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The two books provide a chilling, in-depth examination of a rapidly emerging global crisis. “Quite simply,” Barlow and Clarke write, “unless we dramatically change our ways, between one-half and two-thirds of humanity will be living with severe fresh water shortages within the next quarter-century. … The hard news is this: Humanity is depleting, diverting and polluting the planet’s fresh water resources so quickly and relentlessly that every species on earth—including our own—is in mortal danger.” The crisis is so great, the three authors agree, that the world’s next great wars will be over water. The Middle East, parts of Africa, China, Russia, parts of the United States and several other areas are already struggling to equitably share water resources. Many conflicts over water are not even recognized as such: Shiva blames the Israeli-Palestinian conflict in part on the severe scarcity of water in settlement areas. As available fresh water on the planet decreases, today’s low-level conflicts can only increase in intensity.

The typical version of the water war hypothesis posits that countries will be willing to wage war over threats to existing water resources that may arise, for instance, from upstream diversions. Some of the more developed of theoretical models incorporate additional explanatory variables such as riparian position, relative military might, measures of relative scarcity, and level of economic development (e.g., Frey and Naff, 1984; Hauge and Ellingsen, 1998). A stronger version of the water war hypothesis claims that countries experiencing acute water scarcity will be compelled by a "hydrological imperative" to obtain additional water supplies from neighboring countries, and will resort to violent means if needed (e.g., Cooley, 1984; Stauffer, 1982; Stork, 1983).

Still other theoretical models stress that water scarcity alone may not in and of itself often serve as a casus belli between nations, but rather, may aggravate existing international or domestic conflicts (e.g., Glcick, 1991). Water scarcity may, for instance, result in population displacement ("environmental refugees"), leading to competition and political destabilization (Homer-Dixon, 1994). Similarly, droughts may reduce returns from agricultural labor, thereby improving the relative returns from initiation of violent competition between groups or revolt, and as such may be a contributing factor to wars (Collier and Hoeffler, 2002). Water scarcity may be a result of a number of factors, including internal population increases, increased use by other riparian nations, increased per capita demand due to changes in standards of living, decreases in quality of available resources, or unequal access to available resources (Homer-Dixon, 1994). In addition, the impacts of climate change on water availability may also contribute to local water scarcity, raising the potential for conflict (Van der Molen and Hildering, 2005).** These theoretical constructs are in line with the larger literature on environmental security."

Adequate availability of water, food and energy is critical to global security. Water, the sustainer of life and livelihoods, is already the world’s most exploited natural resource.

With nature’s freshwater renewable capacity lagging behind humanity’s current rate of utilization, tomorrow’s water is being used to meet today’s need.

Climbing world temperatures and rising sea levels will diminish the supply of food and water in many resource-deprived areas, increasing the risk of widespread starvation, social unrest, and human flight. Global corn production, for example, is projected to fall by as much as 14 percent in a 2°C warmer world, according to research cited in a 2018 special report by the UN’s Intergovernmental Panel on Climate Change (IPCC). Food scarcity and crop failures risk pushing hundreds of millions of people into overcrowded cities, where the likelihood of pandemics, ethnic strife, and severe storm damage is bound to increase. All of this will impose an immense burden on human institutions. Some states may collapse or break up into a collection of warring chiefdoms—all fighting over sources of water and other vital resources.

A similar momentum is now evident in the emerging nuclear arms race, with all three major powers—China, Russia, and the United States—rushing to deploy a host of new munitions. This dangerous process commenced a decade ago, when Russian and Chinese leaders sought improvements to their nuclear arsenals and President Barack Obama, in order to secure Senate approval of the New Strategic Arms Reduction Treaty of 2010, agreed to initial funding for the modernization of all three legs of America’s strategic triad, which encompasses submarines, intercontinental ballistic missiles, and bombers. (New START, which mandated significant reductions in US and Russian arsenals, will expire in February 2021 unless renewed by the two countries.) Although Obama initiated the modernization of the nuclear triad, the Trump administration has sought funds to proceed with their full-scale production, at an estimated initial installment of $500 billion over 10 years.

But another looming issue confronting global leaders involves the earth’s most precious resource: water.

In many regions of the globe—from Northern Africa to the Middle East to Central and South Asia—efforts to manage internal freshwater supplies or conserve transboundary water agreements are under strain as scarcity rises in parallel with population growth, consumption and warming temperatures.

In the current era, freshwater resources are becoming scarce. Per an estimate by the United Nations, almost 1.8 billion people will be residing in water-scarce regions by 2025 with parts of Asia under particular threat. This scarcity is primarily due to the finite nature of freshwater resources on earth, compounded by the growth in population and climate change, which are increasing the per capita demand for freshwater. Consequently, the limited supply of freshwater resources is unable to meet the growing demand. Because of this, it is feared that nations may come to blows to secure larger shares of water for themselves or to acquire control over foreign freshwater resources. As freshwater is essential for the existence of life on Earth, it is vital that proper water conservation techniques be adopted to preserve, sustainably manage, and develop existing freshwater resources.

Climate change and nuclear weapons, two existential threats to humanity, work to exacerbate each other’s detrimental effects. Though the two topics may seem distantly related at first glance, they share many connections. Where climate change is likely to amplify the scarcity of resources, nuclear weapons facilities compound these effects by harming natural resources, increasing the risk of conflict, Accord reports. Moreover, since climate change is a threat multiplier, its negative impacts can lead to the risk of escalation during a conflict between nuclear-armed states. Therefore, acting on each of these issues can mitigate the threat of both.

Food and water security are among the many issues relevant to both climate change and nuclear weapons. Food and water shortages are consequences of climate change that are further multiplied by nuclear waste, which can contaminate food and water sources. While the effects of nuclear weapons add to those of climate change, the reverse is visible, too. Climate change-driven extreme weather events, varying from floods to wildfires, are already risking damage to nuclear weapons sites. Matt Korda, a research associate for the Nuclear Information Project at the Federation of American Scientists, warns of the danger. He informs that “nuclear warheads and their delivery systems are relatively delicate: stored warheads need to be cooled, missile silos need to be kept clean and dry, runways can’t be underwater, and shipyards can’t be flooded,” according to Forbes. A report from the Department of Defense in 2019 highlighted over 70 military facilities, with seven that store up to 6,000 nuclear warheads, that are threatened by climate disasters, Forbes adds.

Given the Arctic realities and the looming Blue Ocean Event (once the Arctic loses its summer sea ice, at which point global climate and weather patterns become profoundly destabilized) possibly as soon as 2022, things are really going to amplify.

Likely we will look back on January 2019 as when it was moderate and “easy” compared to the challenging heat and drought on the way.

Although the Federal Circuit was designed to uniformly handle nearly all patent appeals, district courts remain vital components in creating a sound body of patent law. First, the district court is almost always the only court to play a role in the over 2600 patent cases filed annually, as almost ninety percent of patent cases are settled in the district court. Of the small remainder that are adjudicated on the merits, approximately half are appealed to the Federal Circuit, leaving the district courts as the final arbiters on patent law in the other half. Second, even when the Federal Circuit reviews a district court's patent decision, it typically does not review all of the issues decided by the district court. For those that it does review, the Federal Circuit, at least in theory, must heavily defer to the district courts' factual findings. Because the facts of a case strongly influence the legal outcome in patent law, the district court's factual findings can significantly affect the Federal Circuit's legal decisions. Third, if the district courts are deciding patent cases poorly - or merely unevenly - because of their technical complexity, the Federal Circuit becomes hard-pressed to direct its resources efficiently toward creating an effective body of patent law, as it must focus on correcting errors with which other courts of appeals - facing records developed by judges equipped to prepare them - need not grapple. Fourth, on nonpatent issues, the importance of district court choice is elevated, as regional circuit law applies and local rules affect strategies.

Given how critical district courts are to creating a sound body of patent law, I concentrate in this Part on three criticisms of the institutional structure of patent litigation relating to the district courts' role: first, the widespread forum shopping that takes place in district court patent litigation; second, the poor decisionmaking seen in many district courts on issues of fact and law needed to resolve patent cases; and third, the insufficient deference conferred by the Federal Circuit on those district court factual determinations that are indeed sound.

What this discussion suggests is that, when compared to floodgates arguments that express interbranch and intersystemic concerns, those that express court-centered concerns are on significantly shakier ground. Barring a true flood of tens or hundreds of thousands of cases, no evident principle exists to support the Court taking workload concerns into account when engaging in “[i]nterpretation of the law.”328 Therefore, although the Court may have a legitimate interest in ensuring that the number of filings, and particularly frivolous filings, does not become too high, it should be wary of using substantive law as the limiting device. Speaking of unmeritorious cases in particular, Justice Stevens has argued, “Frivolous cases should be treated as exactly that, and not as occasions for fundamental shifts in legal doctrine. Our legal system has developed procedures for speedily disposing of unfounded claims; if they are inadequate . . . then there is something wrong with those procedures, not with the law.”329 Accordingly, the Court should have a presumption against using court-centered floodgates arguments. The problems of case flow should be addressed through case management and, more broadly, the tools of Congress.

Bipartisanship is presented as an ideal by many American commentators and religious leaders, but it has a checkered history in American politics. Programs like Social Security and Medicare are bipartisan now but were bitterly opposed by Republicans before their enactment. And issues that have bipartisan support among voters can still have trouble getting through Congress.

The ink on the American Constitution was hardly dry when factionalism broke out and the citizenry was divided into Federalists and members of the Democratic-Republican Party. We have had parties fighting each other ever since.

Lawmakers are halfway through the congressional session, and it looks like it could be a historic one for the wrong reasons, according to congressional data.

The 118th Congress is on track to being one of the least functional sessions ever, with only 34 bills passed since January of last year, the lowest number of bills passed in the first year of a congressional session since the Great Depression, according to congressional records.

In each of the eight previous TROs obtained by plaintiff, as well as the two previous TROs obtained by defendant, and also in regard to the eight previous contempt charges between them, (all of which were ultimately dismissed prior to an adjudicatory hearing), the local police department (usually the Cherry Hill Police Department) had to investigate the allegations of domestic violence, and the allegations then had to be presented to the municipal court judge so that a TRO determination could be made. Rule 5:7A. In most of the domestic violence allegations, or allegations of violations of TROs, police reports were prepared by the investigating police department, and after the matter was presented to the municipal court judge and the TROs were issued, the TROs had to be processed by the domestic violence unit of the Family Division in the Superior Court, and set down for a hearing date to determine if an FRO should be issued. The resources of both law enforcement and the court system are finite, and time and personnel spent on this plaintiff's TROs represents lost time and resources not being spent on domestic violence matters and other emergent matters that might otherwise warrant greater attention than may have been received. The TRO history of these parties has made a mockery of the Domestic Violence Act, and trivializes same. The Appellate Division noted, in a different context, that "There are too many substantial and significant domestic violence matters requiring the urgent attention of the court system to squander judicial and prosecutorial resources on patently unmeritorious litigation. . . ." State v. Wilmouth, ,  (App.Div. 1997). In this case, the court is less concerned that the numerous previous TROs were "unmeritorious" than is concerned that the constant cycle of obtaining a TRO and then shortly thereafter dismissing the TRO is squandering judicial and law enforcement resources and diverting attention from urgent and meritorious domestic violence matters. It should be noted that, according to records obtained from the Administrative Office of the Courts, in calendar year 2000 there were 36,021 TROs issued statewide, with 3,528 TROs being issued in Camden County. Camden County was second only to Essex County in the amount of TROs issued during that year.

The third type of case is when resolution of certain issues requires either time or expertise the court simply does not have. Reviewing thousands of documents for privilege, or assessing numerous attorney fee petitions, is not the best use of a judge’s or law clerk’s time. A special master frees the court to focus on larger matters. It can also take an undue amount of time to read and understand patents and construe claims; accordingly, I have helped judges by recommending Markman rulings. The same is true with technical expert witness reports and Daubert rulings, and with monitoring compliance with complex consent decrees. Distilling the parties’ positions in these cases and supplying recommended rulings allows a judge (and chambers staff) to shorten tremendously their time spent deciding an issue, while still achieving finely tuned results. Judges who practice good time management must sometimes delegate tasks that would otherwise require excessive consumption of scarce judicial resources.

Speaking of judicial resources, I offer this final thought regarding a special master’s cost. It is an overstatement to say it is only fair that the more people use a resource, the more they should pay for it. This axiom makes sense regarding electricity; not so much regarding the federal court system. But judicial resources are finite. At some point, increasing caseloads detrimentally affect the level of service—and the correctness of justice—that our federal judges provide. If not using a special master means a judge has less time for other cases, then those other litigants effectively pay the price. Thus, when a court “considers the fairness of imposing the likely expenses” of a special master, that consideration should include the systemic fairness of not imposing those expenses, too.

Concern over excessive litigation in the federal courts is old hat ... [and] also typically exaggeration.... The truth about the "litigation explosion' is that it is a weapon of perception, not substance. If the public can be persuaded that there is a litigation crisis, it may support efforts to cut back on litigation access.

In the background of these decisions are limited resources. Judicial vacancies, or resource constraints more generally, may impact the number of cases that can be prosecuted and tried. When there are fewer judges available, prosecutors may incur costs from prosecuting a case regardless of whether the defendant ultimately goes to trial. For instance, the Speedy Trial Act of 1974 establishes time limits for completing various stages of a federal criminal prosecution. In general, the Act requires the government to file an indictment within 30 days of a defendant’s arrest. If a defendant enters a plea of not guilty, he or she must be tried within 70 days of the indictment, which can be extended if a judge grants a continuance.4

How binding is the constraint imposed by the Speedy Trial Act during judicial vacancies? While data on the number of speedy trial violations over time is lacking, anecdotal evidence suggests that judges are unwilling to perpetually extend the time required to go to trial, noting that unless vacancies are filled, they would be required to dismiss some criminal cases.5 In 2010, the American Bar Association noted that the strain judicial vacancies imposed on caseloads forced federal judges to allocate their limited time to criminal cases because of “speedy trial rules that require them to put criminal cases first,” resulting in civil proceedings being put off.6 In fact, judicial vacancies have posed such severe speedy trial issues that in January 2011, the federal district court in Arizona enacted a year-long, emergency suspension of the mandated speedy trial time limitations because of the court’s shortage in judges.

The ACPA is a formidable federal weapon, the use of which can lead to results as coercive as cybersquatting itself. Under the new provisions, it is easier for a trademark owner to overextend trademark rights. The cost of litigation normally serves as a disincentive to litigate unless the odds of success are sufficiently high. 331 Because costs are lower from the perspective of large companies, and since the ACPA makes liability easier to attain, large companies are the chief beneficiaries of the ACPA.

The ACPA, while strengthening large companies' already superior positions, weakens smaller companies' positions. Since the parties' product lines, relevant in traditional trademark analysis, is no longer an issue in the cybersquatting context, 332 defendants will be more vulnerable in domain name suits. 333 Since larger companies whose trademarks represent extensive investments are more likely to bring actions to guard their marks, 334 smaller or younger companies in unrelated markets may find that their trademark rights are contracting. 335 The trademark misuse doctrine would help remedy this imbalance. While codification of the trademark misuse doctrine with general applicability could be troublesome, a narrowly tailored version to be applied specifically to domain names could effectively be drafted in accordance with established standards of U.S. trademark law. The scope of such a doctrine under trademark law could easily be limited, as the ACPA already carves out such a limitation in the body of trademark law. Just as increased risk deters cybersquatting, a misuse doctrine in trademark law would deter reverse squatting.

Litigating the validity of a patent can be intensive and time-consuming. For example, the expense of litigating a Paragraph IV challenge can be in the millions of dollars. 37 The length of time that litigation can take may also deter generic manufacturers from challenging pharmaceutical patents. By the time that the litigation is resolved, the secondary patent may have expired, essentially granting the effect of a valid patent to the non-generic drug producer. 38 Evergreening also allows for protection during the litigation process, a process which is structurally favorable to the patent holder. 39 Patent litigation in the pharmaceutical industry is notoriously risky and resource intensive, and it becomes more so where more patents and claims are involved. 40 The high risk of trying to litigate against those with systemic advantages eliminates potential challengers without the resources to wage multiyear patent battles. 41

In an ideal world, the stringency of § 412 would be relaxed, and it would come to operate along the lines of § 411--requiring registration prior to commencing the lawsuit and not earlier. Alternatively, the "grace period" might be extended, especially given the periodic term extensions that copyright law has seen over the years, 203 which rely on the assumption that creative works hold value for longer and longer periods of time. 204 Yet, legislative modification of § 412 is highly unlikely, and will likely have to accompany a broader reform of copyright's statutory damages regime. 205 The net effect of the provision and the possibility of third party funding is therefore likely to accrue to authors (i.e., creators) who worry about high litigation costs and about being unable to litigate an infringement suit on their own, who then choose to register their works voluntarily merely in order to preserve the option of enticing third party funders to acquire their claims in due course. In the short term, then, § 412 will serve to deter the entry of third parties into copyright litigation; in the medium term, however, it is likely to induce a greater number of creators to register their works hoping to entice third parties. As the involvement of third parties grows, and copyright owners are able to anticipate the kinds of claims that the market best responds to, § 412 is likely to produce an equilibrium where works most suited to third party funding come to be registered.

<<FOOTNOTE 205 BEGINS>>

The push for greater innovation and automation of scientific study will lead to a greater number of patent applications than expected, and this is a great concern for the U.S. and world economies.

Schultz & Madigan's article explains the negative repercussions that a country would face with an excessive delay caused by a patent backlog. Their research expressly discusses three of these repercussions: (1) delay hurts entrepreneurs; (2) delay hurts consumers by delaying access to products; and (3) delay hurts society. 18