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handful of doses as of august 2014 to medical workers of non african origin how should the u s food and drug administration and its foreign counterparts handle petitions to expedite the experimental use of ebola medication the failure to contain ebola to a few geographically concentrated cases has enabled the virus to infect four countries guinea sierra leone liberia and nigeria as of august 2014 relatively severe public heath measures ranging from the quarantine to the cordon sanitaire are contemplated and may be implemented in varying degrees in one or more affected countries what are the legal and ethical implications of resort to law enforcement or even military solutions during public health emergencies outbreaks of ebola and other highly communicable diseases are all but inevitable in an age of globalization anthropogenic climate change and biodiversity loss even apart from the bushmeat trade which is suspected of enabling epizootics to make the jump to humans increased human traffic into previously untouched areas has introduced viruses and other pathogens to human populations around the world what if any solutions can the law provide through its focus on environmental protection immigration trade and human rights please submit your proposals to biolaw section chairman jim chen at chenjame law msu edu by september 26 2014 the section will explore channels for publishing papers presented in this program the program will take place at the 2015 midyear meeting of the aals in washington d c at 10 30 a m to 12 15 p m on monday january 5 2015 eligibility full time faculty members of aals member law schools are eligible to submit papers foreign visiting without a full time position at an aals member law school and adjunct faculty members graduate students fellows and non law school faculty are not eligible to submit faculty at fee paid non member schools are ineligible posted by jim chen at 4 58 pm 0 comments wednesday april 23 2014 minority television project inc v fcc no 13 1124 brief for amici curiae law professors in support of petitioner minority television project inc v fcc no 13 1124 brief for amici curiae law professors in support of petitioner available at http bit ly minoritytelevisionamicus this brief amicus curiae in support of petitioner minority television project in minority television project inc v fcc 736 f 3d 1192 9th cir 2013 petition filed no 13 1124 march 17 2014 urges the supreme court of the united states to overrule red lion broadcasting co v fcc 395 u s 367 1969 the brief presents three reasons why the court should overrule red lion first overwhelming technological change compels reexamination of red lion the proliferation of electronic media for distributing multichannel audio and video programming has undermined red lion s scarcity rationale second red lion has been so thoroughly discredited in all branches of government that further adherence to that precedent would undermine rather than promote respect for the court s decisionmaking process and for the rule of law finally this case demonstrates how the continued isolation of broadcast media from first amendment norms that govern all other media and conduits inflicts serious harm to the constitutional interest in free speech the academic signatories of this brief were ashutosh a bhagwat uc davis dale carpenter minnesota james ming chen michigan state eric m freedman hofstra patrick garry south dakota mehmet k konar steenberg william mitchell lyrissa barnett lidsky florida kevin francis o neil cleveland state michael stokes paulsen st thomas minnesota daniel d polsby george mason lucas a powe jr texas matthew l spitzer northwestern eugene volokh ucla posted by jim chen at 6 05 pm 0 comments wednesday march 26 2014 an agricultural law jeremiad the harvest is past the summer is ended and seed is not saved james ming chen an agricultural law jeremiad the harvest is past the summer is ended and seed is not saved 2014 wisconsin law review forthcoming available at http ssrn com abstract 2387998 or http bit ly seedisnotsaved and to be presented on march 26 2014 at the university of michigan law school s intellectual property workshop 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 evolution in agriculture 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 posted by jim chen at 2 18 am 0 comments thursday march 20 2014 flagging prospect theory james ming chen flagging prospect theory available at http www ssrn com abstract 2216916 or http bit ly flaggingprospecttheory 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 needed to generate that flag the resulting formula can expressed with exactly two parameters that formula can be readily modified to fit empirical data garnered in support of nearly any hypothesis informed by prospect theory posted by jim chen at 12 56 am 0 comments friday march 07 2014 louis fisher the law of the executive branch presidential power oxford university press has kindly added a new item to the jurisdynamics network s bookshelf louis fisher the law of the executive branch presidential power part of the new series oxford commentaries on american law a description of presidential power drawn from oxford s blurb follows from the framing of the constitution to the present day politicians scholars and the public have disputed the precise scope of presidential authority in the united states epic struggles have tested the bases for presidential appointment and removal the president s power over the military and as commander in chief of american forces and the president s ability to conceal the identity of those who have advised him in evaluating and making policy the law of the executive branch covers not just the white house but all executive staff and all of the agencies of the united states this book reviews all sources of the law of the executive branch from the text of the constitution and the intent of its framers through more than two centuries of practice and tradition louis fisher reviews case law presidential initiatives congressional statutes and public and international sources to inform his own interpretation of legitimate versus illegitimate exercises of power the book addresses the full range of presidential controversies including unilateral presidential wars the state secrets privilege claims of inherent power beyond the reach of the other branches of government and executive privilege posted by jim chen at 7 03 pm 0 comments monday march 03 2014 daniel shaviro fixing u s international taxation oxford university press has very generously added daniel n shaviro fixing u s international taxation 2014 to the jurisdynamics network bookshelf a brief description drawn from oxford s blurb for this book follows through fixing u s international taxation daniel shaviro has undertaking a thorough reconceptualization of the united states approach to international tax law and policy the united states has compounded the longstanding and sterile debate over international taxation which is stuck in an obsessive rut over putative double taxation the current debate locks tax policy into an all or nothing choice between global or residence based taxation of american companies coupled with foreign tax credits on one hand and outright exemption of foreign source income on the other hand rejecting both solutions and indeed the entire framework shaviro proposes a complete reformulation in the hope of reshaping the treatment of foreign taxes and the determination of tax rates on foreign source income as a matter of methodology this volume unites international taxation with the literature on public economics and international trade posted by jim chen at 2 36 pm 0 comments wednesday february 05 2014 arbitration as an article of constitutional faith james ming chen arbitration as an article of constitutional faith available at http ssrn com abstract 2391075 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 new book arbitration and the constitution i also discussed at the american enterprise institute and federalist society s march 26 2013 forum on arbitration and the constitution the video archive of my contribution to that forum appears below posted by jim chen at 2 10 am 0 comments sunday february 02 2014 pinwheel of fortune james ming chen pinwheel of fortune available at http ssrn com abstract 2389555 and http bit ly pinwheeloffortune 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 authority it reasoned that a directive aimed at uninsured individuals to buy health insurance lay beyond the power of congress to regulate interstate commerce if congress may not compel people to buy health insurance precisely because those individuals believe that they are better off bearing the relatively modest risk of catastrophic illness or injury congress may not have constitutional power to compel wage earners to accept annuities or annuity like income streams international environmental law and american health law act perversely precisely because they force life and death choices at the very points where emotion overrides reason these otherwise baffling phenomena manifest different facets of prospect theory the leading behavioral account of risk aversion and risk seeking these two bodies of law provide enough material to cover the entire pinwheel shaped fourfold pattern that defines prospect theory so spins the law s pinwheel of fortune posted by jim chen at 3 13 am 0 comments saturday january 25 2014 coherence and elicitability in measures of market risk james ming chen coherence versus elicitability in measures of market risk available at http ssrn com abstract 2385137 and http bit ly coherenceelicitability 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 posted by jim chen at 2 42 am 0 comments the jurisdynamics bookbag flinders defending politics and fatovic kleinerman extra legal power and legitimacy jurisdynamics is pleased to note two books from its mailbox one from a little while back the other brand new matthew flinders defending politics why democracy matters in the twenty first century posts a classic apologia for politics from the oxford university press blurb citizens around the world have become distrustful of politicians skeptical about democratic institutions and disillusioned about the capacity of democratic politics to resolve pressing social concerns many feel as if something has gone seriously wrong with democracy those sentiments are especially high in the u s as the 2012 election draws closer in 2008 president barack obama ran and won on a promise of hope and change for a better country four years later that dream for hope and change seems to be waning by the minute instead disillusionment grows with the obama adminstration s achievements or depending where you fall on the spectrum its lack thereof defending politics meets this contemporary pessimism about the political process head on in doing...