Fact Finding Research Articles

3070 Time to Diagnostic Resolution After an Abnormal Screening Mammogram: a Single-Center Experience in an Underserved Hospital

OBJECTIVES/SPECIFIC AIMS: The study aims to identify patient and provider factors associated with delay in diagnostic resolution after an abnormal screening mammogram, with an emphasis on whether patients who spoke Chinese as their primary language sustained longer times to resolution. Primary outcome is to identify what proportion of patients achieve diagnostic resolution after abnormal screening mammogram within 90 days. Secondary outcome is to identify whether Chinese-speaking patients experience longer times to diagnostic resolution. METHODS/STUDY POPULATION: We performed a single-center retrospective cohort study at Tufts Medical Center (TMC), a tertiary care hospital that serves as the primary referral site for the Chinatown neighborhood in Boston. We included patients who underwent screening mammogram between 10/1/2015-9/30/2016 which was resulted as BIRADS-0 (non-diagnostic). Diagnostic resolution was defined as BIRADS-1, 2, or 3 imaging or definitive biopsy. We collected data on patient demographics (age, insurance plan, race/ethnicity, primary language, history of cancer), provider characteristics (referring provider location), and post-referral testing. Insurance was categorized as private-only or subsidized. Poverty was categorized using the American Fact Finder database, with a binary variable of <20% of ≥20% people in poverty for a given zip code. We performed descriptive statistics for all variables. We will perform multivariable Cox regression analyses to determine whether Chinese-speaking patients experience longer time to diagnostic resolution, adjusting for age, referring provider type, insurance status, poverty, and breast cancer history. We will use p<0.05 for our threshold for significance. RESULTS/ANTICIPATED RESULTS: We identified 386 patients who met inclusion criteria. Over half (55.9%) of patients were Caucasian, the mean age of study patients was 59 years, and 22% of patients were classified as poor. English was the most commonly spoken primary language (77.7%), while 15.3% of patients identified a Chinese dialect as their primary language. Most patients solely used private insurance for their medical care (73.1%). Majority of patients (83%) presented after undergoing a routine screening mammography, but a considerable proportion (14.4%) had prior breast cancer or a palpable mass. Most patients were referred for their screening mammogram by a hospital-based provider at TMC (85%), of which 77% of TMC referrals were from primary care. We also noted a limited number of referrals from community health centers, private practices and other PCP’s (Table 1). We will calculate median time to diagnostic resolution after screening mammogram and the proportion of patients who achieve resolution within 90 days. We will also calculate time to initiation of diagnostic workup, and whether this differed among Chinese-speaking patients, subsidized patients, or among those who were referred from outside of TMC. We will complete Cox multivariable analysis to identify if Chinese-speaking patients experience longer time to diagnostic resolution, adjusting for age, insurance status, Primary care provider location, poverty, and prior history of breast cancer. We will a priori test for an interaction between primary care provider within Tufts and Chinese as primary language to identify if a PCP within TMC modifies the relationship between Chinese language and time to resolution. DISCUSSION/SIGNIFICANCE OF IMPACT: The proposed study will identify whether disparities exist in time to achieving diagnostic resolution. Specifically, we will identify if patients who are primarily Chinese-speaking experience longer time to resolution. Our results will potentially provide the foundation for a patient navigation program to attenuate existing disparities by providing additional support for Chinese speaking patients in breast imaging workup.

“Documenting Atrocity Crimes Committed Against the Rohingya, Accountability and Next Steps”—An Overview of the Conference Held by the Public International Law and Policy Group (PILPG)

The PILPG conference was held on 21 February 2019 at the Vrije Universiteit Amsterdam. The objective of the conference was to present the factual findings and legal analysis of PILPG’s documentation of the atrocity crimes committed against the Rohingya in Myanmar’s Rakhine State. PILPG is a global pro bono law firm with the headquarters in Washington D.C. PILPG recently conducted an unprecedented and comprehensive human rights investigation mission in the refugee camps and settlement areas in Eastern Bangladesh.

Abstract 191: Socioeconomic Disparity Independently Predicts Initial Ischemic Stroke Severity

Introduction: Lower socioeconomic status (SES) associates independently with poorer outcomes after stroke. We have previously demonstrated that the relationship between low SES and worse stroke outcomes is mediated by larger infarct size on presentation. Here, we tested the hypothesis that the relationship between SES and initial stroke severity varies across stroke subtypes. Methods: Consecutive patients (N=1168) presenting to Massachusetts General Hospital with acute ischemic stroke (mean age= 68, 55.1% male) underwent brain MRI within 24 hrs of admission. Infarct volume on DWI and admission NIH stroke scale (NIHSS) score were recorded. Stroke etiology was classified using the causative classification system. SES was assessed using local median household income as a proxy (by home zip code, using U.S. Census Bureau Fact Finder). Results: Both infarct volume and admission NIHSS score increased with decreasing SES tertiles: [NIHSS median (IQR): 5.0 (2.0, 12.0) vs. 4.0 (2.0, 11.0), vs. 3.0 (1.0, 9.0), p = 0.002], [Infarct volume median (IQR): 7.2 (1.5, 28.2) vs. 5.9 (1.5, 30.2) vs. 4.6 (1.0, 19.9), p = 0.02]. This relationship was mainly driven by LAA and CE categories (Figure). Lower SES predicted infarct volume and NIHSS score in combined group of LAA and CE after adjusting for traditional stroke risk factors and history of previous stroke (standardized β [95% CI]) NIHSS: -0.15 [-1.6, - 0.5] p < 0.001, infarct size: - 0.10 [-10.6, -1.8], p = 0.006). Conclusions: While disparities in post stroke care may play an important role in the relationship between lower SES and worse outcomes, we show that this association is also significantly driven by a tendency towards developing larger, more severe strokes on presentation, mainly caused by LAA and CE.

Nullify, Postpone, Suspend, Stay, and Replace: The Trump Administration and the Methane Waste Prevention Rule

The words nullify, postpone, suspend, stay, and replace encapsulate the actions taken during the first two years of the Trump Administration to reverse existing environment and energy policies. Although President Trump’s policy initiatives have touched on a variety of issues, such as coal, wetlands, air quality, and public lands, this article focuses on one particular rule promulgated during the Obama Administration: the 2016 methane waste prevention rule (MWPR). To provide context, Part I briefly reviews how the executive branch can act to change existing laws, regulations, and policies. Parts II and III describe the 2016 methane waste prevention rule and efforts of the Trump Administration to nullify, postpone, suspend, stay, and replace the rule. While efforts to suspend or delay “Obama rules” have achieved mixed results, in most instances the courts have not yet determined whether President Trump’s replacement regulations will be upheld under the “arbitrary and capricious” standard of review set forth in the Administrative Procedure Act. Part IV discusses whether the Bureau of Land Management’s 2018 rule, which replaces the 2016 MWPR, is a lawful agency action. Part IV also looks at Indigenous Environmental Network v. United States Department of State, a federal district court decision that held the State Department engaged in unlawful agency action when it disregarded prior factual findings and reversed course regarding the Keystone XL pipeline project. Indigenous Environmental Network could be a harbinger of future court decisions that will likewise strike down attempts by the Trump Administration to reverse and replace environmental and energy policies.

The Fraud Test and 'Manifest Injustice' under the New Act

Perhaps two of the most significant changes in the Land Transfer 2007 Act (NZ), are the introduction of a statutory definition of land transfer fraud, together with a provision allowing registration to be overturned on grounds other than a finding of fraud by the new registered proprietor. This is where the registration result is considered to be “manifestly unjust.” The statutory definition of the fraud test is considered to be cumbersome, unsatisfactory and indeed badly drafted, indicating perhaps the inadvisability of incorporating a statutory definition of this construct in the legislation. The manifest injustice test is equally considered to be problematic. It allows the Torrens registered result to be overturned on the general grounds that the registered result is manifestly unjust. This determination cannot be made without a court hearing, with relevant factual findings being made by the court that relate to the effect of the transaction under consideration on affected parties, including holders of unregistered interests. By application of such a test, the land can be returned notwithstanding the absence of any finding of fault, fraud or improper dealing by the new title registrant. Indeed, the relevant grounds suggests a statutory bias in favour of returning land. Furthermore, the hapless new registrant will have to bear their own litigation costs in defending their registered status, even though they are not a wrongdoer. This is because that party is only entitled to compensation from the State if the title registration is overturned. This raises the issue of whether we still have an immediate indefeasibility system, or indeed even a State guarantee as the registered result.

Factors influencing customer intention to stay in green hotel in Malaysia

Customer stay intention (CSI) in green hotel needs a disclosure as there has been interest sought after by customer, society and business owners. Understanding customers drive and factors influencing their choices on green hotel is a very difficult task as it deals with complex human decision. No past studies had been done to assess customer stay intention (CSI) in Green Hotels in Malaysia as this study aims to provide factual findings for decision making and policy implementation. This study investigates the relationship between subjective norm (SN), perceived behavioral control (PBC), environmental awareness (EA), and perceived moral obligation (PMO) towards customer stay intention (CSI) in green hotel. A research model was developed to analyze the influence of SN,PBC,EA, and PMO towards CSI as extended from Theory of Planned Behavior (TPB). The survey was participated by 300 respondents that gathered what influenced CSI. These findings suggested that SN, PBC, EA, and PMO have positive influence towards CSI. Research deducted as environmental awareness (EA) has the strongest relationship with the customer stay intention. (CSI) in a green hotel and followed by the perceived moral obligation (PMO), perceived behavioural control (PBC) and subjective norms (SN) chronologically.

Thinking Fast and Slow About the Concept of Materiality

Determining whether, for securities law purposes, a misrepresentation or omission is material raises interesting questions. The Court of Appeals in SEC v. Texas Gulf Sulfur Co. provided some guidance on materiality and the U.S. Supreme Court has weighed in several times in the past 50 years. This article first discusses what Texas Gulf Sulfur contributed to the doctrine of materiality, then briefly considers other dimensions of the doctrine, and finally moves to its thesis: The doctrine of materiality should take into account important psychological insights and heuristics that may affect the way that a fact finder decides whether a misrepresentation or omission is material. In that regard, this article draws heavily on the work of a Nobel Prize winning psychologist, Daniel Kahneman, and his influential book, Thinking, Fast and Slow.

Is There Even A Standard of Review at the ICC?

The jurisprudence of the ICC has been described as a Darwinian struggle between the civil and common law traditions. Nowhere is this clearer than in the standard of review employed by the Appeals Chamber. Most practitioners – particularly those from common law jurisdictions – thought that that the Appeals Chamber employed three putatively distinct standards of review with respect to questions of facts, law, and the exercise of discretion. With respect to errors of law, the standard of review was one of correctness (in Lubanga, the court held that the Appeals Chamber “will not defer to the Trial Chamber’s interpretation of the law…[but] will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law.”), with respect to errors of facts, the standard was one of reasonableness and deference to the Trial Chamber (in Lubanga, the Appeals Chamber stated it would “not interfere with factual findings of the first-instance Chamber unless it is shown that the Chamber committed a clear error, namely, misappreciated the facts, took into account irrelevant facts, or failed to take into account relevant facts,” and where “it cannot discern how the Chamber’s conclusion could have reasonably been reached”) (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction (Appeals Chamber), No. ICC-01/04-01/06-3121-Red A5, 01 December 2014, paras. 16-27). With respect to the exercise of discretion, in Kony, the Appeals Chamber held that the standard was one of abuse of discretion (Prosecutor v. Joseph Kony et al. Judgment on the appeal of the Defence against the on the admissibility of the case under article 19 (1) of the of 10 March 2009, 16 September 2009, ICC-02/04-01/05-408, para 80). However, the Bemba Appeals Decision turned this all on its head. The Appeals Chamber found (by the narrowest 3-2 vote) that while correctness remained the standard with respect to errors of law, errors of fact would not be reviewed on a purely reasonableness standard (“The Appeals Chamber must be careful not to constrain the exercise of its appellate discretion in such a way that it ties its own hands against the interest of justice…[The] Appeals Chamber must ensure that the trial chamber reasonably reached a conviction as to guilt beyond reasonable doubt in accordance with article 66(3) of the Statute ”) (Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute” (Appeals Chamber), No. ICC-01/05-01/08-3636-Red 08-06-2018, paras. 40-41). The Bemba decision provoked immediate outrage. I argue that the jurisprudence of the ICC was never clear on the standard of view – pace the view of many scholars. Analyzing the decisions of the Appeals Chamber, I show that the debate between correctness and reasonableness had never been fully resolved – even prior to Bemba – and reflects in large part the different legal background of judges. I conclude with a proposal for how the court might harmonize and simplify its approach.

A review of the diversity in taxonomy, definitions, scope, and roles in forensic medicine: implications for evidence-based practice

The scope, roles, and tasks of forensic medicine and forensic medical experts currently vary widely between countries and legal systems, which has resulted in barriers to organization, standard setting, and quality assurance for practice in forensic medicine, including for reporting. The legal fact finder is thus confronted with variability in the quality, structure, and content of forensic medical reports. We sought to define and categorize the scope, methods, and practices that fall under the description of forensic medicine, the various issues encountered in current forensic medical practice, and the potential role of evidence-based practice in forensic medicine. We searched electronic databases and reviewed relevant articles, as well as conducting personal correspondences with forensic medical practitioners around the world, to obtain a description of current forensic medical practice. The terms forensic medicine, legal medicine, medical jurisprudence, medico-legal services, forensic pathology, and clinical forensic medicine are used with mixed interpretations in different countries. The systems and services rendered are not uniform either. The methods used by forensic medical practitioners are not always evidence-based, or based on standardized methods, and vary greatly between experts and centers. There are also no universally accepted guidelines to prepare a standard and admissible report. The lack of a uniform system in forensic medicine creates difficulties in assessing the development and performance of forensic medicine as a distinct discipline. To prepare evidence-based forensic medical reports, generally accepted guidelines are necessary.

Techniques of Knowing in Administration: Co‐production, Models, and Conservation Law

Law frequently demands the production, sometimes effortful, of adequate knowledge for decision making. This article explores the challenging epistemic demands made by nature conservation law during planning law approval processes for major offshore wind farms. It explores this area through the prism of co‐production: not only are ‘science’ and ‘facts’ socially and legally constructed, but in addition, scientific and factual findings shape society, and law and governance. Models are used in planning law to assess whether bird deaths associated with a proposed wind farm will have an adverse effect on the integrity of a protected site. As much as providing an accurate factual representation of the impact of a wind farm on biodiversity, the models contribute to the very possibility of governing the impact of these novel infrastructure developments on biodiversity.

Still Searching for a Reliable Script: Access to Scientific Knowledge in Environmental Litigation in Italy

During the past 20 years, the rules on evidence and the approach to access to scientific knowledge by administrative courts have evolved towards a some- what closer look to the factual findings upon which administrative decisions are based. The practice of judicial review, including in environmental matters, however, is often rather deferent to the findings of the public decision makers. In practice, judicial review in environmental cases is therefore still very much focused on the reasons given, looking at their logical consistency more than at their soundness, and even less so at the soundness of the decision taken (unless of course the decision plainly conforms to or instead flies in the face of common sense). It is submitted that the more hands-off judgments are hard to reconcile with the requirement of "substantive legality" review predicated in Article 9 of the Aarhus Convention.

Discovery Cost Allocation, Due Process, and the Constitution's Role in Civil Litigation

In recent years, both scholars and rule makers have begun to reconsider the long established practice of the producer-pays model of discovery cost allocation. There are many arguments, on both sides of the issue, as to whether this practice represents wise social policy. In this article, however, Professor Redish challenges the constitutionality of the producer-pays model when applied to defendants, under both the Equal Protection and Due Process Clauses. Professor Redish initially characterizes the cost of a litigant’s discovery as the requesting party’s cost, even though the initial outlay for those costs is made by the producing party. In doing so he reasons by analogy to the doctrine of quantum meruit. On the basis of this premise that the costs of discovery are appropriately seen as the costs of the requesting party, he characterizes the requirement that the producer of the discovery bear the costs incurred in making production as simply a forced subsidy of what are properly deemed the requesting party’s costs. Such forced subsidization, he argues, constitutes a deprivation of a defendant’s property, which can be justified under equal protection only if it is at least rational. He argues that absent a finding that plaintiff’s injury was in fact caused by defendant’s violation of plaintiff’s legal rights, it is irrational to distinguish a defendant from any other member of society as a potential subsidizer of plaintiff’s discovery costs. Under the Due Process Clause, unless the plaintiff has factually established the truth of his allegation of defendant’s fault before a neutral adjudicator, imposition of plaintiff’s discovery costs on defendant is unconstitutional because it is impossible to distinguish the defendant from any other potential subsidizer. Because discovery takes place at a point in the litigation process before any evidentiary showing has been made or any factual determinations have been made by a neutral adjudicator, Professor Redish argues, the deprivation of defendant’s property to subsidize plaintiff’s costs constitutes an unconstitutional deprivation of defendant’s property. According to Professor Redish, then, the issue of discovery cost allocation is not one of social or legal policy, but rather one purely of constitutional law.

The Role of Objective Indicia in Assessing the Nonobviousness of Pharmaceutical Inventions

This article examines the current status of objective indicia in deciding nonobviousness, particularly in the pharmaceutical arts, an area of technology where their weighting can at times prove outcome determinative. The article begins by looking at how these various factors have been applied in the context pharmaceuticals, including numerous specific examples. It then summarizes the current split on the Federal Circuit regarding the role of objective indicia analysis in determinations of nonobviousness, particularly as exposed by divergent opinions issued in Apple v. Samsung. Apple highlights a number of unresolved and highly disputed aspects of the court’s current nonobviousness jurisprudence, including a fundamental disagreement as to the import of the Supreme Court’s most recent nonobviousness decision, KSR v. Teleflex. The judges also voiced strong disagreement as to the use of extra-record evidence in a determination of nonobviousness, the extent to which an appellate court is permitted to make factual findings in a nonobviousness determination, the standard for and scope of appellate review of nonobviousness determinations, and even the appropriate role of en banc proceedings before the Federal Circuit. Of particular relevance to this article, Apple highlights a clear division in the judges’ view on the role of secondary considerations in nonobviousness analysis.

Alternative Dispute Resolution for Islamic Finance in Malaysia

The law lays down rules that govern private disputes, self-help actions or open-conflicts that may occur in the society. Here, courts, tribunals, arbitration and other dispute resolution forums are the main secular institutions in dispensing just resolutions in a society. As important as the court proceedings, Alternative Dispute Resolution (ADR) process is neutral, it is like a judge who served as the finder of fact and decision maker for the parties involved. By adapting the ADR methods in resolving the disputes relating to Islamic financial products, this method will able to fulfil with the demands on Islamic financial markets in Malaysia. As the highest law of the land places Islam, the religion associated with one of the main ethnicity, as the official religion of the nation and allowed the duality of economic system, in particular banking system, in which conventional banking system exists side-by-side with the Sharia-compliant, Islamic banking. This paper will reviewing the pertinent literature on the development of Islamic banking cases, the Alternative dispute resolution methods on Islamic banking and its contributions to Malaysian society regardless of ethnicity and religion. The discussion in this paper therefore will be directed towards highlighting the alternative dispute resolution methods on Islamic banking and its implication to enhance the application of Islamic banking laws to consumers regardless of ethnicity and religion, in order to maintaining fairness and justice in a multi-ethnic society.

Creating an Inclusive Culture for the Next Generation of Nurses

Health care needs of the US population are changing, and the US population is aging in tandem. Technological and medical advances are improving the survival rate of infants, children, and adults. As a result, there are increased numbers of children and older adults with complex medical needs secondary to chronic conditions such as diabetes, asthma, and chronic obstructive lung disease. Dementia among the adult population is also on the rise. Never have the demographics of the US population been more diverse. African Americans, Hispanic Americans, and Native Americans now comprise nearly 40% of the US population. 1 United States Census Bureau American Fact Finder. https://www.census.gov/quickfacts/fact/table/US/PST045216Date: April 21, 2016 Google Scholar It is projected that by 2020, more than half of the nation's children will be part of a minority race or ethnic group and that by 2060 the minority population is expected to rise to over 56% of the nation's total population. 1 United States Census Bureau American Fact Finder. https://www.census.gov/quickfacts/fact/table/US/PST045216Date: April 21, 2016 Google Scholar Significant health disparities exist among ethnic and racial minorities. 2 Martin JA Hamilton BE Sutton PD et al. Births: final data for 2007. Natl Vital Stat Rep. 2010; 58: 1-8 PubMed Google Scholar The US Department of Health and Human Services’ Healthy People 2020 goal is to achieve health equity, eliminate disparities, and improve the health of all groups. Nurses from ethnic and racial minority groups have lived experiences and also have an understanding of the experiences of others with their like backgrounds. These lived experiences positions them to provide care that meets these health disparities in a deeper and more meaningful way. 3 Ayoola A Why Diversity in the Nursing Workforce Matters. Culture of Health blog. Robert Wood Johnson Foundation, May 7, 2013http://www.rwjf.org/en/culture-of-health/2013/05/why_diversity_inthe.html Google Scholar A diverse nursing workforce is essential to meeting the health care needs of the nation and in reducing health disparities that exist among minority populations. Health care needs of the US population are changing, and the US population is aging in tandem. Technological and medical advances are improving the survival rate of infants, children, and adults. As a result, there are increased numbers of children and older adults with complex medical needs secondary to chronic conditions such as diabetes, asthma, and chronic obstructive lung disease. Dementia among the adult population is also on the rise. Never have the demographics of the US population been more diverse. African Americans, Hispanic Americans, and Native Americans now comprise nearly 40% of the US population. 1 United States Census Bureau American Fact Finder. https://www.census.gov/quickfacts/fact/table/US/PST045216Date: April 21, 2016 Google Scholar It is projected that by 2020, more than half of the nation's children will be part of a minority race or ethnic group and that by 2060 the minority population is expected to rise to over 56% of the nation's total population. 1 United States Census Bureau American Fact Finder. https://www.census.gov/quickfacts/fact/table/US/PST045216Date: April 21, 2016 Google Scholar Significant health disparities exist among ethnic and racial minorities. 2 Martin JA Hamilton BE Sutton PD et al. Births: final data for 2007. Natl Vital Stat Rep. 2010; 58: 1-8 PubMed Google Scholar The US Department of Health and Human Services’ Healthy People 2020 goal is to achieve health equity, eliminate disparities, and improve the health of all groups. Nurses from ethnic and racial minority groups have lived experiences and also have an understanding of the experiences of others with their like backgrounds. These lived experiences positions them to provide care that meets these health disparities in a deeper and more meaningful way. 3 Ayoola A Why Diversity in the Nursing Workforce Matters. Culture of Health blog. Robert Wood Johnson Foundation, May 7, 2013http://www.rwjf.org/en/culture-of-health/2013/05/why_diversity_inthe.html Google Scholar A diverse nursing workforce is essential to meeting the health care needs of the nation and in reducing health disparities that exist among minority populations.

Do Theories of Punishment Necessarily Deliver a Binary System of Verdicts? An Exploratory Essay

Scholars writing on theories of punishment generally try to answer two main questions: what human behaviour should be punished and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing—i.e., the question of the criminal standard of proof. Theories of punishment are ultimately theories about choices of action—in particular, about how to treat individuals. If this is correct, it seems that they should not overlook one of the fundamental variables governing human decision-making: the uncertainty about the facts relevant to our acting. Now, the question as to whether existing theories of punishment require a standard of proof as high as ‘proof beyond a reasonable doubt’ is gaining increasing attention in the scholarship. However, scholars working on theories of punishment give little attention to a particular way in which human decision-making handles the problem of uncertainty. In our everyday lives, we often decide in a many-valued, rather than a binary, fashion. Instead of having a single evidential threshold, the satisfaction of which determines whether we act or stay put, we tend to adjust our actions to our degree of confidence in certain states of affairs. In other words, we decide based on a ladder of evidential thresholds: the features of our actions vary according to the evidential threshold that we have satisfied. Notably, criminal trials do not follow this structure and theorists generally take this departure for granted. Why shouldn’t trials work as ‘ex post facto bets,’ whereby the response that the state is willing to ‘wager’ correlates with the fact finder’s confidence in the defendant’s guilt? The paper explores this question; in particular, it assesses whether the main theories of punishment (consequentialist, retributive, and communicative) necessarily deliver a binary system of verdicts. The work is part of a long-term research project on the comparison between the binary and the many-valued models of the system of criminal verdicts.

Analysis of evidence in international criminal trials using Bayesian Belief Networks

Abstract This article demonstrates how different actors in international criminal trials could utilise Bayesian Networks (‘Bayes Nets’), which are graphical models of the probabilistic relationships between hypotheses and pieces of evidence. We argue that Bayes Nets are potentially useful in both the examination of international criminal judgments and the processes of trial preparation and fact-finding before international criminal tribunals. With the use of a practical case study based on a completed case from the International Criminal Tribunal for the former Yugoslavia (ICTY), we illustrate how Bayes Nets could be used by international criminal tribunals to strengthen judges' confidence in their findings, to assist lawyers in preparing for trial, and to provide a tool for the assessment of international criminal tribunals' factual findings.

Reasonable Certainty & Corpus Linguistics: Judging Definiteness after <I>Nautilus</I> & <i>Teva</i>

In Nautilus (2014), the Supreme Court held “that a patent is invalid for indefiniteness if its claims...fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.” We don’t require perfect clarity because, as Festo (2002) highlights, patentees can’t achieve it. We don’t launch a post hoc judicial salvage operation to rescue slipshod text because, as the functional-claiming cases from the 1930s and 1940s highlight, others can’t adequately plan around it. Reasonably certain notice, then, is just right: § 112 “require[s] that a patent’s claims, viewed in light of the specification and prosecution history, inform those skilled in the art about the scope of the invention with reasonable certainty.” Nautilus. How then, should the Patent Office or the courts determine whether a given bit of disputed claim language is reasonably certain, for the protection of patentee and public alike? Reasonableness — a prudent point of balance between extremes — depends on context. And in Teva (2015), the Court confirmed that claim construction disputes, including claim definiteness, can turn on factual findings about a term’s meaning to artisans at a particular moment in time. This paper explores the contours of reasonably certain notice, using insights from negligence law’s reasonable care standard and procedural due process law’s reasonable notice standard. The upshot: To fairly judge the reasonableness of the notice that patent claim language provides, we must embed the claim language in more robust objective data about language usage than we currently consider — data about typical usage in the relevant art at the time the inventor applied for patent rights. Happily, we can adapt existing tools from corpus linguistics to analyze usage patterns, if we construct text corpora that are fit for purpose. The statutory demand for reasonable certainty, both at the Patent Office and in the courts, should prompt us to put these linguistics tools to work in patent law.

The Legal Life of the Areeda-Turner Test

Few works of legal scholarship have had the impact enjoyed by Areeda and Turner's 1975 article on predatory pricing. Proof of predatory pricing under the Areeda-Turner test requires two things. The plaintiff must show a market structure such that the predator could rationally foresee "recouping the losses through higher profits earned in the absence of competition." This requirement, typically called "recoupment," requires the plaintiff to show that, looking from the beginning of the predation campaign, the predator can reasonably anticipate that the costs of predation will be more than offset by the present value of a future period of monopoly profits, making the strategy a sound investment. Second, the plaintiff must show that the defendant's prices over substantial sales were below a relevant measure of cost, presumptively average variable cost (AVC) or, in some cases, marginal costs over a relatively short run.The effects of Areeda and Turner's predation test occurred in two waves, both devastating for plaintiffs. For the first fifteen years the courts focused overwhelmingly on price-cost relationship, and it quickly became clear that proving predatory pricing under an AVC test is extremely difficult. The second wave occurred after the Supreme Court's formulation of the recoupment requirement in the Brooke Group case. Few plaintiffs have won a case, and the incidence of classical predatory pricing claims has declined dramatically.That so many courts embraced the Areeda-Turner AVC test might seem surprising, given that contemporary assessments from economists were quite negative. The criticisms can be grouped into three categories. Even assuming that short run marginal cost is a useful legal test for predatory pricing, AVC is a reasonable surrogate for marginal cost only in equilibrium. "Classic" predatory pricing is not an equilibrium strategy, however, but rather a nonsustainable high output strategy. In this range AVC and MC diverge, making the Areeda-Turner test a "defendant's paradise."The AVC test is particularly underdeterrent in markets characterized by high fixed costs, which are also the markets that are most conducive to predation. Because strictly defined AVC excludes fixed costs, many nonsustainable pricing strategies are identified as legal, even though many of these might be considered anticompetitive under a more holistic approach.The most fundamental critique of the Areeda-Turner test is that, whether or not AVC is a workable surrogate for short run marginal cost, short-run measures are deficient because they exclude other types of strategic pricing behavior. Longer run strategies may involve fully sustainable pricing.Most recent antitrust complaints about exclusionary pricing have sought to avoid Areeda-Turner by focusing on more complex pricing strategies, such as market share or bundled discounts. Plaintiffs have had some but limited success in convincing courts to analogize these practices to exclusive dealing or tying rather than pricing as such. This permits condemnation even on prices above cost. But these cases also present serious problems of complexity that the courts have not yet addressed, particularly when more than two goods are in a bundle or they can be used in varying proportions. What the Areeda-Turner test promised in exchange for its deficiencies was a query that narrowed the fact finder's focus and was easier to administer. While the test largely succeeded on the first of these, ease of administration has proven elusive. The test nonetheless survives. First, it tends to keep predatory pricing cases out of court and away from juries, two properties that make it attractive to judges. Second, no one has produced something better. A superior test would have to correct for Areeda-Turner’s false negatives without going too far in the other direction. Second, it would have to be administrable by the full range of tribunals authorized to hear predatory pricing cases, which today includes jury trials.

When Special Immigrant Juveniles and Trial Courts Intersect: The Value of Data-Informed Case Management

In recent years, the United States experienced a large influx of unaccompanied alien children (UAC). While state courts do not adjudicate the immigration status of UAC, depending on the circumstances, courts may find themselves involved in the process by which UAC seek immigration relief. Special Immigrant Juvenile Status (SIJS) is a designation under the US Immigration and Nationality Act of 1990 to assist such children obtain temporary immigration relief and possibly lawful permanent residency. Obtaining SIJS requires specific factual findings to be made by a state juvenile court in a predicate order. The influx of UAC has resulted in increases in cases with SIJS requests experienced by state courts nationwide. This article describes a Maryland trial court’s evolving approach to the management of these cases and the use of data to inform and guide that evolution.