in recent decades. It may be generally defined as an increase in individuals’ control over their lives, and may operate on two interdependent levels: personal and societal. This article advocates the utilization and optimization of tort law and practice as an empowering mechanism in cases of power abuse. It systematically analyzes the empowering and disempowering effects of the law and the legal process and explains how to enhance the former and diminish the latter.
%SOURCENAMEESCAPED%, REVISION: Correlativity, https://www.ssrn.com/abstract=1611475 (May 20, 2018)

In a celebrated article, published nearly a century ago, Wesley Newcomb Hohfeld endeavored to elucidate the various types of jural relations. Hohfeld’s scheme has been justly regarded as a seminal contribution to analytical jurisprudence, and has stimulated lively debate since. This Essay aims to refute one of Hohfeld’s fundamental and most influential theses: the axiom of right-duty correlativity. To do so, it employs the simplest refutation strategy in first-order logic, namely providing a valid counter-example. Part I discusses earlier attempts to do likewise, and explains why they failed. For the most part, previous illustrations of ostensibly standalone rights or standalone duties neglected relevant parties who could owe the correlative duties or hold the correlative rights, respectively. Part II puts forward a simple argument: There are abstract duties in private law that ban certain types of conduct without reference to specific victims. Those duties are not necessarily ...
%SOURCENAMEESCAPED%, REVISION: The Economic Bias in Tort Law, https://www.ssrn.com/abstract=1162005 (May 20, 2018)

Economic loss is moving to the forefront of tort discourse on both sides of the Atlantic. A Council draft of the Restatement (Third) of Torts: Economic Torts and Related Wrongs is being appraised and discussed by prominent American tort scholars, and European academics are seeking common ground regarding liability for economic loss in the European Union. The time may well be ripe to focus on an unexplored, perhaps unnoticed, mystery in the common law of torts: the consequential/relational economic loss dichotomy. Consequential economic loss is economic loss that stems from physical injury to the plaintiff's own person or property. Relational economic loss is purely economic loss that stems from physical injury to the person or property of a third party, or to an ownerless resource. The difference between the two may often seem normatively immaterial, but it has far-reaching implications in tort law. This Article endeavors to unveil the political - redistributive - underpinning of ...
%SOURCENAMEESCAPED%, REVISION: Re-torts, https://www.ssrn.com/abstract=1021547 (May 20, 2018)

Tom Broadbent, George Bernard Shaw's memorable hero in John Bull's Other Island, forcefully avers in Act IV that "there are only two qualities in the world: efficiency and inefficiency, and only two sorts of people: the efficient and the inefficient." Broadbent is an Englishman, but his commitment to the gospel of efficiency has made him representative of modern America in the eyes of many commentators. Peter Keegan, Broadbent's ideological adversary, mocks his simple-mindedness, and concludes his ironic reproach with an inspiring prediction: "For four wicked centuries the world has dreamed this foolish dream of efficiency; and the end is not yet. But the end will come." Will it? Broadbent's scorned vision seems to underlie the proposed definition of negligent-conduct in the draft Restatement (Third) of Torts. Section 3 embraces the renowned "Hand formula," which defines negligence in economic, cost-benefit, terms. This Article endeavors to disprove the drafters' alleged ...
%SOURCENAMEESCAPED%, REVISION: כללי אזכור בכתיבה משפטית — הרהורים על עיצוב נורמות של שיח (Legal Citation Rules: Reflections on the Formation of Discourse Norms), https://www.ssrn.com/abstract=1025530 (May 20, 2018)

In the spring of 2006, an 80 pages booklet, sponsored by four Israeli law reviews, and titled Uniform Citation Rules in Legal Writing, was published in Israel. Given its cover color and notable similarity to the American Bluebook, we called it The Purplebook. The Haifa Law Review had to decide whether to substitute the new rules for its traditional citation method. The Editors' reflections on this seemingly technical matter generated interesting queries about the need for uniform citation rules, the process of their formulation, endorsement and modification, their substance and their form. The unprecedented opportunity to seriously deliberate on the various aspects of legal citation has yielded this essay. To begin with, the essay examines the need for uniformity in citation, and discusses the advantages and shortcomings of such uniformity on different levels of abstraction. Considerations pertaining to aesthetics, efficiency, and preservation of unique-identities (pluralism) go ...
%SOURCENAMEESCAPED%, REVISION: De Jure [sic] Park, https://www.ssrn.com/abstract=981780 (May 20, 2018)

This Essay, solicited by the Connecticut Law Review for the inauguration of its online companion CONNtemplations, discusses the main structural deficiencies of student-edited general interest paper-based law reviews, namely that they are student-edited, general interest and paper-based.
%SOURCENAMEESCAPED%, REVISION: It's a Wonderful Life, https://www.ssrn.com/abstract=977852 (May 20, 2018)

The title of Frank Capra's classic 1946 movie seems to encapsulate a fundamental all-American conviction. Unsurprisingly, it has been applied by several courts and jurists as the ultimate retort to one of the most intriguing questions in modern tort discourse: Is it possible to say that a severely disabled child has been harmed by the mere fact of being born? Wrongful life claimants will answer in the affirmative, whereas Capra's aphorism makes a compelling counterargument. In my opinion, the contrasting views represent equally legitimate subjective beliefs rather than objective truths; so neither may ever prevail. Having no satisfactory solution within conventional wisdom, the life-as-injury debate may be regarded as the Gordian knot of tort law. The purpose of the Article is to cut, rather than untie the knot: Allow the child to recover, without challenging or validating the deep-seated perception of life. Part I shows that the hostility to liability in tort for wrongful ...
%SOURCENAMEESCAPED%, REVISION: Correlation Versus Causality: Further Thoughts on the Law Review/Law School Liaison, https://www.ssrn.com/abstract=940892 (May 20, 2018)

This Essay is the third in a series of articles discussing the relative value of American law reviews, and a response to Professor Alfred Brophy's elaboration of my initial study of the high mathematical correlation between law review quality, as manifested in citation-based measures, and law school reputation. See The Relative Value of American Law Reviews: A Critical Appraisal of Ranking Methods, http://papers.ssrn.com/abstract=806144; The Relative Value of American Law Reviews: Refinement and Implementation, http://papers.ssrn.com/abstract=897063; and - Alfred L. Brophy, The Relationship between Law Review Citations and Law School Rankings, http://papers.ssrn.com/abstract=868541. Given my prior interest in the relative value of American law reviews, I have used the abovementioned correlation as a means to explain some of the variance in quality among law reviews. Brophy's empirical findings overlap mine, yet the extent of his analysis, as well as his interpretation and ...
%SOURCENAMEESCAPED%, REVISION: גבולות היצירה השיפוטית (The Limits of Judicial Creativity), https://www.ssrn.com/abstract=908338 (May 16, 2018)

Hebrew Abstract: מאמר זה משרטט את גבולות היצירה השיפוטית, אגב דיון בפסק דינו של בית המשפט העליון בעניין סרדיוק נ' התצ"ר. באותו עניין נקרא המערער לשירות סדיר לאחר שחלפה התקופה המותרת לקריאתו לשירות לפי חוק שירות בטחון. הנשיא ברק סבר, עם זאת, כי בהתאם לפרשנות שניתנה לסעיף 49 לחוק בפסיקה ותיקה יש להאריך את פרק-הזמן המותר לגיוס אם ובמידה שהמיועד לשירות גרם באשמתו לעיכוב בהליכי החיול או הסכים במשתמע לעיכוב כזה. המאמר מעלה ומברר שלוש טענות בהקשר זה. ראשית, ההלכה שניתן לגזור מן הפסיקה שקדמה לעניין סרדיוק צרה הרבה יותר מזו שנקבעה על ידי הנשיא באותו עניין. בהתאם להלכת לוי – הנסמכת על פירושו של סעיף 49 לחוק שירות בטחון – אי-ציות לצו-כללי המטיל על יוצא הצבא חובה להתייצב לרישום ולבדיקות וחובה מותנית להתייצב לשירות סדיר מביא לעצירת מירוץ ההתיישנות של סמכות הקריאה לשירות לאורך כל תקופת אי-ההתייצבות לרישום או לבדיקות. בהמשך אמנם הכיר בית המשפט בכך שחובתו המותנית של יוצא הצבא להתייצב לשירות סדיר משתמעת גם מצווים-אישיים הקוראים לו להתייצב לרישום או לבדיקה רפואית; אולם הוא מעולם לא ויתר על ...
%SOURCENAMEESCAPED%, REVISION: The Relative Value of American Law Reviews: A Critical Appraisal of Ranking Methods, https://www.ssrn.com/abstract=806144 (May 16, 2018)

Ranking law reviews is not a novel initiative. Data regarding the relative value of legal periodicals was first published in 1930, in an article primarily concerned with the overall contribution of legal periodicals to the development of positive law. Since then many attempts have been made to rank American law reviews by various criteria. This Article, however, focuses not on actual rankings but on ranking theory and methodology. It offers an introductory discussion of the goals of law review rating, and the essential attributes of reliable and beneficial ranking methods, followed by a systematic and comprehensive analysis of the advantages and shortcomings of the various methods that can be used to assess the relative value of American law reviews.
%SOURCENAMEESCAPED%, REVISION: The Relative Value of American Law Reviews: Refinement and Implementation, https://www.ssrn.com/abstract=897063 (May 16, 2018)

This Essay complements a recently published article in which I discussed the theoretical and methodological aspects of law review rankings. See Ronen Perry, "The Relative Value of American Law Reviews: A Critical Appraisal of Ranking Methods", Virginia Journal of Law and Technology, Vol. 11, 2006, available at https://ssrn.com/abstract=1806144. The purpose of this Essay is twofold: Refinement of the theoretical framework, and implementation. It proposes, defends, and implements a complex ranking method for general-interest student-edited law reviews, based on a judicious weighting of normalized citation frequency and normalized impact factor. It then analyzes the distribution of journals' scores, and the diminishing marginal difference between them. Finally, it examines the correlation between law schools' positions in the U.S. News & World Report latest ranking and their flagship law reviews' positions under the proposed method, and ...
%SOURCENAMEESCAPED%, REVISION: The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory, https://www.ssrn.com/abstract=846309 (May 15, 2018)

This article is the first academic attempt to explain in a systematic manner how the third-form-of-justice, usually thought of as one of the theoretical foundations of criminal law, operates within the law of torts. Tort jurisprudence is definitely not the natural habitat for retributive concerns. Since retributive justice is technically inconsistent with the corrective structure of tort law its role is (and probably ought to be) very limited. The article first explains the notion of retributive justice and defends the view that it constitutes a third form of justice, distinct from the classical Aristotelian forms. It then rejects monistic retributive theories of tort law, and argues that retributive justice penetrates the corrective pattern of tort law only within two conceptual paradigms: (1) the prevention of abominable disproportion paradigm, and (2) the preservation of criminal justice paradigm. It subsequently demonstrates this theory in a methodical manner with notable ...
%SOURCENAMEESCAPED%, REVISION: הכל צפוי והרשלנות נתונה (Everything Is Foreseen and the Negligence Is Given), https://www.ssrn.com/abstract=978538 (May 15, 2018)

Hebrew Abstract: מאמר זה בוחן מנקודת מבט ביקורתית את דרך-ההנמקה של בית המשפט העליון בדיון הנוסף בפרשת קליפורד, עם דגש על תרומתו של פסק הדין להרחבת האחריות בנזיקין, במיוחד בתחום הטיפול הרפואי. בחלקו הראשון מועלות מספר טענות כנגד תהליך ההכרעה בעניין ההתרשלות. ראשית, בית המשפט השתמש ברטוריקה תועלתנית-כלכלית אך לא יישם בצורה הראויה את המתודולוגיה המתחייבת מגישה זו. שנית, בית המשפט התייחס לאי-נקיטה בשיטת טיפול “עדיפה”, היינו – שיטה שבה הפגיעה בנוחותו של המטופל נמוכה יותר מאשר בשיטות אחרות, כאל אינדיקציה חזקה מאוד להתרשלות, למרות שאין זיקה הכרחית או מהותית בין השניים. שלישית, בית המשפט לא ייחס משקל ראוי לפרקטיקה הרפואית המקובלת. רביעית, בית המשפט העניק משקל מופרז להוראות היצרן של חומרים המשמשים לטיפול רפואי. בחלקו השני מבקר המאמר את דרך ההנמקה של בית המשפט בעניין הסיבתיות המשפטית וריחוק הנזק. גישתה של השופטת ביניש בערעור, אשר אומצה בתמציתיות על ידי השופט אור בדיון הנוסף, המייחסת לרופא יכולת לצפות התרחשויות בלתי צפויות היא, למצער, מוקשית. גישתו האלטרנטיבית של השופט אור בעייתית לא ...
%SOURCENAMEESCAPED%, REVISION: Wrongful Abortion: A Wrong in Search of a Remedy, https://www.ssrn.com/abstract=876407 (May 15, 2018)

Wrongful abortion is an abortion that a pregnant woman is induced to undergo by a negligent conduct (usually a medical misrepresentation). For example, early in her pregnancy a woman is told by her physician that a medication that she had taken would cause her baby to be born with a severe birth defect. Based on the expert opinion, she decides to undergo an abortion. Only after the abortion does she learn that the advice regarding the baby's health was a negligent misrepresentation, and that the termination of the pregnancy was unnecessary. Underlying our article is a fundamental intuition that the law does not currently provide adequate incentives to avoid wrongful abortions considering their obviously devastating consequences (one of which is the loss of potential human life), and an innovative understanding that the best solution to this problem may be built on the distinctive characteristics of the wrongful-abortion setting. Validating the basic intuition requires a systematic ...
%SOURCENAMEESCAPED%, REVISION: דירוג כתבי עת משפטיים עבריים - יסודות עיוניים ומחקר אמפירי ראשוני (Ranking Hebrew Law Reviews: Theoretical Foundations and a Preliminary Empirical Study), https://www.ssrn.com/abstract=908334 (May 15, 2018)

Hebrew Abstract: בעשורים האחרונים נעשו בארצות הברית מספר ניסיונות לדרג כתבי-עת משפטיים מקומיים על פי מדדים שונים – כמותיים ואיכותיים. בישראל טרם נעשה ניסיון דומה. מטרתו של מאמר זה כפולה. היעד הראשון הוא להציע תשתית עיונית לדירוג רציף של כתבי עת משפטיים בכלל, וכתבי עת משפטיים עבריים בפרט. המאמר מנתח את שיטות הדירוג השונות שהוצעו במרוצת השנים במדינות-הים. הוא מבקר ושולל את השימוש בשיטות המתבססות על מידת החשיבות של מחברות המאמרים; על העברת סקרים בין המשתמשות בכתבי העת; על שיפוט בידי ועדות מומחים; על היקף השימוש בכתבי העת בספריות משפטיות ועל שיעור-הדחייה של מאמרים. לאחר מכן מציע המאמר להשתמש בשיטה המבוססת על שכיחות האיזכורים של כל אחד מכתבי העת, הן בכתיבה האקדמית והן בפסיקה (במיוחד זו של בית המשפט העליון). ההנחה העומדת ביסודה של השיטה המוצעת היא שמספר האיזכורים (בכתיבה האקדמית ובפסיקה) מספק אינדיקציה כמותית, אם כי לא לגמרי מדויקת, למידת ההשפעה של כתבי העת השונים על השיח המשפטי (האקדמי והמעשי בהתאמה). English Abstract: In recent decades several scholars have attempted to ...
%SOURCENAMEESCAPED%, REVISION: על אחריותם בנזיקין של סרבני גט (Tort Liability of Recalcitrant Husbands), https://www.ssrn.com/abstract=908331 (May 15, 2018)

Hebrew Abstract:אלמונית ופלוני, יהודים תושבי ישראל, נישאים זו לזה על פי דין תורה. בשלב מסוים עולה מערכת היחסים על שרטון והאישה מבקשת להתגרש מן האיש. בית דין רבני קובע כי האיש חייב לגרש את אשתו אולם זה אינו שועה להחלטה. חוק בתי דין רבניים (קיום פסקי דין של גירושין), התשנ"ה-1995 מאפשר לבית הדין לנקוט כנגד אותו אדם סנקציות שונות כדי להניעו לחזור בו מסירובו. אלא שחרף הסנקציות המוטלות עליו, ואולי אף בשל אי נכונותו של בית הדין לעשות שימוש בסמכויותיו לפי החוק – האיש עומד במריו. האישה אינה יכולה להינשא לאחר (או אפילו לחיות עימו אם ברצונה להינשא לו בבוא העת), ואינה יכולה ללדת ילדים לאחר מבלי שידבק בהם כתם הממזרות. מסורבת הגט לא רק כלואה בתוך מסגרת משפחתית בלתי רצויה אלא גם מנועה מהקמת מסגרת משפחתית חדשה. פוטנציאל הסבל עצום. מטרתו של המאמר היא לברר אם מסורבת הגט תוכל להיפרע את נזקה מן הסרבן. בשלב הראשון בוחן המאמר אם לבית משפט אזרחי סמכות עניינית לדון בתביעת נזיקין המוגשת כנגד סרבן הגט על יסוד ההנחה שקיים פסק דין של גירושין. בשלב השני נבחנות עילות תביעה פוטנציאליות. בידי האישה יש, ...
%SOURCENAMEESCAPED%, REVISION: Relational Economic Loss: An Integrated Economic Justification for the Exclusionary Rule, https://www.ssrn.com/abstract=825227 (May 15, 2018)

This article suggests an integrated economic justification for a specific common law rule, which excludes liability in torts for relational economic loss (a concept that I wish to introduce to the American reader). Following a bird's eye view of the law governing relational economic loss in various western jurisdictions I analyze the relevant economic considerations under three headings: efficient deterrence, loss spreading and administrative costs. In the last part I apply the normative conclusions of this analysis to a range of fact-situations in which the relational loss problem arises. My conclusion is that an exclusionary rule, accompanied by a few narrowly defined exceptions, is supported by economic considerations. It is true that exclusion of liability will not always have the same economic justification, but all in all it seems that subject to one or two minor modifications the traditional approach of the common law is economically justified.
%SOURCENAMEESCAPED%, REVISION: Response and Recovery after Maria: Lessons for Disaster Law and Policy, https://www.ssrn.com/abstract=3174466 (May 15, 2018)

Hurricane Maria had a devastating impact on Puerto Rico. The federal response to Maria was slow, leaving much of the population without basic necessities for extended periods. Lives were lost as a result. The federal government failed to rise to the challenges posed by logistic difficulties and strained agency resources due to preceding disasters. The response was hindered by unrealistic planning, by Puerto Rico’s lack of political power in Washington, and by presidential indifference. In the end, despite its much greater needs, Puerto Rico received assistance much more slowly than Houston. This article analyzes the reasons for the flawed response and proposes improvements in future disaster policy. Like Katrina, Maria is a story of how systems failed just when they were most needed by our most vulnerable citizens.
%SOURCENAMEESCAPED%, REVISION: Medicalization of Rural Poverty: Challenges for Access, http://www.ssrn.com/abstract=3127049 (May 9, 2018)

This article was prepared for a live conference, on “The Medicalization of Poverty,” held at the University of Illinois College of Law, and a symposium to be published in the Journal of Law, Medicine & Ethics. My piece focuses on a constellation of challenges for health care delivery and access to care in rural areas. Discussions regarding health and poverty often seem to focus on the admittedly persistent and multilayered problems of the urban poor: unemployment, substandard and unaffordable housing, violent crime, nutrition and “food desserts,” recreation and safe outdoor spaces, and under-resourced public schools, to name a few. While cities certainly constitute population centers for poverty, we should not confine our discussion to that context. Rural poverty and rural health disparities present additional, unique concerns for the medicalization of poverty. Access to medical care is particularly challenging in rural areas for an array of reasons, including financial ...
%SOURCENAMEESCAPED%, REVISION: A Half-Century of Scholarship on the Chinese Intellectual Property System, http://www.ssrn.com/abstract=3107401 (April 27, 2018)

The first modern Chinese intellectual property law was established in August 1982, offering protection to trademarks. Since then, China adopted the Patent Law in 1984, the Copyright Law in 1990 and the Anti-Unfair Competition Law in 1993. In December 2001, China became a member of the World Trade Organization, assuming obligations under the TRIPS Agreement. In the past decade, the country has also actively participated in the negotiation of bilateral, regional and plurilateral trade agreements, including most notably the RCEP. Today, the Chinese intellectual property system has garnered considerable global policy and scholarly attention. To help develop a more sophisticated, complex and nuanced understanding, this article reviews the past five decades of English-language scholarship on the system. It begins by creating a taxonomy of this body of literature based on the most common method — chronology. It then turns to an alternative method of organizing and categorizing scholarly ...
%SOURCENAMEESCAPED%, REVISION: On Exactitude in Financial Regulation: Value-at-Risk, Expected Shortfall, and Expectiles, http://www.ssrn.com/abstract=3136278 (April 18, 2018)

This article reviews two leading measures of financial risk and an emerging alternative. Thanks to their adoption by the Basel accords, VaR and expected shortfall are the leading risk measures in financial regulation. Expectiles offset the known weaknesses of VaR and expected shortfall. Indeed, expectiles are the only elicitable law-invariant coherent risk measures. After reviewing these theoretical properties and practical concerns involving backtesting and robustness, this article more closely examines the potential use of expectiles in finance. Expectiles are most readily evaluated as a special class of quantiles. For ease of regulatory implementation, expectiles can be defined exclusively in terms of VaR, expected shortfall, and the thresholds at which those competing risk measures are enforced. Moreover, expectiles are in harmony with the application of partial moments, gain/loss ratios, and stochastic dominance to financial risk management. Expectiles may address some of the ...
%SOURCENAMEESCAPED%, REVISION: Exploring Precision FDA, an Online Platform for Crowdsourcing Genomics, http://www.ssrn.com/abstract=3017395 (April 17, 2018)

Precision medicine is here, with rapid advancements in the technologies, tools, and life-saving products entering the market for the treatment of serious and life-threatening disease. In May 2017, the United States Food and Drug Administration (FDA) approved the first cancer treatment for solid tumors based on a genetic biomarker rather than the tissue of origin. One month later, the agency approved a companion diagnostic panel that utilizes next generation sequencing (NGS) to simultaneously screen a genetic sample for 23 cancer genes, three of which have FDA-approved therapies for non-small cell lung cancer. Together, these developments represent a “seismic shift” in the field of oncology and illustrate the tremendous promise for medicine facilitated by NGS. However, innovative NGS research and data-sharing models depart in significant ways from traditional research and development relationships in the life sciences, potentially raising a host of novel legal questions. NGS is ...
%SOURCENAMEESCAPED%, REVISION: TPP, RCEP, and the Crossvergence of Asian Intellectual Property Standards, http://www.ssrn.com/abstract=3032941 (April 17, 2018)

The debate on convergence and divergence has garnered considerable attention from policymakers and commentators involved in regulatory developments in Asia. The developments surrounding the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP) have added fuel to this debate. Given the different leadership in these two megaregional agreements and the exclusion of many RCEP parties from the TPP negotiations, it will be interesting to see how the agreements will affect the future efforts to set regional intellectual property standards. It will also be curious to see whether the draft and finalized standards could reveal policy preferences of the participating countries. In January 2017, U.S. President Donald Trump signed a memorandum directing the United States to withdraw from the TPP, putting the megaregional pact on life support. A year later, however, the eleven remaining TPP partners signed the Comprehensive and Progressive Agreement for ...
%SOURCENAMEESCAPED%, REVISION: What Causes Polarization on IP Policy?, http://www.ssrn.com/abstract=3140169 (April 11, 2018)

Polarization on contentious policy issues is a problem of national concern for both hot-button cultural issues such as climate change and gun control and for issues of interest to more specialized constituencies. Cultural debates have become so contentious that in many cases people are unable to agree even on the underlying facts needed to resolve these issues. Here, we tackle this problem in the context of intellectual property law. Despite an explosion in the quantity and quality of empirical evidence about the intellectual property system, IP policy debates have become increasingly polarized. This disagreement about existing evidence concerning the effects of the IP system hinders democratic deliberation and stymies progress. Based on a survey of U.S. IP practitioners, this Article investigates the source of polarization on IP issues, with the goal of understanding how to better enable evidence-based IP policymaking. We hypothesized that, contrary to intuition, more evidence on ...
%SOURCENAMEESCAPED%, REVISION: The Scholar's Dilemma, http://www.ssrn.com/abstract=3102646 (April 5, 2018)

This essay pursues questions relating to scholarly motivation. What motivates the production of scholarship, and what ought to motivate it? Is it appropriate for a scholar to seek a reputation for its own sake, or for the associated invitations, recognitions, and lateral offers a reputation might produce? Or should the scholar be more like the (stereotypical) artist, seeking to pursue her conception of truth regardless of whether the world rewards her vision? This essay begins with work considering related questions in the world of art, then turns to an examination of scholarly motivation and its relationship to academic freedom and academic responsibility. On most accounts, individual scholars enjoy academic freedom as a means of furthering the social goal of knowledge production. That freedom, like most freedoms, is qualified. It is a freedom not to do as one wishes, but to pursue truth, and to do so in a scholarly manner, using scholarly methods. It thus entails certain ...
%SOURCENAMEESCAPED%, REVISION: Limiting Lawyer Liberty: How the Statement of Principles Coerces Speech, http://www.ssrn.com/abstract=3141561 (April 1, 2018)

In December 2016, the benchers (‘governors’) of the Law Society of Ontario adopted a series of Equity and Diversity Initiatives (“EDIs”), including requiring a mandatory Statement of Principles (the “SOP”). Under the new rule, the “Law Society will require every licensee [that is, lawyer or paralegal] to adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity, and inclusion generally, and in their behavior towards colleagues, employees, clients and the public.” Lawyers and paralegals who do not follow this approach will first receive warnings, followed by sanctions, including the potential loss of license to practice. While I agree with the values of equality, diversity and social inclusion, in this Article I claim that the SOP coerces a licensee’s speech, thought and conscience in harmful ways and makes it harder for lawyers to fulfill their duty of loyalty to their client. Accordingly, the SOP seems to infringe or violate, among ...
%SOURCENAMEESCAPED%, REVISION: Lincoln, Presidential Power, and the Rule of Law, https://www.ssrn.com/abstract=3144115 (March 28, 2018)

Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This lecture examines how Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln and of the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public opinion can provide support for legal norms, lest we place all of our trust in Presidential self-restraint and good judgment.
%SOURCENAMEESCAPED%, REVISION: The Politics of Professionalism: Reappraising Occupational Licensure and Competition Policy, http://www.ssrn.com/abstract=2881732 (March 25, 2018)

Elite economists and lawyers have united to criticize occupational licensing. They contend that licensure rules raise consumer prices and restrict labor market entry and job mobility. The Obama Administration’s Council of Economic Advisers and Federal Trade Commission have joined libertarians and conservatives in calling for occupational regulations to be scaled back. Billed as a bipartisan boost to market competition, this technocratic policy agenda rests on thin empirical foundations. Studies of the wage effects of licensing rarely couple this analysis of its putative “costs” with convincing analysis of the benefits of the professional or vocational education validated via licensure. While some licensing rules may be onerous and excessive, licensing rules are inadequate or underenforced in other labor markets. Furthermore, by limiting labor market entry, occupational licensing rules, like minimum wage and labor laws, can help raise and stabilize working and middle class wages — ...
%SOURCENAMEESCAPED%, REVISION: Three Essays on Climate Law, https://www.ssrn.com/abstract=3142396 (March 25, 2018)

These essays deal with aspects of climate change law that cut across national borders. "Governance Principles and Climate Disasters" examines how climate disasters present relate to general issues in public law such as federalism, emergency authority, protection of property rights, and administrative transparency and rationality. "The Unifying Force of Climate Change Scholarship" argues that climate change is a unifying theme for the sprawling field of environmental law, providing a focal point for environmental law scholarship. "Historical Responsibility for Environmental Harms" examines the issue of climate compensation through the lens of U.S. and EU tort law principles. It argues that the tort law background supports providing some form of compensation for harms caused by past carbon emissions, whether via litigation or otherwise.
%SOURCENAMEESCAPED%, REVISION: Data Exclusivities in the Age of Big Data, Biologics, and Plurilaterals, http://www.ssrn.com/abstract=3133810 (March 13, 2018)

The past decade has seen many new developments impacting on the intellectual property system. The introduction of big data analytics has transformed the fields of biotechnology and bioinformatics while ushering in major advances in drug development, clinical practices and medical financing. The arrival of biologics and personalized medicines has also revolutionized the healthcare and pharmaceutical industries. In addition, the emergence of bilateral, regional and plurilateral trade agreements have raised serious, and at times difficult, questions concerning the evolution of domestic and international intellectual property standards. One topic that has linked all three developments together concerns the development of international standards to protect clinical trial data that have been submitted to regulatory authorities for the marketing approval of pharmaceutical products. During the TPP negotiations, for example, the protection of clinical trial data submitted for the marketing ...
%SOURCENAMEESCAPED%, REVISION: Aesthetic Judging, http://www.ssrn.com/abstract=3121110 (March 10, 2018)

This article offers a conceptualization of judges in the legal system as analogous to their namesakes in sports such as gymnastics and figure skating. It is, to a degree, a counter-intuitive suggestion. Figure-skating judges, after all, do not enjoy a reputation for being unbiased and scandal-free. Indeed, figure skating and aesthetic sports like it are often pejoratively referred to as “subjectively” judged. It is a seemingly curious model for a legal system that strives to avoid all these things. There is no question that the more common analogy, which invokes the metaphor of the judge as an umpire, provides the judiciary with a more comforting public face. The value of thinking of judges in law as analogous to judges in aesthetic sport lies not in its public relations value, but rather in its ability to focus attention on aspects of the judiciary that the umpire metaphor obscures. Judges in both contexts draw on ineffable criteria that cannot be fully captured in words. These ...
%SOURCENAMEESCAPED%, New: Going Private: Climate Action by Businesses and Individuals, https://www.ssrn.com/abstract=3134549 (March 9, 2018)

This is a review of a new book by Michael Vandenbergh and Jonathan Gilligan, Beyond Politics: The Private Governance Response to Climate Change. They make a persuasive case that private initiatives in this area have been underestimated. The review seeks to build on their analysis in two ways. First, it examines what features of private action make it more or less a form of “governance,” and it suggests some ways the private sector could move further toward regulatory governance. Second, it considers ways to expand synergies between private action and governmental efforts. If, as seems likely, climate action is likely to be as much bottom-up as top-down, it is important to explore how the private sector can contribute to this effort.
%SOURCENAMEESCAPED%, New: A Rule of Persons, Not Machines: The Limits of Legal Automation, http://www.ssrn.com/abstract=3135549 (March 8, 2018)

For many legal futurists, attorneys’ work is a prime target for automation. They view the legal practice of most businesses as algorithmic: data (such as facts) are transformed into outputs (agreements or litigation stances) via application of set rules. These technophiles promote substituting computer code for contracts and descriptions of facts now written by humans. They point to early successes in legal automation as proof of concept. TurboTax has helped millions of Americans file taxes, and algorithms have taken over certain aspects of stock trading. Corporate efforts to “formalize legal code” may bring new efficiencies in areas of practice characterized by both legal and factual clarity. However, legal automation can also elide or exclude important human values, necessary improvisations, and irreducibly deliberative governance. Due process, appeals, and narratively intelligible explanation from persons, for persons, depend on forms of communication that are not reducible to ...
%SOURCENAMEESCAPED%, New: 21st Century Citizen Pharma: The FDA & Patient-Focused Product Development, http://www.ssrn.com/abstract=3131857 (March 7, 2018)

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%, New: Taxing Global Digital Commerce in a Post-BEPS World, http://www.ssrn.com/abstract=3130218 (March 6, 2018)

This chapter evaluates the recent OECD Base Erosion and Profit Shifting (BEPS) initiative directed at global digital income, and concludes that tax planning will not be inhibited by any significant extent. Tax planners and academics nevertheless should take into account prospective reforms surrounding permanent establishments, hybrid entities, treaty shopping, transfer pricing and controlled foreign corporations, which may challenge certain practices.
%SOURCENAMEESCAPED%, REVISION: Crossfertilizing ISDS with TRIPS, http://www.ssrn.com/abstract=3021225 (March 5, 2018)

In the past few years, investor-state dispute settlement (ISDS) has garnered considerable scholarly, policy and media attention. Such attention can be partly attributed to the negotiation of the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP). It can also be attributed the growing use of ISDS to address international disputes involving intellectual property investments. Recent examples include Philip Morris’s now-failed attempts to challenge the tobacco control measures in Australia and Uruguay and Eli Lilly's equally unsuccessful effort to invalidate the patentability requirements in Canada. Written for a symposium on investor-state arbitration, this article focuses on the growing use of ISDS in the intellectual property area and explores what reforms can be undertaken to improve this mechanism. It begins by highlighting the substantive problems posed by ISDS in this area. It further examines the mechanism's deleterious impact on the ...
%SOURCENAMEESCAPED%, REVISION: Customizing Fair Use Transplants, http://www.ssrn.com/abstract=3052158 (March 5, 2018)

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, Ireland, ...
%SOURCENAMEESCAPED%, REVISION: Case Note: Sandoz v. Amgen, http://www.ssrn.com/abstract=3013800 (March 1, 2018)

On June 12, 2017, the Supreme Court decided the highly anticipated first case involving the Biologics Price Competition and Innovation Act (BPCIA). The Supreme Court addressed two related questions: (1) whether the statutory language instructing a biosimilar applicant to provide its application and manufacturing information to the reference biologic sponsor after FDA acceptance of the application is enforceable by injunction; and (2) whether the biosimilar applicant must give notice of intended commercial marketing to the reference biologic sponsor only after obtaining an approved license from the FDA. Upholding the decision of the Federal Circuit on the first question (albeit using different reasoning) and reversing the Federal Circuit on the second question, the Court also introduced some uncertainty for the future. This short article discusses some key points following the decision.
%SOURCENAMEESCAPED%, REVISION: Regulatory Silence at the FDA: Impact on Access and Innovation, http://www.ssrn.com/abstract=3020383 (March 1, 2018)

Congress creates federal administrative agencies, crafts their fundamental organizational structure and mission, and bestows upon them authority to perform tasks such as rulemaking, adjudication, investigation, and licensing. Often, Congress expressly directs an agency to perform a specific task within a timeframe subject to carefully enumerated factors or considerations. Many times, however, an agency is left with much discretion, either express or implied, to determine appropriate action within the scope of their authority, the statutory language, the Constitution, and procedural laws. It is in these instances that the Supreme Court’s deference precedent has flourished, setting forth when a court ought to defer to an agency’s reasonable interpretation of the statute that it administers when the statute itself is silent or ambiguous. As muddled and disputed as this deference case law is, it probes an important area of agency behavior: when an agency affirmatively acts to ...
%SOURCENAMEESCAPED%, REVISION: Presidential Exit, http://www.ssrn.com/abstract=3100378 (February 23, 2018)

The flow of executive orders, presidential memoranda, proclamations, determinations, executive agreements, national security directives, signing statements and other pronouncements emanating from the early days of every White House administration — what presidency scholar Phillip Cooper calls presidential direct actions — serves as a lightning rod for claims that the president is engaged in a “power grab.” Not infrequently, however, one president’s grab is about taking back another president’s grab. This certainly was the case during the year of the Trump administration, but President Trump is by no means unique in this regard, for many of his predecessors did the same to their predecessors. The reality is that the act of revoking executive orders has become one of the principal strategic political uses of direct actions by recent presidents. In this Article we probe this practice using a framework we developed in a previous article, Regulatory Exit, in which we examined the design ...
%SOURCENAMEESCAPED%, REVISION: Development Bridge Over Troubled Intellectual Property Water, http://www.ssrn.com/abstract=3027103 (February 6, 2018)

Written in celebration of Pedro Roffe's life and achievements, this chapter captures the many valuable contributions he has made in his three decades at the U.N. Conference on Trade and Development (UNCTAD) and a decade and a half at the International Centre for Trade and Sustainable Development (ICTSD). It focuses on three sets of development bridges that he has built and helped build in the intellectual property arena, drawing illustrations from the author's personal encounters with him and his organizations. This chapter begins with bridges that allow us to revisit the past developments in the international intellectual property regime. It then turns to bridges that help provide a unique vantage point for taking stock of current developments and recognizing what is new and important in this regime. The chapter concludes with bridges that help advance the debate on intellectual property and global development while reorienting us toward a better future.
%SOURCENAMEESCAPED%, REVISION: Speculative Undertakings: Rate Regulation as a Branch of Corporate Finance, http://www.ssrn.com/abstract=3103627 (January 30, 2018)

The law of regulated industries, particularly the legislative command that the government ensure “just and reasonable rates” for regulated services, is a highly specialized application of financial economics. Ratemaking, to put it bluntly, represents a regulatory exercise in capital asset pricing. As a matter of economics, this article describes ratemaking as a variation on the theme of uncertainty in mathematical finance. As a matter of law, this article describes legal principles guiding the determination of the rate of return on property dedicated to public use. It closely analyzes two regulatory valuation methods derived from the 1923 Bluefield Water Works decision (“attracting capital” and “comparable earnings”), as well as a third approach based on the capital asset pricing model. Discretionary elements in rate regulation make it impossible to wholly alleviate uncertainty in the pricing of utility infrastructure. Utility rate regulation therefore constitutes a speculative ...
%SOURCENAMEESCAPED%, REVISION: A Spatial Critique of Intellectual Property Law and Policy, http://www.ssrn.com/abstract=3013306 (January 30, 2018)

Although geography has had an important and lasting impact on the development of intellectual property law and policy, at both the domestic and international levels, geographical perspectives and spatial analysis have thus far not attracted much attention from policymakers and commentators. Only recently have we seen greater linkage between these two undeniably connected fields. Even with such linkage, the discussion tends to focus narrowly on specific issues, such as the parallel importation of pharmaceuticals, the protection of geographical indications and the treatment of traditional knowledge and traditional cultural expressions. This article aims to provide a systematic analysis of the linkage between intellectual property and geography. It begins by recounting how the post-war decline of academic geography in the United States helps explain the limited role of geographical insights and spatial analysis in law and policy debates. It further explores the revival of geographical ...
%SOURCENAMEESCAPED%, REVISION: Stigmatizing the Unhealthy, http://www.ssrn.com/abstract=3090647 (January 25, 2018)

Stigma can lead to worse relative health and worse health outcomes. However, the perception of ill health itself can be stigmatizing. As part of a larger project comprehensively examining the increasing incidence of “healthism,” we examine a host of examples of normatively wrong discrimination based on health status. One of our criteria for designating a particular form of health-status discrimination normatively wrong is whether it is stigmatizing. Related criteria include whether the classification is animus-driven and whether it has the tendency to punish individuals for private conduct. Although our criteria operate in conjunction, the presence of stigma may turn what otherwise would be a socially desirable, rational reason to treat an individual differently based on health status, including health-related conduct, into an instance of healthism. In this paper, we would apply our healthism paradigm to two examples, in which stigma is particularly salient. In the United ...
%SOURCENAMEESCAPED%, New: A Solutions-Oriented Approach: Changing How Insurance Litigation Is Handled by Defense Law Firms, http://www.ssrn.com/abstract=3104055 (January 24, 2018)

This article explores how the structure of many law firms tends to put the firm at odds with client interests and illustrates how different structures can improve the firm-client relationship, using the insurance defense sector to illustrate its points.
%SOURCENAMEESCAPED%, REVISION: The Legal Instinct: Lawmaking as a Branch of Biolaw, http://www.ssrn.com/abstract=3099338 (January 23, 2018)

In her 2017 book, Rules for a Flat World, Gillian Hadfield upbraids the legal profession and the legal academy for ascribing supremacy, even exclusivity, to traditional legal institutions. Legal infrastructure, especially in the poorest countries, depends on entrepreneurs willing to shatter these myths. Hadfield prescribes possible solutions to the problem of inspiring and fostering entrepreneurship for legal infrastructure. This review essay describes how Rules for a Flat World envisions the reinvention of markets for legal rules and institutions in the image of Silicon Valley startups. This essay also describes humans’ intrinsic longing for social ordering and dispute resolution. If the legal instinct is biologically based and mediated, then lawmaking should be evaluated as a branch of biolaw.
%SOURCENAMEESCAPED%, New: How Countries Should Share Tax Information, http://www.ssrn.com/abstract=3103151 (January 18, 2018)

Offshore tax evasion, international money laundering, and aggressive international tax planning significantly reduce government revenues. In particular, for some low-income countries the amount of capital flight (where elites move and hide monies offshore in tax havens) exceeds foreign aid. Governments struggle to enforce their tax laws to constrain these actions, and they are inhibited by a lack of information concerning international capital flows. The main international policy response to these developments has been to promote global financial transparency through heightened cross-border exchanges of tax information. The Article examines elements of optimal cross-border tax information exchange laws and policies by focusing on three key challenges: information quality, taxpayer privacy, and enforcement. Relatedly, the Article discusses how the exchange of automatic “big tax data” combined with data analytics can help address these challenges. The recommended laws and policies will ...
%SOURCENAMEESCAPED%, REVISION: Cultivating Innovation in Precision Medicine Through Regulatory Flexibility at the FDA, http://www.ssrn.com/abstract=2916387 (January 18, 2018)

Medical researchers perpetually aspire to a future where an individual’s genes will chart the way for the identification and prescription of the right lifesaving drug. The drug will be tailored to a patient’s specific genetic profile, assuring that the drug will work safely and effectively for that patient. During the course of care, a physician will extract a biological sample from the patient, run it through a diagnostic test, and the test results, along with the patient’s medical history, will guide the medical decision on which drug to prescribe. Such an integrative process eliminates the potential for that patient to experience devastating adverse drug events because the drug is not safe for them or receive ineffective (and assuredly expensive) treatment because the drug is not working for them. Such a future provides benefits not only to the patient but also to countless entities and actors within the public health and medical enterprise. This scenario may be coming closer ...
%SOURCENAMEESCAPED%, New: From Fault-Based to Strict Liability: A Case Study of an Overpraised Reform, https://www.ssrn.com/abstract=3094591 (January 4, 2018)

On September 25, 1976, the Israeli Road Accident Victims’ Compensation Act came into force. Prior to its enactment, road accident injuries were subject to the common law of torts, as codified in the Civil Wrongs Ordinance. The statutory reform was intended to achieve a social goal, namely securing prompt and satisfactory compensation to all road accident victims, including many who would not have been entitled to compensation otherwise. To this end, the legislature abolished fault, both as a basis for and as a defense against liability, expanded mandatory insurance, and established the Road Accident Victims’ Compensation Fund as a residual compensation mechanism. Two secondary goals of this socially motivated reform were extensive loss-spreading and reduction in court congestion and administrative costs. The article provides a critical evaluation of the common perception of this legislation. It challenges the Act’s claims to fame, demonstrating that the changes it was intended to ...
%SOURCENAMEESCAPED%, REVISION: Scholarships at Risk: The Mathematics of Merit Stipulations in Financial Aid Awards, http://www.ssrn.com/abstract=2133018 (January 1, 2018)

Many law schools in the United States condition financial aid grants on the recipients’ maintenance of a certain grade point average. These merit stipulations require students to meet or exceed minimum academic standards in order to keep all or part of their financial aid. Law students should take merit stipulations into account when they decide whether to accept an offer of admission paired with a conditional grant of financial aid. By all accounts, they do not. Law schools should transparently disclose the likely effect of merit stipulations on their financial aid awards. By all accounts, law schools do no such thing. Absent external coercion, they are unlikely to change their current practices. In the absence of industry-wide standards counseling full disclosure of financial aid practices, this article will try to equip law school applicants with the mathematical tools to assess the real impact of merit stipulations on their financial well being. This article first presents very ...
%SOURCENAMEESCAPED%, Update: A Misrepresented Reform: The Story of the Road Accidents' Victims Compensation Act, https://www.ssrn.com/abstract=882860 (December 29, 2017)

The official motive for the enactment of the Road Accidents' Victims Compensation Act of 1975 was a social one. According to the traditional view, the Act was meant to guarantee an appropriate and immediate compensation to all victims of road accidents. The abolishment of fault, the expansion of mandatory insurance, and the establishment of the Road Accidents' Victims Compensation Fund (Karnit) were supposed to turn the dream into reality. Furthermore, in order to aid the victim and avoid undue pressure to compromise, the legislature granted the victim the right to immediate (interim) payments. Finally, the alleged simplicity of the Act was supposed to alleviate the burden of tort litigation from the courts. My first argument is that the representation of the Act as a revolutionary scheme that guarantees appropriate compensation to victims, who would not have been entitled to compensation otherwise, is, to say the least, exaggerated. First and foremost, the framers and ...
The Paper was removed
%SOURCENAMEESCAPED%, REVISION: The Production Function of the Regulatory State: How Much Do Agency Budgets Matter?, http://www.ssrn.com/abstract=2927208 (December 23, 2017)

How much will our budget be cut be this year? This question has loomed ominously over regulatory agencies for over three decades. After the 2016 presidential election, it now stands front and center in federal policy, with the Trump administration pledging over $50 billion in cuts. Yet very little is known about the fundamental relationship between regulatory agencies’ budgets and the social welfare outcomes they are charged to produce. Indeed, the question is scarcely studied in scholarship from law, economics, or political science. This article lays the groundwork for a new field of theoretical and empirical research, using what we call the “regulatory production function,” to understand the marginal effects of changes in regulatory agency budgets (both reductions and increases) on the levels of benefits they produce. Our proposed theoretical framework and empirical findings have important implications across the regulatory state on the relationship between agency funding and ...
%SOURCENAMEESCAPED%, REVISION: Topic Modeling the President: Conventional and Computational Methods, http://www.ssrn.com/abstract=3086226 (December 23, 2017)

Law is generally represented through text, and lawyers have for centuries classified large bodies of legal text into distinct topics — they “topic model” the law. But large bodies of legal documents present challenges for conventional topic modeling methods. The task of gathering, reviewing, coding, sorting, and assessing a body of tens of thousands of legal documents is a daunting proposition. Recent advances in computational text analytics, a subset of the field of “artificial intelligence,” are already gaining traction in legal practice settings such as e-discovery by leveraging the speed and capacity of computers to process enormous bodies of documents. Differences between conventional and computational methods, however, suggest that computational text modeling has its own limitations, but that the two methods used in unison could be a powerful research tool for legal scholars in their research as well. To explore that potential — and to do so critically rather than under the ...
%SOURCENAMEESCAPED%, REVISION: Institutional Fracture in Intellectual Property Law: The Supreme Court versus Congress, http://www.ssrn.com/abstract=2926110 (December 22, 2017)

This article presents an original dataset of every intellectual property decision by the Supreme Court and statute passed by Congress from 2002 to 2016. Analysis of the data reveals that the Court and Congress have been significantly at odds over intellectual property law during the early twenty-first century. Whereas more than 80% of the substantive intellectual property laws that Congress enacted during this time made rights stronger, two-thirds of the Supreme Court’s decisions weakened protection. The data indicates that this divergence arises from conflict concerning substantive patent and trademark law; the branches are in accord on copyright law. Though prior scholarship has examined particular fields of intellectual property law in a single branch, none has uncovered these overall trends. The results provide new understanding of the ideological, political, and sociological influences that drive decision-making in Congress and the Supreme Court. Special interest group ...
%SOURCENAMEESCAPED%, New: Examining Canadian Offshore Tax Evasion, http://www.ssrn.com/abstract=3089864 (December 21, 2017)

This article reviews academic and government studies that assess the magnitude of Canadian offshore tax evasion, as well as what tax-haven data leaks such as the Panama Papers have told us. This evidence, along with Canada’s historically poor performance in auditing, investigating, and prosecuting offshore tax cheats, calls for an ongoing and measured legal and policy response to inhibit offshore tax evasion. The article evaluates recent Canadian reform efforts and recommends ways to improve the system for investigating and prosecuting offshore tax evaders.
%SOURCENAMEESCAPED%, New: Introduction: Four Views on Healthism, http://www.ssrn.com/abstract=3090654 (December 20, 2017)

What does it mean to discriminate based on health? This is an introduction to a symposium dedicated to our forthcoming book, Jessica Roberts & Elizabeth Weeks, Healthism: Health Status Discrimination and the Law (2017). It provides an overview of the articles contributed by Lindsay Freeman Wiley, Brendan Maher, Jennifer Bennett Shinall, and Jacqueline Fox. Our book, and the symposium, broadly explore the topic of healthism, a concept we repurpose to describe undesirable discrimination based on health status. The U.S. Constitution requires that people receive equal protection regardless of their race, ethnicity, national origin, or religion, absent a compelling governmental interest. To a somewhat lesser degree, the government is prohibited from discriminating on the basis of gender, illegitimacy, and, most recently announced in the Supreme Court’s landmark Obergefell v. Rogers decision, sexual orientation. By statute, Congress has limited certain private actors from ...
%SOURCENAMEESCAPED%, REVISION: Law on the Market? Abnormal Stock Returns and Supreme Court Decision-Making, http://www.ssrn.com/abstract=2649726 (December 20, 2017)

What happens when the Supreme Court of the United States decides a case impacting one or more publicly-traded firms? While many have observed anecdotal evidence linking decisions or oral arguments to abnormal stock returns, few have rigorously or systematically investigated the behavior of equities around Supreme Court actions. In this research, we present the first comprehensive, longitudinal study on the topic, spanning over 15 years and hundreds of cases and firms. Using both intra- and interday data around decisions and oral arguments, we evaluate the frequency and magnitude of statistically-significant abnormal return events after Supreme Court action. On a per-term basis, we find 5.3 cases and 7.8 stocks that exhibit abnormal returns after decision. In total, across the cases we examined, we find 79 out of the 211 cases (37%) exhibit an average abnormal return of 4.4% over a two-session window with an average |t|-statistic of 2.9. Finally, we observe that abnormal ...
%SOURCENAMEESCAPED%, New: Current Alliances in International Intellectual Property Lawmaking: The Emergence and Impact of Mega-Regionals, http://www.ssrn.com/abstract=3076525 (December 15, 2017)

The fourth issue of the series jointly published by the International Centre for Trade and Sustainable Development and the Center for International Intellectual Property Studies explores the impact of plurilateralism on intellectual property law. The chapters making up this volume review systemic, substantive and enforcement-related issues arising from plurilateralism, and do so by analysing the past, the current context and the most recently negotiated plurilateral trade agreements. As noted in one of the contributions, times have clearly been turbulent for global trade. Mounting critiques on the apparent failure of trade to enhance productivity, investment and technology flows have only been met with a greater slump in the growth of global trade and the rise of protectionism. At the same time, the number of free trade agreements has burgeoned as a result of longstanding disagreements between countries at the multilateral level on a variety of issues. Data from the World Trade ...
%SOURCENAMEESCAPED%, New: How Teams Can Help You (or Hurt You) When It Comes to Ethics, http://www.ssrn.com/abstract=3085229 (December 14, 2017)

This paper uses what we know about cognitive errors to discuss how professional organizations can better organize teams to increase the likelihood of better decisionmaking.
%SOURCENAMEESCAPED%, REVISION: Baryonic Beta Dynamics: An Econophysical Model of Systematic Risk, http://www.ssrn.com/abstract=3062414 (November 15, 2017)

This essay seeks to rehabilitate the capital asset pricing model by splitting beta, the basic unit of systematic risk, into subatomic (or “baryonic”) components. By analogy to quantum chromodynamics and other aspects of the Standard Model of particle physics, this essay bifurcates beta on either side of mean returns and into distinct components reflecting relative volatility and correlation, as well as cash-flow and discount-rate effects. Splitting the atom of systematic risk answers some of the most troubling anomalies and puzzles in finance, including abnormal returns on small-cap and value stocks, the low-volatility anomaly, and the equity premium puzzle.
%SOURCENAMEESCAPED%, New: Truth and Beauty: Finance in Econophysical Translation, http://www.ssrn.com/abstract=3067353 (November 10, 2017)

My recent book, Econophysics and Capital Asset Pricing: Splitting the Atom of Systematic Risk, splits beta, the capital asset pricing model’s basic unit of systematic risk, into subatomic (or “baryonic”) components, by analogy to the Standard Model of particle physics. This essay offers preliminary thoughts on the application of physics to other dimensions of finance. A more comprehensive approach would integrate Econophysics and Capital Asset Pricing’s spatial representation of comovement between individual firms, capital markets, and the real economy, with the informational and temporal dimensions of finance. This essay also places efforts at representing finance through physics in their broader scientific and aesthetic context.
%SOURCENAMEESCAPED%, New: Prediction, Persuasion, and the Jurisprudence of Behaviorism, http://www.ssrn.com/abstract=3067737 (November 10, 2017)

Machine learning experts are feeding judicial opinions to algorithms, to predict how future cases will be decided. We call the use of such predictive analytics in judicial contexts a jurisprudence of behaviorism, as it rests on a fundamentally Skinnerian model of cognition as a black boxed transformation of inputs into outputs. In this model, persuasion is passé; what matters is prediction. After describing and critiquing a recent study that has advanced this jurisprudence of behaviorism, we question the value of such research.
%SOURCENAMEESCAPED%, New: Professional Judgment in an Era of Artificial Intelligence and Machine Learning, http://www.ssrn.com/abstract=3067711 (November 10, 2017)

There are two fundamental features of the information processing behind most efforts to substitute artificial intelligence, machine learning, and robotics for professionals in health and education: reductionism and functionalism. However, true professional judgment hinges on a way of knowing the world and relating to persons that is at odds with the mindset of substitutive automation. Instead of reductionism, an encompassing holism is a hallmark of professional practice — an ability to integrate facts and values, to respect the demands of the particular case and prerogatives of society, and to balance mission and margin in institutional decision-making. Any presently plausible vision of substituting artificial intelligence for education and health care professionals would be premised on patients and students accepting services as “medical care” or “education” that are often far inferior to what a skilled, reflective practitioner in either field could provide. The only way these ...
%SOURCENAMEESCAPED%, New: Epilogue: Professional Cooperation and Rivalry in the Future of Data-Driven Healthcare, http://www.ssrn.com/abstract=3067560 (November 10, 2017)

To the extent that technologists in fields such as machine learning can develop their own distinct professional identity, steps toward the digitization of health monitoring and even diagnosis and treatment are likely to advance the triple aim (improving quality, cutting cost, and increasing access to care). However, as historians and sociologists of the professions have shown, such an identity is hard to achieve. It will require mandatory education and ethical rules (with enforceable penalties for violations) designed to apply legal and medical principles of confidentiality, informed consent, and other norms to processes of medical data collection, analysis, and use. Standards to balance privacy and trade secrecy against scientific demands for open data and replicability will be critical. As technologists develop such standards, they should work with — rather than try to replace — the physicians, attorneys, and other professionals whose long experience with fiduciary and other ...
%SOURCENAMEESCAPED%, New: The Automated Public Sphere, http://www.ssrn.com/abstract=3067552 (November 10, 2017)

The public sphere has experienced yet another structural transformation. Firms like Facebook and Google have largely automated the types of decisions made by managers at television networks, or editors at newspapers — but with much more powerful effects. Long critiqued in academic circles, the manifest inadequacy of this new media landscape is now itself a matter of public debate. The deficiencies of the automated public sphere are so manifest that consumer protection and media regulatory authorities must intervene. As they do so, they should carefully examine how emergent dynamics of communicative capitalism vitiate older societal protections. New methods of monitoring and regulation should be as technologically sophisticated and comprehensive as the automated public sphere they target. This article first describes the documented, negative effects of online propagandists’ interventions (and platforms’ neglect) in both electoral politics and the broader public sphere (Part I). It ...
%SOURCENAMEESCAPED%, REVISION: The Conservative as Environmentalist: From Goldwater and the Early Reagan to the 21st Century, https://www.ssrn.com/abstract=2919633 (November 8, 2017)

Today, we often think of conservatives as opposed to environmental regulation. Yet it has not always been so. Conservative icons like William F. Buckley and Barry Goldwater took vigorous public stands in favor of environmental protection. Ronald Reagan championed protection of wilderness when he was governor of California and oversaw the creation of the state’s pollution control agency. He shifted to an anti-regulatory stance in the early years of his presidency, but then shifted again to a more moderate position. Few people know that he personally championed the international ozone agreement and signed a law to require planning for possible climate change. Even today, there are important conservative voices advocating environmental initiatives such as a carbon tax. This Article recovers the forgotten history of conservative environmentalism. It argues that conservative environmentalism faded largely because of external political forces, such as the influence of the fossil ...
%SOURCENAMEESCAPED%, REVISION: Econophysical Models of Finance: Baryonic Beta Dynamics and Beyond, http://www.ssrn.com/abstract=3059436 (November 6, 2017)

Econophysics applies the techniques of physics and nonlinear dynamics to complex economic problems. This essay invokes econophysics in order to introduce a theoretical model that aspires to encompass all essential features of real financial markets. It summarizes the central argument of my book, Econophysics and Capital Asset Pricing: Splitting the Atom of Systematic Risk (Palgrave Macmillan 2017). By analogy to quantum chromodynamics and other aspects of the Standard Model of particle physics, that book — and this essay — seek to rehabilitate the capital asset pricing model splitting beta, the basic unit of systematic risk, into subatomic (or “baryonic”) components. This essay then transcends the limitations of Econophysics and Capital Asset Pricing by offering preliminary thoughts on the application of physics to other dimensions of finance. Although Econophysics and Capital Asset Pricing addressed the diffusion of financial information and intertemporal asset pricing, it did not ...
%SOURCENAMEESCAPED%, REVISION: From Baryonic Beta Dynamics to Cosmological Consilience: Finance as an Econophysical Romance, http://www.ssrn.com/abstract=3059436 (November 2, 2017)

Econophysics applies the techniques of physics and nonlinear dynamics to complex economic problems. This essay invokes econophysics in order to introduce a theoretical model that aspires to encompass all essential features of real financial markets. It summarizes the central argument of my book, Econophysics and Capital Asset Pricing: Splitting the Atom of Systematic Risk (Palgrave Macmillan 2017). By analogy to quantum chromodynamics and other aspects of the Standard Model of particle physics, that book — and this essay — seek to rehabilitate the capital asset pricing model splitting beta, the basic unit of systematic risk, into subatomic (or “baryonic”) components. This essay then transcends the limitations of Econophysics and Capital Asset Pricing by offering preliminary thoughts on the application of physics to other dimensions of finance. Although Econophysics and Capital Asset Pricing addressed the diffusion of financial information and intertemporal asset pricing, it did not ...
%SOURCENAMEESCAPED%, New: Murr v. Wisconsin and the Future of Takings Law, https://www.ssrn.com/abstract=3061185 (October 30, 2017)

Murr v. Wisconsin was a major defeat for property-rights advocates and a big win for land use regulators and environmentalists. The main issue was seemingly very technical, relating to what’s called the “denominator problem” in takings law. The majority ruled against the owners not only on this issue but on several other open questions in takings law. Although the dissenters favored the owners on the denominator issue, they seemed otherwise content with the majority’s analysis. All the Justices enthusiastically embraced the Penn Central balancing test for regulatory takings – a test that nearly always favors regulators. This triumph of Penn Central is an understandable product of the Court’s dilemma in this area of law. It is willing to adopt neither of the two most principled alternatives: reviving Lochner-era restrictions on government regulation or else giving regulators a blank check. A vigorous attack on regulation would itself upset the settled expectations of property owners. ...
%SOURCENAMEESCAPED%, New: TPP, RCEP and the Future of Copyright Normsetting in the Asia-Pacific, http://www.ssrn.com/abstract=3054328 (October 19, 2017)

The past decade has seen two mega-regional intellectual property norm-setting exercises focusing on countries in the Asian Pacific region: the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP). Taken together, these two mega-regional norm-setting exercises will have unlimited potential to shape future copyright norms in the Asian Pacific region. For countries involved in either the TPP or RCEP negotiations, legal obligations concerning new protection and enforcement standards will have to be incorporated into domestic law once the applicable agreement enters into force. These standards can be quite burdensome, as they often exceed what is currently required by the WTO TRIPS Agreement. Countries that happen to be members of both the TPP and the RCEP will also have to be ready to resolve conflicts between these two agreements, should they arise. Even those countries that remain outside of the TPP or RCEP negotiations may end up accepting norms ...
%SOURCENAMEESCAPED%, REVISION: Climate Change Law, https://www.ssrn.com/abstract=3040312 (October 12, 2017)

Climate Change Law: Concepts & Insights (Foundation Press 2017) is the first book to provide a cogent synthesis of the legal system’s response to climate change. The book is written to be accessible to law students and others who are not experts in environmental or energy law. But it will also provide specialists with important insights into areas aligned with their own, such as introducing international law experts to energy issues and energy law experts to climate science and economics. Climate Change Law provides crisp introductions to U.S. energy regulation, the Clean Air Act, and federalism, as they bear on climate change regulation. The book also covers topic that are directly relevant for the United States but transcend any one country. Those topics include overviews of climate science, the economics of climate change, regulatory tools such as emissions trading, geo-engineering, climate adaptation, and international climate agreements. The book’s goals are not merely to ...
%SOURCENAMEESCAPED%, REVISION: Biobanking, Scientific Productions and Human Rights, http://www.ssrn.com/abstract=3048140 (October 9, 2017)

Biobanks have provided many important benefits. Yet, they have also raised many serious risks and concerns, especially in the area of privacy, autonomy and personal data protection. Because these concerns often implicate the rights of individual donors, biobank users, relevant family members and other individual third parties, a logical topic to explore is whether a violation of the rights of these individuals could rise to the level of a human right violation. Commissioned for a book on the legal, ethical and scientific challenges in international biobanking, this chapter provides a brief survey on three distinct sets of human rights issues, all related to biobanks. The first set concerns the human rights involved in the collection, processing, use or storage of the biological materials collected by biobanks. The second set pertains to the human rights issues implicated by the development of scientific productions utilizing the collected materials. The third set relates to the ...
%SOURCENAMEESCAPED%, REVISION: The RCEP and Intellectual Property Norm-setting in the Asia-Pacific, http://www.ssrn.com/abstract=2810579 (October 9, 2017)

Commissioned for the CEIPI-ICTSD Series on Global Perspectives and Challenges for the Intellectual Property System, this article examines the Regional Comprehensive Economic Partnership (RCEP) with a focus on the intellectual property norms it seeks to develop. It begins by briefly discussing the partnership’s historical origins and ongoing negotiations. It then examines the latest leaked draft of the RCEP intellectual property chapter, highlighting the key provisions concerning copyright and related rights, trademarks, patents, trade secrets and undisclosed information, and intellectual property enforcement. This article concludes by exploring three scenarios concerning the future of this chapter--namely, the lack of an intellectual property chapter, the inclusion of a TPP-like chapter and the eventual compromise on a TPP-lite chapter.
%SOURCENAMEESCAPED%, REVISION: When the Chinese Intellectual Property System Hits 35, http://www.ssrn.com/abstract=3043586 (October 4, 2017)

In 1982, China promulgated its first modern intellectual property law, offering protection to trademarks. Since then, China adopted the Patent Law in 1984, the Copyright Law in 1990 and the Anti-Unfair Competition Law in 1993. In December 2001, China finally became a member of the WTO, assuming obligations under the TRIPS Agreement. One can certainly debate about the actual age of the modern Chinese intellectual property system, but it will not be too far-fetched to suggest that the system began in the early to mid-1980s and is now entering, or approaching, its middle age. What exactly does a middle-aged Chinese intellectual property system mean? Will the system hit its prime? Or is it about to face a hard-to-predict mid-life crisis? Written for a special issue on 35 years of the Chinese intellectual property system, this article explores what it means for this system to hit 35. It begins by briefly recapturing the three phases of development of the system. In the style of David ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Negotiations, the BRICS Factor and the Changing North-South Debate, http://www.ssrn.com/abstract=2665414 (October 1, 2017)

Since the early 2000s, commentators have lumped Brazil, Russia, India, China and South Africa together under the BRICS acronym. In the past few years, the BRICS countries have also met annually to explore greater cooperation. Although their popularity and collective influence have recently declined, these countries have continued to garner academic and policy attention. As far as international normsetting is concerned, some of the BRICS countries, such as Brazil, China and India, have also assumed leadership in the developing world. This chapter focuses primarily on the presence, impact and significance of what I refer to as the "BRICS factor" in international trade and intellectual property negotiations. It begins by revisiting the negotiation of the WTO TRIPS Agreement. The chapter then explores the negotiation of TRIPS-plus bilateral, regional and plurilateral trade agreements, such as the recently signed Trans-Pacific Partnership Agreement and the yet-to-be-completed Regional ...

  

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