Jurisdynamics Network authors on SSRN

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%SOURCENAMEESCAPED%, New: Racing the Clock: Deadlines, Conflict, and Negotiation in Lawmaking, http://www.ssrn.com/abstract=2728895 (February 8, 2016)

Deadlines are a ubiquitous feature of lawmaking in contexts such diverse settings as agency rulemakings, federal appropriations, and international negotiations. Despite the expectation that these deadlines will drive conflicting parties toward agreement or overcome bureaucratic inertia, their impact on decision making is mixed, often producing only modest improvements in speed, and perhaps sometimes none at all. On the downside, deadlines can sometimes reduce the quality of decisions or encourage brinksmanship when missing a deadline would have draconian consequences. If there is a case for deadlines, then, it is an uneasy one. Game theory suggests some possibilities for to increase the effectiveness of deadlines as action-forcing strategies, such as improving information sharing between actors and providing enforcement mechanisms for negotiated outcomes.
%SOURCENAMEESCAPED%, New: Law and Economics: Contemporary Approaches, http://www.ssrn.com/abstract=2728030 (February 6, 2016)

A relatively narrow version of Law and Economics has dominated public policy for several decades. This school of thought has mainly focused on neoclassical microeconomics. It fails to recognize the pluralism of contemporary economics in general, and the relevance of macroeconomics in particular. So-called “market forces” are thoroughly intertwined with law and cannot be understood without some reference to history, sociology, psychology, and other social sciences. It is time for legal scholars to develop a law and economics curriculum that catches up with the advance of economics as a discipline. The urgent challenges of the 21st Century also call for a new Law and Economics. Solutions to problems such as extreme inequality, climate change, deindustrialization, infrastructure deterioration, underdevelopment, and financial instability will depend on deepening understandings of how economics is interrelated with complex legal rules and legal institutions. Lawyers with a more ...
%SOURCENAMEESCAPED%, New: Reforming the Law of Reputation, http://www.ssrn.com/abstract=2727955 (February 6, 2016)

Unfair and deceptive practices of controllers and processors of data have adversely affected many citizens. New threats to individuals’ reputations have seriously undermined the efficacy of extant regulation concerning health privacy, credit reporting, and expungement. The common thread is automated, algorithmic arrangements of information, which could render data properly removed or obscured in one records system, nevertheless highly visible or dominant in other, more important ones. As policymakers reform the law of reputation, they should closely consult European approaches to what is now called the “right to be forgotten.” Health privacy law, credit reporting, and criminal conviction expungement need to be modernized for the digital age to reflect the power of aggregating intermediaries. Search engines, social networks, and other digital tools may maintain the salience and power of certain information long after formal processes have determined it to be untrue, irrelevant, or ...
%SOURCENAMEESCAPED%, New: Synergy and Tradition: The Unity of Research, Service, and Teaching in Legal Education, http://www.ssrn.com/abstract=2727859 (February 5, 2016)

Most non-profit law schools generate public goods of enormous value: important research, service to disadvantaged communities, and instruction that both educates students about present legal practice and encourages them to improve it. Each of these missions informs and enriches the others. However, technocratic management practices menace law schools’ traditional missions of balancing theory and practice, advocacy and scholarly reflection, study of and service to communities. This article defends the unity and complementarity of law schools’ research, service, and teaching roles. (For those short on time, the chart on pages 45-46 encapsulates the conflicting critiques of law schools which this article responds to.)
%SOURCENAMEESCAPED%, New: Voter Viewpoint Discrimination: Reconsidering a First Amendment Challenge to Voter Participation Restrictions, http://www.ssrn.com/abstract=2726845 (February 4, 2016)

The Supreme Court's recent decision in Shelby County v. Holder has generated a flurry of scholarly thinking about alternative ways to approach legislatively enacted restrictions on voting rights. One alternative that deserves additional attention is the possibility of challenging voter participation restrictions (such as voter ID laws) as viewpoint discriminatory under existing First Amendment doctrine. Many of these laws, after all, are perceived as embodying a legislative choice to burden some voters but not others based on legislative expectations about how the most burdened voters are likely to vote. A viewpoint discrimination approach therefore seems ripe for further exploration. Part 1 of this paper explains why a First Amendment, viewpoint based challenge to at least some such laws is indeed appropriate. Part 2 uses existing First Amendment doctrine to ground the approach in existing case law, and to specify what it would look like in the election law context.
%SOURCENAMEESCAPED%, REVISION: What is (and Isn't) Healthism, http://www.ssrn.com/abstract=2646740 (February 1, 2016)

What does it mean to discriminate on the basis of health status? Health is, of course, relevant in a number of ways. It can speak to the length of our lives, our ability to perform mentally and physically, our need for health care, and our risk of injury and incapacity. But the mere relevance of a particular attribute does mean that considering it should be legally permissible. Moreover, the potential harms that may result from health-status discrimination raise important moral questions. This Essay explores when differentiating on the basis of health is socially acceptable and, by contrast, when it is normatively problematic. Given that variations in health may correlate strongly with the kinds of cost- and performance-related factors identified above, the authors provide a theoretical framework for assessing when considering health-related status is justifiable — perhaps even desirable — and when it is discriminatory.
%SOURCENAMEESCAPED%, REVISION: Supply and Demand: Barriers to a New Energy Future, http://www.ssrn.com/abstract=2180897 (January 13, 2016)

Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon-constrained world. Accounting for carbon has induced scholars to challenge the implicit assumption of the early scholarship that the price of energy reflects all important externalities, and that efficiency therefore can be assumed to mean the generation of the most energy at the lowest cost. Accounting for carbon also has contributed to the growing nexus between energy and environmental law, and has called on practitioners, regulators, and scholars to develop new regulatory solutions that integrate these previously ...
%SOURCENAMEESCAPED%, New: Fables of the Reconstruction: Human Emotion and Behavioral Heuristics in Environmental Economics, http://www.ssrn.com/abstract=2705196 (December 19, 2015)

Environmental economics provides an especially rich source of insights into the impact of emotion, cognitive bias, and behavioral heuristics on risk assessment and management. In contrast with the ambivalent reception of behavioral psychology within mathematical finance, the impact of emotion and innate heuristics on environmental decision making has never been doubted. From the affect heuristic to the endowment effect and disaster psychology, environmental choices harbor the richest trove of economic departures from strict rationality.
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Enforcement and Global Climate Change, http://www.ssrn.com/abstract=2252602 (December 15, 2015)

Issues lying at the intersection of intellectual property and climate change are hot. From the ongoing discussions under the U.N. Framework Convention on Climate Change to the Conference on Innovation and Climate Change held by the World Intellectual Property Organization, countries have actively explored ways to harness the intellectual property system to combat climate change and to reduce the accumulation of greenhouse gases. Notwithstanding these high profile events, intellectual property enforcement issues are rarely discussed in these fora. It would indeed be premature to discuss those issues when we still have no idea what types of international instruments will be developed to address the problems posed by climate change and what types of obligations these instruments will introduce. Nevertheless, if these instruments are to facilitate the development of meaningful policy responses, it is important that the rights they recognize be enforceable. This chapter focuses on ...
%SOURCENAMEESCAPED%, REVISION: Back to the Future? Legal Scholarship in the Progressive Era and Today, http://www.ssrn.com/abstract=2650463 (December 6, 2015)

This article introduces volume 100 of the Minnesota Law Review. Like much of legal scholarship today, Issue 1 was deeply and unapologetically embedded in the concerns of its day, which was on the cusp between the Progressive Era and the outbreak of World War I. It is not uncommon to contrast modern legal scholarship with some past era in which scholarship was more doctrinal, less policy oriented, and more focused on issues relevant to practicing lawyers. Yet, of the four articles in Issue 1 of the law review (published in 1917), two are international or comparative, and three (including the comparative article) rely on policy arguments rather than limiting themselves to doctrinal analysis. The subjects include children’s rights and the juvenile justice system along with American neutrality in World War I. Indeed, even by the late nineteenth Century, there were complaints that law professors and law school education had departed too far from the realities of legal practice. The ...
%SOURCENAMEESCAPED%, New: Unconstitutional Quartering, Governmental Immunity, and Van Halen's Brown M&M Test, http://www.ssrn.com/abstract=2698885 (December 4, 2015)

The jurisprudence of the Third Amendment, which limits the quartering of troops in private homes, effectively consists of just one case: Engblom v. Carey. But what a case! In addition to showcasing an unjustly neglected corner of our constitutional heritage, Engblom demonstrates the troubling effects of a dubious legal doctrine: governmental immunity. Though the court of appeals had held New York officials potentially liable for violating the Third Amendment when they had quartered National Guard troops in the dormitory rooms of striking prison guards, the lower court on remand in Engblom denied the plaintiffs a remedy. Why? Because throughout the United States, all levels of government — federal, state, and local — enjoy immunity from civil lawsuits. Courts have moreover extended this privilege from sovereigns to their officials; hence Engblom’s refusal to hold New York officials liable for violating the Third Amendment and various common law rights. Few people today worry about the ...
%SOURCENAMEESCAPED%, REVISION: Regulatory Exit, http://www.ssrn.com/abstract=2482392 (December 2, 2015)

Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for businesses and individuals, the topic of exit has barely been touched in administrative law scholarship. Yet exit plays just as central a role in the regulatory state as elsewhere – welfare support ends; government steps out of rate-setting. In this article, we argue that exit is a fundamental feature of regulatory design and should be explicitly considered at the time of program creation. Part I starts from first principles and sets out the basic features of regulatory exit. It addresses the design challenges of exit strategies and how to measure success of exit. With these descriptive and normative foundations in place, Part II develops a framework that explains the four ...
%SOURCENAMEESCAPED%, REVISION: Measuring, Monitoring, and Managing Legal Complexity, http://www.ssrn.com/abstract=2566535 (December 2, 2015)

The American legal system is often accused of being “too complex.” For example, most Americans believe the Tax Code is too complex. But what does that mean, and how would one prove the Tax Code is too complex? The descriptive claim that an element of law is complex, and the normative claim that it is too complex, should be empirically testable hypotheses, yet in fact very little is known about how to measure legal complexity, much less to monitor and manage it. Legal scholars have begun to employ the science of complex adaptive systems, also known as complexity science, to probe these kinds of descriptive and normative questions about the legal system. This body of work has focused primarily on developing theories of legal complexity and positing reasons for, and ways of, managing it. Legal scholars thus have skipped the hard part — developing quantitative metrics and methods for measuring and monitoring law’s complexity. But the theory of legal complexity will remain stuck in ...
%SOURCENAMEESCAPED%, REVISION: Country-by-Country Reporting and Commercial Confidentiality, http://www.ssrn.com/abstract=2692791 (November 20, 2015)

Country-by-country reporting (CBCR) has been touted by the Organization for Economic Co-operation and Development (OECD) as a possible reform effort to inhibit aggressive international tax planning that leads to revenue losses for high-tax countries. Under current accounting, tax-law, and securities-law regimes, multinational enterprises (MNEs) are generally not required to report to domestic tax authorities or disclose to the public any significant financial information concerning their operations in foreign countries. CBCR would change this environment so that MNEs would be required to annually report financial information, including revenue, profit before income tax, and income tax paid in respect of every country in which they operate. Under the current OECD proposal, MNEs will be required to disseminate this information to tax authorities on a confidential basis and will not be required to disclose any information to the public. This article evaluates, from a transaction cost ...
%SOURCENAMEESCAPED%, New: Intellectual Property, Asian Philosophy and the Yin-Yang School, http://www.ssrn.com/abstract=2693420 (November 20, 2015)

Written for a special issue on intellectual property philosophy, this article begins by providing a brief discussion of the many different schools of Asian philosophy, including those in China and India. Although Confucianism has garnered considerable attention in intellectual property literature, the nexus between Asian philosophy and the notion of intellectual property rights remains largely understudied. Thus, instead of revisiting the debate on intellectual property and Confucianism, this article aims to introduce to the Western audience Yin-Yang, one of the six dominant ancient schools of Chinese philosophy. It argues that this school’s focus on contexts, relationships and adaptiveness and its high tolerance for contradictions have made it particularly well-equipped to address the ongoing intellectual property challenges concerning both emerging economies and the digital environment.
%SOURCENAMEESCAPED%, REVISION: The Comparative Economics of International Intellectual Property Agreements, http://www.ssrn.com/abstract=2334107 (November 12, 2015)

Using the WTO TRIPS Agreement as a case study, this book chapter provides a comparative economic analysis of international intellectual property agreements as they relate to both developed and developing countries. Specifically, this chapter discusses three different aspects of the TRIPS Agreement: (1) protection standards; (2) enforcement standards; and (3) the dispute settlement procedure. As this chapter will show, the economic picture concerning the implementation and operation of the TRIPS Agreement in developed countries is drastically different from the corresponding picture of developing countries. As a result, countries need to think more deeply about the Agreement's differing economic impacts.
%SOURCENAMEESCAPED%, REVISION: The Transplant and Transformation of Intellectual Property Laws in China, http://www.ssrn.com/abstract=2645010 (November 11, 2015)

The history of intellectual property laws in China is a history of legal transplants. From the introduction of intellectual property laws during the late Qing dynasty and the Republican era to the recent laws and amendments adopted by the People’s Republic, legal transplant was the primary means by which the modern Chinese intellectual property regime was established. This chapter begins with a brief history of the transplant of intellectual property laws in China. It then examines the drawbacks and benefits of legal transplants. The chapter further discusses four key questions that policymakers should consider when transplanting laws from abroad. The answers to these questions, in turn, may result in not only transplant but also transformation. Although this chapter focuses on China, the discussion here is likely to be relevant to other jurisdictions.
%SOURCENAMEESCAPED%, REVISION: The Anatomy of the Human Rights Framework for Intellectual Property, http://www.ssrn.com/abstract=2653148 (November 10, 2015)

Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to the interplay of intellectual property rights and human rights in the area of scientific productions. Aiming to fill the lacuna, this article focuses on the complex interactions among scientific productions, patent rights, and human rights. It begins by outlining the various arguments for or against recognizing patent rights as human ...
%SOURCENAMEESCAPED%, New: A Confederate History in the Yale Law Journal, http://www.ssrn.com/abstract=2688065 (November 10, 2015)

This essay revisits Yale history professor Allen Johnson’s article “The Constitutionality of the Fugitive Slave Acts,” which appeared in the Yale Law Journal in December 1921. Johnson wrote about a law that had been nullified by the Civil War and the Thirteenth Amendment nearly 70 years before. His article was part of the scholarly reconsideration of the origins of Civil War designed to reconcile North and South. Northerners, especially Northern scholars, blamed the Civil War on fanatics on both sides and in some ways exculpated Southerners for their role in the War. While scholars of memory have explored the rewriting of history in the early twentieth century, no one has noticed how it stretched outside of history books and into the pages of the distinguished Yale Law Journal. The efforts to re-write constitutional history and to defend the south’s case for one of the most reviled acts in American history reached into territory and to scholars we had not previously known. ...
%SOURCENAMEESCAPED%, New: Redescribing Health Privacy: The Importance of Information Policy, http://www.ssrn.com/abstract=2685696 (November 4, 2015)

Current conversations about health information policy often tend to be based on three broad assumptions. First, many perceive a tension between regulation and innovation. We often hear that privacy regulations are keeping researchers, companies, and providers from aggregating the data they need to promote innovation. Second, aggregation of fragmented data is seen as a threat to its proper regulation, creating the risk of breaches and other misuse. Third, a prime directive for technicians and policymakers is to give patients ever more granular methods of control over data. This article questions and complicates those assumptions, which I deem (respectively) the Privacy Threat to Research, the Aggregation Threat to Privacy, and the Control Solution. This article is also intended to enrich our concepts of “fragmentation” and “integration” in health care. There is a good deal of sloganeering around “firewalls” and “vertical integration” as idealized implementations of “fragmentation” ...
%SOURCENAMEESCAPED%, Update: Virtuous Billing, http://www.ssrn.com/abstract=2670628 (November 3, 2015)

Aristotle tells us, in his Nicomachean Ethics, that we become ethical by building good habits and we become unethical by building bad habits: “excellence of character results from habit, whence it has acquired its name (êthikê) by a slight modification of the word ethos (habit).” Excellence of character comes from following the right habits. Thinking of ethics as habit-forming may sound unusual to the modern mind, but not to Aristotle or the medieval thinkers who grew up in his long shadow. “Habit” in Greek is “ethos,” from which we get our modern word, “ethical.” In Latin, habits are moralis, which gives us the word, “moral.” Aristotle explains that we cannot alter nature by practice: we cannot teach or train a rock to roll up a hill no matter how often we throw it up. But we can alter ourselves by practice. We can train ourselves to be ethical by practice, just as we learn to play the harp by practice. It is a timeless adage that when analyzing the unacceptable behavior of others, ...
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%SOURCENAMEESCAPED%, REVISION: Liability for Online Anonymous Speech: Comparative and Economic Analyses, http://www.ssrn.com/abstract=2448706 (November 2, 2015)

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%, New: Momentary Lapses of Reason: The Psychophysics of Law and Behavior, http://www.ssrn.com/abstract=2683557 (October 30, 2015)

The conventional capital asset pricing model (CAPM) remains the preferred approach to risk management in a wide range of economic settings. At the same time, the neoclassical assumptions underlying the CAPM have come under severe attack by behavioral economics. In sharp contrast with the purely rational agents of neoclassical economics, real humans make decisions under the constraints imposed by their innate heuristics. The tension between conventional asset pricing theory and behavioral economics puts particular pressure on law. As an applied branch of social science, law purports to subject human conduct to rules that should optimize objective well-being as well as subjective satisfaction. This paper proposes a mathematically expedient method of alleviating this tension. A four-moment capital asset pricing model captures the emotional impact of odd and even moments of statistical distributions. Critically, a four-moment CAPM transcends the limits of financial models that ...
%SOURCENAMEESCAPED%, REVISION: Climate Adaptation Law, http://www.ssrn.com/abstract=2514173 (October 24, 2015)

In anticipation of the inevitable shift from adaptation planning to adaptation action, this chapter provides a background on climate change adaptation policy and a survey of climate impacts and adaptation responses likely to put some demand on legal institutions and rules. Part II defines the key concepts and terms of climate change adaptation as it has been discussed in major policy analyses. Part III then summarizes the scope and focus of federal, state, local, tribal, and private climate change adaptation planning initiatives. Part IV reviews the current law of climate change adaptation, which as mentioned above is not yet extensive. What few morsels of legal initiative exist break down into five types: (1) coastal land use controls; (2) environmental impact assessment programs; (3) corporate disclosure requirements; (4) endangered species protection; and (5) anti-adaptation measures. Part VI surveys the potential legal issues climate change adaptation could spark, organized ...
%SOURCENAMEESCAPED%, REVISION: Managing Systemic Risk in Legal Systems, http://www.ssrn.com/abstract=2212212 (October 24, 2015)

The American legal system has proven remarkably robust even in the face vast and often tumultuous political, social, economic, and technological change. Yet our system of law is not unlike other complex social, biological, and physical systems in exhibiting local fragility in the midst of its global robustness. Understanding how this “robust yet fragile” (RYF) dilemma operates in legal systems is important to the extent law is expected to assist in managing systemic risk — the risk of large local or even system-wide failures — in other social systems. Indeed, legal system failures have been blamed as partly responsible for disasters such as the recent financial system crisis and the Deepwater Horizon oil spill. If we cannot effectively manage systemic risk within the legal system, however, how can we expect the legal system to manage systemic risk elsewhere? This Article employs a complexity science model of the RYF dilemma to explore why systemic risk persists in legal systems ...
%SOURCENAMEESCAPED%, New: In Defense of Ecosystem Services, http://www.ssrn.com/abstract=2676893 (October 22, 2015)

Prepared for the Pace’s 2014 Lloyd K. Garrison Lecture, this provides a brief overview of the history of the ecosystem services framework in law and policy, status report on where it is today, and assessment of critiques, closing with proposed principles for its responsible use.
%SOURCENAMEESCAPED%, New: Does Congress Exist?, http://www.ssrn.com/abstract=2676887 (October 21, 2015)

Prepared for Florida State’s conference on “Environmental Law without Congress,” this is a sometimes tongue-in-cheek history of the Endangered Species Act, suggesting it is an example of “environmental law deism” given Congress’s long period of dormancy.
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Negotiations, the China Factor and the Changing North-South Debate, http://www.ssrn.com/abstract=2665414 (October 14, 2015)

This year marks the 20th anniversary of the entering into effect of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) — the most comprehensive international intellectual property agreement to date. It is therefore apropos to revisit the negotiation of this historical agreement. Even better, the TRIPS negotiations can be instructively contrasted with the ongoing negotiation of various TRIPS-plus bilateral, regional and plurilateral trade agreements. Because of the wide range of nonmultilateral agreements, this article focuses on only the comparison between the TRIPS and Trans-Pacific Partnership negotiations. After examining these negotiations, this article, which was commissioned for a symposium on "Emerging Powers and the Future of the WTO," explores the indirect and direct roles that China has played in international trade and intellectual property negotiations. This discussion seeks to highlight the China factor in these negotiations. The ...
%SOURCENAMEESCAPED%, New: TRIPS Wars: Developing Countries Strike Back, http://www.ssrn.com/abstract=2671664 (October 13, 2015)

This chapter focuses on the "TRIPS Wars," which involved the developed countries' repeated strikes on the sovereignty, autonomy and policy space of developing countries. These strikes began with the establishment of the TRIPS Agreement, which was then followed by the increasing efforts to establish TRIPS-plus non-multilateral agreements. Notwithstanding these repeated strikes, developing countries have been learning fast. After a decade of mobilization and adjustments, they have now slowly acquired the ability to launch counter-strikes. These counter-strikes are important because they may provide the flashpoints at which tensions and conflicts arise within the international intellectual property regime. This chapter begins by discussing the impact of the TRIPS Agreement and TRIPS-plus non-multilateral agreements on developing countries. It then examines the developing countries' counter-strikes at the WTO — including those at the Doha Round negotiations, within the TRIPS Council ...
%SOURCENAMEESCAPED%, New: Virtuous Billing, http://www.ssrn.com/abstract=2670628 (October 11, 2015)

Aristotle tells us, in his Nicomachean Ethics, that we become ethical by building good habits and we become unethical by building bad habits: “excellence of character results from habit, whence it has acquired its name (êthikê) by a slight modification of the word ethos (habit).” Excellence of character comes from following the right habits. Thinking of ethics as habit-forming may sound unusual to the modern mind, but not to Aristotle or the medieval thinkers who grew up in his long shadow. “Habit” in Greek is “ethos,” from which we get our modern word, “ethical.” In Latin, habits are moralis, which gives us the word, “moral.” Aristotle explains that we cannot alter nature by practice: we cannot teach or train a rock to roll up a hill no matter how often we throw it up. But we can alter ourselves by practice. We can train ourselves to be ethical by practice, just as we learn to play the harp by practice. It is a timeless adage that when analyzing the unacceptable behavior of others, ...
%SOURCENAMEESCAPED%, New: Who Should Be Liable for Online Anonymous Defamation?, http://www.ssrn.com/abstract=2671399 (October 10, 2015)

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: Indexing Inflation: The Impact of Methodology on Econometrics and Macroeconomic Policy, http://www.ssrn.com/abstract=2474949 (October 8, 2015)

Because there is no perfect gauge of inflation, the macroeconomic enterprise of indexing inflation ultimately dissolves into a choice among imperfect methodologies. But that choice still matters. This article will highlight the practical significance of methodological choices made in the course of indexing inflation. It will focus on two different indexes of inflation in the United States: the Consumer Price Index (CPI) and the implicit price deflator of the gross domestic product (IPD). This article identifies a long-term gap in these competing indexes’ measurement of inflation. To explain why the CPI appears to overstate inflation, relative to the IPD, by roughly two-thirds of a percentage point each year, this article more fully describes the distinct methodologies underlying the CPI and the IPD. Lawmakers should adopt the implicit price deflator of the GDP, or some other inflation index that shares its best methodological features, as the best practicable measure of real ...
%SOURCENAMEESCAPED%, REVISION: Leaps, Metes, and Bounds: Innovation Law and Its Logistics, http://www.ssrn.com/abstract=2571830 (October 8, 2015)

Economic analysis of technological innovation, diffusion, and decline often proceeds according to sigmoid (S-shaped) models, either directly or as a component in more elaborate mathematical representations of the creative process. Three distinct aspects of American innovation policy — Aereo’s failed attempt to retransmit television broadcasts, agricultural biotechnology, and network neutrality — invite analysis according to one variant or another of the logistic function. Innovation and legal policies designed to foster it follow the leaps, metes, and bounds of sigmoid functions. Part I introduces the logistic function as the simplest analytical expression of a sigmoid function. Its parameters provide very clear interpretations grounded in physical principles. Part II evaluates the Aereo controversy and agricultural biotechnology as instances of logistic substitution between competing products. The deployment of plant-incorporated pesticides and herbicide-resistant crops ...
%SOURCENAMEESCAPED%, New: Big Data and Tax Haven Secrecy, http://www.ssrn.com/abstract=2670156 (October 6, 2015)

While there is now a significant literature in law, politics, economics, and other disciplines that examines tax havens, there is little information on what tax haven intermediaries — so-called offshore service providers — actually do to facilitate offshore evasion, international money laundering and the financing of global terrorism. To provide insight into this secret world of tax havens, this Article relies on the author’s study of big data derived from the financial data leak obtained by the International Consortium for Investigative Journalists (ICIJ). A hypothetical involving Breaking Bad’s Walter White is used to explain how offshore service providers facilitate global financial crimes. The Article deploys a transaction cost perspective to assist in understanding the information and incentive problems revealed by the ICIJ data leak, including how tax haven secrecy enables elites in non-democratic countries to transfer their monies for ultimate investment in stable democratic ...
%SOURCENAMEESCAPED%, REVISION: Enforcement: A Neglected Child in the Intellectual Property Family, http://www.ssrn.com/abstract=2662834 (September 25, 2015)

Effective enforcement is essential to the protection of intellectual property rights. Without enforcement, these rights will be of little value. Although intellectual property enforcement has been around for as long as intellectual property rights exist, the topic has not caught much attention from intellectual property commentators and instructors until the past decade. Today, there remains a dearth of theoretical literature on intellectual property enforcement, and specialized courses on this specific topic are particularly rare. Many instructors of intellectual property courses also fail to devote significant course time to provide an in-depth exploration in this area. Oftentimes, remedies are discussed either at the end of the course or in conjunction with infringements. This chapter begins by identifying four different types of enforcement issues that intellectual property commentators and instructors usually explore, including obligations under the WTO TRIPS Agreement. It ...
%SOURCENAMEESCAPED%, REVISION: Enforcement: An Overlooked Child of the Intellectual Property Family, http://www.ssrn.com/abstract=2662834 (September 23, 2015)

Effective enforcement is essential to the protection of intellectual property rights. Without enforcement, these rights will be of little value. Until recently, however, intellectual property enforcement has not caught much attention from intellectual property commentators and instructors. Even today, there remains a dearth of theoretical literature on intellectual property enforcement. Most instructors of intellectual property courses also fail to devote significant course time to provide an in-depth exploration in this area. This chapter begins by identifying four different types of enforcement issues that intellectual property commentators and instructors usually explore, including obligations under the WTO TRIPS Agreement. It then discusses why enforcement remains an overlooked child of the intellectual property family. It further suggests two different tracks — the digital track and the global track — to help integrate enforcement back into its larger family. The chapter ...
%SOURCENAMEESCAPED%, REVISION: The Legal and Regulatory Status of Biosimilars: How Product Naming and State Substitution Laws May Impact the U.S. Healthcare System, http://www.ssrn.com/abstract=2555794 (September 22, 2015)

Alongside the Constitutional controversy ultimately addressed by the Supreme Court, the colossal Patient Protection and Affordable Care Act (ACA) ushered in a new paradigm for regulation of biologics by the Food and Drug Administration (FDA). Nestled within the expansive ACA, the Biologics Price Competition and Innovation Act (BPCIA) set forth an abbreviated pathway to market for “biosimilar” and “interchangeable” biosimilar biological products. While the current BPCIA implementation debate focuses chiefly on the scope of scientific and technical assessments by the FDA and the effect on the emergent biosimilar industry, two issues will prove essential for determinations of access to and costs of the resulting products: how the biosimilar and interchangeable biosimilar biologics are to be named, and whether pharmacist substitution is appropriate for products deemed interchangeable by the FDA. Both naming practices and state substitution laws will have tremendous ramifications ...
%SOURCENAMEESCAPED%, REVISION: REMS as a Competitive Tactic: Is Big Pharma Hijacking Drug Access and Patient Safety?, http://www.ssrn.com/abstract=2555791 (September 22, 2015)

Recent amendments to the Food, Drug, and Cosmetic Act give authority to the Food and Drug Administration (FDA) to require risk evaluation and mitigation strategies (REMS) either as a condition for new drug approval or for continued marketing and distribution of an existing drug. The goal of instituting REMS for particular products is to provide ongoing assurance that the benefits continue to outweigh the risks once a drug is on the market and in widespread use by consumers. REMS take many forms and may require a medication guide for patients; prescription physician information; communications to health care providers and pharmacies; limitations on labeling, promotion, and prescribing to assure safe use by patients; and a detailed plan for REMS implementation. The FDA has since effectuated over 70 REMS programs for new and already-approved drug products, with over 30 of those REMS containing requirements setting limitations on distribution, access, and use. While the ...
%SOURCENAMEESCAPED%, New: 'He Said, She Said,' With A Twist, http://www.ssrn.com/abstract=2097522 (September 18, 2015)

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%, New: Getting Incentives Righter, http://www.ssrn.com/abstract=2660317 (September 15, 2015)

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: Ranking Law Schools with LSATs, Employment Outcomes, and Law Review Citations, http://www.ssrn.com/abstract=2456032 (September 14, 2015)

This paper returns to the much-discussed topic of ranking law schools. Where U.S. News & World Report includes a wide variety of factors – some of which are criticized as irrelevant to what prospective students care about or should care about – this paper looks to three variables. They are median LSAT score of entering students, which seeks to capture the quality of the student body; the percentage of the graduating students who are employed at 9 months following graduation at full-time, permanent JD required jobs (a separate analysis excludes school-funded positions and solo practitioners from this variable); and the number of citations to each school’s main law review, which seeks to capture a school’s recent reputation. It rank orders each of those variables, averages those ranks to obtain a new ranking, and then compares those new rankings to the U.S. News & World Report rankings of the 147 schools for which U.S. News provided ranks in March 2014. It identifies the schools that ...
%SOURCENAMEESCAPED%, New: Of Judges, Law, and the River: Tacit Knowledge and the Judicial Role, http://www.ssrn.com/abstract=2657793 (September 10, 2015)

Judges and commentators on judging have long recognized that the judicial role frequently requires its holders to draw upon some source of inarticulable knowledge. Judge Joseph Hutcheson spoke of it in terms of “intuition,” Karl Llewellyn by reference to “situation sense,” and Justice Potter Stewart by reference to the phrase “I know it when I see it.” This essay, prepared in connection with a conference on judicial education, addresses the topic in terms of philosopher Michael Polanyi’s concept of “tacit knowledge.” Using the example of judging in aesthetic sports as a means of illustration, I suggest that our efforts to identify and limit the influence of improper unconscious influences — ideology, cognitive biases, and the like — must be tempered by a recognition of the ways in which judging necessarily, and desirably, draws on the proper sorts of unconscious influences that make up judges’ base of tacit knowledge.
%SOURCENAMEESCAPED%, New: The Incremental Development of the ASEAN–China Strategic Intellectual Property Partnership, http://www.ssrn.com/abstract=2657358 (September 10, 2015)

In November 2000, a few years after the Asian Financial Crisis, Premier Zhu Rongji announced China's interest in developing a free trade area with ASEAN within a decade. Since then, the two trading powers have established a framework agreement as well as agreements on trade in goods, trade in services and investment. They have also developed memoranda of understanding on cooperation in the fields of agriculture, sanitation and phytosanitation, intellectual property, and standards, technical regulations and conformity assessment. Taken together, these instruments help build the ASEAN–China Free Trade Area (ACFTA) to serve important economic, geopolitical and strategic goals. This chapter focuses on the cooperation between ASEAN and China in the intellectual property arena. It begins by recounting the historical development of ACFTA. It also briefly examines the provisions in the Memorandum of Understanding on Cooperation in the Field of Intellectual Property. The chapter then ...
%SOURCENAMEESCAPED%, New: David Foster Wallace on Tax Policy, How to Be an Adult, and Other Mysteries of the Universe, http://www.ssrn.com/abstract=2658269 (September 9, 2015)

As one of the most highly acclaimed fiction writers of his generation, David Foster Wallace had many things to say on a seemingly endless variety of topics. In his last work, the unfinished novel The Pale King, he chose to elaborate on, of all things, tax policy and tax administration. Wallace directed tax topics at one of the novel’s main themes: true adulthood often involves overcoming boredom in the workplace to derive a sense of community and care for others. In a sense, the book serves as a guide on how to become a reasonably happy and fulfilled adult. This Article integrates archival research conducted by the author within the Collected Works of David Foster Wallace at the Harry Ransom Center at the University of Texas at Austin.
%SOURCENAMEESCAPED%, REVISION: Trade Secret Hacking, Online Data Breaches, and China's Cyberthreats, http://www.ssrn.com/abstract=2638027 (September 8, 2015)

Online hacking from China, Iran, North Korea, Russia, and other parts of the world has caught the attention of U.S. policymakers, commentators, and the American public. For example, the discussion of the systematic attacks launched by potentially government-sponsored Chinese hackers reinforces the view that China is using all means necessary to compete against the United States. Most recently, the unprecedented cyberattack on Sony's movie studio also delayed and scaled back the nationwide theatrical release of the film The Interview. This attack led President Obama to call for greater cooperation between the government and the private sector to protect cybersecurity and the country's critical infrastructure. Commissioned by the Cardozo Law Review for the symposium on "Data Breaches: Moving Forward, Practically," this article closely examines the ongoing debate on China's sustained effort in using online hacking and other intrusive techniques to steal trade secrets and proprietary ...
%SOURCENAMEESCAPED%, New: Four Futures of Legal Automation, http://www.ssrn.com/abstract=2652772 (September 2, 2015)

Simple legal jobs (such as document coding) are prime candidates for legal automation. More complex tasks cannot be routinized. So far, the debate on the likely scope and intensity of legal automation has focused on the degree to which legal tasks are simple or complex. Just as important to the legal profession, however, is the degree of regulation or deregulation likely in the future. Situations involving conflicting rights, unique fact patterns, and open-ended laws will remain excessively difficult to automate for an extended period of time. Deregulation, however, may effectively strip many persons of their rights, rendering once-hard cases simple. Similarly, disputes that now seem easy, because one party is so clearly in the right, may be rendered hard to automate by new rules that give now-disadvantaged parties new rights. By explaining how each of these reversals could arise, this Essay combines technical and sociological analyses of the future of legal automation. We conclude ...
%SOURCENAMEESCAPED%, New: Law's Acceleration of Finance: Redefining the Problem of High-Frequency Trading, http://www.ssrn.com/abstract=2654269 (September 2, 2015)

High-frequency traders automate stock trading, placing thousands of orders over fractions of a second. Their algorithmic strategies are all too often mere rule manipulation or methods of using brute speed to gain advantages over rivals. Normative evaluation of finance’s algorithms must take into account the sector’s social function: to spur efficient, fair, and sustainable investment practices. The complex modeling deployed in high-frequency trading does not reliably contribute to these goals. Therefore, rather than straining to accommodate high-frequency trading strategies, regulators should eliminate many of them.
%SOURCENAMEESCAPED%, New: The Spectrum of Control: A Social Theory of the Smart City, http://www.ssrn.com/abstract=2653860 (September 1, 2015)

There is a certain allure to the idea that cities allow a person to both feel at home and like a stranger in the same place. That one can know the streets and shops, avenues and alleys, while also going days without being recognized. But as elites fill cities with “smart” technologies — turning them into platforms for the “Internet of Things” (IoT): sensors and computation embedded within physical objects that then connect, communicate, and/or transmit information with or between each other through the Internet — there is little escape from a seamless web of surveillance and power. This paper will outline a social theory of the “smart city” by developing our Deleuzian concept of the “spectrum of control.” We present two illustrative examples: biometric surveillance as a form of monitoring, and automated policing as a particularly brutal and exacting form of manipulation. We conclude by offering normative guidelines for governance of the pervasive surveillance and control mechanisms ...
%SOURCENAMEESCAPED%, New: The Eugenics Movement in North Carolina, http://www.ssrn.com/abstract=2650083 (August 30, 2015)

“The Eugenics Movement in North Carolina” places North Carolina into the social, political, and legal context of the movement in the United States that resulted in the sterilization of more than thirty thousand people from the 1920s through the 1960s. We sketch the social and political arguments that were mobilized to support sterilization, as well as the arguments judges developed alongside these arguments from the 1910s through the 1930s. State courts slowly accepted sterilization until the United States Supreme Court’s decision in 1927 in Buck v. Bell. Then courts and legislatures around the United States more readily accepted it, even as legal scholars expressed reservations about sterilization. North Carolina was one of those states that embraced sterilization. The machinery of the state went into facilitating sterilization. The Eugenics Board of North Carolina, the state board in charge of reviewing petitions from public health officials for sterilization, produced ...
%SOURCENAMEESCAPED%, New: Law on the Market? Evaluating the Securities Market Impact of Supreme Court Decisions, http://www.ssrn.com/abstract=2649726 (August 24, 2015)

Do judicial decisions affect the securities markets in discernible and perhaps predictable ways? In other words, is there “law on the market” (LOTM)? This is a question that has been raised by commentators, but answered by very few in a systematic and financially rigorous manner. Using intraday data and a multiday event window, this large scale event study seeks to determine the existence, frequency and magnitude of equity market impacts flowing from Supreme Court decisions. We demonstrate that, while certainly not present in every case, "law on the market" events are fairly common. Across all cases decided by the Supreme Court of the United States between the 1999-2013 terms, we identify 79 cases where the share price of one or more publicly traded company moved in direct response to a Supreme Court decision. In the aggregate, over fifteen years, Supreme Court decisions were responsible for more than 140 billion dollars in absolute changes in wealth. Our analysis not only ...
%SOURCENAMEESCAPED%, REVISION: What Can Corporations Teach Governments About Democratic Equality?, http://www.ssrn.com/abstract=2622627 (August 21, 2015)

Democracies place great faith in the principle of one-person/one-vote. Business corporations and other private entities, in contrast, typically operate under the one-share/one-vote rule, allocating control in proportion to ownership. Why the difference? In times past, we might have cited the differing ends of public and private institutions. Whereas public democracies aim at promoting the general welfare of an entire political community, private entities aim at more specific goals, such as generating profits or managing a cooperative residence. As business entities have grown in size and in the range of services they provide, however, the distinction between public and private governance has grown blurry. Brooklyn’s Co-Op City, for instance, provides more than 50,000 shareholder-tenants with housing, utilities, stores, offices, schools, parks, security, and other services normally provided by a municipality. The largest homeowners association in the United States, Highlands ...
%SOURCENAMEESCAPED%, REVISION: The Confuzzling Rhetoric Against New Copyright Exceptions, http://www.ssrn.com/abstract=2466544 (August 11, 2015)

In recent years, Australia, Canada, the United States, Ireland, the United Kingdom and other members of the European Union have been busy exploring ways to modernize their copyright laws. In many of these jurisdictions, new copyright exceptions have been introduced or proposed to promote internet users’ access to digital content. Meanwhile, the copyright industries remain adamantly opposed to introducing these exceptions. Published in the inaugural issue of Kritika, this article scrutinizes seven of the industries’ most widely used arguments. Drawing on examples from digital copyright reform in Hong Kong and other jurisdictions, the article explains why the industries’ arguments have thus far been unconvincing. It also calls on policymakers and legislators to critically evaluate these arguments, lest they lead to wrong policy choices that harm internet users and the public at large.
%SOURCENAMEESCAPED%, REVISION: Employers United: An Empirical Analysis of Corporate Political Speech in the Wake of the Affordable Care Act, http://www.ssrn.com/abstract=2138828 (August 8, 2015)

Is the Patient Protection and Affordable Care Act (ACA) bad for business? Did the countries' most prominent companies game the Securities and Exchange Commission (SEC) disclosure process to make negative political statements about ObamaCare? Immediately following the ACA's enactment on March 23, 2010, a number of companies drew scrutiny for issuing SEC filings writing off millions – and in AT&T's case, one billion dollars – against expected earnings for 2010 alone, based on a single, discrete tax-law change in the ACA. Congressional and Administration officials accused the firms of being "irresponsible" and using "big numbers to exaggerate the health reform's burden on employers." To further test the suggestion that these disclosures were politically motivated, we searched all publicly filed SEC real-time and scheduled filings for the quarter following the ACA's enactment. We identified 147 firms that issued SEC disclosures relevant to the tax-law change, writing off a total of five ...
%SOURCENAMEESCAPED%, REVISION: Death Panels and the Rhetoric of Rationing, http://www.ssrn.com/abstract=2147468 (August 8, 2015)

This essay offers an explanation for the United States' continued resistance to universal health care as grounded in two taboos: taxation and rationing. Even we were willing to pay more in taxes to directly subsidize the cost of medical care for those in need, rather than our current system of indirect subsidization through private insurance risk-pooling and cost-shifting, we still would face the unavoidable reality of resource limitations. Attempts to limit resource consumption, however, have been strongly opposed, as evidenced by the "death panels" controversy. Governor Palin's grossly erroneous characterization of the Patient Protection and Affordable Care Act (ACA) rendered one ACA provision, regarding end-of-life planning, impassable and another, regarding comparative effectiveness research, largely impotent. Even these patient-centered, autonomy-favoring provisions could not be fully enacted once tainted by the suggestion that they would result in rationing of health care. ...
%SOURCENAMEESCAPED%, REVISION: Crafting a Narrative for the Red State Option, http://www.ssrn.com/abstract=2328614 (August 8, 2015)

This Article examines the current state of play following the Supreme Court's decision in NFIB v. Sebelius to allow states the option of expanding their Medicaid programs in accordance with the Patient Protection and Affordable Care Act (ACA). Holding that mandatory expansion was unconstitutionally coercive, the Court created the Red State Option. Despite the enormously generous federal financial support for Medicaid expansion, close to half of the states have declined. At the same time, at least eight Republican-led states have crossed Tea Party lines to accept federal funding for expansion. Drawing lessons from these states, including Arkansas, Arizona, Michigan, and Florida, the Article articulates key elements of a Red State Narrative that would allow other reluctant states to come around to expansion without losing political face.
%SOURCENAMEESCAPED%, REVISION: Best Practices for a State Alzheimer's Disease Registry: Lessons from Georgia, http://www.ssrn.com/abstract=2592461 (August 8, 2015)

In May 2014, the Georgia General Assembly enacted legislation establishing the Alzheimer’s Disease Registry (“Registry”) in order to generate new data for research and policy planning. The Task Force bill followed similar federal legislation. This state action has not only drawn tremendous attention to the continued prevalence of Alzheimer’s disease among the population of Georgia but also raised a series of questions regarding the practicability, legality, and effectiveness of the Registry. The lessons learned in Georgia, as Registry implementation moves forward, will provide guidance for other states interested in collecting similar data. In Part I of this article we describe the legislative history and operation of the Registry. In Part II we compare the two other population-based Alzheimer’s disease registries in the United States. In Part III we identify legal and ethical problems that may arise as the Registry becomes fully operational. In Part IV we identify specific ...
%SOURCENAMEESCAPED%, REVISION: The Fragility of the Affordable Care Act's Universal Coverage Strategy, http://www.ssrn.com/abstract=2592492 (August 8, 2015)

This Essay examines the very fragile nature of the Patient Protection and Affordable Care Act’s (ACA) approach to near-universal health insurance coverage, as accentuated by a variety of implementation hurdles and challenges. The ACA’s vision for expanding insurance coverage was to build on our existing patchwork of market-based health insurance delivery for most, combined with government insurance for select segments of the population. But that patchwork strategy is only as strong as the threads that tie it together. Over the past four and a half years since the ACA was enacted, the threads have unraveled in several critical spots. The essay examines the impact and potential impact of judicial, administrative, and other attacks on three key areas of reform: government health care programs, employer-sponsored health insurance, and the individual private market.
%SOURCENAMEESCAPED%, New: Re-Integrating Spaces: The Possibilities of Common Law Property, http://www.ssrn.com/abstract=2640209 (August 7, 2015)

"Re-Integrating Spaces" is part of a symposium on progressive property held at Savannah Law School as part of the re-dedication of their building, which was constructed in the early nineteenth century and used as a hospital for much of its existence. The essay uses the building's long history as a guide for exploring the history of property rights and race in Georgia and the United States. It emphasizes that while the central tendency of property is about exclusion and control -- as Georgia's history with slavery, Native American removal, and Jim Crow demonstrate. Yet, it points out that sometimes the protection of property rights benefits racial minorities. And it also discusses the long history of the critique of such robust property rights. This lead to discussion of some of the instances where other elements of common law property (and statutory rights) help to shift away from the right of exclusion and control.
%SOURCENAMEESCAPED%, REVISION: International Technology Contracts, Restrictive Covenants and the UNCTAD Code, http://www.ssrn.com/abstract=2515234 (August 4, 2015)

One set of historical developments that will allow us to gain unique insight into the international debate on trade secrets and restrictive covenants concerns the negotiation of the International Code of Conduct on the Transfer of Technology. Established under UNCTAD's auspices, this Code aimed to remove restrictive business practices that stifled technology transfer and economic development in developing countries. Although the UNCTAD Code was not adopted after close to a decade of negotiations, it has important legacies in the area of intellectual property and competition laws. A close study of the negotiations will also enable us to anticipate the challenges concerning the push for reform to strengthen the cross-border protection of workplace knowledge. This chapter begins by outlining the various restrictive business practices that are commonly written into international technology contracts between transnational firms and firms or government agencies in developing countries ...
%SOURCENAMEESCAPED%, Update: Gender Biases in Perception of Judgments, http://www.ssrn.com/abstract=2097522 (August 3, 2015)

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 ...
The Paper was removed
%SOURCENAMEESCAPED%, REVISION: Sinking, Fast and Slow: Bifurcating Beta in Financial and Behavioral Space, http://www.ssrn.com/abstract=2629541 (August 2, 2015)

Modern portfolio theory accords symmetrical treatment to all deviations from expected return, positive or negative. This assumption is vulnerable on both descriptive and behavioral grounds. Many of the predictive flaws in contemporary finance stem from mathematically elegant but empirically flawed Gaussian models. In reality, returns are skewed. The presumption that returns and volatility are symmetrical also defies human behavior. Losing hurts worse than winning feels good; investors do not react equally to upside gain and downside loss. Moreover, correlation tightening during bear markets, not offset by changes in correlation during bull markets, suggest that standard diversification strategies may erode upside returns without providing adequate protection during times of stress. This article outlines mathematical tools for calculating volatility, variance, covariance, correlation, and beta, not merely across the entire spectrum of returns, but also on either side of mean ...
%SOURCENAMEESCAPED%, Update: Liability for Online Anonymous Speech: Comparative and Economic Analyses, http://www.ssrn.com/abstract=2448706 (July 31, 2015)

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, ...
The Paper was removed
%SOURCENAMEESCAPED%, New: Coping with Uncertainty: Cost-Benefit Analysis, the Precautionary Principle, and Climate Change, http://www.ssrn.com/abstract=2637105 (July 29, 2015)

Two competing strategies for setting climate policy are cost-benefit analysis and the precautionary principle. This Article analyzes these strategies and considers their application to climate risks in four case studies: determination of the social cost of carbon, international endorsement of a 2° ceiling on warming, EPA’s endangerment finding, and the polar bear listing decision. In practice, cost-benefit analysis of climate change encounters great difficulties. The precautionary principle works well in determining whether to regulate, but gives modest guidance about the level of regulation. One possibility might be to combine the approaches in a two-step process: (1) using economic models to help identify feasible emissions trajectories that minimize the risk of catastrophic outcomes, and then (2) backing out the social cost of carbon based on compliance costs along the optimum trajectories. In the meantime, the four case studies indicate that decision makers have managed to make ...
%SOURCENAMEESCAPED%, New: Outgrowing Copyright: The Effect of Market Size on Copyright Policy, http://www.ssrn.com/abstract=2637045 (July 29, 2015)

Does copyright protection offer the best means of stimulating the production of expressive works? Perhaps, at the moment, it does. If so, however, copyright protection will probably become inefficiently over-protective as the market for expressive works grows. With such growth, copyright holders will find it increasingly remunerative to focus on customers willing to pay a premium for particular expressive works. In a larger, more finely segmented market, copyright holders will find that their statutory rights generate larger monopoly rents. Yet copyright holders will suffer no corresponding increase in production or distribution costs; thanks to technological advances, we can expect those costs to continue to decline. The private benefits of copyright protection will rise. So, too, will its social costs. Holding all else equal, therefore, growth in the market for expressive works will make copyright policy inefficient. This paper explains that effect and discusses how policymakers ...
%SOURCENAMEESCAPED%, New: Internet Privacy and Self-Regulation: Lessons from the Porn Wars, http://www.ssrn.com/abstract=2637038 (July 29, 2015)

The availability and adequacy of technical remedies ought to play a crucial role in evaluating the propriety of state action with regard to both the inhibition of Internet pornography and the promotion of Internet privacy. Legislation that would have restricted Internet speech considered indecent or harmful to minors has already faced and failed that test. Several prominent organizations dedicated to preserving civiI Iiberties argued successfully that self -help technologies offered less-restrictive means of achieving the purported ends of such legislation, rendering it unconstitutional. Surprisingly, those same organizations have of late joined the call for subjecting another kind of speech — speech by commercial entities about Internet users — to political regulation. With regard to privacy no less than pornography, however, self-help offers Internet users a less restrictive means of preventing the alleged harms of free speech than does state action. Indeed, a review of ...
%SOURCENAMEESCAPED%, New: Internet Gambling: Popular, Inexorable, and (Eventually) Legal, http://www.ssrn.com/abstract=2637033 (July 29, 2015)

This paper describes the powerful demand for Internet gambling, analyzes the forces arrayed against it, and argues against its prohibition. Attempts to outlaw Internet gambling will inevitably fail. The very architecture of the Internet will frustrate prohibitionists, while consumer demand for Internet gambling and the states' demand for tax revenue will create enormous political pressures for legalization.
%SOURCENAMEESCAPED%, New: Commentary on Predicting Crime, http://www.ssrn.com/abstract=2622711 (July 29, 2015)

The market mechanisms proposed in Predicting Crime offer many virtues. The authors describe several of these—unbiased information collection; incentives that encourage disclosure; opinions weighted by conviction; information aggregation; instantaneous and continuous feedback—and convincingly argue that these structural features stand to help prediction markets outperform alternative institutions in forecasting the interplay of crime rates and crime polices. In that, Predicting Crime adopts an economic point of view and speaks in terms of practical experience. After all, similar structural features have already appeared in other successful prediction markets, such as those offering trading in claims about the weather, flu outbreaks, or box office returns. By contrast, this Comment adopts a legal point of view and speaks about as-yet theoretical disputes.
%SOURCENAMEESCAPED%, New: Virtual Trade Dress: A Very Real Problem, http://www.ssrn.com/abstract=2637009 (July 29, 2015)

A tragedy looms for trade dress. Encouraged by bad case law and tempted by new technologies, trade dress threatens to assume a role properly reserved for other forms of intellectual property. Trade dress should aim primarily at protecting the public from confusing the features that identify goods and services. Current trends, however, risk expanding trade dress until it constitutes the very commodities that it once merely identified. Superficially genuine but fundamentally artificial, this is virtual trade dress.
%SOURCENAMEESCAPED%, New: Antislavery Women and the Origins of American Jurisprudence, http://www.ssrn.com/abstract=2635248 (July 26, 2015)

“Antislavery Women and the Origins of American Jurisprudence" is an essay review of Sarah Roth's Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth's account of the dialog between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s -- as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens-in-waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the south moved towards Civil War. Roth ...
%SOURCENAMEESCAPED%, REVISION: Ranking Law Schools, 2015: Student Aptitude, Employment Outcome, and Law Review Citations, http://www.ssrn.com/abstract=2624399 (July 25, 2015)

This essay builds on a paper released last year that ranked law schools on three variables: the median LSAT of entering students of the most recent class, the most recently available employment outcome for each school’s graduates, and citations to each school’s main law reviews over the past eight years. This paper updates that study with LSAT median data for the class entering in fall 2014, employment data for the class graduating in 2014 ten months after graduation, and the most recent law review citation data for 2007 through 2014. It studies 195 ABA approved law schools. In addition to using more recent data, this study changes the method of combining those data. Where the last paper used simple ranks for each variable and averaged them, this study has a more granular approach to the data. It converts each school’s median LSAT score and the percentage of students employed in full-time, permanent, JD-required jobs ten months after graduation (excluding school-funded ...
%SOURCENAMEESCAPED%, New: The Copy in Copyright, http://www.ssrn.com/abstract=2632914 (July 21, 2015)

Since their inception, copyright and proto-copyright laws have been developed around the concept of "copy," which primarily referred to printed book manuscripts in the reign of Queen Anne. Although copyright began mostly as a right vested in copies, and therefore a right to prevent others from multiplying copies, the emphasis has now been dramatically shifted to the act of copying itself. The terms "copy" and "copies" have also been slowly re-conceptualized to respond to changing technology and to expand the scope of copyright protection. Taking a historical perspective, the first half of this chapter recounts the use of the concept of "copy" by the Stationers’ Company and in the Statute of Anne. It also addresses two different sets of challenges to this foundational concept. The first set focuses on the seminal case of White-Smith Music Publishing Co. v Apollo Co., the first major challenge to this concept on the other side of the Atlantic. The second set concerns the efforts in ...
%SOURCENAMEESCAPED%, New: Predicting the Future: Our Food System in 2025, http://www.ssrn.com/abstract=2628301 (July 9, 2015)

Our food system faces many challenges - increasing population, concerns about the sustainability of current agricultural production practices, and the impact of climate change. This article looks to the future and makes predictions about our food system in ten years. It was presented by invitation at the The Journal of Food Law & Policy's ten-year anniversary symposium, The Past, Present, and Future of Food Law and Policy.
%SOURCENAMEESCAPED%, New: Beyond the Food We Eat: Animal Drugs in Livestock Production, http://www.ssrn.com/abstract=2628314 (July 9, 2015)

How we raise livestock in the United States has changed dramatically in the last fifty years. Greater efficiency in production has resulted in an increased supply of meat and a significantly lower cost to the consumer. That efficiency, however, has hidden costs. A wide range of drugs are used in U.S. livestock production to enhance growth, alter the characteristics of the meat produced, prevent disease in crowded living conditions, and increase feed conversion ratios. The pharmaceutical industry is primarily responsible for all testing of these drugs and most are available without prescription. Many of these drugs pass through the animal's system and can be found in animal waste, yet environmental considerations are rarely even considered. This article describes the use of drugs in livestock production, the types of drugs used, and the regulatory process for drug approval. It argues that the review process is ineffective and insufficient and that it fails to consider the critical ...
%SOURCENAMEESCAPED%, REVISION: The Promise and the Peril of Parametric Value-at-Risk (VaR) Analysis, http://www.ssrn.com/abstract=2615664 (July 8, 2015)

Leptokurtosis, or the risk lurking in “fat tails,” poses the deepest epistemic threat to economic forecasting. Parametric value-at-risk (VaR) models are extremely vulnerable to kurtosis in excess of the levels associated with a normal, Gaussian distribution. This article provides step-by-step guidance on the use of Student’s t-distribution to enhance the statistical robustness of VaR forecasts. For degrees of freedom greater than 4, Student’s t-distribution can emulate any level of kurtosis exceeding that of a Gaussian distribution. Because VaR is elicitable from historical data, observed levels of excess kurtosis can inform the proper use of Student’s t-distribution to measure value-at-risk. In addition, the calculation of parametric VaR according to the number of degrees of freedom implied by historical levels of excess kurtosis leads directly to the corresponding value of expected shortfall. Conducted in this fashion, parametric VaR not only exploits the elicitability of that ...
%SOURCENAMEESCAPED%, New: The Declaration, the Constitution, and the Interpreter's Dilemma: An Essay on Historical and Iconic Meaning, http://www.ssrn.com/abstract=2623359 (June 27, 2015)

The Declaration of Independence is one of the paradigm texts in American history. It was originally written for a time-specific purpose. But it also has spoken to a broader audience across time, as an icon representing American ideals. After describing how the Declaration has been given both historical and iconic meaning by judges, presidents, and public figures, this Essay considers the relevance of these two forms of meaning to current debates over constitutional interpretation. Originalists generally privilege the historical meaning of texts. Yet originalist Justices on the Court have acknowledged that iconic meaning also exists and can sometimes be more relevant. In Pleasant Grove City v. Summum, 555 U.S. 460 (2009), these originalist Justices turned to iconic meaning over historical meaning, endorsing dynamic interpretation of monuments -- even those containing texts. Ironically, then, they found fluidity in the meaning of texts that are literally carved in stone. The Essay ...
%SOURCENAMEESCAPED%, REVISION: Unpacking EME Homer: Cost, Proportionality and Emissions Reductions, http://www.ssrn.com/abstract=2486236 (June 24, 2015)

EME Homer involved the vexing problem of interstate air pollution, which can make it impossible for even the most diligent downwind state to attain the air quality levels required by federal law. Justice Ginsburg’s opinion for the Court gives EPA broad discretion to craft regulatory solutions for this problem. The case presented the Court with considerable difficulties. Although the specific statutory provision at issue was deceptively simple, the underlying problem of allocating pollution reductions was extremely complex, especially given the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to have fully grasped how allocation would work even in simplified numerical examples. Although the specific question before the Court is now settled, the Court’s holding has continuing ramifications. It will shape further development of EPA’s on-going efforts to deal with the problem of interstate pollution. But it also has broader implications about ...
%SOURCENAMEESCAPED%, REVISION: Principles of Contracts for Governing Services, http://www.ssrn.com/abstract=2268050 (June 20, 2015)

The state provides governance services within a specified territory, demanding payment in the form of taxes, regulations, and compulsory service. Some citizens expressly consent to that bargain, as when the President of the United States swears to preserve, protect, and defend the Constitution. With regard to many of its subjects, however, the state can claim no more than hypothetical consent, leaving its use of force only weakly justified. Governing services provided under contract, founded in express consent, enjoy a more justified relationship with their citizen-customers. Private institutions already provide the same legal services as the state, offering rules, dispute resolution, and armed security, often on a large scale. The success of quasi-sovereign territories such as Hong Kong and Chinaʼs Special Economic Zones has encouraged some countries to consider outsourcing government services more comprehensively. Honduras, for instance, has passed legislation that could allow ...
%SOURCENAMEESCAPED%, New: 'Cold Legal Points into Points of Flame': Karl Llewellyn Attacks Lynching, http://www.ssrn.com/abstract=2619895 (June 18, 2015)

This essay puts into context a Foreword that Karl N. Llewellyn wrote for a NAACP brief urging the Department of Justice to prosecute an Alabama sheriff for permitting the lynching of two young men in July 1933. They were accused of assaulting and murdering a young white woman in Tuscaloosa County, Alabama. The lynchings took place in the wake of the Scottsboro, Alabama prosecutions and many saw the lynchings as a response to Scottsboro and also to the presence of lawyers from the International Labour Defence who tried to represent the Tuscaloosa defendants. The lynchings, it seemed, were designed to send a message to African Americans throughout the state. Llewellyn’s long-forgotten Foreword, which no previous scholars have written about, expands our understanding of Llewellyn and of the role the methods of Legal Realism could play in the Civil Rights Movement. Llewellyn looked at the facts to argue that community members and government officials worked together to protect ...
%SOURCENAMEESCAPED%, REVISION: Reading Professor Obama: Race and the American Constitutional Tradition, http://www.ssrn.com/abstract=2131395 (June 13, 2015)

“Reading Professor Obama” mines Barack Obama’s syllabus on “Current Issues in Racism and the Law” for evidence of his beliefs about race, law, and jurisprudence. The syllabus for the 1994 seminar at the University of Chicago, which provides the reading assignments and structure for the course, has been available on the New York Times website since July 2008. Other than a few responses solicited by the New York Times when it published the syllabus, however, there has been little attention to the material Obama assigned or to what it suggests about Obama’s approach to the law and racism. The readings begin by discussing the malleability of racial categories and progress to cases from the nineteenth century on Native Americans and on slavery. The second day’s readings shifted to the Reconstruction era and changes in the Constitution and statutory law, as well as the rise of the “Jim Crow” system of segregation and the response of African American intellectuals. The third class covered ...
%SOURCENAMEESCAPED%, REVISION: Unpacking EME Homer: Cost, Proportionality and Emission Reductions, http://www.ssrn.com/abstract=2486236 (June 13, 2015)

EME Homer involved the vexing problem of interstate air pollution, which can make it impossible for even the most diligent downwind state to attain the air quality levels required by federal law. Justice Ginsburg’s opinion for the Court gives EPA broad discretion to craft regulatory solutions for this problem. The case presented the Court with considerable difficulties. Although the specific statutory provision at issue was deceptively simple, the underlying problem of allocating pollution reductions was extremely complex, especially given the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to have fully grasped how allocation would work even in simplified numerical examples. Although the specific question before the Court is now settled, the Court’s holding has continuing ramifications. It will shape further development of EPA’s on-going efforts to deal with the problem of interstate pollution. But it also has broader implications about ...
%SOURCENAMEESCAPED%, New: Legal Signal Processing, http://www.ssrn.com/abstract=2614273 (June 4, 2015)

It makes far more economic sense to prepare for disaster in advance than it does to stage heroic relief efforts after calamity strikes. For reasons rooted in politics and emotion, the law does exactly the opposite. Ad hoc relief, as expensive as it is spontaneous, dominates disaster law and policy. The President’s unilateral power to declare a federal disaster under the Stafford Act invites political manipulation. To test whether presidential disaster declarations track the four-year presidential electoral cycle, this paper devises a generalized polynomial and multi-sinusoidal model for detecting cyclical patterns. This model draws heavily upon Fourier analysis and digital signal processing. Presidential disaster declarations since 1953 reveal not one but two forms of periodicity. As expected, a “short wave” of four years shows how disaster declarations track the presidential election cycle. The effect is most pronounced not in election years (when declarations do spike), but in ...
%SOURCENAMEESCAPED%, REVISION: Social Media Ethics Missteps for Lawyers (and Others), http://www.ssrn.com/abstract=2557095 (May 30, 2015)

This short paper walks the reader through some of the legal ethics rules that intersect with the use of social media.
%SOURCENAMEESCAPED%, New: Gini's Crossbow, http://www.ssrn.com/abstract=2608850 (May 21, 2015)

The Gini coefficient remains a popular gauge of inequality throughout the social and natural sciences because it is visually striking and geometrically intuitive. It measures the “gap” between a hypothetically equal distribution of income or wealth and the actual distribution. But not all inequality curves yielding the same Gini coefficient are unequal in the same way. The Lorenz asymmetry coefficient, a second-order measure of asymmetry, provides further information about the distribution of income or wealth. To add even more interpretive power, this paper proposes a new angular measure derived from the Lorenz asymmetry coefficient. Adjusted azimuthal asymmetry is the angular distance of the Lorenz asymmetry coefficient from the axis of symmetry, divided by the maximum angular distance that can be attained for any given Gini coefficient.
%SOURCENAMEESCAPED%, REVISION: Αρκτούρος: Protecting Biodiversity Against the Effects of Climate Change Through the Endangered Species Act, http://www.ssrn.com/abstract=2436702 (May 18, 2015)

Climate change is driving the anthropocene extinction, the sixth great extinction spasm of the Phanerozoic Eon. Large-scale habitat destruction puts many plant and animal species at risk of extinction. This essay describes the use of the Endangered Species Act to protect biodiversity from the effects of climate change.
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Law's Plagiarism Fallacy, http://www.ssrn.com/abstract=2588658 (May 13, 2015)

Intellectual property law is caught in a widespread debate over whether it should serve incentive or natural rights objectives, and what the best means for achieving those ends are. This article reports a series of experiments revealing that these debates are actually orthogonal to how most users and many creators understand intellectual property law. The most common perception of intellectual property among the American public is that intellectual property law is designed to prevent plagiarism. The plagiarism fallacy in intellectual property law is not an innocuous misperception. This fallacy likely helps explain pervasive illegal infringing activity on the Internet, common dismissal of copyright warnings, and other previously puzzling behavior. The received wisdom has been that the public is ethically dismissive or indifferent towards intellectual property rights. This research reveals instead that experts have failed to comprehend what the public’s conception of intellectual ...
%SOURCENAMEESCAPED%, REVISION: 'May the Odds Be Ever in Your Favor': Lotteries in Law, http://www.ssrn.com/abstract=2494550 (May 7, 2015)

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%, New: Pluralistic Legal Theories: In Search of a Common Denominator, http://www.ssrn.com/abstract=2601591 (May 3, 2015)

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: David Foster Wallace on Tax Policy, How to Be an Adult, and Other Mysteries of the Universe, http://www.ssrn.com/abstract=2550949 (April 30, 2015)

As one of the most highly acclaimed fiction writers of his generation, David Foster Wallace had many things to say on a seemingly endless variety of topics. In his last work, the unfinished novel The Pale King, he chose to elaborate on, of all things, tax policy and tax administration. Wallace directed tax topics at one of the novel’s main themes: true adulthood often involves overcoming boredom in the workplace to derive a sense of community and care for others. In a sense, the book serves as a guide on how to become a reasonably happy and fulfilled adult. This Essay integrates archival research from the Collected Works of David Foster Wallace at the Harry Ransom Center at the University of Texas at Austin.
%SOURCENAMEESCAPED%, New: The Rise of the End User in Patent Litigation and Attorney Fee Shifting, http://www.ssrn.com/abstract=2595239 (April 18, 2015)

This short piece focuses on the growing role that that end users are playing in our patent system. It highlights that end users differ from competitors in that they lack technological sophistication, are often onetime players and tend to become involved in the patent dispute relatively late in the life of the patent. The paper proposes inclusion of end user status as a factor that weighs toward fee shifting, as the first in a set of procedural reforms, to address the new role of end users in patent litigation.
%SOURCENAMEESCAPED%, New: Separated at Birth? Addressing the Twin Global Crises of Biodiversity and Climate Change, http://www.ssrn.com/abstract=2593498 (April 13, 2015)

Climate change is a growing threat to biodiversity, particularly in hotspots such as tropical forests and coral reefs. At the same time, deforestation is a major source of carbon emissions. The REDD effort is an attempt to make positive use of this connection. But negative impacts are also possible, such as the destruction of tropical forests as an indirect result of U.S. corn ethanol production. More generally, biodiversity and climate change both raise issues about the legality and effectiveness of bottom-up actions in the absence of global agreement. Finally, climate change and biodiversity threats both have links to the global food system. Sustainable aquaculture can reduce pressures on wild fish stocks. Conversion to agricultural use is a major threat to wild lands that store large amounts of carbon and harbor immense biodiversity. Increased crop yields, dietary changes, and population control can reduce those pressures, with both biodiversity and climate benefits.
%SOURCENAMEESCAPED%, REVISION: Sustainable Consumption, Engery Policy and Individual Well-being, http://www.ssrn.com/abstract=1918204 (April 12, 2015)

Environmental law focuses on regulating the production of energy and goods. Less attention has been given to reducing the environmental footprint of consumption. This Article brings together several strands of research, including psychological and economic research on subjective well-being; research on energy efficiency; writings by urban planners on sustainable communities; and recent work on individual behavior and sustainability. The conclusion, in a nutshell, is that changes in consumption of goods and energy, assisted by improvements in urban design and transportation infrastructure, can significantly reduce energy use and environmental harm. A variety of legal tools are available to promote these changes. Remarkably, many of the steps needed for sustainability can actually improve quality of life, adding to individual satisfaction. Thus, sustainability for society and the pursuit of individual happiness need not be at odds.
%SOURCENAMEESCAPED%, REVISION: Towards the Seamless Global Distribution of Cloud Content, http://www.ssrn.com/abstract=2478583 (April 8, 2015)

In the age of cloud computing, consumers expect content to be accessible anywhere, anytime. Since their arrival, cloud platforms and related services have posed considerable challenges to copyright holders. Notwithstanding these challenges, one cannot overlook the boundless opportunities this new technology has provided to rights holders for distributing copyright content across the world. To a large extent, the global distribution of cloud content has brought back the age-old discussion concerning the proper response to disruptive technology and the copyright industries' repeated and arguably short-sighted efforts to protect outdated business models. To complicate matters further, cloud platforms and related services have raised new questions that have not been widely discussed in the digital technology debate. Because these platforms facilitate simultaneous multijurisdictional access to copyright content, they unsurprisingly are in a collision course with the territoriality ...
%SOURCENAMEESCAPED%, New: Taking Turns, http://www.ssrn.com/abstract=2589830 (April 7, 2015)

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: Graduated Consent in Contract and Tort Law: Toward a Theory of Justification, http://www.ssrn.com/abstract=2011428 (March 27, 2015)

We often speak of consent in binary terms, boiling it down to 'yes' or 'no.' In truth, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions, too. Those gradations of consent mark a deep structure of our social world, one especially evident in the contours of contract and tort law. This article draws on those and other sources to outline a theory of graduated consent, one that establishes a standard for measuring the justification of a wide variety of human relationships. Though its basic tenets comfortably agree with everyday common sense, graduated-consent theory offers surprising answers to such old problems as enforcing standardized agreements, justifying political coercion, and ...
%SOURCENAMEESCAPED%, New: דבר העורכים - דין ודברים
(Haifa Law Review - Editors' Note)
, http://www.ssrn.com/abstract=2572899 (March 3, 2015)

דבר העורכים לחוברת ח2 של כתב העת "דין ודברים", הכוללת ריאיון עומק עם השופט אליעזר ריבלין לרגל פרישתו ומקבץ מאמרי סימפוזיון על דיני ומדיניות תקשורת.

%SOURCENAMEESCAPED%, REVISION: Tales of the Unintended in Copyright Law, http://www.ssrn.com/abstract=2328648 (March 1, 2015)

Having unintended consequences is an oft-cited defect of copyright reform. Whether it is the Digital Millennium Copyright Act, the recently adopted Anti-Counterfeiting Trade Agreement, the still-under-negotiation Trans-Pacific Partnership Agreement, or such highly controversial copyright legislation as the PROTECT IP ACT or the Stop Online Piracy Act, critics of copyright-strengthening measures have lamented their potential for creating collateral damage. As critics have reasoned, the collateral damage caused by these proposed measures outweigh their intended benefits, and policymakers should refrain from adopting these measures. While undertaking cost-benefit analysis is commonsensical and useful, adopting laws that have unintended consequences is nothing new. In the copyright area alone, one could find many examples featuring laws that result in unintended consequences. Indeed, many of the ill-advised copyright laws were adopted long before the active lobbying by the ...
%SOURCENAMEESCAPED%, REVISION: Creamskimming and Competition, http://www.ssrn.com/abstract=1395554 (February 21, 2015)

The concept of “creamskimming” arises with regularity in the law of regulated industries. As a rhetorical weapon, the term “creamskimming” readily conjures images of the sort of putatively destructive competition that regulatory commissions are charged with patrolling. As a result, allegations of creamskimming have become a standard weapon in the legal arsenal of incumbent firms seeking to resist competitive entry. At an extreme, incumbent firms will characterize all forms of competitive entry as creamskimming. Sound regulatory responses to these allegations therefore depend on a proper understanding of the creamskimming concept. This article proposes a definition of creamskimming that will help state and federal regulatory agencies distinguish genuine objections to proposed competitive entry from reflexive (and often improper) efforts to shield incumbent firms from competition. “Creamskimming” should be defined as “the practice of targeting only the customers that are the ...
%SOURCENAMEESCAPED%, New: Of Umpires, Judges, and Metaphors: Adjudication in Aesthetic Sports and Its Implications for Law, http://www.ssrn.com/abstract=2566895 (February 19, 2015)

In his confirmation hearings, Chief Justice Roberts famously described his vision of the judicial role as analogous to that of an umpire. “Judges are like umpires,” he said. “Umpires don’t make the rules; they apply them.” The Chief Justice was, of course, hardly the first to draw this analogy, and he will certainly not be the last. The comparison is natural, for both roles require their occupant to “make the call,” or, more formally, to serve as the presumptively final adjudicator of the rights of competing parties. Yet while the “judge as umpire” seems to have naturally captured the imagination of judges, commentators, and laypersons alike, it has also come in for its share of critique, with critics pointing out the various ways in which the comparison is inapt. Perhaps the most frequently mentioned distinction is that judges, unlike umpires, and contrary to the Chief Justice’s suggestion, actually do have to role to play in the creation and refinement of the rules they must ...
%SOURCENAMEESCAPED%, REVISION: Methodological Pluralism and Constitutional Interpretation, http://www.ssrn.com/abstract=2401247 (February 19, 2015)

This article takes up a significant yet surprisingly overlooked question: What accounts for the Supreme Court’s lack of methodological uniformity in constitutional interpretation? The question can be phrased in other ways: Why do strong methodological pronouncements in one case go unfollowed and unacknowledged in the next? Why, to use an example, does the originalist analysis of District of Columbia v. Heller not create a presumption that subsequent Second Amendment cases must also be analyzed via an originalist approach? An easy answer suggests itself — the justices simply do not want to bind themselves to someone else’s preferred methodology. They hold strongly divergent views, and advocate on behalf of those views in their opinions. Each justice might be willing to adhere to a single approach, but only so long as it is the one he or she favors. This easy answer turns out to be, at best, incomplete. There are many respects in which the Court does adhere to its past ...
%SOURCENAMEESCAPED%, New: Agencies, Courts, and the Limits of Balancing, http://www.ssrn.com/abstract=2563393 (February 12, 2015)

Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other. This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these categories. It articulates three such guiding principles. Finally, it argues that the one area of disparity between agencies and courts under current law should be resolved by bringing doctrines governing judicial discretion more in line with those governing agency discretion.

  

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