Climate Services: The Business of Physical Risk

2023, Past Issues, Print, Volume 55 (2023) Issue 1 (Spring)
By Madison Condon. A growing number of investors, insurers, financial services providers, and nonprofits rely on information about localized physical climate risks, like floods, hurricanes, and wildfires. The outcomes of these risk projections have significant consequences in the economy, including allocating investment capital, impacting housing prices and demographic shifts, and prioritizing adaptation infrastructure projects. The climate risk information available to individual citizens and municipalities, however, is limited and expensive to access. Further, many providers of climate services use black box models that make overseeing the scientific rigor of their methodologies impossible— a concern given scientific critiques that many may be obfuscating the uncertainty in their projections. Municipalities that want to challenge insurance and bond rating determinations must rally significant resources for modeling and data, a scattershot policing method at best. And…
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The Replication Crisis and IP Law: A Novel Policy Tool for Open Science

2023, Past Issues, Print, Volume 55 (2023) Issue 1 (Spring)
By Or Cohen-Sasson & Ofer Tur-Sinai. In recent years, the scientific community has faced a considerable problem—the replication crisis. Replication is the process of verifying scientific findings by repeating a published study. It is considered a cornerstone of the scientific enterprise, contributing to the credibility of research findings. Over the past two decades, however, replication has become increasingly difficult; in fact, in some disciplines the nonreplicability rate is over 50%. A major factor accounting for this is diminished access to research materials required for replication (replication materials). This problem is particularly acute in computational studies, where the code, software documentation, datasets, and other information are often not shared. In this Article, we address the replication crisis from the perspective of intellectual property (IP) law . . . Full Article.
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A Duty To Disclose Social Injustice Torts

2023, Past Issues, Print, Volume 55 (2023) Issue 1 (Spring)
By Gilat Juli Bachar. Are tort victims ever obligated to disclose the wrongdoing they suffered? This unanswered question demands our prompt attention given two recent trends: the prevalence of non-disclosure agreements concealing injustices such as sexual wrongdoing and police misconduct; and a new wave of sunshine-in-litigation laws attempting to curb confidentiality in at least a dozen states, from Tennessee to California. Such laws have sought to prioritize the public interest in information regarding certain harmful behavior over the interests of individual litigants. But, to date, scholars and policymakers have failed to identify one of the key justifications for curtailing the widespread practice of confidentiality in tort settlements. This Article is the first to fill this crucial gap, conceptualizing and delineating a disclosure duty owed by tort victims to others . .…
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Multistate Business Entities

2023, Past Issues, Print, Volume 55 (2023) Issue 1 (Spring)
By Andrew D. Appleby & Tomer S. Stein. The binary legislative choice between state and federal regulation of a firm’s internal affairs is deeply entrenched in the existing literature and policy discussions. Alas, this regulatory menu contains a false and distortive dichotomy. The state-federal dichotomy is false because multistate formation and regulation of business entities are possible as well. This dichotomy is distortive because it deprives policymakers of the advantages of multistate corporations and other business entities. In this Article, we demonstrate that a multistate business entities regime can resolve multiple predicaments that presently bring about unfairness and inefficiencies in both business entities law and business entities taxation . . . Full Article.
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A Critical 21st Century Role for Public Land Management: Conserving 30% of the Nation’s Lands and Waters Beyond 2030

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By Sandra B. Zellmer & Robert L. Glicksman. We have been here before. In 1964, Congress proclaimed that “the public land laws of the United States . . . may be inadequate to meet the current and future needs of the American people.” To address those inadequacies, Congress established a Public Land Law Review Commission to study existing statutes, regulations, policies, and practices concerning management and use of the public lands, compile data necessary to determine future demands on the public lands, and recommend modifications that would best serve the policy of managing the public lands in ways that provide “the maximum benefit for the general public.”The Commission issued its iconic report to the President and Congress— One Third of the Nation’s Land—in 1970. On the first page of its report,…
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Reevaluating Out of Market Efficiencies in Antitrust

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By John M. Yun. Antitrust analyses relegate efficiencies to a second-class status. Not only are they often an after-thought when assessing conduct within a relevant market, but the Supreme Court, in 1963 with its Philadelphia National Bank (PNB) decision, established that efficiencies realized outside of the relevant market construct, that is, “out-of-market” efficiencies, are not even counted. While the PNB case involved a horizontal merger between two Philadelphia banks, many interpret the PNB precedent as establishing a prohibition of out-of-market efficiencies in non-merger cases as well. The precedent and associated out-of-market efficiencies principle have had a profound influence on the enforcement of antitrust laws. Yet, the principle is increasingly out of step with sound assessments of business conduct—particularly in digital markets with network effects. Further, the principle unreasonably handicaps defendants, which…
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IRS Inconsistencies: Section 213 and the Deductibility of Assisted Reproductive Technology

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By Natalie Packard.  The Internal Revenue Code (the “Code”) is a powerful tool that both reflects and shapes public policy. Through its complex set of deductions, tax rates, and credits, the Code creates financial incentives that encourage certain behavior, such as buying a house or donating to charity. While the Treasury Department writes the Code, the Internal Revenue Service (“IRS”) performs the essential role of interpreting its language, hopefully in a way that reflects taxpayers’ values. Thus, as values change, the IRS’s application of the Code or the Code itself should change. Unfortunately, both Congress and the IRS can be slow to accept evolving values. As a result, many Code provisions preserve outdated and inaccurate assumptions about families, resulting in a “landscape of discrimination hidden within the tax code.”  Section…
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Just Taxation of Crime: Should the Commission of Crime Change One’s Tax Liability?

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By Jeesoo Nam.  The tax law treats criminals differently from non-criminals. Should it? Under the public policy doctrine, for example, various tax deductions are disallowed if they are closely tied to criminal activity. Criminal activity is, in multiple ways, tax disadvantaged compared to non-criminal activity.  This Article considers a variety of possible justifications. (1) The tax disadvantage provides an incentive not to commit crime. (2) The tax disadvantage helps to bring deserved punishment to the criminal. (3) Criminals have given up their right not to be taxed. (4) Criminals have taken an unfair advantage and so must be stripped of that unfair advantage. (5) Criminals deserve to bear the costs that they culpably and wrongfully created.  This Article argues in favor of (5) as the best theory of taxing crime…
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Indian Embryos as “Indian Children?”

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By Noah Goldenberg.  A couple—Mike and Megan—get married and buy a house in Phoenix, Arizona. After an annual checkup, Mike is diagnosed with testicular cancer. His doctors believe that with surgery and chemotherapy Mike will more than likely survive his diagnosis. However, chemotherapy can result in both temporary and permanent infertility.  While Mike always wanted children, Megan has never been sure. Mike’s diagnosis forces him and Megan to decide. Together, they choose to freeze fertilized embryos in case they want to have children later . . . Full Article.
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Cruel and Unusual Youth Confinement

2022, Past Issues, Print, Volume 54 (2022) Issue 4 (Winter)
By Cara H. Drinan.  In a series of cases known as the Miller trilogy, the Supreme Court recognized that children are both less culpable and more amenable to rehabilitation than adults, and that those differences must be considered at sentencing. Relying on the principle that kids are different for constitutional purposes, the Court abolished capital punishment for minors and significantly limited the extent to which minors can be subject to life-without-parole (“LWOP”) terms. Equally important, the Miller trilogy was predicated on the concept of inherent human dignity, and it recognized the youthful prisoner’s need for “hope” and “reconciliation with society.” While scholars have grappled with the implementation of these cases for nearly a decade, there has been no comprehensive analysis of what these cases mean for conditions of confinement. That…
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