Jurisdynamics Network authors on SSRN

This page summarizes the most recent SSRN abstracts posted by the authors of the Jurisdynamics Network. The Network's authors are serious, productive scholars as well as stimulating bloggers, and we hope you will read and download these papers. This page has its own RSS feed, which you are invited to download by clicking here:  . To receive updates as these authors post new scholarship, please use the following form:

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%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%, New: Trade Secret Hacking, Online Data Breaches, and China's Cyberthreats, http://www.ssrn.com/abstract=2638027 (July 31, 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: 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%, 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 (July 24, 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%, New: What Can Corporations Teach Governments About Democratic Equality?, http://www.ssrn.com/abstract=2622627 (July 24, 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%, 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%, REVISION: Ranking Law Schools with LSATs, Employment Outcomes, and Law Review Citations, http://www.ssrn.com/abstract=2456032 (June 29, 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: 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: International Technology Contracts, Restrictive Covenants and the UNCTAD Code, http://www.ssrn.com/abstract=2515234 (June 2, 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%, 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%, New: The Fragility of the Affordable Care Act's Universal Coverage Strategy, http://www.ssrn.com/abstract=2592492 (April 11, 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: Best Practices for a State Alzheimer's Disease Registry: Lessons from Georgia, http://www.ssrn.com/abstract=2592461 (April 11, 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: 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%, REVISION: Regulatory Exit, http://www.ssrn.com/abstract=2482392 (March 10, 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: Leaps, Metes, and Bounds: Innovation Law and Its Logistics, http://www.ssrn.com/abstract=2571830 (March 6, 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: 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: The Confuzzling Rhetoric Against New Copyright Exceptions, http://www.ssrn.com/abstract=2466544 (February 22, 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 have uniformly opposed the introduction of 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: 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: Measuring, Monitoring, and Managing Legal Complexity, http://www.ssrn.com/abstract=2566535 (February 19, 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%, 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.
%SOURCENAMEESCAPED%, REVISION: Modeling Citation and Download Data in Legal Scholarship, http://www.ssrn.com/abstract=905316 (February 2, 2015)

Impact factors among law reviews provide a measure of influence among these journals and the schools that publish them. Downloads from the Social Science Research Network (SSRN) serve a similar function. Bibliometrics is rapidly emerging as a preferred alternative to more subjective assessments of academic prestige and influence. Law should embrace this trend. This paper evaluates the underlying mathematics of law review impact factors and per-author SSRN download rates by institution. Both of these measures follow the sort of stretched exponential distribution that characterizes many right-skewed distributions found in the natural and social sciences. Indeed, an ordinary exponential distribution — that is, a stretched exponential distribution with an exponent of 1 — generates strikingly accurate, even beautiful, models of both phenomena. Mindful of physicist Hermann Weyl's admonition that any choice between truth and beauty should favor beauty, I freely admit to sacrificing some ...
%SOURCENAMEESCAPED%, New: REMS as a Competitive Tactic: Is Big Pharma Hijacking Drug Access and Patient Safety?, http://www.ssrn.com/abstract=2555791 (January 27, 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: Promoting Innovation While Preventing Discrimination: Policy Goals for the Scored Society, http://www.ssrn.com/abstract=2552864 (January 21, 2015)

There are several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our 2014 article on that topic in the Washington Law Review. This response to Professor Tal Zarsky clarifies our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform.
%SOURCENAMEESCAPED%, New: The Algebra of Financial Asymmetry: A Schematic Approach to Semideviation and Semivariance, http://www.ssrn.com/abstract=2551401 (January 19, 2015)

Modern portfolio theory remains the dominant paradigm of financial risk management. Behavioral economics, however, targets one of modern portfolio theory’s greatest pitfalls: its symmetrical view of all deviations from expected return, positive or negative, as if investors viewed excess returns to be as troubling as failures to meet a targeted level of returns. This article evaluates a range of measures designed to gauge financial risk through semideviation or semivariance: the Sortino ratio, Morningside's upside and downside capture ratios, and the omega and kappa measures.
%SOURCENAMEESCAPED%, REVISION: The Living Regulatory Challenges of Synthetic Biology, http://www.ssrn.com/abstract=2410179 (January 5, 2015)

The rapidly emerging technology of synthetic biology will place great strain upon the extant regulatory system due to three atypical characteristics of this nascent technology: (1) synthetic biology organisms can evolve; (2) traditional risk structures do not apply; and (3) the conventional regulatory focus on end-products may be a poor match for novel organisms that produce products. This Article presents one of the first assessments of the regulatory and oversight challenges produced by the beneficial application of synthetic biology, for energy, environmental, medical, and other purposes. Due to the uncertainty present at this early stage of synthetic biology development, and the practical political context, it is unlikely that the significant statutory and regulatory gaps identified herein could be cured directly. This Article recommends instead a selection of “soft law” alternatives that could more quickly provide flexible and adaptive measures to help fill regulatory gaps in a ...
%SOURCENAMEESCAPED%, REVISION: Leveraging the International Economy of Intellectual Property, http://www.ssrn.com/abstract=2422833 (December 24, 2014)

Most international intellectual property debates ignore the fundamental question of how to optimize the global environment for innovation, focusing instead on whether a particular policy benefits or harms a particular country. The cost of this misplaced focus is significant as states fight bitterly over how to divide fixed benefits, rather than seeking to grow social welfare through greater innovation. This missed opportunity is not a surprise, however, given the difficulty of trying to identify which intellectual property regimes will support greater innovation, a task that has proven impossible to achieve directly. This Article introduces a new empirical methodology that leverages international trade data in an effort to identify indirectly which intellectual property regimes are more likely to provide greater incentives to innovate globally. A country’s trade balance in high-innovation goods tends to dictate the country’s preferences for intellectual property rights regimes. ...
%SOURCENAMEESCAPED%, Update: 'Nudging' Better Lawyer Behavior: Using Default Rules and Incentives to Change Behavior in Law Firms, http://www.ssrn.com/abstract=2460078 (December 16, 2014)

This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers. In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive biases and basic behavioral economics will help law firms tweak their incentives and default rules to promote the improved delivery of legal services.
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%SOURCENAMEESCAPED%, REVISION: Amicus Brief of Neutral Fee Examiners Supporting Neither Party, http://www.ssrn.com/abstract=2536955 (December 14, 2014)

This United States Supreme Court brief argues that estate-paid professionals who are defending against objections to their fee applications should be able to get their defense fees paid from the estate if they substantially prevail on the defense of those fees.
%SOURCENAMEESCAPED%, REVISION: Brief of Amici Curiae, In re David Marshall Brown, Case No. 12-cv-60016-KAM, United States District Court, Southern District of Florida, http://www.ssrn.com/abstract=2038267 (December 12, 2014)

This amicus brief argues that, when the only objection to a proof of claim in an individual debtor's bankruptcy case is that some paperwork is missing, but not that the amount is incorrect, filing an objection that moves to strike the entire claim is a violation of Bankruptcy Rule 9011 and sanctions should be upheld.
%SOURCENAMEESCAPED%, New: 'Nudging' Better Lawyer Behavior: Using Default Rules and Incentives to Change Behavior in Law Firms, http://www.ssrn.com/abstract=2460078 (December 12, 2014)

This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers. In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive biases and basic behavioral economics will help law firms tweak their incentives and default rules to promote the improved delivery of legal services.
%SOURCENAMEESCAPED%, New: Intellectual Property Geographies, http://www.ssrn.com/abstract=2534932 (December 9, 2014)

Written for a special issue on intellectual property and geography, this article outlines three sets of mismatches that demonstrate the vitality, utility and richness of analyzing intellectual property developments through a geographical lens. The article begins by examining economic geography, focusing on the tensions and conflicts between territorial borders and sub-national innovation (including those relating to obligations under the WTO TRIPS Agreement). This article then examines the oft-found mismatch between political geography and cultural geography. Illustrating this mismatch is the challenge of protecting traditional knowledge and traditional cultural expressions. The article concludes by exploring the growing mismatch between legal geography and human geography. It discusses issues ranging from the region codes deployed to protect DVDs to the increasing consumer demand for cross-border portability of copyrighted media content.
%SOURCENAMEESCAPED%, REVISION: Weighted-Average Methodologies for Evaluating Bar Examination Passage Rates, http://www.ssrn.com/abstract=2532800 (December 8, 2014)

There are few truly “national” law schools in the United States. Most American law schools in the United States have a “dominant” state bar. A greater number of the graduates of nearly any law school take the bar examination administered by one state than any other bar examination. The American Bar Association and U.S. News and World Report's law school rankings rely on bar passage rates for the single largest cohort within any school’s graduating class. But the modal passage rate is misleading as a measure of any one school’s overall bar passage rates. The modal passage rate also fails to facilitate direct comparisons of bar examination performance at different schools. To evaluate the overall bar examination performance of the graduates of any law school, I propose the use of weighted-average methodologies. Ideally, we should be able to measure, by use of weighted averages, each school’s bar passage z-score. Since the data needed to conduct proper standard scoring is ...
%SOURCENAMEESCAPED%, REVISION: Price-Level Regulation and Its Reform, http://www.ssrn.com/abstract=771226 (December 6, 2014)

Price-level, or “price-cap,” regulation offers an alluring alternative to the traditional technique of monitoring a regulated firm’s profits. Part II of this article contrasts price-level regulation with conventional cost-of-service ratemaking and with Ramsey pricing. Price-level regulation stands as a market-based, incentive-driven “third way” between traditional regulation and complete deregulation. Part III provides formal specifications of price-level regulation. Although some jurisdictions have set price caps according to operating cost and rate-of-return calculations that clearly parallel those steps in conventional ratemaking, this article will focus on price-level methodologies that combine an economy-wide measure of inflation with an x-factor reflecting total factor productivity within a regulated industry. Part IV addresses the simpler component of price-level regulation, the choice of an inflation index. Part V devotes detailed attention to the treatment of the ...
%SOURCENAMEESCAPED%, REVISION: The Rise of the End User in Patent Litigation, http://www.ssrn.com/abstract=2440914 (December 5, 2014)

The patent system focuses on the actions of two players: the patentee and its competitor. It assumes that the competitor will represent the interests of the end user. But, end users are increasingly becoming significant players in the patent system, with their interests sometimes diverging from those of competitors. Attention has recently turned to Patent Assertion Entities (“PAEs”) — also known as patent trolls — who are suing vast numbers of customers using patented technologies in their everyday businesses. Yet, end users were also principal players in some of the main recent patent cases before the U.S. Supreme Court. In Bowman v. Monsanto Co., Monsanto sued farmers for re-using its patented self-replicating seeds. In Association for Molecular Pathology v. Myriad Genetics, patients and physicians sued to invalidate breast cancer gene patents. And, patients and drug stores repeatedly challenge pay-for-delay agreements between patentees and competitors, claiming they undermine ...
%SOURCENAMEESCAPED%, REVISION: Correlation, Coverage, and Catastrophe: The Contours of Financial Preparedness for Disaster, http://www.ssrn.com/abstract=2468361 (December 4, 2014)

Laws regulating financial preparedness for catastrophe reveal the actuarial suppositions underlying disaster law and policy. This article explores three facets of catastrophic risk transfer. First, it explores how risk transfer emerges as the preeminent tool for managing risk. Measures sufficient for managing risks break down as the probability of loss plummets, but the magnitude of potential loss increases. Second, this article explores one alternative risk transfer mechanism by which insurance companies have sought to deepen their financial reserves in anticipation of correlated risks. Correlation among risks, the primary obstacle to functional insurance markets for catastrophic coverage, emerges in new form as the motivation for catastrophe bonds — and as these instruments’ leading pitfall. Finally, this article explores constraints on public intervention into disaster insurance. Along the dimensions of space, time, and human behavior, policies compensating individuals for ...
%SOURCENAMEESCAPED%, REVISION: The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State, http://www.ssrn.com/abstract=2397425 (November 22, 2014)

Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the “permit power,” under which legislatures prohibit a specified activity by statute and delegate administrative agencies discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Describing the permit power, accurately, as an “enormous power in the state,” Epstein bemoaned that it had “received scant attention in the academic literature.” He sought to fill that gap. Centered on his premise that the permit power represents “a complete inversion of the proper distribution of power within a legal system,” Epstein launched a scathing critique of regulatory permits in operation, condemning the practice as a “racket” for administrative abuses and excesses. Epstein’s assessment of the permit power was and remains accurate in three respects. First, the permit power is vast. Regulatory permits ...
%SOURCENAMEESCAPED%, REVISION: Private Prediction Markets and the Law, http://www.ssrn.com/abstract=1134563 (November 21, 2014)

This paper analyses the legality of private prediction markets under U.S. law, describing both the legal risks they raise and how to manage those risks. As the label "private" suggests, such markets offer trading not to the public but rather only to members of a particular firm. The use of private prediction markets has grown in recent years because they can efficiently collect and quantify information that firms find useful in making management decisions. Along with that considerable benefit, however, comes a particularly worrisome cost: the risk that running a private prediction market might violate U.S. state or federal laws. The ends and means of private prediction markets differ materially from those of futures, securities, or gambling markets. Laws written for those latter three institutions nonetheless threaten to limit or even outlaw private prediction markets, as the paper details. The paper also details, however, how certain legal strategies can protect private ...
%SOURCENAMEESCAPED%, REVISION: Government Prediction Markets: Why, Who, and How, http://www.ssrn.com/abstract=1816732 (November 21, 2014)

This paper describes how prediction markets can make governments smarter, cheaper, and more responsive to changing conditions. A prediction market resembles a stock exchange where traders buy and sell not shares of companies, but claims about future events. Academic and commercial use of prediction markets suggests that they offer a useful tool for encouraging, collecting, and quantifying widely scattered expertise. Government administrators have begun experimenting with prediction markets, too. Many questions remain, however, about the proper way to implement government prediction markets. This paper opens with a brief survey of the costs and benefits of government prediction markets. It then turns to ironing out the statutory and regulatory wrinkles occasioned by government prediction markets in general, and by federal executive prediction markets in particular. Government agencies should outsource the provision of prediction markets and let employees and outside contractors trade ...
%SOURCENAMEESCAPED%, REVISION: The Specter of Copyism v. Blockheaded Authors: How User-Generated Content Affects Copyright Policy, http://www.ssrn.com/abstract=1089589 (November 21, 2014)

Technological advances, because they have radically lowered the costs of creating and distributing expressive works, have shaken the foundations of copyright policy. Once, those who held copyrights in sound recordings, movies, television shows, magazines, and the like could safely assume that the public would do little more than passively consume. Now, though, the masses have seized (peacefully acquired, really) the means of reproducing copyright works, making infringement cheap, easy, and, notwithstanding the law's dictates, widespread. Copyright holders thus understandably fear that their customers have begun to treat expressive works like common property, free for all to use. That, the specter of copyism, does risk upsetting copyright policy, leading to a market failure in the production of expressive works. Even as we recognize that threat, however, we should also appreciate that technological advances have greatly reduced the costs of creating and distributing new works of ...
%SOURCENAMEESCAPED%, REVISION: Pornography, Privacy, and Digital Self-Help, http://www.ssrn.com/abstract=257689 (November 21, 2014)

With regard both to inhibiting Internet pornography and promoting Internet privacy, the adequacy of self-help alternatives ought to play a crucial role in evaluating the propriety of state action. 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 civil liberties 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 within or by commercial entities and 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 privacy-protecting ...
%SOURCENAMEESCAPED%, New: Copyright Porn Trolls, Wasting Taxi Medallions, and the Propriety of 'Property', http://www.ssrn.com/abstract=2527662 (November 20, 2014)

What happens when the government creates privileges that have powers rivaling those that the common law accords to property? Recent events in two seemingly unrelated areas suggest a troubling answer to that question. First, in copyright, porn trolls have sued thousands of John Does for allegedly participating in illegal file sharing. These suits evidently seek not judicial vindication but merely the defendants' identities, which the plaintiffs then use to reap settlement payments from guilty and innocent alike. Second, taxi drivers in cities across the world have launched legal, political, and physical attacks against Uber and other networked transportation services, accusing their new competitors of stealing customers and destroying the value of taxi medallions. Both conflicts arise from the same basic problem: copyrights and taxi medallions more resemble privileges than property. They not only lack property's natural, customary, and common law roots; they also suffer from ...
%SOURCENAMEESCAPED%, REVISION: Climate Adaptation Law, http://www.ssrn.com/abstract=2514173 (November 18, 2014)

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: Challenges to the Development of a Human Rights Framework for Intellectual Property, http://www.ssrn.com/abstract=2517854 (November 10, 2014)

Since the establishment of the WTO TRIPS Agreement, government officials, international intergovernmental organizations, civil society groups, judges, academic commentators and the media have focused considerable attention on the interplay of intellectual property and human rights. In the mid-2000s, scholars have begun advocating the development of a human rights framework for intellectual property law and policy. As I pointed out in earlier works, such a framework will not only be socially beneficial, but will also enable countries to develop a balanced intellectual property system that takes international human rights obligations into consideration. While the development of a human rights framework for intellectual property is important, skeptics have warned about the danger of an "arranged marriage" between intellectual property and human rights. Although their concerns are understandable, it may be too late to deny the protection of human rights-based interests in ...
%SOURCENAMEESCAPED%, New: Capital's Offense: Law's Entrenchment of Inequality, http://www.ssrn.com/abstract=2520251 (November 8, 2014)

Piketty’s Capital in the Twenty-First Century is a rare scholarly achievement. It weaves together description and prescription, facts and values, economics, politics, and history, with an assured and graceful touch. So clear is Piketty’s reasoning, and so compelling the enormous data apparatus he brings to bear, that few can doubt he has fundamentally altered our appreciation of the scope, duration, and intensity of inequality. This review explains Piketty’s analysis and its relevance to law and social theory, drawing lessons for the re-emerging field of political economy. The university enables interdisciplinary work, and political economy is an ideally hybrid discursive space for this process of mutual inspiration and correction. Lawyers are particularly well-suited to the task of studying political economy, because we are the ones drafting, interpreting, and applying the rules governing the interface between state actors and firms. Integrating the long-divided fields of politics ...
%SOURCENAMEESCAPED%, REVISION: Challenges to the Development of a Human-Rights Framework for Intellectual Property, http://www.ssrn.com/abstract=2517854 (November 2, 2014)

Since the establishment of the WTO TRIPS Agreement, government officials, international intergovernmental and nongovernmental organizations, judges, academic commentators and the media have focused considerable attention on the interplay of intellectual property and human rights. In the mid-2000s, scholars have begun advocating the development of a human rights framework for intellectual property law and policy. As I pointed out elsewhere, such a framework would not only be socially beneficial, but would also enable countries to develop a balanced intellectual property system that takes international human rights obligations into consideration. While the development of a human rights framework for intellectual property is important, skeptics have expressed concern over the danger of an "arranged marriage" between intellectual property and human rights. Although this concern is understandable, it may be too late to deny the protection of human-rights-based interests in ...
%SOURCENAMEESCAPED%, New: Interview on the Black Box Society, http://www.ssrn.com/abstract=2516442 (October 31, 2014)

Hidden algorithms drive decisions at major Silicon Valley and Wall Street firms. Thanks to automation, those firms can approve credit, rank websites, and make myriad other decisions instantaneously. But what are the costs of their methods? And what exactly are they doing with their digital profiles of us? Leaks, whistleblowers, and legal disputes have shed new light on corporate surveillance and the automated judgments it enables. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only scratched the surface of troublingly monopolistic and exploitative practices. Drawing on the work of social scientists, attorneys, and technologists, The Black Box Society offers a bold new account of the political economy of big data. Data-driven corporations play an ever larger role in determining opportunity and risk. But they depend on ...
%SOURCENAMEESCAPED%, New: Ecosystem Services, Ecosystem Resilience, and Resilience of Ecosystem Management Policy, http://www.ssrn.com/abstract=2514427 (October 26, 2014)

Ecosystem services theory and resilience theory have both gained tremendous stock in ecosystem management policy over the past decade. Each resonates firmly in the modern conception of ecosystems as complex adaptive systems. Ecosystem services theory merges the disciplines of ecology, geography, and economics to gain a better understanding of how complex ecological landscapes produce a natural economy that sustains human and social capital. Resilience theory studies the social-ecological interface to gain a better understanding of how dynamic forces in nature affect social systems, and vice versa. Standing alone, each of these theoretical models has established substantial independent credibility throughout academic, government, and private research bodies. Less attention has been paid, however, to the relationship between ecosystem services theory and resilience theory. Are the two mutually antagonistic, or will one support application of the other? How will knowing about one ...
%SOURCENAMEESCAPED%, New: Ecosystem Services and Ecosystem Management-How Good a Fit?, http://www.ssrn.com/abstract=2514400 (October 24, 2014)

The concepts of ecosystem management and ecosystem services are both firmly implanted in natural resources policy dialogue and as focal points of scientific research, though each has had its detractors and difficulties gaining traction in concrete regulatory programs. Yet little attention has been paid to how they relate, particularly in a way relevant to Grumbine’s call for reconciliation between ecological integrity and use of ecosystems for human prosperity. More specifically, does the concept of ecosystem services light the way for harmonizing the goal of sustaining ecological integrity and the goal of providing goods and services to humans? Is there something about the ecosystem services approach that changes the calculus from that used in traditional resource management in such a way that makes it more likely that ecosystem services concepts will promote sustainable ecological integrity? This chapter explores those questions from two perspectives. The first section of the ...
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Enforcement and Global Climate Change, http://www.ssrn.com/abstract=2252602 (October 20, 2014)

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 recent 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 ...
%SOURCENAMEESCAPED%, REVISION: Αρκτούρος (Arcturus): Protecting Biodiversity Against the Effects of Climate Change Through the Endangered Species Act, http://www.ssrn.com/abstract=2436702 (October 19, 2014)

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: Indexing Inflation: The Impact of Methodology on Econometrics and Macroeconomic Policy, http://www.ssrn.com/abstract=2474949 (October 17, 2014)

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%, New: Beps and Global Digital Taxation, http://www.ssrn.com/abstract=2507872 (October 11, 2014)

In 2013, the Organization for Economic Cooperation and Development (OECD) launched its base erosion and profit shifting (BEPS) project to inhibit aggressive international tax planning. Action 1 of the BEPS project requires the OECD to identify the main challenges that the digital economy poses for the application of current international tax rules and develop reforms to address these challenges. The article reviews related academic perspectives, and discusses how the digital world facilitates aggressive tax planning. It concludes that any new tax rules should apply broadly and neutrally to substantively similar economic activities from either the digital or traditional commercial world. In addition, the OECD should more carefully examine how Internet technologies can help enforce national tax laws to constrain aggressive planning.
%SOURCENAMEESCAPED%, REVISION: Clusters and Links in Asian Intellectual Property Law, http://www.ssrn.com/abstract=2492954 (October 9, 2014)

Intellectual property developments in Asia are dynamic, distinct and diverse. There are also significant complexities within both the region and in each individual country. To help advance research and understanding in this area, this chapter underscores the insights provided by two pairs of analytical concepts. The first pair covers divergences and convergences. It aims to shed light on the similarities and differences in intellectual property regimes in Asia. It also explains why intellectual property laws have been developed the way they did. The second pair concerns clusters and links. Instead of asking why similarities and differences exist, countries are clustered together to provide a more systematic and meaningful comparison. Through a discussion of links, this chapter also reminds us that these clusters do not stand alone. Instead, they interact with each other and with intellectual property regimes outside Asia. Taken together, these two pairs of analytical ...
%SOURCENAMEESCAPED%, New: Intellectual Property and Confucianism, http://www.ssrn.com/abstract=2506384 (October 8, 2014)

In the past two decades, policy makers, industry leaders, and academic commentators have repeatedly condemned Confucianism for blocking or slowing down intellectual property reforms. Nevertheless, few have revisited the debate on intellectual property and Confucianism following the recent dramatic changes to the intellectual property landscape in Asia. In 2013, for example, Japan, China, and South Korea were among the top five countries filing international applications through the Patent Cooperation Treaty, along with the United States and Germany. Chinese and Japanese firms such as Panasonic, ZTE, and Huawei Technologies also emerged as the world's top three leaders in corporate filings. If Confucianism has presented a major barrier to intellectual property reforms in China and other parts of Asia, what causes the Sinicized countries to move forward so quickly in the intellectual property world? Is it the World Trade Organization and its TRIPS Agreement? Is it the success of ...
%SOURCENAMEESCAPED%, REVISION: How Copyright Law May Affect Pop Music Without Our Knowing it, http://www.ssrn.com/abstract=2503445 (October 7, 2014)

Commissioned for a symposium on copyright law and the creation of music, this article explores five questions about popular music that can be illuminated by greater insights into copyright law and the music business. Why do popular songs usually last for fewer than five minutes? Why are professional songwriters dissatisfied with Pandora and Spotify? Why can we bring European CDs back to the United States? Why can't YouTube videos be created with ASCAP/BMI licenses? Are digital downloads sales or licenses? And as a bonus: Why did the royalty rate for sheet music stay at seven cents per copy? It is my hope that answering these questions will enable us to develop a deeper understanding of copyright law and how it can affect popular music. The copyright debate has been repeatedly and frequently framed as one among the different stakeholders. However, what laws we include in Title 17 of the United States Code will ultimately affect our music, both directly and indirectly. The more we ...
%SOURCENAMEESCAPED%, REVISION: Incentivizing the Ordinary User, http://www.ssrn.com/abstract=2163142 (October 7, 2014)

Disputes regarding the effectiveness of the patent system focus on the appropriate scope of patent rights. This Article departs from the traditional debate by looking instead at the players regulated by the patent system. The Article shows that the patent system fails to effectively encourage technological dissemination because it focuses on the patent owner and his competitors, while largely ignoring a crucial player: the ordinary user. The user in his everyday decisions of whether to adopt or not to adopt a technology plays a critical role in determining whether a new technology will be disseminated. Yet, patent law contains an overly simplistic view of the ordinary user. It views the ordinary user as motivated by price and availability alone. This Article uncovers the intricacy of ordinary users’ decisions regarding technological adoption. It identifies two main sources of user resistance: resistance due to novelty and resistance due to perceived consequences. Many believe ...
%SOURCENAMEESCAPED%, New: Measuring Gaps Between Hypothetical Investment Returns and Actual Investor Returns, http://www.ssrn.com/abstract=2500079 (September 23, 2014)

Actual investor returns from mutual funds lag behind hypothetical returns based on a fixed initial investment and reinvestment of all distributions. This gap arises from behaviorally driven errors in timing. The nonproprietary literature on this performance gap has emphasized the relationship of this gap to overall returns on stocks and mutual funds. This article seeks to address more directly the relationship of behaviorally driven gaps in investment returns to downside risk, upside gain, and overall volatility. Documenting the existence of this gap across the universe of publicly traded securities — not only in the aggregate, but also on a security-by-security basis — may provide a legal basis for requiring mutual fund and exchange-traded fund managers to compute and disclose that gap.
%SOURCENAMEESCAPED%, REVISION: Exit Strategies for the Administrative State, http://www.ssrn.com/abstract=2482392 (September 17, 2014)

Exit is a ubiquitous feature of life, whether breaking up a relationship, 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. The same is true for governance. Welfare support ends. Business subsidies expire. While legal scholarship is replete with studies of exit strategies for businesses and investors, the topic of exit has barely been touched in administrative law scholarship. The design “checklist” policy makers and legal academics have devised for new programs leaves exit on the sidelines. In this article, we argue that exit should be a fundamental feature of regulatory design, considered at the time of program creation. Part I starts from first principles and considers the basic features of exit. It addresses the normative aspect of exit strategies, exploring the different metrics to measure the success of an exit strategy. With these descriptive and normative ...
%SOURCENAMEESCAPED%, New: Israel, http://www.ssrn.com/abstract=2494559 (September 13, 2014)

This is the Israeli report to the Tort and Insurance Law Yearbook. It critically evaluates notable developments which took place in Israeli tort law in 2012. Part A discusses legislation and legislative bills in various areas, including state liability, compensation and assistance following the cancellation of a flight or a change in its conditions, road accidents victims' compensation, and disclosure of internet user information in tort litigation. Part B discusses 2012 Supreme Court decisions on wrongful life and wrongful birth, the truth defense in defamation law, the evidentiary weight of acquittal in a criminal procedure, the applicability of the contributory negligence defense in an action for deceit, the interrelation between tort law and property law, a tort-based duty to disclose an anonymous user's identity, and the scope of the medical duty to disclose information. Part B also analyzes recent developments concerning a uniquely Israeli head of damages - "infringement of ...
%SOURCENAMEESCAPED%, REVISION: 'These Great and Beautiful Republics of the Dead': Public Constitutionalism and the Antebellum Cemetery, http://www.ssrn.com/abstract=2304305 (September 9, 2014)

“Public Constitutionalism and the Antebellum Cemetery” joins the growing literature on public constitutionalism by focusing on the seventy addresses given at cemetery dedications from Supreme Court Justice Joseph Story’s address at Mount Auburn Cemetery in Cambridge, Massachusetts, in 1831, through the addresses of Edward Everett and Abraham Lincoln at Gettysburg in November 1863. The addresses were part of a vibrant public discussion of constitutional principles, which spanned such diverse occasions as July Fourth celebrations, arguments in great constitutional cases (like Daniel Webster’s Dartmouth College argument), dedication of public monuments (like Daniel Webster’s speech at the placement of the cornerstone of the Bunker Hill Monument in 1824), lyceum addresses, and college literary society lectures. For Americans, especially those of the Whig Party, the Constitution was a key component of culture and a key unifier of the nation. Rural cemeteries provided support for such ...
%SOURCENAMEESCAPED%, REVISION: Cornelius Sinclair's Odyssey: Freedom, Slavery, and Freedom Again in the Old South, http://www.ssrn.com/abstract=2469529 (September 9, 2014)

In August 1825 several free, young black people were enticed onto a ship in the Delaware River along the Philadelphia waterfront. Thus began their descent to the heart of the old South. They were kidnapped and held aboard a ship destined for a stop somewhere near Cape Henlopen, Delaware. Some days later they were carried by wagon to Maryland’s eastern shore and another ship took them further south. They walked across Georgia and into Alabama. One young man, Cornelius Sinclair, was sold in Tuscaloosa. He was a free person converted into a slave. But that was not the end. Those who survived were then taken to Mississippi, where a slave-owner realized that they were probably free. The slave-owner contacted the Mayor of Philadelphia to verify the story of kidnapping and eventually most of those held in Mississippi were sent back to Philadelphia. Then the mayor set about rescuing Sinclair, too. In Tuscaloosa, a local minister helped Sinclair by filing a lawsuit to ask for ...
%SOURCENAMEESCAPED%, REVISION: Can the Canadian UGC Exception Be Transplanted Abroad?, http://www.ssrn.com/abstract=2405821 (September 8, 2014)

Commentators have examined the international law aspects of the new Canadian UGC exception, including its compliance with the Berne Convention and the WTO TRIPS Agreement. One issue that has not been considered much is whether this exception would serve as an ideal model for other jurisdictions that are undertaking digital copyright reform. Written for the Symposium on User-Generated Content under Canadian Copyright Law, this article uses Hong Kong as a case study to illustrate why the Canadian UGC exception, with appropriate modifications, can be — and should be — transplanted abroad. This article begins by discussing the efforts by the Hong Kong government to transplant copyright laws from abroad and its recent public consultation on the treatment of parody under the copyright regime. It further examines the benefits and drawbacks of legal transplants. Using the U.S. Digital Millennium Copyright Act of 1998 as a point of comparison, the article argues that the Canadian UGC ...
%SOURCENAMEESCAPED%, REVISION: Digital Copyright Enforcement Measures and Their Human Rights Threats, http://www.ssrn.com/abstract=2363945 (September 8, 2014)

This chapter examines the human rights threats posed by those digital copyright enforcement measures that have been incorporated into both domestic laws and international agreements. It begins by providing an overview of the various human rights that have been implicated by these measures. The chapter then briefly discusses those specific measures that have been deemed highly threatening from a human rights standpoint. Although these measures were drawn largely from international agreements, most notably the Anti-Counterfeiting Trade Agreement (ACTA), many of them originate in domestic laws in either the European Union or the United States. This chapter concludes with two case studies. The first study focuses on the so-called "graduated response" system, which has been introduced in Chile, France, Ireland, South Korea, Taiwan and the United States and explored in New Zealand and the United Kingdom. This study illustrates the specific challenges brought about by one of the most ...
%SOURCENAMEESCAPED%, REVISION: Bioprospect Theory, http://www.ssrn.com/abstract=2164848 (September 3, 2014)

Conventional wisdom treats biodiversity and biotechnology as rivalrous values. The global south is home to most of earth's vanishing species, while the global north holds the capital and technology needed to develop this natural wealth. The south argues that intellectual property laws enable the industrialized north to commit biopiracy. By contrast, the United States has characterized calls for profit-sharing as a threat to the global life sciences industry. Both sides magnify the dispute, on the apparent consensus that commercial exploitation of genetic resources holds the key to biodiversity conservation. Both sides of this debate misunderstand the relationship between biodiversity and biotechnology. Both sides have overstated the significance of bioprospecting. It is misleading to frame the issue as whether intellectual property can coexist with the international legal framework for preserving biodiversity. Any lawyer can reconfigure intellectual property to embrace all ...
%SOURCENAMEESCAPED%, New: Déjà Vu in the International Intellectual Property Regime, http://www.ssrn.com/abstract=2486257 (August 26, 2014)

On June 26, 2012, close to 50 members of the World Intellectual Property Organization signed the Beijing Treaty on Audiovisual Performances. A little more than a year later, WIPO also adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. Does the rejuvenation of WIPO norm-setting activities suggest the impending end of a much-feared 'non-multilateral era', precipitated by the active negotiation of bilateral, plurilateral and regional trade agreements? Do the recent norm-setting activities reinforce the Development Agenda painstakingly created by developing countries? Or do these activities indicate just the growing complexity of the international intellectual property regime, within which both multilateralism and non-multilateralism proceed at the same time? This chapter puts the recent multilateral and non-multilateral intellectual property developments in their proper historical contexts. ...
%SOURCENAMEESCAPED%, REVISION: The International Enclosure of China's Innovation Space, http://www.ssrn.com/abstract=2337307 (August 25, 2014)

This chapter highlights the external constraints on China's ability to innovate by recounting how the existing international intellectual property regime has evolved in a way that significantly encloses the innovation space of developing countries. It begins by tracing the development of this regime from its very beginning to the establishment of the WTO TRIPS Agreement. It discusses not only the constraints the Agreement has placed on developing countries, but also the various flexibilities it retains to their benefit. The chapter then examines the rapid proliferation of TRIPS-plus bilateral, plurilateral and regional trade, investment and intellectual property agreements, including both the controversial Anti-Counterfeiting Trade Agreement and the still-under-negotiation Trans-Pacific Partnership Agreement. It also points out that China has been slowly emerging as an innovative power and therefore a potential beneficiary of higher intellectual property standards, just as ...
%SOURCENAMEESCAPED%, REVISION: Autonomy, Welfare, and the Pareto Principle, http://www.ssrn.com/abstract=2392859 (August 25, 2014)

The Pareto principle has great intuitive appeal, but poses perplexities on closer examination. What exactly do we mean by “preferences”? Should the principle apply ex post or ex ante? Does it uphold individual autonomy, individual welfare, or both? This essay argues that the Pareto principle is best understood, in utilitarian terms, as connecting social welfare with an objective appraisal of individual welfare. Indeed, with only modest additional assumptions, the Pareto principle implies a utilitarian social welfare function. It is much more difficult to link Pareto with autonomy norms for several reasons, including not only Sen’s paradox but a bevy of other difficulties.
%SOURCENAMEESCAPED%, Update: The Future of Food Law & Policy: The Responsibility of Lawyers in the Academy and Beyond, http://www.ssrn.com/abstract=2342872 (August 25, 2014)

Food Law & Policy is a flourishing legal field that is fast approaching the tenth anniversary of its inception. The field boasts several key milestones. The first Food Law & Policy course was taught in 2004. The first scholarly journal devoted to the field was created in 2005. And, the first Food Law & Policy legal clinic was established in 2010. Today, interest in the field among legal scholars and law students alike is so widespread that a 2013 news article reported “there may be no hotter topic in law schools right now than food law and policy.” Food Law & Policy incorporates elements from the study of traditional food and drug law as well as elements from the study of traditional agricultural law. It intersects with a new approach to agricultural law studies that involves a more holistic approach including sustainability and a food systems analysis. This article was prepared for the Yale University Food Systems Symposium. It was written by faculty members at several law ...
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%SOURCENAMEESCAPED%, REVISION: Indexing Inflation: Why Methodology Matters in Econometrics and Macroeconomic Policymaking, http://www.ssrn.com/abstract=2474949 (August 18, 2014)

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 underling 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%, New: Implementing the New Ecosystem Services Mandate: A Catalyst for Advancing Science and Policy, http://www.ssrn.com/abstract=2481253 (August 17, 2014)

On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that results when wetlands are filled at impact sites and mitigation wetlands are provided at possibly significant distances away. Although motivated primarily by the need to bring the program under one comprehensive regulatory framework, the new rule also for the first time introduces ecosystem services into ...

  

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