Proper Scope Research Articles

The Proper Scope of Behavioral Law and Economics

Behavioral law and economics applies the conceptual tools of behavioral economics to the analysis of legal problems and legal intervention. These models, and the experiments to test them, assume an institution free state of nature. In modern societies, the law’s subjects never see this state of nature. However, a rich arrangement of informal and formal institutions creates generalized trust. If individuals are sufficiently confident that nothing too bad will happen, they are freed up to interact with strangers as if they were in a state of nature. This willingness dramatically reduces transaction cost and enables division of labor. If generalized trust can be assumed, simple economic models are appropriate. But they must be behavioral, since otherwise individuals would not want to run the risk of interaction.

Comparison of the Clinicopathologic Characteristics of Intraductal Papillary Neoplasm of the Bile Duct according to Morphological and Anatomical Classifications.

BackgroundIntraductal papillary neoplasm of the bile duct (IPNB) is a recently defined entity and its clinical characteristics and classifications have yet to be established. We aimed to clarify the clinical features of IPNB and determine the optimal morphological classification criteria.MethodsFrom 2003 to 2016, 112 patients with IPNB who underwent surgery were included in the analysis. After pathologic reexamination by a specialized biliary-pancreas pathologist, previously suggested morphological and anatomical classifications were compared using the clinicopathologic characteristics of IPNB.ResultsIn terms of histologic subtypes, most patients had the intestinal type (n = 53; 48.6%) or pancreatobiliary type (n = 33; 30.3%). The simple “modified anatomical classification” showed that extrahepatic IPNB comprised more of the intestinal type and tended to be removed by bile duct resection or pancreatoduodenectomy. Intrahepatic IPNB had an equally high proportion of intestinal and pancreatobiliary types and tended to be removed by hepatobiliary resection. Morphologic classifications and histologic subtypes had no effect on survival, whereas a positive resection margin (75.9% vs. 25.7%; P = 0.004) and lymph node metastasis (75.3% vs. 30.0%; P = 0.091) were associated with a poor five-year overall survival rate. In the multivariate analysis, a positive resection margin and perineural invasion were important risk factors for survival.ConclusionIPNB showed better long-term outcomes after optimal surgical resection. The “modified anatomical classification” is simple and intuitive and can help to select a treatment strategy and establish the proper scope of the operation.

Prepared Testimony of Professor Michael T. Morley Before the U.S. House of Representatives Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet

This is the written statement I submitted in conjunction with my testimony before the U.S. House Judiciary Committee's Subcommittee on Courts, Intellectual Property, and the Internet concerning nationwide injunctions. The statement begins by distinguishing among various types of nationwide injunctions. It goes on to emphasize the need to distinguish between class actions and non-class cases. In Rule 23(b)(2) class actions, the main issue is the proper geographic scope of the plaintiff class; courts generally should refuse to certify nationwide classes. Nationwide classes are largely inconsistent with the decentralized structure of the federal judiciary and limited geographic responsibility of each district court. In non-class cases, in contrast, the primary issue is the scope of the injunction itself. I argue that courts should generally issue Plaintiff-Oriented which prohibit the Government defendant from enforcing the challenged statute, regulation, executive order, or other federal policy solely to the particular plaintiffs in the case. They should typically decline to issue nationwide that completely prohibit the Government defendants from enforcing the challenged legal provision against anyone, anywhere in the nation. Defendant-Oriented Injunctions raise troubling concerns relating to Article III standing, Due Process, asymmetric claim preclusion, Rule 23, and the limited geographic jurisdiction of individual district courts. The statement concludes by offering brief legislative proposals to address these issues.

Silos: Establishing the Distributional Baseline in Cross-Border Bankruptcies

The first two decades of law reform related to cross-border bankruptcy are the paired story of the UNCITRAL Model Law (Chapter 15 in the United States) and the EU Insolvency Regulation (the EU Reg). Both seek to create an architecture whereby a court located at a debtor’s center of main interest (COMI) can coordinate the insolvency of a debtor with assets and operations in multiple jurisdictions. The Model Law focuses on the automatic recognition of foreign representatives, and the creation of an ancillary proceeding to administer local assets and claims or transfer them for administration in the main case. Both statutes focus on centralizing administrative power in the “main case.” Relatively less attention has been paid to how assets should be administered in the main case pending at the debtor’s COMI. Governing law has beenassumed to be domestic bankruptcy law in the main, and a subset of domestic bankruptcy law in the ancillary jurisdiction. The next round, of law reform will be devoted to developing and harmonizing the procedures for administering the main case pending at the debtor’s center of main interest in a manner that facilitates cooperation in cross-border cases. In particular, the goal of these efforts should be to adopt measures that: (1) facilitate cooperation by ancillary courts; (2) minimize the effects and incentives for forum shopping; and (3) minimize the conflicts of interest faced by those charged with administering assets in multiple jurisdictions. This article argues that the success of these efforts is going to turn largely on the ability to distinguish harmonized and global bankruptcy procedures from locally determined substantive rights — finding the proper scope for lex fori (law of the forum) and lex situs (law of the location of the property or cause of action) respectively. This choice-of-law approach envisions cooperation a two-way street. This idea — using choice of law principles to allocate value — is motivated by a principle that might be called “global best interests.” In a coordinated case, the distributional baseline entitlement would be determined by calculating the amount that would be received in a hypothetical territorial liquidation. Local claims would be entitled to a minimum distribution based on their local priorities, though limited to the assets that would have been available in a territorial case had one been filed. The practical task imposed on courts (and administrators) would be to calculate the hypothetical territorial distribution. This Article make two related points. First, it acknowledges that the choice of law approach places great pressure on the ability to locate claims and assets for the purpose of distribution, but argues that ultimately the task is not too hard. Second, it explains why the exercise is worth the trouble, in that it offers a practical basis for allocating value in, and a normative basis for, justifying global reorganizations.

Privacy and the mashrabiya screen: Knowledge is Sweeter than Honey

This paper is offered to demonstrate the value of legal objects in the consideration of key legal concepts. In it I indicate the opportunities presented by an encounter with Susan Hefuna’s large Mashrabiya Screen artwork in the British Museum to supplement, criticise and disrupt current thinking and attitudes towards the concept of privacy. In contrast to the increasingly contested and transactional nature of contemporary understandings of this concept, in which privacy is sometimes imagined just as one more complex function in the reasonable management of dataflows, Hefuna’s screen can help to articulate and support a different approach to privacy. This approach is Privacy by Design, and through a consideration of the physicality of Hefuna’s work, together with her own artistic ambition, my claim is that her art object helps to make the alternative approach to privacy manifest and tangible, prompting a reappraisal of the proper scope and nature of privacy protection.

Mind the Hype: A Critical Evaluation and Prescriptive Agenda for Research on Mindfulness and Meditation

During the past two decades, mindfulness meditation has gone from being a fringe topic of scientific investigation to being an occasional replacement for psychotherapy, tool of corporate well-being, widely implemented educational practice, and “key to building more resilient soldiers.” Yet the mindfulness movement and empirical evidence supporting it have not gone without criticism. Misinformation and poor methodology associated with past studies of mindfulness may lead public consumers to be harmed, misled, and disappointed. Addressing such concerns, the present article discusses the difficulties of defining mindfulness, delineates the proper scope of research into mindfulness practices, and explicates crucial methodological issues for interpreting results from investigations of mindfulness. For doing so, the authors draw on their diverse areas of expertise to review the present state of mindfulness research, comprehensively summarizing what we do and do not know, while providing a prescriptive agenda for contemplative science, with a particular focus on assessment, mindfulness training, possible adverse effects, and intersection with brain imaging. Our goals are to inform interested scientists, the news media, and the public, to minimize harm, curb poor research practices, and staunch the flow of misinformation about the benefits, costs, and future prospects of mindfulness meditation.

HIV testing in the dental setting: perspectives and practices of experienced dental professionals

ABSTRACTThe dental setting is a largely untapped venue to identify patients with undiagnosed HIV infection. Yet, uptake of rapid HIV testing within the dental community remains low. This study sought to better understand the experiences of dental professionals who have administered the test and how these experiences might inform efforts to promote greater uptake of rapid HIV testing in dental settings. Qualitative interviews were conducted with United States dentists (N = 37) and hygienists (N = 5) who offered rapid HIV testing in their practices. The data revealed both the impeding and facilitating factors they experienced in implementing testing in their setting, as well as the reactions of their staff, colleagues, and patients. Overall, participants viewed rapid HIV testing favorably, regarding it as a valuable public health service that is simple to administer, generally well accepted by patients and staff, and easily integrated into clinical practice. Many had experience with a reactive test result. Participants described facilitating factors, such as supportive follow-up resources. However, they also cited persistent barriers that limit acceptance by their dental colleagues, including insufficient reimbursement and perceived incompatibility with scope of practice. The widespread adoption of routine HIV testing amongst dental professionals will likely require an expanded notion of the proper scope of their professional role in overall patient health, along with greater support from national dental organizations, dental education, and dental insurance companies, especially in the form of sufficient reimbursement.

Brief of Amici Curiae Empirical Fourth Amendment Scholars in Support of Petitioner in Carpenter vs. United States

The Court has recognized that public expectations of privacy are relevant to the Fourth Amendment. A growing body of social science research shows that a majority of people: (1) do not knowingly convey their location information to cell phone providers; and (2) believe that law enforcement needs to obtain, and ought to obtain, a search warrant before gathering this information. These studies addressed a range of surveilled information (cell site location and GPS tracking) and conduct (by cell phone providers and by law enforcement). On average across all the studies more than 60% of survey respondents (and often upwards of 70-80%) emphatically asserted a privacy interest in the information contained on or emitted from their cell phones. In relative terms, these privacy interests are as strong, or stronger, than paradigmatic cases where the Court has required law enforcement officials to first obtain a warrant. These empirical data, detailed below, expressly undercut the Sixth Circuit’s reliance on the third party doctrine in deciding this case, and affirmatively support a finding that warrantless searches of this information violate the Fourth Amendment. This Court should employ these empirical data - a critical tool that informs the proper scope and functioning of the Fourth Amendment - and reverse the decision below.

Antitrust and Patent Law Analysis of Pharmaceutical Reverse Payment Settlements

Suppose that a widget patentee observes incipient competition from a rival producer and files an infringement action. This lawsuit could be settled by (1) the infringement defendant's purchase of an exclusive or nonexclusive license from the patentee, followed by the defendant's production under the license; or (2) the infringement plaintiff's purchase from the defendant of a promise that the defendant abandon its entry plans. Alternative (1) brings a new rival into the market. It can bring production closer to the competitive level, depending on whether the license is price- or quantity-restricted. It can also encourage further innovation in the market by giving two companies an incentive to improve on the widget. By contrast, alternative (2) keeps the rival out of the market and induces it to drop its suit in exchange for a payment. There are competitive reasons for favoring inclusive rather than exclusive settlements. Outside the context of the Hatch-Waxman Act and pharmaceutical patent disputes, settlements of the second type are very rare. Settlement agreements that involve a reverse payment plus the infringement defendant's abandonment of the market do not involve a license of any IP right at all. If the dispute is settled by a payment from the defendant to the plaintiff in exchange for the defendant's right to produce under the patent, the settlement is a license. Most IP settlements result in the creation of a license, and the proper scope of such licenses is a legitimate IP concern. By contrast, if the dispute is settled by the infringement plaintiff's payment to the defendant to stay out of the market, there is no license, and thus the policy of the Patent Act encouraging licensing is not invoked. This fact justifies closer scrutiny of exit payments. Potentially anticompetitive IP settlements are entitled to deference when they involve the creation of IP licenses whose scope must be assessed against competitive risks. But when no license is created, no such deference is needed. 3

Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement

Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement

Imagining Moral Bioenhancement Practices: Drawing Inspiration from Moral Education, Public Health Ethics, and Forensic Psychiatry.

In this article, we consider contexts or domains in which (future) moral bioenhancement interventions possibly or most likely will be implemented. By looking closely at similar or related existing practices and their relevant ethical frameworks, we hope to identify ethical considerations that are relevant for evaluating potential moral bioenhancement interventions. We examine, first, debates on the proper scope of moral education; second, proposals for identifying early risk factors for antisocial behaviour; and third, the difficult balancing of individual freedom and third party concerns in (forensic) psychiatry. In imagining moral bioenhancement in practice, we observe that unlike other forms of enhancement, moral enhancement fundamentally asks how the interests and preferences of the individual and the interests of others should be weighed (in view of public safety and managing public risk). Highly diverse domains such as education, mental health, and the judicial domain might be involved, and moral bioenhancement might challenge existing institutional settings. Given these highly varied contexts and domains, it appears unlikely that there will be a distinct set of practices that will be referred to as "moral bioenhancement."

The right and the wrong kind of reasons

AbstractIn a number of recent philosophical debates, it has become common to distinguish between two kinds of normative reasons, often calledthe right kind of reasons(henceforth, RKR) andthe wrong kind of reasons(henceforth, WKR). The distinction was first introduced in discussions of the so‐calledbuck‐passing account of value, which aims to analyze value properties in terms of reasons for pro‐attitudes and has been argued to face thewrong kind of reasons problem. But nowadays, it also gets applied in other philosophical contexts and to reasons for other responses than pro‐attitudes, for example in recent debates about evidentialism and pragmatism about reasons for belief. While there seems to be wide agreement that there is a general and uniform distinction that applies to reasons for different responses, there is little agreement about the scope, relevance, and nature of this distinction. Our aim in this article is to shed some light on this issue by surveying the RKR/WKR distinction as it has been drawn with respect to different responses, and by examining how it can be understood as a uniform distinction across different contexts. We start by considering reasons for pro‐attitudes and emotions in the context of the buck‐passing account of value (Section 1). Subsequently, we address the distinction that philosophers have drawn with respect to reasons for other attitudes, such as beliefs and intentions (Section 2), as well as with respect to reasons for action (Section 3). We discuss the similarities and differences between the ways in which philosophers have drawn the RKR/WKR distinction in these areas and offer different interpretations of the idea of a general, uniform distinction. The major upshot is that there is at least one interesting way of substantiating a general RKR/WKR distinction with respect to a broad range of attitudes as well as actions. We argue that this has important implications for the proper scope of buck‐passing accounts and the status of the wrong kind of reasons problem (Section 4).

Wild Flowers in the Swamp: Local Rules and Family Law

Family law reform is stuck in a rut. Reformers have criticized family law’s open-ended standards for decades and have uniformly sought to make those standards more rule-like by imposing top-down rules to cabin trial court judges’ discretion. That reform strategy failed 35 years ago, it failed 25 years ago, it failed 15 years ago, and it will fail today. This Article explores a bottom-up solution. Just as local judges routinely adopt local procedural rules, they should also be empowered to adopt substantive rules of thumb to guide their individual discretion in family law matters. This reform can accomplish what reformers have long failed to achieve: to cabin the discretion of individual judges and to bolster the democratic legitimacy of their decisions. Collective rules of thumb also create two novel dialogic benefits. They provide the first clear opportunity for local citizens to communicate to local judges about the content of local values. This is especially important when mostly heterosexual, white, wealthy judges are increasingly out of touch with minority family forms. In addition to giving a voice to local citizens, collective rules of thumb provide judges with a powerful new signaling device to communicate with appellate courts and legislatures. Whatever judges may say, they speak with much more force when they speak as a group. The vision of local power that this Article defends has implications that extend far beyond family law as well. Most notably, its novel focus on rules of thumb forces revisions to existing accounts of “rules against rulification,” and its account of citizen–judge dialogue offers insights into recent theoretical work on the proper scope of local judicial power.

Faith, Football, and the First Amendment: Threading the Needle between Establishment and Free Exercise

From the “Hail Mary Pass” to the “Immaculate Reception,” “Touchdown Jesus” to “Catholics vs. Convicts,” and even “Tebowing” to the simple celebration prayer, faith and football have always been intertwined. Despite the significant impact of religion and prayer in shaping our football culture, the concern is when this tradition involves both coaches and players in the public-school context. Specifically, courts are being faced with determining when a coach’s expressive conduct around the football field is “private” speech expressing the views and emotions of the individual, or “public” speech expressing the views of the school and the state. This paper analyzes how Kennedy v. Bremerton School District — the most recent clash between faith and public-school football — sheds light on how lower courts are failing to interpret the proper scope of the Establishment Clause and in doing so, stripping high school football coaches of their First Amendment rights.

The Legitimate Scope of Criminal Law: A Question for Legal History?

Lindsay Farmer argues that criminal law theory is too abstract and decontextualized to achieve the task it sets for itself. In order to articulate the legitimate boundaries of criminal law, theorists must consider specific legal rules in historical context. Farmer declines to announce a new, universal theory of the proper scope of criminal law, but he shows that studying the institutions and social functions of criminal law over time can generate normative insights. This review uses the example of prostitution to explore these claims. The changing cultural figure of the sex worker—from public nuisance, to autonomous free agent, to vulnerable and in need of protection—has figured in both the contraction and expansion of criminal law. Equally significant to prostitution debates is Farmer’s claim that criminal law emerged as a branch of public law, rather than through state appropriation of private vengeance.

A Review of the Impact of Exclusion Criteria on the Generalizability of Schizophrenia Treatment Research.

Treatment research studies employ criteria that determine which patients are eligible to participate and which are not. When such exclusion criteria produce a treatment research sample that is a small and unrepresentative subset of all patients with a particular disease, clinicians may be hesitant to apply the research results in front-line clinical practice. Accordingly, the present paper reviews the English-language literature on exclusion criteria in schizophrenia treatment research and draws initial conclusions about their impact. Empirically derived estimates of the rate of exclusion vary widely (31.0-98.2%), but the best available evidence suggests that about 4 in 5 patients with schizophrenia would be ineligible to enroll in a typical treatment research study. Women are particularly likely to be excluded from schizophrenia treatment research, which is problematic from both a clinical and social justice viewpoint. Excluded patients also tend to be older than eligible patients, and, though it has been examined in only a few studies, they also tend to have more severe problems at baseline and different outcomes over time than patients who are allowed to participate in research. More limited use of exclusion criteria in schizophrenia treatment research would be beneficial in terms of increasing generalizability, but would also potentially involve costs, particularly a need for larger samples. More modest steps that would improve treatment outcome research reports include requiring a full description of the rationale for, and nature of, any exclusion criteria, and, having a designated place in the discussion section which draws attention to the proper scope of generalization.

The Autonomy Defense of Private Discrimination

While a number of concerns have been raised about the on-demand economy, evidence of discrimination has been especially noted and publically condemned. Airbnb, for instance, came under fire when a Harvard Business School study showed that property owners were less likely to accept those with black-sounding names as renters and non-black hosts were able to charge approximately 12% more than black hosts. Similarly, in an October 2016 working paper conducted by the National Bureau of Economic Research, researchers looking at taxi-services Uber and Lyft showed that the cancellation rate for those with black-sounding names was more than twice as high as for those with white-sounding names. At the same time, largely in other parts of the country, many condemn not discrimination but the antidiscrimination laws designed to curb it, especially laws aimed at shielding those within the LGBTQ community from discrimination. Debates about discriminatory immigration policies dominate national headlines. 70% of the country is aware of the Black Lives Matter movement. We are, in short, in the midst of an important conversation about discrimination, the likes of which we have not seen since the Civil Rights Movement. Legal theorists and philosophers have taken note, arguing for changes to our current antidiscrimination law regime. But while these theorists have disagreed about the proper scope of antidiscrimination law, they have widely agreed in one crucial respect: namely, that any expansion of antidiscrimination law beyond their preferred scope is problematic on autonomy grounds. The centrality of “autonomy” in these debates should come as no surprise. Throughout our history of racial conflict, all sides have claimed the ideal of autonomy as an ally to their cause. This is possible because of the concept’s flexibility. “Autonomy” can support a range of positions, depending on the presuppositions it’s packaged with. But when scholars invoke “autonomy” in a way that simply deploys these underlying presuppositions, instead of making these presuppositions explicit, situating them against reasonable rivals, and defending them, they fail to have what scholars at this point in time most crucially need: perspective. These scholars seem to neither notice nor understand why those who take different positions on questions of autonomy, or on specific legal interventions, do so, because the real bases of disagreement – which resides within these presuppositions – remain hidden. As a result, their rejection of certain antidiscrimination law regimes and support of others do little to move the debate about the proper scope of antidiscrimination law forward. Antidiscrimination law scholars are trapped in an ongoing cycle of autonomy assertions and as a result, the important debate about the proper scope of antidiscrimination law remains stalled. We cannot afford this. My aim in this Essay is one of illumination and aid. I attempt to show why the mere assertion that a certain antidiscrimination law “violates autonomy” hides from view the true basis of disagreement and, in so doing, both fails to engage the relevant arguments while also failing to provide readers any reason to adopt the author’s preferred antidiscrimination law regime. I will do this by illuminating the presuppositions underpinning the two main conceptions of autonomy that are invoked in the antidiscrimination law literature. I then situate these presuppositions alongside rival possibilities. My hope is that this project will aid the development of more fruitful antidiscrimination law scholarship moving forward.

Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement

Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement

The “Who?” Question in the Hate Speech Debate: Part 2: Functional and Democratic Approaches

This two-part article addresses the “Who?” question in the hate speech debate: namely, which characteristics, social identities or statuses should or should not be treated as protected characteristics within a body hate speech laws? Using United Kingdom incitement to hatred laws as a focal point, the article outlines and critically appraises five broad approaches to specification. Part 1 deals with consistency specification, which highlights norms of consistency both within incitement to hatred law itself and in relation to other laws, practical specification, which focuses on the ostensible goals or apparent aims of incitement to hatred laws, and formal specification, which looks at the formal qualities of the characteristics themselves and to the different forms of people’s relationships with those characteristics. And Part 2 considers functional specification, which concentrates on the underlying or real functions, purposes or objectives of incitement to hatred laws, and democratic specification, which appeals to democratic procedures as well as to democratic values, norms and principles that speak to the proper scope of incitement to hatred laws. Along the way I shall also critically assess a range of substantive arguments about which particular characteristics should or should not be covered by incitement to hatred laws given the aforementioned approaches. My main conclusion shall be that each of the approaches has its strengths and weakness and that, partly because of this, no single approach is adequate by itself as a tool for specifying the proper scope of incitement to hatred laws, but also, by the same token, no approach should be ruled out entirely. Instead, the best strategy is one that combines together all five approaches in reasonable ways given the law, the characteristic and the context.

Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (NEPA). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such the extraction of fossil fuels. This question is important, because consideration of such emissions can alter the balance of costs and benefits for a proposed project, and the agency’s ability to justify approving the project in light of that balance.This Article argues that such emissions do typically fall within the scope of indirect and cumulative impacts that must be evaluated under NEPA, and provides recommendations on how agencies should evaluate such emissions in environmental review documents. To support the argument and recommendations, the Article makes several unique contributions to the growing literature on NEPA and climate change. First, we describe how federal approvals of fossil fuel extraction and infrastructure contribute to global climate change, and we explain why federal agencies have ample discretion to account for these impacts when deciding whether to issue such approvals. Second, we conduct an in-depth examination of NEPA’s requirements as they pertain to the analysis of upstream and downstream emissions, focusing in particular on the requirements to evaluate indirect effects, cumulative effects, and effects from related actions. Third, we describe how federal agencies currently account for upstream and downstream greenhouse gas emissions in their NEPA reviews, and we find that there are major inconsistencies in the analytical approaches both within and across agencies, but many agencies are nonetheless beginning to recognize that upstream and downstream emissions fall within the scope of impacts that should be reviewed under NEPA. Fourth, we synthesize all of the existing case law on this subject, and we find that courts have generally treated such emissions as the type of indirect effects that must be evaluated in a NEPA reviews. Finally, we outline an approach for evaluating upstream and downstream emissions that would improve the quality of federal decision-making, shield agencies from litigation, and provide much-needed information about the indirect and cumulative effects of fossil fuel development on global climate change.