Who Chooses Open-Source Software?

Economists and legal scholars have debated the reasons people adopt opensource software, and accordingly whether and to what extent the open-source model can scale, replacing proprietary rights as a primary means of production. In this Article, we use the release by a biotechnology company of similar software under both proprietary and open-source licenses to investigate who uses open-source software and why. We find that academic users are somewhat more likely to adopt open-source software than private firms. We find only modest differences in the willingness of open-source users to modify or improve existing programs. And we find that users of open-source software often make business decisions that seem indifferent to the norms of opensource distribution. Our findings cast some doubt on the penetration of the open-source ethos beyond traditional software markets

Religion, School, and Judicial Decision Making: An Empirical Perspective

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service of education reform. Our analyses include all digested Establishment and Free Exercise Clause decisions by federal court of appeals and district court judges from 1996 through 2005 that involved elementary and secondary schools. As it relates to differences between school and other (or non-school) cases, our main finding is that both measures of judicial ideology correlate with the likelihood of a pro-religion decision. That is, Republican-appointed judges were more likely than their Democratic-appointed counterparts to reach a pro-religion decision in school cases, and ideology did not correlate with a pro-religion outcome in non-school cases. Results using common space scores as a proxy for ideology were similar. Although these results dilute the strength of the “legal model” of judicial decision making, this type of case (religion) in this particular context (schools) are particularly amenable to ideological influence

Religion, School, and Judicial Decision Making: An Empirical Perspective

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service of education reform. Our analyses include all digested Establishment and Free Exercise Clause decisions by federal court of appeals and district court judges from 1996 through 2005 that involved elementary and secondary schools. As it relates to differences between school and other (or non-school) cases, our main finding is that both measures of judicial ideology correlate with the likelihood of a pro-religion decision. That is, Republican-appointed judges were more likely than their Democratic-appointed counterparts to reach a pro-religion decision in school cases, and ideology did not correlate with a pro-religion outcome in non-school cases. Results using common space scores as a proxy for ideology were similar. Although these results dilute the strength of the “legal model” of judicial decision making, this type of case (religion) in this particular context (schools) are particularly amenable to ideological influence

The Unexpected Role of Tax Salience in State Competition for Businesses

Competition among the states for mobile firms and the jobs and infrastructure they can bring is a well-known phenomenon. However, in recent years, a handful of states have added a mysterious new tool to their kit of incentives used in this competition. Unlike more traditional incentives, these new incentives — which this Article brands “customer-based incentives” — offer tax relief to a firm’s customers rather than directly to the firm. The puzzle underling customer-based incentives is that tax relief provided to the firm’s customers would seem more difficult for the firm to capture than relief provided directly to the firm — strange, as a state’s primary goal is to subsidize the firm’s investment in the state.After examining the emergence of this new form of incentive, this Article offers a novel explanation for their use and potential for success. Specifically, it argues that the effects of predictable consumer biases, particularly with respect to the salience of the tax relief provided by the incentives to consumers, cause customer-based incentives to differ substantively from traditional incentives in ways that are beneficial to both firms and states. Customer-based incentives thus present an example of how taxpayer behavior can influence the substantive effects of tax provisions, even causing two provisions with the same substantive goal to differ on the ground. Taking these behavioral effects into account provides opportunities to increase the effectiveness of tax provisions

The Limits of Good Law: A Study of Housing Court Outcomes

The enactment of the warranty of habitability in the early 1970s was hailed as a revolution in tenants’ rights. Reversing centuries of legal precedent, the doctrine established that a tenant’s obligation to pay rent is contingent upon the landlord’s obligation to maintain the premises in good repair. Today, nearly fifty years later, scholars and advocates frequently observe that the law has not lived up to the potential originally envisioned. Yet these observations have been based on weak empirical evidence. This Article presents the results of the first rigorous empirical study on the effectiveness of the warranty of habitability. Based on statistical analysis of over twelve hundred eviction case files and unit-level data matching of these files to Housing Code enforcement records, the study finds that the overwhelming majority of tenants with meritorious warranty of habitability claims do not benefit from the law at all. The Article makes two significant contributions to the literature on the warranty of habitability. First, it establishes that an operationalization gap exists in the law. While prior studies have observed that the warranty appears to be less effective than originally envisioned, all suffered from methodological limitations. These studies were either based on small, nonrepresentative samples or measured the use of the warranty against the entire population of tenants facing nonpayment of rent eviction. No study has been able to rigorously assess the use of the warranty of habitability in cases where it should be used: those in which the tenant has a meritorious claim. This study does so. Second, the Article upends the leading theories for why the warranty of habitability is ineffective. These theories posit that tenants are unable to benefit from the warranty of habitability because they lack access to legal representation and/or because strict requirements exist for assertion of the claim. The findings of this study show that neither theory withstands empirical scrutiny. Specifically, the data reveal that although legal representation significantly affects a tenant’s likelihood of benefiting from the warranty of habitability, most represented tenants with meritorious claims still do not benefit from the law at all. The findings also demonstrate that the strict procedural requirements cannot explain the law’s ineffectiveness—even where the requirements are absent, the law rarely protects tenant

Challenges to the Patent System

One of the underlying justifications of the patent system is to encourage dissemination of scientific knowledge and promote innovation. Yet, the patent system is not a green card to innovation. Indeed, given our progress in science and the increasing rate of technological developments it is ironic that there is arguably a declining rate of innovation. From this perspective, it might be contended that the patent system is not meeting its said objectives. But the patent system should be seen in a wider context. While well-intended, it is far too simplistic to argue that patents are good or bad for innovation, or that they ‘freeze or spur’ innovation. The challenges to the patent system are complex and cannot solely be attributed to its laws. That is, the patent system’s constituting laws do not tell the full story. Often more telling are the institutional frameworks and socio-cultural and economic practices at the pre-patent inventive stage and the post-patent commercialization stage and beyond. And so when attempting to predict future developments, and ultimately, craft solutions, understanding and ensuring that the wider context is effective is paramount