Search the archive.

Environmental regulation is the final area in which an activist conservative Court could have a substantial effect. The source of the Court’s power here lies in the relationship between environmental legislation and regulation. In general, Congress has chosen to deal with the environment by passing very general laws and delegating the authority to implement them to regulatory agencies like the Environmental Protection Agency.

An activist conservative Court could make life difficult for a Democratic EPA by blocking regulation directly, declaring it “arbitrary and capricious” under the Administrative Procedure Act. The courts are only supposed to use this tool to block actions that are genuinely irrational or that exceed the agency’s legal authority; but the Court could deploy it much more aggressively than has been done in the past.

The risk of global societal collapse or human extinction has been “dangerously underexplored”, climate scientists have warned in an analysis. They call such a catastrophe the “climate endgame”. Though it had a small chance of occurring, given the uncertainties in future emissions and the climate system, cataclysmic scenarios could not be ruled out, they said. “Facing a future of accelerating climate change while blind to worst-case scenarios is naive risk management at best and fatally foolish at worst,” the scientists said, adding that there were “ample reasons” to suspect global heating could result in an apocalyptic disaster. The international team of experts argue the world needs to start preparing for the possibility of the climate endgame. “Analysing the mechanisms for these extreme consequences could help galvanise action, improve resilience, and inform policy,” they said. Explorations in the 1980s of the nuclear winter that would follow a nuclear war spurred public concern and disarmament efforts, the researchers said. The analysis proposes a research agenda, including what they call the “four horsemen” of the climate endgame: famine, extreme weather, war and disease. They also called for the Intergovernmental Panel on Climate Change to produce a special report on the issue. The of heating drove a “groundswell of public concern”, they said. “There are plenty of reasons to believe climate change could become catastrophic, even at modest levels of warming,” said Dr Luke Kemp at the University of Cambridge’s Centre for the Study of Existential Risk, who led the analysis. “Climate change has played a role in every mass extinction event. It has helped fell empires and shaped history. “Paths to disaster are not limited to the direct impacts of high temperatures, such as extreme weather events. Knock-on effects such as financial crises, conflict and new disease outbreaks could trigger other calamities.” The analysis is published in the journal and was reviewed by a dozen scientists. It argues that the consequences of global heating beyond 3C have been underexamined, with few quantitative estimates of the total impacts. “We know least about the scenarios that matter most,” Kemp said. A thorough risk assessment would consider how risks spread, interacted and amplified, but had not been attempted, the scientists said. “Yet this is how risk unfolds in the real world,” they said. “For example, a cyclone destroys electrical infrastructure, leaving a population vulnerable to an ensuing deadly heatwave.” The Covid pandemic underlined the need to examine rare but high-impact global risks, they added. Particularly concerning are tipping points, where a small rise in global temperature results in a big change in the climate, such as huge carbon emissions from an Amazon rainforest suffering major droughts and fires. Tipping points could and some remained little studied, they said, such as the that could cause an additional 8C of global warming. The researchers warn that climate breakdown could exacerbate or trigger other catastrophic risks, such as international wars or infectious disease pandemics, and worsen existing vulnerabilities such as poverty, crop failures and lack of water. The analysis suggests superpowers may one day fight over geoengineering plans to reflect sunlight or the right to emit carbon. “There is a striking overlap between currently vulnerable states and future areas of extreme warming,” the scientists said. “If current political fragility does not improve significantly in the coming decades, then a belt of instability with potentially serious ramifications could occur.” There were further good reasons to be concerned about the potential of a global climate catastrophe, the scientists said: “There are warnings from history. Climate change has played a role in the and in each of the five mass extinction events in Earth’s history.” New modelling in the analysis shows that extreme heat – defined as an annual average temperature of more than 29C – could affect 2 billion people by 2070 if carbon emissions continue. “Such temperatures currently affect around 30 million people in the Sahara and Gulf Coast,” said Chi Xu, at Nanjing University in China, who was part of the team. “By 2070, these temperatures and the social and political consequences will directly affect two nuclear powers, and seven maximum containment laboratories housing the most dangerous pathogens. There is serious potential for disastrous knock-on effects.” The current trend of greenhouse gas emissions would cause a rise of 2.1-3.9C by 2100. But if existing pledges of action are fully implemented, the range would be 1.9-3C. Achieving all long-term targets set to date would mean 1.7-2.6C of warming. “Even these optimistic assumptions lead to dangerous Earth system trajectories,” the scientists said. Temperatures more than 2C above pre-industrial levels had not been sustained on Earth for more than 2.6m years, they said, far before the rise of human civilisation, which had risen in a “narrow climatic envelope” over the past 10,000 years. “The more we learn about how our planet functions, the greater the reason for concern,” said Prof Johan Rockström, at the Potsdam Institute for Climate Impact Research in Germany. “We increasingly understand that our planet is a more sophisticated and fragile organism. We must do the maths of disaster in order to avoid it

In one well-known case, the Supreme Court relied on the Chevron doctrine in 2014 when it upheld EPA emissions reduction standards for 28 states whose air pollution crossed state lines and harmed downwind neighbors. Although the Clean Air Act is vague on the issue, the court ruled that EPA had reasonably interpreted its authority under the law.

It’s unclear how far the court’s conservative majority will go in its decision.

4 The legal question to be resolved by the court is whether the word "should" in the May 18 order connotes futurity or may be deemed a ruling in praesenti.14 The answer to this query is not to be divined from rules of grammar;15 it must be governed by the age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the critical May 18 entry) of the turgid phrase, "and the same hereby is", 1 -- makes it an in futuro ruling - i.e., an expression of what the judge will or would do at a later stage - or 2 -- constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered from the four corners of the entire record.16

Footnote 13:

We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives. See Stewart v. Abend, 495 U.S., at 230 (“Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces … . [I]t is not our role to alter the delicate balance Congress has labored to achieve.”); Sony, 464 U.S., at 429 (“[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product.”); Graham, 383 U.S., at 6 (“Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.”). The justifications we earlier set out for Congress’ enactment of the CTEA, supra, at 14—17, provide a rational basis for the conclusion that the CTEA “promote[s] the Progress of Science.”

The strength of IPR systems depends on two distinct elements of a country’s institutional environment, the strength of IPR law protection and the effectiveness of public IPR enforcement (Peng et al. 2017a). Existing studies on the effect of national IPR systems on inward FDI horizontal productivity spillovers to domestic firms however, focus solely on the effect of IPR law protection (Arora 2009) and are therefore likely to suffer from biased results. Studies ignoring the effect of the strength of public IPR enforcement are likely to systematically overestimate the effect of IPR law protection strength (Papageorgiadis and Sofka 2020). This could also explain the mixed results in the existing literature, such as the finding of negative (Iršová and Havránek 2013), positive (Yi et al. 2015), and insignificant (Smeets and de Vaal 2016) effects on FDI horizontal productivity spillovers from inward FDI. Focusing on only one element of IPR systems in their empirical modelling but arguing for the importance of IPR systems overall, existing studies de facto assumed that both IPR law protection and the effectiveness of public IPR enforcement developed equally over time and have a uniform effect on inward FDI horizontal productivity spillovers. This leads to biased estimates of the effect of IPR law protection in each respective study and the mixed findings across studies and hence handicaps research narratives of the impact of IPR protection on inward FDI horizontal productivity spillovers to domestic firms.

The contemporary context of IPR systems internationally after the signing of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement in 1995 is substantially different to the way it is theorized in the existing literature. Although most countries have significantly increased the availability of IPR law protection in their IPR systems after TRIPS, the effectiveness with which the IPR laws and legal mechanisms are enforced in practice by public authorities continues to be questionable for many countries (Athreye et al. 2020; Papageorgiadis and McDonald 2019; Peng et al. 2017a, 2017b). This is because although the TRIPS agreement requires signatory countries to provide a number of specific legislative procedures in relation to enforcement mechanisms, it does not set any obligations/requirements regarding how effectively IPR laws are enforced by relevant public agents in practice (WTO 2017). Therefore, while most WTO countries nowadays offer IPR law protection that is generally comprehensive (Park 2008; Peng et al. 2017a), the levels of effectiveness of public IPR enforcement continue to vary significantly between countries (Brander et al. 2017; Papageorgiadis and McDonald 2019).

The way that law is enforced (or not) in practice is distinct to the existence of law on the books since enforcement depends on the behaviour of public agents (Dixit 2009). While IPR law in a country is codified and evidenced in writing in the legislative books of its IPR system, it is subject to the interpretation of the judiciary and other public IPR enforcement agents such as customs, police and trading standards. This is because the application of IPR law in practice is at the discretion of IPR enforcement agents who are bounded by the legislative norms of their perspective country (Hebert and McLemore 1973). The extent to which the public IPR enforcement agents will effectively engage and enforce IPR will be influenced by their ‘shared sets of beliefs’ about IPR infringement and if they consider an IPR infringing activity to be illegal. Also, even if the IPR legislative framework in a host country includes laws that enable punitive sanctions to IPR infringers, these may never be utilized by the judiciary or not enforced in practice by the customs officials. The same IPR laws available in two different countries may be applied differently depending on the way that the IPR law is decoded and interpreted by the IPR enforcement agents of the country (e.g., punitively in one country and non-punitively in another). Strong public IPR enforcement is expected to prevail in countries where public IPR enforcement agents effectively prosecute IPR infringement and judiciary independently and transparently apply IPR law in practice (Pajunen 2008). In contrast, weak public IPR enforcement is expected to be witnessed in countries with opaque, arbitrary and ineffective judiciary and enforcement authorities who are more receptive to corrupt practices and/or unlikely to enforce the IPR laws in practice because of lack of legislative/social norms conducive to law enforcement (Maskus 2004).

The United States Federal Government is established by the US Constitution. The Federal Government shares sovereignty over the United Sates with the individual governments of the States of US. The Federal government has three branches: i) the legislature, which is the US Congress, ii) Executive, comprised of the President and Vice president of the US and iii) Judiciary. The US Constitution prescribes a system of separation of powers and ‘checks and balances’ for the smooth functioning of all the three branches of the Federal Government. The US Constitution limits the powers of the Federal Government to the powers assigned to it; all powers not expressly assigned to the Federal Government are reserved to the States or to the people.

Supreme Court curtails agencies’ ability to enforce regulations The repeal of the bedrock Chevron doctrine throws climate and conservation laws into doubt. On Friday, the Supreme Court’s conservative majority struck down the Chevron doctrine, a 40-year-old pillar of administrative law. The decision is likely to initiate an era of uncertainty for federal regulation. Chevron gave federal agencies room to interpret ambiguous or unclear laws and instructed the courts to defer to these interpretations as long as they were reasonable understandings of the law. Chief Justice John Roberts, who wrote the majority opinion for the landmark 6-3 decision, argued that the Chevron doctrine “defies the command” of the Administrative Procedures Act, the law that controls the operations of federal agencies. “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities,” Roberts wrote. “Courts do.” The court sided with the petitioners, resolving two companion cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. In her dissent, Justice Elena Kagan argued that Congress can constitutionally allow agencies to act at their own discretion, within limits, and she made a case for Chevron’s place as a fundamental legal precedent. “It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest,” she wrote. From left, Supreme Court Chief Justice John Roberts, Associate Justices Sonia Sotomayor, and Elena Kagan. Roberts wrote the majority opinion, Kagan wrote the dissent in resolving two companion cases that overturn the Chevron doctrine. Tom Williams/AP Image Chevron’s repeal will have huge ramifications across the West, opening the door to a wave of litigation that could result in countless reinterpretations of foundational laws governing clean air and water, public lands, forest management and climate policy, as well as healthcare, taxes and emerging technology. The decision “marks a significant change in the balance of power and the relationship between the three branches of government,” said Chris Winter, the executive director of the University of Colorado Law School’s Getches-Wilkinson Center for Natural Resources, Energy, and the Environment. He added that it is difficult to predict the magnitude of the change. “It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds.” The Chevron doctrine arose from a challenge to the Clean Air Act in 1984. The Natural Resources Defense Council challenged the Environmental Protection Agency’s definition of a single “source” of pollutants, which could refer to an entire factory or a single furnace. The justices ultimately deferred their decision to the EPA as the agency responsible for enforcement, and thus encoded a process whereby, if any ambiguities in a law arose, the courts could defer to the responsible agency. By overturning Chevron, the Supreme Court has transferred this authority to clarify the meaning of written law from agencies to the judicial system. When disagreements end up in the courtroom, judges will now have the final say on how laws are implemented, even in technical cases, such as the issuing of licenses for nuclear storage sites. Congress, meanwhile, will need to be more precise and targeted in drafting laws — something that is far from guaranteed in the current polarized Legislature. The outcome could prove paralyzing for agencies, said Rosalie Winn, director and lead counsel for methane and clean air policy for the Environmental Defense Fund, because it could create a patchwork regulatory landscape that varies depending on separate lower court interpretations of the same law. Whereas Chevron offered a kind of national uniformity based on deference to the expertise of regulators, now agencies will need to adhere to interpretations within the jurisdiction of separate district courts. In her dissent, Kagan described this change as undemocratic. “Agencies report to a President, who in turn answers to the public for his policy calls,” she wrote. “Courts have no such accountability and no proper basis for making policy.” Proponents of removing Chevron argue that the doctrine created its own regulatory uncertainty, because the real-world impacts of a law could shift considerably every four years, from one presidential administration to the next. Chevron’s refinery outside Los Angeles. The Chevron doctrine arose from a challenge to the Clean Air Act in 1984 and the EPA’S definition of a single “source” of pollutants, which could refer to an entire factory or a single furnace. “By its sheer breadth, Chevron fosters unwarranted instability in the law, leaving those attempting to plan around agency action in an eternal fog of uncertainty,” Roberts wrote in the majority opinion. In Loper Bright, for instance, a group of fishermen who operate along the Northeast coast had objected to the National Marine Fisheries Association’s rule, which could require fishing industries to pay up to 20% of their revenue for on-board observers. They pointed out that Congress expressly limits payments to 2%-3% of what they earned and said that the agency’s interpretation went too far in what it deemed “necessary and appropriate” for conservation. “By its sheer breadth, Chevron fosters unwarranted instability in the law, leaving those attempting to plan around agency action in an eternal fog of uncertainty.” Under Chevron, the ability to update interpretations of existing law allowed agencies to adjust how they enforce the laws in light of advancing scientific knowledge and changing realities. During the Obama administration, for example, Chevron allowed the EPA to redefine individual “sources” of pollutants under the Clean Air Act yet again. In 2016, the EPA issued a new rule that requires oil and gas well operators to check wells for methane leaks, a major source of greenhouse gas emissions. More recently, the Bureau of Land Management issued a new public-lands rule, which elevated “conservation” to the same level of importance as energy and mining — a change made possible by reinterpreting the Federal Land Policy Management Act’s directive to balance “multiple uses” of public lands. Now, a wide range of environmental legislation and policy — from the Endangered Species Act to tax incentives under the Inflation Reduction Act — could be called into question, with the judicial branch responsible for filling in gaps in written law. The broader context of today’s decision, said Sanne Knudsen, professor of environmental law at the University of Washington, is that the Supreme Court seems to be on a deregulatory trend. She pointed to two separate cases challenging the Clean Water Act’s interpretation of the “waters of the United States.” In 1985, the year after Chevron came into force, the court took a deferential approach and allowed the EPA to include most wetlands in this definition. In a 2023 case, however, the court majority did not cite Chevron at all, resulting in a much narrower definition of U.S. waters that dramatically reduced law’s protections. The Chevron decision is a victory for business interests and conservative legal groups, which have fought federal government regulation for decades. They have found an ally in Roberts’ Supreme Court, which has supported business interests more consistently than any other court over the past century, according to reporting by E&E News. The most recent decision will only confirm this trend, with a ruling that enjoyed the resounding support of business interests, including the fossil fuel and meatpacking industries. Attorneys linked to Americans for Prosperity — the conservative legal group funded by Charles and the late David Koch, the petrochemical billionaires — represented the fishing interests in Loper Bright. Some states had preceded the Supreme Court in doing away with Chevron. Arizona, Utah and Colorado are among the more than 10 states that have laws to undo judicial deference to agencies. If a state wants to preserve deference, its Legislature can enshrine this process into law. But at the federal level, the old precedent is gone, and the onus to write clear laws will fall to a divided Congress. “In a world where Congress is functioning, Congress can check the courts,” Knudsen said, “If Congress were doing its job, quite frankly, the concerns around this would be a lot more muted.”

IPR systems comprise of two distinct elements: (a) IPR protection and (b) public IPR enforcement (Khoury et al. 2014; Peng et al. 2017a). The IPR protection element relates to the availability of IPR law as this appears in the statutes of a country’s legislative framework. The range of IPR law in a country determines which intellectual assets can receive IPR protection, the duration of IPR protection (e.g., typically 20 years for patents) and the available legal sanctions that can be used by IPR enforcement agents (OECD 2014). For example, IPR law in a country determines the level and range of fines that IPR infringers may be sentenced with if convicted for IPR violation. Countries offering strong IPR protection generally provide legislative frameworks that offer IPR protection coverage to a wide type of IPR assets and a wide number of legal enforcement mechanisms for use by the IPR enforcement agents (Ginarte and Park 1997). In contrast, weak IPR law protection relates to the provision of some IPR protection however, protection may not be available for many other types of IPR that receive protection in other countries. There are differences in the availability and range of IPR law protection between countries internationally such as country specific legal exemptions or lack of IPR law availability for specific IPR assets e.g., the patentability of software and plant and animal varieties (Park 2008). Therefore, while IPR owners may be awarded IPR protection in one country they may not be able to register and protect their rights in another country. In addition, the available laws related to the enforcement of IPR may not provide a range of legal options to IPR enforcement agents to carry out their operations effectively. For example, this can relate to the potential lack of legislation that allows IPR enforcement agents to award and enforce preliminary injunctions in IPR infringement cases.

The way that law is enforced (or not) in practice is distinct to the existence of law on the books since enforcement depends on the behaviour of public agents (Dixit 2009). While IPR law in a country is codified and evidenced in writing in the legislative books of its IPR system, it is subject to the interpretation of the judiciary and other public IPR enforcement agents such as customs, police and trading standards. This is because the application of IPR law in practice is at the discretion of IPR enforcement agents who are bounded by the legislative norms of their perspective country (Hebert and McLemore 1973). The extent to which the public IPR enforcement agents will effectively engage and enforce IPR will be influenced by their ‘shared sets of beliefs’ about IPR infringement and if they consider an IPR infringing activity to be illegal. Also, even if the IPR legislative framework in a host country includes laws that enable punitive sanctions to IPR infringers, these may never be utilized by the judiciary or not enforced in practice by the customs officials. The same IPR laws available in two different countries may be applied differently depending on the way that the IPR law is decoded and interpreted by the IPR enforcement agents of the country (e.g., punitively in one country and non-punitively in another). Strong public IPR enforcement is expected to prevail in countries where public IPR enforcement agents effectively prosecute IPR infringement and judiciary independently and transparently apply IPR law in practice (Pajunen 2008). In contrast, weak public IPR enforcement is expected to be witnessed in countries with opaque, arbitrary and ineffective judiciary and enforcement authorities who are more receptive to corrupt practices and/or unlikely to enforce the IPR laws in practice because of lack of legislative/social norms conducive to law enforcement (Maskus 2004).

To the Editor: Re “Undoing ‘Chevron’ Would Duly Shift Power Back to Congress,” by David French (column, Jan. 22), and “Undoing ‘Chevron’ Would Unduly Shift Power to the Courts,” by Jody Freeman and Andrew Mergen (Opinion guest essay, Jan. 22), about a case before the Supreme Court: I agree with Mr. French that it is Congress, rather than the courts or the administrative agencies, that should fill the gaps in any laws that it passes. But Mr. French acknowledges that Congress is dysfunctional and unlikely to act in a timely manner on the many instances when a gap in a law must be filled or an ambiguous term must be defined. The real question, then, is if Congress fails to act, should the administrative agencies be the second choice or the courts. I am confident that the administrative agencies are the better choice. Courts are not experts and are not responsive to the electorate. By contrast, administrative agency heads are appointed by the current president, who, the Electoral College notwithstanding, is responsive to the will of the people. Moreover, unlike judges, administrative agencies have true subject matter expertise, and that was the entire premise of the Chevron decision, as noted by no less a jurist than Justice Antonin Scalia. It is apparent to me, as a former — and longtime — federal judge, that the administrative agencies are a better choice than the courts to fill the gaps when Congress fails to do its job! Shira A. Scheindlin Brooklyn The writer is a former federal judge in the Southern District of New York.

2. Chevron likewise restricts the judiciary from imposing its own policy preferences on agency decision-making. A core objective of Chevron itself was to ensure that the branches of government accountable to the people (i.e., the legislative and executive branches) are entrusted with making policy, not the judiciary’s or a particular judge’s “personal policy preferences.” Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 865–66 (1984). As the Court emphasized in Chevron, agencies, unlike courts, are more accountable to the people, and therefore “it is entirely appropriate for this political branch of the Government to make such policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.” Id. at 865-66. Empirical analysis demonstrates Chevron is a successful tool for curbing adjudication that is overly ideological.

Data analysis of every published circuit court decision between 2003 and 2013 discussing Chevron or Skidmore deference—1,382 cases in all— demonstrates that Chevron has served an important function in achieving predictability and curbing a regulatory environment based on judicial policy preferences.31 These data show that when an agency issues an ideologically conservative interpretation of a statute, an ideologically liberal judicial panel using Chevron deference agrees with the agency’s statutory interpretation about 51 percent of the time.32 When not applying Chevron, that number drops to about 18 percent.33 Ideologically conservative judicial panels respond similarly when addressing liberal interpretations of a statute. When faced with a liberal interpretation by an agency, an ideologically conservative panel applying Chevron deference will agree with an agency’s statutory interpretation about 66 percent of the time.34 When not applying Chevron, that number likewise drops to 18 percent.35

The integration of financial technology (FinTech) innovations into the financing of small and microenterprises (SMEs) signals a shift in the financial services ecosystem towards greater inclusiveness, efficiency and accessibility. Underpinning this shift is the strategic application of cutting-edge technologies including, but not limited to, Artificial Intelligence (AI), Blockchain and Big Data analytics [21]. These technological advances have been critical in addressing the historical barriers that have constrained SMEs' access to critical capital, thereby facilitating the emergence of new financing models that are specifically tailored to the nuanced needs of these businesses. In addition, these innovations have significantly improved the operational efficiency and reach of existing financial services, paving the way for a more dynamic and responsive SME financing environment.

As the FinTech industry continues to evolve, it will have a further transformative impact on SME financing, primarily through the utilisation of emerging technologies. This evolution is expected to deliver financing solutions that are not only more personalised and secure, but also more cost effective. The expected trajectory of these developments suggests a deepening symbiosis between fintech innovation and SME finance - a synergy that is expected to help drive economic growth and stimulate entrepreneurial ventures. However, the full potential of this synergy depends on the combined efforts of a wide range of stakeholders, including policymakers, financial institutions, fintech entities and SMEs themselves.

The US Supreme Court’s June 28, 2024 decision in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce overruled the forty-year-old Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. decision, one of the most-cited cases in US law. This development will have far-reaching impacts, and for intellectual property (IP) law specifically, it could significantly affect how the Court approaches US International Trade Commission (ITC) litigation.

The Chevron doctrine required courts to defer to “permissible” agency interpretations of the statutes those agencies administer, even when a reviewing court read the statute differently. On June 28, the Supreme Court held that reviewing courts need not defer to agency interpretation of law, even when the statute is ambiguous. The holding in the Loper Bright and Relentless decision could have wide-ranging impacts on US IP law.

There is a trend in many areas towards attention to ‘big’ risks. Financial regulation has become increasingly concerned with so‐called systemic risks. Others, and not just Hollywood blockbusters, have been attracted to the study of civilization‐destroying catastrophic risks. Indeed, the OECD has become increasingly interested in ‘high level’ risks and ways in which different national governments seek to prepare for and manage actual events, such as the aftermath of major earthquakes, or the response to a terrorist attack. The notion of ‘existential’ risk might be adding to the cacophony of emerging ‘big’ risk concerns. However, existential risk deserves special attention as it fundamentally adds to our understanding of particular types of risks, and it also challenges common wisdom regarding actions designed to support continued survival.

What is existential risk? We can approach this question by looking at several attributes. The first attribute is what, in fact, is at risk. One set of existential risks are those that threaten survival. These are the acute catastrophes, i.e. the idea that particular events’ impacts are likely to extinguish civilization. Such risks have been identified when it comes to asteroids, nuclear war, and other largescale events that undermine the possibility for survival in general, or, at least, in large regions. A second set is based on the idea that existential risks are not just about physical survival, but about the survival of ways of life. In other words, certain risks are seen as threatening established ways of doing things, cultures, social relationships, and understandings of the ‘good life’. There is, of course, much disagreement about what the good life constitutes, and therefore there will always be disagreement as to what exactly an existential risk constitutes.

Freeman, Jody (Jody Freeman is the Archibald Cox Professor of Law at Harvard Law School and founder of the Harvard Environmental and Energy Law Program. She previously served as counselor for energy and climate change in the Obama White House.) 06-12-2024 // PH

The U.S. Supreme Court today issued its , overruling the Court’s seminal case on administrative agency deference, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. Chief Justice Roberts delivered the opinion of the Court and Justices Kagan, Sotomayor and Jackson dissented. In the 1984 ruling in ., the Court held that a court “may not substitute its own construction of a statutory provision for a reasonable interpretation made by [the agency charged with administering the statute],” where the statute is ambiguous. The decision established a two-step test in which a court must first “assess whether the statutory language is ‘clear’ and, if so, give effect to the clear terms” and “if the statutory language is ‘silent or ambiguous,’ then—at step two—a court is prohibited from resolving the legal question itself as it would in any other case, and instead must defer to the agency’s interpretation.” But today’s opinion held that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous,” thereby definitively overruling Chevron. The ruling is not a surprise. In January of this year, in the two cases that were granted challenging Chevron saw conservative justices’ questioning leaning largely in favor of scrapping the doctrine, while Justices Kagan, Sotomayor and Jackson pushed back on the petitioners’ arguments, predicting chaos, and the U.S. Solicitor General said overruling such a foundational doctrine would result in “endless litigation.” A group of herring fishermen first the High Court in November 2022 asking the Court to consider: 1) whether the Magnuson-Stevens Act (MSA), which governs fishery management in federal waters and says that the National Marine Fisheries Service (NMFS) can require vessels to carry federal observers onboard to enforce the agency’s regulations, also authorizes the NMFS to require that the vessels pay the salaries of those monitors; and 2) whether the Court should overrule Chevron. The Court ultimately granted the petition limited to question 2. The fishermen argued in their opening brief that ever since the Chevron decision, “judges, litigants, and scholars have struggled not only to apply Chevron, but to reconcile it with the Constitution, the Administrative Procedure Act (APA), and the historical record.” While it is on the books, the brief argued, administrative agencies will continue to abuse their power. Then, in October 2023, the Court challenging Chevron, explaining that it would hear in tandem with the Loper Bright case, since the two were almost identical. About 60 amicus briefs were filed in the Loper Bright case. In one filed by Patent and Trademark Attorneys, Agents, and Applicants for Restoration and Maintenance of Integrity in Government (PTAAARMIGAN) and US Inventor in support of neither party, the amici asked the Court to reaffirm Chevron deference but to clarify that it should only apply “when an agency acts within the substantive and procedural limits set by Congress.” The brief argued that the U.S. Patent and Trademark Office (USPTO) often “promulgates regulations without the public participation and vetting required by the Administrative Procedure Act, Paperwork Reduction Act, 44 U.S.C. § 3501 et seq., and Regulatory Flexibility Act, 5 U.S.C. § 601 et seq.” Furthermore, when the Office has been challenged in the past on such moves, the agency uses Chevron as a cover, it said. “The USPTO’s neglect of rulemaking procedure leads to regulatory costs that exceed $ 1 billion per year,” added the brief, citing by the brief’s author, David Boundy of Potomac Law Group. Today’s opinion said that Chevron has not been the kind of stable rule required for courts to say what the law is but instead called it an “impediment” and “a judicial invention that required judges to disregard their statutory duties.” The Court said that the doctrine cannot be squared with the Administrative Procedures Act (APA), which “specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action, §706 (emphasis added)—even those involving ambiguous laws—and set aside any such action inconsistent with the law as they interpret it.” In a concurring opinion written “to address why the proper application of the doctrine of stare decisis supports that course,” Justice Gorsuch said “[t]oday, the Court places a tombstone on Chevron no one can miss.” In her dissent, Justice Kagan said the majority’s opinion “flips the script,” and that now a “rule of judicial humility gives way to a rule of judicial hubris.” IPWatchdog Founder and CEO said that Chevron was a “recipe for disaster” and that overruling it was the right move, but it is far from a sure thing that anything will change going forward. He explained: “As reasonable as the premise behind Chevron once was— namely to give front line agencies latitude to carry forward their mission— experience has demonstrated that agencies often abuse authority and seek to claim every opportunity to do whatever they wanted to do regardless of what Congress, the Judiciary, and basic concepts of checks and balances. In a nutshell, Chevron allowed agencies to fill the void abdicated by Congress and a Judiciary all too willing to refuse to engage in oversight. This was a recipe for disaster because too many agencies are controlled by political operatives and believers who are willing to allow the ends to justify the means, and willing to take every opportunity to expand their own power. Ultimately, Chevron provided cover for truly arbitrary and capricious decisions. The Administrative State will likely not go quietly into the night, so as important as this decision can be, the real question will be whether anything changes at all. If things do change as envisioned by this decision, much more will be required of Congress and the courts, and the petty political in-fighting and refusal to accomplish anything out of a fear of a primary challenger will need to be curtailed.” In terms of how the decision might affect IP owners in the near term, of Sterne Kessler said it could impact the USPTO’s decision to pursue the recently-issues Notice of Proposed Rulemaking (NPRM) on terminal disclaimer practice: ” “One concrete implication is that the PTO will not be able to rely on Chevron to justify the proposed rulemaking regarding terminal disclaimer practice,” Milliken said. “That rule has generated some controversy and may well be challenged if and when it is put into place. So, Loper does change the landscape of that potential dispute in a significant way.” As far as the impact of the decision on the cases at hand, Meredith Moore, Director of Ocean Conservancy’s Fish Conservation Program, issued the following statement: “Today, the Supreme Court clearly showed that this case was never just about fish. Instead, New England’s Atlantic herring fishery was used as a Trojan Horse to attack the foundations of good governance and resource management. The protections that keep our air and water clean, our homes and workplaces safe, and our communities, our children and ourselves healthy rely on the knowledge and experience of scientists and experts, and all that is now at risk. “Decades ago, American fisheries were on the brink of collapse, and what made recovery possible – what kept fishing communities in business and seafood on American dining room tables – was strong science-based management decisions rooted in data. This case jeopardizes our access to critical information about America’s fisheries, which is the exact opposite of what we need to handle the fast-growing impacts of climate change. “The Supreme Court’s decision opens the floodgates to litigation that will erode critical protections for people and the environment.”

Yet, as criticism toward the patent system has grown, so too have the challenges to this unusual power dynamic.6 An increasing number of commentators believe this lopsided institutional structure is the root cause of the patent system's systemic failures.7 [footnote 7 text: 7. See, e.g., John M. Golden, Patentable Subject Matter and Institutional Choice, 89 TEX. L. REV. 1041, 1075 (2011) (noting that courts have struggled with patentable subject matter inquiries and that the state of jurisprudence could be improved by granting the PTO rulemaking authority over patentable subject matter); Joseph Scott Miller, Substance, Procedure, and the Divided Patent Power, ADMIN. L. REV., Winter 2011, at 31 (arguing that the courts should take a more deferential approach in determining whether a rule is substantive or procedural, the result of which would leave the PTO with ample discretion to manage the prosecution process); Arti K. Rai, Engaging Facts and Policy: A Multi-Institutional Approach to Patent System Reform, 103 COLUM. L. REV. 1035, 1040 (2003) ("The ostensibly discrete problems of our patent institutions stem from an initial mistake in institutional design."); Sarah Tran, Administrative Law, Patents, and Distorted Rules, 80 GEO. WASH. L. REV. 831, 839-40 (2012) (arguing that the Federal Circuit's overly narrow view of the PTO's rule-making powers "has impeded innovation and the express goal of Article I of the U.S. Constitution to promote 'the Progress of Science and useful Arts"' (quoting U.S. CONST. art. I, § 8, cl. 8)); Wasserman, supra note 4, at 420-29 (arguing that the structural relationship between the PTO and the Federal Circuit has inflated the boundaries of patentability)./end footnote 7 text]. An even larger contingency of scholars support reforms that would shift greater power to the PTO.8 The cries for institutional reform culminated in 2011 when Congress enacted the historic LeahySmith America Invents Act (AIA).9 The AIA provided the first major overhaul to the patent system in sixty years and undeniably increased the stature of the PTO by granting the Agency a host of new responsibilities, such as fee-setting authority" and the ability to conduct new adjudicatory proceedings in which patent rights may be obtained or challenged.1' This Article contends, however, that commentators have generally failed to recognize the extent to which the AIA alters the fundamental power dynamic between the Federal Circuit and the PTO. Although scholars acknowledge that the AIA bestows a glut of new powers upon the Agency,12 they have nearly uniformly concluded that "Congress stopped short of allowing the PTO to interpret the core provisions of the Patent Act-those that affect the scope of what is patentable."'" Though Stuart Benjamin and Arti Rai have observed that certain congressional bestowals of adjudicatory authority may entitle the PTO's legal interpretations of the Patent Act to strong judicial deference,14 [footnote 14 text: 14. See Stuart Minor Benjamin & Arti K. Rai, Who's Afraid of the APA? What the Patent System Can Learn from Administrative Law, 95 GEO. L.J. 269, 327-28 (2007) ('The various postgrant review proceedings that have been proposed would be trial-type procedures on the record that bear the hallmarks of formal adjudication-most notably, a proceeding before an administrative judge at which the parties present evidence and cross-examination, with the judge's decision based on the record. Such proceedings would have sufficient formality to satisfy Meads test for application of Chevron deference. Thus, if Congress created these procedures and said nothing more, Chevron deference would seem to apply to them." (footnotes omitted)); Arti K. Rai, Essay, Patent Validity Across the Executive Branch: Ex Ante Foundations for Policy Development, 61 DUKE L.J. 1237, 1280 (2012) ("In fact, the executive branch could also use the postgrant-review authority conferred upon the PTO by the AIA to go one step further. As a doctrinal matter, under current Supreme Court precedent interpreting the contexts in which Chevron applies, the government could ask for Chevron deference toward decisions made in postgrant review proceedings."). However, neither of these articles analyzed the language of the AIA, applied or acknowledged the three-way circuit split on when formal adjudications are triggered, or performed any analysis of when a grant of formal adjudicatory authority carries the ability to speak with the force of law./end footnote text] this Article provides the first indepth exploration of whether the actual powers granted by the AIA would result in the PTO becoming the primary interpreter of the core patentability requirements. This Article concludes that the AIA rejects over two hundred years of court dominance in patent policy by anointing the PTO as the chief expositor of substantive patent law standards. In general, the patent system has historically suffered from a lack of serious engagement with administrative law,15 even though Supreme Court intervention in 1999 made clear that standard administrative law norms-including the Administrative Procedure Act-apply to the PTO. 16 Applying administrative law principles to the AIA provides that the PTO's legal interpretations of the Patent Act, as announced by its new adjudicatory proceedings, are entitled to the highly deferential standard of review articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 7 As this Article argues, this deference is a normatively desirable outcome.18 Making the PTO the primary interpreter of the core patentability standards ushers the patent system into the modern administrative era, which has long recognized the deficiencies associated with judge-driven policy. 9 This provides the institutional foundation for infusing economic policy into the patent system, enabling the tailoring of patentability standards to advance the system's constitutionally mandated goal: the promotion of innovation.

In 2013, Vermont became the first state to pass an “anti-patent troll” law. Since then, more than 30 states have passed similar laws to rein in patent trolls. These efforts, which range from allowing companies and states to sue patent trolls for bad-faith assertions, to providing civil penalties and to giving companies that are targeted the opportunity to seek damages, have helped discourage trolls from targeting small businesses and inventors.

Unsurprisingly, over the last several years, a handful of states have been challenged in court by patent trolls who argue that these laws are unconstitutional and infringe on federal patent law. An Idaho law, the most recent target of such challenges, imposes a bond requirement on NPEs. This measure requires NPEs to prove that, if they are found to be likely to have violated the bad-faith assertion law, they will be able to pay any penalty imposed by the law. This helps deter NPEs more from making bad-faith assertions. In other words, it forces NPEs more to think twice before they target a small business for patent infringement.

There is little doubt that strong IP protection is linked to stronger economic growth. A recent paper from the National Bureau of Economic Research found that holding a patent (and being able to defend it) increases the probability of securing venture capital funding by 53 per cent, start-up job growth by 36 per cent and start-up sales by 51 per cent. Another paper, “Patents and the Wealth of Nations” by Stanford academic Stephen Haber, found that countries that protect patents enjoy stronger economic growth. His research also shows that the patent troll narrative, and the idea that litigious patent holders can “hold up” innovation for bigger groups, is inconsistent with the data.

“The America Invents Act is a clear improvement over prior House versions of patent reform legislation. We are pleased that the legislation will end, once and for all, the diversion of fees collected by the U.S. Patent and Trademark Office, allowing the agency to use all of its fees to hire more examiners, reduce the backlog of pending applications, and make other improvements to its operations. We also commend the inclusion in the bill of many other reforms that will improve the patent system and enhance patent quality, including transition to a “first-to-file” system, the elimination of other subjective elements of patent law, and a new supplemental examination proceeding for use by patent owners.

“BIO has serious concerns with several significant changes made in the House bill regarding the inter partes review system. Taken as a whole, these changes would make it easier to bring frivolous challenges to patents, harder for patent owners to enforce them, and more likely that patent owners will find themselves in duplicative and costly patent-related proceedings. These changes negatively alter the carefully-crafted balance between patent owners and accused infringers that was achieved in the Senate bill – a bill that won support not only from 95 Senators, but from a wide range of industries, universities, and small businesses across the spectrum of American innovation.