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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.

The Kentucky National Guard’s 940th Military Police Company is based in Walton, Kentucky, just south of the Kentucky-Ohio border. In November 2004, in anticipation of its deployment to Iraq, the 940th was mobilized and stationed at Fort Dix, New Jersey. Love was in the air at Fort Dix that fall. While the 940th was preparing for its year of service in Iraq, five couples in the unit got married. Amanda and Todd McCormick were one of those couples. The McCormicks spent their first year of marriage in an active war zone, where their duties included training the Iraqi police force, providing base security, and guarding detainees for the Army. And they did all this without being able to kiss, hold hands, or even be alone together in the same room. Shortly before the unit shipped out to Iraq, the commander of the 940th issued a new policy for the unit. Concerned that sexual relationships would interfere with the work to be done in Iraq, the commander decided to prohibit the members of the 940th from having sex. Under the unit’s new “no contact” policy, members of the 940th could not engage in “sexual contact, hand holding or kissing” while the unit was deployed to Iraq. For the McCormicks and the four other dual-serving couples in the 940th, their marriages did not excuse them from the new policy. According to the memo outlining the policy, although married couples in the unit could have sex on leave, they could not engage in sexual conduct of any kind during active deployment. In the summer of 2005, about halfway through her year of service in Iraq, Amanda McCormick emailed her congressman to complain about her unit’s no contact policy. In the email, she referred to an incident where Todd came to visit her in her living quarters while she was on a down day. Although they were fully dressed and the lights in the room were on, a superior discovered them together and told Todd to leave. The risks of violating the policy were substantial. Simply for being alone together, the McCormicks could have lost rank, had their pay docked, or been put on restricted duty. “We are not allowed to live together. We are not allowed to spend time alone together. Basically, in a nutshell, we are not allowed to be married,” McCormick wrote in the email. All the couple wanted was some private time together. “We are stationed on the same base, in the same unit. Instead of that fact being comforting, it has made us sick with worry.” The McCormicks’ experience in Iraq highlights an underappreciated, if not completely overlooked, fact about military life: the military regulates a considerable amount of heterosexual sex. For the McCormicks and the rest of the 940th, the military completely banned engaging in any kind of sexual conduct while they were deployed to Iraq. This is just one way in which the military regulates heterosexual sex. As this Essay shows, the military’s rules regulating sex come in various shapes and sizes, from blanket rules against sex altogether, like in the McCormicks’ case, to criminal laws targeting specific sexual acts and relationships, to a criminal penalty for becoming pregnant during active duty. The goal of this Essay is to examine the implications of the military’s regulation of heterosexual sex for its current policy toward homosexuality—the “Don’t Ask, Don’t Tell” policy (DADT). Heterosexuality is largely missing from the national debate over DADT, which has heated up in recent months due to President Obama’s open hostility toward the policy. Yet heterosexuality holds the key to understanding why DADT is based on a faulty premise. DADT is built around the idea that because gay sex disrupts unit cohesion—that is, because it prevents service members from forming the bonds of trust needed to succeed in combat—lesbians and gay men cannot be allowed to serve openly in the military. The policy rests on the idea that gay sex is more harmful to military effectiveness than other kinds of sexual conduct. Yet the military’s various rules regulating heterosexual sex are also aimed at protecting unit cohesion. If the military regulates a considerable amount of heterosexual conduct as a means to protect unit cohesion, why does DADT presume that gay sex poses a greater threat to unit cohesion than heterosexual sex? The military’s existing policies regulating heterosexual sex suggest that DADT’s focus on homosexuality is misplaced. What the military thinks of as a problem with homosexuality is really a problem with sexual conduct in general. This Essay makes two distinct contributions to the scholarly literature. First, it provides a new way of approaching the issue of gay military service. To date, the issue of gay service has been debated primarily in terms of whether the presence of openly gay service members would hinder military effectiveness. Indeed, the bulk of scholarly writing on DADT approaches the issue of gay service from this perspective. This Essay breaks from this trend by steering the conversation away from sexual orientation—and, in particular, homosexuality—and refocusing it on sexual conduct. After all, DADT is but one of the military’s many sex regulations, most of which impose considerable restrictions on the sexual lives of service members without regard to sexual orientation. By viewing DADT through this broader lens, this Essay paves the way for a more meaningful conversation about the military’s interest in regulating the sexual conduct of all the men and women serving in the armed forces, not just the ones who engage in same-sex sexual conduct.

In the first portion of this Essay, I reviewed Professor Martin Redish’s theory that the application of Federal Rule of Civil Procedure 23 in modern class action practice is unconstitutional. Professor Redish argues that modern class action procedures violate absent class members’ due process rights by sweeping large numbers of individual plaintiffs into litigation without their explicit consent. I then set forth Professor Redish’s proposals for reform, including increased scrutiny of class actions to weed out “faux” class actions that benefit lawyers but not class members, abandonment of the opt-out procedure under Rule 23 in favor of an opt-in procedure that would require absent class members to take some affirmative action before being swept into a class action, and prohibition of settlement classes, which Professor Redish believes are often subject to abuse. The second portion of this Essay explores further implications and applications of Professor Redish’s theories.

Much ink has been spilled over the class action device. Commentators have thoroughly analyzed both the plain language and intent behind the federal rules authorizing the aggregation of claims in a single lawsuit as well as the policy implications of the class action in both theory and practice. Seldom does a work break new ground in a field that has been plowed as often as that of class actions. Martin Redish’s Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit is the rare exception. In Wholesale Justice, Professor Redish provides a thorough analysis of the constitutional implications of the class action mechanism. Unlike prior commentators and courts, which have focused mainly on limited constitutional issues arising in class action cases, Professor Redish’s analysis sweeps more broadly. In the process, he brings to bear principles of constitutional law that have long lain dormant in the field of class action practice. His insights demonstrate that more than mere practical or policy concerns arise when class action procedures are used. Rather, they implicate—and often infringe—fundamental principles of constitutional law.

The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends under the demands of state necessity during national emergencies. According to Schmitt, legal norms cannot constrain sovereign discretion during emergencies because “the precise details of an emergency cannot be anticipated” in advance. The sovereign must therefore possess unfettered discretion to determine both “whether there is an extreme emergency” and “what must be done to eliminate it.” Few legal scholars have embraced Schmitt’s theory of emergencies with the enthusiasm and sophistication of Adrian Vermeule, the John H. Watson, Jr. Professor of Law at Harvard Law School. In an article published recently in the Harvard Law Review, Vermeule argues that American administrative law is fundamentally “Schmittian” in the sense that it permits federal agencies to operate outside the constraints of administrative procedure and meaningful judicial review during emergencies. Vermeule contends that the federal Administrative Procedure Act (APA) is replete with procedural exceptions, which generate “black holes”—zones where federal agencies are free to act outside the constraints of legal order. In addition, he suggests that federal courts manipulate flexible legal standards to accord heightened deference to federal agencies during national crises, transforming standards such as “reasonableness” and “good cause” into “grey holes”—legal devices which preserve the façade, but not the reality, of the rule of law. Far from criticizing these gaps in federal administrative law, Vermeule accepts black and grey holes as institutional inevitabilities, and dismisses proposals to extend the rule of law to all administrative action as a “hopeless fantasy.”