Making Sovereigns Pay

International law needs more teeth. This conclusion has been made painfully clear over the last four years as Russia has continued its war against Ukraine. Despite the fact that Russia’s actions blatantly violate international law’s prohibition on the use of force, and may violate additional provisions of the law of armed conflict, neither the International Court of Justice nor the international community have been able to end Russia’s assault through the non-military coercive measures allowed under international law. The international community has thus been placed in a Catch-22: either stand-by while international law is violated, or violate international law themselves to stop Russia’s ongoing violation. In November 2023, a group of eight leading international law scholars and practitioners took on this problem in a published legal memorandum, offering one possible solution. Addressing the growing desire to seize the roughly $300 billion in frozen Russian assets held around the world as both a way to coerce Russia and to compensate Ukraine, the group argued that such an action would be lawful under the international law doctrine of countermeasures. This article disagrees with the groups’ proposal because, it argues, the seizure of the assets for compensatory or punitive purposes is neither permissible nor desirable under the law of countermeasures. The article also contends that the proposed seizure would violate the legal requirements that the countermeasure last only as long as the state’s unlawful behavior continues, and that the countermeasure is reversible. In presenting this argument, the article contributes to the global discussion of this topic that is happening in real time in national capitals around the world. The article then offers a new, alternative approach to solving the Catch-22: by enabling the enforcement of international court judgments at the domestic level. Presently, sovereign immunity usually precludes a judgment holder from being able to domesticate and execute on a judgment against a sovereign judgment debtor. To remove this obstacle, the article argues through descriptive and normative analysis that the international law of sovereign immunity should be evolved further so as to no longer block enforcement of a judgment from an international tribunal for a violation of public international law. Such an evolution, the article contends, matches the general movement of international law away from a sovereign-centric model to one that recognizes other interests as capable of trumping a state’s sovereign shield. This evolution would be consistent with the history and doctrinal foundation of the law of sovereign immunity, while also strengthening international law more generally by equalizing the international arena. The article also explores how the proposed evolution could be formalized, both within countries like the United States, where the law of sovereign immunity has been codified, and others where the law is derived from international custom

Creative Destruction for the Patent System? Impact Of Generative AI

AI raises the provocative possibility that patents could one day become obsolete. AI has the ability both to generate inventions and to simulate the perspective of a person having ordinary skill in the art (PHOSITA). This article explores the transformative impact of generative artificial intelligence (AI) on the United States patent system. The article supports a scenario in which everything becomes invented—and simultaneously, everything becomes obvious—thus challenging a foundational criterion for patentability. These developments can occur within established principles of inventorship, obviousness, and subject matter eligibility under U.S. patent law. Using a narrative case study and a test invention, the article illustrates how generative AI can produce patentable ideas and draft applications while also serving as a powerful prior art search engine and analytical tool for invalidating patents. Schumpeter’s concept of “creative destruction,” suggests that the patent system itself may face existential disruption, particularly as AI floods the USPTO with applications, accelerates patent thickets, and amplifies the problem of patent trolls. Potential legal responses, including proposed legislative reforms such as the Patent Eligibility Restoration Act and shifts in USPTO administrative guidance will have little effect. Apocalyptic outcomes are unlikely, but the patent system\u27s evolution will be influenced by economic factors, cultural resistance to change, and rent-seeking and agency costs affecting the USPTO and key stakeholders. Already, inventors are increasingly relying on trade secrets and first-mover advantages. The patent system could soon fade into irrelevance as AI expands invention, complicates patentability, and potentially marginalizes patents as a tool for innovation protection. AI will not destroy the patent system outright, but it will reshape it profoundly. Its disruption opens up the possibility for fundamental reforms

The Innocence Trap

What makes a conviction wrongful? Developments in DNA science have led to a wave of exonerations over the past thirty years, revealing sources of error in the criminal legal process. Innocence organizations proliferated to represent people whose convictions could be overturned by newly discovered evidence. This is vital work for the individuals who are released and for the purpose of systemic change. At the same time, a focus on exonerations constructs a relatively narrow conception of wrongful convictions—one that is synonymous with factual innocence. This Article argues that a broader conception of wrongful convictions may be revealed through co-ideation with people in prison who are engaged in efforts to contest criminal law. Taking one example as a case study, we focus on a coalition called We Are Joint Venture, Inc., which is comprised of incarcerated organizers whose convictions rest on imputed liability murder doctrines like accomplice/joint venture liability and felony murder. These organizers highlight procedural and substantive features of imputed liability murder doctrines that lead to convictions contradicting community expectations of accountability—something we call “the innocence trap.” Drawing on the methods of movement law and Participatory Law Scholarship, this Article is coauthored by the director of We Are Joint Venture, Inc ., who is serving a life sentence for murder under the joint venture theory, and a law scholar who has written about imputed liability doctrines. Our analysis contributes to legal thought in three ways. First, it builds on scholarship questioning the legitimacy of imputed liability murder doctrines and offers new possibilities for legislative and judicial interventions. Second, we advance a conception of wrongful convictions that invites inquiry into the logic and merits of criminal law, transforming even entrenched doctrines into sites of contestation. Finally, this Article underscores the epistemic, democratic, and substantive benefits of engaging with legal thinkers whose insights about the law stem not from the academy but from experience, study, and struggle