Gregory N. Mandel

The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality Conflict, and Climate Change

The conventional explanation for controversy over climate change emphasizes impediments to public understanding: Limited popular knowledge of science, the inability of ordinary citizens to assess technical information, and the resulting widespread use of unreliable cognitive heuristics to assess risk. A large survey of U.S. adults (N = 1540) found little support for this account. On the whole, the most scientifically literate and numerate subjects were slightly less likely, not more, to see climate change as a serious threat than the least scientifically literate and numerate ones. More importantly, greater scientific literacy and numeracy were associated with greater cultural polarization: Respondents predisposed by their values to dismiss climate change evidence became more dismissive, and those predisposed by their values to credit such evidence more concerned, as science literacy and numeracy increased. We suggest that this evidence reflects a conflict between two levels of rationality: The individual level, which is characterized by citizens’ effective use of their knowledge and reasoning capacities to form risk perceptions that express their cultural commitments; and the collective level, which is characterized by citizens’ failure to converge on the best available scientific evidence on how to promote their common welfare. Dispelling this, “tragedy of the risk-perception commons,” we argue, should be understood as the central aim of the science of science communication.

Regulating Emerging Technologies

A range of emerging technologies, including biotechnology, nanotechnology, and synthetic biology, are expected to transform society. Handling the development and regulation of these promising technologies is a daunting task as the risks presented will not be understood until the technologies are further developed. This paper proposes a new governance model that seeks manage the dynamic of emerging technology promise versus risk by moving the point of first governance earlier in a technologys development, but enabling the governance structure to evolve after formation. The model aims to turn some of the greatest challenges of managing emerging technologies - scientific uncertainty and the disruption of extant regulatory systems - on their head to create incentives for widespread stakeholder cooperation to produce more proactive, flexible governance.

Gaps, Inexperience, Inconsistencies, and Overlaps: Crisis in the Regulation of Genetically Modified Plants and Animals

The regulation of genetically modified products pursuant to statutes enacted decades prior to the advent of biotechnology has led to a system that is passive rather than proactive about risks, that has difficulty adapting to biotechnology advances, and that is highly fractured and inefficient - genetically modified plants and animals are governed by at least twelve different statutes and five different agencies or services. The deficiencies resulting from this piecemeal approach to regulation unnecessarily expose society and the environment to the downside risks of biotechnology and introduce numerous inefficiencies into the regulatory system. These risks and inefficiencies include gaps in regulation, duplicative and inconsistent regulation, unnecessary regulatory expenses, regulatory agencies acting outside of their areas of expertise, and unnecessary increases in the cost of and delay in the development and commercialization of new biotechnology products. These deficiencies also result in a further risk: the failure to properly regulate biotechnology has led to unnecessary scares, which in turn cause a public over-reaction against biotechnology products, preventing society from fully optimizing its potential benefits. With science and society poised to soar from first-generation biotechnology focused on crops genetically modified for agricultural benefits to next-generation developments including nutrient-enriched foods, transgenic animals, and pharmaceutical-producing plants, it is necessary to establish a comprehensive, efficient, scientifically rigorous regulatory system at this juncture in order to maximize social welfare. This article details the steps necessary to achieve this result through fixing the deficiencies in and risks created by the current regulatory structure. Ignoring many details for the moment, the solutions can be summarized in two categories. First, statutory and regulatory gaps that are identified must be filled with new legislation and regulation. Second, regulation of genetically modified products should be shifted from a haphazard model based on statutes not intended to cover biotechnology to a regulatory system based upon each agencys expertise in handling particular types of risks.

Patently Non-Obvious: Empirical Demonstration that the Hindsight Bias Renders Patent Decisions Irrational

This Article reports an experimental study that provides the first empirical demonstration of the hindsight bias in patent law. The results are dramatic along several fronts: (1) the hindsight bias distorts patent decisions far more than anticipated, and to a greater extent than other legal judgments; (2) jury instructions that explicitly identify and warn against the hindsight bias do not ameliorate its impact; (3) the admission of secondary consideration evidence does not cure the hindsight bias; (4) neither the Federal Circuits suggestion test nor the Supreme Courts Graham requirements appear to solve the hindsight problem; and (5) the hindsight problem pervades patent law to an extent not previously recognized - it biases decisions under the doctrine of equivalents, claim construction, the on-sale bar, and enablement.These findings run counter to the dominant patent analysis of the last decade and have significant implications for patent and innovation policy. The study results indicate that the non-obvious requirement actually often may be applied too stringently. Numerous critics of the current non-obvious requirement may need to reconsider the bases of their challenges and revisit their prescriptions for reform. Revising non-obvious doctrine or practice, for instance, will not provide the panacea that most assume. This Article concludes with recommendations for changes in patent doctrine and litigation to mitigate the impact of the hindsight bias.

Rotation periods for seven stars in the Trapezium cluster

The Trapezium cluster in the Orion Nebula has been monitored on 25 nights from November of 1990 to March of 1991, with a CCD attached to the Perkin telescope at Van Vleck Observatory. Photometry in the I band of more than 150 stars has been obtained, and 28 showed significant variation during our study. A periodogram analysis reveals that seven of these have significant peaks in their power spectra, which are interpreted as the rotation periods of the stars. Periods range from 6.2 to 14.3 days

When to Open Infrastructure Access

This Essay comments on and develops Professor Brett Frischmanns concept of infrastructure commons, a theory which suggests that a variety of public and social resources (including information, transportation, environmental, and intellectual property resources) should be managed through open access regimes. Infrastructure theory remains underdeveloped, as it does not identify under which circumstances public and social infrastructure should be managed as commons or how the commons should operate for such resources. Differentiating the developmental stage of an infrastructure resource-whether it is yet to be conceived, yet to be produced, or needs to be managed-can help to fill this gap. Infrastructure at different stages of development poses different challenges for optimizing social value, and the nature and strength of rationales supporting open access vary significantly across the different infrastructure stages. This Essay is based on a presentation at a panel on infrastructure commons at the Law & Society Annual Conference in Berlin, Germany.

Experimental investigations on the basis for intellectual property rights.

Lay people routinely misunderstand or do not obey laws protecting intellectual property (IP), leading to a variety of (largely unsuccessful) efforts by policymakers, IP owners, and researchers to change those beliefs and behaviors. The current work tests a new approach, inquiring whether lay peoples views about IP protection can be modified by arguments concerning the basis for IP rights. Across 2 experiments, 572 adults (recruited through Amazon Mechanical Turk) read 1 of 6 arguments about the basis for IP protection (incentives, natural rights, expressive rights, plagiarism, commons, or no argument). Participants then reported their general support for IP protection. Participants also reported their evaluations of 2 scenarios that involved infringement of IP rights, including cases in which there were mitigating experiences (e.g., the copier acknowledged the original source), and completed several demographic questions. Three primary findings emerged: (a) exposure to the importance of the public commons (and to a lesser extent, exposure to the argument that plagiarism is the basis of IP protection) led participants to become less supportive of IP protection than the incentives, natural rights, expressive rights, and control conditions; (b) people believed that infringement was more acceptable if the infringer acknowledged the original creator of the work; and (c) older adults and women were especially likely to see infringement as problematic. These findings illustrate several ways in which lay beliefs are at odds with legal doctrine, and suggest that peoples views about IP protection can be shaped in certain ways by learning the basis for IP rights. (PsycINFO Database Record

Intuitive intellectual property law: A nationally-representative test of the plagiarism fallacy

Studies with convenience samples have suggested that the lay public’s conception of intellectual property laws, including how the laws should regulate and why they should exist, are largely incommensurate with the actual intended purpose of intellectual property laws and their history in the United States. In this paper, we test whether these findings generalize to a more diverse and representative sample. The major findings from past work were replicated in the current study. When presented with several potential reasons for IP protection, the lay public endorsed plagiarism and felt that acknowledging the original source of a creative work should make copying that work permissible—viewpoints strongly divergent from lawmakers’ intent and the law itself. In addition, we replicate the finding that lay people know remarkably little about intellectual property laws more generally and report little experience as users or creators of creative works.

Leveraging the International Economy of Intellectual Property

Most international intellectual property debates ignore the fundamental question of how to optimize the global environment for innovation, focusing instead on whether a particular policy benefits or harms a particular country. The cost of this misplaced focus is significant as states fight bitterly over how to divide fixed benefits, rather than seeking to grow social welfare through greater innovation. This missed opportunity is not a surprise, however, given the difficulty of trying to identify which intellectual property regimes will support greater innovation, a task that has proven impossible to achieve directly.This Article introduces a new empirical methodology that leverages international trade data in an effort to identify indirectly which intellectual property regimes are more likely to provide greater incentives to innovate globally. A country’s trade balance in high-innovation goods tends to dictate the country’s preferences for intellectual property rights regimes. Countries that export more innovation than they consume tend to favor strong intellectual property rights regimes so as to reap the greatest rents from others, while countries that import more innovation than they produce favor weaker intellectual property laws so as to take advantage of innovation by others. Neither type of country will favor intellectual property regimes that maximize global incentives to innovate. Countries that happen to produce and consume relatively equivalent value from high-innovation goods, on the other hand, will tend to have self-interested incentives for an intellectual property system that supports the greatest innovation possible. The method developed here presents an original system to try to identify such countries, providing new information and insight into the international innovation economy and intellectual property law.

Technology Wars: Mending the Failure of Democratic Discourse

Controversies over the use and regulation of various technologies pervade public discourse and have serious implications for the public interest. Conflicts over the regulation of genetically modified food, nuclear power, and nanotechnology, among others, fuel some of the most socially and politically explosive debates of our time. These technology conflicts extract a substantial cost from society - they create costly inefficiencies, prevent society from optimally managing new technologies, consume vast resources, and retard technological growth.Existing scholarship does not explain or adequately address the teleology of conflict over technology. This Article examines the nature of legal and regulatory technology conflict, diagnoses the sources of that conflict, and proposes innovative solutions to the conflicts. This analysis integrates original empirical research and a multi-disciplinary body of scholarship from the fields of law, behavioral economics, psychology, and political science, to develop a descriptive and prescriptive framework for understanding and resolving legal and regulatory technology controversies.The proposed framework sheds light on the inefficiency, paralysis, and polarization produced by technology conflict, and on democratic and market failures that inhibit resolution of these conflicts. As a result, the framework reconceptualizes our understanding of technology controversies, revealing new ways to improve social welfare by resolving seemingly intractable legal and regulatory standoffs. These teachings have potentially far-reaching consequences for conflict resolution in non-technology areas as well.