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:

Enter your e-mail address:    



%SOURCENAMEESCAPED%, REVISION: Crafting a Narrative for the Red State Option, http://www.ssrn.com/abstract=2328614 (April 11, 2014)

This Article examines the current state of play following the Supreme Court's decision in NFIB v. Sebelius to allow states the option of expanding their Medicaid programs in accordance with the Patient Protection and Affordable Care Act (ACA). Holding that mandatory expansion was unconstitutionally coercive, the Court created the Red State Option. Despite the enormously generous federal financial support for Medicaid expansion, close to half of the states have declined. At the same time, at least eight Republican-led states have crossed Tea Party lines to accept federal funding for expansion. Drawing lessons from these states, including Arkansas, Arizona, Michigan, and Florida, the Article articulates key elements of a Red State Narrative that would allow other reluctant states to come around to expansion without losing political face.
%SOURCENAMEESCAPED%, REVISION: Death Panels and the Rhetoric of Rationing, http://www.ssrn.com/abstract=2147468 (April 11, 2014)

This essay offers an explanation for the United States' continued resistance to universal health care as grounded in two taboos: taxation and rationing. Even we were willing to pay more in taxes to directly subsidize the cost of medical care for those in need, rather than our current system of indirect subsidization through private insurance risk-pooling and cost-shifting, we still would face the unavoidable reality of resource limitations. Attempts to limit resource consumption, however, have been strongly opposed, as evidenced by the "death panels" controversy. Governor Palin's grossly erroneous characterization of the Patient Protection and Affordable Care Act (ACA) rendered one ACA provision, regarding end-of-life planning, impassable and another, regarding comparative effectiveness research, largely impotent. Even these patient-centered, autonomy-favoring provisions could not be fully enacted once tainted by the suggestion that they would result in rationing of health care. ...
%SOURCENAMEESCAPED%, New: Leveraging the International Economy of Intellectual Property, http://www.ssrn.com/abstract=2422833 (April 10, 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 which 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%, REVISION: The Strategic and Discursive Contributions of the Max Planck Principles for Intellectual Property Provisions in Bilateral and Regional Agreements, http://www.ssrn.com/abstract=2342677 (April 3, 2014)

In June 2013, the Max Planck Institute for Intellectual Property and Competition Law released its Principles for Intellectual Property Provisions in Bilateral and Regional Agreements. Drafted by the Institute’s directors and research fellows in collaboration with a team of outside experts, this document seeks to facilitate the development of "international rules and procedures that can achieve a better, mutually advantageous and balanced regulation of international [intellectual property]." This essay discusses the important contributions the Principles have made at both the strategic and discursive levels. It situates these two sets of contributions in the context of the ongoing challenges confronting the development of the international trading and intellectual property systems. The essay concludes by briefly highlighting two important areas of interfaces that the Principles, by design, are unable to address.
%SOURCENAMEESCAPED%, New: Property Rights and Climate Change, http://www.ssrn.com/abstract=2418756 (April 1, 2014)

Climate change poses a challenge for maintaining the stable entitlements that are basic to property law. Yet property rights can also serve as aids to climate adaptation. This essay, which was initially delivered as the Wolf Family Lecture on the American Law at the University of Florida, explores both aspects of the property/climate-change relationship. The first part of the article discusses takings issues that may arise in connection with sea level rise. The second part of the article discusses the constructive role that transferrable development rights and the public trust doctrine could play in climate adaptation, including their role in limiting takings claims.
%SOURCENAMEESCAPED%, REVISION: The Client Who Did Too Much, http://www.ssrn.com/abstract=2412496 (March 23, 2014)

Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.
%SOURCENAMEESCAPED%, REVISION: Plus Ça Change, Plus C’Est La Même Chose (The More Things Change, The More They Stay the Same), http://www.ssrn.com/abstract=2404069 (March 21, 2014)

This essay takes the original plans from NYU Law School and draws analogies between those plans and the issues facing legal education today. Benjamin Butler's 1835 Plan for the Organization of a Law Faculty and for a System of Instruction in Legal Science in the University for the City of New-York1 will make any law school dean feel like Yogi Berra: it’s “deja-vu all over again.” The issue of how best to organize a curriculum to train legal professionals was a hot topic then, and it’s a hot topic now.
%SOURCENAMEESCAPED%, New: Flagging Prospect Theory, http://www.ssrn.com/abstract=2216916 (March 19, 2014)

The basic tenets of prospect theory, a bedrock principle of behavioral economics, can be illustrated by what Daniel Kahneman has called prospect theory’s "flag": an asymmetrical sigmoid curve whose inflection point occurs at the origin (thus reflecting human beings' adaptation level relative to their starting economic position), whose slope to the left of the origin is discernibly steeper than its slope to the right (thus reflecting loss aversion), and whose upper and lower asymptotes reflect diminishing sensitivity to losses as well as gains. This paper describes a surprisingly simple and supple method for parametrically modeling prospect theory with closed-form expressions and elementary functions. It accomplishes this task by transforming the cumulative distribution function of the log-logistic distribution. In plainer language, this paper "draws" the flag of prospect theory with the simplest available mathematical functions and the minimum amount of algebraic manipulation ...
%SOURCENAMEESCAPED%, New: The Living Regulatory Challenges of Synthetic Biology, http://www.ssrn.com/abstract=2410179 (March 19, 2014)

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: (i) synthetic biology organisms can evolve; (ii) traditional risk structures do not apply; and (iii) 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. The Article recommends instead a selection of ‘soft law’ alternatives that could more quickly provide flexible and adaptive measures to help fill regulatory gaps ...
%SOURCENAMEESCAPED%, REVISION: An Agricultural Law Jeremiad: The Harvest Is Past, the Summer Is Ended, and Seed Is Not Saved, http://www.ssrn.com/abstract=2387998 (March 18, 2014)

The saving of seed exerts a powerful rhetorical grip on American agricultural law and policy. Simply put, farmers want to save seed. Many farmers, and many of their advocates, believe that saving seed is essential to farming. But it is not. Farmers today often buy seed, just as they buy other agricultural inputs. That way lies the path of economic and technological progress. Seed-saving advocates protest that compelling farmers to buy seed every season effectively subjects them to a form of serfdom. So be it. Intellectual property law concerns the progress of science and the useful arts. Collateral economic and social damage, in the form of affronts to the agrarian ego, is of no valid legal concern. The harvest is past, the summer is ended, and seed is not saved.
%SOURCENAMEESCAPED%, REVISION: Measuring Market Risk Under Basel II, 2.5, and III: VaR, Stressed VaR, and Expected Shortfall, http://www.ssrn.com/abstract=2252463 (March 18, 2014)

Each of the most recent accords of the Basel Committee on Banking Regulation, known as Basel II, 2.5, and II, has embraced a different primary measure of market risk in global banking regulation: traditional value-at-risk (VaR), stressed VaR, and expected shortfall. After introducing the mathematics of VaR and expected shortfall, this note will evaluate how well the reforms embraced by Basel 2.5 and III - stressed VaR and expected shortfall - have addressed longstanding regulatory concerns with traditional VaR. Part I describes the calculation of VaR in its conventional form. For illustrative purposes, Part I will describe parametric VaR on a Gaussian distribution. Part II summarizes known weaknesses in VaR, from inherent model and estimation risk to VaR’s failure to perform under extreme economic stress and VaR’s failure to satisfy the theoretical constraints on “coherent” measurements of risk. Part III describes how to calculate expected shortfall as an extension of ...
%SOURCENAMEESCAPED%, New: Application of the Abnormally Dangerous Activities Doctrine to Environmental Cleanups, http://www.ssrn.com/abstract=2408725 (March 14, 2014)

The common law tort doctrine of strict liability for abnormally dangerous activities is emerging as a key element of the law of hazardous substance regulation, which has been dominated by CERCLA. The abnormally dangerous activities doctrine exhibits a formidable potential for expansion. Together with the related torts of nuisance and trespass, strict liability for abnormally dangerous activities have already begun to complement CERCLA's scheme for allocating the costs of cleaning hazardous waste sites. The revitalized application of the abnormally dangerous activities doctrine to environmental cleanups may affect insurance coverage.
%SOURCENAMEESCAPED%, New: Book Review: The Moral Tradition of American Constitutionalism: A Theological Interpretation, http://www.ssrn.com/abstract=2408700 (March 14, 2014)

Just as the Gospel reminds Christians that “the last shall be first,” the observation that “less is more” surely does not damn H. Jefferson Powell's constitutional scholarship with faint praise. In “The Moral Tradition of American Constitutionalism: A Theological Interpretation,” Powell launches an unapologetically Christian attack on America's long-standing civic faith in constitutional law. Powell's core message -- that there is no such thing as a Christian approach to constitutionalism -- heralds a radical and powerful new model for understanding the relationship between personal Christianity and public law.
%SOURCENAMEESCAPED%, New: Submission to Finance Department on Implementation of FATCA in Canada, http://www.ssrn.com/abstract=2407264 (March 14, 2014)

The United States enacted a tax reform in 2010 known as the Foreign Account Tax Compliance Act (FATCA), which will impose an extensive third-party monitoring and disclosure regime on financial institutions around the world in an effort to “smoke out” American tax cheats and expose their undeclared foreign assets to the U.S. Internal Revenue Service (IRS). The flow of information from Canadian financial institutions directly to the IRS that is required by FATCA would violate a number of laws in Canada. Accordingly, the United States has requested changes to these laws. The Canadian government now seeks to accommodate these requests in the form of an “intergovernmental agreement” (IGA) with the United States, which will be enacted into law as the Canada–United States Enhanced Tax Information Exchange Agreement Implementation Act (the Implementation Act) pursuant to a proposal released for comment by the Department of Finance. The Department of Finance invited public comments on these ...
%SOURCENAMEESCAPED%, New: Book Review, Nicholas Mercuro & Steven G. Medema, Economics and the Law: From Posner to Post-Modernism, http://www.ssrn.com/abstract=2408097 (March 13, 2014)

It is no longer credible to speak of a single “law and economics” movement. Rather, there are multiple schools of thought, each applying economic analysis of law in a distinct way and none commanding widespread acceptance. Chaos would seem the natural result of any attempt to marry economics, a value-laden discipline beset by critics who decry the immorality of the “dismal science,” with law, a profession as methodologically incoherent as it is intellectually promiscuous. A literature of staggering size and dazzling diversity thus confronts anyone who tries to survey law and economics “from Posner to post-modernism.” In Economics and the Law, Nicholas Mercuro and Steven G. Medema acknowledge the Herculean nature of their task by confining themselves to “a concise overview” of thisd field. Mercuro and Medema nevertheless promise more than they can deliver. With each blow at the many-headed Hydra that economic analysis of law has become, the authors leave marginally useful ...
%SOURCENAMEESCAPED%, REVISION: Bioprospect Theory, http://www.ssrn.com/abstract=2164848 (March 10, 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: Can the Canadian UGC Exception Be Transplanted Abroad?, http://www.ssrn.com/abstract=2405821 (March 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 they have not covered 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 as part of its digital copyright reform. 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 exception provides a timely and attractive model for ...
%SOURCENAMEESCAPED%, New: Responsibility for Historic Carbon Emissions: Lessons from Tort and Statutory Compensation Schemes, http://www.ssrn.com/abstract=2404372 (March 5, 2014)

Existing legal regimes dealing with analogous issues provide useful guideposts in considering the degree to which emitters bear responsibility for past carbon emissions. With regard to liability for environmental damage, the European Union but not the United States recognizes an exemption from liability if the harm was not understood at the time of the conduct. States have also been reluctant to accept strict liability for environmental damage under international law. Similarly, in European law, a defendant is usually not responsible if the state of scientific knowledge at the time did not enable the discovery of a product defect at the time the product was made. In the United States, many state governments recognize a similar limitation on products liability, although some do not. The problem of climate change is unique in some ways, and the legal system is not always the best gauge of ethical judgments. Nevertheless, understanding how societies have handled other cases of ...
%SOURCENAMEESCAPED%, REVISION: The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State, http://www.ssrn.com/abstract=2397425 (March 4, 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: The Non-multilateral Approach to International Intellectual Property Normsetting, http://www.ssrn.com/abstract=2325766 (March 2, 2014)

Since the early 2000s, the European Union and the United States have pushed aggressively for the development of bilateral and regional trade agreements. In recent years, developed countries have gone even further to establish plurilateral trade, investment and intellectual property agreements that bring together developed and like-minded countries. Using an ill-advised ‘country club’ approach to international intellectual property normsetting, these countries have negotiated agreements ranging from the Anti-Counterfeiting Trade (ACTA) Agreement to the Trans-Pacific Partnership (TPP) Agreement to the Transatlantic Trade and Investment (TTIP) Agreement. While ACTA focuses primarily on intellectual property issues, TPP and TTIP cover trade and trade-related issues, including both the trade- and investment-related aspects of intellectual property rights. To help us take stock of the many recent developments concerning these non-multilateral agreements, this chapter examines the ...
%SOURCENAMEESCAPED%, REVISION: TPP and Trans-Pacific Perplexities, http://www.ssrn.com/abstract=2398720 (March 2, 2014)

In the past few years, the United States has been busy negotiating the Trans-Pacific Partnership (TPP) Agreement with countries in the Asia Pacific region. These countries include Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. Although it remains unclear which chapters or provisions will be included in the final text of the TPP Agreement, the negotiations have been quite controversial. In addition to the usual concerns about having high industry-pushed standards that are inappropriate for many participating countries, the TPP negotiations have been heavily criticized for their secrecy and lack of transparency, accountability, and democratic participation. Written for the inaugural annual Asia Pacific issue of the Fordham International Law Journal, this Article does not seek to continue this line of criticism, although transparency, accountability, and democratic participation remain highly important. Nor does ...
%SOURCENAMEESCAPED%, REVISION: Self-Adjusting Weighted Averages in Standard Scoring, http://www.ssrn.com/abstract=2397637 (February 28, 2014)

Like many of their counterparts in university teaching, law professors routinely rely on all-or-nothing final examinations. But all-or-nothing final exams put enormous pressure on students, who often labor for months with no meaningful feedback on their mastery of the material. One alternative to the all-or-nothing final exam consists of administering some sort of initial graded assignment. Assigning a relatively modest weight to the initial assignment maintains the primacy of the comprehensive final exam. To further minimize the pressure that accompanies the initial assignment, I propose an algorithm for adjusting the weight of the grade on the initial assignment so that students who boost their performance by the time of the final exam will benefit from their improvement. By the same token, students who do well on the initial assignment may wish to “lock in” some of the benefit of that performance as a hedge against declining performance on the final exam. The method for ...
%SOURCENAMEESCAPED%, New: Methodological Pluralism and Constitutional Interpretation, http://www.ssrn.com/abstract=2401247 (February 26, 2014)

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%, REVISION: The Constitution as if Consent Mattered, http://www.ssrn.com/abstract=2208731 (February 24, 2014)

Libertarians do not fit into the left-right spectrum very comfortably; by their own account, they transcend it. This brief paper, written for a Chapman Law Review symposium on libertarian legal theory, argues that libertarians should likewise transcend the dichotomy currently dividing constitutional theory. The Left tends to regard the Constitution as adaptable to current needs and defined by judicial authority; the Right tends to search the historical record for the Constitution’s original meaning. Each of those conventional approaches has its own virtues and vices. Combining the best of both — the responsiveness of living constitutionalism and the textual fidelity of originalism — generates a distinctly libertarian theory. This theory maximizes the consent of the governed and, thus, the justifiability of constitutional authority.
%SOURCENAMEESCAPED%, New: The Influence of Historical Tax Law Developments on Anglo-American Law and Politics, http://www.ssrn.com/abstract=2397399 (February 18, 2014)

This article highlights the influence of historical Anglo-American tax law developments on the formation of new political institutions and laws. In critical periods of English and U.S. history, individuals rebelled against arbitrary royal taxes. In turn, they demanded new tax laws that became embedded in documents from the Magna Carta to the English Bill of Rights to the Declaration of Independence that promoted democratic constraints on the use of state power to assess and collect taxes. Over time, the idea that individuals are entitled to equal treatment under the law, and possess inalienable human rights, emerged in part as a result of these tax law developments. The discussion in this article supports the view that pragmatic concerns over property and taxation drove important English and American political and legal reforms.
%SOURCENAMEESCAPED%, REVISION: Virotech Patents, Viropiracy, and Viral Sovereignty, http://www.ssrn.com/abstract=451640 (February 16, 2014)

Although there are many important intellectual property and public health developments in the United States, the domestic debate remains surprisingly disconnected from the international debate. To help bridge this disconnect, this Article discusses the interrelationship between intellectual property and public health in the context of communicable diseases. This type of disease is intentionally picked to highlight how developments abroad could easily affect what happens at home, and vice versa. The first half of this Article recounts three distinct stories about viruses responsible for AIDS, SARS, and the avian influenza (H5N1). The first story focuses on the ongoing developments within the WTO concerning efforts to address the access-to-medicines problems in relation to HIV/AIDS and other pandemics. The second story documents the unusual race among research and health institutions in Canada, Hong Kong, and the United States to patent technologies involving the isolated gene ...
%SOURCENAMEESCAPED%, New: Public Choice Theory and Legal Institutions, http://www.ssrn.com/abstract=2396056 (February 15, 2014)

This article asks what public choice can teach about legal institutions and their governing framework of public law. The chapter begins with an overview and assessment of two important components of public choice: social choice theory (stemming from Arrow’s Theorem) and interest group theory. It then considers the use of public choice models to explain the behavior of legislatures, agencies, and courts. The core public choice insight is that institutional structures are responses to fundamental problems relating to collective action. The chapter concludes, however, that normative use of specific public choice models should be undertaken with caution. The models are likely to be most useful when (1) they are informed by deep familiarity with specific institutional contexts; (2) reforms are context-specific; and (3) proposed changes are at the margin rather than involving major structural changes.
%SOURCENAMEESCAPED%, REVISION: Arbitration as an Article of Constitutional Faith, http://www.ssrn.com/abstract=2391075 (February 14, 2014)

Scarcely any legal question arises in the United States that is not resolved, sooner or later, through arbitration. If Alexis de Tocqueville could survey contemporary American legal culture, he would rub his eyes with amazement at the privatization of adjudication across a wide swath of issues previously committed to judicial resolution. From trade disputes posing serious questions of economic diplomacy to consumer contracts adhering to cell phones and credit cards, mandatory arbitration has displaced conventional adjudication. In the country that de Tocqueville characterized as driven by its dedication to constitutional lawmaking through litigation, arbitration has become a dominant form of dispute resolution with little if any direct doctrinal influence by federal constitutional law. This is the overriding theme of Peter B. Rutledge’s book, Arbitration and the Constitution (Cambridge, 2012).
%SOURCENAMEESCAPED%, REVISION: Coherence Versus Elicitability in Measures of Market Risk, http://www.ssrn.com/abstract=2385137 (February 14, 2014)

The Basel II and III accords prescribe distinct measures of market risk in the trading book of regulated financial institutions. Basel II has embraced value-at-risk (VaR) analysis, while Basel III has suggested that VaR be replaced by a different measure of risk, expected shortfall. These measures of risk suffer from mutually irreconcilable flaws. VaR fails to satisfy the conditions required of coherent measures of risk. Conversely, expected shortfall fails the mathematical requirements for elicitability. Mathematical limitations therefore force a choice between theoretically sound aggregation of risks and reliable backtesting of risk forecasts against historical observations. This research note is a condensed version of Measuring Market Risk Under Basel II, 2.5, and III: VaR, Stressed VaR, and Expected Shortfall, a full working paper posted at http://ssrn.com/abstract=2252463.
%SOURCENAMEESCAPED%, REVISION: Intellectual Property and Public Health – A White Paper, http://www.ssrn.com/abstract=2259089 (February 14, 2014)

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad questions. First, are there alternatives to either the patent system or specific patent doctrines that can provide or help provide sufficient incentives for health-related innovation? Second, is health information being used proprietarily and if so, is this type of protection appropriate? Third, does IP conflict with other ...
%SOURCENAMEESCAPED%, New: The Lost World of Administrative Law, http://www.ssrn.com/abstract=2395276 (February 14, 2014)

The APA and leading judicial decisions embody a vision of the administrative process that is increasingly out of touch with reality. They envision a process of policymaking initiated by Congress and then delegated to discrete agencies, which are directed by Senate-confirmed appointees. Courts then have the role of ensuring the rationality and statutory fidelity of the decision. This is the lost world of administrative law. Today, however, policy mandates come from both Congress and the White House; decisions may involve multiple agencies and White House officials; and formal APA procedures may be less significant than the independent process established within the executive branch. Most of this takes place outside of judicial purview or public oversight. We propose reforms to improve the match between current realities and administrative law, so as to further administrative law’s objectives of transparency, rule of law, and reasoned implementation of statutory mandates.
%SOURCENAMEESCAPED%, New: Autonomy, Welfare, and the Pareto Principle, http://www.ssrn.com/abstract=2392859 (February 8, 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%, New: Pinwheel of Fortune, http://www.ssrn.com/abstract=2389555 (February 3, 2014)

In principle, neither the global environment nor personal health should come down to gambling. In practice, however, both the law of global biodiversity protection and the constitutional debate on the Patient Protection and Affordable Care Act (PPACA) rest on astoundingly risk-seeking assumptions. Charged with conserving the global biospheric commons, the international community seems eager to place deep, out-of-the-money bets on bioprospecting of rare and endangered species for pharmaceutical gain. The truly desperate state of biodiversity and climate change law has apparently prompted some very rich countries (especially the United States) to behave as if these sources of truly irreparable environmental harm defy meaningful precautions. Within America’s own borders, the constitutional law of public health strikes a comparably risk-seeking pose. Although National Federation of Independent Business v. Sebelius upheld the PPACA as an exercise of the federal government's taxing ...
%SOURCENAMEESCAPED%, REVISION: Portfolio Theory as a Pattern of Timeless Moments, http://www.ssrn.com/abstract=2254244 (January 29, 2014)

Quantitative finance traces its roots to modern portfolio theory. Despite the deficiencies of modern portfolio theory, mean-variance optimization nevertheless continues to form the basis for contemporary finance. The term "postmodern portfolio theory" expresses many of the theoretical advances in financial learning since the original articulation of modern portfolio theory. Any complete overview of financial risk management must address all aspects of portfolio theory, from the beautiful symmetries of modern portfolio theory to the disturbing behavioral insights and the vastly expanded mathematical arsenal of the postmodern critique. This article surveys portfolio theory, from its modern origins through more sophisticated, "postmodern" incarnations, according to the first four moments of any statistical distribution: mean, variance, skewness, and excess kurtosis. Mastery of these quantitative tools and associated behavioral insights holds the key to the efficient frontier of risk ...
%SOURCENAMEESCAPED%, REVISION: Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, http://www.ssrn.com/abstract=307820 (January 27, 2014)

Copyright law, originally excused as a necessary evil, threatens now to become an inescapable burden. Because state and common law rights seemed inadequate to protect expressive works from unrestricted copying, the Founders expressly authorized federal copyright legislation. Lawmakers have read that constitutional mandate liberally. Each new version of the Copyright Act has embodied longer, broader, and more powerful legal protections. Meanwhile, private initiatives have developed increasingly effective means of safeguarding copyrighted works. Alarmed that these dual trends benefit copyright owners at too great an expense to the public interest, many commentators argue that the Copyright Act should limit and preempt non-statutory alternatives. But that puts matters exactly backwards. Besieged by lobbyists and bloated by public choice pressures, the Copyright Act has fallen into statutory failure. Insofar as common law and self-help technologies unite to secure exclusive rights in ...
%SOURCENAMEESCAPED%, REVISION: Designing Administrative Law for Adaptive Management, http://www.ssrn.com/abstract=2222009 (January 23, 2014)

Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure Act or the states’ parallel statutes. Adaptive management theorists have identified several features of such administrative law requirements — especially public participation, judicial review, and finality — as posing barriers to true adaptive management, but they have put forward no ...
%SOURCENAMEESCAPED%, REVISION: 'These Great and Beautiful Republics of the Dead': Public Constitutionalism and the Antebellum Cemetery, http://www.ssrn.com/abstract=2304305 (January 22, 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: Postmodern Disaster Theory, http://www.ssrn.com/abstract=2141591 (January 21, 2014)

Legal preparedness for disaster consists of implementing the optimal portfolio of rules for managing catastrophic risks. This article extends the simpler model of modern disaster theory, http://ssrn.com/abstract=1910669, into a more ambitious model of postmodern disaster theory. A complete account of disaster law and policy based on an extended analogy to quantitative finance must address all aspects of that discipline, from the beautiful symmetries of modern portfolio theory to the disturbing behavioral insights and the vastly expanded mathematical arsenal of the postmodern critique. Postmodern disaster theory represents a comprehensive account of catastrophic risk management. It organizes its postmodern agenda for legal management of risk and uncertainty according to higher statistical moments. Skewness has inspired alternative ways to measure risk-adjusted performance. To illustrate how the problem of fat tails and excess ...
%SOURCENAMEESCAPED%, REVISION: The Scored Society: Due Process for Automated Predictions, http://www.ssrn.com/abstract=2376209 (January 8, 2014)

Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers — or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail — credit — the law focuses on credit history, not the derivation of scores from data. Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform basic safeguards. Regulators should be able to test scoring systems to ensure their fairness and accuracy. Individuals should be granted meaningful opportunities to challenge adverse decisions based on scores miscategorizing them. Without such protections in place, ...
%SOURCENAMEESCAPED%, REVISION: The Thirty Years War Over Federal Regulation, http://www.ssrn.com/abstract=2310392 (December 18, 2013)

Using the evidence Tom McGarity assembles in his recent book 'Freedom to Harm', this paper examines regulatory history during the thirty-plus years since Reagan became president. Although the available evidence presented is necessarily incomplete, it suggests strongly that the opponents of regulation have had only mixed success. Legislative efforts to roll back the regulatory state have given rise to pitched political battles, but in the end have not infrequently ended in modest expansions of agency authority. Opponents of regulation have had more luck in the rule-making process, where they have succeeded in delaying or killing regulatory efforts or in weakening the final regulations. They have successfully joined advocates of “smarter regulation” in some of these efforts. Yet, in the end, the body of federal regulation has continued to grow almost unabated. The biggest success of the opponents of regulation has come through budget cuts and policy changes that have weakened ...
%SOURCENAMEESCAPED%, REVISION: Reading Professor Obama: Race and the American Constitutional Tradition, http://www.ssrn.com/abstract=2131395 (December 9, 2013)

“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: Digital Copyright Enforcement Measures and Their Human Rights Threats, http://www.ssrn.com/abstract=2363945 (December 9, 2013)

Commissioned for a handbook on human rights and intellectual property, 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 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 the European Union and 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 ...
%SOURCENAMEESCAPED%, REVISION: The International Enclosure of China's Innovation Space, http://www.ssrn.com/abstract=2337307 (December 8, 2013)

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, just as developed countries used non-multilateral ...
%SOURCENAMEESCAPED%, REVISION: Building the Ladder: Three Decades of Development of the Chinese Patent System, http://www.ssrn.com/abstract=2159011 (December 3, 2013)

In the past three decades, China has been very successful in developing its patent system. In 2012, the country is among the top five countries filing patent applications through the Patent Cooperation Treaty, behind only the United States, Japan and Germany. Among all the applicants, ZTE Corp. and Huawei Technologies had the largest and fourth largest number of PCT applications, respectively. With significant backing from the Chinese government and the anticipated involvement of the world's largest public sector, China will likely catch up with the existing intellectual property powers more quickly than many have anticipated. Written for a special issue on intellectual property history, this article traces the development of the modern Chinese patent system. It begins with a historical overview of the protection China offered to inventions during the dynastic and Republican eras. The article then identifies five different stages of development of the modern Chinese patent system. ...
%SOURCENAMEESCAPED%, New: The Limits of the International Tax Regime as a Commitment Projector, http://www.ssrn.com/abstract=2357961 (November 22, 2013)

As explained by Ronald Coase, transaction costs are the costs associated with discerning a price on a given exchange. This article conceptualizes the international tax regime as a political and legal system striving to address transaction cost challenges, and claims it has an uneven record. On the one hand, the international tax regime lowers transaction costs and hence promotes global economic growth. It does this by facilitating credible government commitments to ensure that the same cross-border profits are not taxed twice by two countries. Multinational firms are thus protected against the risk that their cross-border activities will be unduly deterred by taxation, which encourages more global economic activities.On the other hand, governments are unable to offer credible commitments that they can effectively address other important international tax policy concerns. First, despite ongoing reform efforts governments are not able to offer reasonably reliable promises that they ...
%SOURCENAMEESCAPED%, REVISION: The Global Governance of HIV/AIDS and the Rugged Road Ahead: An Epilogue, http://www.ssrn.com/abstract=1938850 (November 21, 2013)

This short essay explores the 'rugged road ahead' for HIV/AIDS governance, with a focus on the intersection between intellectual property and access to essential medicines. It identifies promising changes that have taken place since the launch of the Doha Development Round of Trade Negotiations. It further highlights challenges that continue to haunt the HIV/AIDS governance regime while reducing access to essential medicines in developing countries.
%SOURCENAMEESCAPED%, REVISION: Intellectual Property Training and Education for Development, http://www.ssrn.com/abstract=2151285 (November 21, 2013)

Written for a symposium addressing the need to construct a positive policy and research agenda for international intellectual property law, this article explores ways to improve the design and delivery of intellectual property training and educational programs. The article draws on the author's experience as the rapporteur for the International Roundtable on WIPO Development Agenda for Academics. The article begins by reflecting on WIPO’s changing orientation, outlining the principles and goals recognized in its Development Agenda. It emphasizes the need for an expansion of coverage in intellectual property training and educational programs. It also offers guidelines on ways to redesign these programs. The article then highlights the need for introducing a more diverse set of skills and perspectives through training and educational programs. It concludes by suggesting some innovative methods to enhance delivery of these programs.
%SOURCENAMEESCAPED%, REVISION: Digital Copyright and the Parody Exception in Hong Kong: Accommodating the Needs and Interests of Internet Users, http://www.ssrn.com/abstract=2349007 (November 15, 2013)

On 11 July 2013, the Hong Kong government released a consultation document on the treatment of parody under the copyright regime. Building on two earlier consultations on digital copyright reform launched in December 2006 and April 2008, this latest consultation identified three legislative options: (1) clarifying the existing general provisions for criminal sanctions; (2) introducing a specific criminal exemption for parody; and (3) introducing a fair dealing exception for parody. In addition to parodies, these options may cover satires, caricatures, pastiches and other forms of imitations. Commissioned by the Journalism Media Studies Centre of the University of Hong Kong and submitted to the Hong Kong government as part of its consultation exercise, this position paper asserts that none of the three identified options alone can adequately address the needs, interests and concerns of internet users. Each option has its strengths and weaknesses, and each serves its own purpose. ...
%SOURCENAMEESCAPED%, New: Rectification of Tax Mistakes Versus Retroactive Tax Laws: Reconciling Competing Visions of the Rule of Law, http://www.ssrn.com/abstract=2340532 (November 4, 2013)

This article examines the potential conflict between the right of the provinces to determine property rights, including the equitable right of rectification, and the federal government’s right to enact retroactive tax legislation. It poses a hypothetical question: Does rectification provide the appropriate remedy for the "unfairness" of retroactive legislation to taxpayers who intend and plan their transactions to minimize or avoid tax? The article reviews the trend toward the judicial broadening of rectification remedies in tax cases, as well as perspectives on reliance on the rule of law and transaction costs to determine if and when rectification would be appropriate. The authors conclude that, in certain circumstances, a provincial court could and should rectify a tax plan to counter the effects of a retroactive tax that does not target abusive tax planning, such as Quebec’s proposed (and subsequently withdrawn) tax increase aimed at high income earners. Cet article examine le ...
%SOURCENAMEESCAPED%, New: Titanic Telecommunications, http://www.ssrn.com/abstract=2347349 (October 30, 2013)

Telecommunications law as we know it was born on January 1, 1984. On that day, the Modified Final Judgment (MFJ) in United States v. AT&T Co. simultaneously killed the largest corporation in the world and created a new telecommunications industry. As the Bell divestiture decree fades into history, the MFJ itself has collapsed. The Telecommunications Act of 1996 heralds a new, mercurial sort of competition. In this altered landscape, the battle will go to the swift and the strong, to the blessed and the enlightened, and most of all to the relentlessly resourceful. In this age of imperfect competition, place your bet with Hermes: speedster nonpareil, messenger of the gods, deity of science and commerce — and patron of travelers, rogues, vagabonds, and thieves.
%SOURCENAMEESCAPED%, New: The Last Picture Show (On the Twilight of Federal Mass Communications Regulation), http://www.ssrn.com/abstract=2344467 (October 25, 2013)

Federal communications law has collapsed like the walls of Jericho. The Telecommunications Act of 1996 heralds the fateful day on which structural regulation of mass media markets must stand or fold. After defining the economic phenomenon of mass communications, this article surveys the history of structural regulation of mass communications in the United States. It traces two distinct and contradictory philosophies expressed in mass communications law. One one hand, federal regulators have equated broadcast content with broadcaster identity. In accord with that belief, mass communications law has striven to protect the public interest in broadcasting through the regulation of market structure and industrial organization. Another jurisprudential tradition encourages mass communications law to rely presumptively on competition to achieve the same regulatory objectives. Regulators ignore the economics of a technologically driven industry at their peril. This article outlines ...
%SOURCENAMEESCAPED%, REVISION: The Strategic and Discursive Contributions of the Principles for Intellectual Property Provisions in Bilateral and Regional Agreements, http://www.ssrn.com/abstract=2342677 (October 25, 2013)

In June 2013, the Max Planck Institute for Intellectual Property and Competition Law released its Principles for Intellectual Property Provisions in Bilateral and Regional Agreements. Drafted by the Institute’s directors and research fellows in collaboration with a team of outside experts, this document seeks to facilitate the development of "international rules and procedures that can achieve a better, mutually advantageous and balanced regulation of international [intellectual property]." This essay discusses the important contributions the Principles have made at both the strategic and discursive levels. It situates these two sets of contributions in the context of the ongoing challenges confronting the development of the international trading and intellectual property systems. The essay concludes by briefly highlighting two important areas of interfaces that the Principles, by design, are unable to address.
%SOURCENAMEESCAPED%, REVISION: Imbalances of Power in ADR: The Impact of Representation and Dispute Resolution Method on Case Outcomes, http://www.ssrn.com/abstract=2343083 (October 24, 2013)

In recent decades, Alternative Dispute Resolution processes have gained worldwide recognition, a growing role in legal practice, and academic attention. Despite their professed advantages they have also faced fierce opposition. In a seminal article, Owen Fiss argued that ADR exacerbates imbalances of power between the parties. But while the theoretical argument has been widely discussed and developed in academic literature, empirical evidence has remained scant. This Article purports to bridge the gap. It empirically examines the impact of two seemingly relevant factors in inherently imbalanced legal disputes: representation and dispute resolution method. Arguably, professional representation of weaker parties may reduce the effects of inequality, whereas less formal, transparent and adjudicatory processes may exacerbate them. The Article focuses on small claims settlement conferences, using the Israeli labor courts system as a test case. It examines the impact of representation on ...
%SOURCENAMEESCAPED%, REVISION: Reading Professor Obama: The Syllabus on 'Current Issues in Racism and the Law', http://www.ssrn.com/abstract=2131395 (October 22, 2013)

“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 readings dealt in particular with the moral dilemma of the Fugitive Slave Act of 1850 and the obligations -- or not -- of slaves to obey the law. The second day’s readings shifted to the Reconstruction era and changes in the Constitution and ...
%SOURCENAMEESCAPED%, REVISION: Taxing Global Digital Commerce, http://www.ssrn.com/abstract=2337595 (October 19, 2013)

E-commerce — the use of computer networks to facilitate transactions involving the production, distribution, sale, and delivery of goods and services in the marketplace — has grown from merely streamlining relations between consumer and business to a much more robust phenomenon embracing efficient business processes within a firm and between firms. Inevitably, the related taxation issues have grown as well, particularly in the cross-border context. This latest edition of the preeminent text on the taxation of cross-border e-commerce transactions — formerly titled Electronic Commerce and International Taxation (1999) and Electronic Commerce and Multijurisdictional Taxation (2001) — revises, updates, and significantly expands the book’s coverage, reorganizing its presentation and adding several new chapters. It includes a detailed and up-to-date analysis of VAT developments regarding e-commerce, and explores the implications of e-commerce for the US state and local sales and use tax ...
%SOURCENAMEESCAPED%, New: The Comparative Economics of International Intellectual Property Agreements, http://www.ssrn.com/abstract=2334107 (October 2, 2013)

Using the TRIPS Agreement as a case study, this book chapter provides a comparative economic analysis of international intellectual property agreements as they relate to both developed and developing countries. Specifically, this chapter discusses three different aspects of the TRIPS Agreement: (1) protection standards; (2) enforcement standards; and (3) the dispute settlement procedure. As this chapter will show, the economic picture concerning the implementation and operation of the TRIPS Agreement in developed countries is drastically different from the picture of developing countries. As a result, countries need to think more deeply about the Agreement's drastically different economic impacts.
%SOURCENAMEESCAPED%, REVISION: Trade Agreement Cats and the Digital Technology Mouse, http://www.ssrn.com/abstract=2220278 (October 1, 2013)

In the past three decades, the copyright industries and their supportive governments have aggressively pushed for introducing high intellectual property standards into trade agreements. This book chapter examines the uneasy case of using these agreements to provide copyright protection in the digital environment. It begins by discussing two widely discussed multilateral solutions: the TRIPS Agreement and the 1996 WIPO Internet Treaties. The chapter then explores the industries' increasing push for solutions outside multilateral fora. Non-multilateral solutions that have been advanced thus far range from the establishment of bilateral or regional trade agreements to the recent negotiation of plurilateral 'country club' agreements, including the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership Agreement (TPP). This chapter concludes by identifying eight issues that domestic policymakers and international negotiators should seriously consider.
%SOURCENAMEESCAPED%, REVISION: The First Decade of TRIPS in China, http://www.ssrn.com/abstract=2175385 (October 1, 2013)

This chapter reviews intellectual property developments in China in its first decade of WTO membership, focusing primarily on developments within the organization. It shows how China has transformed from a passive taker of international intellectual property norms to one that has slowly assumed the additional roles of both a norm shaker and a norm maker. The chapter begins by providing an overview of reforms China undertook in the run-up to the accession. It examines the low profile China maintained in the WTO in the first few post-accession years. It also acknowledges China’s limited interest in international intellectual property norm-setting, including its rare submission to the Committee on Technical Barriers to Trade. The chapter then examines the recent U.S.-China WTO dispute over the protection and enforcement of intellectual property rights and its high-profile intervention in the June 2010 meeting of the TRIPS Council. It concludes with a discussion of China’s ...
%SOURCENAMEESCAPED%, REVISION: Climate Policy and the United States System of Divided Powers: Dealing with Carbon Leakage and Regulatory Linkage, http://www.ssrn.com/abstract=2174024 (September 29, 2013)

In the absence of comprehensive federal climate legislation, state governments and the executive branch have moved forward with efforts to reduce greenhouse gases. Two important components of effective policies are (1) tools to limit the potential for carbon emissions to shift outside a jurisdiction (carbon leakage), and (2) cross-boundary linkages to improve effectiveness and reduce costs. For instance, states may adopt life cycle analysis as part of regulations or carbon taxes, and they may link carbon trading schemes with other states or with foreign jurisdictions. The executive branch may address carbon leakage by tailoring regulations to the potential for emissions to shift abroad and may also enter into cooperative agreements with other nations through executive agreements. These important components of climate policy could easily be supplied by Congress, but efforts to supply them by states or executive branch encounter constitutional challenges. This article argues in favor ...
%SOURCENAMEESCAPED%, REVISION: Harmonizing Distributed Energy and the Endangered Species Act, http://www.ssrn.com/abstract=2181024 (September 26, 2013)

At the risk of making a mountain out of a molehill, this Article suggests that the Endangered Species Act could present complications for the rapid and widespread deployment of distributed energy generation. But with some proactive effort on the part of the federal and interested state and local governments, such complications are unnecessary and could amount to no more than a molehill after all. Part I opens by framing the distributed energy problem for the ESA, showing how the proliferation of distributed energy facilities can present ESA compliance issues and how traditional ESA compliance solutions do not work well in that context. Part II of the Article explores compliance solutions the FWS could implement for distributed energy administratively, without need of legislative reform of the ESA. By providing low cost, expeditious compliance security and stability for distributed energy, the FWS can proactively fulfill the ESA’s goals and promote a better energy future for all ...
%SOURCENAMEESCAPED%, REVISION: The Middle Intellectual Property Powers, http://www.ssrn.com/abstract=2144505 (September 25, 2013)

Commissioned by a project funded by the Hague Institute for the Internationalisation of Law, this chapter examines a group of middle-income countries that have played or will play important roles in the international intellectual property regime. It begins by noting the challenges in identifying intellectual property developments in middle-income countries, due in large part to their divergent needs, interests, conditions and priorities. The chapter then contends that a smaller subset of this group will play important roles in the international intellectual property regime. Termed the "middle intellectual property powers," this subset includes Brazil, China, India, the uncontested leaders of the developing world. It could also cover other countries such as Argentina, Indonesia, Malaysia, the Philippines, Russia, South Africa and Thailand. Focusing on these emerging powers and drawing on statistics provided by the World Bank, the World Intellectual Property Organization and ...
%SOURCENAMEESCAPED%, New: Tales of the Unintended in Copyright Law, http://www.ssrn.com/abstract=2328648 (September 21, 2013)

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 analyses 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 existing ...
%SOURCENAMEESCAPED%, REVISION: The Public Psychology of Intellectual Property, http://www.ssrn.com/abstract=2240335 (September 21, 2013)

Though the success of intellectual property law depends upon its ability to affect human perception and behavior, the public psychology of intellectual property has barely been explored. Over 1700 U.S. adults took part in an experimental study designed to investigate popular conceptions of intellectual property rights. Respondents’ views of what intellectual property rights should be differed substantially from actual law, and popular conceptions of the basis for intellectual property rights are contrary to commonly accepted bases relied on in legal and policy decision-making. Linear regression analysis reveals previously unrecognized cultural divides concerning intellectual property based on people’s income, age, education, political ideology, and gender.
%SOURCENAMEESCAPED%, REVISION: The Non-Multilateral Approach to International Intellectual Property Norm-Setting, http://www.ssrn.com/abstract=2325766 (September 15, 2013)

Since the early 2000s, the European Union and the United States have pushed aggressively for the development of bilateral and regional trade agreements. In recent years, developed countries have gone even further to establish plurilateral trade, investment and intellectual property agreements that brought together developed and like-minded countries. Using an ill-advised ‘country club’ approach to international intellectual property norm-setting, these countries have negotiated agreements ranging from the Anti-Counterfeiting Trade Agreement (ACTA) to the Trans-Pacific Partnership Agreement (TPP) to the Transatlantic Trade and Investment Agreement (TTIP). While ACTA focuses primarily on intellectual property issues, TPP and TTIP dwell with trade and trade-related issues, including both the trade- and investment-related aspects of intellectual property rights. To help us take stock of the many recent developments concerning bilateral, plurilateral and regional trade, investment and ...
%SOURCENAMEESCAPED%, REVISION: Taking ATRIP Down Memory Lane, http://www.ssrn.com/abstract=2263572 (September 15, 2013)

The International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) was founded in Geneva in July 1981, with the support and assistance of the World Intellectual Property Organization. This professional academic association now includes hundreds of intellectual property professors and researchers from around the world. As the final contribution to the "ATRIP Passes 30" Symposium, which collects the reminiscences of the past and current ATRIP presidents, this short essay provides, in chronological order, some key information about all the pre-ATRIP Round Tables and ATRIP Congresses. This short history not only documents the historical origins, rapid growth and past accomplishments of an important transnational professional association, but also reflects the rapid development of the intellectual property field in the past three decades.
%SOURCENAMEESCAPED%, REVISION: Creamskimming and Competition, http://www.ssrn.com/abstract=1395554 (September 10, 2013)

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 competit
%SOURCENAMEESCAPED%, REVISION: The Parable of the Seeds: Interpreting the Plant Variety Protection Act in Furtherance of Innovation, http://www.ssrn.com/abstract=784189 (September 10, 2013)

Among drivers of evolution, two forces tower above all others. One of them is food. The other is sex. The seed is both. Information embedded in seed is amenable to various forms of proprietary protection. In the abstract, the Plant Variety Protection Act (PVPA) provides an attractive alternative to utility patents on plants and to the protection of hybrid crops as trade secrets. In practice, the PVPA has failed to become the preeminent form of intellectual property in plants. This article explor
%SOURCENAMEESCAPED%, New: Gambling Over Growth: Economic Uncertainty, Discounting, and Regulatory Policy, http://www.ssrn.com/abstract=2321879 (September 8, 2013)

Uncertainty about a possible harm is obviously relevant in deciding how much to regulate. More surprisingly, however, risks that are completely unrelated to the subject of the regulation can also be important. In particular, uncertainties about the future trajectory and distribution of economic growth have a substantial impact on the discount rate, which in turn favors additional investment in preventing long-term harms. Although issues relating to discounting are notoriously difficult and contr
%SOURCENAMEESCAPED%, REVISION: Incentivizing the Ordinary User, http://www.ssrn.com/abstract=2163142 (September 5, 2013)

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 o
%SOURCENAMEESCAPED%, REVISION: The Nat Turner Trials, http://www.ssrn.com/abstract=2281519 (September 2, 2013)

“The Nat Turner Trials” locates the trials of slaves in the wake of the Nat Turner rebellion in the context of common, and statutory, law and extra-legal responses to slavery in Virginia and North Carolina during the early 1830s. The Article shows how trials were part of the whole system of slavery, held together by norms of white supremacy promulgated in the press, the pulpit, and on plantations. Decisions from local courts to appellate courts gave broad power to slave owners to control ens
%SOURCENAMEESCAPED%, Update: Rethinking U.S. Legal Education: No More 'Same Old, Same Old', http://www.ssrn.com/abstract=2275315 (August 29, 2013)

In this Essay, I suggest that we should think about how to create a curriculum that encourages students to develop a variety of skill sets. Law students simply don’t need three years of Socratic questioning regarding the fine details of court opinions. They need a wide range of experiences, preferably building on skill sets (like the twenty-six Berkeley factors) that effective lawyers have developed. A law school’s curriculum should have courses that focus on different factors in each year o
New PDF Uploaded
%SOURCENAMEESCAPED%, New: Diagnosing Finance's Failures: From Economic Idealism to Legal Realism, http://www.ssrn.com/abstract=2314354 (August 23, 2013)

This book review critically examines a recent work by Robert Shiller, one of the world's leading economists. Shiller’s Finance and the Good Society reflects on contemporary financial institutions and offers principles for incrementally improving them. It fails to recognize the possibility that finance needs more than cosmetic reform. The field of law and economics often brings the insights of behavioral economists like Shiller to current regulatory debates. This review takes the reverse app
%SOURCENAMEESCAPED%, New: The Credit Scoring Conundrum, http://www.ssrn.com/abstract=2314370 (August 23, 2013)

A bad credit score may cost a borrower tens of thousands of dollars, but it is not clear how it is calculated. The formula is a trade secret, immune from scrutiny. Lenders are moving beyond scoring to “credit analytics,” which tracks a consumer’s every transaction. Buy generic products instead of branded ones, and you may find your credit card’s interest rate rising and its limit falling. This essay critiques automation in the consumer-facing side of the finance industry. Reputation s
%SOURCENAMEESCAPED%, New: Privacy, Antitrust, and Power, http://www.ssrn.com/abstract=2309965 (August 22, 2013)

When a dominant Internet service collects information about its users, the situation is so far from the usual arm’s-length market transaction that neoclassical economic analysis is misleading. “Lack of surveillance” is not a product that individuals have varying preferences for and purchase accordingly. Rather, surveillance is an inevitable concomitant of life online. We need to tame the power that surveillance entails, rather than continuing to pursue illusory, surveillance-free alternat
%SOURCENAMEESCAPED%, REVISION: 'These Great and Beautiful Republics of the Dead': Public Constitutionalism and the Antebellum Cemet, http://www.ssrn.com/abstract=2304305 (August 18, 2013)

“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 diver
%SOURCENAMEESCAPED%, REVISION: There's No Such Thing as Biopiracy...And it's a Good Thing Too, http://www.ssrn.com/abstract=781824 (July 29, 2013)

Tales of northern exploitation of biological wealth and ethnobiological knowledge from the global south have become so frequent, so familiar, and so uniform that allegations of biopiracy now follow a predictable script. I come not to praise the biopiracy narrative, but to bury it. Most allegations of biopiracy are so thoroughly riddled with inconsistencies and outright lies that the entire genre, pending further clarification, must be consigned to the realm of rural legend. Despite its implausi
%SOURCENAMEESCAPED%, New: The Future of HIPAA in the Cloud, http://www.ssrn.com/abstract=2298158 (July 25, 2013)

This white paper examines how cloud computing generates new privacy challenges for both healthcare providers and patients, and how American health privacy laws may be interpreted or amended to address these challenges. Given the current implementation of Meaningful Use rules for health information technology and the Omnibus HIPAA Rule in health care generally, the stage is now set for a distinctive law of “health information” to emerge. HIPAA has come of age of late, with more aggressive enf
%SOURCENAMEESCAPED%, New: 'Beyond Imagination': Government Blind Spots Regarding Catastrophic Risks, http://www.ssrn.com/abstract=2295767 (July 19, 2013)

In the wake of the Fukushima nuclear disaster, decision makers described the reactor failures and the tsunami that triggered them as beyond imagination. Yet, the possibility of such a tsunami was understood by experts and the implications for reactor safety were clear. This was not an isolated phenomenon in natural or human catastrophes. This paper considers why the possibility of catastrophic event is often excluded from consideration and methods for incorporating low-probability catastrophes
%SOURCENAMEESCAPED%, REVISION: No Sisyphean Task: How the FDA Can Regulate Electronic Cigarettes, http://www.ssrn.com/abstract=2118802 (July 17, 2013)

The adverse effects of smoking have fostered a natural market for smoking cessation and smoking reduction products. Smokers have tried everything from “low” or “light” cigarettes; nicotine-infused chewing gum, lozenges and lollipops; dermal patches; and even hypnosis. The latest craze in the quest to find a safer source of nicotine is the electronic cigarette. Electronic cigarettes (e-cigarettes) have swept the internet, reaching a rapidly expanding international market. Boasting nicotin
%SOURCENAMEESCAPED%, New: Misunderestimating Dastar: How the Supreme Court Unwittingly Revolutionized Copyright Preemption, http://www.ssrn.com/abstract=2292659 (July 12, 2013)

Courts and commentators have misunderstood, and consequently underestimated, the recent Supreme Court case of Dastar Corp. v. Twentieth Century Fox Film Corp. Voicing concern that once a copyrighted work has fallen into the public domain it should stay there, the Dastar Court held that authors of such works cannot use federal unfair competition law to force copiers to give them credit. The Court guaranteed that result by stipulating that "origin" in § 43(a)(1)(A) of the Lanham Act does not re
%SOURCENAMEESCAPED%, New: Rethinking U.S. Legal Education: No More 'Same Old, Same Old', http://www.ssrn.com/abstract=2275315 (July 2, 2013)

In this Essay, I suggest that we should think about how to create a curriculum that encourages students to develop a variety of skill sets. Law students simply don’t need three years of Socratic questioning regarding the fine details of court opinions. They need a wide range of experiences, preferably building on skill sets (like the twenty-six Berkeley factors) that effective lawyers have developed. A law school’s curriculum should have courses that focus on different factors in each year o
%SOURCENAMEESCAPED%, Update: Managing U.S. News & World Report - The Enron Way, http://www.ssrn.com/abstract=2255194 (June 19, 2013)

This essay suggests that lying about the numbers that schools report to US News is no better than the lying that Enron did about its various methods of "earnings management." It also suggests that administrators - being humans - can talk themselves into lying about the numbers for all sorts of (very bad) reasons.
New PDF Uploaded
%SOURCENAMEESCAPED%, REVISION: Patents on Human Genes: An Analysis of Scope and Claims, http://www.ssrn.com/abstract=897510 (June 18, 2013)

There is significant domestic and international opposition to gene patents based on the fact that gene patents deter medical research and health care, as well as the policy position that genes are an inherent product of nature. Yet, equally troubling is the fact that gene patents have been issued by the U.S. Patent & Trademark Office that are problematic with respect to existing federal patent law. The authors of this Policy Forum describe their study, which examined issued gene patents covering
%SOURCENAMEESCAPED%, REVISION: Best Practices for Working with Fee Examiners, http://www.ssrn.com/abstract=2279642 (June 17, 2013)

This essay, which stems from our work as Co-Reporters for the ABI's National Ethics Task Force Report, discusses how bankruptcy lawyers might want to adjust their fee applications in Chapter 11 cases in which a fee examiner has been appointed.
%SOURCENAMEESCAPED%, New: A Group's a Group, No Matter How Small: An Economic Analysis of Defamation, http://www.ssrn.com/abstract=2277697 (June 15, 2013)

Consider the following case (Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1101 (Fla. 2008)): A Jews-for-Jesus bulletin publishes a report, falsely implying that a Jewish woman became "a believer in the tenets, the actions, and the philosophy of Jews for Jesus." Does this publication constitute defamation? What makes a statement defamatory? Should defamatoriness be determined in accordance with the views of the general non-Jewish community, with those of the Jewish minority, or with a normative
%SOURCENAMEESCAPED%, New: Introduction to Legal Ethics, http://www.ssrn.com/abstract=2278556 (June 14, 2013)

This book is designed to help to prepare law students and lawyers for ethical and professional issues that arise in the practice of law and to understand and apply rules of professional conduct. The book can be used, alone or as a supplement to other texts, to generate discussions among students or within a classroom environment about legal ethics. Undergraduate students, legal clients and other members of the public who are interested in the rules that govern lawyers’ professional lives may
%SOURCENAMEESCAPED%, New: Transnational Environmental Law, Editorial, http://www.ssrn.com/abstract=2277621 (June 13, 2013)

We are delighted to launch the second volume of Transnational Environmental Law (TEL) with a rich collection of pieces embodying a wide range of topics and methodological approaches. While the contributions focus upon specific topics, they also speak more broadly to issues that are pervasive in transnational environmental law: mutual influence between legal systems, multi-level integration, regime fragmentation and overlap, and the breaking down of traditional hierarchies as governance framework
%SOURCENAMEESCAPED%, New: Transnational Dimensions of Climate Governance, http://www.ssrn.com/abstract=2277617 (June 13, 2013)

Climate Change as an Arena of Transnational Environmental Law it is fitting that the second issue of Transnational Environmental Law (TEL) focuses on governance and climate change. Transnational environmental law views governance as an outgrowth of local, regional and transboundary communications and pressures. The challenges of transnational governance – and its necessity – are especially clear in the context of climate change. On the one hand, climate change is a global phenomenon with glo
%SOURCENAMEESCAPED%, Update: Update to Food, Farming, and Sustainability, http://www.ssrn.com/abstract=2167913 (June 10, 2013)

This article provides updated information, links to new resources, and suggestions for teaching an agricultural law survey class using the book, Food, Farming and Sustainability: Readings in Agricultural Law.
New PDF Uploaded
%SOURCENAMEESCAPED%, REVISION: The ACTA Committee, http://www.ssrn.com/abstract=2154500 (June 9, 2013)

In discussing the Anti-Counterfeiting Trade Agreement (ACTA), most policymakers and commentators have focused on either the lack of transparency and accountability in the negotiation process or the problems raised by the TRIPS-plus standards included in the Agreement. While these issues deserve our urgent attention, it is important not to ignore the institutional arrangements laid out in Chapter V of the Agreement. In the long run, this chapter is likely to become the most far-reaching and dange
%SOURCENAMEESCAPED%, REVISION: The Curious Case of Fake Beijing Olympics Merchandise, http://www.ssrn.com/abstract=2244196 (May 28, 2013)

This chapter closely scrutinizes the intellectual property developments during and in the run-up to the Beijing Olympics to determine whether this important world event has provided the much-needed example to show that China could effectively address the counterfeiting problem when national interests are at stake. As the chapter will show, the case of fake Beijing Olympics merchandise is rather curious. Even though the sale of this merchandise was significantly reduced in Beijing and other ma
%SOURCENAMEESCAPED%, New: Principles of Contracts for Governing Services, http://www.ssrn.com/abstract=2268050 (May 22, 2013)

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
%SOURCENAMEESCAPED%, REVISION: Queues in Law, http://www.ssrn.com/abstract=2147333 (April 30, 2013)

"First in, first out" (FIFO) is an allocation principle, whereby resources are allocated to interested parties in their order of entry. FIFO and its close relatives, "first come, first served" and "first-in-time, first-in-right," have numerous legal applications. These range from traditional private law disputes concerning ownership, secured transactions, and nuisances, through more extensive allocations, as in the cases of employees’ seniority benefits, mass torts, and military discharge, all
%SOURCENAMEESCAPED%, REVISION: Five Oft-repeated Questions About China's Recent Rise as a Patent Power, http://www.ssrn.com/abstract=2215008 (April 29, 2013)

Policymakers, industries, commentators and the media have widely criticized China for its failure to adequately protect intellectual property rights. In recent years, however, the discourse on intellectual property developments in China has slowly begun to change. Such a change is the most notable in the patent area. Today, China is already among the top five countries filing patent applications through the Patent Cooperation Treaty (PCT). In 2011, the number of PCT applications increased by 33.
%SOURCENAMEESCAPED%, New: Managing U.S. News & World Report - The Enron Way, http://www.ssrn.com/abstract=2255194 (April 26, 2013)

This essay suggests that lying about the numbers that schools report to US News is no better than the lying that Enron did about its various methods of "earnings management." It also suggests that administrators - being humans - can talk themselves into lying about the numbers for all sorts of (very bad) reasons.
%SOURCENAMEESCAPED%, New: Twitter (R)evolution: Privacy, Free Speech and Disclosure, http://www.ssrn.com/abstract=2256129 (April 25, 2013)

Using Twitter as a case study, this paper sets forth the legal tensions faced by social networks that seek to defend privacy interests of users. Recent EC and UN initiatives have begun to suggest an increased role for corporations as protectors of human rights. But, as yet, binding rather than voluntary obligations of this kind under international human rights law seem either non-existent or highly conflicted, and structural limitations to such a shift may currently exist under both US and UK la
%SOURCENAMEESCAPED%, New: Force Majeure in Legal Scholarship, http://www.ssrn.com/abstract=2255155 (April 23, 2013)

Who's to blame when legal scholarship is bad? Not pedestrian, repetitive, uninspired, or poorly conceived-just bad. If those crazy Minnesotans at Constitutional Commentary are to be believed, the fault lies with us scholars, that we are overweening. The "manifestly reasonable strategy" of "taking... shocking position[s]" in the quest for tenure generates "Gresham's Law of Legal Scholarship." Warped as it is by rampant "Ph.D. envy," the market for legal scholarship values ''paradigmshak[ing]'" hy
%SOURCENAMEESCAPED%, New: Portraits of the Scholar as a Young Clerk, http://www.ssrn.com/abstract=2255153 (April 23, 2013)

Bob Hudec was an invaluable colleague, a kind man, and a generous friend. The experience of irrevocably losing a colleague is a new and unpleasant one for many of us at the University of Minnesota Law School. In my eleven years here, many faculty members have retired or moved to other law schools, but only Bob Hudec has passed away. When a colleague dies, especially one as treasured as Bob Hudec, there simply is no way to fill the resulting void.
%SOURCENAMEESCAPED%, New: Hope a Better Rate for Me, http://www.ssrn.com/abstract=2255140 (April 23, 2013)

Ratemaking, the dreariest legal expression of the dismal science, is sexy again. Once upon a time, judicially enforced constitutional restraints on the setting of public utility rates strengthened the intellectual backbone of the Lochner era. Contemporary interest in this doctrine stems from the imposition of "the duty to interconnect, to lease unbundled network elements, and to sell services for resale" on incumbent firms in the few remaining "market segments that have natural monopoly characte
%SOURCENAMEESCAPED%, New: Law as Industrial Policy: Economic Analysis of Law in a New Key, http://www.ssrn.com/abstract=2255150 (April 23, 2013)

If justice be the end of law, ask on. How we pose normative legal questions "limits and disposes the way in which any answer -right or wrong-may be given." Economic analysis of law has firmly established itself as a controversial but respected neorealist approach to legal criticism. Ever since the 1960 publication of Ronald Coase's pathblazing article, The Problem of Social Cost, conventional law-and-economics literature has evaluated legal rules according to a microeconomic criterion called "ef

  

free web page hit counter
Powered by Feed Informer