cssi/SciSciGPT-SciSciNet huggingface dataset:
The Trespass Fallacy in Patent Law

The patent system is broken and in dire need of reform; so says the popular press, scholars, lawyers, judges, congresspersons, and even the President. One common complaint is that patents are now failing as property rights because their boundaries are not as clear as the fences that demarcate real estate—patent infringement is neither as determinate nor as efficient as trespass is for land. This Essay explains that this is a fallacious argument, suffering both empirical and logical failings. Empirically, there are no formal studies of trespass litigation rates; thus, complaints about the patent system’s indeterminacy are based solely on an idealized theory of how trespass should function, which economists identify as the “nirvana fallacy.” Furthermore, anecdotal evidence and other studies suggest that boundary disputes between landowners are neither as clear nor as determinate as patent scholars assume them to be. Logically, the comparison of patent boundaries to trespass commits what philosophers call a “category mistake.” It conflates the boundaries of an entire legal right (a patent), not with the boundaries of its conceptual counterpart (real estate), but with a single doctrine (trespass) that secures real estate only in a single dimension (physical fences). As all law students learn in their first-year Property courses, estate boundaries are defined along the dimensions of time, use, and space, as represented in doctrines like future interests, easements, nuisance, and restrictive covenants, among others. The proper conceptual analog for ∗ Professor of Law, George Mason University School of Law. For comments on earlier drafts, thank you to Jonas Anderson, T.J. Chiang, Dennis Crouch, Richard Epstein, Robert Heverly, Michael Jaro, Brenna Jenny, Bruce Kobayashi, Mark Lemley, Michael Meurer, Amy Mossoff, David Schleicher, David Schwartz, Joshua Wright, and to the participants at the Intellectual Property Scholars Conference at Cardozo Law School, the Property Works in Progress Conference at Fordham University School of Law, the Levy Workshop at George Mason University School of Law, and a faculty workshop at Louisiana State University Paul M. Herbert Law Center. Martin Desjardins and Matt Roberts produced excellent research, and research support was provided by a Searle Faculty Fellowship. 1 Mossoff: The Trespass Fallacy in Patent Law Published by UF Law Scholarship Repository, 2013 1688 FLORIDA LAW REVIEW [Vol. 65 patent boundaries is “estate boundaries,” not fences. In sum, the trespass fallacy is driving widely accepted critiques of today’s patent system that are empirically unverified and conceptually misleading. INTRODUCTION 1688 I. PATENTS AS TITLE DEEDS AND PATENT INFRINGEMENT AS TRESPASS 1692 II. TRESPASS AS A FALLACY IN PATENT LAW 1696 A. The Trespass Standard as a Logical Fallacy 1696 B. Trespass as an Unverified Empirical Metric 1704 CONCLUSION 1710
Lawyering and Learning in Problem-Solving Courts

The introduction of Drug Courts and other problem-solving courts has brought significant change to the American criminal justice system. This change has required lawyers working in these courts to re-examine their role and to re-consider and re-calibrate the nature of their interactions and relationships with their clients and all of the other actors in the system. This Article looks beyond the rhetorically charged debate that has marked these changes and offers instead a close examination of the actual experience of lawyers, judges, and most importantly, defendant-participants, in these courts. This examination demonstrates that many of the traditional values embedded in the role of lawyer for the accused have a central place within these new-model courts, provided lawyers are prepared to adapt the forms of practice through which they pursue those values. This Article urges clinical law teachers to play a leading role in transcending this debate and preparing modern law students for this increasingly important method of practice. In doing so, the Article highlights those aspects of the clinical pedagogical tradition that are best-suited to the new type of practice as well as the ways in which problem-solving court will require clinical teachers to adapt and stretch to a degree similar to the practitioners already confronting these challenges.
Schedule UTP: Stock Price Reaction and Economic Consequences

ABSTRACT: In 2010, the Internal Revenue Service (IRS) announced the requirement to disclose uncertain tax positions (UTP) on a new schedule (Schedule UTP) to be filed with federal corporate income ...
Robust Reinforcement Learning on State Observations with Learned Optimal Adversary

We study the robustness of reinforcement learning (RL) with adversarially perturbed state observations, which aligns with the setting of many adversarial attacks to deep reinforcement learning (DRL) and is also important for rolling out real-world RL agent under unpredictable sensing noise. With a fixed agent policy, we demonstrate that an optimal adversary to perturb state observations can be found, which is guaranteed to obtain the worst case agent reward. For DRL settings, this leads to a novel empirical adversarial attack to RL agents via a learned adversary that is much stronger than previous ones. To enhance the robustness of an agent, we propose a framework of alternating training with learned adversaries (ATLA), which trains an adversary online together with the agent using policy gradient following the optimal adversarial attack framework. Additionally, inspired by the analysis of state-adversarial Markov decision process (SA-MDP), we show that past states and actions (history) can be useful for learning a robust agent, and we empirically find a LSTM based policy can be more robust under adversaries. Empirical evaluations on a few continuous control environments show that ATLA achieves state-of-the-art performance under strong adversaries. Our code is available at https://github.com/huanzhang12/ATLA_robust_RL.
Reflecting on a Decade of Women's Publications in Four Top Political Science Journals

Publication in scholarly journals is a key to scholarly success. However, previous studies have shown that across many disciplines, including political science, women publish significantly less than men and prefer to use qualitative methodology. In this article, we explore the accuracy of these trends by examining a decade's worth (2000–09) of women's publications in four top political science journals (the American Political Science Review, the American Journal of Political Science, the Journal of Politics, and PS: Political Science and Politics). Using a systematic content analysis, we determine the gender ratio of the authors, funding sources, methods, and the ratio of qualitative and quantitative studies. We find that while women publish less than men in each of these venues, their publication rates resemble their representation in the field.
Congress's Power to Preempt the States

In this Article, part of a symposium on federal preemption of state tort law, I build upon my earlier work on the nature of preemption to try and deepen the conceptual and constitutional foundations of the subject. I argue that this neglected dimension must be moved to center stage if preemption doctrine is to have a coherent and principled framework. In particular, the key issues are the nature, source, and limits of Congress's power to preempt the states. The result is that preemption should be understood as a discretionary power of Congress the source of which lies in the Necessary and Proper Clause. Most importantly, one and the same constitutional limit on this power is strongly suggested by analyzing it from all four of the following perspectives: (a) its source in the Necessary and Proper Clause; (b) its similarity to two other congressional powers to alter federal-state relations, (c) the political safeguards of federalism, and (d) comparative constitutional law. This constitutional limit is that although Congress has the power to preempt the states, it can only do so expressly. There should be no such thing as implied preemption. In the final section, I illustrate the practical workings of my recast preemption doctrine by applying it to the leading cases of recent years.
Wide-field imaging from space of early-type galaxies and their globular clusters

Abstract Wide-field imaging from space will reveal a wealth of information about the globular cluster systems of any galaxies in the local universe that are observed by such a mission. Individual globular clusters around galaxies in the local universe have compact sizes that are ideal for the excellent spatial resolution afforded by space-based imaging, while systems of these globular clusters have large spatial extent that can only be fully explored by wide-field imaging. One example of the science return from such a study is the determination of the major formation epoch(s) of galaxies from the ages of their globular clusters determined via their optical to near-infrared colors. A second example is determining the sites of metal-poor globular cluster formation from their cosmological bias, which constrains the formation of structures early in the universe.
Churches, Charities and Corrective Justice: Making Churches Pay for the Sins of Their Clergy

The Catholic Archdiocese of Boston faced the threat of large tort judgments as a result of acts of sexual abuse committed by its priests. Because the Archdiocese is a public charity, it has been suggested that the Archdiocese could invoke the Massachusetts charitable immunity statute, which in certain circumstances places a $20,000 cap on the tort liability of a charitable organization. This Article explores the role of charitable organizations in our culture, and the distinctive type of state oversight to which they are subject. It then discusses various rationales for the doctrine of charitable immunity. The Article determines that charitable immunity is best understood as a limitation on vicarious liability. Finally, the Article examines these competing policy objectives as applied to the particular facts of the Archdiocese sexual abuse scandal. Although many of the cases involved have recently been settled, the legal and moral propriety of invoking the charitable immunity statute in such a situation is still an open
The Overlooked Significance of Arizona's New Immigration Law

The current debate over Arizona's new immigration statute, S.B. 1070, has largely focused on the extent to which it “empowers” or “allows” state and local law enforcement officials to enforce federal immigration laws. Yet, in doing so, the conversation thus far overlooks the most significant part of the new statute: the extent to which Arizona mandates local immigration enforcement by attacking local control. The fact is the new Arizona law does little to adjust the federalist balance with respect to immigration enforcement. What it does, however, is threaten to radically alter the state-local relationship by eliminating local discretion, undermining the ability of localities to manage their law enforcement and other domestic priorities, and authorizing a new legal cause of action against local communities. Thus, S.B. 1070 not only targets undocumented immigrants and those who may be suspected of being such, but also local law enforcement agencies and the counties, cities, and towns that they serve. This, I argue, is the true significance, and one of the overlooked tragedies, of S.B. 1070.
Data Mining Mining Data: MSHA Enforcement Efforts, Underground Coal Mine Safety, and New Health Policy Implications

Using recently assembled data from the Mine Safety and Health Administration (MSHA) we shed new light on the regulatory approach to workplace safety. Because all underground coal mines are inspected quarterly, MSHA regulations will not be ineffective because of infrequent inspections. From over 200 different specifications of dynamic mine safety regressions we select the specification producing the largest MSHA impact. Even using results most favorable to the agency, MSHA is not currently cost effective. Almost 700,000 life years could be gained for typical miners if a quarter of MSHA's enforcement budget were reallocated to other programs (more heart disease screening or defibrillators at worksites).
EXPECTATIONS, CREDIBILITY, AND TIME-CONSISTENT MONETARY POLICY

This paper addresses the problem of multiple equilibria in a model of time-consistent monetary policy. It suggests that this problem originates in the assumption that agents have rational expectations and proposes several alternative restrictions on expectations that allow the monetary authority to build credibility for a disinflationary policy by demonstrating that it will stick to that policy even if it imposes short-run costs on the economy. Starting with these restrictions, the paper derives conditions that guarantee the uniqueness of the model’s steady state; monetary policy in this unique steady state involves the constant deflation advocated by Milton Friedman.
Two Steps Removed: The Paradox of Diversity Discourse for Women of Color in Law Teaching

In this article, Professor Young examines the effects of diversity discourse on the teaching experience of women of color law professors. She argues that some of the most common arguments in favor of faculty diversity (that increasing faculty diversity provides positive role models, increases sensitivity to racial bias, provides resources for majority faculty members to learn about race and gender issues, and offers diverse perspectives and a more inclusive curriculum) are driven by the interests of the majority but often conflict with the professional interests of women and people of color who enter the academy. The result is that diversity discourse may actually undermine the interests of faculty of color in being considered competent professionals in their particular areas of expertise and may lead to unreasonable expectations that make teaching particularly demanding. Nonetheless, Young argues that diversity does enhance the educational enterprise but requires more than improved faculty statistics. It demands an institutional commitment to celebrate differences, strive for integration, and reject assimilation.
Legal Realisms, Old and New

“Legal Realism” now has sufficient cache that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms — the American and the Scandinavian — with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? There are, of course, other “legal realisms,” old and new, from the “free law” movement in Germany more than a century ago, to the Italian realism of the Genoa School today. My focus, however, shall be on the old and new Realisms that are probably most familiar. Is there anything they all share? I argue that (1) American and Scandinavian Realism have almost nothing in common — indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. Moore's case is a cautionary note in taking au courant social science too seriously; and Llewellyn's work was necessitated by the fact that the "primitive" peoples he wanted to study did not write their judicial opinions down. For any modern legal culture, such "field work" would be unnecessary on Llewellyn's view.
Debt Policy and Corporate Choice of Organizational Form

Corporate income is taxed twice, once at the entity level and then taxed once again at the shareholder level. In addition, the corporate tax system favors debt over equity financing of capital expenditures; corporations are able to deduct interest on borrowed funds, unlike the return to equity. By excessive borrowing, corporations are able to reduce the burden of double taxation. In contrast, noncorporate entities such as S corporations and partnerships are only taxed once at the shareholder level. Switching their organizational form, say from C to S corporate status, allows firms to engage in a form of self-help integration and avoid double taxation. But do C corporations that switch their organizational form to the S status less leveraged? The evidence suggests that they do, albeit modestly, and may provide further support to the incentive effects of taxes on debt policy.
Equilibrium earnings management and managerial compensation in a multiperiod agency setting

To investigate how the possibility of earnings manipulation affects managerial compensation contracts, we study a two-period agency setting in which a firm’s manager can engage in window-dressing activities to manipulate reported accounting earnings. Earnings manipulation boosts the reported earnings in one period at the expense of the reported earnings in the other period. We find that the optimal pay-performance sensitivity may increase and expected managerial compensation may decrease as the manager’s cost of earnings management decreases. When the manager is privately informed about the payoff of an investment project to the firm, we identify plausible conditions under which prohibiting earnings management can result in a less efficient investment decision for the firm and more rents for the manager.
Time, Place, Space, Technology and Corporate Real Estate Strategy

Few corporations take a strategic approach to managing real estate. This survey finds that corporate real estate managers and service providers in Australia, Hong Kong, the United Kingdom and the U...
The sword and the shield: The economics of targeted sanctions

Abstract How effective are “smart” sanctions in imposing costs on an adversary? We consider this question in a model where a targeted regime may choose to “shield” strategically important firms from harm. Using detailed firm and individual data, we estimate the impact on firm performance from smart sanctions deployed by the U.S. and EU against Russia beginning in 2014. We find significant losses in operating revenue, asset values, and employees for sanctioned firms relative to their non-sanctioned peers, which are greater in sectors dependent upon Western service inputs. Strategic firms systemically outperform non-strategic firms under sanctions, implying a cost of shielding to the regime that adds substantially to the total cost of sanctions. (JEL: F5).
Identifying Participants in a Price-fixing Conspiracy: Output & Market Share Tests Reexamined

If there is a cartel agreement among a subset of firms in an industry, it should be predicted that all firms in that industry will increase prices. Nevertheless, industry prices alone should not indicate that a particular firm is guilty of that conspiracy. According to the output test and its market share variant – proposed by Blair and Romano – if the output or the market share of the firm that claims to be innocent in the collusive activity rises in response to the price increase, that firm's claim should be accepted as true. Using a collusive variant of the dominant firm model, this paper shows that these are not robust tests to reveal either innocence or guilt, and characterizes cases where they may pardon a guilty firm (Type I error) or indict an innocent firm (Type II error). This paper also shows that a market share test can not be used to prove a dominant firm's intent for predatory pricing.
Contracting on litigation

Two risk-averse parties with different subjective beliefs negotiate in the shadow of a pending trial. Through contingent contracts, the parties can mitigate risk and/or speculate on the outcome. These contracts mimic the services provided by third-party investors, including litigation funders and insurance companies. The two parties (weakly) prefer to contract with the external capital market when third-party investors are risk neutral, litigation costs are exogenous, and the market is transaction-cost free. However, contracting with third parties increases the volume of litigation, the level of litigation spending, and the aggregate cost of risk bearing. In this sense, third-party involvement in litigation reduces social welfare.
Wage-Setting Institutions and Corporate Governance

Abstract We present a model in which wage-setting structures explain cross-country variation in corporate governance. The model predicts a nonmonotonic relationship between the level of centralization in wage-bargaining institutions and the levels of firm ownership concentration and investor protection legislation. Low and high degrees of centralization yield less concentrated ownership and more investor protection than intermediate degrees. Like recent research, this paper highlights labor as a key constituent in shaping corporate governance. However, our theory can resolve an important puzzle this research confronts, namely, why Scandinavian countries with higher than average labor strength also have higher than average investor protection legislation.
Factor prices may be constant but factor returns are not

Abstract Welfare effects of a distortion introduced in a ‘small’ region, country or industry are not limited to allocations within that domain. They may be large, and undiminishing, even though the area considered is very close to satisfying the idealized prerequisites for partial equilibrium analysis.
Jurisdiction to Prosecute Non-National Pirates Captured By Third States Under Kenyan and International Law

On January 16, 2009, Kenya and the United States signed a Memorandum of Understanding (MOU) under which Kenya agreed to try suspected pirates captured by the U.S. In addition, Kenya signed a similar MOU with the European Union on March 6, 2009. Another is planned between Kenya and China. This paper examines Kenya’s decision to receive and prosecute these suspects, as well as an important new Merchant Shipping law, (currently awaiting Presidential assent), that confers on Kenyan Courts jurisdiction over non-nationals for hijacking and robbery committed on the high seas. This statute effectively establishes universal jurisdiction over piracy. This new law supplements the offense of piracy jure gentium in the Penal Code which has been used to successfully prosecute pirates at least once before. After analyzing the jurisdiction of Kenyan courts to undertake prosecutions under both international and Kenyan law, the paper concludes that that the High Court of Kenya, rather than the subordinate courts in the country is the Court with jurisdiction to entertain prosecutions of suspected non-national pirates for offences allegedly committed in the high seas. While Kenya’s new Merchant Shipping law gives Kenyan courts broad jurisdiction over such suspects, the broad sweep of this new law go far beyond Kenya’s obligations under both the SUA Convention and UNCLOS, which in their express terms only allow capturing states the right to prosecute. However, the inability of Somalia to arrest and prosecute such suspects suggests Kenya may exercise such jurisdiction as part of its contribution to the burden sharing in the prosecution of captured suspects. In addition, the Kenyan legislation is consistent with the common law norm that crimes defined by international law require domestic law to try or punish them. The paper also addresses several possible challenges to the broad extra-territorial scope over non-nationals created by this law under international law. It also briefly touches on some of the international humanitarian legal issues that are posed by the increasingly militarization of the multinational anti-piracy mission off the Coast of Somalia. Ultimately, the paper argues that only limited prosecutions are feasible in Kenya particularly in light of the congestion and related challenges in the country’s criminal justice system.
Measuring technical and scale inefficiencies in the beer industry: Nonparametric and parametric evidence

Abstract Two alternative approaches of efficiency measurement, nonparametric and statistical, are employed to calculate three types of efficiency indexes for the U.S. beer industry over the period 1950–1986. The results indicate that the beer industry was operating at a high level of pure technical efficiency over that period. The mean value of this efficiency measure is 93.7 percent based on the nonparametric approach and 87.5 percent based on the statistical approach. The two approaches yield dissimilar values and sources for overall technical inefficiency. The overall technical efficiency index computed under the nonparametric approach stands at 91.10 percent and the observed inefficiency is found to be more due to pure technical inefficiency than to scale inefficiency. Using the statistical approach, the beer industry is found to be less overall technically efficient (68.42 percent) than indicated by the nonparametric methodology and the observed inefficiency is found to be primarily contributed to by scale inefficiency.
Does economic geography matter for international specialization

There are two principal theories of why countries trade: comparative advantage and increasing returns to scale. Yet there is no empirical work that assesses the relative importance of these two theories in accounting for production structure and trade. We use a framework that nests an increasing returns model of economic geography featuring "home market" effects with that of Heckscher-Ohlin. We employ these trade models to account for the structure of OECD manufacturing production. The data militate against the economic geography framework. Relatively few sectors match its theoretical predictions. Moreover, of the explainable variation in production patterns, endowments account for 90 per cent, economic geography but 5 per cent.
THE OPERATIONAL HEDGING PROPERTIES OF INTANGIBLE ASSETS: THE CASE OF NON-VOLUNTARY FOREIGN ASSET SELLOFFS

In this paper we examine the valuation effects and long-term performance of US multinational firms involved in forced transfers of their foreign operating assets during the 1965‐88 period. The evidence suggests that the operational hedging ability of the firm to address country risk (nationalization threats) is related to the level of its intangible assets. While it is well known that firms with high levels of intangible assets prefer foreign direct investment, our results show that intangible assets have hidden properties of protection against country risk as well. We document significantly negative abnormal returns only for divesting firms with low levels of intangible assets, but not for firms with high levels of intangible assets. In addition, we show that low (high) growth firms are involved in partial (complete) withdrawals, and show that the long-term economic performance of firms choosing the complete withdrawal strategy is better than those that opt to remain. We argue that management’s attempt to maintain economic links in a hostile foreign environment can be attributed in part to the firm’s low growth opportunities, performance, and lack of contingent plans to address country risk. I. Introduction The period between 1960 and 1980 witnessed a spate of forced nationalizations of US based multinationals. It is generally believed that this type of action by a host country represents an extreme form of country risk and constitutes “bad news” for firms with operations in hostile host countries. Consequently, one should expect share prices of such firms to drop when such announcements are first made. Share price declines would be consistent with market expectations of deteriorating firm performance following the forced foreign divestiture announcement. However, in this paper, we provide evidence that is not entirely consistent with this conjecture. Even though firms are unlikely to be subject to such a severe form of country We are grateful to Mark Flannery, Paul Seguin and Rene Stulz, and two anonymous referees for their helpful comments.
Leadership: A personnel economics approach☆

Abstract A theory of leadership is proposed and tested. Leaders perform many roles in a firm. They become leaders because they succeed at these tasks more than others and at least some of their successes are visible. The theory implies that leaders tend to be more able, place themselves in visible decision making situations more frequently and are generalists. Also, the most able leaders should be found in the highest variance industries, where decision making has the greatest payoff. The theory is tested using data on Stanford alumni and is confirmed. Leaders are generalists rather than specialists, both innately and in their pattern of skill acquisition.
Majority Status and Variation in Informational Organization

To maintain its policy cartel, the majority party requires information to recognize good policy and sufficient votes to realize it. There is ample research demonstrating the majority’s ability to mobilize votes, but no empirical research examining its ability to facilitate efficient information transmission. Here, I investigate differences between the majority and minority in maintaining an informational organization (representative committee delegations that share their information with copartisans) and examine the effects of this organization on expressed legislative uncertainty. By analyzing comprehensive new data, I find that the majority is most often able to maintain representative committee contingents, but the minority is not. Further, the majority is able to induce its nonrepresentative delegations to be informative; however, certain types of outlying contingents significantly increase the minority’s policy uncertainty. Finally, I conclude that the majority’s informational organization is superio...
What if, After All, Trademarks Were Traded in Gross

The conditions upon which trademarks should be "traded" - that is, assigned and licensed in the marketplace - have traditionally been at the center of the trademark debate. Historically, based upon the assumption that trademarks can be protected only as conveyers of commercial information and as symbols of business goodwill, trademark law has prohibited trading in trademarks "in gross" and has required that trademarks be assigned "with their goodwill" and licensed only as long as licensors control the quality of the products. Yet, these criteria have been proven controversial and difficult to enforce because they hinge on two concepts that are ambiguous and difficult to frame in a legislative context: "trademark goodwill" and "quality control." Not surprisingly, the result of such uncertainty has been inconsistent case law and much ambiguity as to what currently represents a valid assignment and a valid license. This Symposium Essay summarizes my previous scholarship arguing against these inconsistencies and advocating for a change in the current standards. Specifically, this Essay repeats, in a shorter format, the proposal of the adoption of new rules that would allow trading of trademarks "in gross" - that is, assignment "with or without goodwill" and licensing "with or without control." In support of these changes, this Essay reiterates that the current rules are negatively affecting market competition and promoting unnecessary legal actions. Building upon the recent judicial trend, this Essay concludes repeating my previous positions that the courts should assess the validity of assignments and licensing by focusing directly on the result of the agreements at issue-whether the use of the assigned or licensed marks will confuse or deceive the public.
Closely-Held Firms and the Common Law of Fiduciary Duty: What Explains the Enduring Qualities of a Punctilio

This article explores fiduciary norms in the closely-held firm. It focuses generally on judicially-developed standards of business ethics and specifically on the perceived gap between articulated and applied norms. The article includes data on the frequency with which Cardozo's famed punctilio of an honor the most sensitive statement is cited and offers explanations for the continuing appeal of the standard.
The Personal Liability of Insurance Claims Adjusters for Insurance Bad Faith

One of the currents of change sweeping through the insurance industry is the rise of insurance bad faith liability. There is an emerging legal question today as to whether the individual employee adjusters of insurance companies can be subject to bad faith liability.This article examines the question of whether employee-adjusters of insurance companies can and should be held liable for insurance bad faith liability. Early reported cases involving personal liability for bad faith generally held that insurance company employee adjusters were immune from bad faith claims as they were not in privity of contract with insureds. However, three significant decisions from the Montana Supreme Court (O’Fallon v. Farmers Insurance Exchange in 1993), Texas Supreme Court (Liberty Mutual Insurance Company v. Garrison Contractors, Inc. in 1998) and the West Virginia Supreme Court (Taylor v. Nationwide Mutual Insurance Company) in 2003 challenged this doctrinal rule in holding that bad faith claims can proceed against insurance company employee adjusters. Today a split has emerged among courts on the issue of whether bad faith claims can proceed against insurance company employee adjusters.This article proposes a uniform standard that courts can employ in cases where insureds allege insurance company employee adjusters act in bad faith. To keep insurance company employee adjusters fair and honest and to ensure the quasi-fiduciary nature of the insurance contract is upheld, this article contends that insurance company employee adjusters be held liable for insurance bad faith in cases where a trial court makes an evidentiary finding that an employee adjuster acts with the purposeful or actual malicious intention to prejudice the rights of an insured.
Some important macro points

This paper lists 19 points that follow from results I have obtained using a structural macroeconomic model (SEM). Such models are more closely tied to the aggregate data than are DSGE models, and I argue that DSGE models and similar models should have properties that are consistent with these points. The aim is to try to bring macro back to its empirical roots.
Theorizing Mental Health Courts

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of an assumed link between mental illness and crime. In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism. Drawing upon social science research and an independent analysis of mental health courts’ eligibility criteria, this Article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts. The Article concludes by identifying alternative theories that may justify this novel diversion intervention.  Assistant Professor of Law, University of Florida, Levin College of Law. I wish to thank Christopher Slobogin, Dan Markel, Nancy Wolff, Mae Quinn, Michael Seigel, Michelle Jacobs, Emily Hughes, Robert Bernstein, Jennifer Eno Louden, Susan Bandes, John Stinneford, Wayne Logan, Michael Wolf, Jake Linford, Elta Johnston, and Reid Fontaine for their valuable suggestions. The Article also benefited from feedback from participants of the 2011 American Psychology-Law Society Congress and Fourth International Congress of Psychology and Law, the faculty workshop at Florida State University College of Law, the 2010 Southeastern Association of Law Schools Annual Conference, and the University of Florida Levin College of Law scholarship development workshop. I am grateful for the summer grant provided by the Levin College of Law. Finally, I thank Joe Eagleton, Jon Bense, Amber Curtis, Jacy Owens, Courtney Gaughan, and Andres Healy for their outstanding research and editorial assistance. Washington University Open Scholarship 520 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 89:519
The Political History of a Postwar Suburban Society Revisited

There is a vast multidisciplinary literature on U.S. suburbs. Through an urban historical lens, this article charts the public policies that gave way to the rise of a suburban society. It explores the evolution of scholarly historical thought on the roles that political processes and public policies played in the development of the suburban landscape. Major political and social movements, including the areas of housing, transportation, and race relations, are surveyed. The future prospects for metropolitan America suggest that politics and policy contributed to complex social, economic, and political realities that confront suburbs in an era of uncontrolled urban sprawl and mounting suburban decline.
Why does the public cooperate with law enforcement? The influence of the purposes and targets of policing.

This study addresses the extension of the “procedural justice” model for understanding public cooperation with law enforcement to new policing contexts and new minority populations. The study draws on four recent surveys of public reactions to policing against crime or against terrorism across different populations to examine whether the changing purpose of policing, or changes in the communities targeted for heightened policing, have an effect on how cooperative behaviors are elicited. This paper presents evidence that procedural justice mechanisms are robust across a variety of contexts and populations in the United States. Three issues in particular are addressed. First, whether the procedural justice model applies across policing functions and policed populations. Second, whether the perception that another group is the target of disproportionate policing efforts has any effect on the cooperation behavior of a non-targeted population. And third, whether people attend to different aspects of policing behavior if their community is targeted for heightened policing attention.
Testing Continuous-Time Models of the Spot Interest Rate

Different continuous-time models for interest rates coexist in the literature. We test parametric models by comparing their implied parametric density to the same density estimated nonparametrically. We do not replace the continuous-time model by discrete approximations, even though the data are recorded at discrete intervals. The principal source of rejection of existing models is the strong nonlinearity of the drift. Around its mean, where the drift is essentially zero, the spot rate behaves like a random walk. The drift then mean-reverts strongly when far away from the mean. the volatility is higher when away from the mean. Article published by Oxford University Press on behalf of the Society for Financial Studies in its journal, The Review of Financial Studies.
Explaining the appearance and success of open space referenda.

Many communities in the United States have begun enacting policies to preserve open space, often through local voter referenda. New Jersey sponsors such municipal action through the Green Acres Program by providing funding and low interest loans to towns that choose to increase property taxes and spend the money raised on open space preservation for the purposes of conservation and/or recreation. This paper endeavors to understand which factors contribute to the appearance and success of these measures. Although previous literature has examined this issue, this is the first study to account for spatial dependence/spatial autocorrelation and to explore dynamic issues through survival analysis. The traditional two stage model from the literature is extended by incorporating a Bayesian spatial probit for the first stage and a maximum-likelihood spatial error model in the second stage. A Cox-proportional hazard model is used to examine the timing of referenda appearance. Spatial dependence is found in the second stage of the analysis, indicating that future studies should account for its influence. There is no strong evidence for spatial dependence or correlation in the first stage. The survival model is found to be a useful complement to the traditional probit analysis of the first stage.
The Double Bind: Obstacles to Employment and Resources for Survivors of the Criminal Justice System

In Pennsylvania, individuals who come into contact with the criminal justice system, regardless of the outcome of their case(s), are marked for life. This mark, in the form of criminal history record information, attaches a wide range of collateral consequences that expand an individual's punishment beyond that which is originally contemplated by the criminal justice system. Generally, collateral consequences are indirect civil penalties that spring from criminal convictions. Collateral consequences often have a negative impact on employment, housing (public and private), public benefits, occupational licensing, voting rights, immigration status, and social stigma. In Pennsylvania, even non-conviction data, such as arrests not leading to conviction, acquittals, or not guilty verdicts are part of an individual's criminal history record information. Because non-conviction data is publicly available for review, collateral consequences spring from conviction as well as non-conviction data.Due to technological advances in electronic data, which provide easy access to criminal history record information, the use of criminal background checks for employment," housing, and access to social services' has become routine. While it is unlawful in Pennsylvania for an employer to use non-conviction data in hiring decisions, employers often adopt blanket criminal history record information policies, which reject any individual with any type of criminal history record information, even non-conviction records. Accordingly, it is becoming increasingly difficult for individuals with criminal history record information to find gainful employment or access safe and adequate housing and other social services. The collateral consequences of criminal history record information disproportionately affect the poor, Black and Hispanic communities in Pennsylvania and systematically impede wealth accumulation by stunting an individual's economic opportunities. This further perpetuates and compounds past inequities. In Pennsylvania, a petition for expungement and/or redaction is one tool that advocates can use to reduce the effects of criminal history record information.
Creating a racially polarized electorate: the political fallout of immigration politics in Arizona and California

We explore the potential political impact of Arizona's controversial immigration statute, SB 1070, using a parallel event: the 1994 passage of Proposition 187 in California. Both statutes were efforts to respond to the flow of illegal immigrants mainly from Mexico and were widely seen as anti-Latino, and both became the central theme of their proponents' reelection campaigns. We reexamine and extend the academic literature on the political impact of Proposition 187, applying the effect estimates to Arizona via a Monte Carlo simulation to project its vote in future presidential elections. These projections show that the potential changes in voting behavior brought on by SB 1070, coupled with population trends, give Democrats a discernable and growing advantage in presidential elections as early as 2016. The results of 2012 make clear that the GOP's best hope to hold the state rests on a strong and enduring move by its white voters toward the Republicans, leaving Arizona with a racially polarized electorate...
Humanitarian Law Project and the Supreme Court's Construction of Terrorism

TABLE OF CONTENTS I. INTRODUCTION 1456 II. Pre-9/11 Terrorism Jurisprudence 1459 A. The First Appearance of "Terrorism" 1460 B. Criminal Syndicalism 1461 C. From World War II Through the Cold War 1465 D. Domestic Terrorism and the Ku Klux Klan 1471 E. Terrorism in New Contexts 1472 F. Terrorism as a Basis for Heightened Punishment 1477 G. Terrorism and Immigration 1479 1. AADCv. Reno 1479 2. Zadvydas v. Davis 1480 III. Post-9/1 1 Terrorism Jurisprudence 1482 A. Terrorism's Impact on Ordinary Criminal Cases 1483 B.Post-9/ll War on Terror Cases 1485 1V. HOLDER V. HUMANITARIAN LAW PROJECT- DESCRIBING A WORLD WHERE TERRORISM IS THE ENEMY, NOT ANY ONE GROUP 1486 A. Section 2339B 1487 B. The Plaintiffs 1490 C. Specific Intent 1491 D. Vagueness 1494 E. First Amendment Challenges - Freedom of Speech 1498 1. Standard of review 1498 2. The issue and subsequent analysis 1499 3. Material support providing "legitimacy" 1500 V. Conclusion 1508 I. INTRODUCTION In June 2010, the Supreme Court issued its decision in Holder v. Humanitarian Law Project ("HLP"), upholding the constitutionality of 18 U.S.C. § 2339B ("§ 2339?"), the criminal ban on providing material support to designated foreign terrorist organizations ("FTOs").1 The opinion, which represents the culmination of a lengthy legal dispute, generated immediate commentary for its contribution to First Amendment jurisprudence2 because it sustained the criminalization of providing material support in the form of speech, whether through "training," "expert advice or assistance," "service," and "personnel" to an FTO, even when the support was intended for peaceful purposes, such as petitioning the United Nations for relief or engaging in political advocacy on the FTO's behalf.3 The focus on the First Amendment implications of the decision is understandable, given the high stakes involved; a conviction under the statute can, in regular circumstances, garner up to fifteen years in prison, with a life sentence possible for material support that can be tied to any actual loss of life.4 In addition to the constitutional significance of the opinion, HLP marks the first time the Supreme Court has delved into a lengthy discussion of what it believes counts as terrorism.5 Prior Supreme Court opinions, whether before or after September 11, 2001, tended to consider terrorism as a tactic that nations or groups hostile to the United States engaged in, without further defining what activities qualified under the term. Stated differently, the Supreme Court had never before discussed its perceptions of what constitutes terrorism, preferring instead to place limits on "terrorist activity," without elaborating much further. …