All Online Essays

After oral argument, Salazar v. Buono looked like it might be a dud. As Adam Liptak observed in the New York Times, the Justices spent most of their energy pressing then-Solicitor General Elena Kagan and her opponent, Peter Eliasberg of the ACLU, on the case’s tangled procedural history, and “only Justice Antonin Scalia appeared inclined to reach the Establishment Clause question” that gave rise to the legal controversy. But, in the intervening months, the case has gotten more and more interesting. First, most members of the Court did—in at least some way—reach the substantive merits in the decision; ironically, only Justices Scalia and Clarence Thomas would have disposed of the case on standing grounds. And second, in a twist no one saw coming, the Latin cross at the heart of the dispute disappeared just a few days after the Court announced its decision. As a result, a case that seemed doomed to founder on its awkward procedural posture has, at least fleetingly, brought the Establishment Clause back into the national spotlight. Given the complexity of the procedural questions, however, it is probably worthwhile to revisit the case’s history before moving on to the more intriguing substantive questions the Court’s opinions present.

“I just killed my two kids. . . . I drowned them. . . . They are 2 and 4. . . . I just shot myself. . . . with a gun. . . . Please hurry.” That was the dying declaration of 21-year-old Julia Murray on February 16, 2010, preserved for all of posterity on a 911 emergency telephone recording and available to anyone and everyone in Florida—from journalists and police to even voyeurs and perverts—under that state’s open records laws. Murray and one of her three children are gone (the second child survived the drowning attempt), but her words remain. Should the public have a right to hear them? In 2010, multiple events magnified public focus on the escalating tension between family members’ privacy rights with respect to the death-scene images and dying words of their loved ones, on the one hand, and the public’s right to access those documents, on the other.

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances? Second, can the state justify a legal prohibition on procreation in those circumstances using that moral reasoning, so that the law would likely be constitutional? These questions are not new, but my answers to them are and add to the existing literature in several ways. First, I offer a possible resolution to a recent debate among legal scholars regarding what has been called the nonidentity problem and its relation to the right to procreate. Second, using that resolution, I provide a novel constitutional argument that at least begins to justify limiting the right to procreate.

May a dominant firm refuse to share its intellectual property (IP) with its rivals? This question lies at the heart of a highly divisive, international debate concerning the proper application of the antitrust laws. In this short Essay, we consider a profound, yet previously unaddressed, incongruity underlying the controversy. Specifically, why is it that monopolists refuse to share their IP, even at monopoly prices? To resolve this issue, some have recommended compulsory licensing, which would require monopolists to license their IP in certain circumstances. This proposal, however, entails an inescapable contradiction, one rooted in the issue of monopolists’ seemingly inexplicable refusal to share their IP.

I. Consumers, Industry, and Regulatory Costs Collection and effective analysis of financial market data may help prevent future crises. The high human costs of market crises, which may significantly affect those least well positioned to bear such costs, make prevention of future crises a high priority. This is particularly true in light of the pervasive financial market networks that characterize contemporary financial markets. Further, through their influence on financial variables such as interest rates and currency prices, financial market networks reach deep into the homes and pocketbooks of a significant portion of the world’s population. The fallout from the subprime mortgage market collapse thus illustrates fundamental ways in which financial market participants and the broader global community are linked.

I. Regulatory Failures and Regulatory Reform The credit crisis underscores the need for reform of regulatory and industry approaches to risk. Reframing risk should entail greater limitations on leverage and more comprehensive internal company risk management, with both external regulatory monitoring and more robust internal efforts. As a number of post-credit crisis compensation proposals have recommended, companies should also be encouraged to follow best practices with respect to compensation and bonuses based on performance.[1] Best practices should involve greater consideration of the ways in which compensation rewards take account of risks, particularly for traders whose activities entail significant risk exposure.[2] Such best practices in compensation might include, for example, creating a clawback or tail for compensation that matches the time horizon of receipt of compensation to the time horizon of trading activities for which an employee is compensated. Regulated companies in the financial services industry should also be required to disclose their internal risk management strategies in detail, as well as the alignment between compensation and risk, in order to comply with mandatory disclosures in risk disclosure discussions. All regulated and unregulated firms should also be required to immediately report all material incidents that reflect a failure of risk controls or risk management to a market stability regulator. External regulation can be used to promote development of internal risk management in the financial industry. The credit crisis, however, raises serious questions about the effectiveness of existing financial market regulatory approaches.

The credit crisis represents a watershed event for global financial markets and has been linked to significant declines in real economy performance on a level of magnitude not experienced since World War II. Recognition of the crisis in 2008 has been followed in 2009 and 2010 by a plethora of competing proposals in response to the credit crisis. The result has been a cacophony of visions, voices, and approaches. The sheer noise that has ensued threatens to drown out the fundamental core questions that should be asked about the credit crisis. Among the most important are questions about the relationships between risk, regulation, and failure. The credit crisis can be viewed as a type of financial market network failure. The credit crisis underscores the complex and linked nature of contemporary financial markets, as well as the inherent difficulties regulators and industry participants face in managing complex and interconnected risks. The credit crisis also demonstrates that neither industry participants nor regulators fully apprehended underlying financial market risks. In recent years, financial products and financial markets have become increasingly complex and global. Although public commentary and policy discussions in the credit crisis aftermath focused on the implications of financial services firms that are “too big to fail,” existing commentary devotes less attention to the network-like characteristics of financial markets and the implications of complex networks for financial markets. The impact of financial market networks is heightened by the pervasive cultures of trading and risk-taking that now characterize many market segments. The risk-taking associated with financial market trading activities is perhaps best illustrated by cases of individual traders who took on risky trading positions that significantly compromised or, in the case of Baring Brothers, destroyed the firms on whose account they trade.

An en banc Federal Circuit recently confirmed that § 112 of the Patent Act, as properly interpreted, includes a written description requirement that is separate and distinct from the enablement requirement. The written description and enablement doctrines both encourage applicants to fully disclose their inventions, but the doctrines respectively focus on proof that the patentee (1) has possession of the invention; and (2) has enabled others to make and use the invention. The en banc-challenger argued instead that the patent statute spells out a unified requirement of a written description that enables and that the separate written description requirement should be eliminated. The U.S. Patent & Trademark Office (USPTO) is the executive branch agency tasked with the responsibility of examining patent applications to determine whether patent rights should issue. Once a patent issues, the constitutionally guaranteed exclusive rights can be enforced in federal courts. Although the USPTO has no direct role in the infringement dispute between the patentee Ariad and the accused infringer Eli Lilly, the government submitted an amicus curiaebrief indicating its continued support for the written description requirement as a tool that the USPTO uses to eliminate claims during the patent examination process. The government argued in its brief that a separate written description requirement is “necessary to permit USPTO to perform its basic examination function.” However, when pressed during oral arguments, the government could not point to any direct evidence supporting its contention. This Essay presents the results of a retrospective empirical study of the role of the written description requirement in patent office examination practice. It is narrowly focused on rebutting the USPTO’s claim that the separate written description requirement serves an important role in the patent prosecution process. To the contrary, my results support the conclusion that it is indeed “exceedingly rare that the patent office hangs its case on written description.”

Recently, Artificial Intelligence (AI) has become a subject of major media interest. For instance, last May the New York Times devoted an article to the prospect of the time at which AI equals and then surpasses human intelligence. The article speculated on the dangers that such an event and its “strong AI” might bring. Then in July, the Times discussed computer-driven warfare. Various experts expressed concern about the growing power of computers, particularly as they become the basis for new weapons, such as the predator drones that the United States now uses to kill terrorists. These articles encapsulate the twin fears about AI that may impel regulation in this area—the existential dread of machines that become uncontrollable by humans and the political anxiety about machines’ destructive power on a revolutionized battlefield. Both fears are overblown. The existential fear is based on the mistaken notion that strong artificial intelligence will necessarily reflect human malevolence. The military fear rests on the mistaken notion that computer-driven weaponry will necessarily worsen, rather than temper, human malevolence. In any event, given the centrality of increases in computer power to military technology, it would be impossible to regulate research into AI without empowering the worst nations on earth.