cssi/SciSciGPT-SciSciNet huggingface dataset:
How Fair Use Can Help Solve the Orphan Works Problem

Many works that libraries, archives, and historical societies would like to digitize are “orphan works,” that is, works for which the copyright holder either is unknown or cannot be located after a diligent search. Due to copyright risk if an owner later shows up, nonprofit libraries and similar institutions have been reluctant to digitize and make these works available, greatly limiting access to important cultural and historical information. While a legislative fix may soon be proposed, this Article argues that legislation is not necessary to enable some uses of orphan works by nonprofit libraries and archives. Instead, U.S. copyright law’s fair use doctrine, which allows certain unpermissioned uses of copyrighted works, provides a partial solution. Though it is an incomplete solution, fair use has some significant advantages over other approaches through which libraries and archives could make publicly beneficial uses of orphan works. Under fair use, there is no need to develop a licensing system, significantly reducing administrative and transactional costs, and eliminating socially wasteful license fees for works that are not on the market, and for which an owner is unlikely to exist. Second, fair use has the flexibility to accommodate change over time as libraries and archives discover the best ways to search for owners, preserve works, and make them available. Finally, allowing fair use of orphans by libraries and archives helps fulfill copyright’s critical purposes of promoting the dissemination of knowledge and supporting speech and free expression. © 2012 Jennifer M. Urban. † Assistant Clinical Professor of Law, University of California, Berkeley School of Law. The author gratefully acknowledges the many thoughtful ideas and helpful comments of Ty Alper, Roxanna Altholz, Michelle Anderson, Michael Donaldson, James Grimmelmann, David Hansen, Edward Lee, Mark Lemley, Saira Mohammed, Pamela Samuelson, Jason Schultz, Christopher Sprigman, and Karen Tani, participants in the Orphan Works & Mass Digitization: Obstacles & Opportunities conference [hereinafter Berkeley Orphan Works Conference], and participants in the 12th Annual Intellectual Property Scholars Conference. This Article is output of the Berkeley Digital Library Copyright Project, generously supported by funding from the Alfred P. Sloan Foundation. More information about the Berkeley Digital Library Project can be found at http://www.law.berkeley.edu/12040.htm. I especially thank Ana Enriquez for excellent research assistance. The thoughts contained in this Article represent my individual academic conclusions and opinions, and should not be attributed to any client I represent or the Samuelson Law, Technology & Public Policy Clinic, which I direct. In addition, the University of California, where I am a faculty member, is a defendant in the Authors Guild, Inc. v. HathiTrust suit; however, I do not represent, and in no way speak for, the University of California or any other party in the case. 1379-1430_URBAN_031013_FINAL (DO NOT DELETE) 3/10/2013 10:36 PM 1380 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:1379
How does the corporate bond market value capital investments and accruals

This paper examines whether the mispricing of accruals documented in equity markets extends to bond markets. The paper finds that corporate bonds of firms with high operating accruals underperform corporate bonds of firms with low operating accruals. In the first year after portfolio formation, the underperformance is 115 basis points using an accrual measure that includes capital investments and 93 basis points using an accrual measure that is based only on working capital investments. The Sharpe ratios of the zero-investment bond accrual portfolios are comparable to those of the corresponding zero-investment stock accrual portfolios. The results are also robust to risk adjustments based on both a factor model consisting of the Fama and French (J. Financial Econ 33 (1993) 3) stock and bond market factors and a characteristics model based on bond ratings and duration. Cross-sectional Fama–MacBeth regressions that use individual bond data and control for stock and bond issuances in addition to ratings and duration also confirm the time-series portfolio findings. Overall, our results reveal an accrual anomaly among bonds similar to that observed among stocks.
International Law in a Kaleidoscopic World

International law is developed and implemented today in a complicated, diverse, and changing context. Globalization and integration, fragmentation and decentralization, and bottom-up empowerment are arising simultaneously among highly diverse peoples and civilizations. Most importantly, this period is characterized by rapid and often unforeseen changes with widespread effects. Advances in information technology make possible ever shifting ad hoc coalitions and informal groups and a myriad of individual initiatives.The resulting kaleidoscopic world faces global problems that affect everyone: climate change, financial crises, health threats, communication disruptions and cyber attacks, ethnic and other conflicts, among many others. These cannot be managed solely by one state or a handful of states, or solely by non-state actors. Some of these problems erupt quickly and are not easily contained. Others, like climate change, have inherently long time-horizons and affect the welfare of future generations. One of the most pressing problems is poverty, with more than 1.4 billion people existing on less than US2.00 per day.1This kaleidoscopic world both offers opportunities for international law to become more relevant and central and poses significant dangers for its relevance and effectiveness. This article provides an initial analysis of the significance of the kaleidoscopic world for international law.
TOWARD AN UNDERSTANDING OF EMPLOYMENT DISCRIMINATION CLAIMING: AN INTEGRATION OF ORGANIZATIONAL JUSTICE AND SOCIAL INFORMATION PROCESSING THEORIES

This research examines predictors of actual discrimination claiming among terminated workers by investigating a number of variables suggested by organizational justice and social information processing theories. This study investigated initial decisions to claim in a sample of 439 terminated workers who were surveyed at several unemployment offices. Logistic regression was used to examine how the decision to claim for discrimination was affected by procedural and distributive justice, social guidance, minority status, gender, age, tenure, and education. All of the variables except education and gender were found to be significant. Thus, the results support variables from each of the theories. Social guidance was found to have a major influence on discrimination-claiming. A counter-intuitive finding for minority status was found such that Whites were more likely to claim than minorities. Theoretical and practical implications are discussed.
Are short sellers incrementally informed prior to earnings announcements

Abstract Contrary to the hypothesis that informed short sellers increase their positions prior to earnings announcements, we find that short activity declines in the pre-announcement period compared with activity in non-announcement time. This statistically significant, but economically modest, decline may suggest that the fraction of informed short sellers actually increases if (as Diamond and Verrecchia (1987) suggest) the uncertainty around earnings announcements increases short selling costs and causes uninformed short sellers to withdraw from the market. While we find a statistically and economically significant inverse relation between pre-announcement short activity and announcement period returns, when we control for the non-announcement ability of short sellers to predict future returns documented by Diether et al. (2009) , the significance of the relation between pre-announcement short activity and announcement period returns vanishes. Thus, we infer that short sellers are not incrementally informed prior to earnings announcements.
Why Do Short Selling Bans Increase Adverse Selection and Decrease Price Efficiency

When short selling is costly, owners of an asset have greater incentive to become informed than nonowners because trading on negative information is easier for them. Thus, information acquisition concentrates among investors owning the asset. A short selling ban restricts selling to only the relatively more informed investors who own the asset, increasing adverse selection but only on the sell side of the market. Price efficiency declines due to less overall information acquisition because a ban magnifies the disincentive to gather information for investors not owning the asset. Evidence from the 2008 U.S. short selling ban is consistent with these theoretical predictions.
Optimal instrumental variables estimation for ARMA models

In this paper a new class of instrumental variables (IV) estimators for linear processes and in particular ARMA models is developed. Previously, IV estimators based on lagged observations as instruments have been used to account for unmodelled MA(q) errors in the estimation of the AR parameters. Here it is shown that these IV methods can be used to improve efficiency of linear time series estimators in the presence of unmodelled conditional heteroskedasticity. Moreover, an IV estimator for both the AR and MA part is developed. Estimators based on a Gaussian likelihood are inefficient members of the class of IV estimators analyzed here when the innovations are conditionally heteroskedastic.
Managing Piracy: Pricing and Sampling Strategies for Digital Experience Goods in Vertically Segmented Markets

Digital goods lend themselves to versioning but also suffer from piracy losses. This paper develops a pricing model for digital experience goods in a segmented market and explores the optimality of sampling as a piracy-mitigating strategy. Consumers are aware of the true fit of an experience good to their tastes only after consumption, and as piracy offers an additional (albeit illegal) consumption opportunity, traditional segmentation findings from economics and sampling recommendations from marketing, need to be revisited. We develop a two-stage model of piracy for a market where consumers are heterogeneous in their marginal valuation for quality and their moral costs. In our model, some consumers pirate the product in the first stage allowing them to update their fit-perception that may result in re-evaluation of their buying/pirating decision in the second stage. We recommend distinct pricing and sampling strategies for underestimated and overestimated products and suggest that any potential benefits of piracy can be internalized through product sampling. Two counterintuitive results stand out. First, piracy losses are more severe for products that do not live up to their hype rather than for those that have been undervalued in the market, thus requiring a greater deterrence investment for the former, and second, unlike physical goods where sampling is always beneficial for underestimated products, sampling for digital goods is optimal only under narrowly defined circumstances due to the price boundaries created by both piracy and segmentation.
Debt as Venture Capital

Venture debt, or loans to rapid-growth start-ups, is a puzzle. How are start-ups with no track records, positive cash flows, tangible collateral, or personal guarantees from entrepreneurs able to attract billions of dollars in loans each year? And why do start-ups take on debt rather than rely exclusively on equity investments from angel investors and venture capitalists (VCs), as well-known capital structure theories from corporate finance would seem to predict in this context? Using hand-collected interview data and theoretical contributions from finance, economics, and law, this Article solves the puzzle of venture debt by revealing that a start-up’s VC backing and intellectual property substitute for traditional loan repayment criteria and make venture debt attractive to a specialized set of lenders. On the firm side, venture debt helps entrepreneurs, angels, and VCs avoid dilution, improves VC internal rate of return, assists VCs in monitoring entrepreneurs, and follows from capital structure theories after the first round of VC funding.
The existence of embedded G-invariant minimal hypersurface

For a compact connected Lie group G acting as isometries of cohomogeneity not equal to 0 or 2 on a compact orientable Riemannian manifold $$M^{n+1},$$ we prove the existence of a nontrivial embedded G-invariant minimal hypersurface, that is smooth outside a set of Hausdorff dimension at most $$n-7.$$
The Dilution Effect: Federalization, Fair Cross-Sections, and the Concept of Community

The quintessential distinguishing feature of the American criminal justice system is the jury. Juries representative of their communities perform the interrelated functions in criminal trials of rendering verdicts that reflect a sense of community justice and giving normative content to law. When those functions are successfully performed, the jury lends legitimacy to the criminal justice system, bolstering public confidence in the extant rule of law. Yet the criminal jury’s legitimating functions are critically dependent on its own legitimacy, which in turn requires an examination of two key questions. First, what constitutes a “representative” jury, and second, what is the relevant community the jury is supposed to represent? The first of these questions, grounded as it is in the Sixth Amendment guarantee that a criminal defendant enjoys the right to an impartial jury drawn from a fair cross-section of the community, has received a fair amount of attention from both courts and scholars. The second, arguably more profound and certainly prior
The Path Not Taken: Leonard White and the Macrodynamics of Administrative Development

Leonard White, The Federalists: A Study in Administrative History (New York: Macmillan, 1948). Leonard White, The Jeffersonians: A Study in Administrative History, 1801–1829 (New York: Macmillan, 1951). Leonard White, The Jacksonians: A Study in Administrative History, 1829–1861 (New York: Macmillan, 1954). Leonard White, The Republican Era, 1869–1901: A Study in Administrative History (New York, Macmillan, 1958). This is a review of four books by Leonard White: The Federalists (1948), The Jeffersonians (1951), The Jacksonians (1954), and The Republican Era (1958). In these books, White develops an approach to the study of administrative development that accounts for a broad range of considerations, including political and economic structure, the organization of the international order, popular culture, the stock of available communication and organizational technologies, and executive talent. White also offers an early argument about the significance of path dependence in institutional evolution. White's approach is largely concerned with the macrodynamics of administrative development. It has been neglected within the field of public administration over the last half century. A literature that builds on White's work would improve the field's ability to explain and anticipate failures in state building and administrative reform.
Evolving Values, Animus, and Same-Sex Marriage

Responding to Justice Scalia’s provocative questioning during oral argument in the same-sex marriage cases, I contend in this Essay that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when that determination is sufficiently supported by evolving national values that, in the words of Professor Alexander Bickel, the Court’s recognition of this right “will — in time, but in a rather immediate foreseeable future — gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible groundings for such a ruling: first, substantive due process; second, heightened-scrutiny equal protection; and third, rational-basis equal protection coupled with a finding of illicit “animus.” I contend that each form of constitutional justification can find support in evolving national values. In my judgment, however, the first two alternatives, with primary emphasis on the second, present the best and strongest arguments for a right to same-sex marriage. By contrast, I suggest that it would be misguided, or at least imprudent, for the Court to rely on the third alternative. I argue that the Court’s “animus” reasoning in United States v. Windsor was seriously flawed and that, in any event, this line of reasoning should not be extended to the state-law context.
The financial reporting environment: Review of the recent literature

Abstract The corporate information environment develops endogenously as a consequence of information asymmetries and agency problems between investors, entrepreneurs, and managers. We review current research on the three main decisions that shape the corporate information environment in capital market settings: (1) managers’ voluntary disclosure decisions, (2) disclosures mandated by regulators, and (3) reporting decisions by analysts. We conclude that, in the last ten years, research has generated several useful insights. Despite this progress, we call for researchers to consider interdependencies between the various decisions that shape the corporate information environment and suggest new and interesting issues for researchers to address.
The “Myth” of Moral Values Voting in the 2004 Presidential Election

“Which ONE issue mattered most in deciding how you voted for president?” This survey question, which appeared on the 2004 National Election Pool (NEP) exit poll, attracted as much controversy as any in recent years. More respondents chose “moral values” than any other issue. Among this 22% of respondents, 80% voted for President Bush. Initially, news reporters and pundits interpreted this finding as indicating that moral values played a decisive role in Bush's victory. The morning after the election, Chris Matthews, host of the MSNBC program Hardball , suggested the election was “a referendum on values” (“Chris Matthews Gives his Assessment”). Tim Russert, host of NBC's Meet the Press , said that “People had an agenda. They put their moral values ahead of some of their economic interests” (“Analysis”). A reporter for the CBS Morning News concluded that “in the end, the number-one voter motivator [was] morality” (“Morality Proves Number One”).
Evidence on the use of unverifiable estimates in required goodwill impairment

SFAS 142 requires managers to estimate the current fair value of goodwill to determine goodwill write-offs. In promulgating the standard, the FASB predicted that managers will, on average, use the fair-value estimates to convey private information on future cash flows. The current fair value of goodwill is unverifiable because it depends in part on management’s future actions (including managers’ conceptualization and implementation of firm strategy). Agency theory predicts managers will, on average, use the unverifiable discretion in SFAS 142 consistent with private incentives. We test these hypotheses in a sample of firms with market indications of goodwill impairment. Our evidence, while consistent with some agency-theory based predictions, does not confirm the private information hypothesis.
Stock Market Information and REIT Earnings Management

This paper investigates the interaction between stock price movement and REIT earnings management. We examine whether information generated from stock price volatility influences managers' incentiv...
FI-modules over Noetherian rings

FI-modules were introduced by the first three authors to encode sequences of representations of symmetric groups. Over a field of characteristic 0, finite generation of an FI-module implies representation stability for the corresponding sequence of Sn ‐representations. In this paper we prove the Noetherian property for FI-modules over arbitrary Noetherian rings: any sub-FI-module of a finitely generated FI-module is finitely generated. This lets us extend many results to representations in positive characteristic, and even to integral coefficients. We focus on three major applications of the main theorem: on the integral and mod p cohomology of configuration spaces; on diagonal coinvariant algebras in positive characteristic; and on an integral version of Putman’s central stability for homology of congruence subgroups. 20B30; 20C32
Understanding Interstate Trade Patterns

Abstract This paper models and estimates bilateral trade patterns of U.S. states in a CES framework and identifies the elasticity of substitution across goods, the elasticities of substitution across varieties of each good, and the good-specific elasticities of distance by using markup values obtained from the production side. Compared to the international trade literature, the elasticity of substitution estimates are lower across both goods and varieties, while the elasticity of distance estimates are higher. Although home-bias effects at the state level are significant, there is evidence for decreasing effects over time.
Neuroeconomics: Why Economics Needs Brains*

Neuroeconomics uses knowledge about brain mechanisms to inform economic theory. It opens up the ‘‘black box’’ of the brain, much as organizational economics opened up the theory of the firm. Neuroscientists use many tools—including brain imaging, behavior of patients with brain damage, animal behavior and recording single neuron activity. The key insight for economics is that the brain is composed of multiple systems which interact. Controlled systems (‘‘executive function’’) interrupt automatic ones. Brain evidence complicates standard assumptions about basic preference, to include homeostasis and other kinds of state-dependence, and shows emotional activation in ambiguous choice and strategic interaction.
Toward solving the health care crisis: the paradoxical case for universal access to high technology.

The current U.S. health care crisis is fueled in part by consumer demand for costly high technology health care services that support the goals of basic health care, namely, prevention, diagnosis, and treatment. Yet proposals for reform focus on access to basic minimums, or alternatively on rationing, of largely traditional health care services. When high technology basic health care services are denied by insurers, patients often seek alternative inefficient and costly means to obtain the services; if they forgo them, they may ultimately require emergency care that is more costly than the denied benefits. This Article suggests that, paradoxically, addressing the health care crisis may require legal structures that support universal access to the very technologies elevating the costs of health care under the current system. Using predictive technologies as a case study, the Article proposes a new paradigm for the distribution of basic health care services, which I term Basic Capability Equality of Health Care. The Article develops this universal access paradigm from the formal work of economist Amartya Sen, which has long been neglected in legal scholarship. Sen's theory of basic capability equality informs a framework for health care distribution that more fully considers patient freedom in choosing amongst effective medical services than dominant frameworks, without increased expenditures. Simply stated, under Basic Capability Equality of Health Care, individuals would have access to all clinically effective services - traditional and high technology - that support basic health care. Operating under insurance budget limitations and with physician guidance, individuals would make trade-offs and choose from amongst these goods, in order to maximize their health. This approach accounts better than traditional paradigms for biological variation that may influence patient choice as well as the indirect and uncertain basic health care benefits afforded by some high technology, such as predictive testing. While basic capability equality of health care provides strong support for patient choice of services, it does not lead to consumer-driven health care; patients will not manage their health care funds themselves, and consultation with physicians is vital to identifying and comparing medical treatments. The Article includes an Appendix that discusses how the capabilities enabled by basic health care services might be valued in order to make intrapersonal and interpersonal comparisons.
Solving the Employee Reference Problem: Lessons from the German Experience

Employers in the United States confront an inability to secure refer ences for prospective employees due to the American legal environment which does not require that references be given. References are legally mandated in Germany. This Article explores the workings of these two legal regimes. Although it does not recommend the adoption of a mandatory reference system, it argues that much can be learned from the German experience. It proposes the creation of a legal safe harbor for a voluntary reference pool.
Blogs and the Promotion and Tenure Letter

Should blogs count as legal scholarship for purposes of tenure? This essay looks at the line between legal scholarship and service. It considers the value of blogging and the role it should play in a person's tenure review.
Quantifying survey expectations: A critical review and generalization of the Carlson–Parkin method

Abstract This paper provides a critical review of the popular Carlson–Parkin (CP) quantification method using household-level data from the University of Michigan’s Survey of Consumers . We find strong evidence against the threshold constancy, symmetry, homogeneity, and overall unbiasedness assumptions of the CP method. To address these violations, we generalize the CP method using a hierarchical ordered probit (HOPIT) model. By comparing the quantified inflation expectations with quantitative expectations obtained from the same set of households directly, we show that the generalized model performs better than the CP method. In particular, when the CP unbiasedness assumption is replaced by a time-varying calibration, the resulting quantified series is found to track the quantitative benchmark well, over diverse time periods.
Portfolio size and information disclosure: An analysis of startup accelerators

We study the information-gathering role of a startup accelerator and consider the accelerator’s incentives to choose a portfolio size and disclose information about participating ventures. We show that in a rational-expectations equilibrium, the resultant portfolio size is smaller than the first-best (efficient) level, consistent with some real-world observations. We further show that when some signals are uninformative and the portfolio consists of mostly high-quality ventures, the accelerator may choose to disclose only positive signals (and conceal negative signals) about its portfolio firms — a strategy we refer to as partial disclosure. Moreover, coupled with pursuing this strategy of partial disclosure, we demonstrate that the accelerator may possess incentives to exit its portfolio firms early.
Debt Collateralization, Capital Structure, and Maximal Leverage

We study the effects of allowing risky debt to be used as collateral in a general equilibrium model with heterogeneous agents and collateralized financial contracts. With debt collateralization, investors switch to using exclusively high-leverage contracts for every investment they choose (issuing risky debt when possible). High-leverage positions maximize the ability of contracts to serve as collateral, expanding the set of state contingencies created from collateralized debt. We provide conditions under which debt collateralization will increase the price of the underlying asset. Our results also apply to variations in capital structure since many capital structures implicitly provide the ability to use debt contracts as collateral.
Privatization of refuse removal and labor costs

We examine the labor-cost savings associated with privatization by comparing earnings and employment trends of public and private sector refuse workers. Findings suggest that high union earnings for workers in the public sector are a source of labor-cost savings in the refuse industry. Evidence on job changers does not indicate that earnings for this group of workers are a compensating differential. Metropolitan area employment findings suggest that municipalities are less likely to use union refuse workers in the public sector when a relatively small percentage of area residents belong to a union.
Onshore and Offshore Hedge Funds: Are They Twins?

Contrary to offshore hedge funds, U.S.-domiciled “onshore” funds are subject to strict marketing prohibitions, accredited investor requirements, a limited number of investors, and taxable accounts. We exploit these differences to test predictions about organizational design, investment strategy, capital flows, and fund performance. We find that onshore funds are associated with greater share restrictions, more liquid assets, and a reduced sensitivity of capital flows to superior past performance. We also find some evidence that onshore funds outperform offshore funds, depending on the sample period. The results suggest that a fund's investment and financial policies reflect differences in investor clienteles and the regulatory environment. This paper was accepted by Wei Xiong, finance.
Life expectancy as a constructed belief: Evidence of a live-to or die-by framing effect

Life expectations are essential inputs for many important personal decisions. We propose that longevity beliefs are responses constructed at the time of judgment, subject to irrelevant task and context factors, and leading to predictable biases. Specifically, we examine whether life expectancy is affected by the framing of expectations questions as either live-to or die-by, as well as by factors that actually affect longevity such as age, gender, and self-reported health. We find that individuals in a live-to frame report significantly higher chances of being alive at ages 55 through 95 than people in a corresponding die-by frame. Estimated mean life expectancies across three studies and 2300 respondents were 7.38 to 9.17 years longer when solicited in a live-to frame. We are additionally able to show how this framing works on a process level and how it affects preference for life annuities. Implications for models of financial decision making are discussed.
Decentralizing the lawmaking function: Private lawmaking markets and intellectual property rights in law

Abstract In a series of articles and a book published shortly before his death, Professor Larry Ribstein argued for decentralizing the lawmaking function, enabling private parties to make law, and harnessing the market as a force for legal innovation. As part of this project, Professor Ribstein, along with Professor Bruce Kobayashi, called for broader intellectual property (IP) rights in legal creations. Their argument relies on the conventional quasi-public goods rationale for IP rights. Innovators have suboptimal incentives to create new law in the absence of property rights because competitors can free ride on their creations. As a result, without IP rights, privately-made law would be created, as it is today, mostly as a byproduct of other activities such as litigation or political rent-seeking. And byproduct lawmaking is likely to produce suboptimal law. Broader IP rights solve the free rider problem and thus make possible a vigorous private lawmaking market. This article examines the case for granting broader IP rights in law as a way to incentivize legal innovation in a private lawmaking market. The discussion begins by briefly examining some of the benefits and costs of harnessing the private market to produce better law. With this background in place, the article then turns to the case for IP rights in law. It first surveys the limited scope of protection under current IP law and then discusses the benefits and costs of expanding IP rights. The article closes by focusing on some special problems with granting property rights in aspects of common law adjudication, such as litigation documents and judicial decisions. In the end, the goal is to inject a note of caution. Private lawmaking is more attractive for some types of legal innovation and less attractive for others, and it is not clear that broader IP rights are necessary or desirable to spur legal innovation in a private market. It might be best to proceed incrementally, by first removing the professional barriers to competition and then expanding IP rights only if experience with the new market supports the need for additional protection.
The Aversion to Direct Cost Imposition: Selecting Climate Policy Tools in the United States

Numerous policy tools could be employed in attempting to mitigate climate change through reducing greenhouse gas emissions. Direct cost imposition through the taxation of carbon content of fossil fuels has long enjoyed support from diverse policy analysts but has proven highly difficult to advance politically in the United States and many other nations. This article considers the evolving American experience in climate policy tool selection, including extended engagement by many states over the past decade and growing federal involvement in recent Congresses. It demonstrates the enduring aversion to direct cost imposition as opposed to other policy options. This includes a brief period in late 2008 and early 2009 when prospects for direct cost imposition heightened markedly at the federal level but collapsed quickly in favor of a melange of other approaches that are likely to be less efficient but also less direct in their imposition of costs. The article concludes with considerations of other methods to advance direct cost imposition in the American case.
RLUIPA and Exclusionary Zoning: Government Defendants Should Have the Burden of Persuasion in Equal Terms Cases

Zoning and other land use regulations are often used to hinder the operation of religious institutions or the construction of their facilities. In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), in part to combat such exclusionary land use practices. RLUIPA’s Equal Terms Provision forbids governments from imposing land use regulations that treat religious institutions on less than equal terms with secular institutions. Despite the apparent clarity of the statutory language, federal circuit courts have disagreed over the allocation of burdens of proof in Equal Terms cases. Some circuits have held that religious plaintiffs have the burden of persuasion, while others have held that the burden of persuasion falls on government defendants. The allocation of burdens is important because it is generally more difficult for the party charged with the burden of persuasion to succeed at trial. This Note approaches the circuit split by examining RLUIPA’s legislative history and public policy goals, as well as comparing Equal Terms cases with federal exclusionary zoning cases, and with Free Exercise Clause jurisprudence. Ultimately, this Note argues that in light of the above comparisons, as well as RLUIPA’s clear statutory text, the government, not the religious plaintiff, should have the burden of persuasion in Equal Terms cases.
Red potato chips: segmentation cues can substantially decrease food intake

Objective To discover a scalable method of food-packaging presentation, which can help reduce per occasion food consumption by making portions sizes more salient and segmented. Methods Two studies of American undergraduates who ate from tubes of potato chips while watching a movie. In each study, participants ate chips that were either identical (the control group) or which had colored chips inserted at regular intervals (the treatment groups). One treatment group had a distinctively different (reddish) chip present at every 7th (Study 1) or 5th (Study 2) chip, and the 2nd treatment group had one present every 14th (Study 1) or 10th (Study 2) chip. Measures were the number of chips consumed and (in Study 1) the participants estimates of how many they believed they consumed. Results In both studies, chip consumption was reduced by more than 50%, averaging across the 2 segmentation intervals, with no significant difference between the 2 intervals. Estimates of amount consumed were much more accurate when there was segmentation. Conclusion Segmenting a package effectively reduced consumption in the settings we have explored. Segmentation cues may operate by any or all of 3 mechanisms: (a) they call attention to and encourage better monitoring of eating, (b) they suggest smaller consumption (portion size) norms, or (c) they break automated eating sequences by introducing a pause. There is some evidence from the 1st study that provides evidence for the 1st, monitoring account.
Promises of Accession: Reassessing the Trade Relationship between Turkey and the European Union

This Article reassesses the Turkey-European Union trade relationship in light of the doctrine of promissory estoppel. It argues that the European Court of Justice (ECJ) in Yedas Tarim should have used more explicitly the doctrine of promissory estoppel as an equitable device to create liability for the potential detriment suffered by Turkey in relying on the promises made by Brussels. Through an overview of Turkey-European Union (E.U.) relations from the early 1950s until today, with particular attention to accession negotiations and the trade relationship between Turkey and the European Economic Community, this Article highlights the anomalous trade context that characterizes the unbalanced Turkey-E.U. relationship. The Author suggests understanding the Yedas Tarim litigation as a response to the disappointment of the Turkish elites, especially the ones who were most committed to Turkish membership in the European Union. While the Luxembourg courts might not be the most appropriate fora to clarify the costs and benefits of the E.U.-Turkey trade relationship, in Yedas Tarim, the Courts lost the opportunity to assess the existence of major imbalances created by the obligations in the overall trade regime between Turkey and the E.U. By focusing on the reasons of the Turkish distrust towards Brussels, Yedas Tarim marks an important shift of perspective towards the current debate on the Turkish membership to the E.U. In this respect, the Author suggests reassessing the macro-economic implications created by the Ankara Agreement, the Customs Union between the E.U. and Turkey and the promises of accession by Brussels vis a vis Turkish legal and political elites, local businesses at home and immigrant workers in Europe.
INDIVIDUAL EQUITY RETURN DATA FROM THOMSON DATASTREAM: HANDLE WITH CARE!

We compare individual U.S. equity return data from Thomson Datastream (TDS) with similar data from the Center for Research in Security Prices (CRSP) to evaluate TDS for use in studies involving large numbers of individual equities in markets outside the United States. We document important issues of coverage, classification, and data integrity and find that naive use of TDS data can have a large impact on economic inferences. We show that after careful screening of the TDS data, inferences drawn from TDS data are similar to those drawn from CRSP. We illustrate the importance of the screens we develop using U.S. TDS data by applying the screens to TDS data from four European equity markets.
Does backdating explain the stock price pattern around executive stock option grants

Abstract Extant studies show that stock returns are abnormally negative before executive option grants and abnormally positive afterward. We find that this return pattern is much weaker since August 29, 2002, when the Securities and Exchange Commission requirement that option grants must be reported within two business days took effect. Furthermore, in those cases in which grants are reported within one day of the grant date, the pattern has completely vanished, but it continues to exist for grants reported with longer lags, and its magnitude tends to increase with the reporting delay. We interpret these findings as evidence that most of the abnormal return pattern around option grants is attributable to backdating of option grant dates.
Conditional Negative Sampling for Contrastive Learning of Visual Representations

Recent methods for learning unsupervised visual representations, dubbed contrastive learning, optimize the noise-contrastive estimation (NCE) bound on mutual information between two transformations of an image. NCE typically uses randomly sampled negative examples to normalize the objective, but this may often include many uninformative examples either because they are too easy or too hard to discriminate. Taking inspiration from metric learning, we show that choosing semi-hard negatives can yield stronger contrastive representations. To do this, we introduce a family of mutual information estimators that sample negatives conditionally -- in a "ring"around each positive. We prove that these estimators remain lower-bounds of mutual information, with higher bias but lower variance than NCE. Experimentally, we find our approach, applied on top of existing models (IR, CMC, and MoCo) improves accuracy by 2-5% absolute points in each case, measured by linear evaluation on four standard image benchmarks. Moreover, we find continued benefits when transferring features to a variety of new image distributions from the Meta-Dataset collection and to a variety of downstream tasks such as object detection, instance segmentation, and key-point detection.
Inventive Application: A History

The Supreme Court’s recent cases on patent-eligible subject matter have struggled to draw the line between unpatentable fundamental principles, such as laws of nature and abstract ideas, and patentable inventions. In Mayo v. Prometheus, the Court suggested that only “inventive applications” of fundamental principles fall within the domain of the patent system. Both Mayo and its intellectual forebear, Parker v. Flook, anchored this doctrine in Neilson v. Harford, the famous “hot blast” case decided by the Court of Exchequer in 1841. But the Supreme Court has founded the inventive application doctrine on a basic misapprehension. Neilson’s patent on the hot blast was sustained not because his application was inventive, but because it was entirely conventional and obvious. In both England and the United States, the hot-blast cases taught that inventors could patent any practical application of a new discovery, regardless of the application’s novelty or inventiveness. And for over one hundred years, American authority consistently maintained that practical application distinguished unpatentable discovery from patentable invention. The inventive application test in fact originated in 1948, in Funk Brothers v. Kalo Inoculant, which departed radically from the established standard of patent eligibility. In the wake of Funk Brothers, the lower courts struck down a series of patents unquestionably within the technological arts—arguably the precise innovations the patent system sought to promote. This history is largely forgotten today, but it should serve as a cautionary tale of the patents that could be invalidated if the Court maintains inventive application as the test for patent eligibility. INTRODUCTION 566 I. THE ROAD TO MAYO: A BRIEF SKETCH 570 II. THE HOT-BLAST CASES 577 A. Antecedents: The Watt Patent and “Principles” 578 B. The Hot Blast 579 C. The Neilson Case 580 * Professor of Law, University of California, Hastings College of Law. I thank Martin Adelman, John Golden, Peter Menell, Ted Sichelman, Richard Stern, and especially Joshua Sarnoff for helpful criticism and suggestions. 566 FLORIDA LAW REVIEW [Vol. 67 D. The Hot-Blast Cases Following Neilson 588 E. The Hot-Blast Cases in Subsequent English Law 591 III. THE HOT-BLAST CASES AND SUBJECT-MATTER ELIGIBILITY IN THE UNITED STATES: THE NINETEENTH CENTURY 593 A. Neilson at the Supreme Court 594 B. Lower Courts in the Late Nineteenth Century 602 C. Learned Treatises in the Nineteenth Century 605 IV. THE TWENTIETH CENTURY BEFORE FUNK BROTHERS 609 A. The Supreme Court in the Early Twentieth Century 609 B. The Lower Courts in the Early Twentieth Century 612 C. Commentary in the Early Twentieth Century 621 V. THE BIRTH OF INVENTIVE APPLICATION 623 A. Funk Brothers 624 B. The Reaction to Funk Brothers 631 C. Funk Brothers’ Progeny 635 1. The Davison Chemical Line 635 2. Flook: Funk Brothers Revived 640 CONCLUSION 645
Radio Frequency Identification and Privacy Law: An Integrative Approach

The indiscriminate nature of Radio Frequency Identification (RFID) technology creates unique privacy issues. Currently privacy standards for the type of information gathered through RFID and the use of that information do not exist. With few exceptions, compatible readers may legally access from a remote location RFID devices and the information these devices contain. After gathering information, the legal uses of that information are innumerable in terms of aggregation and re-use.
Information and experimentation in short-term contracting

The impact of information dissemination and experimentation on dynamic adverse selection in noisy agency relationships is examined. Significant deviations in terms of equilibrium actions and payments occur, when compared to deterministic environments. Information dissipates slowly, so payments to agents who stand to lose informational rents over time are lower than compared to deterministic settings. Moreover, the principal manipulates the agent's actions to affect the informativeness of the signal. Thus, the principal trades-off lower initial payments with higher informational rents later. Simultaneously, the principal manipulates the signal distribution to enhance his ability to learn about the agent's type.
Where There Is a Right, There Must Be a Remedy (Even in Medicaid)

The anticipated growth of Medicaid under the ACA will likely aggravate an ongoing dispute surrounding private enforcement of the Medicaid Act. The Medicaid Act does not provide a private right of action except when a person who is eligible for Medicaid is denied entry into the program. Nevertheless, historically, both Medicaid providers and beneficiaries have been able to protect their rights through 42 U.S.C. § 1983, which allows individuals to seek redress against states in federal court for violations of statutory or constitutional rights, or through the Supremacy Clause, which prevents states from enacting laws that violate superseding federal laws. These actions both shield the individuals who seek federal court protection and flag state noncompliance for the understaffed HHS, but such litigation is imperiled by increasingly aggressive state sovereignty arguments in federal courts and by a conservatively-leaning Supreme Court. The question is which story the Supreme Court will believe the next time a state successfully petitions for certiorari.This article explores the power struggle that Medicaid invites and its potential escalation due to the pressures that will follow the ACA’s implementation. Part I describes the three phases of private enforcement litigation and how they have affected Medicaid reimbursement rates. This part also highlights the deceptive stability that has taken root in the lower federal courts by describing recent state attempts to end private enforcement actions. The first part concludes by briefly considering the nature of the federalism arguments that states are making. Part II explains why lawmakers missed an important opportunity to add an explicit right of action to the Medicaid Act when drafting the ACA, while at the same time they created a law that will increase the need for federal oversight. The second part also explores how the ACA contributes to the Medicaid power struggle. The Article concludes that private actions in federal court provide indispensable balance as well as a much needed de facto oversight mechanism for the already overextended, underfunded HHS. (This paper was prepared for a symposium issue entitled "Medicaid Matters," which is related to a workshop that took place at the University of Kentucky in March of 2013.)