Meet John Golden

John Golden sits in his office in front if his bookcases.

Innovation can happen when we take insight from one domain and apply it to a separate arena. So, it makes sense that John Golden’s science and history studies would inform his academic legal work focused on innovation and intellectual property.   

Currently the Edward S. Knight Chair in Law, Entrepreneurialism, and Innovation at Texas Law, Golden has taught administrative law, contracts, patent law, and seminars relating to innovation and intellectual property.   

Those legal areas overlap with science and scientific knowledge, Golden explains. “In patent law, you’re dealing with inventions—often cutting-edge technological developments,” he says. “And in administrative law, a good part of the administrative state is trying to bring to bear scientific expertise to achieve better results for society—for example, in terms of safety and health.” 

Originally from Massachusetts, Golden had lawyers as well as state and local politicians in his family. That put law on his radar. Having a talent for science, Golden earned an undergraduate degree in physics and history as well as a doctorate in physics before studying for a J.D. “Law was a good way of fulfilling my interests both in history and in contributing to present society,” he says. 

After law school, Golden clerked for Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit and for Justice Stephen Breyer of the U.S. Supreme Court. He also worked as an associate in the intellectual property department of Wilmer Cutler Pickering Hale and Dorr LLP in Boston. Golden taught patent law at Harvard Law School as an adjunct while working at WilmerHale before joining the Texas Law faculty to teach full time in the fall of 2006. From 2011 to 2022 he served as faculty director of the Andrew Ben White Center in Law, Science, and Social Policy.       

Among recent achievements, Golden co-wrote an amicus brief in Securities and Exchange Commission v. Jarkesy, which was heard by the Supreme Court on Nov. 29, 2023. In early February 2024, he presented a paper project, with the working title “The Modern Rise of Judicial Ratemaking in Patent Law,” at the annual Works in Progress Intellectual Property conference, hosted this year by the Santa Clara University School of Law. In April, he will present that project at an NYU Law School symposium. 

We recently spoke to Golden about his ongoing book project, new research, and his experience in the classroom. 

Let’s start with your book project. What’s the subject? 

The book project is on science and technology policy—not only how you support science and technological development through government programs such as patent law and funding regimes but also how you support a vibrant civil society well suited for innovation. A contention is that such a society commonly features a rich array of private actors, including both large companies and small startups, that can help explore and push forward technological frontiers.

Do you already have a title for the book? 

The working title is “Chasing The Endless Frontier.” It’s inspired in part by the report that President Franklin Roosevelt commissioned in the last years of World War II from Vannevar Bush, who headed the U.S. Office of Scientific Research and Development. Bush oversaw much scientific research during World War II: for example, the radar project, the beginning of what became the Manhattan Project, and the development of various other things like proximity fuzes that played critical roles in the war.

In the report, “Science, the Endless Frontier,” Bush talks about using the tax and patent systems to encourage the commercialization of innovation by the private sector. In contrast, a main contention of the report was that that we need the federal government to provide substantial support for “basic science” for which the private sector seemed likely to be less apt.

Readers may recognize Bush from the film “Oppenheimer,” where he was played by Matthew Modine. Has his vision played out? Or are we now seeing something else? 

Robust federal funding for basic research is a continuing legacy from Bush and his contemporaries. Bush’s vision also lives on in the fact that much of this research is carried out by scientists and engineers at universities. 

On the other hand, we’ve seen a decline in confidence in various institutions associated with the scientific enterprise, often in association with policy questions such as those relating to climate change or the COVID-19 pandemic. How should governments communicate about such threats? To what extent should we give responsibility for decision-making to scientific experts? To what extent should scientific experts try to confine their roles—or have their roles confined—in order to limit the mixing of politics and science in ways to which people can be rightly sensitive?  

Part of my book project champions a relatively optimistic view of continued opportunity for scientific and technological development. This hopefulness is consistent with Bush’s vision. But I want the book also to go beyond the Bush report in grappling with risks and costs of scientific and technological development as well as concerns of democratic governance.

Sounds like a fascinating topic. What’s the timing on your book?

I’m not sure. I have drafted some chapters. Hopefully, I’ll get a book proposal out this year.

Meanwhile, you have a new paper with your Texas Law colleague Sandy Levinson in the Arizona Law ReviewSplitting the Atom of False Scientism in Constitutional Law.” Can you explain the topic? 

It offers a critical view of the Supreme Court’s use of scientific metaphor. One focus is the “splitting the atom of sovereignty” metaphor that’s often invoked in relation to our federal system. In this system, states are commonly viewed as retaining substantial aspects of sovereignty even though we’ve created an overarching federal government.  

The “splitting the atom” metaphor traces to an opinion by Justice Anthony Kennedy and effectively asserts that one of the great discoveries of our nation’s founders was that we could “split the atom of sovereignty.”  The metaphor thereby analogizes our federal system to a product of scientific genius.     

Another metaphor is more commonly heard in the popular press: the “laboratories of experimentation” metaphor, which traces back to an opinion by Justice Louis Brandeis. This metaphor is often used to suggest a practical benefit from states’ having substantial independence to develop their own policies in various areas—for example, for education or economic development. We can then see which policies work. Other states and the federal government can learn from these observations and potentially adopt a national policy.   

But do these metaphors create any challenges? 

There are problems with both metaphors. Generally, it seems dangerous for the Supreme Court to try to give messy aspects of governance a scientific veneer. The “splitting the atom” and “laboratories of experimentation” metaphors can have the effect of distorting debate or suppressing thought by suggesting there’s an almost unquestionable rightness to certain views of our government system. This point connects to the book project in a way. In that project, I try to distinguish significant aspects of the work of science and technology from policymaking and ultimate decisions of law or governance.

Turning now to your teaching, how does this work appear in your courses? And does your interaction with students also inform your work outside the classroom? 

Preparing for class can prompt a new and sometimes critical look at existing legal doctrine. For example, one paper on which I am working derives from commentary on a tension in patent law that I had been providing to students for years. After several years, I decided to write the commentary up.

On the flip side, research can deepen the perspective—and sometimes the knowledge of particular details about the law or its background—that I can offer to students. Research and attention to the work of other scholars can also point to areas where a syllabus should be updated or enhanced. 

Back in the other direction, teaching students who are experiencing much, if not all, of the course material for the first time requires constantly renewed attention to fundamentals. And students’ ever fresh reactions to course material can challenge conventional wisdom and pose new questions or pose old questions anew.

In short, teaching and research can feed off and enrich each other. I consider it a great honor to have the opportunity to do both.

Category: Faculty News, Faculty Profile, Faculty Scholarship