UC Irvine Law Review

Prior scholarship advocates for international harmonization of financial regulation as a solution to the problem of cross-border regulatory arbitrage. The scholarship is theoretical and rests on the contention that financial institutions can simply depart from an unfavorable regulatory regime. This Paper contributes an empirical foundation to the concern that financial institutions relocate following regulation, while also deeply qualifying claims that effective regulation requires international harmonization.

Using experience from swap markets following the Dodd-Frank Act, this Article provides the first empirical evidence that financial institutions migrate in response to derivatives regulation. This Article shows that U.S. banks substantially shifted inter-bank swap trading offshore while the delivery of swaps to U.S. customers did not decline.

Building on this case study, the Article develops theory for what policy goals are more susceptible to subversion through migration. Policy goals concerned with regulating relationships between financial institutions and their customers (e.g., goals of customer protection) are less vulnerable to relocation than policy goals concerned with inter-relationships between financial institutions (e.g., reduction of systemic risk). This distinction reflects well-informed priors on the relative costs and benefits of cross-border arbitrage to providers of financial services and their customers.

In exploring how relocation skirted some regulations and alternative regulatory designs for achieving the same policy goals, the Article solves a longstanding puzzle for international regulation. The claim that financial institutions can avoid territorially bounded regulation appears, on its face, suspect. If an institution truly removes its operations, what legitimate interest does a jurisdiction retain in regulating that institution? Through examining how operations may be restructured across borders, the Article shows that a lack of harmonization: (a) does not affect whether a jurisdiction can unilaterally implement its policy goals, but (b) does narrow the range of regulatory designs available to achieve policy goals. Absent harmonization, jurisdictions may be limited to regulatory designs that are more difficult to implement, for instance, due to politics, administrative costs or other frictions affecting efficacious lawmaking, supervision, or enforcement.

People encounter disability in public spaces where accommodations are granted to those who fit into this protected legal class. Nondisabled people desire many of these accommodations—such as the use of reserved parking spots or the ability to avoid waiting in a queue—and perceive them as “special rights” prone to abuse. This apprehension about the exploitation of rights by those pretending to be disabled, which I refer to as “fear of the disability con,” erodes trust in disability law and affects people with disabilities both on an individual level and a group level. Individuals with disabilities are often harassed or questioned about their identity when using their rights. As a group, disabled people are forced to navigate new defensive policies that seek to address widely held perceptions of fakery and abuse. This Article uses a series of survey experiments conducted with multiple nationally representative samples totaling more than 3200 Americans along with forty-seven qualitative in-depth interviews. It brings to light the psychological mechanism of suspicion and identifies factors that motivate fear of the disability con in public spaces. Findings counterintuitively suggest that the scarcity of the desired public resources has no effect on the level of suspicion against potential abusers. Rather, it is the sense of deservingness (or lack thereof) in the eyes of others that drives suspicion. Using these empirical findings, as well as analysis of relevant case law, this Article outlines the normative implications for the design and implementation of laws affecting millions of individuals. Furthermore, this research contributes to our understanding of how rights behave on the ground, both with regard to disability and to myriad distributive policies.

Over the past decade, scholars have identified many entities who use the patent system in ways that differ from the traditional model of patent use—entities such as patent assertion entities, patent aggregators, or owners of large patent portfolios. This Article presents a model that explains the behavior of some of the biggest and most controversial entities in the patent system. This Article argues that such entities are engaged in “patent shopping” where the plaintiff makes a strategic choice of patent in order to obtain the best facts and substance in a case and thereby maximize the chance of a favorable outcome. The patent shopping model draws by analogy on forum shopping, where plaintiffs make a strategic choice of forum in order to maximize the chance of a favorable outcome. The patent shopping model stands in contrast to the traditional model of patent use where a patentee owns a small number of patents closely related to a commercialized invention, which are drafted to encompass possible attempted work-arounds. Under the traditional model, patent acquisition comes first, infringement second. This Article proposes that, for patent shoppers, the chronology is flipped: infringement first, patent acquisition second. Instead of drafting patents to predict infringement, patent shoppers are able to react to infringement by selecting a patent that fits the infringing behavior. This is possible because most companies are constantly infringing on many different potential patents, infringement which has historically not been enforced. Patent shoppers have access to hundreds or thousands of patents, related to many different inventions, and can identify an instance of infringement that is a good target for enforcement and can then acquire the patent(s) of their choice. For instance, patent assertion entities may evaluate large numbers of patents that are available for sale and then select patents that can be most profitably enforced. Similarly, owners of large patent portfolios can shop in their own closet by selecting the best patents for enforcement from a wide array of options.

This Article presents the shopping model and then conducts a qualitative review of the financial statements of potential patent shoppers to provide empirical evidence that these entities pursue patent shopping as a business strategy. Patent shopping is a way to view some of the most important players in the patent system and adds a new analytic perspective to the broad literature on these entities. The concept of shopping for good claims is not unique to patent law; it also occurs in, for example, personal injury litigation and consumer debt suits. Thus, the framework proposed herein is broadly applicable to many areas of law.

Can law improve the delivery of health care? The predominant view is that law serves as a barrier to reforming the health care delivery system. Health law scholars of all stripes blame regulations for impeding innovation, limiting competition, and exacerbating fragmentation in health care.

I argue that this view neglects an important—but overlooked—feature of health law: the dynamic relationship between laws that expand health insurance coverage and laws that regulate the delivery of health care. By expanding health insurance coverage and increasing the demand for health care, laws such as Medicare, Medicaid and the Affordable Care Act catalyze policymakers to experiment with reforms to delivery system regulations over time. I chart the evolution of three key areas of delivery system law, and find that insurance expansions have contributed to dramatic changes in each of these areas.

Recognizing health law’s “dynamism” sheds light on two debates that are central to health care reform. First, contrary to what some scholars have argued, it reveals that expanding health insurance coverage should be viewed as a catalyst for delivery system reform, rather than being in competition with it. Second, it strengthens the case for further expanding health insurance coverage. I argue that a dynamic regulatory system is better able to address problems of access, costs, and quality; to adapt to other changes in the underlying health care system; and to facilitate policy learning.

The rise of disinformation on social media has prompted governments around the world to enact legislation that may affect every person’s right to freedom of opinion and expression. This Note seeks to explore the rise of disinformation and the legal framework that applies and to highlight some of the recent proposals to combat disinformation on social media.