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Data Dependence Awakens
No full textMarket participants typically update their views on future policy actions based on incoming economic data. However, when interest rates are near zero, monetary policy actions are viewed as less data dependent than in “normal” times. From 2010 to 2014, market expectations of interest rates over the near term exhibited little data dependence. In the past year or so, market-based measures of data dependence have risen considerably, although they are still below earlier norms. This suggests that investors are increasingly viewing monetary policy actions as data dependent
Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility
No full textThe field of behavioral legal ethics—which draws on a large body of empirical research to explore how subtle and often unconscious psychological factors influence ethical decision-making by lawyers—has gained significant attention recently, including by many scholars who have called for a pedagogy that incorporates behavioral lessons into the professional responsibility curriculum. This Article provides one of the first comprehensive accounts of how law teachers can meet this challenge. Based on an approach that employs a variety of experiential techniques to immerse students in the contextual and emotional aspects of legal practice, it provides a detailed model of how to teach legal ethics from a behavioral perspective. Reflections on the approach, including the encouraging response expressed by students to this interdisciplinary method of instruction, are also discusse
Whither the Improvement Standard ? Coverage for Severe Brain Injury after Jimmo v. Sebelius
No full textOver the past decade, neuroscience has further refined the categorization of disorders of consciousness, severe brain injuries ranging from coma to the vegetative and minimally conscious states. Improved bedside assessment and neuroimaging methods have created new opportunities to identify consciousness in patients formerly thought to be vegetative or unconscious, while emerging drugs and technologies have demonstrated that some of these minimally conscious patients may be amenable to emerging treatments. Yet, patients in the minimally conscious state (MCS) are frequently burdened by coverage denials for services, which often leave them without diagnosis, treatment, or rehabilitation appropriate to their condition
The Role of Design Choice in Intellectual Property and Antitrust Law
Get PDFWhen is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to optimize enforcement of intellectual property rights, and monopolists need not consider the effects on competitors when they devise and sell new products.Yet in both contexts, on rare occasions, courts deem the non-interference principle inapplicable and find liability, at least in part, based on a party’s choice of product design. Although intellectual property and antitrust scholars have each addressed judicial treatment of product design within their discipline, commentators have given little attention to similarities and differences between how the non-interference principle plays out in each context. Such an investigation yields interesting insights about the values underlying non-interference, and has implications for judges applying the principle in both intellectual property and antitrust law. This essay explores the non-interference principle in intellectual property and antitrust law, with an eye toward the factors that determine its applicability across the two doctrinal contexts
Federal Taxation of State Tax Credits
Get PDFThis article analyzes the Federal income tax treatment of state incentive tax credits. It considers whether and when refundable credits should be included in income and discusses their appropriate character as capital gain or as ordinary income
International Cooperation to Improve Access to and Sustain Effectiveness of Antimicrobials
Get PDFSecuring access to effective antimicrobials is one of the greatest challenges today. Until now, efforts to address this issue have been isolated and uncoordinated, with little focus on sustainable and international solutions. Global collective action is necessary to improve access to life-saving antimicrobials, conserving them, and ensuring continued innovation. Access, conservation, and innovation are beneficial when achieved independently, but much more effective and sustainable if implemented in concert within and across countries. WHO alone will not be able to drive these actions. It will require a multisector response (including the health, agriculture, and veterinary sectors), global coordination, and financing mechanisms with sufficient mandates, authority, resources, and power. Fortunately, securing access to effective antimicrobials has finally gained a place on the global political agenda, and we call on policy makers to develop, endorse, and finance new global institutional arrangements that can ensure robust implementation and bold collective action
Patent Uncertainty: Toward a Framework with Applications
Get PDFThere are three essential sources of uncertainty in the patent system: perceived uncertainty due to selective sampling (“statistical artefact uncertainty”), inherent uncertainty, and strategic uncertainty. It is only the strategic uncertainty source that should be of concern to reformers. With respect to this source, uncertainty in the patent system is largely a function of two variables: the degree of inherent abstraction associated with the patent, and the degree to which the patent provides notice of its scope. The maximal degree of uncertainty is observed in the category of abstract patents with poor notice, a category dominated today by software patents. I offer a few principles for validating patents in this category of maximal uncertaint
A Study on Immigrant Activism, Secure Communities, and Rawlsian Civil Disobedience
Get PDFThis Article explores the immigrant acts of protest during the Obama presidency in opposition to the Secure Communities (SCOMM) immigration enforcement program through the lens of philosopher John Rawls’ theory of civil disobedience and posits that this immigrant resistance contributed to that administration’s dismantling the federal program by progressively moving localities, and eventually whole states, to cease cooperation with SCOMM. The controversial SCOMM program is one of the most powerful tools of immigration enforcement in the new millennium because it transforms any contact with state and local law enforcement into a potential immigration investigation. SCOMM has now been revived through executive order by the new Trump administration. Under SCOMM, an arrestee’s identifying information is automatically forwarded to Immigration and Customs Enforcement (ICE), the largest investigative arm of the Department of Homeland Security (DHS). During Obama’s tenure, when ICE chose to pursue an investigation into removability, agents issued an immigration detainer requiring that state/local authorities hold the individual beyond when she would have regularly been released, thereby providing ICE time to take her into custody and proceed with removal proceedings. John Rawls’ theory of justice justifies engagement in civil disobedience by society members, which this Article argues includes immigrants, when basic liberties are at stake and ordinary avenues of political change are unavailable. Reviewing the critiques of SCOMM, including legal challenges to its constitutionality and claims that the program threatened public safety and unfairly criminalized all immigrants, this Article submits that SCOMM represents what Rawls would characterize as a violation of basic liberties. Further, given the stagnation and gridlock that typifies government approaches to immigration reform, regular political avenues to remedy SCOMM have been foreclosed. Using primarily two states as case studies, this Article describes immigrant acts of resistance and civil disobedience and explores how these acts mobilized local and state officials to cease cooperation with SCOMM and contributed to the Obama administration’s dismantling the program. Immigrant activists and their allies must now integrate these strategies as they confront a heightened struggle
Big Data Should Be Regulated by ‘Technological Due Process’
No full textIn our increasingly scored society – where algorithms turn our browsing habits, click patterns, purchases and GPS location data into ratings and predictions of who we are – it is very difficult for those who are mislabeled, or tagged in an undesirable way, to break out of their scoring prisons, in part because they are usually unaware they are being reviewed
We will look back at cyber-harassment as a disgrace – if we act now
No full textAttitudes towards online abuse have undergone a sea change over the last decade. In the past, cyber-harassment – often a perfect storm of threats, impersonations, defamation, and privacy invasions directed at an individual – was routinely dismissed as “no big deal”.
So it was for one Yale law student. Starting in 2007, on an online discussion board, a cyber-mob falsely accused her of having herpes and sleeping with her dean. Anonymous posters described how they would rape her; they chronicled her daily whereabouts and prior jobs. Yet law enforcement told the student to ignore the attacks because “boys will be boys”. Officers advised her to “clean up” her cyber-reputation, as if she could control what appeared about her. Trivialising online abuse and blaming victims was the norm