Abstract

http://ssrn.com/abstract=2389555
 


 



Pinwheel of Fortune


James Ming Chen


Michigan State University - College of Law

February 2, 2014

John Marshall Review of Intellectual Property Law, Vol. 13, 2014

Abstract:     
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.

Number of Pages in PDF File: 21

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Date posted: February 3, 2014 ; Last revised: July 2, 2014

Suggested Citation

Chen, James Ming, Pinwheel of Fortune (February 2, 2014). John Marshall Review of Intellectual Property Law, Vol. 13, 2014. Available at SSRN: http://ssrn.com/abstract=2389555 or http://dx.doi.org/10.2139/ssrn.2389555

Contact Information

James Ming Chen (Contact Author)
Michigan State University - College of Law ( email )
318 Law College Building
East Lansing, MI 48824-1300
United States
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