The Impact of Medical Liability Standards on Regional Variations in Physician Behavior: Evidence from the Adoption of National-Standard Rules

I explore the association between regional variations in physician behavior and the geographical scope of malpractice standards of care. I estimate a 30–50 percent reduction in the gap between state and national utilization rates of various treatments and diagnostic procedures following the adoption of a rule requiring physicians to follow national, as opposed to local, standards. These findings suggest that standardization in malpractice law may lead to greater standardization in practices and, more generally, that physicians may indeed adhere to specific liability standards. In connection with the estimated convergence in practices, I observe no associated changes in patient health

Defensive Medicine and Obstetric Practices

Using data on physician behavior from the 1979–2005 National Hospital Discharge Surveys (NHDS), I estimate the relationship between malpractice pressure, as identified by the adoption of non-economic damage caps and related tort reforms, and certain decisions faced by obstetricians during the delivery of a child. The NHDS data, supplemented with restricted geographic identifiers, provides inpatient discharge records from a broad enough span of states and covering a long enough period of time to allow for a defensive medicine analysis that draws on an extensive set of variations in relevant tort laws. Contrary to the conventional wisdom, I find no evidence to support the claim that malpractice pressure induces physicians to perform a substantially greater number of cesarean sections. Extending this analysis to certain additional measures, however, I do find some evidence consistent with positive defensive behavior among obstetricians. For instance, I estimate that the adoption of a non-economic damage cap is associated with a reduction in the utilization of episiotomies during vaginal deliveries, without a corresponding change in observed neonatal outcomes

Does Falling Smoking Lead to Rising Obesity?

The strong negative correlation over time between smoking rates and obesity have led some to suggest that reduced smoking is increasing weight gain in the U.S.. This conclusion is supported by the findings of Chou et al. (2004), who conclude that higher cigarette prices lead to increased body weight. We investigate this issue and find no evidence that reduced smoking leads to weight gain. Using the cigarette tax rather than the cigarette price and controlling for non-linear time effects, we find a negative effect of cigarette taxes on body weight, implying that reduced smoking leads to lower body weights. Yet our results, as well as Chou et al., imply implausibly large effects of smoking on body weight. Thus, we cannot confirm that falling smoking leads in a major way to rising obesity rates in the U.S

The Deterrent Effect of Death Penalty Eligibility: Evidence from the Adoption of Child Murder Eligibility Factors

We draw on within-state variations in the reach of capital punishment statutes between 1977 and 2004 to identify the deterrent effects associated with capital eligibility. Focusing on the most prevalent eligibility expansion, we estimate that the adoption of a child murder factor is associated with an approximately 20% reduction in the homicide rate of youth victims. Eligibility expansions may enhance deterrence by (1) paving the way for more executions and (2) providing prosecutors with greater leverage to secure enhanced non-capital sentences. While executions themselves are rare, this latter channel is likely to be triggered fairly regularly, providing a reasonable basis for a general deterrent response

Procrastination in the Workplace: Evidence from the U.S. Patent Office

Despite much theoretical attention to the concept of procrastination and much exploration of this phenomenon in laboratory settings, there remain few empirical investigations into the practice of procrastination in real world contexts, especially in the workplace. In this paper, we attempt to fill these gaps by exploring procrastination among U.S. patent examiners. We find that nearly half of examiners’ first substantive reports are completed immediately prior to the operable deadlines. Moreover, we find a range of additional empirical markers to support that this “end-loading” of reviews results from a model of procrastination rather than various alternative time-consistent models of behavior. In one such approach, we take advantage of the natural experiment afforded by the Patent Office’s staggered implementation of its telecommuting program, a large-scale development that we theorize might exacerbate employee self-control problems due to the ensuing reduction in direct supervision. Supporting the procrastination theory, we estimate an immediate spike in application end-loading and other indicia of procrastination upon the onset of telecommuting. Finally, contributing to a growing empirical literature over the efficiency of the patent examination process, we assess the consequences of procrastination for the quality of the reviews completed by the affected examiners. This analysis suggests that the primary harm stemming from procrastination is delay in the ultimate application process, with rushed reviews completed at deadlines resulting in the need for revisions in subsequent rounds of review. Our findings imply that nearly 1/6 of the annual growth in the Agency’s much-publicized backlog may be attributable to examiner procrastination

Are There as Many Trademark Offices as Trademark Examiners?

Federal trademark-registration rights have grown in import, and trademark owners have taken notice. In the fiscal year of 2018, over 660,000 federal trademark registration applications were filed with the U.S. Patent & Trademark Office (“Trademark Office”), representing a 60 percent increase from a decade prior. Yet despite the fact that there is growing concern that the Trademark Office is routinely issuing inconsistent trademark determinations, systematic empirical studies of the administrative process of obtaining federal registration rights are virtually nonexistent. This Article begins to close this gap by conducting the first large-scale study of trademark officials, known as trademark-examining attorneys, who make the initial determination on whether to accept or decline a federal trademark registration. Utilizing a novel dataset comprising over 7.8 million trademark applications, this Article examines the extent to which trademark-examining attorneys’ determinations differ from one another. We find substantial heterogeneity in Trademark Office outcomes. Trademark-examining attorneys have wildly divergent publication rates and registration rates even while controlling for a range of characteristics of the applications. The duration of time an application is before the Trademark Office also varies considerably among trademark-examining attorneys as does whether a filed opposition is sustained

Patent Office Cohorts

Concerns regarding low-quality patents and inconsistent decisions prompted Congress to enact the first major patent reform act in over sixty years and likewise spurred the Supreme Court to take a renewed interest in substantive patent law. Because little compelling empirical evidence exists as to what features affect the patent office’s granting behavior, policymakers have been trying to fix the patent system without understanding the root causes of its dysfunction. This Article aims to fill at least part of this gap by examining one factor that may affect patent examiners’ grant rates throughout their tenures: the year in which they were hired by the U.S. Patent and Trademark Office (PTO). An examiner may develop a general examination “style” in the critical early stages of her career that persists even in the face of changes in application quality or patent allowance culture at the agency. To the extent initial hiring environments influence a newly hired examiner’s practice style, variations in such initial conditions suggest examiners of different hiring cohorts may follow distinct, enduring pathways with their examination practices. Consistent with this prediction, we find strong evidence that the year an examiner was hired has a lasting effect on her granting patterns over the course of her career. Moreover, we find that the variation in the granting patterns of different PTO cohorts aligns with observed fluctuations in the initial conditions faced by such cohorts. By documenting the existence of cohort effects and by demonstrating the importance of initial environments in explaining certain long-term outcomes, this analysis holds various implications for patent policy and the administrative state more generally

Is the Time Allocated to Review Patent Applications Inducing Examiners to Grant Invalid Patents?: Evidence from Micro-Level Application Data

We explore how examiner behavior is altered by the time allocated for reviewing patent applications. Insufficient examination time may hamper examiner search and rejection efforts, leaving examiners more inclined to grant invalid applications. To test this prediction, we use application-level data to trace the behavior of individual examiners over the course of a series of promotions that carry with them reductions in examination-time allocations. We find evidence demonstrating that such promotions are associated with reductions in examination scrutiny and increases in granting tendencies, as well as evidence that those additional patents being issued on the margin are of below-average quality

The Failed Promise of User Fees: Empirical Evidence from the United States Patent and Trademark Office

In an attempt to shed light on the impact of user-fee financing structures on the behavior of administrative agencies, we explore the relationship between the funding structure of the Patent and Trademark Office (PTO) and its examination practices. We suggest that the PTO’s reliance on prior grantees to subsidize current applicants exposes the Agency to a risk that its obligatory costs will surpass incoming fee collections. When such risks materialize, we hypothesize, and thereafter document, that the PTO will restore financial balance by extending preferential examination treatment—i.e., higher granting propensities and/or shorter wait times—to some technologies over others

Does the U.S. Patent and Trademark Office Grant Too Many Bad Patents?: Evidence from a Quasi-Experiment

Many believe the root cause of the patent system’s dysfunction is that the U.S. Patent and Trademark Office (PTO or Agency) is issuing too many invalid patents that unnecessarily drain consumer welfare. Concerns regarding the Agency’s overgranting tendencies have recently spurred the Supreme Court to take a renewed interest in substantive patent law and have driven Congress to enact the first major patent reform act in over sixty years. Policymakers, however, have been modifying the system in an effort to increase patent quality in the dark. As there exists little to no compelling empirical evidence the PTO is actually overgranting patents, lawmakers are left trying to fix the patent system without even understanding the root causes of the system’s shortcomings. This Article begins to rectify this deficiency, advancing the conversation along two dimensions. First, it provides a novel theoretical source for a granting bias on the part of the Agency, positing that the inability of the PTO to finally reject a patent application may create an incentive for the resource-constrained Agency to allow additional patents. Second, this Article attempts to explore, through a sophisticated natural experiment framework, whether the Agency is in fact acting on this incentive and overgranting patents. Our findings suggest that the PTO is biased toward allowing patents. Moreover, our results suggest the PTO is targeting its overgranting tendencies toward those patents it stands to benefit from the most—that is, those patent applications directed toward technologies that have historically had high repeat-filing rates, such as information, computer, and health-related technologies. Our findings provide policymakers with much-needed evidence that the PTO is indeed overgranting patents. Our results also suggest that the literature has overlooked a substantial source of Agency bias; hence, recent fixes to improve patent quality will not achieve their desired outcome of extinguishing the PTO’s overgranting proclivities