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Bonehead Non-Proliferation Redux
Full text linkSince the publication of my 1993 Fletcher Forum article “Bonehead Non-Proliferation,” three vitally important international developments regarding nuclear weapons have materialized. First, the 1968 Nuclear Non-Proliferation Treaty, an essential linchpin for global security, was extended by its parties in 1995 into a permanent agreement—a tremendous outcome that was not certain when my original article was published. Second, the Comprehensive Test Ban Treaty, globally prohibiting all nuclear explosions, was concluded in 1996—my article focused on the imperative for crafting such an instrument. Third, a group of distinguished senior U.S. government security officials succeeded in reviving the concept of the complete abolition of nuclear weapons, deservedly putting nuclear disarmament back onto the global agenda, most unexpectedly and emphatically.
However, none of these three vital developments has come to complete fruition; each has been impeded by recalcitrant political forces in the United States and elsewhere. Indeed, in today’s geopolitical milieu, additional important advances in arms control and non-proliferation seem unattainable. Nonetheless, the overwhelming, horrifying nuclear threats, and the supreme importance of abating the dangers for the sake of our species’ survival, require reinforced vigor in the pursuit of additional controls
Brief of \u3ci\u3eAmici Curiae\u3c/i\u3e Contract Law Scholars Mark Gergen, Gregory Klass, and Daniel Markovits in Support of Plaintiffs-Appellants and Reversal, Vera Institute of Justice v. Department of Justice, No. 25-5248 (D.C. Cir. Aug. 19, 2025)
Full text linkIn Vera Institute of Justice v. Department of Justice, as in a raft of other cases involving constitutional, statutory, and regulatory challenges to the rapid mass cancellation of federal grants or grant programs, the government has deployed jurisdictional arguments in an effort to restrict the judiciary’s ability to review the legality of executive actions. Specifically, the government has attempted to confine jurisdiction over the plaintiffs’ claims to the Federal Court of Claims, which is powerless to remedy the alleged violations. The arguments by which the government would deny judicial review of the plaintiffs’ claims conflate two distinct considerations: first, the interests that give the plaintiffs’ standing to bring their claims; and, second, the nature of those claims.
Vera Institute is currently on appeal to the US Court of Appeals for the District of Columbia. This amicus brief of contract law scholars demonstrates that the plaintiffs’ statutory and constitutional claims are not disguised actions for breach. The test for whether a claim is contractual looks to its source and to the appropriate remedy. The facts that the plaintiffs statutory and constitutional claims require a showing of fault, that they do not require interpretation of the grant agreements, and that persons who are not in privity might have standing to bring them all show that the claims’ source is not in the cancelled grant agreements. And whereas contractual remedies are substitutionary, the appropriate remedy for the plaintiffs’ claims will be an order requiring that the Department of Justice comply with the Administrative Procedure Act and the Constitution. Holmes famously argued that “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,—and nothing else.” The executive enjoys no such option when it comes to following the law
Beyond Democracy: How a Free Press Supports the Rule of Law
Full text linkWidespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: the rule of law.
Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can create friction against the erosion of both rule of law and democracy. And it can likewise serve as a revitalizing force for the free press. Even more fundamentally, it can prompt us to do the necessary work of considering what we want the free press, the rule of law, and democracy to be.
This Article describes how press functions that the Supreme Court has said are vital to democracy are likewise vital to the rule of law. They include watchdog, educator, and facilitator of the public square. Investigating the way in which the press plays these roles in support of the rule of law yields new understandings of how the press and rule of law may work best. Beyond describing how these traditional free press functions support the rule of law, the Article describes two press roles never fully recognized by the Court—that of curator and empathy-builder. Both roles also play a key part in supporting rule of law
Pozen and the Puzzle of Counterfactuals
Full text linkThe Constitution and the War on Drugs, David Pozen’s carefully researched and brilliantly argued book, is both illuminating and disturbing: illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window, and disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world. In this review, the author argues that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions about constitutional reform in general and about the reform Pozen suggests in particular
Learning about Stability of Risk Preferences
Full text linkClassical theories posit that risk preferences are stable across decision contexts. Two branches of empirical literature assess this claim. Structural approaches examine within-person consistency of model-based estimates of risk aversion, while “model-free” approaches examine within-person correlations of risky choices. We elucidate the latent structure underlying the model-free approach. Using this structure, we develop a new approach to assessing preference stability that has stronger testable implications, and we partially identify features of stability and heterogeneity of risk preferences. Our study illustrates a general principle: partial identification through minimal assumptions grounded in economic theory robustly bridges fully structural and model-free methods
The Scope of the Prior Art
Full text linkThe courts and the U.S. Patent and Trademark Office (“USPTO”) assess whether an invention may be patented by comparing it to the state of the art, which the patent community terms the “prior art.” Heavily influenced by Oliver Wendell Holmes Jr. and Learned Hand, and more recently expanded by the America Invents Act, the Patent Act features the broadest definition of prior art in U.S. history. No matter how remote, evanescent, or obscure, any activity or publication that occurs one day before the inventor files a patent application—anywhere in the world—may prove patent-defeating.
The government also holds patent proprietors accountable for information it deliberately withholds from the public. The USPTO maintains pending patent applications—including information on climate change mitigation, public safety, life-saving medications, and other inventions of extraordinary social significance—in confidence for at least eighteen months and possibly far longer. Collectively, the agency withholds patent applications from the public for a duration of over one million years, each and every year. Yet this body of information, held in secrecy at a time when its disclosure would prove of greatest value, qualifies as prior art as of its fling date.
Patent law’s prior art definition poorly serves innovation policy. It extends inefficient patent races, and it adds to the persistent concern that USPTO examiners fail to identify the most relevant prior art when deciding whether to approve a patent or not. Worse yet, judicial invalidation of issued patents hinges upon a story in which innovative firms should have taken existing knowledge into account before engaging in their own research and development efforts. Proprietors of invalidated patents are deemed to have acted inefficiently and endeavored to pilfer the public domain by obtaining propriety rights in old inventions. This account simply does not hold where only the most exhaustive, financially unconstrained search could unearth secluded activities in distant lands, where members of the public could not discern secret prior art maintained by the USPTO under any legitimate circumstances, and where the USPTO has no realistic way to research the full scope of the prior art
Asking the Right Questions About Legal Finance in United States Aggregate Dispute Resolution
Full text linkThird-party legal finance is one of the most controversial modern developments in civil justice, both in the United States and across the globe. It is particularly controversial when mentioned in the same breath as aggregate litigation. Current debate trains on a series of repeated questions: whether and how to ban litigation finance in aggregate litigation; whether the use of litigation finance should be disclosed in discovery; and whether litigation finance is allowed under various (and often ancient) legal doctrines. Obscured from view is what I believe to be the most fundamental question: What is the proper role of litigation finance in the U.S. civil justice system, particularly for resolving aggregate disputes?
Addressing this foundational question requires nuanced and in-depth analysis of the intersection between this new legal finance industry and the dynamics of the United States aggregate litigation landscape. This work is needed now: the outcry against litigation finance, aggregate litigation, and the prospect of the two combined has captured the attention of federal and state legislatures, judges, and rule-makers across the United States. With a few notable exceptions, though, input from complex litigation scholars has been scant. The nascency of the scholarship stands in stark contrast to the often fever-pitched calls for reform.
This Article steps into the breach. Its analysis integrates our developing understanding of the third-party litigation finance industry with well-developed knowledge about the U.S. aggregate litigation landscape. This Article’s analysis reveals that many of the questions currently being debated most often might be misdirected, and it elucidates the “right” questions about third-party litigation finance in United States aggregate dispute resolution, which will help point scholars, lawmakers, and judges in the right direction
The US-Ukraine Strategic Minerals Partnership in the Wake of Russia’s War of Aggression
Full text linkRussia’s full-scale invasion of Ukraine has prompted not only military and diplomatic responses, but also novel forms of international agreements centered on co-investment in resources and infrastructure. This essay examines the “minerals deal” between Ukraine and the United States. The agreement establishes a joint venture for investment in mining, hydrocarbons, and infrastructure in Ukraine. Although the key details are set forth in a Limited Partnership Agreement (LP Agreement) that remains undisclosed, insights can be drawn from the publicly available Agreement on the Establishment of a United States–Ukraine Reconstruction and Investment Fund (UURIF), official statements, a leaked draft of the LP Agreement, and interviews. This essay analyzes the deal’s implications for both Ukraine and the United States, as well as for broader questions of international law and global economic governance. It argues that the arrangement marks a shift toward a more transactional model for U.S. assistance where the United States requires the opportunity by contract to obtain stakes in a country’s resources in exchange for U.S. aid, military support, and financing. The essay highlights transparency issues, as neither the United States nor Ukraine have made public the LP Agreement
De/Reconstructing Delinquency
No full textHundreds of thousands of children are brought under the jurisdiction of delinquency courts every year in the United States. Despite the reality that most children engage in delinquent behavior during their adolescence, poor children, children of color, children with disabilities, and children who identify as LGBTQIA+ comprise a disproportionate number of those who become delinquency system-involved. These disparities exist by design. Their origins can be traced back to the flawed first principles upon which the juvenile court was built and, specifically, to the unduly expansive legal definition of delinquency that has undergirded the jurisdiction and power of the juvenile court since its founding.
This Article focuses on deconstructing and reconstructing the legal definition of delinquency. Part I of this Article deconstructs the legal definition of delinquency, exposing its three essential components: (1) the explicit statutory definition of delinquency; (2) the necessary detection of such delinquency; and (3) the embedded discretion to exercise or decline court jurisdiction. Part I then explores the derivative, overbroad, and incomplete nature of the statutory definition of delinquency and examines how the three essential components of delinquency together have led to the criminalization of adolescence, environment, and otherness. This exercise of deconstructing delinquency reveals how the existing legal construct not only undermines the goals of the juvenile court, but also affirmatively targets and harms youth from historically under-resourced and marginalized communities.
Part II of this Article reconstructs the legal definition of delinquency to address the current definition’s inherent flaws and mitigate the resulting deficiencies and harms that have existed since the court’s founding. First, the Article suggests changes to make the definition of delinquency more developmentally appropriate and focus the court’s jurisdiction on serious youth misbehavior. Second, the Article recommends eliminating the “pre-crime” justification for court action to further narrow the role of the court and decriminalize behavioral manifestations of poverty, trauma, and disability. Finally, the Article proposes eliminating existing exceptions to juvenile court jurisdiction baked into the definition of delinquency to combat the adultification of youth of color and make the juvenile court truly diversionary for all youth. Reconstructing delinquency in this manner should lead to a significantly smaller, more effective, and more just court, while laying the necessary foundation for realigning resources toward direct investment in youth and families prior to, and during, court involvement
Revisiting Patent Linkage
Full text linkAlfred Engelberg’s article of a quarter-century ago, Special Patent Provisions for Pharmaceuticals: Have They Outlived Their Usefulness?, raised a provocative question that retains currency today. The special provisions that Hatch-Waxman established, and Engelberg addressed, have come to be known as patent linkage. Following the principle of linkage, the Food and Drug Administration (FDA) cannot approve generic drugs for marketing if they would infringe a patent.
Hatch-Waxman’s complex patent provisions aspire towards multiple salutary purposes, including encouraging the prompt availability of generic drugs, improving public notice of pharmaceutical patents, and accelerating dispute resolution proceedings. Congress also attempted to ameliorate perceived patent term distortions introduced by the interaction of drugmakers with the administrative state, and to ensure that the FDA and U.S. Patent and Trademark Office speak consistently as to whether generic drugs may be sold or not.
Yet, as Engelberg suggested, patent linkage is largely unnecessary. Those provisions that supplement garden variety patent provisions could achieve their policy objectives through alternate measures at lower cost. Merely providing public notice that a generic manufacturer seeks FDA approval to market during the term of the originator’s patent would do essentially all the work linkage sets out to accomplish.
This analysis suggests that the success of Hatch-Waxman’s patent provisions is not because they were innovative—as they were not—but rather because they are mandatory. And although largely confirmatory of established patent rights, Hatch-Waxman’s linkage provisions are not simply harmless. They have instead raised persistent concerns in view of their compliance burdens, complexity, and likely unintended consequences. This analysis also suggests that linkage concepts, when adopted abroad, should call for the public notice of applications for generic marketing approval rather than more elaborate mechanisms