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Evaluation of Circuit Judge Kavanaugh’s Opinions Concerning the CAA
Get PDFNineteen opinions by Circuit Judge Kavanaugh in the D.C. Circuit dealing with the Clean Air Act (CAA) were reviewed. In eleven of the cases, Circuit Judge Kavanaugh wrote the majority opinion. In two cases he wrote a concurring opinion and in six cases he dissented. The cases where Circuit Judge Kavanaugh wrote the majority opinion are: (1) Americans for Clean Energy v. EPA, 864 F.3d 691 (2017); (2) Mexichem Fluor, Inc. v. EPA, 866 F.3d 451(2017); (3) Energy Future Coalition v. EPA, 793 F.3d 141 (2015); (4) EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (2015); (5) In re Murray Energy v. EPA, 788 F.3d 330 (2015); (6) National Ass’n of Manufacturers v. EPA, 750 F.3d 921 (2014); (7) NRDC v. EPA, 749 F.3d 1055 (2014); (8) American Road & Transportation Builders Ass’n v. EPA, 705 F.3d 453 (2013); (9) Honeywell International, Inc. v. EPA, 705 F.3d 470 (2013); (10) EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (2012, rehearing en banc denied Jan. 24, 2013); and (11) American Trucking Ass’ns, Inc. v. EPA, 600 F.3d 624 (2010)
Liability Rules for Health Information
Get PDFThe recent trend toward propertization of health data could pose significant challenges to biomedical research and public health. Property rule systems can result in sizable up-front costs in the acquisition of consent from individual data subjects, as well as the ongoing risk that data subjects will retract consent or object to unanticipated data uses, thus compromising existing data resources and analyses. We argue that property-based approaches to health data should be rejected in favor of liability rule frameworks for the protection of individual privacy interests. We demonstrate that liability rule frameworks for data governance are not only desirable from a theoretical standpoint but have been successfully implemented in the context of two valuable governmental data resources: the Utah Population Database (UPDB) and Statistics Denmark (DST). These case studies suggest that liability models should be considered more broadly for the governance of research using human health data
Pledging Patents for the Public Good: Rise and Fall of the Eco-Patent Commons
Get PDFCommons and pledge structures have been used to achieve various goals of patent holders, including the advancement of social and philanthropic aims. The article analyzes the formation and structure of a widely acclaimed effort to pool patents for the promotion of green/clean technologies – the Eco-Patent Commons (EcoPC) – as well as its actual impact on technology diffusion and the factors leading to its demise in 2016. We combine quantitative econometric techniques with qualitative interviews to paint the most complete picture of this innovative and ambitious effort to date. Our quantitative results show that the patents contributed to the EcoPC were, on average, less cited than comparable patents, and that the contribution of these patents to the EcoPC did not increase their rates of citation. Moreover, there is no evidence that the availability of these patents through the EcoPC increased the diffusion of pledged inventions. Our interviews revealed significant structural and organizational issues that limited both the attractiveness of the EcoPC to new participants and its value to potential users of pledged technology. Our findings have implications for the effectiveness of patent commons in enabling the diffusion of patented technologies more broadly
Intellectual Property Policies for Solar Engineering
Get PDFGovernance of solar geoengineering is important and challenging, with particular concern arising from commercial actors’ involvement. Policies relating to intellectual property, including patents and trade secrets, and to data access will shape private actors’ behavior and regulate access to data and technologies. There has been little careful consideration of the possible roles of and interrelationships among commercial actors, intellectual property, and intellectual property policy. Despite the current low level of commercial activity and intellectual property rights in this domain, we expect both to grow as research and development continue. Given the public good nature of solar geoengineering, the relationship between the public and private sectors would likely assume a procurement structure. Innovative policy approaches to intellectual property and data access that are specific to solar geoengineering are warranted. These current circumstances also present opportunities for the development of policy and norms that might soon be lost. We consider some possible approaches, and recommend a bottom-up, primarily nonstate, voluntary “research commons” for patents and data that are related to solar geoengineering. This would facilitate information sharing and limit data fragmentation and trade secrecy. It would also provide an incentive for commons members to pledge to limit some forms of intellectual property acquisition and to assure access on reasonable terms, thereby limiting the need for enforcement. This should help reduce downstream barriers to innovation and to encourage the potential development of technologies at reasonable cost. Such a research commons might also catalyze the adoption of best practices in research and development
Playing with Fire? Testing Moral Hazard in Homeowners Insurance Valued Policies
Get PDFInsurance policy design and regulation continually grapples with moral hazard concerns. Yet these concerns rest largely on theory-based assumptions about how rational economic actors will respond to financial incentives. Advances in behavioral economics call these assumptions into question.
This Article conducts an empirical test of moral hazard in homeowners insurance markets. Eighteen states’ “valued policy” laws require more generous compensation by insurers for certain total house losses. I test the moral hazard prediction that fire rates will consequently be higher in these states than in others. Using a private insurance database on the cause of loss for over four million residential insurance claims from 2002 through 2011, I find that, surprisingly, loss rates are significantly lower in valued policy states, not higher. I also use Louisiana’s unexpected elimination of these laws as an additional means to assess the laws’ effects. As before, fire rates are significantly higher when economic incentives appear lower.
These results are inconsistent with standard moral hazard predictions, but I demonstrate how they are consistent with a broader conceptualization of moral hazard theory. First, the results show the importance of recognizing policyholders’ responsiveness to irrelevant factors that they nevertheless believe will affect their insurance payments, like housing prices, rather than the low-salience economic factors that truly determine these payments, like valued policy laws. Second, the results show how focusing exclusively on policyholder behavior misses how other actors, like insurance companies, also adjust to mitigate or even entirely eliminate moral hazard considerations
Cashing in on Convicts: Privatization, Punishment, and the People
Get PDFFor-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, restorative retribution, the voice and interests of the community, and systemic transparency and accountability. This Article shows what is lost when private, for-profit entities are allowed to take on the traditional community function of imposing and regulating punishment. By banking on bondage, private prisons and jails remove the local community from criminal justice, and perpetuate the extreme inequities within the criminal system
A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty
Get PDFOne in ten female graduate students at major research universities report being sexually harassed by a faculty member. Many universities face intense media scrutiny regarding faculty sexual harassment, and whether women are being harassed out of academic careers in scientific disciplines is currently a subject of significant public debate. However, to date, scholarship in this area is significantly constrained. Surveys cannot entirely mesh with the legal/policy definition of sexual harassment. Policymakers want to know about serial (repeat) sexual harassers, where answers provided by student surveys are least satisfactory. Strict confidentiality restrictions block most campus sexual harassment cases from public view.
Taking advantage of recent advances in data availability, this Article represents the most comprehensive effort to inventory and analyze actual faculty sexual harassment cases. This review includes over 300 cases obtained from: (1) media reports; (2) federal civil rights investigations by the U.S. Departments of Education and Justice; (3) lawsuits by students alleging sexual harassment; and (4) lawsuits by tenure-track faculty fired for sexual harassment. It also situates this review within the available and most relevant social science literature on sexual harassment and violence in education and the workplace, as well as on methodological limitations of litigated case data, which tend to contain a higher concentration of high-severity cases compared to a random sample.
Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study (53%) involved faculty alleged to have engaged in unwelcome physical contact dominated by groping, sexual assault, and domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment. Thus, this study adds to our understanding of sexual harassment in the university setting and informs a number of related policy and legal questions including academic freedom, prevention, sanctions, and the so-called “pass-the-harasser” phenomenon of serial sexual harassers relocating to new university positions
The Narrative and Rhetoric of Student Debt
Get PDFThe swirl of concerns about and criticisms of the cost of higher education and the debt burdens taken on by students masks a deeper confusion over the goals student aid should pursue and over reforms to enable achievement of those goals. This Article explores how the rhetoric used in public discussion of college cost and student borrowing can get in the way of what would be a difficult but critically important debate over goals. Higher education is a personal, private “investment” that must be “worth it” to the student; student “aid,” flexible loan repayment plans, even debt forgiveness, all aim to make the financing of this investment easier but also may “unfairly favor” certain career choices over others. The very words used in these descriptions have consequences for how higher education is understood. They invoke assumptions about the values higher-education policy should pursue and get in the way of seeing choices implicitly already made, choices that should be explicitly analyzed and debated. Reform efforts in this area will turn on politics—a field highly susceptible to rhetoric—and ignoring the implications of choices of words runs a grave risk of foreclosing possibilities
Global Rate Setting: A Solution for Standard-Essential Patents?
Get PDFThe commitment to license patents that are essential to technical interoperability standards on terms that are fair, reasonable and non-discriminatory (FRAND) is a fundamental mechanism that enables standards to be developed collaboratively by groups of competitors. Yet disagreements over FRAND royalty rates continue to bedevil participants in global technology markets. Allegations of opportunistic hold-up and hold-out continue to arise, spurring competition authorities to investigate and intervene in private standard-setting. And litigation regarding compliance with FRAND commitments has led an increasing number of courts around the world to adjudicate FRAND royalty rates, often on a global basis, but using very different methodologies and doctrinal approaches. The issues affecting the FRAND licensing system can be summarized as deficiencies in transparency, consistency and comprehensiveness. Together, these issues reduce the overall fairness and accuracy of the system and result in excess administrative and transactional costs. This article, for the first time, lays out a roadmap for the establishment of an expert FRAND rate-setting tribunal that promotes the tripartite goals of transparency, consistency and comprehensiveness. This tribunal is modelled on the U.S. Copyright Royalty Board and similar rate-setting agencies, though it is envisioned not as a governmental body, but an international non-governmental organization. It is hoped that such a tribunal will bring greater predictability and stability to the technology development ecosystem while reducing inefficient litigation
Cultivating a Culture of Environmental and Natural Resources Collaboration in Utah
Get PDFUnhealthy air quality. Growing demands for water in an arid state. Conflicts over public lands and how those lands should be managed. These are just a few environmental and natural resources challenges here in Utah that we hear “keep people up at night.” Such challenges are indeed daunting, and they will not be easily solved. However, in every challenge there is an opportunity. And when it comes to environmental and natural resources challenges, there is a powerful opportunity for people to work together to find mutually beneficial solutions that are, as consensus building guru Larry Susskind puts it, “fair, efficient, stable, and wise.