120 Yale L.J. 2 (2010).
A half-century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, this Article addresses challenges that arise when lay judges must engage, understand, and ultimately pass judgment on complex technologies. It first argues that technological subject matter imposes significant cognitive burdens on generalist judges. It then explores the “cognitive miser” model whereby laypersons adopt heuristics and defer to expertise to mitigate these burdens. Drawing from this psychological model, the Article then explores the unique role of formalism in patent doctrine. Advancing an information-cost theory of Federal Circuit jurisprudence, it argues that formalism limits and streamlines judicial engagement with technology. Formalism truncates difficult technical inquiries, thus helping to mediate the intersection of law and science. The Article then identifies a countervailing trend in recent Supreme Court patent decisions. In addition to substantively narrowing patent rights, the Court is systematically rejecting formalistic rules in favor of holistic standards. This so-called holistic turn promises to increase judicial engagement with technology. To address resulting cognitive burdens, this Article offers prescriptions for blending the economizing virtues of rules with the flexibility and contextual sensitivity of standards. It concludes by exploring the cultural differences of the Federal Circuit and the Supreme Court as well as the implications of those differences for patent doctrine.
120 Yale L.J. 84 (2010).
Unlike shareholders of ordinary companies, mutual fund shareholders do not sell their shares—they redeem them from the issuing funds for cash. We argue that this unique form of exit almost completely eliminates mutual fund investors’ incentives to use voting, boards, and fee liability. Investors will almost never become active in their funds even if the investors are large and sophisticated and even if most of the mutual fund market is not competitive. We also catalogue a number of unintended and harmful ways in which exit distorts voting, boards, and fee liability. Exit interacts with voting, for example, to make firing managers impossible and to prevent investors from receiving notice of fee increases. Exit also interacts with fee liability to cause recoveries to go to the wrong investors and to discourage investors from moving to lower-fee funds. Though exit gives investors a powerful tool to protect their interests, the net effect of exit on many investors is ambiguous, because investors who do not use their rights to leave underperforming funds cannot expect activism by other investors to improve the funds. Ultimately, exit causes mutual funds to look more like products than like ordinary companies. Voting, boards, and fee liability therefore have limited value, and whatever benefits they now achieve could be achieved more effectively and at lower cost by product-style regulation that applies automatically without investor action or that prompts investors to use exit rights effectively.
120 Yale L.J. 144 (2010).
Federal prosecutors are subject to a bewildering array of ethical regulations ranging from state ethical codes to local rules adopted by federal courts to the internal policies of the Department of Justice. The inconsistent and overlapping application of these ethical rules has led to regulatory confusion that has inhibited the development of clear ethical expectations for federal prosecutors. To ensure the consistent enforcement of federal criminal law, a uniform system of ethical regulation–dividing regulatory authority amongst the courts, the Department of Justice, and a yet-to-be-created independent ethical review commission–should be adopted to replace the existing regulatory framework.
120 Yale L.J. 185 (2010).