Stronger instruments and refined covariate balance in an observational study of the effectiveness of prompt admission to intensive care units

Instrumental variable methods, subject to appropriate identification assumptions, enable consistent estimation of causal effects in the presence of unobserved confounding. Near–far matching has been proposed as one analytic method to improve inference by strengthening the effect of the instrument on the exposure and balancing observable characteristics between groups of subjects with low and high values of the instrument. However, in settings with hierarchical data (e.g. patients nested within hospitals), or where several covariate interactions must be balanced, conventional near–far matching algorithms may fail to achieve the requisite covariate balance. We develop a new matching algorithm, that combines near–far matching with refined covariate balance, to balance large numbers of nominal covariates while also strengthening the instrumental variable. This extension of near–far matching is motivated by a case-study that aims to identify the causal effect of prompt admission to an intensive care unit on 7-day and 28-day mortality

When the Mountain Goes to Mohammad: The Internet and Judicial Decision-Making

Part I of this Article explores that ambivalence by examining conflicting judicial canons and court opinions addressing the issue. Part II examines the benefits and drawbacks of judicial Internet research with respect to adjudicative facts. In particular, it elaborates on arguments offered by defenders of this kind of research, most notably Judge Richard A. Posner. Part II also highlights the dangers by showing that adjudicative fact research detracts from the reliability of our justice system and undermines due process of law. Part III addresses judges’ online research of legislative facts. It discusses the use of legislative facts by courts generally, and then considers the Internet’s impact on courts’ use of legislative facts. This Part also raises some of the unique risks attendant on Internet research of legislative facts. Part IV describes some additional changes that have resulted from the new world of judicial fact research, including its impact on the adversary system and its role in the explosion of judicial notice. Finally, Part V offers some suggestions for minimizing risks associated with independent judicial online research by evaluating the purpose of the research and the authenticity and reliability of online information

Why the Judicial Elections Debate Matters Less Than You Think: Retention as the Cornerstone of Independence and Accountability

This Article attempts to reframe the age-old judicial election arguments into a discussion about the importance of the retention decision, in order to draw out the areas of true disagreement in the judicial independence/judicial accountability debate. I argue that the core difficulties in balancing the desire for judicial independence with the desire for judicial accountability stem primarily from the judicial retention decision, regardless of whether retention is obtained by some form of reelection or through a form of reappointment. I then propose a two-term system for putting judges on state high courts, in which (1) high court judges sit for an initial term of relatively short duration (for example, five or six years); and (2) following the initial term, those judges are eligible for a longer, final term (for example, ten or twelve years), after which the judge would be ineligible for further retention. I argue that this proposed system would better balance judicial accountability and judicial independence than the systems currently in place. Part II of this Article briefly surveys the various systems currently in place for selection and retention of state high court judges. Part III examines the most common and enduring arguments raised in the judicial elections debate—arguments related to the dueling instrumental goods of independence and accountability—to distinguish those arguments directed toward judicial selection from those arguments directed toward judicial retention. Building on Part III, Part IV will identify retention-related considerations other than elections that play an important role in a judge’s independence and accountability. Specifically, Part IV will suggest that term length and term limits are as important to the accountability/independence dynamic as the mechanism used to retain judges and can be used to increase desirable independence in those jurisdictions where judges periodically stand for re-election. Finally, Part V will offer a specific proposal for using term length and tenure limits to enhance independence even where elections are used to retain judges

Copyright Infringement’s Blurred Lines: Allocating Overhead in the Disgorgement of Profits

In Williams v. Bridgeport Music, Marvin Gaye’s estate alleged that the popular song “Blurred Lines” infringed Gaye’s 1977 song “Got to Give It Up.” As part of the remedy for the infringement, the Gaye estate sought to disgorge the profits derived from defendants’ infringement, but the parties disagreed about how to calculate those profits. Specifically, they disagreed about whether the infringing song’s revenues should be offset by the infringers’ $7 million in overhead costs allocable to the song. The district court determined that the infringers’ ability to offset overhead costs would depend on whether their infringement was willful; it held that inadvertent infringers are entitled to offset overhead, while willful infringers are not. A few months later, however, in Oracle America, Inc. v. Google, Inc., a different district judge in the Ninth Circuit explicitly disagreed with the Williams court in reaching a different conclusion. As these examples illustrate, this issue—whether to reduce disgorgement awards to account for overhead costs in copyright infringement cases—has vexed courts. Some courts, such as the Second Circuit, have held that infringement-related overhead should always be factored in to reduce disgorged profits. Other courts, such as the Seventh Circuit, have held that overhead should never be factored in. Still others have held that it should be factored in only if the defendant’s infringement was willful. In this Article, I argue that all of these holdings are wrong. Specifically, I argue that overhead should reduce the defendant’s profit calculation only when the defendant can prove that, but for the infringement, it would have utilized the assets represented by the overhead in some other revenue-generating fashion. Although there may be a rough correlation between this analysis and an analysis of the defendant’s willfulness, the focus on willfulness emphasizes the wrong consideration, resulting in much of the confusion that permeates the current law. Part of this confusion stems from a disagreement regarding the purpose of the disgorgement remedy. Some argue that disgorgement is coercive, others that it is punitive, and still others that it is compelled by notions of corrective justice. I contend in this Article that corrective justice best accounts for the features of copyright disgorgement. I also argue that only by considering the defendant’s conduct through a noninfringing counterfactual can we achieve disgorgement’s goal, as described in Sheldon v. Metro-Goldwyn Pictures Corp., of a “rational separation of net profits so that neither party may have what rightfully belongs to the other.