Reproductive Originalism: Why the Fourteenth Amendment\u27s Original Meaning Protects the Right to Abortion

The conventional wisdom among conservative originalists is that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are abominable rulings unmoored from the text and history of the Constitution. In the eyes of conservative originalists, the Supreme Court created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. These so-called originalists are deeply misguided. As this Essay shows, the text and history of the Fourteenth Amendment, in fact, protect unenumerated fundamental rights, including rights to bodily integrity, to marry and have a family, and to reproductive liberty. The right to abortion flows logically from these fundamental rights that the Fourteenth Amendment was written to protect. The Supreme Court should recognize these Fourteenth Amendment first principles when it decides this Term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law banning abortions after fifteen weeks of pregnancy. This Essay makes two central claims. First, it shows that the original meaning of the Fourteenth Amendment broadly protects fundamental rights, including rights not specifically mentioned elsewhere in the four corners of the Constitution’s text. Against the backdrop of the horrors of slavery, the Fourteenth Amendment drew on the Declaration of Independence’s promise of inalienable rights and the Ninth Amendment’s affirmation of individual rights not specifically enumerated in the text to safeguard the protection of basic personal rights inherent in liberty. Accordingly, the fact that the Constitution does not explicitly list abortion as a protected right is irrelevant

Repairing Our System of Constitutional Accountability: Reflections on the 150th Anniversary of Section 1983

Section 1983 is a landmark statute that provides the foundation for holding state and local governments and their agents accountable when they violate constitutional rights. Unfortunately, rather than enforce the statute’s text and ensure the accountability that its drafters passed it to achieve, the Supreme Court has created four interlocking doctrines that squelch its promise of accountability: qualified immunity, absolute immunity, strict limits on local governmental liability, and the exclusion of states from Section 1983. This Article, written to mark the 150th anniversary of Section 1983, does a deep dive into the text and history of Section 1983 and recovers a critical part of the story of its enactment that is all too often ignored: Congress made a conscious choice not to provide any official immunities because it did not want to place state officials above the law. Indeed, Congress passed Section 1983 to ensure that governments and their agents could be held accountable in a court of law. By gutting Section 1983 through rank judicial legislation, the Supreme Court has let states and local governments and their agents violate our most cherished constitutional rights with impunity, and left those victimized by abuse of power without any remedy

The Impact of Uncertain Intellectual Property Rights on the Market For Ideas: Evidence From Patent Grant Delays

This paper considers the impact of the intellectual property (IP) system on the timing of cooperation/licensing by start-up technology entrepreneurs. If the market for technology licenses is efficient, the timing of licensing is independent of whether IP has already been granted. In contrast, the need to disclosure complementary (yet unprotected) knowledge, asymmetric information, or search costs may retard efficient technology transfer. In these cases, reductions in uncertainty surrounding the scope and extent of IP rights may facilitate trade in the market for ideas. We employ a dataset combining information about cooperative licensing and the timing of patent allowances (the administrative event when patent rights are clarified). While pre-allowance licensing does occur, the hazard rate for achieving a cooperative licensing agreement significantly increases after patent allowance. Moreover, the impact of the patent system depends on the strategic and institutional environment in which firms operate. Patent allowance seems to play a particularly important role for technologies with longer technology lifecycles or that lack alternative mechanisms such as copyright, reputation, or brokers. The findings suggest that imperfections in the market for ideas may be important, and that formal IP rights may facilitate gains from technological trade.

When Does Start-Up Innovation Spur the Gale of Creative Destruction?

This paper is motivated by the substantial differences in start-up commercialization strategies observed across different high-technology sectors. Specifically, we evaluate the conditions under which start-up innovators earn their returns on innovation through product market competition with more established firms (such as in many areas of the electronics industry) as opposed to cooperation with these incumbents (either through licensing, strategic alliances or outright acquisition as observed in the pharmaceutical industry). While the former strategy challenges incumbent market power, the latter strategy tends to reinforce current market structure. Though the benefits of cooperation include forestalling the costs of competition in the product market and avoiding duplicative investment in sunk assets, imperfections in the market for ideas' may lead to competitive behavior in the product market. Specifically, if the transaction costs of bargaining are high or incumbents are likely to expropriate ideas from start-up innovators, then product market competition is more likely. We test these ideas using a novel dataset of the commercialization strategies of over 100 start-up innovators. Our principal robust findings are that the probability of cooperation is increasing in the innovator's control over intellectual property rights, association with venture capitalists (which reduce their transactional bargaining costs), and in the relative cost of control of specialized complementary assets. Our conclusion is that the propensity for pro-competitive benefits from start-up innovators reflects an earlier market failure, in the market for ideas.'

The Impact of Uncertain Intellectual Property Rights on the Market for Ideas: Evidence from Patent Grant Delays

This paper considers the impact of the intellectual property (IP) system on the timing of cooperation/licensing by start-up technology entrepreneurs. If the market for technology licenses is efficient, the timing of licensing is independent of whether IP has already been granted. In contrast, the need to disclose complementary (yet unprotected) knowledge, asymmetric information or search costs may retard efficient technology transfer. In these cases, reductions in uncertainty surrounding the scope and extent of IP rights may facilitate trade in the market for ideas. We employ a data set combining information about cooperative licensing and the timing of patent allowances (the administrative event when patent rights are clarified). Although preallowance licensing does occur, the hazard rate for achieving a cooperative licensing agreement significantly increases after patent allowance. Moreover, the impact of the patent system depends on the strategic and institutional environment in which firms operate. Patent allowance plays a particularly important role for technologies with longer technology life cycles or that lack alternative appropriation mechanisms such as copyright, reputation, or brokers. The findings suggest that imperfections in the market for ideas may be important, and that formal IP rights may facilitate gains from technological trade

Incremental Cost Estimates for the Patient-Centered Medical Home

Based on data from thirty-five primary care practices, analyzes the costs associated with the medical home model, in which primary care practices also provide care coordination, patient education, and related services. Considers implications

Dynamic Commercialization Strategies for Disruptive Technologies: Evidence from the Speech Recognition Industry

When start-up innovation involves a potentially disruptive technology—initially lagging in the predominant performance metric, but with a potentially favorable trajectory of improvement—incumbents may be wary of engaging in cooperative commercialization with the start-up. While the prevailing theory of disruptive innovation suggests that this will lead to (exclusively) competitive commercialization and the eventual replacement of incumbents, we consider a dynamic strategy involving product market entry before switching to a cooperative commercialization strategy. Empirical evidence from the automated speech recognition industry from 1952 to 2010 confirms our main hypothesis.Wharton School. Mack Institute for Innovation ManagementSloan School of Management (Roberts E-Center Fund

Dynamic Commercialization Strategies for Disruptive Technologies: Evidence From the Speech Recognition Industry

When start-up innovation involves a potentially disruptive technology—initially lagging in the predominant performance metric, but with a potentially favorable trajectory of improvement—incumbents may be wary of engaging in cooperative commercialization with the start-up. While the prevailing theory of disruptive innovation suggests that this will lead to (exclusively) competitive commercialization and the eventual replacement of incumbents, we consider a dynamic strategy involving product market entry before switching to a cooperative commercialization strategy. Empirical evidence from the automated speech recognition industry from 1952 to 2010 confirms our main hypothesis

Modelling Trust Relationships in a Healthcare Network: Experiences with the TCD Framework

We report on the application of the Trust-Confidence-Distrust (TCD) framework of Gans et al. (2003) to the task of modeling trust relationships in a large metropolitan health service. We investigated the relationships between an acute stroke ward and a specialist stroke rehabilitation ward by examining the patient handover process that links each ward’s activities. The case study provided evidence that the model works in real-life settings. In addition, we gained valuable insights in the applicability of the framework in a formal organizational, rather than more loosely connected network setting