
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
Recent Working Papers:
Public Use, Exclusionary Zoning, and Democracy
The Federalist’s Dilemma: State AI Regulation & Pathways Forward
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
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
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?
Forensic Accounting and Valuation in Delaware Litigation
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.
Assembly, Public Use, and Reciprocity of Advantage Regulation
Eleventh Circuit Conservatives Split on Gun Sales to Young Adults: Pryor v. Brasher in NRA v. Bondi
Legal debates between leftists and conservatives are rarely as interesting as “intramural” debates between conservatives. The Eleventh Circuit’s recent en banc decision in National Rifle Association v. Bondi illustrates the point. By a vote of 8-4, the court held that a Florida statute prohibiting the purchase of firearms by individuals between the ages of 18 and 21 does not violate the Second Amendment. The majority opinion was written by Chief Judge William H. Pryor, Jr., while Judge Andrew L. Brasher wrote the principal dissent. Both are able and principled jurisprudential conservatives, and Judge Brasher is a former law clerk for Chief Judge Pryor.
The dispute between these judges, which was solely about the proper application of the Supreme Court’s decisions in Bruen (2022) and Rahimi (2024), illustrates the problematic nature of that Court’s novel history-and-tradition test.
American Revolutions in the Law of Trusts
American trust law is revolutionary. It departs in fundamental ways from the trust law of other major common-law jurisdictions, such as England, Australia, Canada, the Hong Kong Special Administrative Region, and Singapore. It also differs greatly from the trust law of the major civil-law countries that have adopted the trust, such as mainland China and Japan. This Article identifies five revolutions in American trust law. Each revolution is examined in its historical context and with regard to its lasting effects. Together, the five revolutions explain American trust law's distinctiveness. The Article's primary aim is to shape how American trust law is understood, historically and today. The Article's contribution is as fundamental as periodization. We used to teach that the "Roman Empire" was followed by the "Early Middle Ages." This periodization was transformed by the pioneering scholarship of the historian Peter Brown. Professor Brown is credited with creating the field of Late Antiquity, approximately AD 250-750. Analogously, this Article's framework of the five revolutions is designed to shape our understanding of the history and development of America's distinctive trust law. Part I of the Article identifies and analyzes the five revolutions. Part II offers a personal assessment of American trust law's distinctiveness. A brief conclusion follows.
Political Debanking
The Economic Structure of Trade Secret Law
The standard economic account of trade secret law focuses on providing incentives for creating new inventions. The incentive-to-invent theory, however, provides little explanation for why the key doctrinal features of trade secret law are structured the way that they are. For example, providing ex ante incentives to invent does not easily explain the requirement that an inventor must take measures to preserve secrecy even after the invention has been created. Nor does it explain why trade secret misappropriation, unlike patent and copyright infringement, requires "improper" conduct by the defendant for liability. In this Article, I give a different theory of trade secret law. In this account, the primary economic purpose of trade secret law is not to preserve the incentive to invent, but to dissuade the possessor of a secret idea from using unreasonable and inefficient self-help countermeasures to protect the secret. As the Article will explain, this anti-countermeasure principle provides an overarching theory to explain the key structural features of trade secret law, in a manner that the incentive-to-invent theory does not.
The Supreme Court’s Mysterious 1920s Due Process Education Trilogy
Racial “Box-Checking” and the Administrative State
This article examines the origins, impact, and consequences of the racial and ethnic classification system established by the U.S. government through Statistical Directive No. 15 in 1978. Originally intended as a bureaucratic tool to assure uniform standards for data collection, these classifications have since profoundly shaped American identity, affirmative action policies, and even scientific research. This article critiques the arbitrary and historically contingent nature of these categories, arguing that they fail to reflect the complexity of racial and ethnic identities; distort research; encourage racial essentialism; and produce misleading data. The article calls for a fundamental overhaul of the classification system, advocating for a more nuanced approach to racial and ethnic categorization, if such government-mandated classifications are to persist at all.