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Measuring follow-on innovation
Get PDFHow patents affect follow-on innovation is a key question for the patent system. We disaggregate follow-on innovation into activities that infringe patents and others that do not infringe but can be indirectly affected by patents. Replicating an important study using our disaggregated measure, we find that 87 percent of follow-on scientific publications describing patented genes do not constitute patent infringement. Supplementing our empirical strategy with data on patent expiration dates, we find that gene patents which are not close to expiration cause an increase in noninfringing follow-on research, but the effect disappears for patents close to expiration. Our nuanced measure helps better identify the mechanisms of patents’ effect, reconcile disparate results in the literature, and evaluate policy reform
What’s Scope 3 Good For?
Get PDFOpposition to the Securities and Exchange Commission’s (“SEC”) new rule on updated climate risk reporting has focused on one category of disclosures as particularly objectionable: Scope 3 emissions.7 Otherwise known as “supply chain emissions,” Scope 3 emissions have been voluntarily reported by a growing number of companies since the term was invented as part of the Greenhouse Gas Protocol in 2001.8 They include all the emissions both up and downstream of a corporations’ own activities: the emissions of the privately-owned factory that produced the shoes Target sells, as well as the emissions you burn while driving to the store to buy them, all count as Target’s “Scope 3” emissions.9 The other two GHG Protocol scopes are less sprawling: Scope 1 emissions include sources the company directly owns and controls — the natural gas to heat buildings and gas-powered delivery vehicles, for example.10 All emissions that come from purchased electricity fall in Scope 2 — this is the bill Target pays for the power from the grid that keeps store lights on.11 While the SEC proposes that all companies be required to report their Scope 1 and 2 emissions, Scope 3 emissions are only mandatory if they are financially material to the company, or the company has publicly set emissions targets.12
Objections to Scope 3 reporting requirements often highlight difficulties in collecting emissions information from third-parties, particularly smaller or private entities.13 Corporations bristle at the idea of being held “responsible” for emissions over which they have no control.14 And market participants that do not object to the concept of supply-chain emissions reporting have enumerated complications that come from applying Scope accounting in practice, anecdotal puzzles abound: “How do you divide up the emissions between” the milk and the meat that a single cow produces over its lifetime?15 Nevertheless, investors largely support the SEC’s Scope 3 proposal, and have used their own shareholder power to press for increasingly stringent supply-chain emissions disclosures from corporate management directly.16
Investors justify their pursuit of corporate emissions disclosure for two broad reasons. The first is that emissions are useful as a proxy for measuring transition risk, or their exposure to regulatory and market changes affecting fossil-dependent investments.17 This reason is consistent with a “single materiality” framework that compels disclosure of risks to a company. 18 This contrasts with a “double materiality” framework that additionally aims to capture risks that a company imposes on others, including other corporations in the market.19 While discourse in the United States has tended to accept the traditional single materiality of Scope 1 and 2 emissions, Scope 3 is often described as a metric limited to “double materiality.”20 This Article argues that because the division between Scopes 1, 2, and 3 follow the arbitrariness of firm boundaries, certain channels of transition risk — and reputational risk — are not eliminated by simply outsourcing a high-risk process to a third-party. A blinkered focus on Scopes 1 and 2 misses these exposures. The second reason U.S. investors demand emissions disclosure is that it is needed for monitoring corporate progress over time. Metrics on emissions reduction progress are used throughout corporate governance: informing decisions on board member support, setting executive pay incentives, and monitoring portfolio-level alignment with climate indexes.21 Institutional investors are increasingly adopting their own reduction-commitments simultaneously as retail inventors seek out “carbon aligned” funds. Firm-level Scope data is needed before an asset manager can market any low-emissions fund.22 Investors are increasingly adopting their own reduction-commitments, and retail investors are seeking “carbon aligned” funds of various kinds — the firm-level Scope data is needed in order construct footprints of assets and funds.
While the number of ESG reports about emissions “data gaps” grows, just where the data comes from and how it is (mis)used by market actors has been underexplored in the legal literature, particularly beyond the realm of ESG metrics for portfolio-screening. In Part I, this Article discusses how Scope data is collected and shared in practice, as well as its widespread adoption as a metric for financial risk and corporate governance. Part II argues that these uses of emissions data demonstrate that this information is broadly material to investors, requiring standardization and assurance. For these reasons, the SEC should not back down on requiring the disclosure of relevant Scope 3 emissions.23 Corporate claims of lack of control and access to data should be met with skepticism for large companies, especially in light of recent technological advances related to emissions monitoring and trends in supply chain contracting.24 However, the usefulness of Scope 3 data depends upon its use-case — a fact that has been relatively underappreciated — as well its granularity and the availability of other contextual data. This Part goes on to offer a brief critique and qualification of the uses of Scope 3 data, highlighting how U.S. financial regulators can improve upon the early approaches of other jurisdictions. Part III concludes
Continuous Reproductive Surveillance
Get PDFThe Dobbs opinion emphasizes that the state’s interest in the fetus extends to “all stages of development.” This essay briefly explores whether state legislators, agencies, and courts could use the “all stages of development” language to expand reproductive surveillance by using novel developments in consumer health technologies to augment those efforts
Georgia Pathways—Partial Medicaid Expansion With Work Requirements and Premiums
No full textOn July 1, 2023, Georgia became the first state to partially expand Medicaid eligibility to low-income adults with work requirements through a new program called Georgia Pathways to Coverage. Georgia Pathways is a partial expansion of Medicaid eligibility that covers persons with incomes up to 100% of the federal poverty level (≤20 130 annually for an individual)
Dual Sovereignty in the U.S. Territories
Get PDFThis Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities
Why the Court Should Reexamine Administrative Law\u27s Chenery II Doctrine
Get PDFPart I of this article begins by discussing some fundamental constitutional principles that were raised, sometimes implicitly and indirectly, in the Chenery cases. Those principles point to limits on administrative adjudication that go well beyond those recognized in current doctrine. We do not here seek to push those principles as far as they can go, though we offer no resistance to anyone who wants to trod that path. Instead, we identify and raise those principles to help understand the scope and limits of actual doctrine. Our modest claims here are that constitutional concerns about at least some classes of agency lawmaking in adjudication (1) are serious enough to warrant a close look at unqualified articulations of a Chenery II “doctrine” and (2) warrant at least a presumption against recognizing agency power to choose adjudication as a form of lawmaking. In other words, they form a lens through which one can take a fresh look at a now-canonical case.
Part II then discusses the progress of the litigation and decisions in both Chenery I and Chenery II. As the correspondence among the justices and other circumstances of the cases reveal, the Court did not conclude in Chenery II that, as an absolute rule, “the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”6 While that language comes from the Court’s decision in Chenery II, the broader context of the case indicates that the Court qualified the scope and domain of this principle.
Part III discusses the development of the law following the Chenery II case. The limits implicit in the Court’s 1947 decision have largely been lost in the ensuing three-quarters of a century. Nonetheless, in Part IV, we suggest that these later developments can be interpreted in two ways, both of which question the notion of a limitless Chenery II “doctrine.” Either agencies are interpreting and applying their governing statutes when issuing orders that are not pursuant to general rules, or they are establishing “embedded rules” that are contained in orders.7 If the former, then various doctrines governing agency legal interpretation, arbitrariness, and unfair surprise apply. If the latter, then doctrines addressing embedded rules should apply. Both paths suggest that it is incorrect simply to think of a Chenery II doctrine that enables agencies to act via rulemaking or adjudication at their discretion. Thus, we argue that the Court should overturn, clarify, or simply ignore unqualified recitations of a broad Chenery II principle in future cases, relying instead on alternative principles to address agencies’ choice between rulemaking and adjudication.
Part V briefly suggests a few potential applications of this new approach to explain how the law might change in a post-Chenery II world. While we believe that a post-Chenery II legal regime would afford better protection for individual rights and due process of law, the roots of much of what we recommend can already be found in various administrative law sources and doctrines, none of which have proven to be fundamentally disruptive to the administrative state
The effectiveness of financial incentives for COVID-19 vaccination: A systematic review
No full textFinancial incentives are a controversial strategy for increasing vaccination. In this systematic review, we evaluated: 1) the effects of incentives on COVID-19 vaccinations; 2) whether effects differed based on study outcome, study design, incentive type and timing, or sample sociodemographic characteristics; and 3) the cost of incentives per additional vaccine administered. We searched PubMed, EMBASE, Scopus, and Econlit up to March 2022 for terms related to COVID, vaccines, and financial incentives, and identified 38 peer-reviewed, quantitative studies. Independent raters extracted study data and evaluated study quality. Studies examined the impact of financial incentives on COVID-19 vaccine uptake (k = 18), related psychological outcomes (e.g., vaccine intentions, k = 19), or both types of outcomes. For studies of vaccine uptake, none found that financial incentives had a negative effect on uptake, and most rigorous studies found that incentives had a positive effect on uptake. By contrast, studies of vaccine intentions were inconclusive. While three studies concluded that incentives may negatively impact vaccine intentions for some individuals, they had methodological limitations. Study outcomes (uptake versus intentions) and study design (experimental versus observational frameworks) appeared to influence results more than incentive type or timing. Additionally, income and political affiliation may moderate responses to incentives. Most studies evaluating cost per additional vaccine administered found that they ranged from $49–75. Overall, fears about financial incentives decreasing COVID-19 vaccine uptake are not supported by the evidence. Financial incentives likely increase COVID-19 vaccine uptake. While these increases appear to be small, they may be meaningful across populations
After McCleskey
Get PDFIn the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate\u27s argument that significant racial disparities in the administration of Georgia\u27s capital punishment laws violated the Fourteenth Amendment\u27s Equal Protection Clause. In brushing aside the most sophisticated empirical study of a state \u27s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system. Most accounts of the case end after noting the ruling\u27s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates. One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether.
But that would be wrong and incomplete. For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision. It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith. It is also based on archival research into their case files. Drawing from these resources, this Article shows how a subset ofcause lawyers in the late 1980\u27s and early 90\u27s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of rebellious localism. Instead of forsaking structural equality claims, they doubled down on them. Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it. They also scrambled to formulate reliable quantitative evidence of intentional discrimination. Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts.
Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable. For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances
A Concrete Proposal for Data Loyalty
Get PDFCongress and state legislators are finally experimenting with new privacy frameworks, rights, and duties to move past the thoroughly critiqued “notice and choice” model for data privacy. While many new privacy proposals seek a more fortified version of the fair information practices, some legislators have placed a duty of data loyalty at the heart of their proposed privacy bills. This is important because a duty of data loyalty has the potential to anchor American privacy law in a way analogous to how the European Union approach is grounded in fundamental rights of privacy and data protection.
Unfortunately, there remains some uncertainty about what exactly a duty of data loyalty should require. What is needed is a clear expression of what a practicable duty of data loyalty will do, why it will do it, and to what extent. This Essay supplies such an account, and argues that to be effective, data loyalty legislation must (1) impose a broad primary duty of loyalty that is clarified through specific subsidiary duties, (2) reflect a substantive commitment against self-dealing in relationships of trust, and (3) be compatible with existing data privacy frameworks to accommodate a diverse enforcement strategy and generate political support.
To advance this approach, we offer as proof of concept a model statute for a duty of data loyalty — one that is designed to limit wrongful self-dealing with a robust “best interests” rule supplemented by specific duties with clear boundaries. The goal of this model legislation is to serve as a guide for legislators who seek to place data loyalty as the foundation of a U.S. approach to privacy. Instead of creating new legislative language from scratch, our model statute incorporates and strengthens many relevant existing data privacy rules under the unifying principle of keeping companies from betraying those who trust them with their data and online experiences. Our purpose in building on existing rules and bipartisan proposals is to demonstrate the practical appeal and feasibility of our data loyalty framework