Law Commons^™

Patent Trial And Appeal Board's Consistency-Enhancing Function, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

Agency heads, who have the primary responsibility for setting an agency's policy preferences, have a variety of tools by which they attempt to minimize the discretion of their staff officials in an effort to ensure agency policy preferences are consistently applied. One such mechanism is subjecting agency official's determinations to higher-level agency review. While scholars have long surmised that judges seek to minimize reversal of their decisions by a higher-level court, how agency officials' decisions are influenced by higher-level agency reconsideration has mostly eluded analysis.

In this Essay, we begin to fill this gap by examining the extent to which …

The Proficiency Of Experts, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

Expert evidence plays a crucial role in civil and criminal litigation. Changes in the rules concerning expert admissibility, following the Supreme Court's Daubert ruling, strengthened judicial review of the reliability and the validity of an expert's methods. Judges and scholars, however, have neglected the threshold question for expert evidence: whether a person should be qualified as an expert in the first place. Judges traditionally focus on credentials or experience when qualifying experts without regard to whether those criteria are good proxies for true expertise. We argue that credentials and experience are often poor proxies for proficiency. Qualification of an expert …

A National Study Of Immigration Detention In The United States, Emily Ryo, Ian Peacock

Faculty Scholarship

Amidst growing reports of abuses and rights violations in immigration detention, the Trump administration has sought to expand the use of immigration detention to facilitate its deportation policy. This study offers the first comprehensive empirical analysis of U.S. immigration detention at the national level. Drawing on administrative records and geocoded data pertaining to all noncitizens who were detained by U.S. Immigration and Customs Enforcement in fiscal year 2015, we examine who the detainees are, where they were held, and what happened to them.

The bulk of the detained population consisted of men (79%) and individuals from Mexico, El Salvador, Guatemala, …

Fostering Legal Cynicism Through Immigration Detention, Emily Ryo

Faculty Scholarship

Every year, tens of thousands of noncitizens in removal proceedings are held and processed through an expanding web of immigration detention facilities across the United States. The use of immigration detention is expected to dramatically increase under the Trump administration’s mass deportation policy. I argue that this civil confinement system may serve a critical socio-legal function that has escaped the attention of policymakers, scholars, and the public alike. Using extensive original data on long-term immigrant detainees, I explore how immigration detention might function as a site of legal socialization that helps to promote or reinforce widespread legal cynicism among immigrant …

The Decline Of The Virginia (And American) Death Penalty, Brandon L. Garrett

Faculty Scholarship

The American death penalty is disappearing. Death sentences and executions have reached the lowest levels seen in three decades. Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline. Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the third highest number of prisoners since the 1970s. How times have changed. There has not been a new death sentence in Virginia since 2011. Only seven counties have imposed death sentences in the past decade in Virginia. There are now two or fewer trials a …

A Tactical Fourth Amendment, Brandon L. Garrett, Seth Stoughton

Faculty Scholarship

What rules regulate when police can kill? As ongoing public controversy over high-profile police killings drives home, the civil, criminal, and administrative rules governing police use of force all remain deeply contested. Members of the public may assume that police rules and procedures provide detailed direction for when officers can use deadly force. However, many agencies train officers to respond to threats according to a force "continuum" that does not provide hardedged rules for when or how police can use force or deadly force. Nor, as recent cases have illustrated, does a criminal prosecution under state law readily lend itself …

The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai

Faculty Scholarship

American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer highlighted how from 2004 to 2006, "just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide." That decline has become more dramatic. In 2015, fifty-one defendants were sentenced to death in thirty-eight counties. In 2016, thirty-one defendants were sentenced to death in twenty-eight counties. In the mid-1990s, by way of contrast, over 300 people were sentenced to death in as many …

The Tax Lives Of Uber Drivers: Evidence From Internet Discussion Forums, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In this Article, we investigate the tax issues and challenges facing Uber and Lyfi drivers by studying their online interactions in three internet discussion forums: Reddit.com, Uberpeople.net, and Intuit TurboTax AnswerXchange. Using descriptive statistics and content analysis, we examine (1) the substantive tax concerns facing forum participants, (2) how taxes affect their driving and profitability decisions, and (3) the degree of user sophistication, accuracy of legal advising, and other cultural features of the forums.

We find that while forum participants displayed generally accurate understandings of tax filing and income inclusion obligations, their approaches to expenses and deductions were less accurate …

Capital Jurors In An Era Of Death Penalty Decline, Brandon L. Garrett, Daniel Krauss, Nicholas Scurich

Faculty Scholarship

The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty. We conducted surveys of persons reporting for jury duty at …

Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property, Stefan Bechtold, Christopher Buccafusco, Christopher Jon Sprigman

Faculty Scholarship

No abstract provided.

Forensics And Fallibility: Comparing The Views Of Lawyers And Jurors, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

Forensic evidence plays an increasingly prominent role in criminal practice, leading some to worry that depictions in popular media might make jurors over-reliant on forensics — a so-called CSI effect. There is little empirical evidence of such a CSI effect among jury-eligible laypersons; any such influence also depends upon a case proceeding to a trial. As the Supreme Court has put it: “criminal justice today is for the most part a system of pleas, not a system of trials.” However, a CSI effect could be more consequential if it affects how criminal lawyers assess forensic evidence when they negotiate pleas …

Testing Tarnishment In Trademark And Copyright Law: The Effect Of Pornographic Versions Of Protected Marks And Works, Christopher Buccafusco, Paul J. Heald, Wen Bu

Faculty Scholarship

Federal and state law both provide a cause of action against inappropriate and unauthorized uses that ‘tarnish’ a trademark. Copyright owners also articulate fears of ‘tarnishing’ uses of their works in their arguments against fair use and for copyright term extension. The validity of these concerns rests on an empirically testable hypothesis about how consumers respond to inappropriate unauthorized uses of works. In particular, the tarnishment hypothesis assumes that consumers who are exposed to inappropriate uses of a work will find the tarnished work less valuable afterwards. This Article presents two experimental tests of the tarnishment hypothesis, focusing on unauthorized …

When Biopharma Meets Software: Bioinformatics At The Patent Office, Saurabh Vishnubhakat, Arti K. Rai

Faculty Scholarship

Scholars have spilled much ink questioning patent quality. Complaints encompass concern about incoming applications, examination by the U.S. Patent and Trademark Office (“USPTO”), and the USPTO’s ultimate output. The literature and some empirical data also suggest, however, that applications, examination, and output may differ considerably based on technology. Most notably, although definitions of patent quality are contested, quality in the biopharmaceutical industry is often considered substantially higher than that in information and communications technology (ICT) industries.

This Article presents the first empirical examination of what happens when the two fields are combined. Specifically, it analyzes the creation and early history …

The Corporate Criminal As Scapegoat, Brandon L. Garrett

Faculty Scholarship

A corporation is no scapegoat, assures the Department of Justice, because the first priority is to prosecute culpable individuals and not artificial entities. Yet, as I document in this empirical study, far more often than not, when the largest corporations settle federal criminal cases, no individuals are charged. High profile failures to prosecute executives in the wake of the Global Financial Crisis have only made the problem more urgent. The corporation appears to be a kind of a scapegoat: impossible to physically jail, but capable of receiving blame and punishment while individual culprits go free. In this Article, I develop …

Less Enforcement, More Compliance: Rethinking Unauthorized Migration, Emily Ryo

Faculty Scholarship

A common assumption underlying the current public discourse and legal treatment of unauthorized immigrants is that unauthorized immigrants are lawless individuals who will break the law—any law—in search of economic gain. This notion persists despite substantial empirical evidence to the contrary. Drawing on original empirical data, this Article examines unauthorized immigrants and their relationship to the law from a novel perspective to make two major contributions. First, I demonstrate that unauthorized immigrants view themselves and their noncompliance with U.S. immigration law in a manner that is strikingly different from the prevalent view of criminality and lawlessness found in popular and …

Challenging The Randomness Of Panel Assignment In The Federal Courts Of Appeals, Adam S. Chilton, Marin K. Levy

Faculty Scholarship

A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this “fact,” and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels, this assumption has never been tested. This Article fill this void by doing so.

To determine whether the circuit courts utilize random assignment, we have created what we believe to be the largest dataset of panel assignments of those courts constructed to date. …

Interrogation Policies, Brandon L. Garrett

Faculty Scholarship

Despite growing concern regarding the problem of false confessions, including due to high profile DNA and death row exonerations, far too little is known about police interrogations in practice, including the written procedures that govern interrogations. This Essay provides a first study of police interrogation policies, focusing on written policies adopted by Virginia law enforcement agencies. Reviewing FOIA responses from over 180 agencies, the study found that few agencies require recording of entire interrogations as a matter of policy; nine did so. Over half, or 58 of 116 policies obtained, made recording an option, but did not encourage it or …

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension, Christopher Buccafusco, Paul J. Heald

Faculty Scholarship

According to the current copyright statute, copyrighted works of music, film, and literature will begin to transition into the public domain in 2018. While this will prove a boon for users and creators, it could be disastrous for the owners of these valuable copyrights. Therefore, the next few years will likely witness another round of aggressive lobbying by the film, music, and publishing industries to extend the terms of already-existing works. These industries, and a number of prominent scholars, claim that when works enter the public domain, bad things will happen to them. They worry that works in the public …

How Jurors Evaluate Fingerprint Evidence: The Relative Importance Of Match Language, Method Information, And Error Acknowledgment, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

Fingerprint examiners use a variety of terms and phrases to describe a finding of a match between a defendant's fingerprints and fingerprint impressions collected from a crime scene. Despite the importance and ubiquity of fingerprint evidence in criminal cases, no prior studies examine how jurors evaluate such evidence. We present two studies examining the impact of different match phrases, method descriptions, and statements about possible examiner error on the weight given to fingerprint identification evidence by laypersons. In both studies, the particular phrase chosen to describe the finding of a match-whether simple and imprecise or detailed and claiming near certainty-had …

The Evolution Of Contractual Terms In Sovereign Bonds, Stephen J. Choi, Mitu Gulati, Eric A. Posner

Faculty Scholarship

In reaction to defaults on sovereign debt contracts, issuers and creditors have strengthened the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce their debt burden; debtors may engage in excessively risky activities using …

Globalized Corporate Prosecutions, Brandon L. Garrett

Faculty Scholarship

In the past, domestic prosecutions of foreign corporations were not noteworthy. Federal prosecutors now advertise a muscular approach targeting major foreign firms and even entire industries. High-profile prosecutions of foreign firms have shaken the international business community. Not only is the approach federal prosecutors have taken novel, but corporate criminal liability is itself a form of American Exceptionalism, and few other countries hold corporations broadly criminally accountable. To study U.S. prosecutions of foreign firms, I assembled a database of publicly reported corporate guilty plea agreements from the past decade. I analyzed U.S. Sentencing Commission data archives on federal corporate prosecutions …

Invalid Forensic Science Testimony And Wrongful Convictions, Brandon L. Garrett, Peter J. Neufeld

Faculty Scholarship

This is the first study to explore the forensic science testimony by prosecution experts in the trials of innocent persons, all convicted of serious crimes, who were later exonerated by post-conviction DNA testing. Trial transcripts were sought for all 156 exonerees identified as having trial testimony by forensic analysts, of which 137 were located and reviewed. These trials most commonly included testimony concerning serological analysis and microscopic hair comparison, but some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and several included DNA testing. This study found that in the bulk of these trials of innocent defendants - …

Judging Innocence, Brandon L. Garrett

Faculty Scholarship

This empirical study examines for the first time how the criminal justice system in the United States handled the cases of people who were subsequently found innocent through postconviction DNA testing. The data collected tell the story of this unique group of exonerees, starting with their criminal trials, moving through levels of direct appeals and habeas corpus review, and ending with their eventual exonerations. Beginning with the trials of these exonerees, this study examines the leading types of evidence supporting their wrongful convictions, which were erroneous eyewitness identifications, forensic evidence, informant testimony, and false confessions. Yet our system of criminal …

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Faculty Scholarship

In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as …

Tyranny Of The Available: Under-Represented Topics, Approaches, And Viewpoints, Katherine Topulos, Marci Hoffman

Faculty Scholarship

No abstract provided.

Structural Reform Prosecution, Brandon L. Garrett

Faculty Scholarship

In what I call a structural reform prosecution, prosecutors secure the cooperation of an organization in adopting internal reforms. No scholars have considered the problem of prosecutors seeking structural reform remedies, perhaps because until recently organizational prosecutions were themselves infrequent. In the past few years, however, federal prosecutors adopted a bold new prosecutorial strategy under which dozens of leading corporations entered into demanding settlements, including AIG, American Online, Bristol-Myers Squibb Co., Computer Associates, HealthSouth, KPMG, MCI, Merrill Lynch & Co, Monsanto, and Time Warner. To situate the DOJ's latest strategy, I frame alternatives to the pursuit of structural reform remedies …

Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz

Faculty Scholarship

This article attempts to explain empirically the value that lawyers add when acting as counsel to parties in business transactions. Contrary to existing scholarship, which is based mostly on theory, this article shows that transactional lawyers add value primarily by reducing regulatory costs, thereby challenging the reigning models of transactional lawyers as "transaction cost engineers" and "reputational intermediaries." This new model not only helps inform contract theory but also reveals a profoundly different vision than those of existing models for the future of legal education and the profession.

Following The Script: An Empirical Analysis Of Court-Ordered Mediation Of Medical Malpractice Cases, Thomas B. Metzloff, Ralph A. Peeples, Catherine T. Harris

Faculty Scholarship

No abstract provided.

High Poverty Schools And The Distribution Of Teachers And Principals, Charles T. Clotfelter, Helen F. Ladd, Jacob L. Vigdor, Justin Wheeler

Faculty Scholarship

Although many factors combine to make a successful school, most people agree that quality teachers and school principals are among the most important requirements for success, especially when success is defined by the ability of the school to raise the achievement of its students. The central question for this study is how the quality of the teachers and principals in high-poverty schools in North Carolina compares to that in the schools serving more advantaged students. A related question is why these differences emerge. The consistency of the patterns across many measures of qualifications for both teachers and principals leaves no …

Ranking Judges According To Citation Bias, Mitu Gulati, Stephen J. Choi

Faculty Scholarship

In our Essay, we put forward a methodology to assess the amount of political bias that affects judges based on the decisions judges make on whom to cite in their opinions. Unlike prior studies looking at judicial bias that focus on judicial voting outcomes, our study of bias in citation practices is aimed at uncovering more subtle forms of bias. Judges may shy away from acting overly biased when making a highly visible decision such as voting in a particular case, but instead seek to shift the law more subtly through their reasoning and citation patterns in the opinion, thereby …