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We show that under suitable assumption on the number of states and the distribution of the population numbers of the states, bias of various methods of apportionment can be quantified. We also discuss the frequency of quota violations and occurrences of the Alabama Paradox. The results provide support for a proposal for apportioning the U.S. House of Representatives.

The Supreme Court is currently considering whether it will accept original jurisdiction over New Hampshire v. Massachusetts. At issue is the State of New Hampshire’s (and its amici’s) claim that Massachusetts’s insistence on applying its income tax to residents of New Hampshire, who once commuted to work in Massachusetts but now work for the same businesses remotely in New Hampshire because of the COVID-19 pandemic, violates the Due Process Clause and dormant Commerce Clause. The claim is simple and seductive: if these New Hampshire residents barely leave their own homes, much less their state, how can it accord with due process for Massachusetts to tax them? In this short colloquium essay, I make the following points about the merits of this case. (I think the case should be dismissed on procedural grounds, but believe the merits are important and will eventually be reached on a similar fact pattern.) 1. The plaintiffs are essentially arguing for physical presence as a predicate for individual income taxation. To the extent that the argument is that physical presence is currently required by the Due Process Clause or the dormant Commerce Clause, I argue that contention is wrong. 2. I also argue that a physical presence rule should not be created. This is a case where common sense intuitions about work and the creation of value can lead one astray. Here, what intuition misses is the importance of agglomeration economics. The residents of New Hampshire massed on the border with Massachusetts (and paying higher housing prices to do so) are not preparing for an invasion. Rather, they are rationally choosing to live in the Greater Boston area because of the professional and cultural amenities that the area offers and for which the state of Massachusetts can reasonably ask them to contribute. 3. The plaintiffs make a similar argument about apportionment, namely that the Massachusetts’s regulations fail fair apportionment. Again, as based on current law, this argument is incorrect (and should remain so). Apportionment is judged by a reasonableness standard and here what Massachusetts is doing satisfies that standard. It has long been acceptable for states that are the source of an employee’s income because that is where the employee works to consider itself the source of all of that income. All Massachusetts has done is argue that the usual source rule should apply during this temporary disruption. Similarly, all New York’s convenience of the employer rule argues is that the usual source rule of thumb should not be disturbed unless the employer is the driving force behind the employee working elsewhere. 4. There is a difference between what the Constitution permits and what would be best as a matter of policy. If, as seems likely, there will be more remote work in the future, then the traditional all-or-nothing rule of thumb as to the source of individual income should be reconsidered. In particular, I argue, it is appropriate for states to shift to apportioning the income of individuals just like they currently do for the income of businesses.

The Constitution requires that “direct taxes” be “apportioned”—that is, that the revenues collected from each State be in proportion to population. Based on this obscure provision, prior scholarship has debated whether unapportioned wealth tax or related accrual-income tax reforms should generally be held constitutional, unconstitutional, or whether specific proposals should be held constitutional and others unconstitutional. This Article takes a different approach. Recognizing the real uncertainty about how the Supreme Court might ultimately decide, this Article explains how Congress can draft a reform to navigate through that uncertainty. Specifically, this Article explains how Congress can draft a wealth tax or accrual-income tax reform that should survive constitutional scrutiny regardless of how the Supreme Court might ultimately rule on the disputed constitutional questions. To that end, this Article argues that the long line of cases on direct and indirect taxes, combined with the 16th Amendment, synthesize into what we label as the “Indirect Tax Canon.” This Article further argues that courts following that Canon should uphold properly constructed wealth tax or accrual-income tax reforms structured as indirect taxes—without requiring apportionment. Yet this Article then additionally explains how Congress can bolster such reform proposals by drafting fallback provisions to easily transform these reforms into apportioned taxes, fairly and practically, in the event of the Court ruling that apportionment is required. Any interstate inequities from this can be remedied through a fiscal equalization program that would rebate excess revenues to poorer states. As a result, with careful drafting, the constitutional risks for a wealth tax or related accrual-income tax reform should be minimal.

Replicating classic work by Balinski and Young (1982) we show the implications of choice of apportionment methods for the 2020 House of Representatives seat allocation.

The most common method for standard essential patent (SEP) valuation and to determine a fair, reasonable and non-discriminative (FRAND) royalty rate is based on comparable license agreements. This method is relatively simple to apply, but has several disadvantages. Firstly, license agreements are often not comparable on important points. Secondly, they are usually based on a selection by the submitting party, who has an interest to select only favorable license agreements for comparison. And thirdly, those selected agreements might not result from a fair negotiation, because of possible market power by either of the two sides. In this paper, we therefore suggest how the present value added (PVA) methodology can be used to calculate the FRAND value of specific SEP technologies, avoiding biases that are intrinsically linked to the comparable licensing approach. The PVA approach can also serve as valuation methodology for the whole standard in the context of the Top-Down approach. To illustrate the approach, we present a simple interperiodical valuation model. To derive a FRAND royalty rate, we then suggest how the PVA created can be apportioned between the SEP holders and the implementer. The second contribution of this paper is therefore the normative discussion of the apportionment of the PVA. Finally, we show how the PVA methodology can be practically applied by running a hypothetical example of a full FRAND royalty estimation. The German legal framework has been chosen, since it is the European jurisdiction where an increasingly large number of legal disputes related to SEPs are adjudicated.

Deciding how to allocate the seats of a house of representatives is one of the most fundamental problems in the political organization of societies, and has been widely studied over already two centuries. The idea of proportionality is at the core of most approaches to tackle this problem, and this notion is captured by the divisor methods, such as the Jefferson/D'Hondt method. In a seminal work, Balinski and Demange extended the single-dimensional idea of divisor methods to the setting in which the seat allocation is simultaneously determined by two dimensions, and proposed the so-called biproportional apportionment method. The method, currently used in several electoral systems, is however limited to two dimensions and the question of extending it is considered to be an important problem both theoretically and in practice. In this work we initiate the study of multidimensional proportional apportionment. We first formalize a notion of multidimensional proportionality that naturally extends that of Balinski and Demange. By means of analyzing an appropriate integer linear program we are able to prove that, in contrast to the two-dimensional case, the existence of multidimensional proportional apportionments is not guaranteed and deciding its existence is NP-complete. Interestingly, our main result asserts that it is possible to find approximate multidimensional proportional apportionments that deviate from the marginals by a small amount. The proof arises through the lens of discrepancy theory, mainly inspired by the celebrated Beck-Fiala Theorem. We finally evaluate our approach by using the data from the recent 2021 Chilean Constitutional Convention election.

It is well understood thateven small differences in population can have a disproportionate impact on representation in the U.S. House of Representatives after a decennial census because of the peculiarities of rounding rules that require integer allocations. While the COVID‐19 pandemic can be held responsible for accelerating the trend toward the increased use of mail‐in balloting, and it affected the ability of the census to collect in‐person information, here we call attention to an unanticipated effect of the pandemic on the electoral process that, as far as we are aware, has never previously been identified. By rerunning the apportionment numbers for all states under the assumption that deaths from COVID‐19 prior to the start of the Census had not occurred, we show that New York's congressional delegation would not have lost a seat. New York was the only state whose House seat allocation was affected by disproportionate COVID‐19 deaths.

We seek to aid those interested in redistricting and gerrymandering by providing a glossary that identifies and defines (a) key geographic concepts related to districting, (b) forms of gerrymandering, (c) tools/techniques used to implement gerrymandering, and (d) metrics proposed to measure gerrymandering.

This article explores the consequences of the extreme increase in remote work, due to the pandemic, on state taxation. Discussed in the article is state sourcing and apportioning of nonresident wage income, employer withholding tax obligations, and corporate tax nexus. The authors predict an increase in litigation as a result of states seeking to retain the ability to tax nonresident wages. For example, New York considers employees to be working in-state (and thus subject to taxation) even when they are not physically present in New York so long as they are working remotely for reasons of personal convenience. But, the authors argue, the pandemic should be an exception: if an employee’s New York office is closed they have no choice but to work remotely. Furthermore, Massachusetts has issued an emergency rule that continues to treat nonresident employees as though they continue to commute into Massachusetts, even though they currently work from home. This, the article urges, is constitutionally problematic. Some states have altered employer wage withholding obligations to ensure that remote employees are taxed based on where they commuted to prior to the pandemic: Massachusetts, Mississippi, and South Carolina are states that have enacted temporary trailing nexus policies. Illinois, Minnesota, and Maryland have indicated that employers are subject to wage withholding obligations if their employees are working remotely in those states. This article stresses that employers must know where their employees are working remotely from in order to comply with these obligations. Finally, it is uncertain how the increase in remote work will affect corporate tax nexus. While case law supports subjecting out-of-state corporations to taxation as a result of in-state remote employees, it is not clear how the pandemic, and the temporary nature of today’s remote work, will be treated by the law. While the District of Columbia, Indiana, North Dakota, and South Carolina have clarified that corporate tax nexus will not be imposed due to the current circumstances, many states have remained silent on the matter. As a result, taxpayers are left to speculate about their compliance obligations.

Many judges and scholars have read Section Two of the Fourteenth Amendment as evidence of the Constitution’s commitment to universal representation — the idea that representation should be afforded to everyone in the political community regardless of whether they happen to be eligible to vote. Typically, this analysis starts and stops with Section Two’s first clause, the Apportionment Clause, which provides that congressional seats are to be apportioned among the states on the basis of “the whole number of persons in each State.” Partly on this basis, the lead opinion in Evenwel v. Abbott rejected the argument that “One Person, One Vote” requires states to equalize the number of adult citizens when drawing legislative districts, affirming that states can draw districts with equal numbers of persons. But skeptics of the universal representation theory of the Fourteenth Amendment, most notably Justice Samuel Alito, have complained that this analysis is flawed because it ignores Section Two’s less-known and never-enforced second clause: the Penalty Clause. Under the Penalty Clause, states that deny or abridge the right to vote of otherwise qualified citizens are penalized with a reduction of their congressional representation. Any theory of representation from the Fourteenth Amendment, the skeptics argue, must grapple with all of Section Two. This Essay takes up that call and explains how the Penalty Clause is not only consistent with but reinforces the Fourteenth Amendment’s broader commitment to universal representation. Contrary to common misconceptions about the Penalty Clause, the Clause is structured so that the state as a whole loses representation in Congress, but no individual within the state is denied representation. In other words, the Penalty Clause does nothing to upend Section Two’s advancement of universal representation. If anything, the Penalty Clause actually reinforces Section Two’s commitment. By reducing a state’s representation proportionally, it contemplates the representational interests of nonvoters, a key feature of the universal representation theory. The Evenwel majority’s reading of Section Two is correct. Section Two counts and represents everyone — and the Penalty Clause does nothing to change that.

Investment treaties and investor-State arbitration have both been subject to sustained criticism and calls for reform in recent years. Critics have called, inter alia, for a ‘rebalancing’ of treaties to address perceived asymmetries between States and investors, and for a reconnection of investment law to other bodies of law. As reform discussions have matured, analysis of how to address these asymmetries and fragmentations in investment law have become increasingly nuanced. Contributing to this line of scholarship, Martin Jarrett‘s book tackles difficult questions associated with when an investor’s ‘faultworthy’ conduct should impact the analysis of a host State’s responsibility for internationally wrongful conduct under an investment treaty. Jarrett’s book introduces and examines three defences to investor-State arbitration claims, which are each based on an investor’s contribution to investment damage and/or an investor’s misconduct in connection with a protected investment. Jarrett’s analysis holds important implications for the apportionment of liability between States and investors for their contribution to the injury at issue in an investor-State arbitration claim.

ObjectiveThe Electoral College methods improperly represent voters, and previous elections reveal numerous counties where the popular vote in said counties are not the same as the popular vote in the state. We test a novel method to engender increased fairness in Presidential elections.MethodsThe Hill-Huntington method was applied to apportion electoral votes to counties based on each county’s recent population size. The winner-take-all method was employed for each county.ResultsAnalyzing the 2000 and 2008 elections reveals the consistency of county-apportionment with those election outcomes. Regarding the 2016 election, county-apportionment reveals the significance of the disparity between the popular vote and Electoral College results. The method provides insight into the reason such disparity exists. Across all three elections, voter representation increased under county-apportionment.ConclusionCounty-apportionment increases voter representation and can be accomplished absent Constitutional amendment by reforming electoral methods at the state level.

Background: Breast cancer is the second leading cause of cancer death in women in sub-Saharan Africa, yet there are few large-scale survival studies with rich clinical and epidemiologic data and few losses to follow-up to inform intervention strategies needed to avert premature deaths. Methods: In the hospital-based African Breast Cancer – Disparities in Outcomes (ABC-DO) cohort, characterized by rich sociodemographic, clinical and treatment data, 2214 women newly diagnosed with breast cancer across five Sub-Saharan African countries were prospectively followed using a trimonthly mobile phone contact protocol. Flexible proportional mortality models were used to estimate observed survival, hazard ratios and predict survival under scenarios of modifying risk factors. Findings: Among 2156 women followed up to three years, 879 (41%) died, 1118 (52%) were alive and 159 (7%) were censored early. Three-year survival was 50% overall, but varied between races in Namibia (90% white, 69% mixed-race and 56% in black women) and South Africa (76% mixed-race, 59% black) and between countries: 44 to 47% in Uganda and Zambia and 36% in Nigeria. Ten percent of all women died within 6 months of diagnosis, but three-year survival remained low (58%) conditional on surviving to this time-point. Among survival determinants, improvements in early diagnosis and treatment were predicted to result in the largest survival gains of up to a combined 22% absolute increase, compared to the contributions of social inequalities (up to 5%), non-receptor positive tumours (up to 4%) and young age or HIV (

Misuse of science in the apportionment of the Colorado River’s water in the 20th century led to an overallocation problem that must be addressed. Rules based on overestimation of the available water supply have allowed overuse in the Lower Colorado River Basin and left uncertainty about the obligation of various basin water users to contribute water toward meeting U.S. treaty obligations to Mexico. With a number of key water management agreements expiring in 2026, basin managers have an opportunity to correct the overallocation problems with negotiated agreements that reflect the reality of the river’s hydrology and reduce risks associated with winner-take-all litigation.

This paper presents an extensive theoretical and empirical analysis of the choice of schedule buffers by airlines. With airline delays a continuing problem around the world, such an under-taking is valuable, and its lessons extend to other passenger transportation sectors. One useful lesson from the theoretical analysis of a two-flight model is that the mitigation of delay propagation is done entirely by the ground buffer and the second flight's buffer. The first flight's buffer plays no role because the ground buffer is a perfect, while nondistorting, substitute. In addition, the apportionment of mitigation responsibility between the ground buffer and the flight buffer of flight 2 is shown to depend on the relationship between the costs of ground-and flight-buffer time. The empirical results show the connection between buffer magnitudes and a host of explanatory variables, including the variability of flight times, which simulations of the model identify as an important determining factor.

In the 2018 Supreme Court case, Texas v. New Mexico, Texas claimed that New Mexico breached its obligations under the Rio Grande Compact of 1938 by allowing groundwater pumping in New Mexico south of Elephant Butte Reservoir. The Rio Grande Compact is one of many interstate water compacts in the western United States. The Compact requires Colorado and New Mexico to pay river water to the respective downstream states based on 1929 river conditions. The Supreme Court jurisprudence over interstate water disputes has wavered between concepts of equity (through the Court’s power of equitable apportionment) and contract law, which makes it difficult to predict how the Court will eventually hold in the Texas–New Mexico dispute. Regardless of how the Court holds, the underlying problem of unworkable provisions of the Rio Grande Compact will continue to present problems. Interstate water compacts have a common flaw of failing to consider changing factors that affect water availability such as decreased precipitation and snowcap runoff as well as increased temperatures, evaporation and population growth, which all result in lower river flows. The Rio Grande Compact must be amended and restructured to provide for considerations of climatic factors and changes that affect river flows and water availability. The Rio Grande Compact should borrow some concepts from the Utton Transboundary Resource Center’s Model Interstate Water Compact, but the Model Compact fails to address the important climatic factors. Without the consideration of these factors, the sustainability of interstate water resources will diminish entirely. The Rio Grande Compact and its Commission must be structured to consider these climatic factors and provide for the best interest of the Rio Grande itself as a vital and diminishing natural resource.

We argue that in adjudicating SEP royalty rates, courts should do what they do in pricing other assets or the flows of income they produce: rely on information from the market about the value of comparable assets or their rental rates. The comparables method is based on price theory, which explains where value comes from and how it is distributed among factors of production, including intellectual property. Courts should not employ the “bottom up” or “top down” techniques of royalty apportionment. Both are based on the theory of patent holdup and royalty stacking, which assumes that any observed royalty is the result of “excessive royalties” wrought by the additional monopoly power conferred by standardization. This theory has been shown to be logically inconsistent and logically incomplete, and its predictions have been rejected by systematic empirical tests. As a practical matter, the bottom up technique cannot actually be operationalized. Top down techniques can be operationalized, but employing them requires a court to reject the implications of price theory.

Interstate rivers are subject to the doctrine of equitable apportionment, whereby the Supreme Court seeks to ensure that all states that share such rivers get a fair portion of their benefits. The Court has rarely issued an equitable apportionment decree, however, and there is little law on whether the doctrine protects river flows for environmental purposes. The ongoing Florida v. Georgia litigation in the Supreme Court raises this issue, as Florida seeks to limit consumptive uses by upstream Georgia to preserve flows in the Apalachicola River, which provide both economic and environmental benefits. This article summarizes both the equitable apportionment doctrine and the concept of environmental flows, then considers prior Supreme Court cases dealing with environmental issues on interstate rivers. It then examines Florida v. Georgia, including the Court’s 2018 decision where it narrowly allowed the litigation to continue. A key issue in that decision was the role of the Army Corps of Engineers, which operates several federal dams in the river basin at issue in the case. This article examines the views of the Court on the role of the Corps and its dam operations, and contends that the Court focused too narrowly on the agency’s existing plan while overlooking the broader legal and policy context. It concludes with some brief thoughts on the future of the Florida v. Georgia litigation and environmental flows.

In using approval voting to elect multiple winners to a committee or council, it is desirable that excess votes — approvals beyond those that a candidate needs to win a seat — not be wasted. The excess method does this by sequentially allocating excess votes to a voter’s as-yet-unelected approved candidates, based on the Jefferson method of apportionment. It is monotonic — approving of a candidate never hurts and may help him or her get elected — computationally easy, and less manipulable than related methods. In parliamentary systems with party lists, the excess method is equivalent to the Jefferson method and thus ensures the approximate proportional representation of political parties. As a method for achieving proportional representation (PR) on a committee or council, we compare it to other PR methods proposed by Hare, Andrae, and Droop for preferential voting systems, and by Phragmen for approval voting. Because voters can vote for multiple candidates or parties, the excess method is likely to abet coalitions that cross ideological and party lines and to foster greater consensus in voting bodies.

A large and fruitful literature has focused on the impact of colonial legacies on long-term development. Yet the mechanisms through which these legacies get transmitted over time remain ambiguous. This paper analyzes the choice and effects of legislative representation as one such mechanism, driven by elites interested in maximizing jointly economic prospects and political influence over time. We focus on malapportionment in the legislatures of the original thirteen British North-American colonies. Their joint independence created a unique juncture in which postcolonial elites simultaneously chose the legislative and electoral institutions under which they would operate. We show that the initial choice of apportionment in the state legislatures is largely a function of economic geography, that such a choice generated persistent differences in representation patterns within states (political inequality), and that the latter shaped public goods provision in the long run.

This brief addresses the correct measure of lost profit damages after a finding of patent infringement. An unbroken line of Supreme Court precedent holds that apportionment analysis is required in all damages calculations. See, e.g., Yale Lock Mfg. Co. v. Sargent, 117 U.S. 536, 552 (1886). Though the Federal Circuit facially acknowledges the force of this precedent, see, e.g., Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275, 1287 (Fed. Cir. 2017), both the panel and the Federal Circuit en banc fail to apply it to the instant case. The panel decision inappropriately conflates apportionment analysis with the causal analysis described in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1156 (6th Cir. 1978), and the Federal Circuit en banc denial of rehearingincorrectly applies the entire market value rule, see Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1550 (Fed. Cir. 1995), to carefully elide the Court’s apportionment requirement and avoid repeating the panel’s error. Furthermore, the precedent set by the instant case is bad patent policy and discourages innovation in the high-tech industry. Certiorari should be granted to restore apportionment’s proper place in lost profits damages calculations.

In Evenwel v Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of ``one person- one vote'' (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior was known. That belief was mistaken. In this note I report on the Town of Groton, Connecticut which uses registered voting data to apportion seats in its Representative Town Meeting, and has done so since its incorporation in 1957. The resulting apportionment arguably meets the requirements of OPOV as applied to registered voting data, but badly fails if total population is employed. Thus, it would make a good test case to resolve some of the open questions in Evenwel.

This paper relates civil joint and several liability of members of a cartel, contribution claims, liability allocation, as well as the anatomy and effects of settlements with less than all parties. Because the substantive rules of Directive 2014/104/EU (the Directive) do not apply to damages that occurred prior to its implementation, the pre-Directive legal framework will continue to be relevant for years. This work therefore analyses both the old and the new sets of rules and how the changing regimes influence incentives. Under pre-Directive law, victims of competition law infringements can claim their entire damages from any of the cartelists. Under some pre-Directive national laws, cartelists sued by the claimant might not be able to take effective recourse against members of the cartel that the claimant did not sue. The effect of a partial settlement in terms of claim reduction and liability of the settling cartelist varies depending on the jurisdictions involved and the wording chosen. Under the Directive, cartelists are also jointly liable for the entire damage caused; however, there are exceptions for the immunity recipient and small and medium enterprises that modify this basic rule. Cartelists do have effective recourse against each other. The effect of a partial settlement is uniform throughout the EU: It always reduces the plaintiff’s claim by the settling cartelist’s share of the harm, and the remaining cartelists can no longer bring contribution claims against the settling cartelist. This facilitates the conclusion of incentive-compatible settlement agreements to cooperate in pursuing the remaining cartelists for damages. This work discusses a multitude of criteria for liability apportionment amongst cartelists, leading into an assessment of two proposals that have been advanced to make the liability apportionment amongst cartelists more predictable: (A) using the ratio of the cartelists’ relative sales and (B) calculating Shapley values of the cartelists’ contributions to the cartel’s effects. I find that relative sales are a suitable starting heuristic for most cases, but there are constellations in which this method leads to absurd results. Shapley values theoretically provide the perfect metric to measure relative responsibility for the harm but require input that is usually exceedingly difficult to obtain. The final part briefly contrasts these results to the situation under US federal law and finds that the combination of no contribution rights amongst cartelists, the trebling of damages and pro tanto claim reduction create stronger incentives to settle than in Europe.

Since 2018, the UK government, the European Commission, and several European national governments have advanced bold proposals for a new “digital services tax” (DST), with the aim of capturing profits earned by multinationals that reflect value contributed by users of digital platforms. I offer a novel set of arguments in support of the DST, which appeal to both efficiency and fairness considerations. In particular, the DST would allow location-specific rent (LSR) earned by digital platforms to be captured by the countries in which such rent arises. I argue that platform LSR is often hidden from view under the traditional international income taxation paradigm, due to that paradigm’s focus on physical presence, source of payment, and profit allocation among related entities. Moreover, that paradigm ignores a basic intuition about how rent accruing to mobile intangible assets should be assigned: when the deployment of a technology is non-rival with respect to multiple locations, it is both efficient and fair to assign any rent earned from the technology’s deployment with respect to a given location to that location. The principle of taxing platform rent where it arises is both distinct from and superior to the principle of allocating profit to “destination” (i.e. buyer or consumer) jurisdictions. Platform rent can arise in origin, destination, or residence jurisdictions, and the location of “user value creation” is not reducible to consumer location. Moreover, claims to taxing rights based on the location of rent inherently appeals to equity considerations, whereas destination-based apportionment generally ignores equity issues in allocation. I discuss misunderstandings of DST proposals, and reject certain common assertions about the DST’s likely effects, including that DST costs will simply be passed on domestic consumers or producers, and that a revenue-based tax is inherently flawed. Finally, I suggest that the potential of the DST to reduce excessive entry in platform markets also deserves further consideration.

In the 1960’s, the Supreme Court famously imposed the one person, one vote requirement on federal, state and local legislatures. The doctrine triggered a reapportionment revolution that rapidly resolved the problem of malapportioned districts. Within just a few years, legislatures across the nation were reapportioned to equalize the population between districts. Sadly, however, the national commitment to equal-population districts has led directly to the current crisis of political gerrymandering. The boundaries of equal-population districts must be redrawn every ten years to maintain population equality. Even with rigid adherence to population requirements, district boundaries are easily manipulated to secure incumbent seats and advance partisan interests. Redistricting is rightly condemned for allowing politicians to pick their voters, rather than the other way around. At the local level, however, one group of municipalities avoids redistricting by incorporating weighted voting into their apportionment plans. While scholars have studied other variations in municipal apportionment, they have failed to examine the nuances of weighted voting apportionment plans. This Article begins to fill that void, demonstrating that weighted voting dramatically increases the options for legislative apportionment and arguing that weighted voting could serve as a model for the next reapportionment revolution. As this Article explains, weighted voting eliminates the need for strict population equality. It can be used alone to preserve representation for whole political units, such as towns on the county board. It can also be incorporated into multimember districts, equal-population districts, or both, to equalize the mathematic weight of each vote across unequal population districts. Weighted voting thus enables the formation of districts that reflect priorities other than population equality, including districts that correspond to political subdivisions and prevent gerrymandering.

To ameliorate ideological or partisan cleavages in councils and legislatures, we propose modifications of approval voting in order to elect multiple winners, who may be either individuals or candidates of a political party. We focus on two divisor methods of apportionment, first proposed by Jefferson and Webster, that fall within a continuum of apportionment methods. Our applications of them depreciate the approval votes of voters who have had one or more approved candidates elected and give approximately proportional representation to political parties. We compare a simple sequential rule for allocating approval votes with a computationally more complex simultaneous (nonsequential) rule that, nonetheless, is feasible for many elections. We find that our Webster apportionments tend to be more representative than ours based on Jefferson—by giving more voters at least one representative of whom they approve. But our Jefferson apportionments, with equally spaced vote thresholds that duplicate those of cumulative voting in two-party elections, are more even-handed. By enabling voters to express support for more than one candidate or party, these apportionment methods will tend to encourage coalitions across party or factional lines, thereby diminishing gridlock and promoting consensus in voting bodies.

We now have a professedly unified approach to assigning tort responsibility that treats simple and more complex cases in fundamentally different ways without acknowledging it. The strictly causal component of so-called “apportionment of fault” (the US term) provides no basis for disproportionate assignments of liability but is treated as if it does. Other considerations must actually account for unequal liability assignments in multi-actor cases. But these other elements are often role-based, reflecting whether and how defendants joined in a complex but single pattern of events that were collectively the sufficient cause of an injury.

The Constitution requires a decennial “Enumeration” of the U.S. population, following which seats in the House of Representatives are apportioned among the states “according to their respective Numbers.” Congress has enacted a default provision that makes this reapportionment essentially automatic. It was not always so. The post-2020 round of reapportionment will mark the centennial of the most striking episode in the history of American reapportionment: Congress’s failure, for an entire decade, to reallocate seats in light of the census results. The reasons for this failure, and the consequences of Congress’s ultimate response, continue to shape our politics. Historians and political scientists have written excellent studies of apportionment that address the nonapportionment post-1920. But none of these studies approaches the question from the perspective of legal doctrine. This essay aims to fill that space. It begins by describing the constitutional structure of apportionment, the questions the Constitution left open, and how those questions were resolved prior to 1920. It then turns to what happened in the 1920s and why. Finally, it explores the judicial response to the 1929 solution and describes how that response set the stage for the Reapportionment Revolution of the 1960s, which imposed a constitutional requirement of equipopulous congressional districts. Along the way, it recovers the lost history of earlier, congressional attempts to require population equality. The story is interesting in its own right, but I also suggest ways in which the upcoming redistricting will occur in a context with striking similarities to the context a century before.

Inter-country equity in the taxation of IP is a contentious issue. With its BEPS initiative, the OECD aims at taxing in accordance with value creation even though there are admitted difficulties in determining the actual place of value creation. The European Commission promotes the introduction of unitary taxation. The proposal’s drawback is that it lacks incentive compatibility in information exchange. Furthermore, it stipulates a cost-dependent apportionment of the common consolidated corporate tax base that incentivizes locating R&D in low-tax countries. Against this background, this paper makes a case for an internationally regulated split of the profit earned with imported IP.

As an economist, I find the current state of the law regarding damages for patent infringement – most particularly that relating to apportionment – frustrating at best and woefully incomplete at worst. Namely, damages case law for utility patent infringement provides two very different, but insufficient, guidance frameworks for calculating damages: the entire market value rule (EMVR) versus the smallest salable patent practicing unit (SSPPU) principle. The modern pair of EMVR and SSPPU options is far narrower than the approaches afforded by the original 1884 Supreme Court ruling establishing apportionment for damages, Garretson. In this paper, I present the economic case for expanding the allowable damages frameworks beyond EMVR or SSPPU, to fill in the gap in reasonable damages approaches created by an EMVR and SSPPU dichotomy.

Given our adversarial system, it is not surprising that plaintiffs advance creative damages theories that would help them maximize their recoveries. In patent law, one recurring tactic is for patentees to seek remedies based on the entire infringing product instead of just the specific feature covered by the patent. This distinction can significantly inflate remedies because modern multicomponent products contain thousands, sometimes hundreds of thousands of different features. Thus, entire products are orders of magnitude larger, more complex and more valuable than individual features. In recent years, the Supreme Court has sensibly rejected attempts to base patent remedies on entire products in the context of permanent injunctions and design patents. Nonetheless, the Federal Circuit continues to allow patentees to recover all the lost profits associated with an entire infringing product even when the patent at issue only covers one aspect of a multicomponent product. Just this past spring, in Mentor Graphics v. Eve-USA, the Federal Circuit affirmed a $36,417,661 award giving the patentee all the lost profits caused by the sales of the defendant’s infringing semiconductor emulator systems even though the patent covered only one feature of the defendant’s whole product. The decision explicitly rejected attempts to apportion profits between those attributable to the patented feature and other significant factors. This Article argues that the failure to consider apportionment is wrong on both the law and policy. From a doctrinal perspective, the Federal Circuit has misinterpreted Supreme Court precedent, dating back to the nineteenth century, to arrive at an overly simplistic “but for” test to assess damages. From a policy perspective awarding lost profits based on the entire infringing product – rather than just the feature – compensates the patentee for value she did not create and deters innovation in technologies that operate with or build upon other technology (“complementary technology”). Accordingly, this Article argues that it is time to realign lost profits doctrine to make it consistent with other types of patent remedies. Patentees should only be compensated based on the value of the patent they hold. That means focusing the remedy on the infringing feature and not the infringing product.

A river is more than water flowing downhill. It follows that equitable apportionment doctrine is about more than just how much water must flow downhill across a state line. While that quantum is often the end product of an interstate river equitable apportionment decree, the underlying question the doctrine must answer to designate such a quantum is, “What is being allocated, and on what basis?” The purpose of this amicus brief is to present the case for using principles from the scientific discipline of “ecosystem services” to help answer that question, specifically in this proceeding but also more generally for the doctrine. Ecosystem services are the benefits humans receive from natural resources in the form of goods, such as water, fish, and timber, and of services, such as groundwater recharge, flood mitigation, and salinity regulation, many of which are public or quasi-public goods and thus not easily accounted for in markets. It should come as no surprise that there are ecosystem services — that natural resources like rivers are not only ecologically important but also economically valuable to human communities. Nevertheless, a discipline centered on the study of ecosystem services did not emerge robustly until the mid-1990s, when ecologists, economists, geographers, and researchers from other traditionally siloed fields began coming together to focus on the identification and quantification of ecosystem services. The composition, distribution, and human consumption of ecosystem services are among the attributes that make a river more than water flowing downhill. Water extracted from a river in its physical form is not the only ecosystem service humans consume from a river. They also consume flood mitigation services, estuarine salinity regulation services, habitat maintenance services for commercial fisheries, and a suite of other economically valuable benefits made possible in large part by the water flowing in its physical form down the river. The fact that some of these services seem “ecological” and are not easily monetized in commercial markets does not make them any less economically valuable when humans consume them. It follows that equitable apportionment doctrine ought to take into account all of the ecosystem services humans consume from a river and allocate the water flowing downhill so as to provide an equitable division of those services between the states. Indeed, I argue in this brief that the Court’s equitable apportionment doctrine already incorporates all of the key principles behind the concept of ecosystem services, though not in the language and metrics used in ecosystem services science. The language of equitable apportionment doctrine has lagged behind the science of ecosystem services for the simple reason that the Court has not had a proceeding like this one since the ecosystem services discipline emerged to synthesize and galvanize scientific research. But the spirit of the ecosystem services concept has been embedded in equitable apportionment doctrine for decades. Its spirit has taken material form in other legal domains from federal and state statutes to agency regulations and policies to judicial common law decisions. This original jurisdiction proceeding presents the opportunity for the ecosystem services concept to become explicit and inform decisions in yet another legal domain — the Court’s doctrine of equitable apportionment. Part I of this brief provides the Court background on the discipline of ecosystem services. Part II traces developments in law and policy integrating ecosystem services principles, including a recent White House directive to federal agencies, to demonstrate that it has gained traction in legal domains related to equitable apportionment. Part III argues that it is fully consistent with the Court’s equitable apportionment doctrine to incorporate ecosystem services principles to help resolve the apportionment decision. Finally, Part IV suggests ways in which doing so will help clarify resolution of the equitable apportionment issues presented in this proceeding regarding the Apalachicola-Chattahoochee-Flint River Basin (“ACF”). Indeed, there has perhaps been no equitable apportionment case in the Court’s history that more starkly and imperatively makes the case for using principles of ecosystem services to guide the apportionment decision.

We study the design of voting rules for committees representing heterogeneous groups (countries, states, districts) when cooperation among groups is voluntary. While efficiency recommends weighting groups proportionally to their stakes, we show that accounting for participation constraints entails overweighting some groups, those for which the incentive to cooperate is the lowest. When collective decisions are not enforceable, cooperation induces more stringent constraints that may require granting veto power to certain groups. In the benchmark case where groups differ only in their population size (i.e, the apportionment problem), the model provides a rationale for setting a minimum representation for smaller groups.

The Copyright Act provides for disgorgement of an infringer's profits attributable to infringement to the extent such profits are not taken into account in an award of damages to the plaintiff. Courts have long struggled with how to apportion profits so that only those attributable to infringement are disgorged. This article uses litigation between Oracle Inc. and Google Inc. to argue that parties should be given the opportunity to prove the existence or absence of a non-infringing alternative as a means of measuring profits subject to disgorgement. Contrary to the rulings of some courts, the use of NIAs is proper and indeed, depending on the facts, superior to alternative measures of disgorgement.

Under pre-2016 Federal Circuit case law interpreting 35 U.S.C. §289, enforcement of design patents appeared potentially quite lucrative. A primary draw was the remedy of an infringer’s total profits on its sales of an entire product, even though only some but not all design features of the product infringed. This prospect held especially true for multicomponent products (e.g., a kitchen oven as compared to a dinner plate). However, the Supreme Court in December 2016 announced that the remedy of recovering total profits computed on sales of an entire multicomponent product having only some infringing design features will not always be available. For the reasons examined herein, the Court held in Samsung Elecs. Co., Ltd. v. Apple, Inc. that the “article of manufacture” referred to in §289 refers to “both a product sold to a consumer and a component of that product.” In the view of this author, the Court’s reasoning is fundamentally flawed. This brief essay charts the progression of the relevant case law and legislative history.

In an indirect voting system, a “majority inversion” occurs if a majority decision of locally elected delegates differs from that of the entire society. In the context of an apportionment problem, we point out a close relationship between reducing the probability of majority inversion and utilitarian optimality under equal treatment of both individuals and alternatives. We also relate the minimum probability of majority inversion attainable by apportionment to aggregate statistical variability of absolute margins between alternatives.

Standard-setting organizations (SSOs) usually require that their members clarify whether they are willing to provide access to their technology essential to a standard under development on fair, reasonable, and nondiscriminatory (FRAND) terms and conditions — or, in American parlance, reasonable and nondiscriminatory (RAND) terms and conditions. After the patent holder has agreed to license its standard-essential patents (SEPs) on FRAND terms, a licensor and a licensee negotiate the exact licensing terms for the use of the SEP portfolio. In the few cases in which parties cannot agree on the exact terms, they might ask a court or an arbitration tribunal to determine a FRAND royalty. The decision of the U.S. Court of Appeals for the Federal Circuit in Ericsson, Inc. v. D-Link Systems, Inc. identifies important economic principles for determining a FRAND royalty for the use of SEPs. Ericsson is the owner of several patents essential to the 802.11(n) standard — the standard promulgated by the Institute of Electrical and Electronics Engineers (IEEE) that is commonly known as Wi Fi — and committed to license those patents on RAND terms. When negotiations between Ericsson and several manufacturers of multicomponent devices that incorporated the Wi-Fi standard failed to result in a license, Ericsson sued in the U.S. District Court for the Eastern District of Texas and demanded a jury trial to determine the RAND royalty that the manufacturers should pay to use Ericsson’s SEPs. Relying on evidence from comparable licenses — that is, licenses that Ericsson had signed with third parties similarly situated to the defendants to use Ericsson’s patents essential to the Wi Fi standard — the jury awarded damages of roughly $10 million to Ericsson. In reviewing the case on appeal, the Federal Circuit confirmed that royalties specified in comparable licenses provide accurate and reliable evidence of the value of a patented technology for calculating a FRAND royalty. The Federal Circuit rejected the defendants’ argument that a chipset (rather than the mobile device) should represent the royalty base to calculate a FRAND royalty. (In simple terms, one typically calculates total damages by multiplying a royalty rate by a royalty base). The Federal Circuit also reiterated the fundamental principle that a party should support allegations about abstract conjectures, such as patent holdup and royalty stacking, with relevant evidence. Unsupported allegations about the SEP holder’s supposedly opportunistic licensing practices should not influence the determination of a FRAND royalty. Finally, the Federal Circuit said that a FRAND royalty should not include the value that a technology acquires by virtue of its inclusion in a standard. Although the Federal Circuit was correct in reiterating that a FRAND royalty, like any other royalty for the use of a patented technology, should compensate the SEP holder for the incremental value of its patented technology, the Federal Circuit’s decision should not be interpreted as excluding any of the standard’s value from a FRAND royalty. To the contrary, when a patented technology creates part of the standard’s value, only a FRAND royalty that includes part of that value will adequately compensate the SEP holder for its contribution.

We examine which tax allocation system leads to more severe distortions with respect to locational investment decisions. We consider separate accounting (SA) and formula apportionment (FA). The effects of both systems have been hotly debated in Europe in the past years. The reason is that the EU Member States are striving to implement a common European tax system that would lead to a switch from SA to FA. While existing studies focus primarily on the impact of taxes on locational decisions under either SA or FA, the main innovation of this paper is that it compares both systems with regard to the level of distortions they induce. We compare the optimal pre-tax investment decision with the optimal after-tax investment decision and infer from the difference in the allocation of investment funds which tax allocation system causes more severe distortions. We assume that the multinational group (MNG) has comprehensive book income shifting opportunities under SA. We find that the investment incentives under SA are opposed to those under FA for a profitable investment project. Whereas under SA as much as possible should be invested in a high-tax country, under FA as much as possible should be invested in a low-tax country. The distortions of locational investment decisions tend to be more severe under SA than under FA if a greater share of investment funds is to be invested in a low-tax country from a pre-tax perspective and the investment is profitable. Vice versa, locational decisions may be more distorted under FA if the optimal pre-tax investment decision requires investing a major share of funds in the high-tax country. In contrast to the often stated insensitivity of FA towards income shifting, we find the introduction of a tax allocation system based on FA in Europe could lead to a severe shift of economic substance to low-tax countries. The results of this paper are of particular interest for European policy makers and MNGs as our findings may induce European MNGs to reassess their recent locational investment decisions in the face of a potential future change in the applied tax allocation system. (authors' abstract)

In his famous Economic Interpretation, Charles Beard inappropriately imposed a progressive critique of politics and the Supreme Court of his own times upon the adoption of the Constitution. First, Beard argued that the Constitution in apportionment of tax tried to prevent an assault on wealth, whereas the founders were trying to reach wealth by tax under their apportionment formula. Secondly, the Constitution is predominantly a debtor document to restore the ability to borrow and not a suppression of debtors. Federalist 10, finally, is not anti-democratic, but is a proof that the national government would better protect individual rights than the states had, within the ideals of the Revolution.

Multiple causation is one of the most intricate issues in contemporary tort law. Sharing a loss suffered by a victim among multiple tortfeasors is indeed difficult and Courts do not always follow clear and consistent principles. Here, we argue that the axiomatic approach provided by the theory of cooperative games can be used to clarify that issue. We have considered the question from a purely game theoretic point of view in Dehez and Ferey (2013). Here we propose to analyze it in a legal perspective. We consider in particular the difficult case of successive causation to which we associate a general class of games called "sequential liability games". We show that our model rationalizes the two-step procedure proposed by the Restatement Third of Torts, apportionment by causation and apportionment by responsibility. More precisely, we show that the weighted Shapley value associated to a sequential liability game is the legal counterpart of this two-step procedure.

To bring apportionment closer to quotas or the apportionment quotient closer to the population quotient, instead of using “distance,” we introduce f-divergence for utilitarianism and Bregman divergence for suitable optimization. Even in our relaxed condition, we find that we must use alpha-divergence for optimization and show that the minimization of alpha-divergence induces the same divisor methods that correspond to the Kolm-Atkinson social welfare function, which is bounded by constant relative risk aversion.

The draft for a CCCTB Directive in the EU includes the suggestion for an apportionment formula which allocates taxable profits to group member corporations and to the respective Member States. The draft directive delegates the right to define one apportionment factor, the term ‘Employee’ to the Member States, which can choose a narrow or a broad definition, the latter including also atypical employment schemes. Using a game-theoretic approach we show that defining ‘Employee’ broadly so as to maximize the Member State’s share in the apportionment factor is only optimal when tax rate differences and different sizes of atypical employment schemes are disregarded. If such differentials and the multinational corporation’s reactions to different domestic definitions are included a narrow definition of ‘Employee’ yields the highest individual pay-offs to the countries involved. Our paper differs from previous research on the economic effects of the CCCTB apportionment formula as it is the first analysing the employment factor and its distortive effects. We discuss possible tax minimizing strategies for multinationals by shifting employment and develop a model to quantify these potential relocations. The results of our paper may be relevant for the European Commission and the Council, when debating the details of formula apportionment. Furthermore we show how Member States could use the ‘Employee’ definition to both minimize factor emigration and maximize factor immigration, if the factor definitions remain unchanged.

I propose apportioning the United States House of Representatives so as to equalize, to the extent possible, the voting power of the individual voter. Surprisingly such an apportionment falls squarely within the traditional apportionment paradigm and is, in a very precise sense, midway between the Hill method and the Webster method of apportionment.

There is considerable controversy about the relative merits of the apportionment rule (which results in per-unit royalties) and the entire market value rule (which results in ad-valorem royalties) as ways to determine the scope of the royalty base in licensing negotiations and disputes. This paper analyzes the welfare implication of the two rules abstracting from implementation and practicability considerations. We show that ad-valorem royalties tend to lead to lower prices, particularly in the context of successive monopolies. They benefit upstream producers but not necessarily hurt downstream producers. When we endogenize the investment decisions, we show that ad-valorem royalties improve social welfare when enticing upstream investment is optimal or when multiple innovators contribute complementary technologies. Our findings contribute to explain why most licensing contracts include royalties based on the value of sales.

Goolsbee and Maydew (2000) reported that lowering the weight on payroll in states’ corporate income tax apportionment formulae had the potential to raise manufacturing employment. Their analyses continue to be cited in academic articles and are still influential in the policy debate. I gather data and attempt to replicate their analyses and findings. I identify an apparent but inconsequential error in G&M’s sample and I replicate the most widely cited result in the original paper. Other results are substantively but not quantitatively replicated. I show that G&M’s results are sensitive to relatively arbitrary choices about the sample that is used. I argue that the most cited result in the paper does not come from the most preferred econometric specification and that when the most preferred econometric specification is used G&M’s original paper found no statistically significant evidence that lowering the apportionment weight on payroll raises employment. Similarly when I use this specification with data covering the period G&M studied (1978 to 1994) I find no statistically significant evidence for this hypothesis. When I extend the data set forward in time to 2010 and rerun the same specifications I find results similar to those found with the earlier data but I find increased statistical significance when standard errors are not clustered by state. When standard errors are clustered by state, as is now common econometric practice, none of the key estimated coefficients are statistically significant. I get very similar results whether I use manufacturing employment or manufacturing payroll as the dependent variable.In summary, econometric evidence to support the hypothesis that changes in the payroll weight affected the distribution of manufacturing employment among US states in the 1978 to 1994 period appears less strong than G&M asserted even when using G&M’s data and methods. However, more recent data lends some support to G&M’s conclusion but the econometric evidence is still weak by current standards.

corporate tax reform; multinational taxation; formula apportionment; unitary taxation; base erosion; profit shifting; BEPS.

The role of race in the apportionment of political power is one of the thorniest problems at the heart of American democracy, and reappears with dogged consistency on the docket of the Supreme Court. Most recently, the Court resolved a case from Alabama involving the Voting Rights Act and the appropriate use of race in redistricting. But though the Court correctly decided the narrow issue before it, the litigation posture of the case hid the fact that Alabama is part of a disturbing pattern. Jurisdictions like Alabama have been applying not the Voting Rights Act, but a hamhanded cartoon of the Voting Rights Act -- substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands.This short and timely Article is the first to survey the ways in which multiple jurisdictions in this redistricting cycle have substituted a rough sketch of the Voting Rights Act for the real thing. It argues that while the actual statute is tailored and nuanced, appropriately calibrated for a millennial approach to race relations, the demographic shorthand has at its heart a profound and pernicious racial essentialism. Replacing the real statute with the imagined one has a detrimental policy impact -- but perhaps more sinister, it also creates unnecessary constitutional danger for the Voting Rights Act as a whole. Courts must see the cartoon for what it is.

Although patent law requires the apportionment of profit between an asserted patent and other inputs, the typical analysis need not (and often demonstrably does not) satisfy a simple adding-up constraint on the value of the apportioned inputs. This problem is especially acute for "complex" products that may embody hundreds of patents. Based on a wide range of studies of the patent value distribution, I present simple but robust guidelines for determining the share of value contributed by any given patent, and apply them in several familiar contexts. I find that fewer than 1% of all patents are likely to be worth even 15 times the value of the mean patent. This finding underscores the difficulty that patentees face in obtaining full value for global patent portfolios, when the value in litigation of any individual patent's contribution to a complex product is likely to be small.

The introduction of a common consolidated corporate tax base (CCCTB) and tax allocation via formula apportionment (FA) is hotly debated in the European Union (EU) since more than a decade. While the literature has thoroughly analyzed the economic effects of FA from a macro-level perspective, the firm view has been added only recently. Within this micro-level framework discussing possible tax-induced distortions of multi-jurisdictional entities’ (MJE) decisions becomes feasible. Anticipating the reactions of MJEs to the introduction of FA requires considering delegation and incentivisation, because management decisions are influenced by principal agent relationships. How FA affects the demand for managerial effort is a hitherto neglected research question. Accordingly, the objective of this paper is to highlight the tax-induced distortions of managerial incentives caused by FA. For this purpose we set up a LEN-type principal-agent model with agents in two different jurisdictions. Compared to the case with separate taxation (ST) the principal demands increased effort and pays an increased compensation to managers in low-tax jurisdictions, if payroll enters the FA formula. Managers in high-tax jurisdictions face the opposite effect. Further, the composition of the compensation packages changes. Overall, net profit increases, because FA offers potential for profit shifting.

Discussion of practical implications of Federal Circuit decision in VirnetX, Inc. v. Cisco Systems, Inc. (2014) on analysis of reasonable royalty damages in patent infringment cases.The U.S. Court of Appeals for the Federal Circuit historically has afforded litigants substantial leeway in applying economic theory to establish damages in patent infringement cases, as long as the theories are based on reliable economic evidence and establish direct causation of loss. In recent years, the Federal Circuit has issued a number of decisions addressing the issue of “apportionment,” i.e., apportioning value between patented and unpatented features in an accused product. In a recent decision, VirnetX, Inc. v. Cisco Systems, Inc., the Federal Circuit addressed the issue again and further explained how apportionment can limit acceptable damages testimony. Although apportionment has roots in 19th century cases, it likely will cause parties to reevaluate their approaches to proving damages, particularly in cases involving technologies embodied in components for today’s complex products.