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Faculty Working Papers

Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Catalog to locate a working paper.

Research Paper Series

Working Papers

Recent Working Papers:

The Misuse of the Bayh-Dole Act and the Folly of Price Controls on Drug Patents

Adam Mossoff

This chapter in Bring Medicines to Life: How Intellecutal Property Enables Innovation in the Life Sciences analyzes and critiques the “price control theory of the Bayh-Dole Act,” demonstrating that this decades-long campaign to use the Bayh-Dole Act to impose price controls on drug patents is both statutorily unjustified and policy folly. First, it provides novel statutory analyses of the Bayh-Dole Act to show once again that the text, structure, and function of the march-in power in § 203 precludes the National Institutes of Health (NIH) from using it to grant licenses to generic drug companies to reduce prices of prescription drugs. Second, it addresses the economic errors underlying this price-control agenda even when the NIH is legally authorized in other provisions of the Bayh-Dole Act to impose conditions in its grant agreements and licenses, such as affordability mandates or reasonable price restrictions. Invoking this other statutory power in the Bayh-Dole Act, the Biden Administration adopted an “affordability” mandate in all licenses of NIH-owned patents in early 2025, and the Trump Administration officially implemented this policy on October 1, 2025. But this is policy folly. Contrary to conventional wisdom, almost all R&D funding for prescription drugs is from private sources. Given this economic data on drug R&D, a similar price-control policy adopted by the NIH failed. In 1989, the NIH adopted a “reasonable pricing” condition in its research grant agreements and licenses for any resulting prescription drug. This policy resulted in a collapse of NIH research agreements and licenses. NIH Director Varmus thus withdrew the “reasonable pricing” mandate in 1995, recognizing that it was contrary to the commercialization goals of the Bayh-Dole Act. The 2025 “affordability” mandate in NIH licenses will similarly undermine the commercialization of biomedical innovations created by NIH scientists. In sum, price controls on drug patents contravene the Bayh-Dole Act’s statutory text and function in harnessing the patent system as an engine of healthcare innovation through patent licensing and technology transfer. 

Immigration is Not Invasion

Ilya Somin

In recent years, state governments and the second Trump Administration have increasingly advanced the argument that illegal migration and cross-border drug-smuggling qualify as “invasion” under the Constitution, and the Alien Enemies Act of 1798 (AEA). If these arguments are accepted by courts, or if they rule the issue is committed to the unreviewable discretion of the executive, the consequences will be dire. Such an outcome would pose a grave threat to the civil liberties of both immigrants and US citizens. It would also enable state governments to initiate war without federal authorization. This article makes the first comprehensive case against claims that illegal migration and drug smuggling qualify as “invasion.” As James Madison explained in 1800, “Invasion is an operation of war.” Illegal migration and drug smuggling do not qualify. 

Part I summarizes the history of the “invasion” debate and currently ongoing litigation over it.  Part II explains why the broad interpretation of “invasion” is manifestly wrong under the text and original meaning of the Constitution. The concept does not include illegal migration or drug smuggling. This conclusion is supported by the constitutional text, extensive evidence from the Constitutional Convention and the ratification process, and references to “invasion” in the Federalist Papers. 

In Part III, I consider the meaning of “invasion” in the Alien Enemies Act of 1798. The text and public meaning indicate it is essentially the same as that in the Constitution. Under the Act, an invasion requires a military attack. This reality is not changed by the fact that many Americans die as a result of overdosing on illegal drugs, or by recent US military attacks on suspected drug smugglers in international waters. 

Part IV outlines the dire implications of the broad view of invasion. State governments would have the power to wage war in response to undocumented migration and smuggling, even if such warfare were not authorized by Congress. This would be a major undermining of Congress’ power to declare war, and threatens to involve the United States in warfare at the behest of a single state government. Even worse, the broad view would also effectively give the federal government the power to suspend the writ of habeas corpus at any time. These dangerous implications strengthen the originalist case against a broad definition of “invasion.” They also cut against the broad definition from the standpoint of various living constitution theories of interpretation.

Finally, Part V explains why courts should not defer to the president or to state governments on either the meaning of “invasion” or the factual issue of whether an “invasion” – properly defined – has actually occurred.

International Finance and the Geopolitics of Market Infrastructures

Paolo Saguato

This Article examines how financial market infrastructures (FMIs)—long regarded as neutral, technocratic utilities—have become instruments of geopolitical influence and economic statecraft. Drawing on three case studies—SWIFT sanctions, EU-UK post-Brexit equivalence disputes, and the EU’s withdrawal of FMI recognition for India, South Africa, and the United Arab Emirates—this article shows how FMIs are increasingly ‘weaponized’ as tools of financial diplomacy. It argues that mutual recognition and equivalence regimes, originally designed to foster cross-border regulatory coordination and financial stability, have evolved into levers of jurisdictional power. These mechanisms now serve both ‘offensive’ purposes (such as sanctions) and ‘defensive’ strategies (such as re-shoring euro clearing), revealing their political and discretionary nature. Yet, this transformation is not necessarily a design failure. Rather, it reflects the adaptability of these regimes to a pluralistic international legal order where sovereignty and market access must be balanced. The Article contributes to the literature on international financial governance by analyzing how FMI access decisions sit at the intersection of law, markets, and geopolitics—and by suggesting how these dynamics might reshape global financial integration.

How Speech-Based Immigration Restrictions Threaten Academic Freedom

Ilya Somin
Since he returned to office in January 2025, President Donald Trump’s administration has engaged in a systematic effort to deport non-citizen university students and academics who express views inimical to those of the US government on a number of issues. Litigation over these attempted deportations has focused on First Amendment free speech issues.  But speech-based deportations of students and academic university employees also threaten academic freedom. This chapter explains how and why.
Part I briefly summarizes the Trump Administration’s campaign of speech-based deportation of non-citizen students and academics. That campaign focuses primarily on students with anti-Israel and pro-Palestinian views regarding the ongoing war in Gaza. But its logic could just as easily justify targeting a wide range of other viewpoints. 
Part II presents an overview of the idea of academic freedom. That principle is related to, but distinct from freedom of speech. In some respects, it is narrower than the latter. But academic freedom does nonetheless require faculty and researchers to be able to consider and express a wide range of viewpoints on the issues they work on, and to be free of sanctions for viewpoints they express outside of the context of their academic work.  The same goes for students. Part III explains how speech-based deportations undermine the academic freedom of both non-citizens subject to deportation, and US-citizen scholars and students. The former effect is obvious. The latter is more indirect, but nonetheless large. Speech-based deportations of foreign students and academics chills the speech of their US-citizen colleagues and also deprives the latter of the opportunity for valuable interactions that could enhance their research, teaching, and learning. What is true of speech-based deportations is also true of speech-based exclusions of potential migrants even before they are allowed to set foot in the United States. 
Finally, Part IV considers multiple possible rationales for speech-based deportations and exclusions. Ironically, some of these rationales—currently advanced by a right-wing administration—turn out to be similar to traditional left-wing rationales for restrictions on “hate speech.” Whether deployed by the right or the left, the rationales are badly flawed. If correct, they cannot logically be limited to suppressing speech by non-citizens. Bigoted or otherwise reprehensible speech by US citizens creates comparable or greater dangers.

Lessons for Antitrust from the Capital One-Discover Merger: Is There a Subprime Market in Credit Cards?

Todd J. Zywicki, Julian Morris, Eric Fruits, Ben Sperry
In April 2025, the Office of the Comptroller of the Currency cleared the proposed $35 billion merger of Capital One and Discover Bank, making the combined company the third-largest credit card issuers by volume. Because of the highly decentralized nature of the U.S. credit card industry, the merger typically would draw minimal regulatory scrutiny. Because of the significant market share of the two entities in the so-called “subprime” credit card market, however, the merger presented a novel question at the intersection of competition policy and consumer financial services—whether the “subprime” market should be analyzed as a separate market for antitrust purposes. According to one estimate the combined entity will have approximately 30% of the subprime market at the time the merger is consummated.
The OCC did not specifically address whether there was a “subprime” market that should be treated as a separate market for purposes of analyzing the effect on consumers and competition. We agree with that analysis. Although the term “subprime” is used colloquially, defining a “sub-prime market” lacks a determinate and stable definition for purposes of rigorous antitrust analysis. Moreover, consumers who participate in the subprime market are subject to constant change and turnover, moving frequently between the subprime and prime markets. Finally, given the permeability of any demarcation between “prime” and “subprime” consumers, other large credit card issuers already have a presence in the subprime market and could easily expand their existing operations if Capital One-Discover attempted to increase prices for consumers.

Religious Freedom as Freedom

Helen M. Alvaré

In recent decades, the exercise of religious freedom is increasingly associated with oppression. This is not only due to the disagreement between religions and some governments concerning sexual expression matters—contraception, abortion, same-sex relations, and transgender identity—but is also due to diverging convictions about the substance and sources of freedom. This Article will examine a current and highly visible set of convictions about the contents of human freedom, which together suggest that a thriving religious witness threatens freedom itself. These convictions often surface in the context of laws touching upon sexual expression. It will then contrast these convictions with those found in earlier and largely non-sexual-expression law, according to which religious witness enhances human freedom. Finally, it will offer four observations about these contrasting notions of freedom.

Law Enforcement with Rent Dissipation

Murat C. Mungan, J. Shahar Dillbary

We consider a framework which brings together losses arising from rent-dissipation and the workhorse model of law enforcement. Governmental actors engage in a contest to share the proceeds from the enforcement of the law through monetary fines, which leads to rent-dissipation. This causes monetary sanctions to be costly, rendering the model used for studying nonmonetary sanctions a better fit for their analysis. The effect of rent-dissipation on optimal sanctions is directly related to the sanction elasticity of offenses measured at the classic optimum (i.e., where the expected sanction equals the direct harm from the offense). When offenses are inelastic, the optimal sanction is smaller than the classic optimum and it is decreasing in the degree of rent-dissipation; and a legislator who does not fully internalize contest costs chooses an overly-punitive sanction which is smaller than the classic optimum. The opposite results are obtained when offenses are elastic. We discuss implications and extensions.

Revocation on Divorce and the State as Heir: Fixing the Uniform Probate Code

Thomas P. Gallanis

Suppose that, prior to a divorce, a testator devises the residue of his estate to his spouse if she survives him, otherwise "one half to my heirs and one half to my spouse's heirs." If the testator dies after the divorce and without revising the will, who is entitled to the residue? The answer under the Uniform Probate Code (UPC) will come as a surprise. One half of the residue will escheat to the state as the heir of the former spouse. The result arises from a glitch in the UPC inadvertently introduced when the UPC was revised in 1990. This Article identifies and analyzes the glitch and proposes a statutory solution for the Uniform Law Commission and the legislatures of enacting states.

Natural Property Rights

Eric R. Claeys

Natural Property Rights presents a novel theory of property based on individual, pre-political rights. A just system of property protects people's rights to use resources, and it also orders those rights consistent with natural law and the public welfare. Drawing on influential property theorists such as Grotius, Locke, Blackstone, and early American statesmen and judges, as well as recent work in normative and analytical philosophy, Natural Property Rights shows how natural rights guide political and legal reasoning about property law. It examines how natural rights justify the most familiar institutions in property, including public property, ownership, the system of estates and future interests, leases, servitudes, mortgages, police regulation, and eminent domain. The book studies examples familiar from the law covering tangible resources; chattels, real property, energy, and water law. Thought-provoking and comprehensive, Natural Property Rights shows how property at once secures individual freedom and serves the common good.

Although Natural Property Rights repays study on its own, it also offers an important alternative to contemporary perspectives on property. In relation to philosophy and political-theory scholarship, Natural Property Rights justifies property as the object of a right. But the right is not grounded in autonomy as it is in the political theories of Robert Nozick and many other libertarians; it is grounded instead in foundations associated with perfectionism, eudaimonism, and human flourishing. And the book reminds philosophers and political theorists how many factors besides analytic concepts and normative foundations matter in property; it shows how legal property rights develop from practical reasoning and the specification of general prepolitical rights.

In relation to legal scholarship, Natural Property Rights offers an important alternative to the normative theories that loom largest today—Progressive property, law and economics, and  expertise-driven approaches to property (as in Tahoe-Sierra Preservation Council v. Tahoe-Regional Planning Agency (2002) and Kelo v. New London (2005)). Consistent with Progressive property, natural law and rights link property to human flourishing. But natural law and rights still justify property as the object of an individual right, and not as an entitlement to do what regulators or judges think will contribute to flourishing in the relevant community. Consistent with the best law-and-economics scholarship, natural law and rights guide reasoning about the effects of recognizing property rights in law. But natural law and rights address familiar challenges faced by law and economics—about when and why legal systems have legitimate political authority to coerce citizens, with the state’s monopoly over violence, to obey efficient rules. And natural law and rights reconcile individual property rights with the public welfare as called for in expertise-driven approaches—without threatening individual freedom as those approaches do.

Is Racial Discrimination Ever Charitable?

Thomas P. Gallanis

Is racial discrimination permissible for a charity? The question is salient and timely. Our nation faces a stark choice between two competing visions of how the law should assess racial discrimination. One view, articulated by Professor Ibram X. Kendi, among others, is that racial discrimination in favor of members of minority groups is an appropriate response to society’s prior discrimination against them. A competing view, articulated by the Supreme Court in SFFA v. Harvard,  is that racial discrimination is odious tout court: eliminating racial discrimination means ending all of it.

This Essay tackles an aspect of the question that has not received much scholarly attention. The Supreme Court’s decision in SFFA v. Harvard has prompted commentary on racial discrimination and the Equal Protection Clause of the U.S. Constitution and Title VI of the Civil Rights Act of 1964,  the latter of which prohibits discrimination by programs and activities receiving federal financial assistance.  The commentary after SFFA v. Harvard also extends to Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment,  and Section 1981, which prohibits discrimination in, among other things, the making and enforcing of contracts.  Recent actions taken by the Trump Administration vis-à-vis Harvard University raise the issue of racial discrimination as a basis for revoking federal tax-exempt status under Section 501(c)(3) of the Internal Revenue Code.  But little attention has been given to the law of charity, which derives  from the law of charitable trusts. In order to qualify for tax exemption as a charity, a charity must be a charity.  What does and should the law of charity say about racial discrimination after SFFA v. Harvard?

This Essay proceeds in four main parts. Part I examines the law of charity and its requirement that a charity must not violate public policy. Part II explores three Supreme Court decisions salient to public policy and racial discrimination. The public policy limitation in the law of charity derives from the law of charitable trusts, but it is influenced by federal law, including the Court’s decisions; also, state law influences federal law when federal courts determine the issue of federal tax-exempt status. Part III examines the legal landscape after the Court’s decision in SFFA v. Harvard. Part IV proposes a path forward, arguing that the time has come for state and federal courts and taxing authorities to declare that racial discrimination by a charity violates public policy irrespective of the race of the individuals harmed by it. A brief conclusion follows.

Public Choice Theory and Law

Jeremy Kidd, Todd J. Zywicki

Public choice theory applies economic principles—especially rational self-interest, incentive structures, and methodological individualism—to the study of political and legal institutions. While traditionally used to explain legislative and regulatory behavior, this entry explores how public choice insights apply more broadly across the legal landscape. Concepts such as concentrated benefits and dispersed costs, rational ignorance, and rent-seeking help explain how legal actors—judges, litigants, bureaucrats, and interest groups—interact within institutional constraints. The entry examines how these dynamics shape the evolution of litigation, the behavior of administrative agencies, and even constitutional change. By grounding legal processes in the same incentive-driven analysis used in economics, public choice theory offers a powerful explanatory framework for why legal outcomes often diverge from publicly stated goals.

Should We Fear Personalized Pricing?

John M. Yun

The practice of personalized pricing involves using information about a consumer to more accurately estimate an individual’s willingness-to-pay for a product to calibrate pricing to that individual. If the practice grows, what does this imply for consumer welfare—particularly for digital markets where there is an abundance of user data? While some consumers may end up enjoying lower prices and having greater access to markets, other consumers will likely end up paying higher prices relative to the counterfactual, that is, a world without personalized pricing but likely some other forms of price discrimination. Nonetheless, it is unlikely that all consumers are made worse off relative to the counterfactual. Additionally, there are reasons that mitigate the concern that the practice of personalize pricing will grow. First, there could be competitive pressure to not engage in the practice—as firms that explicitly avoid personalized pricing will have a competitive advantage in the eyes of consumers. Relatedly, firms that do engage in personalized pricing will likely be stigmatized in the market, which creates a strong disincentive to widely adopt the practice.

Wither Consumer Welfare? Antitrust in the Biden Years

Douglas H. Ginsburg

The consumer welfare standard has been the lodestar of antitrust policy for more than four decades, ensuring predictable decision making by the Government’s antitrust agencies and the courts. From the beginning of his term, however, President Biden and his administration signaled their intent to embark on a different and more aggressive approach to antitrust policy. The FTC and the Antitrust Division of the DOJ proceeded to issue many new guidelines and policy statements, and to pursue novel theories in merger enforcement actions and civil litigation. The FTC also issued a substantive competition rule for the first time in decades, and significantly increased the information required to be submitted by firms seeking approval of a merger. The agencies deemphasized consumer welfare and economic analysis more generally, instead elevating the importance of market structure and other populist goals such as the preservation of small businesses. This, in turn, diminished the agencies’ persuasiveness in court, where they lost half of their merger cases. The most effective parts of the Biden administration’s agenda were those that aligned most closely with traditional economic principles, particularly in monopolization cases. The lesson to be drawn is that antitrust enforcement still is most successful and best preserves competition when it is guided by economic principles — in particular, the consumer welfare standard — rather than other goals.

The Supreme Court, Education, and the KKK in the 1920s

David E. Bernstein
Meyer v. Nebraska and Pierce v. Society of Sisters present historians with a puzzle. The Court had refused previous opportunities to initiate a due process jurisprudence that expanded beyond freedom of contract and property rights. Why did the Court suddenly adopt a more aggressive understanding of the Due Process Clause in Meyer and Pierce?
As has been discussed elsewhere, there are several plausible and non-exclusive explanations. This article focuses on the Justices’ hostility to the Ku Klux Klan. The Klan had been a leading force behind laws regulating or banning private education, and the Court’s decisions in Meyer and Pierce likely in part reflected a pushback against the Klan’s agenda.
Part I of this Article discusses the Klan’s resurgence in the early 1920s and its role in sponsoring legislation targeting private schools. This included the Oregon compulsory public education law invalidated by the Court in Pierce.
Part II discusses the Court’s hostility to the Klan. This section discusses a significant anti-Klan ruling that has received little scholarly attention, the 1928 case of Bryant v. Zimmerman. In Zimmerman, the Court upheld a New York law requiring certain membership organizations, including the Ku Klux Klan, to register their membership lists with the state. The Court held that this requirement did not violate constitutional rights, particularly freedom of association or due process. Importantly, the Court’s holding was not based on a rejection of the notion that the Fourteenth Amendment protects the freedoms of private membership organizations. Rather, the Court focused on the malevolent nature of the Klan.

Public Use, Exclusionary Zoning, and Democracy

Ilya Somin
The twentieth anniversary of Kelo v. City of New London is a good opportunity to consider the broader significance of public use for constitutional theory, and to explore parallels between the “public use” issue at stake in that case, and another major issue in constitutional property rights under the Takings Clause: exclusionary zoning. In the twenty years since Kelo, exclusionary zoning and the housing crisis it has caused have emerged as major issues in public policy and legal debate. Kelo famously ruled that the Fifth Amendment requirement that takings must be for a “public use” does not bar the employment of eminent domain to take homes for privately owned “economic development.” The Court endorsed a broad definition of “public use” that included almost any disposition of condemned property that might benefit the public in some way. Exclusionary zoning – defined here as regulatory restrictions on the types of housing that can be built in a given area - is a major factor in the national housing crisis, that has increased housing costs, prevented millions of people from “moving to opportunity,” and impaired economic growth and innovation. opportunities. There are striking and largely unnoticed parallels between the “public use” question decided in Kelo and the constitutional issues raised by exclusionary zoning.
Part I highlights the strikingly similar history of the two issues. In both cases, there is a strong originalist argument that the policy in question – private-to-private condemnations in one case, exclusionary zoning in the other – violate the property rights provisions of the Fifth Amendment. The former violates the requirement that the use of eminent domain be for a “public use;” the latter that severe restrictions on owners’ rights to use their land require “just compensation” under the Takings Clause. But, in both cases, the Supreme Court and federal courts generally have taken a highly deferential approach since the rise of Progressive and New Deal-era skepticism of property rights. That skepticism was in large part driven by concerns that judicial protection for property rights is undemocratic, inhibits government planning, and tends to benefit the rich at the expense of the poor and disadvantaged.
Part II outlines ways in which the traditional conventional wisdom on these two issues is wrong. Judicial deference on both public use and exclusionary zoning has greatly harmed the poor and disadvantaged, particularly racial minorities. Moreover, stronger judicial review can actually further “representation-reinforcement” in two ways: by giving voice to groups excluded from the political process, and by empowering them to “vote with their feet.” 
Part III briefly highlights some synergies between judicial enforcement of public use limitations on eminent domain, and enforcement of restrictions on exclusionary zoning. Both help empower people to live where they wish. Striking down exclusionary zoning would make it harder for local governments to keep people out; Reversing Kelo would make it harder for them to expel those already living in the area. Opponents of exclusionary zoning could also potentially learn useful lessons from the Kelo experience on how litigation can be effectively combined with political action.

The Federalist’s Dilemma: State AI Regulation & Pathways Forward

Evangelos Razis, James C. Cooper

AI has captured everybody’s imagination, especially policymakers. The extent to which imagination has translated into action, however, is a mixed bag. At the federal level, Congress has studied the issue, weighed grand proposals, and held countless hearings on AI but has enacted only modest legislation. While executive branch agencies and the FTC have talked a big game, their accomplishments have also been modest, mostly due to limits on legal authority. Not surprisingly, as with data privacy, states have stepped into the vacuum created by federal inaction with AI regulations of their own. Typically, states acting as laboratories is a good thing, allowing experimentation and competition to hone the efficiency and fit of regulatory regimes to different situations. But when the subject of regulation is interstate – and in this case global—by nature, a patchwork of state regimes is far from ideal. The solution to this dilemma is often seen as a binary: allow the state patchwork to evolve for better or worse, or stop it in its tracks with a federal preemptive response. We see this as a false choice and offer two potentially better paths. First, would be for Congress to enact a national “moratorium” on state laws regulating AI. We argue that this as a superior approach because it will arrest potentially harmful regulation and the patchwork problem and alleviate pressure on Congress to pass premature AI laws merely to prevent the states from acting. Second, would be to honor choice of law provisions in AI-related contracts, thereby fostering competition among firms and states to provide efficient AI regulation. Borrowing from the ideas of Larry Ribstein and various coauthors, we argue that firms would compete for consumers by choosing to be regulated by the regime that maximized their profits, and states would compete to enact efficient laws. In sum, we think the current rush to regulate AI, whether at the state or federal level, is premature. Regulators have existing tools to address consumer harms. The problem is that our federal system, just like nature, abhors a vacuum, and states are filling it with a patchwork of potentially onerous and inconsistent AI requirements. The pressure to prevent state action, in turn, may force Congress’ hands into an ill-considered and hasty response that is little better than the states’ alternative. We see our hybrid approaches as a way out of this dilemma.

Supporting Free Speech and Countering Antisemitism on American College Campuses

David E. Bernstein, David L. Bernstein

This article addresses what university leaders should do about the surge of antisemitism on American college campuses following Hamas’s October 7, 2023 atrocities from the perspective of committed free speech liberals—who both happen to be named David Bernstein—who also wish to protect the civil rights of Jewish students. 

The authors first note that many antisemitic incidents on campus have involved vandalism, assault, and disruptive and illegal protests (e.g., building occupations and illicit encampments) and other acts that violate content-neutral regulations. While the perpetrators of these acts have often defended themselves as engaging in freedom of expression, these acts can and should be punished without infringing free speech. 

Similarly, while faculty should be free to advocate anti-Israel positions, even extremist ones, universities must draw the line when such advocacy turns into discrimination against individuals with ties to Israel or with “Zionist” political positions, or when a professor participates in the BDS movement’s boycott guidelines in ways that conflict with university policy or the law. 

The article also tackles "harder" cases, where offensive speech, such as pro-Hamas chants and extremist anti-Zionist rhetoric, that test the limits of free expression. The authors argue that universities should protect such speech, in part because of liberal principle, and in part because of the pragmatic judgment that in long-run Jews thrive where liberalism, including free speech liberalism, thrives.

On the other hand, universities may not enforce double standards in speech regulation, exemplified by Harvard and University of Pennsylvania’s tolerance of antisemitic rhetoric while punishing other offensive speech. The authors agree that the proper solution to such double standards is to protect speech across-the-board, though they disagree on the proper strategy with regard to universities that insist on enforcing double standards.

The article concludes that universities must consistently apply content-neutral rules, maintain institutional neutrality, and protect both free speech and nondiscrimination to create an environment where Jewish students and others can thrive. By disentangling speech from unlawful conduct and addressing administrative hypocrisy, the authors offer a nuanced liberal framework for resolving these campus challenges.

The Injunction Function: How and Why Courts Secure Property Rights in Patents

Adam Mossoff

Property rights facilitate market transactions and economic growth by securing exclusive rights to their owners. This economic principle is true for all property rights, whether in land or in inventions. Today, many judges, lawyers, and commentators misunderstand this fundamental truth in patent law. Patent owners are no longer able to obtain injunctions against continuing or willful violations of their property rights, especially if they are using the licensing business model that was first employed in the U.S. innovation economy in the 1790s. This alteration in patent remedies was wrought by the Supreme Court in its 2006 decision in eBay v. MercExchange.

Given the mistaken conventional wisdom today about injunctions, this article describes the economic and normative function of injunctions as the legal backstop for negotiations in the free market. Despite litigators and judges thinking this remedy is the end of the story, because it issues at the end of a hearing against a defendant found to be infringing a valid patent, an injunction is just the beginning of the commercial story. In cases of unauthorized commercial use of an asset in which the owner sues to stop this trespass, an injunction is what compels a company or person to negotiate with the property owner for the use of this asset. Injunctions facilitate arms-length negotiations and the setting of market prices through these contracts and licenses. This article reestablishes these key normative and economic insights in patent law. It describes how eBay altered the historical doctrine for securing patents with injunctions against continuing infringement, and how this has undermined the economic function of patents, which have been secured as property rights in the U.S. innovation economy from the early American Republic.

An Update on the Capital One/Discover Merger: Is There a Subprime Market for Credit Cards?

Todd J. Zywicki
The proposed $35 billion combination of Discover Financial Services Inc. and Capital One Financial Corp. has faced scrutiny regarding its impact on “subprime” credit-card customers. Though the deal has been approved by federal regulators, there remains the potential that states could object to the combination on grounds that it harms subprime consumers. This issue brief examines whether such consumers constitute a distinct market for antitrust purposes and concludes they do not.
A fundamental challenge is the absence of a standardized definition of “subprime.” Credit bureaus, lenders, and government agencies use different credit-score thresholds to classify consumers—e.g. VantageScore considers scores between 300-600 to be subprime, while FICO uses different terminology entirely. This inconsistency makes it impossible to clearly delineate a market segment. Additionally, credit scores are highly dynamic, with research showing that about 40% of subprime borrowers improved to higher credit tiers during the pandemic.
Consumers with lower credit scores have numerous alternatives to traditional credit cards, including secured cards, buy-now-pay-later services (used by 21% of consumers with credit records in 2022), and personal loans. These substitutes prevent the merged entity from exercising market power. Major banks like JPMorgan Chase, Citigroup, and Bank of America already serve subprime borrowers, and could expand these offerings if needed.
Rather than harming competition, a merged Capital One-Discover could benefit consumers with lower credit scores by expanding the reach of Capital One’s sophisticated analytics, which identify lower-risk individuals among those with subprime scores. While the combined company would control approximately 30% of subprime credit-card balances, this falls far short of monopoly power, given the competitive constraints from other issuers and alternative credit products.

Forensic Accounting and Valuation in Delaware Litigation

J.W. Verret

This Article describes the forensic accounting and valuation tools available to Delaware litigators in commercial and corporate litigation as well as family law. Further, it details the licensing process and standards applicable to forensic accountants and shows how the methods utilized in this profession can assist litigators in a variety of contexts. Delaware cases in which courts have accepted or limited the use of expert forensic accountant testimony are explored and general principles for utilizing forensic accounting expertise in Delaware litigation are developed. The uses of forensic accounting in Delaware litigation are demonstrated across appraisal actions, divorce cases, fraud and fiduciary actions and investigations, and economic damages estimation.

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