Chevron Deference and Patent Exceptionalism

The Duke Law Journal’s Forty-Sixth Annual Administrative Law Symposium addresses the timely and important topic of patent exceptionalism. Administrative law exceptionalism—the misperception that a particular regulatory field is so different from the rest of the regulatory state that general administrative law principles do not apply—is by no means unique to patent law. Scholars, attorneys, and agency officials in various regulatory fields ranging from immigration to tax have sought, contrary to the Supreme Court’s general guidance, “to carve out an approach to administrative review good for [the regulatory field’s] law only.” This Essay focuses on one of the main debates from the Symposium: whether courts should apply Chevron deference to interpretations of substantive patent law advanced by the U.S. Patent and Trademark Office (PTO). Part I frames the debate about whether Chevron deference should apply, contrasting the positions taken by Stuart Benjamin and Arti Rai on the one hand, and John Golden on the other. After agreeing with Professors Benjamin and Rai that certain PTO interpretations of substantive patent law are probably eligible for Chevron deference, Part II outlines how a stronger case could be made for why it is worth the PTO’s time and energy to seek Chevron deference from the Supreme Court. Among other reasons, the PTO and its U.S. Department of Justice lawyers should request such deference to weaken the Federal Circuit’s control over substantive patent law and reverse an era of patent stare decisis. The Essay concludes by urging patent law scholars to play a more active role in urging courts to abandon patent exceptionalism

Limiting Behavior of High Order Correlations for Simple Random Sampling

For N=1,2,..., let S_N be a simple random sample of size n=n_N from a population A_N of size N, where 0<=n<=N. Then with f_N=n/N, the sampling fraction, and 1_A the inclusion indicator that A is in S_N, for any H a subset of A_N of size k>= 0, the high order correlations Corr(k) = E (\prod_{A \in H} (1_A-f_N)) depend only on k, and if the sampling fraction f_N -> f as N -> infinity, then N^{k/2}Corr(k) -> [f(f-1)]^{k/2}EZ^k, k even and N^{(k+1)/2}Corr(k) -> [f(f-1)]^{(k-1)/2}(2f-1)(1/3)(k-1)EZ^{k+1}, k odd where Z is a standard normal random variable. This proves a conjecture given in [2].Comment: 32 page

Eddy Influences on Hadley Circulations: Simulations with an Idealized GCM

An idealized GCM is used to investigate how the strength and meridional extent of the Hadley circulation depend on the planet radius, rotation rate, and thermal driving. Over wide parameter ranges, the strength and meridional extent of the Hadley circulation display clear scaling relations with regime transitions, which are not predicted by existing theories of axisymmetric Hadley circulations. For example, the scaling of the strength as a function of the radiative-equilibrium equator-to-pole temperature contrast exhibits a regime transition corresponding to a regime transition in scaling laws of baroclinic eddy fluxes. The scaling of the strength of the cross-equatorial Hadley cell as a function of the latitude of maximum radiative-equilibrium temperature exhibits a regime transition from a regime in which eddy momentum fluxes strongly influence the strength to a regime in which the influence of eddy momentum fluxes is weak. Over a wide range of flow parameters, albeit not always, the Hadley circulation strength is directly related to the eddy momentum flux divergence at the latitude of the streamfunction extremum. Simulations with hemispherically symmetric thermal driving span circulations with local Rossby numbers in the horizontal upper branch of the Hadley circulation between 0.1 and 0.8, indicating that neither nonlinear nearly inviscid theories, valid for Ro → 1, nor linear theories, valid for Ro → 0, of axisymmetric Hadley circulations can be expected to be generally adequate. Nonlinear theories of axisymmetric Hadley circulations may account for aspects of the circulation when the maximum radiative-equilibrium temperature is displaced sufficiently far away from the equator, which results in cross-equatorial Hadley cells with nearly angular momentum-conserving upper branches. The dependence of the Hadley circulation on eddy fluxes, which are themselves dependent on extratropical circulation characteristics such as meridional temperature gradients, suggests that tropical circulations depend on the extratropical climate

Scaling Laws and Regime Transitions of Macroturbulence in Dry Atmospheres

In simulations of a wide range of circulations with an idealized general circulation model, clear scaling laws of dry atmospheric macroturbulence emerge that are consistent with nonlinear eddy–eddy interactions being weak. The simulations span several decades of eddy energies and include Earth-like circulations and circulations with multiple jets and belts of surface westerlies in each hemisphere. In the simulations, the eddy available potential energy and the barotropic and baroclinic eddy kinetic energy scale linearly with each other, with the ratio of the baroclinic eddy kinetic energy to the barotropic eddy kinetic energy and eddy available potential energy decreasing with increasing planetary radius and rotation rate. Mean values of the meridional eddy flux of surface potential temperature and of the vertically integrated convergence of the meridional eddy flux of zonal momentum generally scale with functions of the eddy energies and the energy-containing eddy length scale, with a few exceptions in simulations with statically near-neutral or neutral extratropical thermal stratifications. Eddy energies scale with the mean available potential energy and with a function of the supercriticality, a measure of the near-surface slope of isentropes. Strongly baroclinic circulations form an extended regime in which eddy energies scale linearly with the mean available potential energy. Mean values of the eddy flux of surface potential temperature and of the vertically integrated eddy momentum flux convergence scale similarly with the mean available potential energy and other mean fields. The scaling laws for the dependence of eddy fields on mean fields exhibit a regime transition between a regime in which the extratropical thermal stratification and tropopause height are controlled by radiation and convection and a regime in which baroclinic entropy fluxes modify the extratropical thermal stratification and tropopause height. At the regime transition, for example, the dependence of the eddy flux of surface potential temperature and the dependence of the vertically integrated eddy momentum flux convergence on mean fields changes -— a result with implications for climate stability and for the general circulation of an atmosphere, including its tropical Hadley circulation

Self-Organization of Atmospheric Macroturbulence into Critical States of Weak Nonlinear Eddy–Eddy Interactions

It is generally held that atmospheric macroturbulence can be strongly nonlinear. Yet weakly nonlinear models successfully account for scales and structures of baroclinic eddies in Earth's atmosphere. Here a theory and simulations with an idealized GCM are presented that suggest weakly nonlinear models are so successful because atmospheric macroturbulence organizes itself into critical states of weak nonlinear eddy–eddy interactions. By modifying the thermal structure of the extratropical atmosphere such that its supercriticality remains limited, macroturbulence inhibits nonlinear eddy–eddy interactions and the concomitant inverse energy cascade from the length scales of baroclinic instability to larger scales. For small meridional surface temperature gradients, the extratropical thermal stratification and tropopause height are set by radiation and convection, and the supercriticality is less than one; for sufficiently large meridional surface temperature gradients, the extratropical thermal stratification and tropopause height are modified by baroclinic eddies such that the supercriticality does not significantly exceed one. In either case, the scale of the energy-containing eddies is similar to the scale of the linearly most unstable baroclinic waves, and eddy kinetic and available potential energies are equipartitioned. The theory and simulations point to fundamental constraints on the thermal structures and global circulations of the atmospheres of Earth and other planets, for example, by providing limits on the tropopause height and estimates for eddy scales, eddy energies, and jet separation scales

Cultural competence – transforming policy, services, programs and practice

This chapter discusses some of the complex issues surrounding the notion of cultural competence—and the critical need for practitioners to develop knowledge, skills, understandings and attributes to be responsive in diverse cultural settings. The argument for culturally competent mental health practitioners and services is situated within a human rights framework which underpins the principles, standards and practice frameworks intended to facilitate/contribute to the capacity and empowerment of mental health practitioners and clients, families and communities. The National Practice Standards for the Mental Health Workforce 2013 (the practice standards) outline core competencies (including cultural competence) regarded as essential for the mental health workforce: mental health nursing, occupational therapy, psychiatry, psychology and social work. The documented impact of these disciplines/professions on Aboriginal people requires new ways of working that are empowering, respectful and ethical. A case is made for the importance of practitioners providing more culturally inclusive and appropriate care to increase the likelihood that clients and their carers will experience a sense of cultural safety (as well as culturally appropriate services) for Aboriginal clients, their families and communities. The practice standards are complemented by professional guidelines and the National Standards for Mental Health Services 2010 (the service standards). This chapter provides a range of tools and strategies and a Critical Reflection Framework for Analysis to assist students or practitioners to adopt a critical standpoint in order to develop key competencies (knowledge, skills, attitudes and values) to be culturally respectful and effective in their practice in Aboriginal and Torres Strait Islander mental health. Equally important is the need for strategies for self-care and support such as mentoring, journaling, peer support, counselling and engaging in self-reflective, transformative practice.&nbsp

Quantifying the Fragility of Galactic Disks in Minor Mergers

We perform fully self-consistent stellar dynamical simulations of the accretion of a companion ("satellite") galaxy by a large disk galaxy to investigate the interaction between the disk, halo, and satellite components of the system during a merger. Our fiducial encounter begins with a satellite in a prograde, circular orbit inclined thirty degrees with respect to the disk plane at a galactocentric distance of six disk scalelengths. The satellite's mass is 10% of the disk's mass and its half-mass radius is about 1.3 kpc. The system is modelled with 500 000 particles, sufficient to mitigate numerical relaxation noise over the merging time. The satellite sinks in only ~1 Gyr and a core containing ~45% of its initial mass reaches the centre of the disk. With so much of the satellite's mass remaining intact, the disk sustains significant damage as the satellite passes through. At the solar circle we find that the disk thickens ~60%, the velocity dispersions increase by \Delta\mbox{\boldmath\sigma} \simeq (10,8,8) km/s to $(\sigma_R, \sigma_\phi, \sigma_z) \simeq (48, 42, 38)$ km/s, and the asymmetric drift is unchanged at ~18 km/s. Although the disk is not destroyed by these events (hence "minor" mergers), its final state resembles a disk galaxy of earlier Hubble type than its initial state, thicker and hotter, with the satellite's core enhancing the bulge. Thus minor mergers continue to be a promising mechanism for driving galaxy evolution.Comment: LaTeX with AASTeX macros; text only. For PostScript with figures embedded, go to http://www.ucolick.org/~iwalker/ss